02/15/2012 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB165 | |
| SB186 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 165 | TELECONFERENCED | |
| += | SB 186 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
February 15, 2012
1:35 p.m.
MEMBERS PRESENT
Senator Hollis French, Chair
Senator Bill Wielechowski, Vice Chair
Senator John Coghill
MEMBERS ABSENT
Senator Joe Paskvan
Senator Lesil McGuire
COMMITTEE CALENDAR
SENATE BILL NO. 165
"An Act relating to property exemptions for retirement plans;
relating to pleadings, orders, liability, and notices under the
Uniform Probate Code; relating to the Alaska Principal and
Income Act; relating to the Alaska Uniform Transfers to Minors
Act; relating to the disposition of human remains; relating to
insurable interests for life insurance policies; relating to
transfers of individual retirement plans; relating to the
community property of married persons; and amending Rule 301(a),
Alaska Rules of Evidence."
- HEARD & HELD
SENATE BILL NO. 186
"An Act relating to persons found guilty but mentally ill;
relating to sentencing procedures for factors that may increase
the presumptive range or affect mandatory parole eligibility;
relating to the granting of probation; relating to procedures
for finding aggravating factors at sentencing; amending Rule
32.1, Alaska Rules of Criminal Procedure; and providing for an
effective date."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: SB 165
SHORT TITLE: PRINCIP.& INC/PROBATE/UTMA/RETIREMT/ETC.
SPONSOR(s): JUDICIARY
01/17/12 (S) READ THE FIRST TIME - REFERRALS
01/17/12 (S) JUD, FIN
02/01/12 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/01/12 (S) Heard & Held
02/01/12 (S) MINUTE(JUD)
02/15/12 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
BILL: SB 186
SHORT TITLE: SENTENCING/PROBATION/MENTALLY ILL
SPONSOR(s): JUDICIARY
02/01/12 (S) READ THE FIRST TIME - REFERRALS
02/01/12 (S) JUD, FIN
02/10/12 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/10/12 (S) Heard & Held
02/10/12 (S) MINUTE(JUD)
02/15/12 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
WITNESS REGISTER
DAVID SHAFTEL, Attorney at Law
Anchorage, AK
POSITION STATEMENT: Explained amendments to SB 165.
BETH CHAPMAN, Attorney at Law
Juneau, AK
POSITION STATEMENT: Explained amendments to SB 165.
LESLIE HOUSTON, Director
Division of Administrative Services
Department of Corrections (DOC)
Juneau, AK
POSITION STATEMENT: Offered to follow up with information about
total numbers of criminal cases in FY11.
ANNE CARPENETI, Attorney V
Criminal Division
Department of Law (DOL)
Juneau, AK
POSITION STATEMENT: Commented on proposed amendments to SB 186.
ACTION NARRATIVE
1:35:25 PM
CHAIR HOLLIS FRENCH called the Senate Judiciary Standing
Committee meeting to order at 1:35 p.m. Present at the call to
order were Senators Coghill, Wielechowski and Chair French.
Senators Paskvan and McGuire were excused.
SB 165-PRINCIP.& INC/PROBATE/UTMA/RETIREMT/ETC.
1:40:02 PM
CHAIR FRENCH announced the consideration of SB 165. [CSSB 165,
labeled 27-LS0819\D was before the committee.]
CHAIR FRENCH moved Amendment 1, labeled 27-LS0819\D.1, and
objected for discussion purposes. He asked Mr. Shaftel to
explain the amendment.
A M E N D M E N T 1
OFFERED IN THE SENATE BY SENATOR FRENCH
TO: CSSB 165( ), Draft Version "D"
Page 23, lines 10 - 11:
Delete "has the meaning given in AS 13.36.390"
Insert "means a person, including a person for
whom a fiduciary or agent is acting, who executes
the trust instrument"
1:40:59 PM
DAVID SHAFTEL, Attorney at Law, said his understanding is that
this amendment was requested by a representative for an
association of insurance companies. It was designed to prevent
"stranger-owned" life insurance, and addresses an industry
concern about people who invest in life insurance policies on
individuals with whom they have no relationship. Mr. Shaftel
said the group of trust attorneys that worked on the bill had no
objection to the amendment.
CHAIR FRENCH highlighted an email from Brenda Nation who
represents the American Council of Life Insurers urging this
language. The trade group supports the more narrow definition
provided in the amendment. .
1:45:16 PM
SENATOR COGHILL summarized his understanding of the amendment.
The term settlor covers a wide range of contractual
relationships and the amendment clarifies that for this purpose
it means a trustee that has a specific agent requirement.
CHAIR FRENCH agreed that was a good common-sense reading. He
asked Mr. Shaftel if there was anything incorrect about that
characterization.
MR. SHAFTEL had no objection.
SENATOR WIELECHOWSKI asked if this would have an impact on
divorcees.
MR. SHAFTEL replied there is wide variability as to what the
parties will negotiate in a divorce setting. If the husband and
wife have a policy that is in a life insurance trust, that often
ends up being part of the property that the court considers and
divides.
SENATOR WIELECHOWSKI asked if an "ex" would still be considered
family.
MR. SHAFTEL answered yes.
CHAIR FRENCH withdrew his objection and announced that without
further objection Amendment 1 was adopted.
1:49:34 PM
CHAIR FRENCH moved Amendment 2, labeled 27-LS0819\D.2, and
objected for discussion purposes. He asked Mr. Shaftel for an
explanation.
AMENDMENT 2
OFFERED IN THE SENATE BY SENATOR FRENCH
TO: CSSB 165( ), Draft Version "D"
Page 14, line 29, through page 15, line 29:
Delete all material.
Insert new bill sections to read:
"* Sec. 23. AS 13.46.190 is amended to read:
Sec. 13.46.190. Termination of custodianship. The
custodian shall transfer in an appropriate manner the
custodial property to the minor or to the minor's
estate upon the earlier of the
(1) minor's attainment of 21 years of age
with respect to property transferred under
AS 13.46.030 or 13.46.040 unless the time of transfer
of the custodial property to the minor is changed
under AS 13.46.195 or 13.46.197;
(2) minor's attainment of 18 years of age
with respect to property transferred under
AS 13.46.050 or 13.46.060, unless the time of transfer
of the custodial property to the minor is changed
under AS 13.46.197;
(3) time specified in the transfer under
AS 13.46.080 if the time of transfer of the custodial
property to the minor is changed under AS 13.46.195 or
13.46.197; or
(4) minor's death.
