00 CS FOR SENATE BILL NO. 246(JUD) 01 "An Act relating to sentencing for the commission of offenses or a juvenile delinquency 02 act directed against peace officers, fire fighters, and other emergency responders or 03 involving the victim's actual or perceived race, sex, color, creed, physical or mental 04 disability, ancestry, or national origin; relating to probation, informal adjustment, and 05 adjudication for those offenses and acts; relating to a diversity tolerance program for 06 certain juvenile delinquency acts; and providing for an effective date." 07 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 08 * Section 1. AS 12.55.085(f) is amended to read: 09 (f) The court may not suspend the imposition of sentence of a person who 10 (1) is convicted of a violation of AS 11.41.100 - 11.41.220, 11.41.260 11 - 11.41.320, 11.41.410 - 11.41.530, or AS 11.46.400; 12 (2) uses a firearm in the commission of the offense for which the 13 person is convicted; [OR] 01 (3) is convicted of a violation of AS 11.41.230 - 11.41.250 or a felony 02 and the person has one or more prior convictions for a misdemeanor violation of 03 AS 11.41 or for a felony or for a violation of a law in this or another jurisdiction 04 having substantially similar elements to an offense defined as a misdemeanor in 05 AS 11.41 or as a felony in this state; for the purposes of this paragraph, a person shall 06 be considered to have a prior conviction even if that conviction has been set aside 07 under (e) of this section or under the equivalent provision of the laws of another 08 jurisdiction; or 09 (4) is convicted of an offense and knowingly directed the conduct  10 constituting the offense at a victim because of that person's actual or perceived  11 race, sex, color, creed, physical or mental disability, ancestry, or national origin. 12  * Sec. 2. AS 12.55.125(c) is amended to read: 13 (c) Except as provided in (i) of this section, a defendant convicted of a class A 14 felony may be sentenced to a definite term of imprisonment of not more than 20 years, 15 and shall be sentenced to the following presumptive terms, subject to adjustment as 16 provided in AS 12.55.155 - 12.55.175: 17 (1) if the offense is a first felony conviction and does not involve 18 circumstances described in (2) of this subsection, five years; 19 (2) if the offense is a first felony conviction 20 (A) other than for manslaughter and the defendant 21 (i) possessed a firearm, used a dangerous instrument, or 22 caused serious physical injury during the commission of the offense, 23 seven years; 24 (ii) [OR] knowingly directed the conduct constituting 25 the offense at a uniformed or otherwise clearly identified peace officer, 26 fire fighter, correctional employee, emergency medical technician, 27 paramedic, ambulance attendant, or other emergency responder who 28 was engaged in the performance of official duties at the time of the 29 offense, seven years; or  30 (iii) the defendant knowingly directed the conduct  31 constituting the offense at a victim because of that person's actual  01 or perceived race, sex, color, creed, physical or mental disability,  02 ancestry, or national origin, seven years;  03 (B) for manslaughter and the conduct resulting in the 04 conviction was knowingly directed towards a child under the age of 16, seven 05 years; 06 (C) for manslaughter and the conduct resulting in the 07 conviction involved driving while under the influence of an alcoholic 08 beverage, inhalant, or controlled substance, seven years; 09 (3) if the offense is a second felony conviction, 10 years; 10 (4) if the offense is a third felony conviction and the defendant is not 11 subject to sentencing under (l) of this section, 15 years. 12  * Sec. 3. AS 12.55.125(d) is amended to read: 13 (d) Except as provided in (i) of this section, a defendant convicted of a class B 14 felony may be sentenced to a definite term of imprisonment of not more than 10 years, 15 and shall be sentenced to the following presumptive terms, subject to adjustment as 16 provided in AS 12.55.155 - 12.55.175: 17 (1) if the offense is a second felony conviction, four years; 18 (2) if the offense is a third felony conviction, six years;  19 (3) if the offense is a first felony conviction, and the defendant  20 knowingly directed the conduct constituting the offense at a victim because of  21 that person's actual or perceived race, sex, color, creed, physical or mental  22 disability, ancestry, or national origin, four years. 23  * Sec. 4. AS 12.55.125(e) is amended to read: 24 (e) Except as provided in (i) of this section, a defendant convicted of a class C 25 felony may be sentenced to a definite term of imprisonment of not more than five 26 years, and shall be sentenced to the following presumptive terms, subject to 27 adjustment as provided in AS 12.55.155 - 12.55.175: 28 (1) if the offense is a second felony conviction, two years; 29 (2) if the offense is a third felony conviction, three years; 30 (3) if the offense is a first felony conviction, and the defendant 31 (A) violated AS 08.54.720(a)(15), one year; or  01 (B) the defendant knowingly directed the conduct  02 constituting the offense at a victim because of that person's actual or  03 perceived race, sex, color, creed, physical or mental disability, ancestry, or  04 national origin, two years. 