00 CS FOR HOUSE BILL NO. 201(JUD) 01 "An Act relating to prisoner litigation, post-conviction relief, sentence appeals, 02 execution on judgments against prisoners; amending Alaska Administrative Rule 03 10, Alaska Rules of Appellate Procedure 204, 208, 209, 215, 403, 521, 602, 603, 04 and 604, Alaska Rules of Civil Procedure 3, 4, 5, 8, 16.1, and 65, and Alaska 05 Rules of Criminal Procedure 11, 33, 35, and 35.1; and providing for an 06 effective date." 07 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 08 * Section 1. AS 09 is amended by adding a new chapter to read: 09 CHAPTER 19. PRISONER LITIGATION AGAINST THE STATE. 10 Sec. 09.19.010. LIMITATION ON EXEMPTION FROM FILING FEES. (a) 11 A prisoner may not commence litigation against the state unless the prisoner has paid 12 full filing fees to the court or is a claimant under AS 23.20, except that the court may 13 exempt a prisoner from paying part of those fees if the court finds exceptional 14 circumstances as described in this section. 01 (b) To apply for a filing fee exemption, a prisoner shall submit to the court 02 (1) an affidavit that sets out 03 (A) the prisoner's complete financial situation, including the 04 prisoner's income, assets, and court-ordered payments; 05 (B) the circumstances that prevent the prisoner from paying full 06 filing fees; and 07 (C) the nature of the action or appeal and specific facts that 08 would, if proven, state a claim on which relief can be granted or entitle the 09 prisoner to reversal on appeal; 10 (2) a true and correct copy of the prisoner's account statement from the 11 correctional facility in which the prisoner is being or has been held for the six-month 12 period preceding the submission of the application; and 13 (3) other documentation or financial information as the court may 14 require. 15 (c) Based on the submission under (b) of this section, the court may grant an 16 exemption from part of the applicable filing fees if the court finds that exceptional 17 circumstances prevent the prisoner from paying full filing fees. Imprisonment and 18 indigency do not constitute exceptional circumstances if the prisoner has available 19 income or resources that can be applied to the filing fee. 20 (d) If the court orders an exemption under (c) of this section, the court shall 21 determine the amount of the exemption and set a filing fee to be paid by the prisoner. 22 In setting the fee, the court, at a minimum, shall require the prisoner to pay filing fees 23 equal to 20 percent of the larger of the average monthly deposits made to the prisoner's 24 account described in (b)(2) of this section, or the average balance in that account, not 25 to exceed the amount of the full filing fee required under applicable court rules. The 26 court shall issue a written order stating its reasons for its determinations under this 27 section. 28 (e) The court shall mail or otherwise serve its order under (d) of this section 29 on the prisoner. Along with its order, the court shall give written notice that the case 30 or appeal will be dismissed if payment of a filing fee is not made within 30 days after 31 the date of distribution of the order, unless the time for payment is extended by the 01 court. If timely payment is not made, the court shall dismiss the case or appeal. If 02 payment is made, the prisoner's filing and supporting documents shall be accepted for 03 filing with the court. 04 Sec. 09.19.020. SERVICE OF PROCESS IN CERTAIN PRISONER CASES 05 OR APPEALS. A prisoner may not commence service of process of the summons or 06 service of the notice of appeal in litigation against the state without court approval 07 under AS 09.19.030 or 09.19.040. 08 Sec. 09.19.030. REVIEW AND DISMISSAL OF CERTAIN PRISONER 09 ACTIONS. (a) If a prisoner has filed litigation against the state consisting of a civil 10 action or an administrative appeal, the court shall review the prisoner's filings to 11 determine whether the standards of this section have been met. 12 (b) In order for the court to allow the civil action or administrative appeal to 13 proceed, the court must find that, based on the information available to the judge, 14 (1) material statements made by the prisoner are not untrue; 15 (2) the action or administrative appeal is not frivolous or malicious; and 16 (3) the pleadings filed set out specific facts that would, if proven, 17 (A) state a claim upon which relief may be granted; or 18 (B) entitle the prisoner to reversal on appeal. 19 (c) If the court determines that the requirements of (b)(1) - (3) of this section 20 have not been met, the court shall give notice to the prisoner of its intent to dismiss 21 the case or administrative appeal and allow the prisoner an opportunity to reply in 22 writing. If the reply does not demonstrate that the requirements of (b)(1) - (3) of this 23 section have been met, or if no reply is filed, the court shall issue an order dismissing 24 the case or administrative appeal. If the court determines that the requirements of 25 (b)(1) - (3) of this section have been met, the court shall direct service of process. 26 Sec. 09.19.040. REVIEW AND DISMISSAL OF CERTAIN PRISONER 27 APPEALS. (a) If a prisoner files an appeal from litigation against the state, the 28 appellate court shall notify the lower court of the filing. 29 (b) Upon receiving notice under (a) of this section, the lower court shall 30 review its records and advise the appellate court in writing as to whether the appeal 31 appears 01 (1) to present a colorable issue of fact or law; 02 (2) not to be frivolous; and 03 (3) not to be malicious. 