* Sec. 24. AS 13.46 is amended by adding a new
section to read:
Sec. 13.46.197. Extension of custodial term by
custodian. (a) A custodian may extend the custodial
term under this section to an age older than the age
that is specified by this chapter or a transferring
document made under AS 13.46.080, subject to the right
of the minor to compel immediate distribution under
(c) of this section.
(b) To extend the custodial term under (a) of
this section, the custodian shall give the minor
written notice of the custodian's intent to extend the
custodial term. The notice must specify the duration
of the extension by indicating the new custodial term
and must inform the minor of the minor's right to
compel immediate distribution under (c) of this
section. The custodian shall give the notice during
the later of the following periods:
(1) the six-month period that precedes the
last day of the custodial term; or
(2) the six-month period that begins on the
minor's 18th birthday.
(c) Rather than permit the extension of the
custodial term, the minor may compel immediate
distribution of all or part of the custodial property
by giving written notice to the custodian
(1) during the six-month period that begins
on the day that is the last day of the current
custodial term; or
(2) within 90 days after receiving the
custodian's notice under (b) of this section.
(d) If a minor does not exercise the minor's
right to compel distribution under (c) of this
section, the custodial term shall be extended as
indicated in the custodian's notice given under (b) of
this section, and the minor may not compel the
immediate distribution of custodial property before
the end of the custodial term, as extended.
(e) A custodian may extend the custodial term
more than once under this section.
(f) In this section, "custodial term" means the
period of time provided in or allowed by this chapter
during which the custodian is directed to hold
custodial property until the property is transferred
to the minor.
* Sec. 25. AS 13.46.990(11) is amended to read:
(11) "minor" means an individual who has
not attained the age of 18 years, except that when
used in reference to the beneficiary for whose benefit
custodial property is held or to be held, "minor"
means an individual who has not attained the age at
which the custodian is required under AS 13.46.190,
[AND] 13.46.195, and 13.46.197 to transfer the
custodial property to the beneficiary;"
Page 26, line 30:
Delete "AS 13.46.495(g);"
MR. SHAFTEL stated that this amendment addresses a valid point
that Senator McGuire raised during the last hearing. She did not
want to restrict the time provisions that allow funds in a
Uniform Transfer to Minors Act (UTMA) account to stay in that
account. He said the group of trust attorneys agreed with her
point and decided not to amend AS 13.46.195.
The amendment adds a new Sec. 13.46.197 to deal with the
extension of the custodial term by the custodian. It essentially
says that the extension can be any period of time as long as the
beneficiary is given notice by the custodian and given the right
to decline the extension. If the beneficiary agrees, the UTMA
account continues for a specified extended period. There can
also be more than one extension.
1:54:59 PM
CHAIR FRENCH highlighted that the extension is always subject to
the right of the beneficiary to object and compel distribution,
provided he or she does so at the time that the extension is
under consideration.
MR. SHAFTEL said that's correct.
CHAIR FRENCH removed his objection and announced that without
further objection Amendment 2 was adopted.
1:55:29 PM
CHAIR FRENCH moved Amendment 3, labeled 27-LS0819\D.3, and
objected for discussion purposes. He asked Mr. Shaftel for an
explanation.
AMENDMENT 3
OFFERED IN THE SENATE BY SENATOR FRENCH
TO: CSSB 165( ), Draft Version "D"
Page 1, line 3, following "Code;":
Insert "relating to the appointment of trust
property;"
Page 7, following line 5:
Insert new bill sections to read:
"* Sec. 6. AS 13.36.157 is repealed and reenacted
to read:
Sec. 13.36.157. Exercise of power of appointment.
(a) An authorized trustee with unlimited discretion to
invade trust principal may appoint part or all of that
principal to a trustee of an appointed trust for, and
only for the benefit of, a current beneficiary of the
invaded trust to the exclusion of other current
beneficiaries. A permissible appointee of a power of
appointment held by a beneficiary of the appointed
trust is not considered a beneficiary of the appointed
trust. The successor and remainder beneficiaries of
the appointed trust may be one or more of the
successor and remainder beneficiaries of the invaded
trust to the exclusion of other successor and
remainder beneficiaries.
(b) An authorized trustee exercising the power
under (a) of this section may grant a discretionary
power of appointment, including a presently
exercisable power of appointment, in the appointed
trust to one or more of the current beneficiaries of
the invaded trust, to the extent that the beneficiary
who is granted the power to appoint is authorized to
receive the principal outright under the terms of the
invaded trust. A permissible appointee is not limited
to the beneficiaries of the invaded trust.
(c) Under (a) and (b) of this section, if the
beneficiaries of the invaded trust are described by a
class, the beneficiaries of the appointed trust may
include present or future members of that class.
(d) An authorized trustee with the power to
invade trust principal but without unlimited
discretion may appoint part or all of the principal of
the trust to a trustee of an appointed trust if the
current beneficiaries of the appointed trust are the
same as the current beneficiaries of the invaded trust
and the successor and remainder beneficiaries of the
appointed trust are the same as the successor and
remainder beneficiaries of the invaded trust. The
shares of the current beneficiaries of the appointed
trust must be the same as the shares of the current
beneficiaries of the invaded trust, and the shares of
the successor and remainder beneficiaries of the
appointed trust must be the same as the shares of the
successor and remainder beneficiaries of the invaded
trust.
(e) If the authorized trustee exercises the
power under (d) of this section, the appointed trust
must include the same standard authorizing the trustee
to distribute the income or invade the principal of
the appointed trust as the standard in the invaded
trust. However, the standard authorizing the trustee
to distribute the income or invade the principal of
the appointed trust may be changed if the trustee
appoints to an appointed trust that is a special needs
trust, a pooled trust, or a third-party trust.
(f) If an authorized trustee exercises the power
under (d) and (e) of this section to extend the
duration of the appointed trust beyond the duration of
the invaded trust for any period after the invaded
trust would have otherwise terminated under the
provisions of the invaded trust, the appointed trust,
in addition to the language required to be included in
the appointed trust under (e) of this section, may
also provide an additional trustee with unlimited
discretion to invade the principal of the appointed
trust during the extended duration. The trustee with
unlimited discretion continues to be subject to the
restrictions in (d) - (h) of this section.
(g) Under (d) - (f) of this section, if the
beneficiaries of the invaded trust are described by a
class, the beneficiaries of the appointed trust
include present or future members of that class.
(h) If the authorized trustee exercises the
power under (d) - (g) of this section and if the
invaded trust grants a power of appointment to a
beneficiary of the trust, the appointed trust must
grant this power of appointment in the appointed
trust, and the class of permissible appointees shall
be the same as in the invaded trust.
* Sec. 7. AS 13.36 is amended by adding new
sections to read:
Sec. 13.36.158. Additional provisions relating to
exercise of a power of appointment. (a) An exercise of
the power to invade trust principal under AS 13.36.157
is the exercise of a special power of appointment.
