Legislature(2005 - 2006)CAPITOL 120

01/31/2005 01:00 PM JUDICIARY


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01:11:05 PM Start
01:12:00 PM SB56
03:07:06 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ SB 56 CRIMINAL LAW/PROCEDURE/SENTENCING TELECONFERENCED
Heard & Held
Bills Previously Heard/Scheduled
SB 56 - CRIMINAL LAW/PROCEDURE/SENTENCING                                                                                     
                                                                                                                                
[Contains reference to HB 78, companion bill to SB 56.]                                                                         
                                                                                                                                
1:12:00 PM                                                                                                                    
                                                                                                                                
CHAIR McGUIRE announced that the  only order of business would be                                                               
CS FOR SENATE BILL NO. 56(JUD),  "An Act relating to criminal law                                                               
and procedure, criminal sentences,  and probation and parole; and                                                               
providing for an effective date."                                                                                               
                                                                                                                                
CHAIR McGUIRE noted  that SB 56 would become the  vehicle in lieu                                                               
of the  companion bill, HB  78, which had  been heard at  a prior                                                               
House Judiciary Standing Committee meeting.                                                                                     
                                                                                                                                
1:13:15 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  ANDERSON  moved  to  adopt CSSB  56(JUD)  as  the                                                               
working document.   There  being no  objection, CSSB  56(JUD) was                                                               
before the committee.                                                                                                           
                                                                                                                                
1:13:56 PM                                                                                                                    
                                                                                                                                
LINDA WILSON,  Deputy Director,  Central Office,  Public Defender                                                               
Agency (PDA),  Department of  Administration (DOA),  after noting                                                               
that she'd  previously provided comments  on HB 78,  relayed that                                                               
with regard  to SB 56,  she wanted to  talk about a  problem with                                                               
Section  11 that  was overlooked  as the  bill moved  through the                                                               
Senate and  about a proposed  amendment that  should fix it.   As                                                               
written currently,  Section [11] would eliminate  the opportunity                                                               
to get a Suspended Imposition  of Sentence (SIS), a tool commonly                                                               
used  for  first time  class  B  and  C  felony offenders.    She                                                               
remarked that  the good thing  about an SIS  is that if  a person                                                               
convicted  of that  type of  felony succeeds  in meeting  all the                                                               
conditions set  forth in his/her  sentencing, the felony  will be                                                               
taken  of  his/her  record.    Referring  to  the  aforementioned                                                               
proposed amendment,  she offered her  belief that adoption  of it                                                               
will allow an SIS to be  granted to those convicted for the first                                                               
time of a class  C felony or some class B  felonies.  She relayed                                                               
that  the  PDA  is  in  support  of  that  proposed  change,  but                                                               
cautioned that  if the legislature  moves too quickly  on complex                                                               
legislation, it won't get the attention it deserves.                                                                            
                                                                                                                                
MS. WILSON  mentioned that  she'd submitted  a memorandum  to the                                                               
committee regarding  the PDA's constitutional  concerns regarding                                                               
Sections 1,  7, 26, and  30-31.  Offering her  understanding that                                                               
the  representative  from the  Office  of  Public Advocacy  (OPA)                                                               
would  be addressing  Sections  1  and 7,  she  pointed out  that                                                               
Sections 26 and 30-31 would  authorize a police officer to detain                                                               
a  parolee/probationer  on  suspicion  of  recent  violations  of                                                               
parole/probation  without getting  any directions  to do  so from                                                               
the  individual's  parole/probation  officer.   She  opined  that                                                               
these  sections will  engender  constitutional problems  because,                                                               
even though  exceptions to the constitutional  protection against                                                               
unreasonable  searches  and seizures  have  been  carved out  for                                                               
parole/probation  officers,   these  exceptions  have   not  been                                                               
extended to police officers.                                                                                                    
                                                                                                                                
MS.  WILSON, in  conclusion, made  reference to  the 1977  Alaska                                                               
Supreme Court  case, Roman v. State  - cited in her  memorandum -                                                             
as  illustrative of  the potential  constitutional problems  with                                                               
Sections   26  and   30-31,  specifically   that   it  would   be                                                               
unconstitutional to allow a police  officer to detain or arrest a                                                               
parolee/probationer for  a believed  violation if  that violation                                                               
did not  constitute an  independent crime or  if the  officer was                                                               
not  acting at  the  direction of  the person's  parole/probation                                                               
officer.   She  then relayed  that  she was  available to  answer                                                               
questions.                                                                                                                      
                                                                                                                                
REPRESENTATIVE  ANDERSON, surmising  that  the  PDA would  prefer                                                               
that those  sections of  the bill be  removed, asked  whether the                                                               
Division of Alaska  State Troopers would prefer  that they remain                                                               
in the bill.                                                                                                                    
                                                                                                                                
TODD  SHARP,  Lieutenant,  Division  of  Alaska  State  Troopers,                                                               
Department of Public Safety (DPS), said yes.                                                                                    
                                                                                                                                
REPRESENTATIVE GARA noted that in  Alaska, an SIS requires that a                                                               
person admit  to the conviction  but can  relay that it  has been                                                               
suspended.   In  other states,  however,  a person  can claim  to                                                               
never  have  been  convicted  as long  as  he/she  meets  certain                                                               
criteria.   He suggested  that if the  legislature would  like to                                                               
change  Alaska's current  SIS statute  to  be more  like that  of                                                               
other  states in  that  regard, then  such might  be  done via  a                                                               
change to SB 56.                                                                                                                
                                                                                                                                
1:22:47 PM                                                                                                                    
                                                                                                                                
JOSHUA FINK, Public Advocate, Anchorage  Office, Office of Public                                                               
Advocacy (OPA),  Department of Administration (DOA),  opined that                                                               
overall,  SB  56  greatly ratchets  up  sentences  and  increases                                                               
disparity  among them,  and  that the  (indisc.  - problems  with                                                               
teleconference sound)  sentencing structure  was set up  to avoid                                                               
the latter.   He suggested  that the legislature  should consider                                                               
establishing  a  sentencing  commission  to look  at  how  Alaska                                                               
sentences its defendants compared  to other states.  Nonetheless,                                                               
he remarked,  he does support  a presumptive-range  approach, but                                                               
thinks the  current presumptive  terms should  have been  used as                                                               
the midpoint  of the  proposed ranges,  not as the  low end.   As                                                               
currently written, SB 56 gives  judges the discretion to increase                                                               
sentences upward  from the  current presumptive  sentence without                                                               
finding any  aggravators, but  must find  mitigators in  order to                                                               
decrease sentences.  Such will  result in longer sentences across                                                               
the board, and violates the  spirit of Blakely v. Washington, 124                                                             
S. Ct. 2531 (U.S., 2004), he opined.                                                                                            
                                                                                                                                
MR. FINK offered  his belief that in Blakely,  U.S. Supreme Court                                                             
Justice Anthony  Scalia has  said that the  jury should  find the                                                               
facts that increase one's sentence,  because that is the people's                                                               
check  on the  judiciary.   By only  allowing judges  to increase                                                               
sentences  over   the  current  presumptive  terms   without  any                                                               
aggravating factors  but not allowing  them to decrease  them, SB                                                               
56 does an end run around  Blakely and usurps the function of the                                                             
jury as envisioned and announced  by the U.S. Supreme Court under                                                               
Justice Scalia's  opinion, he remarked.   Moreover, he predicted,                                                               
giving what  he characterized as  a wide range of  sentences will                                                               
result in greater disparity in sentencing.                                                                                      
                                                                                                                                
MR.  FINK suggested  that the  solution would  be to  create much                                                               
narrower ranges of sentences using  the current presumptive terms                                                               
as the  midpoint.  Such  will result  in a much  fairer approach,                                                               
and will  decrease disparity in  sentencing and grant  judges the                                                               
discretion to  move either  upward or  downward from  the current                                                               
presumptive  term  based on  the  "Chaney  criteria" -  statutory                                                             
guidelines based  on the 1970  Alaska Supreme Court  case, Chaney                                                             
v. State - which are statutorily set out in 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                                                                             
     community.                                                                                                                 
                                                                                                                                
MR. FINK offered his thought  that the proposed sentencing ranges                                                               
currently listed in SB 56 are  simply a starting point, and asked                                                               
the committee  to take a hard  look at those ranges  and consider                                                               
narrowing them  as he's  suggested.  He  then offered  his belief                                                               
that Section  1 is potentially  unconstitutional for a  number of                                                               
reasons,  and quoted  from the  2002 Alaska  Supreme Court  case,                                                               
Malloy v. State [original punctuation as provided by Mr. Fink]:                                                               
                                                                                                                                