04 (c) If the appellate court is advised by the lower court that the standards set 05 out in (b)(1) - (3) of this section have not been met, the court shall give notice to the 06 prisoner of its intent to dismiss the appeal and allow the prisoner an opportunity to 07 reply in writing. If the reply does not demonstrate that the requirements of (b)(1) - (3) 08 of this section have been met, or if no reply is filed, the court shall issue an order 09 dismissing the appeal. If the court determines that the standards of (b)(1) - (3) of this 10 section have been met, the court shall direct service of the notice of appeal. 11 Sec. 09.19.050. STAY IN PRISONER DISCIPLINARY APPEALS. A 12 superior court that reviews a disciplinary decision of the Department of Corrections 13 as an administrative appeal may not enter an order staying disciplinary sanctions unless 14 the pleadings filed by the prisoner establish by clear and convincing evidence that the 15 prisoner has alleged a violation of a fundamental constitutional right and is likely to 16 succeed on the merits in the appeal, that the prisoner faces irreparable harm if a stay 17 is not granted, that the Department of Corrections can be adequately protected if a stay 18 is granted, and that a stay will not adversely affect the public interest in effective penal 19 administration. 20 Sec. 09.19.060. INJUNCTIONS OR ORDERS IMPOSING OBLIGATIONS 21 IN PRISONER CASES. In litigation against the state brought by a prisoner, a court 22 may not enter an injunction or issue an order or decision that would impose an 23 obligation on the state or its employees that would exceed the obligations imposed by 24 the United States Constitution, the Constitution of the State of Alaska, and applicable 25 federal and state statutes and regulations, unless the obligation is agreed to by the state. 26 Sec. 09.19.070. DISCOVERY IN PRISONER CASES. The automatic 27 disclosure provisions of Alaska Rule of Civil Procedure 16.1 do not apply to litigation 28 against the state brought by a prisoner. 29 Sec. 09.19.100. DEFINITIONS. In this chapter, 30 (1) "litigation against the state" means a civil action or an appeal from 31 a civil action or from the final decision of an administrative agency that 01 (A) involves the state, an officer or agent of the state, or a state 02 employee, or a former officer or agent of the state or state employee, regarding 03 conduct that occurred during that former officer's, agent's, or employee's state 04 employment or agency, whether the officer, agent, or employee is sued in an 05 official or a personal capacity; and 06 (B) is related to a person's status or treatment as a prisoner or 07 to a criminal charge against or involving the person; 08 (2) "prisoner" has the meaning given in AS 33.30.901. 09 * Sec. 2. AS 09.38.030(a) is amended to read: 10 (a) Except as provided in (b), [AND] (c), and (f) of this section and 11 AS 09.38.050, an individual debtor is entitled to an exemption of the individual 12 debtor's weekly net earnings not to exceed $350. The weekly net earnings of an 13 individual are determined by subtracting from the weekly gross earnings all sums 14 required by law or court order to be withheld. The weekly net earnings of an 15 individual paid on a monthly basis are determined by subtracting from the monthly 16 gross earnings of the individual all sums required by law or court order to be withheld 17 and dividing the remainder by 4.3. The weekly net earnings of an individual paid on 18 a semi-monthly basis are determined by subtracting from the semi-monthly gross 19 earnings all sums required by law or court order to be withheld and dividing the 20 remainder by 2.17. 21 * Sec. 3. AS 09.38.030(b) is amended to read: 22 (b) An individual who does not receive earnings either weekly, semi-monthly, 23 or monthly is entitled to a maximum exemption for the aggregate value of cash and 24 other liquid assets available in any month of $1,400, except as provided in (f) of this 25 section and in AS 09.38.050. The term "liquid assets" includes deposits, securities, 26 notes, drafts, accrued vacation pay, refunds, prepayments, and receivables, but does not 27 include permanent fund dividends before or after receipt by the individual. 28 * Sec. 4. AS 09.38.030 is amended by adding new subsections to read: 29 (f) The state may execute on a judgment awarded to the state, to a state 30 employee, or to a former state employee against a party to an action who is 31 incarcerated for a criminal conviction by sending a notice of levy to the correctional 01 facility in which the person is incarcerated. All money in an incarcerated person's 02 account at a correctional facility is available for disbursement under a notice of levy 03 by the state under this subsection, in the following order of priority: 04 (1) to support the dependents of the incarcerated person and to provide 05 child support payments as required by AS 25.27; 06 (2) to satisfy restitution or fines ordered by a sentencing court to be 07 paid by the incarcerated person; 08 (3) to pay a civil judgment entered against the incarcerated person as 09 a result of that person's criminal conduct; 10 (4) to reimburse the state for an award made for violent crimes 11 compensation under AS 18.67 as a result of the incarcerated person's criminal conduct; 12 (5) to satisfy other judgments entered against a prisoner in litigation 13 against the state; in this paragraph, "litigation against the state" has the meaning given 14 in AS 09.19.100. 15 (g) In this section, "correctional facility" has the meaning given in 16 AS 33.30.901. 17 * Sec. 5. AS 12.30.040 is amended by adding a new subsection to read: 18 (c) A person who has been convicted of an offense and who has filed an 19 application for post-conviction relief may not be released on bail until the trial court 20 or an appellate court enters an order vacating all convictions against the person. A 21 person who has prevailed on an application for post-conviction relief may seek release 22 before trial in accordance with the provisions of AS 12.30.020. 