(b) The appointed trust to which an authorized
trustee appoints the assets of the invaded trust under
AS 13.36.157 may have a duration that is longer than
the duration set out in the invaded trust.
(c) If an authorized trustee has unlimited
discretion to invade the principal of a trust and if
the same trustee or another trustee has a power, not
dependent on unlimited discretion, to invade principal
under the trust instrument, the authorized trustee
having unlimited discretion may exercise the power of
appointment under AS 13.36.157(a) - (c).
(d) An authorized trustee may exercise the power
to appoint in favor of an appointed trust under
AS 13.36.157 whether or not there is a current need to
invade principal under the terms of the invaded trust.
(e) An authorized trustee exercising the power
under AS 13.36.157 - 13.36.159 has a fiduciary duty to
exercise the power in the best interests of one or
more proper objects of the exercise of the power and
as a prudent person would exercise the power under the
prevailing circumstances. The authorized trustee may
not exercise the power under AS 13.36.157 - 13.36.159
if there is substantial evidence of a contrary intent
of the settlor and it cannot be established that the
settlor would be likely to have changed this intention
under the circumstances existing at the time the
trustee exercises the power. The provisions of the
invaded trust may not be viewed alone as substantial
evidence of a contrary intent of the settlor unless
the invaded trust expressly prohibits the exercise of
the power in the manner intended by the authorized
trustee.
(f) The provisions of AS 13.36.157 - 13.36.159
may not be construed to abridge the right of a trustee
to appoint property further in trust under the terms
of the governing instrument of a trust, another
provision of law, or common law, or as directed by a
court having jurisdiction over the trust.
(g) Nothing in AS 13.36.157 - 13.36.159 creates
or implies a duty to exercise a power to invade
principal. An inference of impropriety may not be
made, and liability is not incurred, as a result of an
authorized trustee not exercising the power conferred
under AS 13.36.157.
(h) A power authorized by AS 13.36.157 may be
exercised, subject to the provisions of
AS 13.36.159(a), unless expressly prohibited by the
terms of the governing instrument. A general
prohibition against amending or revoking the invaded
trust and a provision that constitutes a spendthrift
clause do not preclude the exercise of a power under
AS 13.36.157.
(i) An authorized trustee may not exercise a
power authorized by AS 13.36.157 to
(1) reduce, limit, or modify a
beneficiary's current right to a mandatory
distribution of income or principal, a mandatory
annuity or unitrust interest, a right to withdraw a
percentage of the value of the trust, or a right to
withdraw a specified dollar amount, if the mandatory
right has come into effect with respect to the
beneficiary, but the mandatory right may be reduced,
limited, or modified during any extended duration of
the trust; however, notwithstanding the other
provisions in this paragraph, but subject to the other
limitations in AS 13.36.157 - 13.36.159, an authorized
trustee may exercise a power authorized by
AS 13.36.157 to appoint to an appointed trust that is
a special needs trust, a pooled trust, or a third-
party trust;
(2) decrease or indemnify against a
trustee's liability or exonerate a trustee from
liability for failure to exercise reasonable care,
diligence, and prudence unless the court having
jurisdiction over the trust specifies otherwise;
(3) eliminate a provision granting another
person the right to remove or replace the authorized
trustee exercising the power under AS 13.36.157 unless
a court having jurisdiction over the trust specifies
otherwise;
(4) fix as binding and conclusive the value
of an asset for purposes of distribution, allocation,
or otherwise; or
(5) jeopardize
(A) the deduction or exclusion originally
claimed with respect to a contribution to the invaded
trust that qualified for the annual exclusion under 26
U.S.C. 2503(b), the marital deduction under 26 U.S.C.
2056(a) or 26 U.S.C. 2523(a), or the charitable
deduction under 26 U.S.C. 170(a), 26 U.S.C. 642(c), 26
U.S.C. 2055(a), or 26 U.S.C. 2522(a) (Internal Revenue
Code);
(B) the qualification of a transfer as a
direct skip under 26 U.S.C. 2642(c) (Internal Revenue
Code);
(C) the election to treat a corporation as
a subchapter S corporation under 26 U.S.C. 1362
(Internal Revenue Code); or
(D) another specific tax benefit for which
a contribution originally qualified for income, gift,
estate, or generation-skipping transfer tax purposes
under 26 U.S.C. (Internal Revenue Code).
(j) Before exercising the power under
AS 13.36.157, an authorized trustee shall consider the
tax implications of the exercise of the power.
(k) An authorized trustee may not exercise a
power described in AS 13.36.157 - 13.36.159 in
violation of the limitations on validity in
AS 34.27.051 or 34.27.100, or the restrictions on
exercising certain powers in AS 13.36.153 by trustees
who are not independent. A violation voids the entire
exercise of the power unless the exercise is modified
to correct the violation.
(l) Unless a court having jurisdiction over the
trust directs otherwise, an authorized trustee may not
exercise a power authorized by AS 13.36.157 to change
the provisions regarding the determination of the
compensation of a trustee. The commissions or other
compensation payable to the trustees of the invaded
trust may continue to be paid to the trustees of the
appointed trust during the term of the appointed trust
and shall be determined in the same manner as for the
invaded trust.
(m) A trustee may not receive a payment, a
commission, or other compensation for appointing
property from the invaded trust to an appointed trust
under AS 13.36.157. However, a trustee may be
compensated at an hourly rate for the time spent
considering and implementing the exercise of a power
to appoint.
(n) Unless the invaded trust expressly provides
otherwise, the provisions in AS 13.36.157 - 13.36.159
apply to
(1) a trust, whether testamentary or inter
vivos, governed by the laws of this state, including a
trust whose governing law has been changed to the laws
of this state; and
(2) a trust that has a trustee who is an
individual domiciled in this state, or a trustee that
is an entity having an office in this state, if a
majority of the trustees select this state as the
location for the primary administration of the trust
and the selection is made by an instrument in writing
that is signed and acknowledged by a majority of the
trustees; the instrument exercising this selection
shall be kept with the records of the invaded trust.
(o) A power to pay principal that includes words
such as "best interests," "welfare," "comfort," or
"happiness" is not considered a limitation or
modification of the right to distribute principal.
