00 Enrolled SB 56 01 Relating to criminal law and procedure, criminal sentences, and probation and parole; and 02 providing for an effective date. 03 _______________ 04 * Section 1. The uncodified law of the State of Alaska is ended by adding a new section to 05 read: 06 LEGISLATIVE INTENT. It is the intent of the legislature in passing this Act to 07 preserve the basic structure of Alaska's presumptive sentencing system, which is designed to 08 avoid disparate sentences. With this Act, the legislature sets out a sentencing framework, 09 subject to judicial adjustment for statutory aggravating or mitigating factors that are 10 determined in a manner that is constitutional under the decision of the United States Supreme 11 Court in Blakely v. Washington. The single, definite presumptive terms set out in current law 12 can unduly constrain the sentencing process, particularly under the mandates of Blakely v. 13 Washington. Although the presumptive terms are being replaced by presumptive ranges, it is 14 not the intent of this Act in doing so to bring about an overall increase in the amount of active 01 imprisonment for felony sentences. Rather, this Act is intended to give judges the authority to 02 impose an appropriate sentence, with an appropriate amount of probation supervision, by 03 taking into account the consideration set out in AS 12.55.005 and 12.55.015. 04 * Sec. 2. AS 12.40.100 is amended by adding a new subsection to read: 05 (c) An indictment that complies with this section and with applicable rules 06 adopted by the supreme court is valid and need not specify aggravating factors set out 07 in AS 12.55.155. 08 * Sec. 3. AS 12.55.015(a) is amended to read: 09 (a) Except as limited by AS 12.55.125 - 12.55.175, the court, in imposing 10 sentence on a defendant convicted of an offense, may singly or in combination 11 (1) impose a 12 (A) fine when authorized by law and as provided in 13 AS 12.55.035; or 14 (B) day fine when authorized by law and as provided in 15 AS 12.55.036 if the court does not impose a term of periodic or continuous 16 imprisonment or place the defendant on probation; 17 (2) order the defendant to be placed on probation under conditions 18 specified by the court that may include provision for active supervision; 19 (3) impose a definite term of periodic imprisonment, but only if an 20 employment obligation of the defendant preexisted sentencing and the defendant 21 receives a composite sentence of not more than two years to serve; 22 (4) impose a definite term of continuous imprisonment; 23 (5) order the defendant to make restitution under AS 12.55.045; 24 (6) order the defendant to carry out a continuous or periodic program 25 of community work under AS 12.55.055; 26 (7) suspend execution of all or a portion of the sentence imposed under 27 AS 12.55.080; 28 (8) suspend imposition of sentence under AS 12.55.085; 29 (9) order the forfeiture to the commissioner of public safety or a 30 municipal law enforcement agency of a deadly weapon that was in the actual 31 possession of or used by the defendant during the commission of an offense described 01 in AS 11.41, AS 11.46, AS 11.56, or AS 11.61; 02 (10) order the defendant, while incarcerated, to participate in or 03 comply with the treatment plan of a rehabilitation program that is related to the 04 defendant's offense or to the defendant's rehabilitation if the program is made available 05 to the defendant by the Department of Corrections; 06 (11) order the forfeiture to the state of a motor vehicle, weapon, 07 electronic communication device, or money or other valuables, used in or obtained 08 through an offense that was committed for the benefit of, at the direction of, or in 09 association with a criminal street gang; 10 (12) order the defendant to have no contact, either directly or 11 indirectly, with a victim or witness of the offense until the defendant is 12 unconditionally discharged. 13 * Sec. 4. AS 12.55.025(i) is amended to read: 14 (i) Except as provided by AS 12.55.125(a)(3), [12.55.125(k),] 12.55.145(d), 15 12.55.155(f), and 12.55.165, the preponderance of the evidence standard of proof 16 applies to sentencing proceedings. 