     Donlun    accurately   presaged    Apprendi's   holding                                                                
     aggravating facts  must be charged [in  the indictment]                                                                    
     and proved beyond  a reasonable doubt to  the jury when                                                                    
     their  existence would  allow or  require the  court to                                                                    
     impose  a  sentence  exceeding  the  maximum  otherwise                                                                    
     authorized.                                                                                                                
                                                                                                                                
MR. FINK therefore surmised from  this statement and from another                                                               
of Justice Scalia's  statements in Blakely that if  a judge wants                                                             
to  go   outside  a  presumptive   sentencing  range,   then  the                                                               
justifying factors must be included  in the indictment and proved                                                               
to the jury,  and that to do otherwise would  violate both Malloy                                                             
and  Blakely.   With  regard  to Section  6,  he  opined that  it                                                             
constitutes  an unconstitutional  delegation  of  power from  the                                                               
judicial branch to the executive  branch.  With regard to Section                                                               
7,  he  opined that  it  is  also unconstitutional  as  currently                                                               
drafted, because  currently, under AS  12.55.120 and Rule  215 of                                                               
the  Alaska Rules  of Appellate  Procedure, a  defendant may  not                                                               
seek a sentence  review as of right if his/her  sentence is under                                                               
two  years.   However, the  defendant may  petition the  [Alaska]                                                               
Supreme Court for discretionary review.                                                                                         
                                                                                                                                
MR. FINK  went on to  note that that  statute has been  upheld in                                                               
Rozkydal v. State, a 1997 Alaska  Court of Appeals case, and that                                                             
the court  did so by  making a  distinction between the  right to                                                               
review  and a  discretionary petition  for  review.   Thus, if  a                                                               
sentence  is under  two  years,  one doesn't  have  the right  to                                                               
appeal but  does still have the  right to petition, and  so there                                                               
would be  no violation  of due  process.   However, the  court in                                                               
that case  went on to  say that  if a jurisdictional  statute was                                                               
construed as prohibiting  the court from reviewing  any ruling in                                                               
a criminal  case except those rulings  expressly made appealable,                                                               
then  that statute  would raise  serious constitutional  problems                                                               
under Article  IV, Section 2,  of the Alaska  State Constitution,                                                               
which states that  the supreme court is the highest  court in the                                                               
state with a final appellate jurisdiction.                                                                                      
                                                                                                                                
MR. FINK characterized Section 7  as attempting to take away that                                                               
appellate jurisdiction by taking away  the right to petition, and                                                               
predicted that  for this reason,  Section 7  will be found  to be                                                               
fairly  unconstitutional.   Also  with regard  to  Section 7,  he                                                               
offered his  understanding that the  Department of Law  (DOL) has                                                               
stated  that  it  wants  to  make  minimal  changes  to  Alaska's                                                               
sentencing structure  so as  to preserve it  as much  as possible                                                               
while complying with Blakely.  If  that is the case, however, why                                                             
change  the current  statute  regarding when  a  sentence can  be                                                               
appealed?   That statute  is not  tied to  presumptive sentencing                                                               
and thus does  not need to be amended to  comply with Blakely, he                                                             
opined,  since  it   simply  provides  a  right   to  appeal  for                                                               
excessiveness if one's sentence is over  two years.  He asked the                                                               
committee to consider  deleting Section 7.   Referring to Section                                                               
11, he offered his belief  that it eliminates the court's ability                                                               
to impose a suspended sentence or  grant an SIS, and that the DOL                                                               
has a proposed amendment that would change that.                                                                                
                                                                                                                                
MR. FINK then suggested that  the committee consider amending the                                                               
bill to provide the courts  with a mitigator when [the defendant]                                                               
suffers  from  a  mental  defect -  for  example,  fetal  alcohol                                                               
spectrum  disorder   (FASD).     He  recommended   the  following                                                               
language,  "If one  has a  mental defect,  such as  fetal alcohol                                                               
syndrome, that  is insufficient to constitute  a complete defense                                                               
but  would  significantly  affect the  defendant's  conduct,  the                                                               
court  may  consider  it  in sentencing",  and  then  adjust  the                                                               
sentence downward.   He offered his belief that  many judges want                                                               
this  type of  mitigator  because  it would  allow  them to  more                                                               
justly  sentence the  mentally ill,  of which  there are  many in                                                               
Alaska and  who are  not as  culpable as  those with  full mental                                                               
faculties.   He relayed that  his suggested amendment  is modeled                                                               
after  the language  currently in  AS  12.55.155(d)(3) with  some                                                               
modification  so  that  it  pertains   to  "mental  defect",  and                                                               
characterized it as providing an important mitigator.                                                                           
                                                                                                                                
1:33:47 PM                                                                                                                    
                                                                                                                                
MR. FINK also suggested that  the committee consider amending the                                                               
bill  to provide  a mitigator  for  a defendant  who is  actively                                                               
participating  in  or has  completed  treatment  relevant to  the                                                               
offense   before  sentencing;   for   example,  substance   abuse                                                               
treatment or  anger management  courses.   Actively participating                                                               
in  treatment  prior  to  sentencing  indicates  the  defendant's                                                               
willingness to  be reformed, and  this should be encouraged  as a                                                               
matter  of  public  policy.    To  some  extent,  obtaining  such                                                               
treatment  is now  recognized  by the  courts;  when a  defendant                                                               
enters  a  residential  treatment program  prior  to  sentencing,                                                               
he/she can count that time against  his/her jail time.  This is a                                                               
recognition that treatment should be  encouraged, and is a better                                                               
way  than incarceration  to  address many  of  the state's  crime                                                               
problems.   To address  the argument  that defendants  can simply                                                               
receive treatment  at Department  of Corrections'  facilities, he                                                               
pointed out  that such treatment  opportunities are  very limited                                                               
and are  only available after sentencing,  and characterized that                                                               
argument  as  mixing apples  and  oranges.   Making  treatment  a                                                               
mitigating factor rewards  defendants who seek help  on their own                                                               
before sentencing, and should be encouraged, he concluded.                                                                      
                                                                                                                                
1:34:52 PM                                                                                                                    
                                                                                                                                
CHAIR McGUIRE  confirmed that there  is an  amendment forthcoming                                                               
regarding  Section 6,  and surmised  that there  will be  further                                                               
discussion regarding  section 7.   She said  she agrees  with Mr.                                                               
Fink on the issue of having  a mitigator for a mental defect, and                                                               
asked him whether he wanted to define mental defect in any way.                                                                 
                                                                                                                                
MR.  FINK suggested  that perhaps  others may  be able  to better                                                               
address that issue, but suggested  making any definition somewhat                                                               
broad and then allowing the judge discretion.                                                                                   
                                                                                                                                
CHAIR  McGUIRE noted  that judges  are not  required to  consider                                                               
mitigating factors when sentencing.   On the issue of providing a                                                               
mitigating  factor for  those seeking  treatment,  she relayed  a                                                               
concern she's heard that after  hearing about such a mitigator, a                                                               
defendant might  simply get treatment  in order to  lower his/her                                                               
sentence, though such might not necessarily  be a bad thing.  She                                                               
mentioned  her  concern  with  regard  to  defining  "treatment",                                                               
indicating  that  she  wouldn't  want a  defendant  have  his/her                                                               
sentence mitigated  for participating  in a program  that doesn't                                                               
meet certain criteria.                                                                                                          
                                                                                                                                
MR.  FINK   acknowledged  that  point,  and   suggested  that  an                                                               
amendment regarding  this issue  could reflect  that one  must be                                                               
actively  participating in  a  recognized  treatment program  and                                                               
must  remain in  compliance with  it.   Judges must  be convinced                                                               
that  the  defendant  is doing  everything  possible  to  receive                                                               
treatment, he remarked, and mentioned  that such is done now with                                                               
regard to alcohol related crimes.                                                                                               
                                                                                                                                
CHAIR  McGUIRE  said  she  is  inclined  to  support  Mr.  Fink's                                                               
suggested amendments, since they  would simply be putting current                                                               
policy into  statute.  She  remarked that a staggering  number of                                                               
people  in the  DOC system  are mentally  ill.   On the  issue of                                                               
providing  a  mitigator  for   seeking  treatment,  she  pondered                                                               
whether  such a  mitigator should  be written  so as  to make  it                                                               
clear that treatment  received before a crime  is committed would                                                               
not qualify.                                                                                                                    
                                                                                                                                
MR. FINK acknowledged that point.                                                                                               
                                                                                                                                
1:39:53 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GARA  asked Mr.  Fink his  opinion with  regard to                                                               
whether requiring  a judge to  issue a finding when  increasing a                                                               
sentence will help  keep sentences closer to what  they are under                                                               
the current sentencing scheme.                                                                                                  
                                                                                                                                