23 * Sec. 6. AS 12.55.120(a) is amended to read: 24 (a) A sentence of imprisonment lawfully imposed by the superior court for a 25 term or for aggregate terms exceeding two years of unsuspended incarceration [OF 26 ONE YEAR OR MORE] may be appealed to the court of appeals by the defendant on 27 the ground that the sentence is excessive, unless the sentence was imposed in 28 accordance with a plea agreement under the applicable Alaska Rules of Criminal 29 Procedure and that agreement provided for imposition of a specific sentence or 30 a sentence equal to or less than a specified maximum sentence. If the superior 31 court imposed a sentence in accordance with a plea agreement that provided for 01 a minimum sentence, the defendant may appeal only that portion of the sentence 02 that exceeds the minimum sentence provided for in the plea agreement and that 03 exceeds two years of unsuspended incarceration. By appealing a sentence under this 04 section, the defendant waives the right to plead that by a revision of the sentence 05 resulting from the appeal the defendant has been twice placed in jeopardy for the same 06 offense. 07 * Sec. 7. AS 12.55.120(d) is amended to read: 08 (d) A sentence of imprisonment lawfully imposed by the district court for a 09 term or for aggregate terms exceeding 120 [90] days of unsuspended incarceration 10 may be appealed to the superior court by the defendant on the ground that the sentence 11 is excessive, unless the sentence was imposed in accordance with a plea agreement 12 under the applicable Alaska Rules of Criminal Procedure and that agreement 13 provided for imposition of a specific sentence or a sentence equal to or less than 14 a specified maximum sentence. If the district court imposed a sentence in 15 accordance with a plea agreement that provided for a minimum sentence, the 16 defendant may appeal only that portion of the sentence that exceeds the minimum 17 sentence provided for in the plea agreement and that exceeds 120 days of 18 unsuspended incarceration. By appealing a sentence under this section, the 19 defendant waives the right to plead that by a revision of the sentence resulting from 20 the appeal the defendant has been twice placed in jeopardy for the same offense. A 21 sentence of imprisonment lawfully imposed by the district court may be appealed to 22 the superior court by the state on the ground that the sentence is too lenient; however, 23 when a sentence is appealed by the state, the court may not increase the sentence but 24 may express its approval or disapproval of the sentence and its reasons in a written 25 opinion. 26 * Sec. 8. AS 12 is amended by adding a new chapter to read: 27 CHAPTER 72. POST-CONVICTION RELIEF 28 PROCEDURES FOR PERSONS CONVICTED OF CRIMINAL OFFENSES. 29 Sec. 12.72.010. SCOPE OF POST-CONVICTION RELIEF. A person who has 30 been convicted of, or sentenced for, a crime may institute a proceeding for post-conviction relief if the person claims 31 (1) that the conviction or the sentence was in violation of the 01 Constitution of the United States or the constitution or laws of this state; 02 (2) that the court was without jurisdiction to impose sentence; 03 (3) that a prior conviction has been set aside and the prior conviction 04 was used as a statutorily required enhancement of the sentence imposed; 05 (4) that there exists evidence of material facts, not previously presented 06 and heard by the court, that requires vacation of the conviction or sentence in the 07 interest of justice; 08 (5) that the person's sentence has expired, or the person's probation, 09 parole, or conditional release has been unlawfully revoked, or the person is otherwise 10 unlawfully held in custody or other restraint; 11 (6) that the conviction or sentence is otherwise subject to collateral 12 attack upon any ground or alleged error previously available under the common law, 13 statutory law, or other writ, motion, petition, proceeding, or remedy; 14 (7) that 15 (A) there has been a significant change in law, whether 16 substantive or procedural, applied in the process leading to the person's 17 conviction or sentence; 18 (B) the change in the law was not reasonably foreseeable by a 19 judge or a competent attorney; 20 (C) it is appropriate to retroactively apply the change in law 21 because the change requires observance of procedures without which the 22 likelihood of an accurate conviction is seriously diminished; and 23 (D) the failure to retroactively apply the change in law would 24 result in a fundamental miscarriage of justice, which is established by 25 demonstrating that, had the changed law been in effect at the time of the 26 applicant's trial, a reasonable trier of fact would have a reasonable doubt as to 27 the guilt of the applicant; 28 (8) that after the imposition of sentence, the applicant seeks to 29 withdraw a plea of guilty or nolo contendere in order to correct manifest injustice 30 under the Alaska Rules of Criminal Procedure; or 31 (9) that the applicant was not afforded effective assistance of counsel 01 at trial or on direct appeal. 