Legislature(1993 - 1994)
02/03/1994 01:34 PM House FIN
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
HOUSE BILL NO. 231
"An Act relating to aggravating and mitigating factors
at sentencing."
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GEORGE DOZIER, STAFF, REPRESENTATIVE PETE KOTT explained
that CSHB 231 (JUD) modifies an aggravating factor and
establishes a mitigating factor for purposes of presumptive
sentencing. He noted that current law provides that if a
defendant is convicted of a sex crime against a minor and
has engaged in the same or similar conduct there is an
aggravating factor. There is also an aggravating factor if
the defendant is convicted of sexual assault and previously
engaged in a sexual assault. There is not an aggravating
factor pertaining to a defendant that has committed sexual
abuse of a minor and previously committed sexual assault
against an adult. Section 1 would add an aggravating factor
if a defendant is subject to sentencing for a felony sex
crime and has violated any other sexual crime statute.
Mr. Dozier explained that a mitigating factor would be added
when a defendant is being sentenced for a felony and a prior
felony offense has triggered a presumptive sentence, when
the prior felony offense is of a less serious nature.
Mr. Dozier noted that section three which referred to a
three judge panel was deleted by the House Judiciary
Committee.
JAYNE ANDREN, COUNCIL DOMESTIC VIOLENCE AND SEXUAL ASSAULT
spoke in support of section 1 of the legislation. She
suggested that language be added to section 2 to prohibit
the mitigator in cases where the prior or current conviction
concerns an offense covered by Alaska Statutes 11.41, Crimes
Against Persons.
CAREN ROBINSON, ALASKA NETWORK ON DOMESTIC VIOLENCE AND
SEXUAL ASSAULT spoke in support of section 1. She also
recommended that language be added to section 2 to prohibit
the mitigator in cases where the prior or current conviction
concerns an offense covered by Alaska Statutes 11.41. She
noted that AS 11.41 are crimes of murder, manslaughter,
assault, sexual assault, sexual abuse of a minor,
kidnapping, and other serious crimes. She observed that
charges may be pleaded down.
Representative Brown referred to a letter to Representative
Kott from the Alaska Sentencing Commission, dated 3/25/94
(copy on file). She noted that the Commission recommended
that the "legislative history reflect that this factor
should not be applied if it would reward an escalating
pattern of behavior or criminal career."
MARGOT KNUTH, CRIMINAL DIVISION, DEPARTMENT OF LAW suggested
that a intent section could be added to the legislation.
She noted that if the mitigator is not adopted, a judge
would have to send a case that do not compel the presumptive
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sentence to a three judge panel. She argued that the
mitigator would allow the judge's discretion. She gave
examples of cases which would trigger the mitigator. A
first offense robbery of under $500 and a second offense of
sexual assault would trigger the mitigator.
In response to a question by Representative Therriault, Ms.
Knuth noted that the judge can not reduce the presumptive
sentence by more than half without going to a three judge
panel.
Representative Brown provided members with AMENDMENT 1 (copy
on file). Amendment 1 would insert on page 2, line 6 after
"offense", "unless the prior conviction and the present
offense are violations of AS 11.41."
Ms. Knuth pointed out that the amendment would pertain to
more cases if the "and" is changed to "or".
(Tape Change, HFC 94-24, Side 1)
Representative Hanley noted that, under the second
presumptive sentence mitigator, a presumptive sentence could
be reduced to less than the penalty of the first time
offense.
CINDY SMITH, DIRECTOR, ALASKA NETWORK ON DOMESTIC VIOLENCE
AND SEXUAL ASSAULT stated that mitigators should not be
allowed in cases involving crimes against persons. She
suggested that "or" would allow more cases to be exempt from
the mitigator.
Representative Brown elected to changed "and" to "or" before
offering her amendment. Representative Brown MOVED to
ADOPT, Amendment 1: Insert on page 2, line 6 after
"offense", "unless the prior conviction or the present
offense are violations of AS 11.41." There being NO
OBJECTION, it was so ordered.
JERRY LUCKHAUPT, LEGAL COUNSEL, LEGISLATIVE AFFAIRS AGENCY
clarified that section 2 was added at the request of the
Alaska Sentencing Commission. He observed that under
current law a defendant convicted of two class A felonies
would receive the same penalty as a defendant convicted of a
class C first offense and a class A second offense. He
stressed that only class A, B and C felonies are included.
Unclassified felonies are not included.
In response to a question by Representative Navarre, Mr.
Luckhaupt discussed the burden of proof. Mr. Luckhaupt
questioned the rationale for a letter of intent.
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Representative Brown suggested that the title should reflect
the contents of the legislation.
Representative Hanley MOVED to delete section 2. He
stressed that the option to receive less time than the first
offense penalty should not exist under a mitigator second
felony offense. Ms. Knuth assured him that a reasonable
judge would not issue a lesser penalty than what a first
offense would require. She added that additional mitigating
factors allow judges more flexibility. She noted that
judges can send cases to a three judge panel if they
question the presumptive sentence.
Co-Chair Larson OBJECTED to the motion to delete section 2
from CSHB 231 (JUD). A roll call vote was taken on the
motion.
IN FAVOR: Brown, Grussendorf, Hoffman, Navarre, Foster,
Hanley, Martin, Therriault, MacLean
OPPOSED: Larson
Representative Parnell was not present for the vote.
The MOTION PASSED (9-1).
Co-Chair Larson noted that CSHB 231 (JUD) would be HELD in
Committee for further discussion in regards to the bills
title.
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