MR.  FINK opined  that it  would, and  offered his  understanding                                                               
that judges  currently are  required to  make findings  under the                                                               
Chaney  criteria.   He surmised  that the  drafter, in  using the                                                             
language  currently in  Section  7, is  attempting  to avoid  the                                                               
problem  of  a  judge  making  "aggravator-like"  findings.    He                                                               
elaborated:   "If  that's  the  case, maybe  that  could be  more                                                               
specific if this language is kept,  because I don't think you can                                                               
get  away from  requiring  that the  judge  make Chaney  criteria                                                             
findings;  ... you  have to  make findings  so that  it would  be                                                               
reviewable on a petition (indisc.)."                                                                                            
                                                                                                                                
REPRESENTATIVE GARA asked whether  it would be constitutional for                                                               
the law  to say that a  judge could use Chaney  criteria findings                                                             
to increase a sentence.                                                                                                         
                                                                                                                                
MR. FINK opined that such wouldn't create a Blakely problem.                                                                  
                                                                                                                                
REPRESENTATIVE  GARA  surmised  that  such  would  keep  the  law                                                               
similar to what is now with regard to sentence lengths.                                                                         
                                                                                                                                
1:43:19 PM                                                                                                                    
                                                                                                                                
SIDNEY K. BILLINGSLEA, Attorney,  Alaska Academy of Trial Lawyers                                                               
(AATL),  mentioned that  her  comments would  echo  those of  Ms.                                                               
Wilson  and Mr.  Fink,  and characterized  SB 56  as  an end  run                                                               
around the intent  of Blakely and the "follow up"  cases - United                                                             
States v.  Booker and  United States v.  Fanfan, which  deal with                                                           
federal sentencing  guidelines - in  that it is  about increasing                                                               
penalties to  convicted people while decreasing  the government's                                                               
burden of proof  to accomplish those increases in  penalties.  As                                                               
currently  written,   she  opined,   SB  56  strips   appeals  of                                                               
sentences, denies  SISs, and denies  periodic sentencing  in some                                                               
cases.   With regard  to the accompanying  letter of  intent, she                                                               
remarked  that  although  it  denies  that  the  effects  of  the                                                               
[legislation]  are  intentional,  the  effects  clearly  are  not                                                               
accidental,  since "the  numbers" were  deliberatively placed  in                                                               
the bill.                                                                                                                       
                                                                                                                                
MS.  BILLINGSLEA  opined  that the  sentencing  ranges  currently                                                               
proposed in  SB 56 don't take  into account the minimum  range of                                                               
presumptive sentencing; in fact, she  added, they don't appear to                                                               
be addressed  at all.   Currently under [proposed]  AS 12.55.155,                                                               
the sentencing court  can decrease the presumptive  terms down by                                                               
50  percent in  instances where  the presumptive  terms are  more                                                               
than four  years, but  must prove  statutory mitigators  by clear                                                               
and convincing  evidence.  In  contrast, however,  the sentencing                                                               
court,  under proposed  AS 12.55.155,  can  impose four-year  and                                                               
two-year  increases -  depending  on  the crime  -  using only  a                                                               
preponderance of  the evidence  standard or  a finding  under the                                                               
Chaney criteria.   She opined that if SB 56  were to not increase                                                             
penalties  and  only  comply  with  Blakely,  it  should  have  a                                                             
sentencing  range that  goes down  to  the statutorily  mitigated                                                               
minimum,  which  would  be  50  percent  of  current  presumptive                                                               
sentences  exceeding four  years, and  goes up  one to  two years                                                               
above current presumptive sentences.                                                                                            
                                                                                                                                
MS. BILLINGSLEA, offering an example,  referred to Section 8, and                                                               
suggested that  the language being  changed in  subsection (c)(1)                                                               
should set  a range  of two and  half years up  to five,  six, or                                                               
seven years.  She said she  recognizes, however, that that may be                                                               
somewhat  distasteful to  those who  want to  increase penalties,                                                               
but  it would  be consistent  with the  concept that  findings of                                                               
fact will  no longer be  required in order to  increase penalties                                                               
by a  certain number of  years.   She suggested, though,  that it                                                               
would be  a good  idea to  put in  Section 7  language specifying                                                               
that the court  needs to make [Chaney criteria]  findings, as has                                                             
just been discussed by Representative Gara and Mr. Fink.                                                                        
                                                                                                                                
MS.  BILLINGSLEA then  referred  to Section  2, specifically  the                                                               
language  being added  regarding periodic  sentencing that  says:                                                               
",  but  only  if  an  employment  obligation  of  the  defendant                                                           
preexisted  sentencing and  the  defendant  receives a  composite                                                           
sentence of  not more than  two years to  serve".  She  said that                                                           
she  is not  particularly  opposed  to the  latter  half of  that                                                               
language,  but   opined  that  if   the  goal  is   to  encourage                                                               
rehabilitation, then it  is not necessary to  add the stipulation                                                               
that the employment obligation  preexisted sentencing.  Sometimes                                                               
people, especially young people, need  a wakeup call, and so when                                                               
they're  arrested and  charged with  a crime  and prosecuted  for                                                               
one, that's  sometimes what  it takes  to wake  them up  and make                                                               
them  responsible citizens.   And  sometimes bail  conditions and                                                               
the  restrictive  living  that  they  go  through  pre-sentencing                                                               
causes them  to clean  up their  lifestyles and  get jobs.   Such                                                               
people  shouldn't  be penalized  for  getting  a job  during  the                                                               
course  of  their  prosecution,  and by  allowing  them  to  stay                                                               
employed, it also encourages the  payment of fines and penalties;                                                               
she therefore  suggested that the language  regarding preexisting                                                               
employment obligations should be eliminated.                                                                                    
                                                                                                                                
1:49:34 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG  asked her to  comment on the  letter of                                                               
intent.                                                                                                                         
                                                                                                                                
MS. BILLINGSLEA  said she'd not yet  read it but has  listened to                                                               
Ms. Parkes's comments regarding it.                                                                                             
                                                                                                                                
REPRESENTATIVE GRUENBERG  said his  concern is  that since  it is                                                               
only  letter   of  intent,  judges,  lawyers,   prosecutors,  and                                                               
defendants  will seldom  see  it,  thus he  intends  to offer  an                                                               
amendment inserting the intent language  into the bill so that it                                                               
goes into the uncodified section of law.                                                                                        
                                                                                                                                
MS. BILLINGSLEA replied:                                                                                                        
                                                                                                                                
     If, in fact, the letter  of intent says what Ms. Parkes                                                                    
     suggested  that  it  says,   which  is,  this  bill  is                                                                    
     intended  to  address  Blakely   and  not  intended  to                                                                  
     increase  the sentences,  I think  that ...  sets up  a                                                                    
     cognitive dissonance,  in my  mind, because  it doesn't                                                                    
     say what  it does. ...   The fact of the  matter is, it                                                                    
     increases  sentences   across  the  board   for  people                                                                    
     convicted of  crimes in Alaska  and it removes  some of                                                                    
     the rights and remedies that they have.                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG  mentioned that  he'd be  offering other                                                               
amendments as well.                                                                                                             
                                                                                                                                
1:51:47 PM                                                                                                                    
                                                                                                                                
DOUG  WOOLIVER,  Administrative Attorney,  Administrative  Staff,                                                               
Office  of  the  Administrative  Director,  Alaska  Court  System                                                               
(ACS), remarked  that there  are a variety  of solutions  to "the                                                               
Blakely  problem"  that  the  legislature  could  consider.    He                                                             
relayed that  the ACS does  have concern  with Section 6  - which                                                               
grants  probation officers  the  authority to  set conditions  of                                                               
probation - in  that it constitutes a  significant departure from                                                               
current  practice,  but  he  is  expecting  that  concern  to  be                                                               
addressed  via  a  forthcoming  proposed  amendment  which  would                                                               
delete Section  6.  He noted  that Section 11 also  gives the ACS                                                               
concern in that  it appears to contain a  drafting oversight, one                                                               
that  would eliminate  the authority  to  grant SISs  in a  whole                                                               
variety  of cases  for which  the courts  still wish  to able  to                                                               
grant SISs;  he offered his  belief that that concern,  too, will                                                               
be addressed via a forthcoming proposed amendment.                                                                              
                                                                                                                                
MR.  WOOLIVER mentioned  that  the  ACS does  not  yet know  what                                                               
impact  SB 56  will  have on  the ACS,  noting  that the  Blakely                                                             
decision  is responsible  for most  of  the impact  the ACS  will                                                               
experience.   He  remarked  that  it's hard  to  gage the  bill's                                                               
fiscal  impact.   Without  the  bill,  under Blakely,  all  cases                                                             
involving aggravators  would go  to trial;  with the  bill, there                                                               
will  be a  presumptive range,  and so  the ACS  might still  see                                                               
cases  involving aggravators  that it  would not  previously have                                                               
seen pre-Blakely.  He suggested  that under the bill, there might                                                             
be incentives  to settle because  the penalties will  be greater,                                                               
though there  might also  be fewer incentives  to settle  for the                                                               
same reason.                                                                                                                    
                                                                                                                                