02 Sec. 12.72.020. LIMITATIONS ON APPLICATIONS FOR POST-CONVICTION RELIEF. (a) A claim may not 03 be brought under AS 12.72.010 or the 04 Alaska Rules of Criminal Procedure if 05 (1) the claim is based on the admission or exclusion of evidence at trial 06 or on the ground that the sentence is excessive; 07 (2) the claim was, or could have been but was not, raised in a direct 08 appeal from the proceeding that resulted in the conviction; 09 (3) the later of the following dates has passed, except that if the 10 applicant claims that the sentence was illegal there is no time limit on the claim: 11 (A) if the claim relates to a conviction, two years after the entry 12 of the judgment of the conviction or, if the conviction was appealed, one year 13 after the court's decision is final under the Alaska Rules of Appellate 14 Procedure; 15 (B) if the claim relates to a court revocation of probation, two 16 years after the entry of the court order revoking probation or, if the order 17 revoking probation was appealed, one year after the court's decision is final 18 under the Alaska Rules of Appellate Procedure; 19 (4) one year or more has elapsed from the final administrative decision 20 of the Board of Parole or the Department of Corrections that is being collaterally 21 attacked; 22 (5) the claim was decided on its merits or on procedural grounds in any 23 previous proceeding; or 24 (6) a previous application for post-conviction relief has been filed under 25 this chapter or under the Alaska Rules of Criminal Procedure. 26 (b) Notwithstanding (a)(3) and (4) of this section, a court may hear a claim 27 (1) if the applicant establishes due diligence in presenting the claim and 28 sets out facts supported by admissible evidence establishing that the applicant 29 (A) suffered from a physical disability or from a mental disease 30 or defect that precluded the timely assertion of the claim; or 31 (B) was physically prevented by an agent of the state from 01 filing a timely claim; 02 (2) based on newly discovered evidence if the applicant establishes due 03 diligence in presenting the claim and sets out facts supported by evidence that is 04 admissible and 05 (A) was not known within 06 (i) two years after entry of the judgment of conviction 07 if the claim relates to a conviction; 08 (ii) two years after entry of a court order revoking 09 probation if the claim relates to a court's revocation of probation; or 10 (iii) one year after an administrative decision of the 11 Board of Parole or the Department of Corrections is final if the claim 12 relates to the administrative decision; 13 (B) is not cumulative to the evidence presented at trial; 14 (C) is not impeachment evidence; and 15 (D) establishes by clear and convincing evidence that the 16 applicant is innocent. 17 (c) Notwithstanding (a)(6) of this section, a court may hear a claim based on 18 a final administrative decision of the Board of Parole or the Department of Corrections 19 if 20 (1) the claim was not and could not have been challenged in a previous 21 application for post-conviction relief filed under this chapter or under the Alaska Rules 22 of Criminal Procedure; and 23 (2) a previous application for post-conviction relief relating to the 24 administrative decision has not been filed under this chapter or under the Alaska Rules 25 of Criminal Procedure. 26 Sec. 12.72.030. FILING OF APPLICATION FOR POST-CONVICTION 27 RELIEF. An application for post-conviction relief shall be filed with the clerk at the 28 court location where the underlying criminal case was filed. 29 Sec. 12.72.040. BURDEN OF PROOF IN POST-CONVICTION RELIEF 30 PROCEEDINGS. A person applying for post-conviction relief must prove all factual 31 assertions by clear and convincing evidence. 01 * Sec. 9. AS 18.85.100 is amended by adding a new subsection to read: 02 (c) An indigent person is entitled to representation under (a) and (b) of this 03 section for purposes of bringing a timely application for post-conviction relief under 04 AS 12.72. An indigent person is not entitled to representation under (a) and (b) of this 05 section for purposes of bringing 06 (1) an untimely or successive application for post-conviction relief 07 under AS 12.72; 08 (2) a petition for review or certiorari from an appellate court ruling on 09 an application for post-conviction relief; or 10 (3) an action or claim for habeas corpus in federal court attacking a 11 state conviction. 12 * Sec. 10. AS 22.07.020(b) is amended to read: 13 (b) Except as limited in AS 12.55.120, the [THE] court of appeals has 14 jurisdiction to hear appeals of unsuspended sentences of imprisonment exceeding two 15 years imposed by the superior court on the grounds that the sentence is excessive, or 16 a sentence of any length on the grounds that it is too lenient. The court of appeals 17 [AND], in the exercise of this jurisdiction, may modify the sentence as provided by 18 law and the state constitution. 19 * Sec. 11. AS 22.10.020(f) is amended to read: 20 (f) An appeal to the superior court may be taken on the ground that an 21 unsuspended [A] sentence of imprisonment exceeding 120 [OF 90] days [OR MORE] 22 was excessive and the superior court in the exercise of this jurisdiction has the power 23 to reduce the sentence. The state may appeal a sentence on the ground that it is too 24 lenient. When a sentence is appealed on the ground that it is too lenient, the court 25 may not increase the sentence but may express its approval or disapproval of the 26 sentence and its reasons in a written opinion. 27 * Sec. 12. AS 33.30 is amended by adding a new section to read: 28 Sec. 33.30.295. REVIEW OF PRISONER DISCIPLINARY DECISIONS. (a) 29 A prisoner may obtain judicial review by the superior court of a final disciplinary 30 decision by the department only if the prisoner alleges specific facts establishing a 31 violation of the prisoner's fundamental constitutional rights that prejudiced the 01 prisoner's right to a fair adjudication. An appeal shall be commenced by the prisoner 02 filing a notice of appeal and other required documents in accordance with AS 09.19 03 or the applicable rules of court governing administrative appeals that do not conflict 04 with AS 09.19. If the appeal is not dismissed under AS 09.19.010, a record of the 05 proceedings shall be prepared by the department, consisting of the original papers and 06 exhibits submitted in the disciplinary process and a cassette tape of the disciplinary 07 hearing. The record shall be prepared and transmitted in accordance with the 08 applicable rules of court governing administrative appeals. 