(p) In this section, "internal revenue code"
means the Internal Revenue Code of the United States
(26 U.S.C.) as it exists on the effective date of this
Act and as it is amended from time to time;
Sec. 13.36.159. Implementation of power of
appointment. (a) Unless the authorized trustee
provides otherwise, the appointment of
(1) all of the assets comprising the
principal of the invaded trust to an appointed trust
includes subsequently discovered assets of the invaded
trust and undistributed principal of the invaded trust
acquired after the appointment to the appointed trust;
(2) a part but not all of the assets
comprising the principal of the invaded trust to an
appointed trust may not include subsequently
discovered assets belonging to the invaded trust or
principal paid to or acquired by the invaded trust
after the appointment to the appointed trust; those
subsequently discovered assets remain the assets of
the invaded trust.
(b) The exercise of the power to appoint to an
appointed trust under AS 13.36.157 shall be evidenced
by an instrument in writing that is signed, dated, and
acknowledged by the authorized trustee. The exercise
of the power is effective 30 days after the date of
service of the instrument as specified in (d) of this
section, unless the persons entitled to notice consent
in writing to a sooner effective date.
(c) An authorized trustee may exercise the power
authorized by AS 13.36.157 without the consent of the
settlor or a person interested in the invaded trust
and without court approval. However, an authorized
trustee may seek court approval for the exercise. When
seeking court approval, notice shall be sent to all
qualified beneficiaries.
(d) A copy of the invaded trust, the appointed
trust, and the instrument exercising the power shall
be delivered to
(1) the settlor, if living, of the invaded
trust;
(2) a person having the right, under the
terms of the invaded trust, to remove or replace the
authorized trustee exercising the power under
AS 13.36.157; and
(3) a qualified beneficiary or a person who
may represent and bind the qualified beneficiary under
AS 13.06.120.
(e) Notice under (d) of this section to a
qualified beneficiary is not required if the settlor
has exempted the authorized trustee from providing
notification or information to beneficiaries under
AS 13.36.080(b). Notice under (d) of this section
shall be provided under AS 13.06.110.
(f) The instrument exercising the power must
state whether the appointment is of all or part of the
assets comprising the principal of the invaded trust
and, if a part, the approximate percentage of the
value of the principal of the invaded trust that is
the subject of the appointment.
(g) A person entitled to notice under (d) of
this section may object to the trustee's exercise of
the power under AS 13.36.157 - 13.36.159 by serving a
written notice of objection on the trustee before the
effective date of the exercise of the power. The
failure to object does not constitute consent.
(h) The receipt of a copy of the instrument
exercising the power does not, before the expiration
of the limitation period in AS 13.36.100 with respect
to a report disclosing the exercise, affect the right
of a qualified beneficiary to object to the exercise
of the power under AS 13.36.157 and to request the
court to modify or to reverse the exercise.
(i) A copy of the instrument exercising the
power shall be kept with the records of the invaded
trust.
* Sec. 8. AS 13.36.215 is amended by adding a new
subsection to read:
(b) In AS 13.36.157 - 13.36.159,
(1) "appointed trust" means an irrevocable
trust that receives principal from an invaded trust
under AS 13.36.157, including a new trust created by
the settlor of the invaded trust or by the trustees,
acting in that capacity, of the invaded trust;
(2) "authorized trustee" means, with regard
to an invaded trust, a trustee with the authority to
pay trust principal to or for a current beneficiary;
in this paragraph, "trustee" does not include a
settlor or a beneficiary to whom income or principal
must be paid, currently or in the future, or who is or
will become eligible to receive a distribution of
income or principal in the discretion of the trustee
other than by the exercise of a power of appointment
held in a nonfiduciary capacity;
(3) "current beneficiary" means a person
or, with regard to a class of persons, a person who is
or will become a member of the class, to whom a
trustee may distribute principal when exercising a
power under AS 13.36.157;
(4) "invade" means pay directly to the
beneficiary of a trust or apply to the benefit of a
beneficiary;
(5) "invaded trust" means an irrevocable
inter vivos or testamentary trust the principal of
which is appointed under AS 13.36.157;
(6) "pooled trust" means a trust described
in 42 U.S.C. 1396p(d)(4)(C) that meets the
requirements for a pooled trust under the regulations
of this state relating to the Medicaid treatment of
trusts;
(7) "principal" means the assets of a
trust, including accrued and accumulated income, but
excluding income that is currently required to be
distributed;
(8) "special needs trust" means a trust
under 42 U.S.C. 1396p(d)(4)(A) that meets the
requirements for a special needs trust under the
regulations of this state relating to the Medicaid
treatment of trusts;
(9) "third-party trust" means a trust that
is
(A) established by a third party with the
assets of the third party to provide for supplemental
needs for a person eligible when the trust is created
or at a future time for needs-based public assistance;
and
(B) exempt from the provisions of the
regulations of this state relating to the Medicaid
treatment of trusts;
(10) "unlimited discretion" means the
unlimited right to distribute principal that is not
modified in any manner."
Renumber the following bill sections accordingly.
Page 27, line 3:
Delete "sec. 31"
Insert "sec. 34"
Page 27, line 5:
Delete "sec. 31"
Insert "sec. 34"
Page 27, following line 13:
Insert a new subsection to read:
"(b) AS 13.36.157, repealed and reenacted by
sec. 6 of this Act, AS 13.36.158 and 13.36.159,
enacted by sec. 7 of this Act, and AS 13.36.215(5),
enacted by sec. 8 of this Act, apply to a trust that
exists before, on, or after the effective date of this
Act."
Reletter the following subsection accordingly.
Page 27, line 14:
Delete "sec. 28"
Insert "sec. 31"
Page 27, line 20:
Delete "sec. 31"
Insert "sec. 34"
Page 27, line 21:
Delete "sec. 35"
Insert "sec. 38"
MR. SHAFTEL deferred to Ms. Chapman for an explanation.
1:56:12 PM
BETH CHAPMAN, Attorney at Law, stated that she has practiced in
Juneau for the past 24 years, specializing in trusts and
estates. She explained that the proposed amendment revises the
current statute that codifies a trustee's common law powers to
make amendments to trusts in certain circumstances. Alaska was
the second state to adopt such a provision, following the New
York model. Since then 13 states have adopted similar
provisions. Last year the New York Legislature amended their
statute, and this provision models that change.
The most significant changes relate to notice to beneficiaries.
Under the current statute, a trustee who decides to extend the
term of a trust has no statutory requirement to provide notice
of that extension to the beneficiaries. This provision requires
that notice and that the opportunity to object be given to the
beneficiaries. The objection itself will not prevent the
extension from going forward, but the beneficiary would have the
option to seek a court order regarding the extension or
modification.
The other changes relate to when the trustee's authority is
limited by a standard. For example, many trusts limit a
trustee's authority to making distributions to a beneficiary for
health, education, support and maintenance. Under the current
law, it's unclear whether that standard could be changed and to
what extent the beneficiary's interest in the trust could be
limited. This provision provides that when extending the term of
the trust the trustee must include the same beneficiaries and
the same standard for distributions, unless the trust is being
changed to protect a beneficiary's rights to public assistance.