MR. WOOLIVER noted  that years ago, when the state  first got rid                                                               
of  all  plea  bargaining,  the  Alaska  Judicial  Council  (AJC)                                                               
conducted a study on the impact  of that change and, according to                                                               
his  understanding,   determined  that  initially  there   was  a                                                               
statistically significant  increase in  trials, but  that changed                                                               
within a  year or  so, with  the number  of trials  decreasing to                                                               
what  it was  before the  change.   He  suggested that  something                                                               
similar might  occur after  the adoption  of SB  56.   He relayed                                                               
that if the ACS does see  a significant increase in the number of                                                               
trials as  a result of SB  56, it will seek  additional funds via                                                               
the regular budget process in order to offset costs.                                                                            
                                                                                                                                
1:55:00 PM                                                                                                                    
                                                                                                                                
LIEUTENANT SHARP  noted that he'd  recently spoken in  support of                                                               
HB 78 and  provided testimony regarding the 2004  Alaska Court of                                                               
Appeals  case,  Reichel  v.  State,  which  he  characterized  as                                                             
illustrative of  the need for  the changes proposed  via Sections                                                               
26 and  30-31 of SB  56.  He  said that  the DPS supports  SB 56.                                                               
Sections  26  and  30-31  address  a  police  officer's  role  in                                                               
detaining probationers/parolees.   The proposed language outlines                                                               
a  good standard,  he opined,  for police  officers to  follow in                                                               
instances such  as presented  in the  Reichel case;  the proposed                                                             
language  specifies that  a police  officer "may"  - rather  than                                                               
"shall"  -  detain  a  probationer/parolee  but  would  first  be                                                               
required to  have a  "reasonable suspicion"  that a  violation of                                                               
probation/parole  conditions has  occurred.   Also, the  proposed                                                               
language  specifies  that a  police  officer  must have  probable                                                               
cause before  he/she can arrest  a probationer/parolee  without a                                                               
warrant.                                                                                                                        
                                                                                                                                
LIEUTENANT     SHARP     said    that     unfortunately,     many                                                               
probationers/parolees  violate   conditions  of   their  release.                                                               
Police officers are on the street  every day in Alaska, and often                                                               
serve  as the  eyes and  ears of  parole/probation officers.   He                                                               
offered his belief that SB 56  provides a helpful tool for police                                                               
officers as they  strive to protect the  communities and citizens                                                               
of  Alaska, and  that it  will aid  probation/parole officers  in                                                               
their efforts  to have  probationers/parolees meet  conditions of                                                               
release.   A quick revocation  of probation/parole is  many times                                                               
exactly what is needed to help  with rehabilitation - it gets the                                                               
person to  rehab quickly,  it gets  them off  the street,  and it                                                               
sends a  message that they  must comply with their  conditions of                                                               
release  or  they will  have  the  privilege of  probation/parole                                                               
taken from them.                                                                                                                
                                                                                                                                
REPRESENTATIVE  ANDERSON  surmised  that Sections  26  and  30-31                                                               
provide  police   officers  with  flexibility   under  reasonable                                                               
parameters.                                                                                                                     
                                                                                                                                
LIEUTENANT SHARP concurred with that summation.                                                                                 
                                                                                                                                
REPRESENTATIVE GRUENBERG asked whether  Sections 26 and 30-31 are                                                               
grounded in Blakely.                                                                                                          
                                                                                                                                
LIEUTENANT SHARP offered his understanding that they are not.                                                                   
                                                                                                                                
CHAIR  McGUIRE  acknowledged  that these  sections  constitute  a                                                               
fundamental policy change that doesn't come under Blakely.                                                                    
                                                                                                                                
2:00:12 PM                                                                                                                    
                                                                                                                                
PORTIA PARKER, Deputy Commissioner,  Office of the Commissioner -                                                               
Juneau,  Department  of  Corrections  (DOC), said  that  the  DOC                                                               
supports the  legislation.   With regard to  Section 6,  she said                                                               
that it  was intended to  codify the DOC's current  practice, but                                                               
the  language  goes  too  far  and is  problematic,  so  the  DOC                                                               
supports  its removal  at this  time  so as  to give  the DOC  an                                                               
opportunity to  work with other  members of the  criminal justice                                                               
system in  creating proper language.   The  DOC does not  want to                                                               
substantially  change  [its  current practice]  or  increase  its                                                               
authority, she assured the committee;  rather, it merely wants to                                                               
enforce conditions of probation as officers of the court.                                                                       
                                                                                                                                
MS.  PARKER  referred  to  the  section  pertaining  to  periodic                                                               
sentencing  [Section  2], and  said  that  that section  is  very                                                               
important to  the DOC because,  from a management point  of view,                                                               
one of the problems with  periodic sentencing is that it requires                                                               
the DOC  to "book  in, release, book  in, release,"  whenever the                                                               
court  orders periodic  sentencing.   It  is  basically a  court-                                                               
ordered furlough,  and the DOC  is not involved in  assessing the                                                               
risk the offender  presents when released into  the community nor                                                               
is he/she  under any  supervision.   Periodic sentencing  is very                                                               
problematic from a population management  perspective and is also                                                               
very disparate between offenders.                                                                                               
                                                                                                                                
MS. PARKER  noted that the  Alaska Court of Appeals  has narrowed                                                               
the aforementioned  problem substantially  via the 2002  State v.                                                             
Felix decision.  However, because  some judges are still imposing                                                             
periodic  sentencing,  Section  2  will help  further  limit  its                                                               
imposition.   She said  that it  is not a  huge problem  but does                                                               
occur 2-10  times a year.   In conclusion, she said  that the DOC                                                               
strongly supports  Section 2, as  well as Sections 26  and 30-31,                                                               
which pertain to police officers'  ability to detain and question                                                               
probationers, because it thinks  that those proposed changes will                                                               
benefit  the   community  as  a  whole,   particularly  in  rural                                                               
communities where Village Public  Safety Officers (VPSOs) - under                                                               
special statutory authority -  work closely with probation/parole                                                               
officers to provide supervision of probation/parolees.                                                                          
                                                                                                                                
2:05:15 PM                                                                                                                    
                                                                                                                                
MS. PARKER,  in response to  questions, relayed that the  DOC has                                                               
submitted zero  fiscal notes  for the first  five years  under SB                                                               
56; that when  considering a bill's fiscal impact,  the DOC looks                                                               
at the  potential overall  impact on  the entire  department; and                                                               
that the  DOC cannot predict  how many  cases will be  subject to                                                               
charge bargaining and  thus result in a sentence  of fewer years,                                                               
and  so  therefore  it cannot  determine  whether  the  sentences                                                               
imposed under  SB 56 will  be substantially different  than those                                                               
imposed currently.                                                                                                              
                                                                                                                                
REPRESENTATIVE GARA  referred to the language  change proposed on                                                               
page 6, line 26 - "12 to 16  [10] years" - and noted that the low                                                           
end of  the proposed  range is  two years  more than  the current                                                               
sentence.  He asked whether that is  a typo.  If it isn't a typo,                                                               
he  questioned, why  isn't the  DOC anticipating  an increase  in                                                               
costs associated with this increase in sentence length.                                                                         
                                                                                                                                
MS. PARKER offered  her belief that that language is  not a typo,                                                               
and suggested that the DOL could better address that issue.                                                                     
                                                                                                                                
CHAIR McGUIRE  mentioned that  the bill's  fiscal impact  will be                                                               
further considered in the House Finance Committee.                                                                              
                                                                                                                                
2:09:27 PM                                                                                                                    
                                                                                                                                
SUSAN PARKES, Deputy Attorney  General, Criminal Division, Office                                                               
of the Attorney General, Department  of Law (DOL), explained that                                                               
the language change  proposed on page 6, line 26,  is not a typo.                                                               
She referred  to a  chart in members'  packets that  compares the                                                               
current presumptive  terms with  the presumptive  ranges proposed                                                               
in  SB 56.   In  general, the  proposed presumptive  ranges start                                                               
with the  current presumptive terms,  but in instances  where the                                                               
DOL felt that logically the  sentences should be more substantial                                                               
to  begin with  -  such as  for  a first  time  conviction of  an                                                               
unclassified felony sex offense involving  the use of a weapon or                                                               
resulting in a serious injury, as  referenced on page 6, line 26,                                                               
or  a second  conviction  of a  class A  felony  sex offense,  as                                                               
referenced  on page  7,  line 18  - the  ranges  start two  years                                                               
higher  than  the   current  presumptive  term.     In  both  the                                                               
aforementioned instances, and in  only those two, the presumptive                                                               
term is 10  years, but the bill proposes a  range of 12-16 years;                                                               
she indicated that the DOL  felt that these changes would provide                                                               
consistency  within  the  new sentencing  scheme,  and  that  the                                                               
current  lower   presumptive  terms   for  those  two   types  of                                                               
convictions didn't  seem to make  sense and were thus  the result                                                               
of an oversight.                                                                                                                
                                                                                                                                
