Legislature(2005 - 2006)CAPITOL 120

01/24/2005 01:00 PM JUDICIARY

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01:12:19 PM Start
01:12:51 PM HB78
02:58:02 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Heard & Held
Bills Previously Heard/Scheduled
HB 78 - CRIMINAL LAW/PROCEDURE/SENTENCING                                                                                     
[Contains  reference  to  changes  made  in  the  Senate  to  the                                                               
companion bill to HB 78, SB 56.]                                                                                                
1:12:51 PM                                                                                                                    
CHAIR McGUIRE announced that the  only order of business would be                                                               
HOUSE  BILL  NO.  78,  "An  Act  relating  to  criminal  law  and                                                               
procedure,  criminal sentences,  and  probation  and parole;  and                                                               
providing for  an effective  date."  [In  members' packets  was a                                                               
proposed  committee  substitute  (CS)  for  HB  78,  Version  24-                                                               
LS0391\G, Luckhaupt, 1/21/05.]                                                                                                  
1:14:16 PM                                                                                                                    
VANESSA  TONDINI, Staff  to Representative  Lesil McGuire,  House                                                               
Judiciary Standing Committee,  Alaska State Legislature, provided                                                               
background  information regarding  the U.S.  Supreme Court  case,                                                               
Blakely v. Washington,  124 S. Ct. 2531 (U.S., 2004).   She began                                                             
by  quoting an  excerpt from  an article  in members'  packets by                                                               
Benjamin  Wittes titled  "Suspended  Sentencing",  which read  in                                                               
part [original punctuation provided]:                                                                                           
     For  most  of the  nation's  history  sentencing was  a                                                                    
     matter for  judges alone.   Congress  set the  range of                                                                    
     punishments  a crime  could carry,  and judges  decided                                                                    
     how, within  that range,  to impose  those punishments.                                                                    
     The  result  was  huge   racial,  regional,  and  other                                                                    
     disparities  in  sentences  for comparable  offenses  -                                                                    
     disparities  that  often   reflected  the  oddities  of                                                                    
     individual  jurists.     Congress  responded  with  the                                                                    
     Sentencing  Reform Act  of 1984,  which sought  to make                                                                    
     sentencing  more  predictable.   Under  the  sentencing                                                                    
     guidelines  that  resulted,  judges were  compelled  to                                                                    
     plug a variety  of factors into a  complex formula that                                                                    
     would provide a sentencing range. ...                                                                                      
     The  counterrevolution  began  in  2000,  with  a  case                                                                    
     called  Apprendi v.  New Jersey.   Apprendi  involved a                                                                
     state  hate-crimes law  that allowed  judges to  impose                                                                    
     sentences  beyond the  usual maximum  if racial  animus                                                                    
     lay behind  the crime.   In  this case,  a man  who had                                                                    
     fired a gun  into a black family's  house was sentenced                                                                    
     to twelve  years in  prison - two  years more  than the                                                                    
     maximum for  firearm possession.   The  Court, however,                                                                    
     struck  down  the  sentence,  because  the  defendant's                                                                    
     racial  motivation had  not been  proved  to the  jury;                                                                    
     rather, it had been found by  a judge.  "Other than the                                                                    
     fact of a prior conviction,"  the Court held, "any fact                                                                    
     that  increases  the penalty  for  a  crime beyond  the                                                                    
     prescribed  statutory maximum  must by  submitted to  a                                                                    
     jury, and proved beyond a reasonable doubt."                                                                               
     The  theory  behind  Apprendi  seems  both  simple  and                                                                  
     attractive:   a fact that  pushes a sentence  above the                                                                    
     statutory maximum for the offense  is really an element                                                                    
     of a more  serious crime, and every element  of a crime                                                                    
     has  traditionally had  to be  proved to  a jury.   But                                                                    
     judges have always considered  facts in sentencing that                                                                    
     were not  proved to the  jury.  So Apprendi  forced the                                                                  
     question  of which  sentencing  factors  must count  as                                                                    
     elements  and  which  judges could  still  consider  on                                                                    
     their  own.    In   Blakely  the  Court  answered  that                                                                  
     question:   anything that  increases a  sentence beyond                                                                    
     the "standard  range" set  by law  is by  definition an                                                                    
     element, so a  judge may not consider  it in sentencing                                                                    
     unless it has been proved to the jury.                                                                                     
1:17:34 PM                                                                                                                    
MS.  TONDINI explained  that in  Blakely,  the petitioner,  after                                                             
kidnapping  his  estranged  wife  [and  son],  was  charged  with                                                               
[kidnapping in  the first degree],  but reached a  plea agreement                                                               
reducing the charge to kidnapping  in the second degree involving                                                               
domestic violence  and use of a  firearm.  Mr. Blakely  entered a                                                               
guilty plea, admitting  the elements of kidnapping  in the second                                                               
degree  and the  domestic violence  and firearm  allegations, and                                                               
the case  proceeded to sentencing.   In Washington, the  crime of                                                               
kidnapping in the second degree is  a class B felony, which has a                                                               
maximum sentence  of 10  years.   Other provisions  of Washington                                                               
state law, however,  further limit the range of  sentences that a                                                               
judge  may impose;  for example,  Washington's "Sentence  Reform"                                                               
Act  specifies that  for the  crime of  kidnapping in  the second                                                               
degree  involving the  use of  a firearm,  the standard  sentence                                                               
range  is 45-53  months, but  the judge  is allowed  to impose  a                                                               
sentence  above the  standard range  if he/she  finds substantial                                                               
and  compelling  reasons   justifying  an  exceptional  sentence.                                                               
Furthermore, the Act lists aggravating  factors that justify such                                                               
a  departure, though  that list  is intended  to be  illustrative                                                               
rather  than  exhaustive,  and  the  justification  must  include                                                               
factors  other   than  those  used  in   computing  the  standard                                                               
sentencing range.                                                                                                               
MS.  TONDINI  said   that  in  Blakely,  pursuant   to  the  plea                                                             
agreement,  the state  recommended a  sentence within  a standard                                                               
range  of  49-53  months.   However,  after  hearing  the  wife's                                                               
description  of the  kidnapping, the  judge rejected  the state's                                                               
recommendation and  imposed an exceptional sentence  of 90 months                                                               
- 37  months beyond the  standard maximum  - and justified  it on                                                               
the grounds that the petitioner  acted with deliberate cruelty, a                                                               
statutorily enumerated ground for  departure in domestic violence                                                               
cases.   The  petitioner  appealed, arguing  that the  sentencing                                                               
procedure  deprived him  of his  federal constitutional  right to                                                               