2:00:53 PM
SENATOR COGHILL asked if there had been court challenges when
somebody tried to exercise this unlimited authority.
MS. CHAPMAN replied not to her knowledge.
CHAIR FRENCH asked for a layman's description of the term "power
of appointment" as it's used in the bill.
MS. CHAPMAN responded that in this context it means that the
trustee has the authority to decide who and how assets are to be
received from a trust, subject to the limitations on the
authority stated in the trust.
SENATOR COGHILL asked if court challenges made this language
necessary.
MS. CHAPMAN replied she was not aware of any challenges. In
fact, it will probably minimize challenges because there will be
specific notice provisions and time limits for giving the
beneficiary the right to object. Also, it lays out the standard
for objecting to the trustee's exercise of the authority.
SENATOR COGHILL said his expectation is that plenty of notice is
given and that the explanation of the rights and authorities is
clear.
MS. CHAPMAN said 30-day notice is required, which is the
standard when notices are given in other trusts, such as rights
of withdrawals.
CHAIR FRENCH asked if there are trust attorneys that would not
support these provisions.
MS. CHAPMAN replied this has been discussed among the estate
planning community for years and each year additional states
adopt these provisions. This builds flexibility into
custodianship accounts thereby reducing the need to go to court,
which can be costly. She concluded that this was an improvement
to the current statute because it provides more protection for
beneficiaries and a "roadmap" for attorneys who may not practice
in this area.
2:05:50 PM
CHAIR FRENCH removed his objection and announced that without
further objection, Amendment 3 was adopted
CHAIR FRENCH closed public testimony and held SB 165 in
committee.
SB 186-SENTENCING/PROBATION/MENTALLY ILL
2:06:55 PM
CHAIR FRENCH announced the consideration of SB 186. He noted
that an amendment from Senator Coghill was discussed during the
last hearing but no formal action was taken.
At ease from 2:07:31 p.m. to 2:07:54 p.m.
CHAIR FRENCH asked Senator Coghill to move the amendment and
said he would object for discussion purposes.
2:08:07 PM
SENATOR COGHILL moved Amendment 1, labeled 27-LS0811\I.1.
CHAIR FRENCH objected.
AMENDMENT 1
OFFERED IN THE SENATE BY SENATOR COGHILL
TO: SB 186
Page 1, line 1, following "Act":
Insert "relating to property crimes;"
Page 1, following line 6:
Insert new bill sections to read:
"* Section 1. AS 11.46.130(a) is amended to read:
(a) A person commits the crime of theft in the
second degree if the person commits theft as defined
in AS 11.46.100 and
(1) the value of the property or services
is $1,500 [$500] or more but less than $25,000;
(2) the property is a firearm or explosive;
(3) the property is taken from the person
of another;
(4) the property is taken from a vessel and
is vessel safety or survival equipment;
(5) the property is taken from an aircraft
and the property is aircraft safety or survival
equipment;
(6) the value of the property is $250 [$50]
or more but less than $1,500 [$500] and, within the
preceding five years, the person has been convicted
and sentenced on two or more separate occasions in
this or another jurisdiction of
(A) an offense under AS 11.46.120, or an
offense under another law or ordinance with similar
elements;
(B) a crime set out in this subsection or
an offense under another law or ordinance with similar
elements;
(C) an offense under AS 11.46.140(a)(1), or
an offense under another law or ordinance with similar
elements; or
(D) an offense under AS 11.46.220(c)(1) or
(c)(2)(A), or an offense under another law or
ordinance with similar elements; or
(7) the property is an access device.
* Sec. 2. AS 11.46.140(a) is amended to read:
(a) A person commits the crime of theft in the
third degree if the person commits theft as defined in
AS 11.46.100 and
(1) the value of the property or services
is $250 [$50] or more but less than $1,500 [$500]; or
(2) [REPEALED
(3)] the value of the property is less than
$250 [$50] and, within the past five years, the person
has been convicted and sentenced on two or more
separate occasions in this or another jurisdiction of
theft or concealment of merchandise, or an offense
under another law or ordinance with similar elements.
* Sec. 3. AS 11.46.150(a) is amended to read:
(a) A person commits the crime of theft in the
fourth degree if the person commits theft as defined
in AS 11.46.100 and the value of the property or
services is less than $250 [$50].
* Sec. 4. AS 11.46.220(c) is amended to read:
(c) Concealment of merchandise is
(1) a class C felony if
(A) the merchandise is a firearm;
(B) the value of the merchandise is $1,500
[$500] or more; or
(C) the value of the merchandise is $250
[$50] or more but less than $1,500 [$500] and, within
the preceding five years, the person has been
convicted and sentenced on two or more separate
occasions in this or another jurisdiction of
(i) the offense of concealment of
merchandise under this paragraph or (2)(A) of this
subsection, or an offense under another law or
ordinance with similar elements; or
(ii) an offense under AS 11.46.120,
11.46.130, or 11.46.140(a)(1), or an offense under
another law or ordinance with similar elements;
(2) a class A misdemeanor if
(A) the value of the merchandise is $250
[$50] or more but less than $1,500 [$500]; or
(B) the value of the merchandise is less
than $250 [$50] and, within the preceding five years,
the person has been convicted and sentenced on two or
more separate occasions of the offense of concealment
of merchandise or theft in any degree, or an offense
under another law or ordinance with similar elements;
(3) a class B misdemeanor if the value of
the merchandise is less than $250 [$50].
* Sec. 5. AS 11.46.260(b) is amended to read:
(b) Removal of identification marks is
(1) a class C felony if the value of the
property on which the serial number or identification
mark appeared is $1,500 [$500] or more;
(2) a class A misdemeanor if the value of
the property on which the serial number or
identification mark appeared is $250 [$50] or more but
less than $1,500 [$500];
(3) a class B misdemeanor if the value of
the property on which the serial number or
identification mark appeared is less than $250 [$50].
* Sec. 6. AS 11.46.270(b) is amended to read:
(b) Unlawful possession is
(1) a class C felony if the value of the
property on which the serial number or identification
mark appeared is $1,500 [$500] or more;
(2) a class A misdemeanor if the value of
the property on which the serial number or
identification mark appeared is $250 [$50] or more but
less than $1,500 [$500];
(3) a class B misdemeanor if the value of
the property on which the serial number or
identification mark appeared is less than $250 [$50].