REPRESENTATIVE GARA  characterized the increase in  sentences for                                                               
those two  types of convictions  as a policy call,  but indicated                                                               
that the increase doesn't make sense.                                                                                           
                                                                                                                                
MS.  PARKES  agreed that  the  increase  is  a policy  call,  and                                                               
suggested reviewing the  chart to gain a  better understanding of                                                               
why the DOL felt the proposed  increase to be in order given that                                                               
both the  current presumptive term  and the proposed range  for a                                                               
first time conviction  of a class A felony  sex offense involving                                                               
the  use of  a  weapon or  resulting  in a  serious  injury -  as                                                               
referenced on page  7, line 16 -  is 10 years and  starts with 10                                                               
years, respectively.                                                                                                            
                                                                                                                                
2:17:22 PM                                                                                                                    
                                                                                                                                
MS.  PARKES turned  attention to  Section 7,  and opined  that it                                                               
does not  deny the  right to  appeal, that  instead it  just says                                                               
that if one's sentence  falls within the legislatively-designated                                                               
standard  range,  then  the  sentence  may  not  be  reversed  as                                                               
excessive.   She suggested that  the language is  attempting have                                                               
the  legislature,   rather  than   the  court  of   appeals,  set                                                               
sentencing ranges.  She went on to say:                                                                                         
                                                                                                                                
     The concern here ..., and the concern with some of the                                                                     
      language that's been offered regarding findings, is                                                                       
     that we will in fact  find ourselves in another Blakely                                                                  
     situation.    We're  setting up  ranges,  and  the  new                                                                    
     scheme  gives the  judge the  discretion to  set within                                                                    
     the range.   Now, we anticipate [that]  anyone who gets                                                                    
     higher  than the  bottom of  the range  may want  their                                                                    
     sentence reversed  as excessive.   And we  believe ...,                                                                    
     in  drafting this,  that it  is constitutional  for the                                                                    
     legislature to say, "If your  sentence falls within our                                                                    
     standard  range, it's  not excessive;  we've made  that                                                                    
     policy  call."   If you  set up  language to  say to  a                                                                    
     judge, "You must make findings  [in order] to go higher                                                                    
     in this range  than the very bottom," I  do believe you                                                                    
     are possibly  creating a Blakely  problem, and  I think                                                                  
     that was in some other testimony.                                                                                          
                                                                                                                                
REPRESENTATIVE COGHILL  asked under  what circumstances  a person                                                               
could [appeal a sentence].                                                                                                      
                                                                                                                                
MS. PARKES  said that  a review  would be  possible if  there was                                                               
some procedural  error, if there  was an argument that  the judge                                                               
considered  information that  wasn't properly  presented, if  the                                                               
judge  wouldn't  consider  information that  the  defendant  felt                                                               
should  have been  considered,  or if  the  defendant proposed  a                                                               
mitigator  that the  judge  didn't  find.   In  other words,  any                                                               
appellate  issue other  than excessiveness  can be  raised.   She                                                               
mentioned that Rozkydal v. State,  a 1997 Alaska Court of Appeals                                                             
case, would not be affected by the language in Section 7.                                                                       
                                                                                                                                
CHAIR  McGUIRE pointed  out  that  a judge  already  has to  make                                                               
findings  that  are  consistent with  the  Chaney  criteria,  and                                                             
remarked  that  there  is  a  concern that  if  it  is  not  made                                                               
abundantly clear that a sentence  falling within the range set by                                                               
the  legislature cannot  be reversed  on the  grounds that  it is                                                               
excessive, then the state could  find itself dealing with another                                                               
Blakely problem.                                                                                                              
                                                                                                                                
2:22:27 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  COGHILL  asked  whether Chaney  criteria  can  be                                                             
appealed.                                                                                                                       
                                                                                                                                
MS. PARKES offered  her belief that under current  law, judges do                                                               
make findings pursuant  to the Chaney criteria,  and so requiring                                                             
something generic  like that to  justify the sentence  should not                                                               
run  afoul  of  Blakely.     A  problem  would  only  arise,  she                                                             
suggested,  if findings  are required  in order  to go  above the                                                               
bottom of the proposed ranges.                                                                                                  
                                                                                                                                
2:23:32 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG surmised, then,  that under the language                                                               
in Section 7, a sentence cannot  be reversed as excessive even if                                                               
one claims that it is excessive under Chaney criteria.                                                                        
                                                                                                                                
REPRESENTATIVE GARA remarked that there  are two parts to Section                                                               
7, and  offered his belief that  one part says that  a person can                                                               
no longer appeal  a sentence as excessive if it  falls within the                                                               
range established  by the  legislature, and  that the  other part                                                               
says that a  judge no longer has to issue  findings to justify an                                                               
increased sentence  as long as it  falls within that range.   The                                                               
appeal right being  taken away is the right of  person to say, "I                                                               
think  my sentence  [is] too  long";  however, that  really is  a                                                               
person's main reason to appeal a  sentence - it's the crux of the                                                               
appeal.   He mentioned that he  will be offering an  amendment to                                                               
delete section  7, and that the  drafter has relayed to  him that                                                               
even without Section 7, the bill will still comply with Blakely.                                                              
                                                                                                                                
REPRESENTATIVE  GARA,   referring  to  the  part   of  Section  7                                                               
pertaining  to a  judge no  longer  having to  issue findings  in                                                               
order to increase sentences within the range, said:                                                                             
                                                                                                                                
     I  think  what people  are  saying  is, we  don't  want                                                                    
     judges to go  on the record and say  why they increased                                                                    
     a sentence,  because they might say  something that the                                                                    
     United  States  Supreme  Court  has  said  they're  not                                                                    
     allowed to consider.  And  by putting it on the record,                                                                    
     we might see that they  violated Blakely.  And so we'll                                                                  
     just  let  them  not  say   why  they're  increasing  a                                                                    
     sentence; we'll let them keep  that secret.  As long as                                                                    
     they keep  it secret, nobody  will be able to  say they                                                                    
     considered  something  that  the [U.S.]  Supreme  Court                                                                    
     said  they  weren't  allowed to  consider  ...  [under]                                                                    
     Blakely.                                                                                                                 
                                                                                                                                
     I think that  would be an awful thing for  us to do, to                                                                    
     say  judges  can  secretly violate  the  United  States                                                                    
     Constitution  by not  telling us  why they're  going to                                                                    
     increase  a sentence  and, therefore,  "We're going  to                                                                    
     relieve you of  the burden of putting  your findings on                                                                    
     the  record."   In  this  range,  between 5-8  or  7-11                                                                    
     [years], the  [U.S.] Supreme Court has  said judges can                                                                    
     consider  certain  factors   -  they're  generally  the                                                                    
     Chaney  factors  - [but]  they  can't  consider any  of                                                                  
     those 30  factors in our  aggravators.  If you  want to                                                                    
     use any of  those aggravators, you have to go  and do a                                                                    
     jury trial.                                                                                                                
                                                                                                                                
     But you [can consider]  these limited things that don't                                                                    
     require  these  extra  aggravator  findings.    So  the                                                                    
     United  States Supreme  Court really  came in  and they                                                                    
     said, "Look, the easy way  to do this is, anything over                                                                    
     the  presumptive  term,  go  to  a  jury  if  you  want                                                                    
     something more."  We're going  to say to judges, "Well,                                                                    
     you  can  do more  than  the  presumptive term,"  we're                                                                    
     going to give them some  flexibility - and that's okay,                                                                    
     I  don't  mind  doing  that -  but  they're  still  not                                                                    
     allowed  to  consider  these  extra  factors  that  the                                                                    
     United States Supreme Court has  said you have to go to                                                                    
     a jury  to prove.   [Judges will  only be able  to use]                                                                    
     the Chaney factors.                                                                                                      
                                                                                                                                