09 (b) A disciplinary decision may not be reversed 10 (1) unless the court finds that the prisoner's fundamental constitutional 11 rights were violated in the course of the disciplinary process, and that the violation 12 prejudiced the prisoner's right to a fair adjudication; 13 (2) because the department failed to follow hearing requirements set out 14 in state statutes and regulations, unless the prisoner was prejudiced by the denial of a 15 right guaranteed by the Alaska Constitution or United States Constitution; if such 16 prejudice is found, the court shall enter judgment as provided in (c) of this section and 17 remand the case to the department; or 18 (3) because of insufficient evidence if the record described in (a) of this 19 section shows that the disciplinary decision was based on some evidence that could 20 support the decision reached. 21 (c) The court shall enter judgment setting aside or affirming the disciplinary 22 decision without limiting or controlling the discretion vested in the department to 23 allocate resources within the department and to control security and administration 24 within the prison system. 25 * Sec. 13. AS 33.32.060 is amended to read: 26 Sec. 33.32.060. LIMITATION ON ATTACHMENT, ETC., OF WAGES. 27 Except for execution by the state under AS 09.38.030(f), only [ONLY] the prisoner 28 payments retained by the commissioner of corrections under AS 33.32.050(d) are 29 subject to lien, attachment, garnishment, execution, or similar procedures to encumber 30 funds or property. 31 * Sec. 14. Rule 10, Alaska Administrative Rules of Court, is amended by adding a new 01 subsection to read: 02 (e) The provisions of this rule do not apply to an exemption from payment of 03 filing fees in civil actions filed by prisoners against the state, or an officer, agent, 04 employee, or former officer, agent, or employee of the state, that is governed by the 05 provisions of AS 09.19. 06 * Sec. 15. Rule 204(b), Alaska Rules of Appellate Procedure, is amended to read: 07 (b) Appeal -- How Taken. A party may appeal from a final order or judgment 08 by filing a notice of appeal with the clerk of the appellate courts. The notice of appeal 09 must identify the party taking the appeal, the final order or judgment appealed from, 10 and the court to which the appeal is taken. The notice of appeal must be accompanied 11 by 12 (1) a completed docketing statement in the form prescribed by these 13 rules; 14 (2) a copy of the final order or judgment from which the appeal is 15 taken; 16 (3) a statement of points on appeal as required by Rule 204(e); 17 (4) unless the party is represented by court-appointed counsel, [OR] the 18 party is the state or an agency thereof, or the party is a prisoner whom the court 19 finds is eligible to pay less than full fees under AS 09.19.010, 20 (A) the filing fee required by Administrative Rule 9(a); 21 (B) a motion for waiver of filing fee pursuant to Administrative 22 Rule 9(f)(1); or 23 (C) a motion to appeal at public expense pursuant to Rule 209; 24 (5) unless the party is represented by court-appointed counsel, the party 25 is the state, municipality, or officer or agency thereof, or the party is an employee 26 appealing denial of compensation by the Alaska Workers' Compensation Board or 27 denial of benefits under AS 23.20 (Employment Security Act), 28 (A) the cost bond or deposit required by Rule 204(c)(1); 29 (B) a copy of a superior court order approving the party's 30 supersedeas bond or other security in lieu of bond or a copy of the party's 31 motion to the superior court for approval of a supersedeas bond or other 01 security; 02 (C) a motion for waiver of cost bond; or 03 (D) a motion to appeal at public expense pursuant to Rule 209; 04 (6) a designation of transcript if the party intends to have portions of 05 the electronic record transcribed pursuant to Rule 210(b); and 06 (7) proof of service of the notice of appeal and all required 07 accompanying documents, except the filing fee, on 08 (A) the clerk of the trial court which entered the judgment or 09 order being appealed; and 10 (B) all other parties to the trial court action. 11 A party may move for an extension of time to file the docketing statement, the 12 statement of points on appeal, and the designation of transcript. The clerk of the 13 appellate courts shall refuse to accept for filing any notice of appeal not conforming 14 to this paragraph and accompanied by the items specified in (1) - (7) or a motion to 15 extend the time for filing item (1), (3), or (6). 16 * Sec. 16. Rule 208, Alaska Rules of Appellate Procedure, is repealed and reenacted to 17 read: 18 RULE 208. CUSTODY OF PRISONERS IN POST-CONVICTION RELIEF 19 PROCEEDINGS. (a) Release of Applicant Pending Review of Order Denying 20 Release. The court having jurisdiction over the appeal of a denial of an application 21 for post-conviction relief may not grant bail or release the applicant pending appeal. 22 If the appellate court determines that post-conviction relief should be granted, the case 23 shall be remanded to the trial court for a bail hearing. 24 (b) Release of Applicant Pending Review of Decision Ordering a New Trial. 25 If an appeal of an order granting an applicant a new trial is pending, Appellate Rule 26 206(b) shall govern an appeal from an order that denies bail pending appeal or imposes 27 conditions of release pending appeal. 28 * Sec. 17. Rule 209(a), Alaska Rules of Appellate Procedure, is amended by adding a new 29 paragraph to read: 30 (7) The provisions of this subsection do not apply to the filing fees in 31 a prisoner's appeal against the state or an officer, agent, employee, or former officer, 01 agent, or employee of the state that is governed by the provisions of AS 09.19. 