* Sec. 7. AS 11.46.280(d) is amended to read:
(d) Issuing a bad check is
(1) a class B felony if the face amount of
the check is $25,000 or more;
(2) a class C felony if the face amount of
the check is $1,500 [$500] or more but less than
$25,000;
(3) a class A misdemeanor if the face
amount of the check is $250 [$50] or more but less
than $1,500 [$500];
(4) a class B misdemeanor if the face
amount of the check is less than $250 [$50].
* Sec. 8. AS 11.46.285(b) is amended to read:
(b) Fraudulent use of an access device is
(1) a class B felony if the value of the
property or services obtained is $25,000 or more;
(2) a class C felony if the value of the
property or services obtained is $1,500 [$50] or more
but less than $25,000;
(3) a class A misdemeanor if the value of
the property or services obtained is less than $1,500
[$50].
* Sec. 9. AS 11.46.295 is amended to read:
Sec. 11.46.295. Prior convictions. For purposes
of considering prior convictions in prosecuting a
crime of theft under AS 11.46.130(a)(6) or
11.46.140(a)(2) [11.46.140(a)(3)], or in prosecuting
the crime of concealment of merchandise under
AS 11.46.220(c), a conviction for an offense under
another law or ordinance with similar elements is a
conviction of an offense having elements similar to
those of an offense defined as such under Alaska law
at the time the offense was committed. The court shall
consider the date of a prior conviction as occurring
on the date that sentence is imposed for the prior
offense.
* Sec. 10. AS 11.46.360(a) is amended to read:
(a) A person commits the crime of vehicle theft
in the first degree if, having no right to do so or
any reasonable ground to believe the person has such a
right, the person drives, tows away, or takes
(1) the car, truck, motorcycle, motor home,
bus, aircraft, or watercraft of another;
(2) the propelled vehicle of another and
(A) the vehicle or any other property of
another is damaged in a total amount of $1,500 [$500]
or more;
(B) the owner incurs reasonable expenses as
a result of the loss of use of the vehicle, in a total
amount of $1,500 [$500] or more; or
(C) the owner is deprived of the use of the
vehicle for seven days or more;
(3) the propelled vehicle of another and
the vehicle is marked as a police or emergency
vehicle; or
(4) the propelled vehicle of another and,
within the preceding seven years, the person was
convicted under
(A) this section or AS 11.46.365;
(B) former AS 11.46.482(a)(4) or (5);
(C) former AS 11.46.484(a)(2);
(D) AS 11.46.120 - 11.46.140 of an offense
involving the theft of a propelled vehicle; or
(E) a law or ordinance of this or another
jurisdiction with elements substantially similar to
those of an offense described in (A) - (D) of this
paragraph.
* Sec. 11. AS 11.46.482(a) is amended to read:
(a) A person commits the crime of criminal
mischief in the third degree if, having no right to do
so or any reasonable ground to believe the person has
such a right,
(1) with intent to damage property of
another, the person damages property of another in an
amount of $1,500 [$500] or more;
(2) the person recklessly creates a risk of
damage in an amount exceeding $100,000 to property of
another by the use of widely dangerous means; or
(3) the person knowingly
(A) defaces, damages, or desecrates a
cemetery or the contents of a cemetery or a tomb,
grave, or memorial regardless of whether the tomb,
grave, or memorial is in a cemetery or whether the
cemetery, tomb, grave, or memorial appears to be
abandoned, lost, or neglected;
(B) removes human remains or associated
burial artifacts from a cemetery, tomb, grave, or
memorial regardless of whether the cemetery, tomb,
grave, or memorial appears to be abandoned, lost, or
neglected.
* Sec. 12. AS 11.46.484(a) is amended to read:
(a) A person commits the crime of criminal
mischief in the fourth degree if, having no right to
do so or any reasonable ground to believe the person
has such a right
(1) with intent to damage property of
another, the person damages property of another in an
amount of $250 [$50] or more but less than $1,500
[$500];
(2) the person tampers with a fire
protection device in a building that is a public
place;
(3) the person knowingly accesses a
computer, computer system, computer program, computer
network, or part of a computer system or network;
(4) the person uses a device to descramble
an electronic signal that has been scrambled to
prevent unauthorized receipt or viewing of the signal
unless the device is used only to descramble signals
received directly from a satellite or unless the
person owned the device before September 18, 1984; or
(5) the person knowingly removes,
relocates, defaces, alters, obscures, shoots at,
destroys, or otherwise tampers with an official
traffic control device or damages the work upon a
highway under construction.
* Sec. 13. AS 11.46.486(a) is amended to read:
(a) A person commits the crime of criminal
mischief in the fifth degree if, having no right to do
so or any reasonable ground to believe the person has
such a right,
(1) with reckless disregard for the risk of
harm to or loss of the property or with intent to
cause substantial inconvenience to another, the person
tampers with property of another;
(2) with intent to damage property of
another, the person damages property of another in an
amount less than $250 [$50]; or
(3) the person rides in a propelled vehicle
knowing it has been stolen or that it is being used in
violation of AS 11.46.360 or 11.46.365(a)(1).
* Sec. 14. AS 11.46.530(b) is amended to read:
(b) Criminal simulation is
(1) a class C felony if the value of what
the object purports to represent is $1,500 [$500] or
more;
(2) a class A misdemeanor if the value of
what the object purports to represent is $250 [$50] or
more but less than $1,500 [$500];
(3) a class B misdemeanor if the value of
what the object purports to represent is less than
$250 [$50].
* Sec. 15. AS 11.46.620(d) is amended to read:
(d) Misapplication of property is
(1) a class C felony if the value of the
property misapplied is $1,500 [$500] or more;
(2) a class A misdemeanor if the value of
the property misapplied is less than $1,500 [$500].
* Sec. 16. AS 11.46.730(c) is amended to read:
(c) Defrauding creditors is a class A
misdemeanor unless that secured party, judgment
creditor, or creditor incurs a pecuniary loss of
$1,500 [$500] or more as a result to the defendant's
conduct, in which case defrauding secured creditors is
(1) a class B felony if the loss is $25,000
or more;
(2) a class C felony if the loss is $1,500
[$500] or more but less than $25,000."
Page 1, line 7:
Delete "Section 1"
Insert "Sec. 17"
Renumber the following bill sections accordingly.