17 * Sec. 5. AS 12.55.055(d) is amended to read: 18 (d) The court may offer a defendant convicted of an offense the option of 19 performing community work in lieu of a sentence of imprisonment. Substitution of 20 community work shall be at a rate of eight hours for each day of imprisonment. A 21 court may not offer substitution of community work for any mandatory minimum 22 period of imprisonment or for any period within the [OF A] presumptive range 23 [TERM] of imprisonment for the offense. 24 * Sec. 6. AS 12.55.088(c) is amended to read: 25 (c) A [NO] sentence may not be reduced or modified so as to result in a term 26 of imprisonment that [WHICH] is less than the minimum [OR PRESUMPTIVE] 27 sentence or lower than the presumptive range required by law for the original 28 sentence. 29 * Sec. 7. AS 12.55.120 is amended by adding a new subsection to read: 30 (e) A sentence within an applicable presumptive range set out in AS 12.55.125 31 or a consecutive or partially consecutive sentence imposed in accordance with the 01 minimum sentences set out in AS 12.55.127 may not be appealed to the court of 02 appeals under this section or AS 22.07.020 on the ground that the sentence is 03 excessive. However, the sentence may be reviewed by an appellate court on the 04 ground that it is excessive through a petition filed under rules adopted by the supreme 05 court. 06 * Sec. 8. AS 12.55.125(c) is amended to read: 07 (c) Except as provided in (i) of this section, a defendant convicted of a class A 08 felony may be sentenced to a definite term of imprisonment of not more than 20 years, 09 and shall be sentenced to a definite term within the following presumptive ranges 10 [TERMS], subject to adjustment as provided in AS 12.55.155 - 12.55.175: 11 (1) if the offense is a first felony conviction and does not involve 12 circumstances described in (2) of this subsection, five to eight [FIVE] years; 13 (2) if the offense is a first felony conviction 14 [(A) OTHER THAN FOR MANSLAUGHTER] and the 15 defendant possessed a firearm, used a dangerous instrument, or caused serious 16 physical injury or death during the commission of the offense, or knowingly 17 directed the conduct constituting the offense at a uniformed or otherwise 18 clearly identified peace officer, fire fighter, correctional employee, emergency 19 medical technician, paramedic, ambulance attendant, or other emergency 20 responder who was engaged in the performance of official duties at the time of 21 the offense, seven to 11 [SEVEN] years; 22 [(B) FOR MANSLAUGHTER AND THE CONDUCT 23 RESULTING IN THE CONVICTION WAS KNOWINGLY DIRECTED 24 TOWARDS A CHILD UNDER THE AGE OF 16, SEVEN YEARS; 25 (C) FOR MANSLAUGHTER AND THE CONDUCT 26 RESULTING IN THE CONVICTION INVOLVED DRIVING WHILE 27 UNDER THE INFLUENCE OF AN ALCOHOLIC BEVERAGE, 28 INHALANT, OR CONTROLLED SUBSTANCE, SEVEN YEARS;] 29 (3) if the offense is a second felony conviction, 10 to 14 [10] years; 30 (4) if the offense is a third felony conviction and the defendant is not 31 subject to sentencing under (l) of this section, 15 to 20 [15] years. 01 * Sec. 9. AS 12.55.125(d) is amended to read: 02 (d) Except as provided in (i) of this section, a defendant convicted of a class B 03 felony may be sentenced to a definite term of imprisonment of not more than 10 years, 04 and shall be sentenced to a definite term within the following presumptive ranges 05 [TERMS], subject to adjustment as provided in AS 12.55.155 - 12.55.175: 06 (1) if the offense is a first felony conviction and does not involve 07 circumstances described in (2) of this subsection, one to three years; a defendant 08 sentenced under this paragraph may, if the court finds it appropriate, be granted 09 a suspended imposition of sentence under AS 12.55.085 if, as a condition of 10 probation under AS 12.55.086, the defendant is required to serve an active term 11 of imprisonment within the range specified in this paragraph, unless the court 12 finds that a mitigation factor under AS 12.55.155 applies; 13 (2) if the offense is a first felony conviction, the defendant violated 14 AS 11.41.130, and the victim was a child under 16 years of age, two to four years; 15 (3) if the offense is a second felony conviction, four to seven [FOUR] 16 years; 17 (4) [(2)] if the offense is a third felony conviction, six to 10 [SIX] 18 years. 