05  * Sec. 5. AS 12.55.125(g) is amended to read: 06 (g) If a defendant is sentenced under (c), (d)(1), (d)(2), (d)(3), (e)(1), (e)(2), 07 (e)(3), or (i) of this section, except to the extent permitted under AS 12.55.155 - 08 12.55.175, 09 (1) imprisonment may not be suspended under AS 12.55.080; 10 (2) imposition of sentence may not be suspended under AS 12.55.085; 11 (3) terms of imprisonment may not be otherwise reduced. 12  * Sec. 6. AS 12.55.135(d) is amended to read: 13 (d) A defendant convicted of assault in the fourth degree who knowingly 14 directed the conduct constituting the offense at a uniformed or otherwise clearly 15 identified peace officer, fire fighter, correctional employee, emergency medical 16 technician, paramedic, ambulance attendant, or other emergency responder who was 17 engaged in the performance of official duties at the time of the assault or knowingly  18 directed the conduct constituting the offense at a victim because of that person's  19 actual or perceived race, sex, color, creed, physical or mental disability, ancestry,  20 or national origin, shall be sentenced to a minimum term of imprisonment of 21 (1) 60 days if the defendant violated AS 11.41.230(a)(1) or (2); 22 (2) 30 days if the defendant violated AS 11.41.230(a)(3). 23  * Sec. 7. AS 12.55.135 is amended by adding a new subsection to read: 24 (k) A defendant convicted of a misdemeanor in AS 11 shall be sentenced as a 25 worst offender if the court finds by clear and convincing evidence that the defendant 26 knowingly directed the conduct constituting the offense at a 27 (1) victim because of that person's actual or perceived race, sex, color, 28 creed, physical or mental disability, ancestry, or national origin; or 29 (2) uniformed or otherwise clearly identified peace officer, fire fighter, 30 correctional employee, emergency medical technician, paramedic, ambulance 31 attendant, or other emergency responder who was engaged in the performance of 01 official duties at the time of the offense. 02  * Sec. 8. AS 12.55.155(c)(22) is amended to read: 03 (22) the defendant knowingly directed the conduct constituting the 04 offense at a victim because of that person's actual or perceived race, sex, color, creed, 05 physical or mental disability, ancestry, or national origin; 06  * Sec. 9. AS 12.55.165 is amended to read: 07 Sec. 12.55.165. Extraordinary circumstances. (a) If the defendant is 08 subject to sentencing under AS 12.55.125(c), (d)(1), (d)(2), (d)(3), (e)(1), (e)(2), 09 (e)(3), or (i) and the court finds by clear and convincing evidence that manifest 10 injustice would result from failure to consider relevant aggravating or mitigating 11 factors not specifically included in AS 12.55.155 or from imposition of the 12 presumptive term, whether or not adjusted for aggravating or mitigating factors, the 13 court shall enter findings and conclusions and cause a record of the proceedings to be 14 transmitted to a three-judge panel for sentencing under AS 12.55.175. 15 (b) In making a determination under (a) of this section, the court may not refer 16 a case to a three-judge panel based on the defendant's potential for rehabilitation if the 17 court finds that a factor in aggravation set out in AS 12.55.155(c)(2), (8), (10), (12), 18 (13), (15), (17), (18)(B), (20), (21), (22), or (28) is present. 19  * Sec. 10. AS 47.12.060(b) is amended to read: 20 (b) When the department or the entity selected by it decides to make an 21 informal adjustment of a matter under (a)(2) of this section, that informal adjustment 22 (1) must be made with the agreement or consent of the minor and the 23 minor's parents or guardian to the terms and conditions of the adjustment; 24 (2) must give the minor's foster parent an opportunity to be heard 25 before the informal adjustment is made; 26 (3) must include notice that informal action to adjust a matter is not 27 successfully completed unless, among other factors that the department or the entity 28 selected by it considers, as to the victim of the act of the minor that is the basis of the 29 delinquency allegation, the minor pays restitution in the amount set by the department 30 or the entity selected by it or agrees as a term or condition set by the department or the 31 entity selected by it to pay the restitution; 01 (4) for a violation of habitual minor consuming or in possession or 02 control under AS 04.16.050(d) must include an agreement that the minor perform 96 03 hours of community work, provide that the minor's driver's license or permit, privilege 04 to drive, or privilege to obtain a license be revoked for six months, and provide that 05 the driver's license or permit, privilege to drive, or privilege to obtain a license be 06 revoked for an additional six months if the informal adjustment is not successful 07 because the minor has failed to perform community work as ordered, or has failed to 08 submit to evaluation or successfully complete the education or treatment 09 recommended; the department or an entity selected by the department shall notify the 10 agency responsible for issuing driver's licenses of an informal adjustment under this 11 paragraph or of an unsuccessful adjustment described in this paragraph; 12 (5) of an offense described in AS 28.15.185(a)(1) must include an 13 agreement that the minor's driver's license or permit, privilege to drive, or privilege to 14 obtain a license be revoked as provided