Legislature(1995 - 1996)
04/21/1995 01:40 PM FIN
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HOUSE BILL NO. 201 An Act relating to prisoner litigation, post-conviction relief, sentence appeals, amending Alaska Administrative Rule 10, Alaska Rules of Appellate Procedure 204, 208, 209, 215, 521, 603, and 604, and Alaska Rules of Criminal Procedure 11, 33, 35, and 35.1; and providing for an effective date. The Committee was provided with copies of proposed committee substitute for HB 201, Work Draft #9-GH0028\0, dated 4/20/95 (copy on file). Ms. Otto reviewed the work draft. She noted that most of the statutory changes included in HB 201 were at the request of the Court. She stated that the first substantive change made by the work draft was the deletion on page 3, lines 5 - 11 of changes made by CSHB 201 (JUD). She noted that these provisions would have required screening for frivolous cases. She explained that this provision would have required a $200 thousand dollar fiscal note. She noted a new section was substituted to allow a dismissal of litigation if there are material false statements in the filing. She noted that section 10 is new to allow the Court of Appeals to hear appeals of sentences exceeding two years for a felony offense or 120 days for a misdemeanor offense. Ms. Otto stated that sections 19 and 20 would clarify that advisement would only be given in cases where there is an appellate right or where there is a plea agreement. Ms. Otto noted that sections 33, 34 and 35 are new at the 5 request of the Public Defender Agency. She explained that if a person files an application for a post conviction relief and the Public Defender concludes that the case is frivolous that a brief would not be required. A certificate would be filed that the application does not present a colorable claim for relief. The Court would than give notice to the defendant of its intent to permit the appointed counsel to withdraw and dismiss the application. The applicant would then be given an opportunity to explain why the case is not frivolous. The Court would next make a judgement as to the merit of the case. She stressed that the Department of Law supports these provisions. Representative Mulder MOVED to adopt work draft #9-GH0028\O, dated 4/20/95. There being NO OBJECTION, it was so ordered. MARGI MOCK, APPELLATE SECTION, PUBLIC DEFENDER AGENCY testified via the teleconference network. She expressed concern with sections 28 and 29. She noted that these sections eliminate Rule 35 (a) and reduces the time a defendant can file for sentence modification from 120 days to 60 days. She asserted that the legislation would entirely eliminate sentence modification. She stressed the difficulty to demonstrate a change or rehabilitation within 60 days. She maintained that the change would result in an increase in motions. She stated that it makes more sense to allow modifications when there is enough time to demonstrate a compelling need for relief and that the defendant can be returned safely to the community. Ms. Mock noted that section 20 does not allow the Appellate Court to accept late filled appeals or petitions for hearings. She stressed that this penalizes defendants whose lawyers are negligent and do not file appellate pleadings in a timely fashion. She recommended that the Court be given the discretion to relax the deadline in cases where the interest of justice requires. Ms. Mock noted that section 36 states that the "applicant bears the burden of proving all factual assertions by clear and convincing evidence." She noted that this is new language. She asserted that there are varying burden of proofs already set by the Court. Ms. Otto summarized that under Rule 35 (a) a motion to modify is allowed for any reason within 120 days after the day the sentence is opposed or after an appeal has been decided. She stressed that it is unfair to have those that accept their sentence to have a shorter period of time than those that carry their sentence to appeal. She did not think it appropriate to have two sets of standards for two classes of defendants. 6 Ms. Otto stated that the Court has rejected motions to modify that are currently in Rule 35 (b). She explained that the Court has ruled that rehabilitation as a result of jail time is not a basis for modification of sentence. She noted that the Court has judged that rehabilitation was the purpose of the imposed sentence. She pointed out that there is an executive clemency procedure for individuals that are outside the time limit. In response to a question by Representative Brown, Ms. Otto emphasized that in the small amount of cases where a sentence modification is appropriate that executive clemency is a suitable remedy. She stressed the number of frivolous cases. She stated that executive clemency is authorized by the Constitution and is investigated by the parole board. She stated that executive clemency is not frequently granted. Representative Brown questioned why the period for sentence modification was changed from 120 to 60 days. Ms. Otto stated that there was a general consensus, with the exception of the Public Defender Agency, that 60 days was sufficient. Ms. Otto stated that she would not object to the deletion of the change. She noted that the change takes place on page 18, line 14. She explained that Rules 35(a) and (b) were combined into Rule 35(b). Ms. Otto agreed that defendants should not be penalized for the negligence of their lawyers. She stressed that the remedy is on page 20, lines 3 and 4. This would be reason to grant a post conviction relief application and allow the appeal to be filed. She stated that the change is designed to resolve appeals in a timely fashion. Ms. Otto referred to section 36. She felt that the section is an appropriate step by the Legislature to impose a clear and