02 * Sec. 18. Rule 215(a), Alaska Rules of Appellate Procedure, is repealed and reenacted to 03 read: 04 (a) Notification of Right to Appeal Sentence. At the time of imposition of 05 sentence, the judge shall inform the defendant that 06 (1) the defendant may appeal a sentence on the ground that it is 07 excessive, except as provided in (a)(2) and (3) of this rule; 08 (2) the defendant has no right to appeal a sentence as excessive if 09 (A) the sentence does not exceed two years of unsuspended 10 incarceration for a felony or 120 days of unsuspended incarceration for a 11 misdemeanor; or 12 (B) the sentence was imposed in accordance with a plea 13 agreement under Criminal Rule 11 that provided for imposition of a specific 14 sentence or a sentence equal to or less than a specified maximum; 15 (3) the defendant may appeal a sentence imposed in accordance with 16 a plea agreement under Criminal Rule 11 that provided for a minimum sentence, but 17 may appeal as excessive only the part of the sentence that exceeds the greater of 18 (A) the minimum sentence provided for in the plea agreement; 19 or 20 (B) two years of unsuspended incarceration in a felony case or 21 120 days of unsuspended incarceration in a misdemeanor case; 22 (4) upon an appeal the appellate court may reduce or increase the 23 sentence and that, by appealing the sentence under this rule, the defendant waives the 24 right to plead that by a revision of the sentence resulting from the appeal the defendant 25 has been twice placed in jeopardy for the same offense; 26 (5) if the defendant wants counsel and is unable to pay for the services 27 of an attorney, the court will appoint an attorney to represent the defendant on the 28 appeal. 29 * Sec. 19. Rule 521, Alaska Rules of Appellate Procedure, is amended to read: 30 RULE 521. CONSTRUCTION. These rules are designed to facilitate business 31 and advance justice. They may be relaxed or dispensed with by the appellate courts 01 where a strict adherence to them will work surprise or injustice. In a matter 02 involving the validity of a criminal conviction or sentence, this rule does not 03 authorize an appellate court or the superior court, when acting as an intermediate 04 appellate court, to allow 05 (1) an appeal to be filed more than 60 days late; or 06 (2) a petition for review or petition for hearing to be filed more 07 than 30 days late. 08 * Sec. 20. Rule 603(a), Alaska Rules of Appellate Procedure, is amended by adding a new 09 paragraph to read: 10 (6) Stay in Prisoner Disciplinary Appeals. The court may not stay 11 imposition of sanctions arising from a disciplinary decision of the Department of 12 Corrections unless the court finds that the prisoner has alleged a violation of a 13 fundamental constitutional right and is likely to succeed on the merits of the appeal, 14 that the prisoner faces irreparable harm if a stay is not granted, that the Department 15 of Corrections can be adequately protected if a stay is granted, and that a stay will not 16 adversely affect the public interest in effective penal administration. In evaluating the 17 stay motion, the court may consider documents and affidavits offered by either party, 18 and shall consider the stay motion without waiting for the record to be certified. 19 * Sec. 21. Rule 604(b)(1)(A), Alaska Rules of Appellate Procedure, is amended to read: 20 (A) The record on appeal consists of the original papers and 21 exhibits filed with the administrative agency, and a typed transcript of the 22 record of proceedings before the agency. In an appeal from the revocation of 23 a driver's license by the Division of Motor Vehicles or from a prisoner 24 disciplinary decision of the Department of Corrections, the record of 25 proceedings will include cassettes rather than transcripts unless otherwise 26 ordered by the court. 27 * Sec. 22. Rule 11(c)(3), Alaska Rules of Criminal Procedure, is amended by adding new 28 subparagraphs to read: 29 (iii) that the defendant waives the right to appeal a 30 sentence as excessive and waives the right to seek reduction of a 31 sentence under Criminal Rule 35 if a plea agreement between the 01 defendant and the prosecuting attorney provides for a specific sentence 02 or a sentence equal to or less than a specified maximum; and 03 (iv) that the defendant waives the right to appeal as 04 excessive that portion of a sentence that is less than or equal to a 05 minimum sentence specified in a plea agreement between the defendant 06 and the prosecuting attorney and waives the right to seek reduction of 07 a sentence under Criminal Rule 35 to a length less than the length of 08 the minimum sentence. 09 * Sec. 23. Rule 11(e)(3), Alaska Rules of Criminal Procedure, is amended to read: 10 (3) Acceptance of Plea. If the court accepts the plea agreement, the 11 court shall inform the defendant that the judgment and sentence will embody 12 [EITHER] the disposition provided for in the plea agreement [OR ANOTHER 13 DISPOSITION MORE FAVORABLE TO THE DEFENDANT]. 14 * Sec. 24. Rule 11(e)(4), Alaska Rules of Criminal Procedure, is amended to read: 15 (4) Rejection of Plea. If the court rejects the plea agreement, the court 16 shall inform the parties of this fact and advise the defendant personally in open court 17 that the court and the prosecuting attorney are [IS] not bound by the plea agreement. 18 The court shall then afford the defendant the opportunity to withdraw the plea, and 19 advise the defendant that if the defendant persists in the plea of guilty or nolo 20 contendere, the disposition of the case may be less favorable to the defendant than that 21 contemplated by the plea agreement. 22 * Sec. 25. Rule 11(h)(1), Alaska Rules of Criminal Procedure, is amended to read: 23 (1) The court shall allow the defendant to withdraw a plea of guilty or 24 nolo contendere whenever the defendant, upon a timely motion for withdrawal filed 25 before the imposition of sentence, proves that withdrawal is necessary to correct 26 manifest injustice. 