Page 5, line 23:
Delete "sec. 8"
Insert "sec. 24"
Page 5, line 24:
Delete "sec. 9"
Insert "sec. 25"
Page 5, line 29:
Delete "sec. 1"
Insert "sec. 17"
Page 5, line 30:
Delete "sec. 2"
Insert "sec. 18"
Delete "sec. 3"
Insert "sec. 19"
Page 5, line 31:
Delete "sec. 4"
Insert "sec. 20"
Page 6, line 1:
Delete "sec. 7"
Insert "sec. 23"
Page 6, line 3, following "(b)":
Insert "AS 11.46.130(a), as amended by sec. 1 of
this Act, AS 11.46.140(a), as amended by sec. 2 of
this Act, AS 11.46.150(a), as amended by sec. 3 of
this Act, AS 11.46.220(c), as amended by sec. 4 of
this Act, AS 11.46.260(b), as amended by sec. 5 of
this Act, AS 11.46.270(b), as amended by sec. 6 of
this Act, AS 11.46.280(d), as amended by sec. 7 of
this Act, AS 11.46.285(b), as amended by sec. 8 of
this Act, AS 11.46.295, as amended by sec. 9 of this
Act, AS 11.46.360(a), as amended by sec. 10 of this
Act, AS 11.46.482(a), as amended by sec. 11 of this
Act, AS 11.46.484(a), as amended by sec. 12 of this
Act, AS 11.46.486(a), as amended by sec. 13 of this
Act, AS 11.46.530(b), as amended by sec. 14 of this
Act, AS 11.46.620(d), as amended by sec. 15 of this
Act, AS 11.46.730(c), as amended by sec. 16 of this
Act, and"
Page 6, line 3:
Delete "sec. 6"
Insert "sec. 22"
Delete "applies"
Insert "apply"
Page 6, line 5:
Delete "sec. 8"
Insert "sec. 24"
Page 6, line 10:
Delete "Sections 8 and 9"
Insert "Sections 24 and 25"
Delete "sec. 12"
Insert "sec. 28"
SENATOR COGHILL explained that the purpose of the amendment was
to raise the threshold amounts for property offenses. It
addresses theft and its related offenses and it deals with all
the associated misdemeanors and felonies. These property crimes
have a value threshold that distinguishes first, second, third
and fourth degree offenses that are a class C felony or an A or
B misdemeanor. The amendment adjusts the value thresholds across
the statutes from $500 to $1,500 and $50 to $250.
He directed attention to a chart of felony thresholds for
property theft in the western U.S. that shows that Alaska is the
lowest at $500, whereas Montana and Utah have the highest
thresholds at $1,500. The proposed amendment would bring Alaska
more in alignment with those states.
SENATOR COGHILL noted a court system document that shows the
numbers of property crime cases filed under AS 11.46 during
FY11. There were 911 cases of theft where the property was
valued at more than $500; 807 cases of theft where the property
was valued at $50-$499; 404 cases of theft where the property
was valued under $50; 171 cases of fraud where the property was
valued at $50-$24,999; and 738 cases of criminal mischief and
property damage where the property was valued at $50-$499.
2:12:54 PM
SENATOR COGHILL said he understands that the lower threshold is
used as a hammer to get misdemeanor pleas, but he doesn't
believe it's equitable to make someone a felon because they
stole a $700 bike or broke a $1,000 window.
SENATOR WIELECHOWSKI commented that someone recently mentioned
that the laws create disparate treatment between urban and rural
areas. A window that's valued at $200 in Anchorage may be valued
at three or four times that in a rural village. Depending on
location, breaking that window can be a misdemeanor or a felony.
He noted that 3,794 property crime cases were filed in FY11 and
asked how many total crimes there were.
CHAIR FRENCH asked Doug Moody and Leslie Houston if they had
that information.
2:15:03 PM
LESLIE HOUSTON, Director, Division of Administrative Services,
Department of Corrections (DOC), introduced herself and offered
to follow up.
CHAIR FRENCH said his inclination was to adopt the amendment
and, if necessary, adjust it at a future hearing. He thanked
Senator Coghill for bringing the amendment forward, and
highlighted that in the last 20 years Alaska's prison population
has shifted from mostly violent offenders to mostly nonviolent
offenders. To change that will require some policy changes, he
said.
SENATOR COGHILL clarified the intent of the amendment was not to
lighten up on crime, but to more appropriately match the penalty
to the crime.
CHAIR FRENCH confirmed that no one was saying that offenders
would not be held accountable.
SENATOR WIELECHOWSKI asked to hear the administration's position
on the amendment.
2:19:03 PM
ANNE CARPENETI, Assistant Attorney General representing the
Criminal Division, Department of Law (DOL), stated that DOL did
not have a position on the amendment, but had no objection. The
rationale is understandable, but it does put the department in
an awkward position because it is charging and prosecuting
people under the current law.
SENATOR WIELECHOWSKI asked if the administration believes that
this is good policy.
MS. CARPENETI replied she was not aware if anyone above her had
considered the amendment or taken a position on it.
CHAIR FRENCH asked Senator Coghill if he'd reviewed the
amendment with police chiefs.
SENATOR COGHILL replied he did in years past and they're
understandably not big fans. He added that he did not ask the
administration for an endorsement, and he's aware of the
difficulty associated with shifting a threshold when DOL is
charging and prosecuting under the current law.
CHAIR FRENCH stated that the amendment is before the committee
and there's an objection.
At ease from 2:21:40 p.m. to 2:22:03 p.m.
CHAIR FRENCH reconvened the hearing and stated that he wanted to
hear from police chiefs and Senator Coghill mentioned talking to
members of the other body. He asked Senator Wielechowski if he
had ideas about the amendment.
SENATOR WIELECHOWSKI expressed a desire to hear from law
enforcement and the administration about whether this is good
policy.
MS. CARPENETI offered to try to get an answer.
SENATOR COGHILL said he believes this is a good policy call but
he too would like to hear from all sides.
SENATOR COGHILL withdrew Amendment 1 with the understanding that
he would bring it back for further debate at a future meeting.
2:24:11 PM
CHAIR FRENCH moved Amendment 2, labeled 27-LS0811\I.2, and
objected for discussion purposes.
AMENDMENT 2
OFFERED IN THE SENATE BY SENATOR FRENCH
TO: SB 186
Page 1, line 1, following "Act":
Insert "relating to assault causing serious
bodily injury to a child; relating to a definition of
"serious bodily injury to a child";"
Page 1, following line 6:
Insert new bill sections to read:
"* Section 1. AS 11.41.200(a) is amended to read:
(a) A person commits the crime of assault in the
first degree if
(1) that person recklessly causes serious
physical injury to another by means of a dangerous
instrument;
(2) with intent to cause serious physical
injury to another, the person causes serious physical
injury to any person;
(3) the person knowingly engages in conduct
that results in serious physical injury to another
under circumstances manifesting extreme indifference
to the value of human life; or
(4) that person recklessly causes serious
physical injury to another by repeated assaults using
a dangerous instrument, even if each assault
individually does not cause serious physical injury;
(5) while being 18 years of age or older,
that person
(A) intentionally causes serious bodily
injury to a child under 12 years of age or to a child
under 16 years of age who is mentally or physically
impaired; or
(B) recklessly causes serious bodily injury
on one or more than one occasion to a child under 12
years of age or to a child under 16 years of age who
is mentally or physically impaired.