in AS 28.15.185(b); the department or an 15 entity selected by the department shall notify the agency responsible for issuing 16 driver's licenses of an informal adjustment under this paragraph;  17 (6) must, if there is reason to believe that the minor knowingly  18 directed the conduct constituting the delinquent act at a uniformed or otherwise  19 clearly identified peace officer, fire fighter, correctional employee, emergency  20 medical technician, paramedic, ambulance attendant, or other emergency  21 responder who was engaged in the performance of official duties at the time of  22 the act, require the minor to perform 60 - 80 hours of community work service;  23 (7) must, if there is reason to believe that the minor knowingly  24 directed the conduct constituting a delinquent act at a victim because of that  25 person's actual or perceived race, sex, color, creed, physical or mental disability,  26 ancestry, or national origin,  27 (A) require the minor to perform 60 - 80 hours of  28 community work service; and  29 (B) include a referral to a diversity tolerance program or  30 otherwise provide the minor and the minor's parents or guardian with the  31 opportunity to develop respect for the ethnic, cultural, and personal  01 diversity of all persons of the state; the court may allow the minor's  02 successful participation in a diversity tolerance program to count towards  03 the minimum hours of community work service. 04  * Sec. 11. AS 47.12.120(b) is amended to read: 05 (b) If the minor is not subject to (j) of this section and the court finds that the 06 minor is delinquent, it shall 07 (1) order the minor committed to the department for a period of time 08 not to exceed two years or in any event extend past the day the minor becomes 19 09 years of age, except that the department may petition for and the court may grant in a 10 hearing (A) two-year extensions of commitment that do not extend beyond the minor's 11 19th birthday if the extension is in the best interests of the minor and the public; and 12 (B) an additional one-year period of supervision past age 19 if continued supervision 13 is in the best interests of the person and the person consents to it; the department shall 14 place the minor in the juvenile facility that the department considers appropriate and 15 that may include a juvenile correctional school, juvenile work camp, treatment facility, 16 detention home, or detention facility; the minor may be released from placement or 17 detention and placed on probation on order of the court and may also be released by 18 the department, in its discretion, under AS 47.12.260; 19 (2) order the minor placed on probation, to be supervised by the 20 department, and released to the minor's parents, guardian, or a suitable person; if the 21 court orders the minor placed on probation, it may specify the terms and conditions of 22 probation; the probation may be for a period of time not to exceed two years and in no 23 event to extend past the day the minor becomes 19 years of age, except that the 24 department may petition for and the court may grant in a hearing 25 (A) two-year extensions of supervision that do not extend 26 beyond the minor's 19th birthday if the extension is in the best interests of the 27 minor and the public; and 28 (B) an additional one-year period of supervision past age 19 if 29 the continued supervision is in the best interests of the person and the person 30 consents to it; 31 (3) order the minor committed to the custody of the department and 01 placed on probation, to be supervised by the department and released to the minor's 02 parents, guardian, other suitable person, or suitable nondetention setting such as with a 03 relative or in a foster home or residential child care facility, whichever the department 04 considers appropriate to implement the treatment plan of the predisposition report; if 05 the court orders the minor placed on probation, it may specify the terms and conditions 06 of probation; the department may transfer the minor, in the minor's best interests, from 07 one of the probationary placement settings listed in this paragraph to another, and the 08 minor, the minor's parents or guardian, the minor's foster parent, and the minor's 09 attorney are entitled to reasonable notice of the transfer; the probation may be for a 10 period of time not to exceed two years and in no event to extend past the day the 11 minor becomes 19 years of age, except that the department may petition for and the 12 court may grant in a hearing 13 (A) two-year extensions of commitment that do not extend 14 beyond the minor's 19th birthday if the extension is in the best interests of the 15 minor and the public; and 16 (B) an additional one-year period of supervision past age 19 if 17 the continued supervision is in the best interests of the person and the person 18 consents to it; 19 (4) order the minor and the minor's parent to make suitable restitution 20 in lieu of or in addition to the court's order under (1), (2), or (3) of this subsection; 21 under this paragraph, 22 (A) except as provided in (B) of this paragraph, the court may 23 not refuse to make an order of restitution to benefit the victim of the act of the 24 minor that is the basis of the delinquency adjudication; under this 25 subparagraph, the court may require the minor to use the services of a 