27 (i) A motion for withdrawal is untimely [TIMELY] and is 28 [NOT] barred if [BECAUSE] made subsequent to judgment or sentence [IF IT 29 IS MADE WITH DUE DILIGENCE]. After imposition of sentence, the 30 withdrawal of a plea may be sought only under AS 12.72. 31 (ii) Withdrawal is necessary to correct a manifest injustice 01 whenever it is demonstrated that: 02 (aa) The defendant was denied the effective assistance 03 of counsel guaranteed by constitution, statute, or rule, or 04 (bb) The plea was not entered or ratified by the 05 defendant or a person authorized to act in the defendant's behalf, or 06 (cc) The plea was involuntary, or was entered without 07 knowledge of the charge or that the sentence actually imposed could be 08 imposed, or 09 (dd) The defendant did not receive the charge or 10 sentence concessions contemplated by the plea agreement, and 11 (A) the prosecuting attorney failed to seek or 12 opposed the concessions promised in the plea agreement, or 13 (B) after being advised that the court no longer 14 concurred and after being called upon to affirm or withdraw the 15 plea, the defendant did not affirm the plea. 16 (iii) The defendant may move for withdrawal of the plea 17 without alleging innocence of the charge to which the plea has been entered. 18 * Sec. 26. Rule 33, Alaska Rules of Criminal Procedure, is amended to read: 19 RULE 33. NEW TRIAL. (a) Grounds. The court may grant a new trial to 20 a defendant if required in the interest of justice. The court may not grant a new 21 trial to a defendant on the ground that the jury's verdict is contrary to the weight 22 of the evidence. 23 (b) Subsequent Proceedings. If trial was by the court without a jury, the 24 court may vacate the judgment if entered, take additional testimony, and enter a new 25 judgment. 26 (c) Time for Motion. A motion for a new trial based on the ground of newly 27 discovered evidence may be made only before or within 180 days [TWO YEARS] 28 after final judgment, but if an appeal is pending the court may grant the motion only 29 on remand of the case. A motion for a new trial based on any other grounds shall be 30 made within 5 days after verdict or finding of guilt, or within such further time as the 31 court may fix during the 5-day period. 01 * Sec. 27. Rule 35(a), Alaska Rules of Criminal Procedure, is repealed and reenacted to 02 read: 03 (a) Correction of Sentence. The court may correct an illegal sentence at any 04 time. 05 * Sec. 28. Rule 35(b), Alaska Rules of Criminal Procedure, is repealed and reenacted to 06 read: 07 (b) Modification or Reduction of Sentence. The court 08 (1) may modify or reduce a sentence within 60 days of the distribution 09 of the written judgment upon a motion made in the original criminal case; 10 (2) may not entertain a second or successive motion for similar relief 11 brought under this paragraph on behalf of the same defendant; 12 (3) may not reduce or modify a sentence so as to impose a term of 13 imprisonment that is less than the minimum required by law; 14 (4) may not reduce a sentence imposed in accordance with a plea 15 agreement between the defendant and the prosecuting attorney that provided for 16 imposition of a specific sentence or a sentence equal to or less than a specified 17 maximum; and 18 (5) may not reduce a sentence below the minimum specified in a plea 19 agreement between the defendant and the prosecuting attorney. 20 * Sec. 29. Rule 35.1(a), Alaska Rules of Criminal Procedure, is amended to read: 21 (a) Scope. Any person who has been convicted of, or sentenced for, a crime 22 may institute a proceeding for post-conviction relief under AS 12.72.010 - 23 12.72.040 if the person [AND WHO] claims: 24 (1) that the conviction or the sentence was in violation of the 25 constitution of the United States or the constitution or laws of Alaska; 26 (2) that the court was without jurisdiction to impose sentence; 27 (3) that a prior conviction has been set aside and the prior 28 conviction was used as a statutorily required enhancement of [THAT] the sentence 29 imposed [EXCEEDED THE MAXIMUM AUTHORIZED BY LAW, OR IS 30 OTHERWISE NOT IN ACCORDANCE WITH THE SENTENCE AUTHORIZED BY 31 LAW]; 01 (4) that there exists evidence of material facts, not previously presented 02 and heard, that requires vacation of the conviction or sentence in the interest of justice; 03 (5) that the applicant's [HIS] sentence has expired, that the 04 applicant's [HIS] probation, parole, or conditional release has [HAVE] been 05 unlawfully revoked, or that the applicant [PERSON] is otherwise unlawfully held in 06 custody or other restraint; 07 (6) that the conviction or sentence is otherwise subject to collateral 08 attack upon any ground or alleged error heretofore available under any common law, 09 statutory or other writ, motion, petition, proceeding, or remedy; [OR] 10 (7) that 11 (A) there has been a significant change in law, whether 12 substantive or procedural, applied in the process leading to the applicant's 13 conviction or sentence; 14 (B) the change in law was not reasonably foreseeable by a 15 judge or a competent attorney; 16 (C) it is appropriate to retroactively apply the change in law 17 because the change in law requires observance of procedures without 18 which the likelihood of an accurate and fair conviction is seriously 19 diminished; and 20 (D) the failure to retroactively apply the change in law 21 would result in a fundamental miscarriage of justice, which is established 22 by demonstrating that, had the change in law been in effect at the time of 23 the applicant's trial, a reasonable trier of fact would have a reasonable 24 doubt as to the guilt of the applicant; 25 (8) that the applicant should be allowed to withdraw a plea of 26 guilty or nolo contendere in order to correct manifest injustice as set out in 27 Criminal Rule 11(h)(1)(ii); or 28 (9) that the applicant was not afforded effective assistance of 29 counsel at trial or on direct appeal [, WHEN SUFFICIENT REASONS EXIST TO 30 ALLOW RETROACTIVE APPLICATION OF THE CHANGED LEGAL 31 STANDARDS; MAY INSTITUTE A PROCEEDING UNDER THIS RULE TO 01 SECURE RELIEF]. 