* Sec. 2. AS 11.81.900(b) is amended by adding a
new paragraph to read:
(65) "serious bodily injury to a child"
includes second or third degree burns, a fracture of
any bone, a concussion, strangulation, injuries to the
skin that involve severe bruising or the likelihood of
permanent or protracted disfigurement, including those
sustained by striking children with objects, or other
physical injury that results in significant physical
injury to the child."
Page 1, line 7:
Delete "Section 1"
Insert "Sec. 3"
Renumber the following bill sections accordingly.
Page 5, line 23:
Delete "sec. 8"
Insert "sec. 10"
Page 5, line 24:
Delete "sec. 9"
Insert "sec. 11"
Page 5, line 29:
Delete "sec. 1"
Insert "sec. 3"
Page 5, line 30:
Delete "sec. 2"
Insert "sec. 4"
Delete "sec. 3"
Insert "sec. 5"
Page 5, line 31:
Delete "sec. 4"
Insert "sec. 6"
Page 6, line 1:
Delete "sec. 7"
Insert "sec. 9"
Page 6, lines 3 - 4:
Delete all material and insert:
"(b) AS 11.41.200(a), as amended by sec. 1 of
this Act, AS 11.81.900(b)(65), as added by sec. 2 of
this Act, and AS 12.55.090, as amended by sec. 8 of
this Act, apply to offenses occurring on or after the
effective date of this Act."
Page 6, line 5:
Delete "sec. 8"
Insert "sec. 10"
Page 6, line 10:
Delete "Sections 8 and 9"
Insert "Sections 10 and 11"
Delete "sec. 12"
Insert "sec. 14"
CHAIR FRENCH explained that the amendment incorporates some
recommendations from the Children's Justice Act Task Force to
look at ways to strengthen the statutes regarding assault on a
child.
2:25:19 PM
MS. CARPENETI expressed concern with the proposed amendment to
Sec. 11.41.200, assault in the first degree. The Office of
Special Prosecutions and Appeals (OSPA) said they probably
wouldn't use the charge in the proposed Sec. 11.41.200(a)(5)(A)
because it would be easier to charge under the current Sec.
11.41.200(a)(2). That is, "with intent to cause serious physical
injury to another, the person causes serious physical injury to
any person." The new provision proposed in Sec.
11.41.200(a)(5)(B) would also be covered under a crime of
assault in the second degree. That crime is already prohibited
and it uses definitions that the courts and attorneys are
accustomed to. She also mentioned that the definition proposed
by the task force for "serious bodily injury" was problematic
because it listed a series of examples rather than giving a
generic definition.
She said she worked on some suggestions and would make them
available at the Chair's discretion. These would include
possibly amending the crime of endangering the welfare of a
child in the first degree, which is a class C felony under most
circumstances. It talks about reckless failure to provide
adequate food or liquids to a child that results in protracted
impairment of the child's health. These too are terms that DOL
uses and have been considered by courts.
2:30:32 PM
CHAIR FRENCH commented on the apparent disconnect between the
Children's Justice Act Task Force representation and DOL's
representation, and encouraged Ms. Carpeneti to speak with the
task force representatives about where they feel there are
weaknesses in the system.
MS. CARPENETI responded that she would be happy to speak to both
Jan Rutherdale and Mr. Janidlo about specific cases and the
underlying reasons that the people who testified thought that
the criminal justice system was inadequate.
SENATOR COGHILL asked what the culpable mental state is for
proving someone acted "recklessly."
MS. CARPENETI explained that the prosecution has to prove that
the person was aware of the risk and consciously disregarded it.
SENATOR COGHILL asked if there is a different culpable state if
the victim is a child as opposed to an adult.
MS. CARPENETI replied the culpable mental state is the same
under AS 11.41.200(a)(2), whether the victim is an adult or a
child.
SENATOR COGHILL said he was concerned that this would make it
more difficult to charge somebody who had harmed a child.
MS. CARPENETI clarified that this does not change the culpable
mental state.
2:34:48 PM
CHAIR FRENCH asked Ms. Houston and Mr. Moody if they wanted to
comment on the amendment.
DOUGLAS MOODY, Attorney, Public Defender Agency, Department of
Administration (DOA), said he didn't have the amendment.
CHAIR FRENCH said he would likely withdraw the proposed
amendment to allow time for more background work before taking
final action as a committee.
2:35:49 PM
CHAIR FRENCH withdrew Amendment 2.
SENATOR COGHILL asked if bodily injury to a child would be an
aggravator or a primary charge.
CHAIR FRENCH said it's structured in the amendment as a primary
charge. He asked Ms. Carpeneti if there was an aggravator
dealing with the age of a victim.
MS. CARPENETI replied there is an aggravator that deals with a
victim that is particularly vulnerable; that includes age.
SENATOR COGHILL opined that this would create a level of proof
that may not have to be the same level as an aggravator.
CHAIR FRENCH clarified that aggravators are just like charges.
SENATOR COGHILL asked if there was more discretion.
MS. CARPENETI said that under the Blakely decision, the state
would have to prove the aggravator beyond a reasonable doubt to
a jury, but in sentencing a judge has discretion to weigh the
worth of the aggravator.
2:37:29 PM
CHAIR FRENCH asked if DOL's case management system is able to
sort how often a particular aggravator is used.
MS. CARPENETI offered to follow up with an answer.
CHAIR FRENCH announced he would hold SB 186 in committee.
2:37:49 PM
There being no further business to come before the committee,
Chair French adjourned the meeting at 2:37 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 165 amendment 1.pdf |
SJUD 2/15/2012 1:30:00 PM |
SB 165 |
| SB 165 amendment 2.pdf |
SJUD 2/15/2012 1:30:00 PM |
SB 165 |
| SB 165 Amendment 3.pdf |
SJUD 2/15/2012 1:30:00 PM |
SB 165 |
| SB 165 memo trustees power to appoint.pdf |
SJUD 2/15/2012 1:30:00 PM |
SB 165 |
| SB 165 memo uniform transfer to minors.pdf |
SJUD 2/15/2012 1:30:00 PM |
SB 165 |
| SB 186 Amendment I.1.pdf |
SJUD 2/15/2012 1:30:00 PM |
SB 186 |
| SB 186 Amendment I.2.pdf |
SJUD 2/15/2012 1:30:00 PM |
SB 186 |