Legislature(1995 - 1996)

04/21/1995 01:40 PM FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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                 
  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.                 
  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.                                                       
  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                 
  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                 
  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                 
  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                 
  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.                         

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