     So I think  the subtext of what's going on  is, I think                                                                    
     people are worried  that if a judge is  required to put                                                                    
     their findings  on the record  to increase  a sentence,                                                                    
     then  the   court  of  appeals  might   find  out  they                                                                    
     considered  things they  weren't  allowed to  consider.                                                                    
     Well I  think that's the  exact reason why  they should                                                                    
     put that  on the record; they  shouldn't be considering                                                                    
     things they're  not allowed to  consider.   They should                                                                    
     let  us  know what  they're  considering.   If  they're                                                                    
     considering  factors  the  United State  Supreme  Court                                                                    
     said you're not allowed to  look at, well that's now on                                                                    
     the record.                                                                                                                
                                                                                                                                
CHAIR  McGUIRE   pointed  out  that   it  is   the  legislature's                                                               
prerogative as policy makers to  decide what presumptive sentence                                                               
they might  choose to assign  to a particular  crime.  And  so it                                                               
would  be  perfectly  compliant  with Blakely  as  well  for  the                                                             
legislature to  forgo using  the proposed  ranges and  simply use                                                               
the highest number  in those proposed ranges, to  simply say, for                                                               
example, "We find  that for a first offense felony  with a weapon                                                               
it's going to be 12 years."   The legislature could then also put                                                               
the onus on  judges to look at mitigators in  order to reduce the                                                               
sentence.    She  offered  her  belief that  there  is  not  some                                                               
insidious plot  [to increase sentences]; rather,  the legislation                                                               
offers  a  way to  comply  with  Blakely  and  still get  at  the                                                             
underlying  policy goals  that  this legislature  has  set.   She                                                               
surmised that  members would agree  that having a  separate trial                                                               
for every aggravator is impractical from a fiscal standpoint.                                                                   
                                                                                                                                
REPRESENTATIVE  GARA  agreed  with   that  point,  but  said  the                                                               
committee should consider that one  of the purported goals of the                                                               
bill is  to not increase sentences,  to come up with,  as much as                                                               
possible,  something  that  looks   like  the  existing  sentence                                                               
structure.  Therefore, he indicated,  even though the legislature                                                               
has the  authority to increase  sentences, it should  forgo doing                                                               
so  without careful  individual  consideration  of each  proposed                                                               
sentence  increase.   He suggested  that they  delete section  7,                                                               
surmising that  doing so  will add  accountability to  the system                                                               
because  it   is  better   for  judges  to   say  why   they  are                                                               
[increasing/decreasing]  a sentence.    Deleting  Section 7  will                                                               
leave the current appeal rights  in place, particularly the basic                                                               
right to  appeal a sentence on  the grounds that it  is too long.                                                               
With  the  deletion of  Section  7,  he  remarked, he  would  [be                                                               
willing to] give the DOL what  it wants with regard to increasing                                                               
sentences as  the bill  currently proposes,  since accountability                                                               
protections will be in place.                                                                                                   
                                                                                                                                
REPRESENTATIVE GARA relayed that  he'd spent several days working                                                               
with Legislative  Legal and Research  Services, the OPA,  and the                                                               
PDA to come up with a way  to accomplish "these two goals and not                                                               
violate  Blakely," and  the response  he got  from all  he talked                                                             
with was  that Blakely won't  be violated by requiring  courts to                                                             
issue findings  and by allowing  the right to appeal  [a sentence                                                               
as excessive].                                                                                                                  
                                                                                                                                
2:31:58 PM                                                                                                                    
                                                                                                                                
MS. PARKES  said she supports Chair  McGuire's comments regarding                                                               
the  legislature's  authority  to  set ranges,  and  offered  her                                                               
belief  that  once  ranges  are  set,  no  further  findings  are                                                               
required, that in fact, if the bottom  of the range is set as the                                                               
standard without  findings of any  type, [then  issuing findings]                                                               
would be running afoul of Blakely.                                                                                            
                                                                                                                                
2:32:48 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE RALPH SAMUELS,  Alaska State Legislature, speaking                                                               
as the sponsor  of HB 78, companion bill to  SB 56, made comments                                                               
regarding the  original version  of SB  56 and  current law.   He                                                               
opined that CSSB  56 provides judges with a lot  of latitude, and                                                               
that if  [Section 7 is removed],  then every single case  will be                                                               
appealed, which  will engender  fiscal repercussions.   [Victims]                                                               
have  rights too  with regard  to sentencing  issues, he  pointed                                                               
out.  Representative  Samuels said he would  oppose any amendment                                                               
deleting Section  7, and offered  his belief that the  sponsor of                                                               
SB 56,  Senator Gene Therriault, Alaska  State Legislature, would                                                               
oppose it as well.                                                                                                              
                                                                                                                                
2:34:07 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE COGHILL  offered his  belief that  a lot  of cases                                                               
are "charge bargained," that such  is troublesome because victims                                                               
also feel the  weight of charge bargaining, and that  it's a huge                                                               
issue.    He relayed  his  understanding  that charge  bargaining                                                               
doesn't  even occur  until a  person has  been found  guilty, and                                                               
that at that time a judge has the ability to find mitigators.                                                                   
                                                                                                                                
MS. PARKES concurred.                                                                                                           
                                                                                                                                
REPRESENTATIVE  COGHILL  said  it  seems  like  under  SB  56,  a                                                               
defendant has significant rights all during the process.                                                                        
                                                                                                                                
MS. PARKES,  in response to  a question,  said that if  the state                                                               
has entered  into a  plea agreement with  a defendant,  the judge                                                               
can reject it.                                                                                                                  
                                                                                                                                
REPRESENTATIVE COGHILL opined that  the proposed sentencing range                                                               
does not  seem excessive as  long as the  right to appeal  is not                                                               
done  away  with  except  on  the  grounds  that  a  sentence  is                                                               
excessive.                                                                                                                      
                                                                                                                                
MS. PARKES  concurred with Representative  Coghill.   She pointed                                                               
out  that if  a judge  finds aggravators  and imposes  a sentence                                                               
above  the  standard  range,  then  the  limitation  proposed  in                                                               
Section 7 regarding appeals would not apply.                                                                                    
                                                                                                                                
2:38:02 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  ANDERSON opined  that  the bill  doesn't have  to                                                               
address only Blakely.                                                                                                         
                                                                                                                                
REPRESENTATIVE  GRUENBERG said  he  doesn't have  a problem  with                                                               
"these"  provisions  being  in  the  bill as  long  as  there  is                                                               
adequate  opportunity  to  consider  the  ramifications  of  each                                                               
particular section.                                                                                                             
                                                                                                                                
CHAIR  McGUIRE  mentioned  that   the  committee  would  soon  be                                                               
addressing  proposed amendments.   She  relayed that  one of  her                                                               
concerns about  the letter  of intent is  that it  should reflect                                                               
that the  bill is  doing more than  just complying  with Blakely.                                                             
She posited that this is an  opportunity as policy makers to look                                                               
at what  they want  to set as  appropriate sentencing  ranges for                                                               
judges to consider.                                                                                                             
                                                                                                                                
2:43:13 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG  suggested  that  perhaps  they  should                                                               
establish   a  sentencing   commission   to   consider  all   the                                                               
ramifications of  raising sentences, and provide  that commission                                                               
with  a due  date by  which it  must report  its findings  to the                                                               
legislature.    He  expressed  concern  about  rushing  the  bill                                                               
through  the  process, and  posed  the  question, "Aside  from  a                                                               
Blakely fix,  why are  we not  taking the  time to  do this  in a                                                             
really comprehensive manner?"                                                                                                   
                                                                                                                                
MS. PARKES  said she does  not agree that there  is a lot  in the                                                               
bill that doesn't pertain to Blakely.                                                                                         
                                                                                                                                
REPRESENTATIVE  GRUENBERG pointed  out,  however,  that the  bill                                                               
takes away a person's right to appeal.                                                                                          
                                                                                                                                
MS.  PARKES reiterated  her belief  that  the bill  is not  doing                                                               
that; rather,  the bill is  simply saying that a  sentence cannot                                                               
be reversed  on the grounds that  it's excessive as long  as it's                                                               
within the range  set by the legislature.  Noting  again that the                                                               
bill  is changing  presumptive  sentencing  terms to  presumptive                                                               
sentencing ranges,  she characterized  the change with  regard to                                                               
appeals as an appropriate, responsive change.  She remarked:                                                                    
                                                                                                                                
     I think  the most important  thing is ...  [that] right                                                                    
     now,  our  criminal  justice  system  literally  is  in                                                                    
     chaos:   we  have  uncertainty  with every  [sentence].                                                                    
     That's the rush.                                                                                                           
                                                                                                                                
REPRESENTATIVE GRUENBERG  countered, "But is it  in chaos because                                                               
of the right of appeal?"                                                                                                        
                                                                                                                                
MS. PARKES said no, that the  criminal justice system is in chaos                                                               
because of  Blakely, which the bulk  of SB 56 addresses.   That's                                                             
the  urgency.   Until  something  is in  place,  that chaos  will                                                               
continue.   She  went  on to  describe what  some  of that  chaos                                                               
entails:                                                                                                                        
                                                                                                                                