have  a jury  determine,  beyond a  reasonable  doubt, all  facts                                                               
legally essential to  his sentence.  Washington's  State Court of                                                               
Appeals  "affirmed"  and  the  Washington  Supreme  Court  denied                                                               
discretionary  view,  and  so  the  U.S.  Supreme  Court  granted                                                               
MS. TONDINI relayed  that the U.S. Supreme  Court considered what                                                               
she termed the Sixth Amendment  implications of the case, looking                                                               
at whether  the judge's consideration  of the facts  showing that                                                               
the petitioner  acted with deliberative  cruelty for  the purpose                                                               
of  justifying  a   longer  sentence  was  a   violation  of  the                                                               
petitioner's Sixth Amendment right to a  trial by jury.  The U.S.                                                               
Supreme  Court,  in applying  Apprendi,  held  that there  was  a                                                             
violation because  the facts supporting the  exceptional sentence                                                               
were neither admitted  by the petitioner nor found by  a jury; in                                                               
other words, other than the fact  of a prior conviction, any fact                                                               
that  increases the  penalty for  a crime  beyond the  prescribed                                                               
statutory maximum must  be submitted to a jury  and proven beyond                                                               
a  reasonable  doubt, with  the  relevant  statutory maximum  for                                                               
Apprendi  purposes being  the  maximum that  a  judge may  impose                                                             
based  solely on  the  facts  reflected in  the  jury verdict  or                                                               
admitted by the defendant.                                                                                                      
MS. TONDINI noted that the U.S.  Supreme Court also said that the                                                               
Blakely case  is not about  the constitutionality  of determinate                                                             
sentencing, but  rather about  how such can  be implemented  in a                                                               
way  that  respects the  Sixth  Amendment.   She  explained  that                                                               
Alaska's  current  felony  sentencing statutes  use  the  phrase,                                                               
"presumptive  term"  to  establish  a  specific,  fixed  term  of                                                               
imprisonment  that  in  essence  acts as  both  the  minimum  and                                                               
maximum  sentence that  can  be imposed  unless  the court  finds                                                               
specific  statutory  mitigating  or  aggravating  factors;  thus,                                                               
current  law  attempts  to   specify  one  presumptively  "right"                                                               
sentence for all felony crimes within  each class of offense.  In                                                               
conclusion,   she  noted   that   the  Blakely   case  was   very                                                             
controversial  -  engendering  a  5:4  split  with  some  of  the                                                               
dissenting opinions  exceeding the  majority opinion in  length -                                                               
and has  left state courts  in a quandary  with regard to  how to                                                               
proceed with sentencing.                                                                                                        
1:25:35 PM                                                                                                                    
SARA  NIELSEN,  Staff  to Representative  Ralph  Samuels,  Alaska                                                               
State Legislature,  sponsor, relayed on behalf  of Representative                                                               
Samuels   that  HB   78  amends   Alaska's  current   presumptive                                                               
sentencing scheme  from a set term  to a range of  terms in order                                                               
to  comply with  Blakely; allows  a probation  officer to  impose                                                             
additional terms of release or  supervision without further court                                                               
proceeding; allows for an additional  aggravator when a defendant                                                               
has  five or  more class  A misdemeanor  convictions; limits  the                                                               
ability of  judges to order  what are called  periodic sentences,                                                               
in  which  the  offender  periodically  leaves  prison  and  then                                                               
returns; stipulates  the authority  of police officers  to detain                                                               
or  arrest  probationers  and  parolees   for  certain  types  of                                                               
violations  of conditions  imposed  by the  courts  or the  State                                                               
Board of Parole.                                                                                                                
MS.  NIELSEN relayed  that  the sponsor  feels  that the  changes                                                               
proposed by HB  78 will improve sentencing by  giving judges more                                                               
discretion,  will  simplify  sentencing,  will  remove  confusion                                                               
engendered by the Blakely decision,  will allow the Department of                                                             
Corrections  (DOC)  the  ability  to  better  manage  its  prison                                                               
population  by limiting  the abuse  of periodic  sentencing, will                                                               
improve  public safety  by clarifying  that police  officers have                                                               
the authority  to arrest  violators of  parole or  probation, and                                                               
will  improve   supervision  of  offenders  by   clarifying  that                                                               
probation  officers  have  the  authority  to  impose  additional                                                               
terms.   Referring  to Version  G,  the proposed  CS in  members'                                                               
packets,  she  indicated that  it  mirrors  changes made  in  the                                                               
Senate to the Senate version of the bill.                                                                                       
MS. NIELSEN  highlighted four changes  encompassed in  Version G.                                                               
Page 2, lines 6-7, now says  in part, "and the defendant receives                                                               
a  composite sentence  of not  more  than 2  years"; this  change                                                               
attempts to address the concern  that those who've been sentenced                                                               
for two  years or less  would still  be allowed to  have periodic                                                               
sentencing on  the basis  of financial hardships.   Page  3, line                                                               
14, now  says, "lower  than", rather  than "within";  this change                                                               
fixes a drafting error.  Page  4, line 6, now contains the words,                                                               
"orally and"; this  change attempts to ensure  that the defendant                                                               
understands  that additional  conditions of  probation are  being                                                               
imposed.  The final change, to  page 24, line 10, provides for an                                                               
immediate effective date.                                                                                                       
1:30:01 PM                                                                                                                    
TODD  SHARP,  Lieutenant,  Division  of  Alaska  State  Troopers,                                                               
Department of  Public Safety  (DPS), provided  comments regarding                                                               
Sections 26 and  30-31, which pertain to  detaining and arresting                                                               
parolees  and probationers.   He  relayed that  contrary to  what                                                               
many  believe, police  officers do  not now  have the  ability to                                                               
immediately arrest  parolees and  probationers whom  they witness                                                               
violating the  terms of  parole/probation, or  immediately revoke                                                               
parole/probation privileges.  Changes proposed  by the bill would                                                               
authorize such.   He went on  to detail the 2004  Alaska Court of                                                               
Appeals case, Reichel v. State -  which pertained to a person who                                                             
was detained and  later arrested after having been seen  in a bar                                                               
by  a  police officer  who  knew  the  person was  violating  his                                                               
conditions of parole by being in  a bar - and indicated that this                                                               
case illustrates  why police, when witnessing  a person violating                                                               
the conditions  of his/her parole/probation,  need to be  able to                                                               
take action without going through extra procedures.                                                                             
REPRESENTATIVE   GRUENBERG  asked   whether  the   term,  "police                                                               