02 * Sec. 30. Rule 35.1(c), Alaska Rules of Criminal Procedure, is amended to read: 03 (c) Commencement of Proceedings -- Filing -- Service. A proceeding is 04 commenced by filing an application with the clerk at the court location where the 05 underlying criminal case was filed [OF THE COURT IN WHICH THE 06 CONVICTION OCCURRED]. Application forms will be furnished by the clerk of 07 court. An application must [MAY] be filed within the [AT ANY] time limitations 08 set out in AS 12.72.020. The clerk shall open a new file for the application, promptly 09 bring it to the attention of the court and give a copy to the district attorney. 10 * Sec. 31. Rule 35.1(d), Alaska Rules of Criminal Procedure, is amended to read: 11 (d) Application -- Contents. The application shall (1) identify the proceedings 12 in which the applicant was convicted, (2) state the date shown in the clerk's certificate 13 of distribution on the judgment complained of, (3) state the sentence complained of 14 and the date of sentencing, (4) specifically set forth the grounds upon which the 15 application is based, and (5) clearly state the relief desired. If the application 16 challenges a Department of Corrections or Board of Parole decision, the 17 application shall (1) identify the specific nature of the proceedings or challenged 18 decision, (2) state the date of the proceedings or decision, (3) specifically set forth 19 the facts and legal grounds upon which the application is based, and (4) clearly 20 state the relief desired. Facts within the personal knowledge of the applicant shall 21 be set out [FORTH] separately from other allegations of facts and shall be under oath. 22 Affidavits, records, or other evidence supporting its allegations shall be attached to the 23 application or the application shall recite why they are not attached. The application 24 shall identify all previous proceedings, together with the grounds therein asserted, 25 taken by the applicant to secure relief from the conviction or sentence. Argument, 26 citations and discussion of authorities are unnecessary. Applications which are 27 incomplete shall be returned to the applicant for completion. 28 * Sec. 32. Rule 35.1(g), Alaska Rules of Criminal Procedure, is amended to read: 29 (g) Hearing -- Evidence -- Order. The application shall be heard in, and 30 before any judge of, the court in which the conviction took place. An electronic 31 recording of the proceeding shall be made. All rules and statutes applicable in civil 01 proceedings, including pre-trial and discovery procedures are available to the parties 02 except that Alaska Rule of Civil Procedure 16.1 does not apply to post-conviction 03 relief proceedings. The court may receive proof by affidavits, depositions, oral 04 testimony, or other evidence. The applicant bears the burden of proving all factual 05 assertions by clear and convincing evidence. The court may order the applicant 06 brought before it for the hearing or allow the applicant to participate telephonically 07 or by video conferencing. If the court finds in favor of the applicant, it shall enter 08 an appropriate order with respect to the conviction or sentence in the former 09 proceedings, and any supplementary orders as to rearraignment, retrial, custody, bail, 10 discharge, correction of sentence, or other matters that may be necessary and proper. 11 The court shall make specific findings of fact, and state expressly its conclusions of 12 law, relating to each issue presented. The order made by the court is a final judgment. 13 * Sec. 33. Alaska Rule of Criminal Procedure 35.1(h) is repealed. 14 * Sec. 34. Notwithstanding any other provision of this Act, a person whose conviction was 15 entered before July 1, 1994, has until July 1, 1996, to file a claim under AS 12.72. 16 * Sec. 35. (a) Section 1 of this Act has the effect of amending 17 (1) Alaska Rule of Civil Procedure 3, by providing that a prisoner may not 18 commence litigation against the state until the prisoner has paid the filing or obtained an 19 exemption from those fees; 20 (2) Alaska Rules of Civil Procedure 4 and 5 and Alaska Rules of Appellate 21 Procedure 204, 403, and 602, by providing that a prisoner may not commence service of 22 process in litigation against the state without court approval; 23 (3) Alaska Rule of Civil Procedure 8, by providing specific requirements for 24 pleading by a prisoner in litigation against the state; 25 (4) Alaska Rule of Civil Procedure 16.1, by providing that the automatic 26 disclosures of that rule do not apply to litigation against the state by a prisoner; 27 (5) Alaska Rule of Civil Procedure 65, by restricting the availability of 28 injuctive relief in litigation against the state by a prisoner; 29 (6) Alaska Rules of Appellate Procedure 204 and 403, by altering the 30 procedure for appeals and petitions for review in litigation by the state by prisoners; and 31 (7) Alaska Rule of Appellate Procedure 603, by restricting the availability of 01 stays in appeals by a prisoner to the superior court of disciplinary decisions of the Department 02 of Corrections. 03 (b) In this section, "prisoner" and "litigation against the state" have the meanings 04 given in AS 09.19.100, added by sec. 1 of this Act. 05 * Sec. 36. Sections 1 - 13 and 34 of this Act take effect only if secs. 14 - 33 and 35 of this 06 Act take effect. 07 * Sec. 37. If this Act takes effect, it takes effect July 1, 1995.