19 * Sec. 10. AS 12.55.125(e) is amended to read: 20 (e) Except as provided in (i) of this section, a defendant convicted of a class C 21 felony may be sentenced to a definite term of imprisonment of not more than five 22 years, and shall be sentenced to a definite term within the following presumptive 23 ranges [TERMS], subject to adjustment as provided in AS 12.55.155 - 12.55.175: 24 (1) if the offense is a first felony conviction and does not involve 25 circumstances described in (4) of this subsection, zero to two years; a defendant 26 sentenced under this paragraph may, if the court finds it appropriate, be granted 27 a suspended imposition of sentence under AS 12.55.085, and the court may, as a 28 condition of probation under AS 12.55.086, require the defendant to serve an 29 active term of imprisonment within the range specified in this paragraph; 30 (2) if the offense is a second felony conviction, two to four [TWO] 31 years; 01 (3) [(2)] if the offense is a third felony conviction, three to five 02 [THREE] years; 03 (4) [(3)] if the offense is a first felony conviction, and the defendant 04 violated AS 08.54.720(a)(15), one to two years [ONE YEAR]. 05 * Sec. 11. AS 12.55.125(g) is amended to read: 06 (g) If a defendant is sentenced under (c), (d), (e) [(d)(1), (d)(2), (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 below 10 the low end of the presumptive range; 11 (2) and except as provided in (d)(1) or (e)(1) of this section, 12 imposition of sentence may not be suspended under AS 12.55.085; 13 (3) terms of imprisonment may not be otherwise reduced. 14 * Sec. 12. AS 12.55.125(i) is amended to read: 15 (i) A defendant convicted of 16 (1) sexual assault in the first degree or sexual abuse of a minor in the 17 first degree may be sentenced to a definite term of imprisonment of not more than 99 18 [40] years and shall be sentenced to a definite term within the following presumptive 19 ranges [TERMS], subject to adjustment as provided in AS 12.55.155 - 12.55.175: 20 (A) if the offense is a first felony conviction and does not 21 involve circumstances described in (B) of this paragraph, eight to 12 [EIGHT] 22 years; 23 (B) if the offense is a first felony conviction and the defendant 24 possessed a firearm, used a dangerous instrument, or caused serious physical 25 injury during the commission of the offense, 12 to 16 [10] years; 26 (C) if the offense is a second felony conviction and does not 27 involve circumstances described in (D) of this paragraph, 15 to 20 [15] years; 28 (D) if the offense is a second felony conviction and the 29 defendant has a prior conviction for a sexual felony, 20 to 30 [20] years; 30 (E) if the offense is a third felony conviction and the defendant 31 is not subject to sentencing under (F) of this paragraph or (l) of this section, 25 01 to 35 [25] years; 02 (F) if the offense is a third felony conviction, the defendant is 03 not subject to sentencing under (l) of this section, and the defendant has two 04 prior convictions for sexual felonies, 30 to 40 [30] years; 05 (2) attempt, conspiracy, or solicitation to commit sexual assault in the 06 first degree or sexual abuse of a minor in the first degree may be sentenced to a 07 definite term of imprisonment of not more than 30 years and shall be sentenced to a 08 definite term within the following presumptive ranges [TERMS], subject to 09 adjustment as provided in AS 12.55.155 - 12.55.175: 10 (A) if the offense is a first felony conviction and does not 11 involve circumstances described in (B) of this paragraph, five to eight [FIVE] 12 years; 13 (B) if the offense is a first felony conviction, and the defendant 14 possessed a firearm, used a dangerous instrument, or caused serious physical 15 injury during the commission of the offense, 10 to 14 [10] years; 16 (C) if the offense is a second felony conviction and does not 17 involve circumstances described in (D) of this paragraph, 12 to 16 [10] years; 18 (D) if the offense is a second felony conviction and the 19 defendant has a prior conviction for a sexual