officer" is defined.                                                                                                            
LIEUTENANT SHARP said he believes it  is, and noted that the bill                                                               
also uses the  phrase, "a police officer certified  by the Alaska                                                               
Police Standards  Council", and thus  he believes that  all types                                                               
of law enforcement officers would be covered under the bill.                                                                    
1:37:39 PM                                                                                                                    
SUSAN PARKES, Deputy Attorney  General, Criminal Division, Office                                                               
of the Attorney General, Department  of Law (DOL), noted that [HB                                                               
78] represents  a critical  issue for the  Department of  Law and                                                               
has  been in  the making  since  the Blakely  decision came  out.                                                             
Since  that time,  Alaska's  felony sentencing  law  has been  in                                                               
chaos,  she remarked,  adding that  there  have been  conflicting                                                               
rulings from superior  court judges across the  state, that there                                                               
have been multiple  appeals, and that defendants  and victims are                                                               
not experiencing certainty or finality  with regard to sentences.                                                               
She characterized  HB 78 as  well thought  out and as  offering a                                                               
balanced  approach to  Blakely that  will bring  Alaska's current                                                             
sentencing structure into compliance  with that decision.  Noting                                                               
that  under   Blakely,  once  a  presumptive   sentence  is  set,                                                             
aggravating  factors  must go  before  a  jury, she  opined  that                                                               
maintaining  non-disparity with  regard to  sentencing is  a good                                                               
thing  and that  the  bill accomplishes  that  while giving  some                                                               
discretion to judges.                                                                                                           
REPRESENTATIVE GARA  asked for clarification with  regard to when                                                               
a longer sentence  may be imposed in cases  where aggravators are                                                               
MS.  PARKES  offered  her   understanding  that  the  defendant's                                                               
expectations  play  a role  in  when  a  longer sentence  can  be                                                               
imposed without further review by a jury.  She elaborated:                                                                      
     Once  the  legislature  sets sentences  that  [give]  a                                                                    
     defendant  an expectation  that  this  sentence is  the                                                                    
     sentence he  or she will get  absent additional factual                                                                    
     findings, then  you run into  a "Blakely"  problem. ...                                                                  
     In  Washington,  ...  there   was  a  range  that  this                                                                    
     defendant had  an expectation [of,  that] this  was the                                                                    
     maximum sentence that  he could get, based  on the plea                                                                    
     he entered.   And if  [there are] facts that  allow you                                                                    
     to go beyond that expected  range - or set sentence, in                                                                    
     our case -  then it has to  be a jury finding.   If the                                                                    
     expectation  of  the  defendant   is,  it's  wide  open                                                                    
     sentencing  - zero  to twenty  [years],  the judge  can                                                                    
     give  you anything  - then  that's the  expectation and                                                                    
     you don't have a Blakely problem.                                                                                        
MS. PARKES,  in response to a  further question, said that  HB 78                                                               
proposes  to give  judges a  range of  sentences much  like other                                                               
states have,  adding her belief  that when setting  any sentence,                                                               
judges should look for guidance in  Title 12, which lays out what                                                               
she called the "Chaney criteria"  - statutory guidelines based on                                                             
the  1970  Alaska Supreme  Court  case,  Chaney  v. State.    For                                                             
example,  currently for  misdemeanors  there  are no  presumptive                                                               
sentences, nor are  there presumptive sentences for  the crime of                                                               
murder  in the  first degree.   Instead,  judges are  supposed to                                                               
look at  the declaration  of purpose  - found  in AS  12.55.005 -                                                               
regarding a particular  sentence, and then set  a sentence within                                                               
the range available  that meets the purpose.   To illustrate, she                                                               
paraphrased AS 12.55.005(1)-(7):                                                                                                
          (1) the seriousness of the defendant's present                                                                        
     offense in relation to other offenses;                                                                                     
          (2) the prior criminal history of the defendant                                                                       
     and the likelihood of rehabilitation;                                                                                      
          (3) the need to confine the defendant to prevent                                                                      
     further harm to the public;                                                                                                
          (4) the circumstances of the offense and the                                                                          
     extent  to  which  the offense  harmed  the  victim  or                                                                    
     endangered the public safety or order;                                                                                     
          (5) the effect of the sentence to be imposed in                                                                       
     deterring  the defendant  or other  members of  society                                                                    
     from future criminal conduct;                                                                                              
       (6) the effect of the sentence to be imposed as a                                                                        
      community condemnation of the criminal act and as a                                                                       
     reaffirmation of societal norms; and                                                                                       
           (7) the restoration of the victim and the                                                                            
MS. PARKES remarked that under HB  78, rather than having to make                                                               
factual  findings regarding  aggravators  and mitigators,  judges                                                               
are  given  a range  and  can  then  look to  the  aforementioned                                                               
guidelines when deciding an appropriate sentence.                                                                               
1:46:48 PM                                                                                                                    
REPRESENTATIVE GRUENBERG, referring to Section  26, on page 19 of                                                               
Version G,  asked why can't  police, under current law,  arrest a                                                               
person  for  violating  his/her conditions  of  parole/probation.                                                               
Referring to  paragraph (6)  of Section 26  - which  says, "other                                                               
conduct  that  creates an  imminent  public  danger or  threatens                                                               
serious harm to  persons or property" - he  asked whether there's                                                               
a reason "for going beyond  conduct that would necessarily create                                                               
a public danger."                                                                                                               
MS.  PARKES,  regarding  the first  question,  surmised  that  it                                                               
probably wasn't a public policy  decision to preclude police from                                                               
making   arrests  pertaining   to  parole/probation   violations;                                                               
rather,  the   authority  to  make   such  arrests   just  wasn't                                                               
specifically set out in statute;  Version G specifically sets out                                                               
that authority.   Currently, she relayed, an officer  can make an                                                               
arrest  after  obtaining  permission/authority  from  a  person's                                                               
parole/probation  officer, and  offered  her belief  that in  the                                                               
Reichel  case, the  problem  was that  the  officer detained  the                                                             
defendant  just for  being in  the bar,  without there  being any                                                               
evidence that such behavior in  and of itself created an imminent                                                               