     [We have] judges making opposite  decisions; we have no                                                                    
     certainty;  everybody's  appealing; we've  got  defense                                                                    
     attorneys filing motions in one  case saying we have to                                                                    
     take  aggravators to  grand jury,  and then  in another                                                                    
     case  that  same  public  defender's  filing  a  motion                                                                    
     saying we can't legally take them to the grand jury.                                                                       
                                                                                                                                
2:46:13 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG said  he wants  to focus  just for  the                                                               
moment on  the right of  appeal, and characterized  the provision                                                               
pertaining to that as one of  the weaknesses in the bill.  Before                                                               
taking away  that right, he  asked, why  not ask a  commission to                                                               
consider the issue.                                                                                                             
                                                                                                                                
MS. PARKES  acknowledged that the  legislature has  the authority                                                               
to do that, as well as to take  out any piece of the bill that it                                                               
considers inappropriate.   However, she asked  that the committee                                                               
continue to consider complying with  Blakely expeditiously via SB                                                             
56 as a whole.                                                                                                                  
                                                                                                                                
2:47:05 PM                                                                                                                    
                                                                                                                                
CHAIR  McGUIRE suggested  that  the  committee begin  considering                                                               
proposed amendments.                                                                                                            
                                                                                                                                
REPRESENTATIVE  GARA  asked for  clarification  on  the issue  of                                                               
bargaining.                                                                                                                     
                                                                                                                                
MS.  PARKES  replied,  "There  are cases  that  are  only  charge                                                               
bargained,  there  are  cases  that   are  charge  and  sentenced                                                               
bargained, there  are [cases] that  are only  sentenced bargained                                                               
[and pled] as charged; so it can occur in all formations."                                                                      
                                                                                                                                
2:49:52 PM                                                                                                                    
                                                                                                                                
CHAIR  McGUIRE  made  a  motion   to  adopt  Amendment  1,  which                                                               
contained  a  purpose  statement  at   the  end  and  which  read                                                               
[original punctuation provided]:                                                                                                
                                                                                                                                
     Page  5,  line  19,  following "one  to  three  years;"                                                                
     insert:                                                                                                                    
                                                                                                                                
     a defendant  sentenced under this subparagraph  may, if                                                                
     the court finds it  appropriate, be granted a suspended                                                                
     imposition  of sentence  under AS  12.55.085  if, as  a                                                                
     condition   of  probation   under  AS   12.55.086,  the                                                                
     defendant  is  required  to serve  an  active  term  of                                                                
     imprisonment  within   the  range  specified   in  this                                                                
     subparagraph, unless the court  finds that a mitigation                                                                
     factor under AS 12.55.155 applies;                                                                                     
                                                                                                                                
                                                                                                                                
     Page 6, line 9 - 14                                                                                                        
                                                                                                                                
          Delete all material and insert the following"                                                                         
                                                                                                                                
     (g)       If a defendant is sentenced under (c), [(d)                                                                      
     1] , (d)  2, d (3), d  (4), [(e) 1], (e) 2,  (e) 3, (e)                                                            
     4,  or  (i)  of  this section,  except  to  the  extent                                                                
     permitted under AS 12.55.155 - 12.55.175,                                                                                  
                                                                                                                                
          [(1) imprisonment may not be suspended under AS                                                                       
     12.55.080;]                                                                                                                
                                                                                                                                
          [(2) i] (1) Imposition of sentence may not be                                                                     
     suspended under AS 12.55.085;                                                                                              
                                                                                                                                
          [(3)] (2) terms of imprisonment may not be                                                                        
     otherwise reduced.                                                                                                         
                                                                                                                                
     The  purpose  of  this amendment  is  to  maintain  the                                                                    
     court's  ability to  impose a  Suspended Imposition  of                                                                    
     Sentence (SIS) for a first  felony offender who commits                                                                    
     an eligible C  or B felony.  The bill  was not intended                                                                    
     to  make   a  change  in  current   SIS  practice;  the                                                                    
     amendments should restore the status quo.                                                                                  
                                                                                                                                
CHAIR McGUIRE offered her belief that Amendment 1 would correct                                                                 
the language in the bill regarding Suspended Imposition of                                                                      
Sentence (SIS).                                                                                                                 
                                                                                                                                
CHAIR McGUIRE asked whether there were any objections to                                                                        
Amendment 1.  There being none, Amendment 1 was adopted.                                                                        
                                                                                                                                
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 2,                                                                    
which read [original punctuation provided]:                                                                                     
                                                                                                                                
     Page 3 line 15 - page 4 line 9                                                                                             
                                                                                                                                
     Strike section 6                                                                                                           
                                                                                                                                
CHAIR McGUIRE asked whether there were any objections to                                                                        
Amendment 2.  There being none, Amendment 2 was adopted.                                                                        
                                                                                                                                
REPRESENTATIVE GARA made a motion to adopt Amendment 3, labeled                                                                 
24-LS0308\L.1, Luckhaupt, 1/28/05, which read:                                                                                  
                                                                                                                                
     Page 4, lines 10 - 17:                                                                                                     
          Delete all material.                                                                                                  
                                                                                                                                
     Renumber the following bill sections accordingly.                                                                          
                                                                                                                                
     Page 24, line 4:                                                                                                           
          Delete "Sections 1, 4, 6, 26, and 29 - 31"                                                                            
          Insert "Sections 1, 4, 6, 25, and 28 - 30"                                                                            
                                                                                                                                
     Page 24, lines 5 - 6:                                                                                                      
         Delete "Sections 2, 3, 5, 7 - 25, and 27 - 28"                                                                         
         Insert "Sections 2, 3, 5, 7- 24, and 26 - 27"                                                                          
                                                                                                                                
     Page 24, line 7:                                                                                                           
          Delete "secs. 8 - 21"                                                                                                 
          Insert "secs. 7 - 20"                                                                                                 
                                                                                                                                
REPRESENTATIVE COGHILL objected for the purpose of discussion.                                                                  
                                                                                                                                
REPRESENTATIVE GARA  indicated that  Amendment 3  deletes Section                                                               
7, thus retaining current law,  which, he opined, provides that a                                                               
judge  must state  on the  record, either  orally or  in writing,                                                               
his/her  reasons for  imposing a  sentence, and  provides that  a                                                               
defendant has  the right to appeal  a sentence as excessive.   He                                                               
offered  his belief  that  the  drafter is  of  the opinion  that                                                               
[adoption of Amendment  3] will not violate Blakely.   He went on                                                             
to say:                                                                                                                         
                                                                                                                                
     The  reason   why  judges  issue  findings   when  they                                                                    
     sentence somebody  is so  you know  that what  they did                                                                    
     was thought  out.   And it's so  that other  judges can                                                                    
     see how  similarly situated crimes have  been sentenced                                                                    
     in  the past.   So  you have  more sentence  uniformity                                                                    
     instead of sentence disparity.   If you let judges keep                                                                    
     their  reasons secret,  then you're  going to  not give                                                                    
     future  judges  guidance on  what  kind  of sentence  a                                                                    
     particular crime  should get.  So  by issuing findings,                                                                    
     you create this broad body  of a record, so people know                                                                    
     what  kind  of worst  conduct  justifies  what kind  of                                                                    
     worst sentence. ...                                                                                                        
                                                                                                                                
     It's  frankly also  useful to  people  who observe  the                                                                    
     court proceedings,  including victims, to have  a judge                                                                    
     go on the  record and ... say, "I think  this is a case                                                                    
     that justifies  a longer sentence  because I  think the                                                                    
     conduct was  particularly egregious."  And  I think ...                                                                    
     a victim, I think the  public, wants to hear somebody's                                                                    
     sentenced and  why somebody's  being sentenced  to what                                                                    
     their being  sentenced for; I  think they want  to hear                                                                    
     the reasons for  the punishment.  And so  it helps with                                                                    
     the  uniformity.   Frankly,  there  is  this aspect  of                                                                    
     fairness within the judicial process;  you want to know                                                                    
     that you're  dealing with people  fairly, ... and  so I                                                                    
     think it's fairer.                                                                                                         
                                                                                                                                
     I think  it results in more  uniform sentences, because                                                                    
     you would hate  to have a whole bunch of  people of one                                                                    
     race  always get  the five-year  sentence  and a  whole                                                                    
     bunch of people  of another race always  get the eight-                                                                    
     year sentence,  and never know  why.  At least  a judge                                                                    
     should go on  the record and say why, ...  and it's not                                                                    
     a burden  on a judge to  ask them; I think  that's just                                                                    
     doing  their job.   They're  supposed  to think  things                                                                    
     through, and I  don't think it hurts them  to make them                                                                    
     say ... how they reached their conclusion.                                                                                 
                                                                                                                                