26 community dispute resolution center that has been recognized by the 27 commissioner under AS 47.12.450(b) to resolve any dispute between the minor 28 and the victim of the minor's offense as to the amount of or manner of payment 29 of the restitution; 30 (B) the court may not order payment of restitution by the parent 31 of a minor who is a runaway or missing minor for an act of the minor that was 01 committed by the minor after the parent has made a report to a law 02 enforcement agency, as authorized by AS 47.10.141(a), that the minor has run 03 away or is missing; for purposes of this subparagraph, "runaway or missing 04 minor" means a minor who a parent reasonably believes is absent from the 05 minor's residence for the purpose of evading the parent or who is otherwise 06 missing from the minor's usual place of abode without the consent of the 07 parent; and 08 (C) at the request of the department, the Department of Law, 09 the victims' advocate, or on its own motion, the court shall, at any time, order 10 the minor and the minor's parent, if applicable, to submit financial information 11 on a form approved by the Alaska Court System to the court, the department, 12 and the Department of Law for the purpose of establishing the amount of 13 restitution or enforcing an order of restitution under AS 47.12.170; the form 14 must include a warning that submission of incomplete or inaccurate 15 information is punishable as unsworn falsification under AS 11.56.210; 16 (5) order the minor committed to the department for placement in an 17 adventure-based education program established under AS 47.21.020 with conditions 18 the court considers appropriate concerning release upon satisfactory completion of the 19 program or commitment under (1) of this subsection if the program is not satisfactorily 20 completed; 21 (6) in addition to an order under (1) - (5) of this subsection, order the 22 minor to perform community service; for purposes of this paragraph, "community 23 service" includes work 24 (A) on a project identified in AS 33.30.901; or 25 (B) that, on the recommendation of the city council or 26 traditional village council, would benefit persons within the city or village who 27 are elderly or disabled; or 28 (7) in addition to an order under (1) - (6) of this subsection, order the 29 minor's parent or guardian to comply with orders made under AS 47.12.155, including 30 participation in treatment under AS 47.12.155(b)(1); 31 (8) in addition to an order under (1) - (5) and (7) of this subsection,  01 if the court finds by clear and convincing evidence that the minor knowingly  02 directed the conduct constituting a delinquent act at a uniformed or otherwise  03 clearly identified peace officer, fire fighter, correctional employee, emergency  04 medical technician, paramedic, ambulance attendant, or other emergency  05 responder who was engaged in the performance of official duties at the time of  06 the act, require the minor to perform 60 - 80 hours of community work service;  07 (9) in addition to an order under (1) - (5) and (7) of this subsection,  08 if the court finds by clear and convincing evidence that the minor knowingly  09 directed the conduct constituting a delinquent act at a victim because of that  10 person's actual or perceived race, sex, color, creed, physical or mental disability,  11 ancestry, or national origin,  12 (A) order the minor to perform 60 - 80 hours of community  13 work service; and  14 (B) carefully assess the plan proposed by the department  15 under AS 47.12.130 to ensure that the plan adequately provides the minor  16 and the minor's parents or guardian with the opportunity to develop  17 respect for the ethnic, cultural, and personal diversity of all persons of the  18 state; the court may allow the minor's successful participation in a  19 diversity tolerance program to count toward the minimum hours of  20 community work service. 21  * Sec. 12. AS 47.12 is amended by adding a new section to article 5 to read: 22 Sec. 47.12.970. Diversity tolerance program. The department shall develop 23 and implement, or designate, in cooperation with other state, local, tribal, and 24 nonprofit public service agencies, a diversity tolerance program that provides 25 resources for developing respect for ethnic, cultural, and personal diversity, and that is 26 designed for persons under 18 years of age who have been referred to the program 27 under this chapter in connection with conduct by a minor that was directed at a person 28 because of that person's actual or perceived race, sex, color, creed, physical or mental 29 disability, ancestry, or national origin. The program shall be designed to be completed 30 in 12 hours. 31 * Sec. 13. The uncodified law of the State of Alaska is amended by adding a new section to 01 read: 02 APPLICABILITY. (a) This Act applies to offenses or acts committed on or after the 03 effective date of this Act. 04 (b) Notwithstanding AS 47.12.060(b)(7)(B), added by sec. 10 of this Act, and 05 AS 47.12.120(b)(9)(B), added by sec. 11 of this Act, a court may not refer a minor to a 06 diversity tolerance program under AS 47.12.970, added by sec. 12 of this Act, until the 07 Department of Health and Social Services has developed, implemented, or designated 08 diversity tolerance programs. 09 * Sec. 14. This Act takes effect immediately under AS 01.10.070(c).