public danger.   The  goal of  HB 78 regarding  this issue  is to                                                               
allow initial  contact if  there is a  reasonable suspicion  of a                                                               
violation;  then, if  there  is probable  cause  to believe  that                                                               
there has been  a violation of an item listed  in Section 26, the                                                               
officer can arrest the person.                                                                                                  
MS.  PARKES,  in  response to  questions,  relayed  that  "police                                                               
officer" is  defined in Title  18; that this  definition includes                                                               
airport police and  state and municipal police;  and that Village                                                               
Public Safety  Officers (VPSOs) have  already been  given similar                                                               
authority through other statutory language.                                                                                     
REPRESENTATIVE ANDERSON noted that  last year, legislation of his                                                               
proposed  adding  another  definition   of  "peace  officers"  to                                                               
CHAIR  McGUIRE  mentioned that  the  committee  could narrow  the                                                               
definition in the bill if necessary.                                                                                            
REPRESENTATIVE GARA  surmised that the main  goal of HB 78  is to                                                               
change Alaska's  current statutory  sentencing scheme,  which has                                                               
been declared unconstitutional under  Blakely, so that Alaska can                                                             
have essentially the same sentences it has now.                                                                                 
MS. PARKES concurred with that summation.                                                                                       
REPRESENTATIVE  GARA shared  his fear  that the  changes proposed                                                               
via  HB 78  will increase  basic sentences  beyond what  they are                                                               
MS.  PARKES   mentioned  that   the  Senate   Judiciary  Standing                                                               
Committee shared that  concern and so drafted a  letter of intent                                                               
stating that such  was not the legislature's  goal, and suggested                                                               
that the House  Judiciary Standing Committee may want  to draft a                                                               
similar  letter of  intent.   She  said that  under Blakely,  the                                                             
balance of power  is being changed; judges used to  have a lot of                                                               
power and  this bill  seeks to  give some of  that power  back to                                                               
judges  by providing  ranges  of sentences.    Under the  current                                                               
scheme -  which has  been found to  be unconstitutional  - judges                                                               
not only made the findings  of fact themselves about aggravators,                                                               
they made  them only by  clear and convincing evidence,  and then                                                               
they decided whether  it justified increasing a  sentence or not.                                                               
Under Blakely, juries  will have to make the finding  and must do                                                             
so beyond a  reasonable doubt, though just  because an aggravator                                                               
or mitigator  is found by  the jury, a  judge is not  required to                                                               
increase or  decrease a  sentence.   She relayed  her expectation                                                               
that there will be fewer  aggravators proposed because a range of                                                               
appropriate sentences will be available.                                                                                        
1:57:49 PM                                                                                                                    
REPRESENTATIVE  GARA suggested  that another  way to  comply with                                                               
Blakely would be  to keep the current sentencing  scheme and just                                                             
go  to a  jury  and let  them decide  issues  of aggravators  and                                                               
mitigators whenever  there is  a desire  to decrease  or increase                                                               
the sentence.  He noted that Kansas has such a system.                                                                          
MS.  PARKES  clarified that  although  Kansas  does have  such  a                                                               
system, it also has a system  of presumptive ranges.  She relayed                                                               
that at  the Vera Institute  of Justice conference  she attended,                                                               
there  was a  presentation by  a representative  from Kansas  who                                                               
said that  100 out  of 105  prosecutors in  Kansas are  not using                                                               
aggravators anyway.                                                                                                             
REPRESENTATIVE  GARA suggested  instead, then,  that perhaps  the                                                               
discretion regarding  mitigators and aggravators should  be given                                                               
to  judges  but  then  also  require  them  to  issue  a  finding                                                               
justifying increases  or decreases  in the  presumptive sentence.                                                               
He proffered that  such a system will  provide accountability and                                                               
transparency and prevent disparity in sentencing.                                                                               
MS. PARKES  asked that if such  a system were put  in place, that                                                               
only an oral finding  be required so as not to  place a burden on                                                               
judges.   Turning to Section  7 of bill,  she said that  it deals                                                               
with  appellate  rights  and  says  that if  a  judge  imposes  a                                                               
sentence within a range established  by the legislature, it can't                                                               
be reversed on the grounds of being excessive.                                                                                  
2:03:49 PM                                                                                                                    
REPRESENTATIVE  GRUENBERG said  he  is concerned  that Section  7                                                               
violates the separation of powers doctrine.                                                                                     
MS.  PARKES said  she does  not share  that concern,  and relayed                                                               
that the DOL researched that  issue because of concerns raised in                                                               
the Senate Judiciary Standing Committee.   Although judges impose                                                               
sentences, it  is the legislature  that has the authority  to set                                                               
sentences for  crimes; she noted  that the Alaska  Supreme Court,                                                               
in Bear v. State, held that  even it didn't have the authority to                                                             
review  sentences  on the  grounds  of  excessiveness unless  the                                                               
punishment would  qualify as cruel and  unusual.  As a  result of                                                               
that ruling,  the legislature gave  the Alaska Supreme  Court the                                                               
authority  to  review cases,  and  created  the Alaska  Court  of                                                               
Appeals and gave it the  statutory authority to review sentences.                                                               
The legislature also passed a  statute limiting felony sentencing                                                               
appeals to only those involving  felony sentences of two years or                                                               
more; that  statute was challenged  and upheld -  the legislature                                                               
can determine appropriate sentences  and can limit what sentences                                                               
can be appealed.                                                                                                                
REPRESENTATIVE  GRUENBERG asked  why, from  a policy  standpoint,                                                               
the  legislature  would  want  to  limit  the  appellate  court's                                                               
discretion to  determine whether  a sentence  is excessive.   Are                                                               
judges abusing that discretion now?                                                                                             
MS. PARKES  surmised that the  change proposing such a  limit was                                                               
included  because of  a  concern that  there might  be  a lot  of                                                               
frivolous appeals after  the creation of presumptive  ranges.  So                                                               
the question  was one of, should  the courts deal with  all those                                                               
potential  appeals  just  because   the  legislature  decided  to                                                               
establish  ranges of  sentences for  particular crimes?   It's  a                                                               
policy call;  the legislature  has the authority  to say  what it                                                               
considers to be a frivolous appeal.                                                                                             
2:10:20 PM                                                                                                                    