REPRESENTATIVE GARA added:                                                                                                      
                                                                                                                                
     The  second part  [of Amendment  3] is,  requiring that                                                                    
     the same appeal rights that  we have today exist in the                                                                    
     future. ...  By issuing findings and  letting things go                                                                    
     up  on  appeal, the  [Alaska]  Court  of Appeals,  over                                                                    
     time, will develop  a body of law that  people can rely                                                                    
     on  in  issuing  the  proper sentence  in  the  future;                                                                    
     again,  it helps  with uniformity  because you'll  know                                                                    
     you'll go up  to the [Alaska] Court  of Appeals, you'll                                                                    
     see  that certain  kinds of  conduct  deserve a  longer                                                                    
     sentence, and,  since you'll  have this  written record                                                                    
     from the [Alaska] Court of  Appeals, I think it will be                                                                    
     helpful  to  everybody in  issuing  sentences.   And  I                                                                    
     think  it  might  actually   help  resolve  cases  more                                                                    
     quickly also by forcing plea bargains.                                                                                     
                                                                                                                                
     So  I  don't  think  there's anything  wrong  with  the                                                                    
     historic process we've had in  this nation of requiring                                                                    
     judges  to  say why  they're  doing  something and  [of                                                                    
     letting]  ... somebody  have their  basic  right to  an                                                                    
     appeal if  they think their  sentence is too  long. ...                                                                    
     My impression,  at least from  the limited work  that I                                                                    
     did in  ... criminal law, was  that [defendants] didn't                                                                    
     win [their]  sentence appeals too  often, but  at least                                                                    
     it  gives somebody  the  chance.   And  ... with  those                                                                    
     things,  ... then  I'll let  the state  change all  ...                                                                    
     sentences [as proposed in the bill]. ...                                                                                   
                                                                                                                                
     I think,  frankly, I'm being  pretty flexible  on this.                                                                    
     I'm  letting  you  replace  the  strict  term  and  I'm                                                                    
     letting you  implement this big  range, and  the reason                                                                    
     I'm   comfortable  letting   you  do   that,  with   my                                                                    
     amendment, is  because I know  at least the  judges are                                                                    
     forced  to think  things through,  because that's  what                                                                    
     requiring  them to  put their  findings  on the  record                                                                    
     gets them  to do, and  at least there's this  aspect of                                                                    
     fairness that allows the appeal to go forward.                                                                             
                                                                                                                                
     So  ... I  think, with  my  change, you  can have  your                                                                    
     range and  I don't think  it will radically  change the                                                                    
     sentencing numbers from  what we have today.   But once                                                                    
     you make the system  less accountable and don't require                                                                    
     findings  to  be put  on  the  record and  don't  allow                                                                    
     appeals, then  I think  the sentences  are going  to up                                                                    
     and up  and up.   And if  that's our intention,  then I                                                                    
     think we should just go  crime by crime and decide what                                                                    
     the appropriate sentence is with  a new bill instead of                                                                    
     doing it with a blanket bill like this.                                                                                    
                                                                                                                                
2:57:55 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  ANDERSON  offered  his belief  that  Amendment  3                                                               
could strip the  heart of the bill, and asked  the DOL to address                                                               
Representative Gara's points.                                                                                                   
                                                                                                                                
MS.  PARKES asked  whether Amendment  3 would  do anything  other                                                               
than delete Section 7.                                                                                                          
                                                                                                                                
REPRESENTATIVE GARA  indicated that  it would retain  current law                                                               
regarding  issuing  findings  and   appealing  sentences  on  the                                                               
grounds of excessiveness.                                                                                                       
                                                                                                                                
REPRESENTATIVE  GRUENBERG  offered   his  understanding  that  in                                                               
addition  to deleting  the  language of  Section  7, Amendment  3                                                               
makes conforming changes to the rest of the bill.                                                                               
                                                                                                                                
MS. PARKES said the DOL's  concern is that the legislature should                                                               
be setting the  sentencing range, rather than  the [Alaska] Court                                                               
of Appeals  just because a  judge doesn't say "the  magic words".                                                               
She offered an example of a  case that was remanded back to court                                                               
because the  Alaska Court of  Appeals felt that the  judge didn't                                                               
articulate his reasons for the  sentence well enough.  She opined                                                               
that once  sentence ranges are instituted,  adoption of Amendment                                                               
3 will  engender more appeals based  simply on the fact  that the                                                               
defendant got  sentenced at the  top of  the range instead  of at                                                               
the bottom.                                                                                                                     
                                                                                                                                
2:59:57 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  SAMUELS  opined  that  90 percent  of  cases  are                                                               
"dealt away  anyway," and thus  consistency will remain  in those                                                               
cases.   He  predicted  that  as soon  as  sentencing ranges  are                                                               
instituted, everyone will be appealing  his/her sentence if it is                                                               
above the  bottom of the range.   He went on  to remark, "Justice                                                               
delayed is justice denied," and  offered his belief that even for                                                               
what might  be considered a  simple case, the appeal  process can                                                               
last for  years and years.   He also opined that  the entire bill                                                               
provides a reasonable way of complying with Blakely.                                                                          
                                                                                                                                
REPRESENTATIVE  COGHILL indicated  that he  would be  maintaining                                                               
his objection to the adoption of Amendment 3.                                                                                   
                                                                                                                                
3:01:55 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG referred  to State  v. Browder,  a 1971                                                             
Alaska Supreme Court  case, and opined that both  it and Rozkydal                                                             
are on point.  He offered  his understanding that in Browder, the                                                             
state sought  appellate review  of a  lower court  decision, with                                                               
the question  being whether that  was permissible, since  at that                                                               
time   the   legislature   had   placed   substantial   statutory                                                               
restrictions on  the right of appeal.   In that case,  it was the                                                               
state's  right  of  appeal,  which was  much  narrower  than  the                                                               
defendant's  right of  appeal, that  was  at issue.   The  Alaska                                                               
Supreme Court said that even  though there was no statutory right                                                               
of appeal, the state had a right to file a petition for review.                                                                 
                                                                                                                                
REPRESENTATIVE  GRUENBERG surmised,  therefore, that  even though                                                               
an  appeal can  be specifically  limited, other  forms of  review                                                               
could  not  be,  and,  thus,  if  a  statute  were  construed  as                                                               
prohibiting the  court from  reviewing any  ruling in  a criminal                                                               
case, except  those rulings expressly made  appealable, then that                                                               
statute  would raise  serious constitutional  problems under  the                                                               
supremacy clause, which,  he opined, says that  the highest court                                                               
in the land is the supreme court.                                                                                               
                                                                                                                                
REPRESENTATIVE   GRUENBERG  asked,   "Does   this   not  pose   a                                                               
significant constitutional  question as to  the constitutionality                                                               
of the  language ...  on page  4, line  13?"   He said  that even                                                               
though that language doesn't specifically  use the term "appeal",                                                               
he  believes that  the  defendant  retains the  right  to file  a                                                               
petition for  review under  the Browder line  of authority.   The                                                             
more important question, he remarked,  is whether that provision,                                                               
if Amendment  3 is not  adopted, will create  an unconstitutional                                                               
statute   and  thus   engender  the   expenses  associated   with                                                               
determining its constitutionality.                                                                                              
                                                                                                                                
MS. PARKES offered her belief  that the 1968 Alaska Supreme Court                                                               
case,  Bear v.  State,  is  the ruling  case;  it  says that  the                                                             
legislature  has established,  via statute,  maximum and  minimum                                                               
sentences for each  offense, and that such are  not reviewable by                                                               
[the  Alaska Supreme  Court].   In response  to this  ruling, the                                                               
legislature, via  statute, specifically  gave the  Alaska Supreme                                                               
Court  the authority  to review  sentences,  and so  this is  the                                                               
statutory right  to review sentences  that is referred to  in the                                                               
Rozkydal  case.   She  concluded  by  saying  that based  on  her                                                             
understanding  of the  Bear  case, she  doesn't  think that  [the                                                             
language in Section 7] presents any constitutional issues.                                                                      
                                                                                                                                
3:06:42 PM                                                                                                                    
                                                                                                                                
CHAIR  McGUIRE  suggested  to Representative  Gara  that  in  the                                                               
interest of  time, he withdraw Amendment  3 and move it  again at                                                               
the bill's next hearing.                                                                                                        
                                                                                                                                
REPRESENTATIVE GARA withdrew Amendment 3.                                                                                       
                                                                                                                                
[CSSB 56, as amended twice, was held over.]                                                                                     

Document Name Date/Time Subjects