felony, 15 to 20 [15] years; 20 (E) if the offense is a third felony conviction, does not involve 21 circumstances described in (F) of this paragraph, and the defendant is not 22 subject to sentencing under (l) of this section, 15 to 25 [15] years; 23 (F) if the offense is a third felony conviction, the defendant is 24 not subject to sentencing under (l) of this section, and the defendant has two 25 prior convictions for sexual felonies, 20 to 30 [20] years; 26 (3) sexual assault in the second degree, sexual abuse of a minor in the 27 second degree, unlawful exploitation of a minor, or distribution of child pornography 28 may be sentenced to a definite term of imprisonment of not more than 20 years and 29 shall be sentenced to a definite term within the following presumptive ranges 30 [TERMS], subject to adjustment as provided in AS 12.55.155 - 12.55.175: 31 (A) if the offense is a first felony conviction, two to four 01 years; 02 (B) if the offense is a second felony conviction and does not 03 involve circumstances described in (C) [(B)] of this paragraph, five to eight 04 [FIVE] years; 05 (C) [(B)] if the offense is a second felony conviction and the 06 defendant has a prior conviction for a sexual felony, 10 to 14 [10] years; 07 (D) [(C)] if the offense is a third felony conviction and [,] does 08 not involve circumstances described in (E) [(D)] of this paragraph, 10 to 14 09 [10] years; 10 (E) [(D)] if the offense is a third felony conviction [,] and the 11 defendant has two prior convictions for sexual felonies, 15 to 20 [15] years; 12 (4) sexual assault in the third degree, incest, indecent exposure in the 13 first degree, possession of child pornography, or attempt, conspiracy, or solicitation to 14 commit sexual assault in the second degree, sexual abuse of a minor in the second 15 degree, unlawful exploitation of a minor, or distribution of child pornography, may be 16 sentenced to a definite term of imprisonment of not more than 10 years and shall be 17 sentenced to a definite term within the following presumptive ranges [TERMS], 18 subject to adjustment as provided in AS 12.55.155 - 12.55.175: 19 (A) if the offense is a first felony conviction, one to two 20 years; 21 (B) if the offense is a second felony conviction and does not 22 involve circumstances described in (C) [(B)] of this paragraph, two to five 23 [TWO] years; 24 (C) [(B)] if the offense is a second felony conviction and the 25 defendant has a prior conviction for a sexual felony, three to six [THREE] 26 years; 27 (D) [(C)] if the offense is a third felony conviction and does not 28 involve circumstances described in (E) [(D)] of this paragraph, three to six 29 [THREE] years; 30 (E) [(D)] if the offense is a third felony conviction and the 31 defendant has two prior convictions for sexual felonies, six to 10 [SIX] years. 01 * Sec. 13. AS 12.55.125 is amended by adding a new subsection to read: 02 (n) In imposing a sentence within a presumptive range under (c), (d), (e), or (i) 03 of this section, the total term, made up of the active term of imprisonment plus any 04 suspended term of imprisonment, must fall within the presumptive range, and the 05 active term of imprisonment may not fall below the lower end of the presumptive 06 range. 07 * Sec. 14. AS 12.55.127(d) is amended by adding a new paragraph to read: 08 (4) "presumptive term" means the middle of the applicable 09 presumptive range set out in AS 12.55.125. 10 * Sec. 15. AS 12.55.145(a) is amended to read: 11 (a) For purposes of considering prior convictions in imposing sentence under 12 (1) AS 12.55.125(c), (d), or (e) [(d)(1), (d)(2), (e)(1), OR (e)(2)], 13 (A) a prior conviction may not be considered if a period of 10 14 or more years has elapsed between the date of the defendant's unconditional 15 discharge on the immediately preceding offense and commission of the present 16 offense unless the prior conviction was for an unclassified or class A felony; 17 (B) a conviction in this or another jurisdiction of an offense 18 having elements similar to those of a felony defined as such under Alaska law 19 at the time the offense was committed is considered a prior felony conviction; 20 (C) two or more