convincing burden of proof. She emphasized that the section applies to post conviction relief applications. She stressed that post conviction relief application is the second round of appeals filed after someone has already lost on direct appeal. She stated that after the State has met a higher burden of proof that it is appropriate that someone seeking relief on a second round of appeals have the burden of proving factual matters by clear and convincing evidence. In response to a question by Representative Brown, Ms. Otto noted that page 19 details circumstances for which a post conviction relief application can be granted. Ms. Otto explained that in the first case the State would 7 have the burden of proof. In the relief application the defendant would have the burden of proof. Current law is based on the preponderance of the evidence. (Tape Change, HFC 95-92, Side 2) Ms. Otto stated that if the Court finds under section 30(4), "that there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice", the application would be granted. Representative Navarre summarized that the evidence would not have been available at appeal. He questioned how often post conviction relief applications are successful. Ms. Otto stated that post convictions relief applications are occasionally successful. Representative Navarre expressed concern that innocent persons not receive a higher burden of proof. Ms. Otto emphasized that once a person is convicted they are not presumed to be innocent. Ms. Otto summarized that the legislation will reduce the number of cases that will be filed and provide appropriate uniform procedures. She estimated that the vast majority of applications are supported by unsubstantiated facts. Representative Grussendorf recounted personal experiences with prisoners seeking appeal. Representative Mulder spoke in support of the legislation. In response to a question by Representative Brown, Ms. Otto clarified that if a defendant's lawyer did not file a petition for appeal they would be rendered ineffective assistance of counsel on appeal. This is grounds for a post conviction relief application. The defendant would then be allowed to present an appeal. Representative Therriault referred to page 5, section 6. Ms. Otto explained that the presumptive sentence for a C felony is 2 years. She stated that the Department of Law was unable to locate an conviction of less than 2 years for a felony offense that was overturned. She noted that case law is complicated for sentences over 2 years. She noted that the right to appeal differs from state to state. She stressed that classes of cases were sought where defendants always loose. Representative Brown referred to comments by Alaska Civil Liberties Union (ACLU) to Representative Porter, dated April 7, 1995 (copy on file). Ms. Otto stressed that it is unlikely for a sentence of two years or less to succeed in a 8 sentence appeal. Representative Brown noted concerns by the ACLU in regards to sections 8 and 9. Ms. Otto stated that a defendant cannot collaterally attack an evidentiary ruling unless he can establish a direct violation of his constitutional rights. She maintained that this provision is a codification of existing practice. In response to a question by Representative Brown, Ms. Otto clarified that under section 28 the Court has the ability to grant a judgement of acquittal after the State's case is concluded, stating that there is not enough evidence to convict the defendant. She stressed that some judges do not want to take this responsibility. The trial is left to continue and after a jury reaches a verdict the judge rules that the verdict is against the weight of evidence. She maintained that if there is not enough evidence that the judge should grant a motion for judgement of acquittal. Ms. Otto referred to section 27. She noted the difficulty of locating witnesses after time. Section 27 changes the time for motion of a new trial from 2 years to 180 days after final judgement. She noted that if new evidence is discovered after 180 days a motion for post conviction relief could be entertained. In response to a question by Representative Navarre, Ms. Otto acknowledged that it is uncommon for courts to grant a new trial after a jury verdict. Ms. Otto reiterated that it is more appropriate for a judge to not allow a case to go to jury if the weight of the evidence is insufficient. She maintained that a judgement of acquittal should be granted. Ms. Otto discussed concerns by ACLU in regards to page 23, lines 27 and 28. She noted that there is a new civil rule that has been passed by the Court that states that once a case is filed everybody has to disclose everything that is relevant. She stated that the Department of Law does not want this rule to apply in prisoner cases because they do not want to give out correctional officer's addresses and phone numbers and other such safety information. Ms. Otto noted that page 3, lines 24 - 26 applies to civil litigation by prisoners of the state. Ms. Mock stated that in order to file an ineffective assistance claim that a determination must first be made by a lower court. She summarized that litigation would be increased by this change. She estimated that the work would be 10 to 20 times greater than filing an affidavit stating 9 that the client did not have an appeal filed on their behalf. She noted that defendant lawyers will be required to certify under oath that claims are not frivolous. Ms. Mock noted that Rule 35(b) states that the Court cannot reduce or modify a sentence unless conditions have changed so that the original purpose of the sentence is being fulfilled. She maintained that a court would not modify a sentence after 60 days. She stated that a person who appeals their sentence should not be penalized. HB 201 was HELD in Committee for further discussion.