REPRESENTATIVE  GARA referred  to a  proposed amendment,  labeled                                                               
24-LS0391\A.1, Luckhaupt, 1/24/05, which read:                                                                                  
     Page 4, line 14:                                                                                                           
          Delete "within an"                                                                                                    
          Insert "the minimum in the"                                                                                           
     Page 4, line 17, following "AS 12.55.127.":                                                                                
          Insert "If the court imposes a sentence above the                                                                     
     minimum sentence in the applicable presumptive range,                                                                      
         the court shall make findings that justify the                                                                         
     decision under AS 12.55.005."                                                                                              
REPRESENTATIVE  GARA  -  after   relaying  his  understanding  of                                                               
current  law and  that the  factors listed  in AS  12.55.005 have                                                               
always been appealable - said he  would like to see the state get                                                               
the benefit  of being  able to impose  a longer  sentence without                                                               
having  to go  through an  extra jury  trial, but  such sentences                                                               
should be  appealable.  He asked  what would be the  objection to                                                               
letting judges,  if such  a system were  in place,  review longer                                                               
sentences on appeal.                                                                                                            
MS. PARKES  clarified that  the bill doesn't  say a  person can't                                                               
appeal a  longer sentence; it just  says that if the  sentence is                                                               
within the  range established  by the  legislature, it  cannot be                                                               
reversed on the  grounds that it's excessive.   She acknowledged,                                                               
however,  that  altering that  provision  in  the future  may  be                                                               
necessary  if it  doesn't prove  satisfactory.   She offered  her                                                               
belief that establishing sentencing  ranges isn't for the benefit                                                               
of prosecutors;  rather, it's for  the benefit of the  public and                                                               
is intended to bring back  balance to the criminal justice system                                                               
without imposing a burden on that system.                                                                                       
CHAIR  McGUIRE  remarked  that  if  imposing  a  longer  sentence                                                               
requires  a finding,  it could  engender questions  regarding the                                                               
appropriateness of  the finding  as well as  possible litigation.                                                               
She  noted that  at the  bill's next  hearing, the  committee can                                                               
decide  the issue  of whether  to  adopt a  CS and  focus on  any                                                               
proposed  amendments,  and  mentioned a  preference  for  written                                                               
MS. PARKES, referring  to Section 21, which starts on  page 17 of                                                               
Version G,  noted that it does  not require aggravators to  go to                                                               
the grand jury,  though it does require the state  to give notice                                                               
10 days  prior to trial  or at another time  set by the  court if                                                               
new  information comes  forth.   Section 21  sets out  both which                                                               
aggravating factors don't  have to go before a jury  and what the                                                               
timelines for giving notice are.                                                                                                
2:18:28 PM                                                                                                                    
REPRESENTATIVE  GRUENBERG asked  Ms. Parkes  to research  whether                                                               
Section  21  proposes  a  change to  court  procedure  and  would                                                               
thereby require  a two-thirds vote and  notice in the title.   He                                                               
suggested that researching  this issue as soon  as possible could                                                               
prevent running afoul of the aforementioned requirements later.                                                                 
MS. PARKES  referred to Section  19, which  starts on page  15 of                                                               
Version  G,  and  relayed that  currently,  Alaska's  presumptive                                                               
sentences are  based on  prior felony  convictions, and  so there                                                               
isn't  an  aggravator  for someone  with  a  lengthy  misdemeanor                                                               
criminal history.   Section 21  allows an aggravator to  be found                                                               
if a  person has  five or more  class A  misdemeanor convictions.                                                               
Another change  that the bill  proposes pertains to  limiting the                                                               
kinds  of  sentences  and circumstances  that  are  eligible  for                                                               
periodic  sentencing; she  suggested  that the  DOC could  better                                                               
address this  proposed change.   Mentioning general  condition of                                                               
probation no. 12 from the Huskey  v. State case, and referring to                                                             
Section 6, page 4, she  explained that it merely codifies current                                                               
practice  with regard  to judges  giving  probation officers  the                                                               
authority,  during  the  course  of probation,  to  give  special                                                               
instructions  or  rules  to  probationers  as  new  circumstances                                                               
arise.     She  mentioned  that  Lieutenant   Sharp  has  already                                                               
addressed  the   proposed  change  giving  police   officers  the                                                               
authority  to  detain  probationers   and  parolees  based  on  a                                                               
reasonable suspicion of probation/parole violation.                                                                             
REPRESENTATIVE GRUENBERG asked whether  any other sections of the                                                               
bill are in response to particular cases.                                                                                       
MS. PARKES mentioned  that the Huskey case,  an "MOJ" (Memorandum                                                             
Opinion and Judgment) from the  Alaska Court of Appeals, prompted                                                               
Section 6.                                                                                                                      
2:23:55 PM                                                                                                                    
LINDA WILSON,  Deputy Director,  Central Office,  Public Defender                                                               
Agency  (PDA), Department  of Administration  (DOA), thanked  the                                                               
DOL for keeping the PDA abreast  of DOL efforts after the Blakely                                                             
decision.   She commented that  although the director of  the PDA                                                               
also  participated  in  the   aforementioned  Vera  Institute  of                                                               
Justice conference in Denver, none  of the PDA's suggestions with                                                               
regard to the bill were incorporated into it.                                                                                   
MS.  WILSON  acknowledged that  Ms.  Tondini  had gone  over  the                                                               
history  of the  Apprendi and  Blakely  cases.   She offered  her                                                           
belief that Blakely  clarified that a maximum  sentence should be                                                             
based upon  what the jury found  or what a defendant  admitted in                                                               
his/her plea.   She declared,  "This is about honoring  our Sixth                                                               
Amendment right  to a [jury]  trial; ...  the jury should  be ...                                                               
making those types of [findings]."   She quoted from U.S. Supreme                                                               
Court  Justice Anthony  Scalia's written  opinion in  the Blakely                                                             
     The  Framers would  not  have thought  it  too much  to                                                                    
     demand  that,  before depriving  a  man  of three  more                                                                    
     years  of  his liberty,  the  State  should suffer  the                                                                    
     modest  inconvenience of  submitting its  accusation to                                                                    
     "the  unanimous suffrage  of twelve  of his  equals and                                                                    
     neighbors" rather than a lone employee of the State.                                                                       
MS. WILSON  clarified that the man  who had been sentenced  to an                                                               
additional  three  years  was  Mr. Blakely,  and  that  the  lone                                                               
employee  of  the  State  in  this  case  was  the  judge.    She                                                               
reiterated  that the  case was  about respecting  the right  to a                                                               
jury.  She  stated that, a 2005 U.S. Supreme  Court case, [United                                                             
States  v.  Booker], made  it  clear  that the  Blakely  decision                                                           
applied to  federal sentencing guidelines.   In the  defense that                                                               
came  from Blakely,  U.S. Supreme  Court Justice  Sandra O'Conner                                                             
specifically  mentioned  Alaska's presumptive  sentencing  scheme                                                               
and nine  other states that  became vulnerable after  the Blakely                                                             
decision.   She  remarked that  dissenting members  of the  court                                                               
were concerned that  this decision would create  chaos, cost more                                                               
money, and  cause inefficiencies.   She then quoted  U.S. Supreme                                                               
Court  Justice John  Paul Stevens  comments  in Booker  [original                                                             
punctuation provided]:                                                                                                          
     We  recognize,  as  we  did  in  Jones,  Apprendi,  and                                                                    
     Blakely, that in some cases jury factfinding may impair                                                                    
     the   most  expedient   and  efficient   sentencing  of                                                                    
     defendants.     But  the   interest  in   fairness  and                                                                    
     reliability protected  by the  right to a  jury trial-a                                                                    
     common-law right that  defendants enjoyed for centuries                                                                    
     and that  is now  enshrined in the  Sixth Amendment-has                                                                    
     always  outweighed the  interest  in concluding  trials                                                                    
MS. WILSON  again reiterated that  Blakely is about  honoring and                                                             
respecting the  Sixth Amendment right  to have a jury  decide the                                                               
facts which could potentially expose one to a higher sentence.                                                                  
MS.  WILSON   turned  the   committee's  attention   to  Alaska's                                                               
sentencing  history.   Prior  to  1978,  there was  indeterminate                                                               
sentencing in Alaska, resulting in  disparity.  In 1978 the state                                                               
instituted a  presumptive sentencing  scheme to  eliminate unjust                                                               
disparity and make  sentences reasonably uniform.   She said that                                                               
in 1997, the Alaska Supreme  Court Advisory Committee on Fairness                                                               
and  Access recommended  that the  state assess  the relationship                                                               
between  defendants'  ethnicities  and  their  treatment  in  the                                                               
criminal  justice system  to determine  if  there is  uniformity,                                                               
proportionality,  certainty, and  fairness in  the sentences  for                                                               
all  defendants.   The  Alaska  Judicial  Council (AJC)  examined                                                               
felony cases from 1999 and produced  a report which came out last                                                               
year;  the AJC  found no  systemic ethnic  discrimination in  the                                                               
imposition  of  sentencing   and  not  a  lot   of  disparity  in                                                               
presumptive sentencing  that would be associated  with ethnicity,                                                               
gender, type of attorney, and  location.  She concluded that [the                                                               
state]  was  doing   a  good  job  of   providing  uniformity  in                                                               
presumptive sentencing.                                                                                                         
MS. WILSON,  referring to handouts  in members'  packets, pointed                                                               
out that  presumptive sentencing in  Alaska has a  certain degree                                                               
of uniformity  because the sentence  is a specific  number: four,                                                               
five, eight years, et cetera.   Therefore there is no opportunity                                                               
for  disparity  for  the  55  percent  of  defendants  that  face                                                               
presumptive sentencing.   Of the sentences that  the AJC studied,                                                               
there were some  that were aggravated; this  bill addresses those                                                               
types  of cases.    The  Blakely decision  requires  that a  jury                                                             
decide the aggravating  fact that takes [the  sentence] above the                                                               
presumptive sentence.                                                                                                           
MS. WILSON  remarked that the  state's proposal is  "one solution                                                               
to  Blakely", and  that  another possible  solution  would be  to                                                             
return to  indeterminate sentencing,  though such would  have its                                                               
own problems.   She  mentioned a  third possible  solution: leave                                                               
the presumptive sentencing the way it  is, but provide for a jury                                                               
trial for  aggravators that require  a factual finding  not based                                                               
on a  prior conviction.   She stated that  there's disinclination                                                               
towards this option because of  the cost and lack of flexibility.                                                               
She  noted  that flexibility  gives  the  judge more  discretion,                                                               
adding: "and  that's the worrisome  part of this proposed  bill -                                                               
... it's  too broad  - ...  because now,  what was  a presumptive                                                               
five,  now  is   between  five  and  eight,  [and]   what  was  a                                                               
presumptive four is now a range of four to seven."                                                                              
MS. WILSON commented that these  ranges could be made narrower to                                                               
allow for  disparity.  She said  that Alaska is already  "a state                                                               
that  overincarcerates  in  comparison  to other  states."    She                                                               
predicted  that sentences  will  increase if  the  range is  left                                                               
broad,  even  with intent  language  that  states that  sentences                                                               
should not  increase.  She voiced  concern that Section 7  of the                                                               
bill takes  away the right to  appeal, since, if the  court can't                                                               
reverse the sentence  on the grounds that it  was excessive, then                                                               
there  is no  reason to  appeal;  it virtually  takes away  one's                                                               
right  to appeal  because there's  no remedy  available and  thus                                                               
makes the appeal fairly meaningless.                                                                                            
MS. WILSON  posited that HB  78 is too  broad, and if  the bill's                                                               
goal  is to  keep the  uniform  sentencing scheme  intact and  to                                                               
eliminate  unjust disparity,  "it does  too much  because there's                                                               
now an opportunity to have  greater disparity within that range."                                                               
She opined  that the bill  tends to circumvent Blakely  and works                                                             
around honoring the Sixth Amendment  right, and expressed concern                                                               
that sentences  in general will tend  to go up because  the judge                                                               
would have a range of sentences to choose from.                                                                                 
MS.   WILSON   referred   to  Representative   Gara's   [proposed                                                               
amendment], which would allow the  defendant to appeal a sentence                                                               
beyond  the  low end  of  the  range  as  excessive so  that  the                                                               
sentences  don't  increase  overall.   She  voiced  concern  that                                                               
Section 7  allows for  no review of  sentences; two  people could                                                               
receive different  sentences for  similar crimes but  there would                                                               
be no review and no accountability.   She said that it's good for                                                               
judges to be  able to compare sentences.  She  also mentioned the                                                               
importance  of  using  the  Chaney criteria  as  codified  in  AS                                                             
2:37:02 PM                                                                                                                    
MS.  WILSON called  the committee's  attention to  a part  of the                                                               
bill  that she  found problematic.   She  referred to  page 4  of                                                               
Version G, lines 4-10, which read:                                                                                              
     (7) if  ordered by  the court,  to abide  by additional                                                                    
     conditions  of  probation  imposed by  the  defendant's                                                                    
     probation officer;  an additional condition  imposed by                                                                    
     the probation  officer must be  provided in  writing to                                                                    
     the  defendant;  the  additional condition  is  binding                                                                    
     upon  delivery  until  modified   by  the  court;  this                                                                    
     paragraph   does   not   require  written   notice   of                                                                    
     conditions  relating to  the  day-to-day management  of                                                                    
     probationers,  in which  probation officers  direct the                                                                    
     activities  of   probationers  to   implement  existing                                                                    
     court-imposed conditions.                                                                                                  
MS. WILSON focused  on the language that would  allow a probation                                                               
officer to  add additional conditions  without having to  go back                                                               
to  court.   She  relayed  that Lee  Jones,  an  attorney in  the                                                               
Anchorage PDA  office and  a former  probation officer,  told her                                                               
that when a probation officer changes  or adds a condition to the                                                               
terms of  probation, many times  the defendant doesn't  know that                                                               
he/she has  the ability to  challenge that  additional condition.                                                               
Ms.  Wilson noted  that the  Senate Judiciary  Standing Committee                                                               
has amended  the Senate's  version of  the bill  to say  that the                                                               
defendant must be  notified orally as well as  in writing, adding                                                               
that  she prefers  that both  methods be  used.   She recommended                                                               
that a  similar provision be added  to HB 78 so  that a probation                                                               
officer  is  required  to  inform the  defendant  orally  and  in                                                               
writing of  an additional condition  and to advise  the defendant                                                               
that he/she  can request  judicial review.   She noted  that this                                                               
would give the defendant the  opportunity to bring the issue back                                                               
into  court and  let it  decide  if the  additional condition  is                                                               
reasonable,  though in  the  meantime  that additional  condition                                                               
would be binding.                                                                                                               
MS.  WILSON  returned  attention  to  Section  7,  the  provision                                                               
limiting  the right  to  appeal  a sentence  as  excessive.   She                                                               
suggested   that  if   the  committee   chose   not  to   [adopt]                                                               
Representative   Gara's   proposed   amendment   [text   provided                                                               
previously],  then perhaps  the committee  would consider  making                                                               
the  ranges smaller  to  lessen disparity.    She reiterated  her                                                               
preference  for  Representative  Gara's  suggestion  to  allow  a                                                               
review  by a  court of  appeals, because  under the  current bill                                                               
judges  could impose  sentences  at  the high  end  of the  range                                                               
without any review.  She voiced  her concern that people of color                                                               
would  receive sentences  at  the  high end  of  the range  while                                                               
wealthy people  who have private council  would receive sentences                                                               
at the low end of the range.                                                                                                    
MS.  WILSON referred  back  to  the Huskey  case,  in which,  she                                                             
opined, the state conceded that it  needed to get rid of what was                                                               
being called in that case  general condition of probation no. 12.                                                               
She commented that  it was interesting that in  Huskey, the state                                                             
conceded that it  was perhaps an unfair  delegation of authority,                                                               
but yet  now [the  state] wants similar  language to  be included                                                               
[in statute].                                                                                                                   
2:42:23 PM                                                                                                                    
REPRESENTATIVE  GARA asked  for clarification  regarding [Section                                                               
6]:   "Are we  letting probation  officers impose  new conditions                                                               
until a  court says  that wasn't  proper, or  are we  waiting for                                                               
there  to  be  some  court order  justifying  the  new  probation                                                               
condition before it gets imposed?"                                                                                              
MS.  WILSON  surmised that  it's  a  little  bit  of both.    She                                                               
explained that the aforementioned  general condition of probation                                                               
no.  12 was  a probationary  order in  which the  judge delegated                                                               
authority  to the  probation officer.   She  indicated that  that                                                               
particular general condition of probation  no. 12 read, "Abide by                                                               
any special  instructions given by the  court or any of  the duly                                                               
authorized   officers,  including   probation  officers   of  the                                                               
Department of Corrections", and  suggested that the term "special                                                               
instructions"   had   been   interpreted  to   mean   "additional                                                               
conditions."  She  pointed out that currently,  the defendant can                                                               
always  go back  to the  judge and  try to  modify or  change the                                                               
conditions  of probation  and its  term length,  and reemphasized                                                               
the importance of  notifying the defendant of  any new conditions                                                               
and of his/her right to request review of the conditions.                                                                       
REPRESENTATIVE GARA  asked Ms.  Wilson if she  wants the  bill to                                                               
say  that if  [additional  conditions are  added], the  defendant                                                               
should  be told  that  he/she has  a right  to  seek council  and                                                               
MS. WILSON replied affirmatively.                                                                                               
REPRESENTATIVE  GARA   pointed  out   that  at   sentencing,  the                                                               
defendant  is  told that  the  probation  officer might  add  new                                                               
conditions.    He  asked  whether the  attorney  also  tells  the                                                               
defendant at the time of sentencing  that he/she has the right to                                                               
appeal any  new conditions, and whether  there is a need  to tell                                                               
the defendant that again.                                                                                                       
MS. WILSON  replied that  if conditions are  added a  while after                                                               
sentencing, the  defendant often  no longer realizes  that he/she                                                               
has the  ability to  go back  into court and  have it  review the                                                               
additional conditions.   She remarked  that [an amendment  to the                                                               
bill such as she suggested  earlier] would allow the defendant to                                                               
be informed  [that] the  probation officer  is able  to implement                                                               
some special  instruction that must  be followed until  such time                                                               
as the defendant can get the court to review that instruction.                                                                  
2:47:25 PM                                                                                                                    
REPRESENTATIVE GRUENBERG,  referring to  page [2] of  the handout                                                               
pertaining  to  the Huskey  decision,  he  pointed out  that  its                                                             
general condition  of probation no. 12  is set out in  footnote 6                                                               
(FN 6), and that its special  condition of probation no. 7 is set                                                               
out in FN  4.  He then  turned to page [3] of  that document, and                                                               
pointed out that the text accompanying FN 15 states:                                                                            
     Our  supreme   court  has  recognized   that  probation                                                                    
     officers have common law  authority, and decisions from                                                                    
     other jurisdictions recognize  that a probation officer                                                                    
     has  inherent discretion  as long  as  the exercise  of                                                                    
     that  discretion   does  not  impinge  on   a  judicial                                                                    
     responsibility--that is,  as long as the  court has not                                                                    
     improperly  delegated its  authority  to the  probation                                                                    
REPRESENTATIVE GRUENBERG  said he  interpreted this text  to have                                                               
constitutional  underpinnings:   If a  judge imposes  a sentence,                                                               
only  that  judge  can  exercise  his/her  authority  and  cannot                                                               
delegate it entirely  away.  He voiced concern  that the language                                                               
on page  4, lines 3-5  - which read in  part, "if ordered  by the                                                               
court to abide  by additional conditions of  probation imposed by                                                               
the defendant's  probation officer" -  does not in and  of itself                                                               
"contain any  such limitation."  He  asked Ms. Wilson if  she was                                                               
concerned  that  that   [language]  could  be  unconstitutionally                                                               
MS. WILSON replied  that this does give [her] concern.   She said                                                               
that  a probation  officer cannot  set restitution,  which is  an                                                               
example of a  responsibility that the court would not  be able to                                                               
delegate  to  the  officer.    The  probation  officer  would  be                                                               
impinging  on  the judge's  responsibility  in  the case  if  the                                                               
officer were  allowed to decide the  amount of a fine  or type of                                                               
restitution.    She  acknowledged  that  there  are  risks  [with                                                               
adopting   the  aforementioned   language],   and  asserted   the                                                               
importance  of giving  the defendant  notice that  he/she can  go                                                               
back to court [for review] of the conditions.                                                                                   
2:50:47 PM                                                                                                                    
MS. WILSON,  referring to Section  21, specifically  the language                                                               
on page  17, lines  12-13, pointed out  that that  language lists                                                               
the eight aggravators that the  state would not require be proven                                                               
by a  jury beyond a  reasonable doubt; rather,  those aggravators                                                               
would only  need to be  proven by clear and  convincing evidence.                                                               
She predicted that there would be  a lot of dispute about whether                                                               
all of these  particular aggravating factors are  really based on                                                               
a  prior  conviction, as  required  by  Apprendi.   Referring  to                                                             
[Section 18], she  noted that subsection (c)(7),  located on page                                                               
12,  read, "(7)  a  prior felony  conviction  considered for  the                                                               
purpose of  invoking a presumptive  range under this  chapter was                                                               
of a  more serious  class of offense  than the  present offense".                                                               
She offered her  belief that this requires an  extra finding that                                                               
the prior offense was more  serious than the present offense, and                                                               
suggested that  that factual finding  may come under  the Blakely                                                             
purview  and thus  would need  to  be found  by a  jury beyond  a                                                               
reasonable doubt.                                                                                                               
MS.  WILSON, referring  to page  12, then  read [paragraph]  (8),                                                               
which  is  part  of  current   statute  and  states:    "(8)  the                                                               
defendant's  prior criminal  history  includes conduct  involving                                                               
aggravated or  repeated instances  of assaultive behavior".   She                                                               
offered her  belief that this  is not an aggravator  solely based                                                               
on a  prior conviction; it  requires extra factual  findings that                                                               
there was aggravated conduct, repeat conduct.                                                                                   
MS. WILSON,  still referring  to page  12, then  read [paragraph]                                                               
(12), which  is also part of  current statute and states:   "(12)                                                               
the defendant was on release  under AS 12.30.020 or 12.30.040 for                                                               
another felony charge  or conviction or for  a misdemeanor charge                                                               
or  conviction  having assault  as  a  necessary element".    She                                                               
offered her  belief that under  this provision, there  would need                                                               
to be  extra factual findings  that the defendant was  on release                                                               
from a  prior conviction.   She summarized that  although several                                                               
of  the aggravating  factors  probably are  based  just on  prior                                                               
convictions, several  of them require  the finding  of additional                                                               
facts,  including those  described in  paragraphs (20)  and (21).                                                               
She  said that  she does  not  think that  this [provision]  will                                                               
comply with Blakely.                                                                                                          
REPRESENTATIVE GRUENBERG  noted that under  [proposed subsection]                                                               
(c)(7), located in  Section 18, the determination  of whether the                                                               
past conviction was  of a more serious class of  offense than the                                                               
present  offense seems  to be  a question  of law  rather than  a                                                               
question of fact.                                                                                                               
MS.  WILSON  responded  that that  summation  is  debatable,  but                                                               
agreed that it could also be  a question of fact; for example, if                                                               
the prior  conviction was in  a different state there  would need                                                               
to be a determination as to  how that conviction would compare to                                                               
Alaska's law.                                                                                                                   
2:54:57 PM                                                                                                                    
MS. WILSON, referring to Section  1, predicted that there will be                                                               
challenges to this bill pertaining to  the loss of the right to a                                                               
grand jury  regarding the aggravators.   She also  voiced concern                                                               
about  the  disparity  in the  [sentencing]  ranges;  such  could                                                               
possibly  result in  higher sentences,  in more  people being  on                                                               
probation, and  in more violations  of probation.   She predicted                                                               
that with this  proposed range, it would be very  unlikely that a                                                               
jury would decide an aggravating  factor.  She suggested that the                                                               
bill does not follow the true  intent of Blakely; rather, it does                                                             
more than it needs to and  circumvents the right to a jury trial.                                                               
However,  she  remarked,  she  does  think  it's  good  that  the                                                               
legislature   sets   a   "fixative"  and   makes   it   effective                                                               
CHAIR  McGUIRE  stated that  the  committee  has  a copy  of  the                                                               
amendments that the  OPA has offered, and will hear  from the OPA                                                               
at the bill's next hearing.                                                                                                     
[HB 78 was held over.]                                                                                                          

Document Name Date/Time Subjects