convictions arising out of a single, continuous 21 criminal episode during which there was no substantial change in the nature of 22 the criminal objective are considered a single conviction unless the defendant 23 was sentenced to consecutive sentences for the crimes; offenses committed 24 while attempting to escape or avoid detection or apprehension after the 25 commission of another offense are not part of the same criminal episode or 26 objective; 27 (2) AS 12.55.125(l), 28 (A) a conviction in this or another jurisdiction of an offense 29 having elements similar to those of a most serious felony is considered a prior 30 most serious felony conviction; 31 (B) commission of and conviction for offenses relied on as 01 prior most serious felony offenses must occur in the following order: 02 conviction for the first offense must occur before commission of the second 03 offense, and conviction for the second offense must occur before commission 04 of the offense for which the defendant is being sentenced; 05 (3) AS 12.55.135(g), 06 (A) a prior conviction may not be considered if a period of five 07 or more years has elapsed between the date of the defendant's unconditional 08 discharge on the immediately preceding offense and commission of the present 09 offense unless the prior conviction was for an unclassified or class A felony; 10 (B) a conviction in this or another jurisdiction of an offense 11 having elements similar to those of a crime against a person or a crime 12 involving domestic violence is considered a prior conviction; 13 (C) two or more convictions arising out of a single, continuous 14 criminal episode during which there was no substantial change in the nature of 15 the criminal objective are considered a single conviction unless the defendant 16 was sentenced to consecutive sentences for the crimes; offenses committed 17 while attempting to escape or avoid detection or apprehension after the 18 commission of another offense are not part of the same criminal episode or 19 objective; 20 (4) AS 12.55.125(i), 21 (A) a conviction in this or another jurisdiction of an offense 22 having elements similar to those of a sexual felony is a prior conviction for a 23 sexual felony; 24 (B) a felony conviction in another jurisdiction making it a 25 crime to commit any lewd and lascivious act upon a child under the age of 16 26 years, with the intent of arousing, appealing to, or gratifying the sexual desires 27 of the defendant or the victim is a prior conviction for a sexual felony; 28 (C) two or more convictions arising out of a single, continuous 29 criminal episode during which there was no substantial change in the nature of 30 the criminal objective are considered a single conviction unless the defendant 31 was sentenced to consecutive sentences for the crimes; offenses committed 01 while attempting to escape or avoid detection or apprehension after the 02 commission of another offense are not part of the same criminal episode or 03 objective. 04 * Sec. 16. AS 12.55.155(a) is amended to read: 05 (a) Except as provided in (e) of this section, if [IF] a defendant is convicted 06 of an offense and is subject to sentencing under AS 12.55.125(c), (d), (e), or (i) 07 [AS 12.55.125(c), (d)(1), (d)(2), (e)(1), (e)(2), (e)(3), OR (i)] and 08 (1) the low end of the presumptive range [TERM] is four years or 09 less, the court may impose any sentence below the presumptive range [DECREASE 10 THE PRESUMPTIVE TERM BY AN AMOUNT AS GREAT AS THE 11 PRESUMPTIVE TERM] for factors in mitigation or may increase the active term of 12 imprisonment [PRESUMPTIVE TERM] up to the maximum term of imprisonment 13 for factors in aggravation; 14 (2) the low end of the presumptive range [TERM OF 15 IMPRISONMENT] is more than four years, the court may impose a sentence below 16 the presumptive range as long as the active term of imprisonment is not less than 17 50 percent of the low end of the presumptive range [DECREASE THE 18 PRESUMPTIVE TERM BY AN AMOUNT AS GREAT AS 50 PERCENT OF THE 19 PRESUMPTIVE TERM] for factors in mitigation or may increase the active term of 20 imprisonment [PRESUMPTIVE TERM] up to the maximum term of imprisonment 21 for factors in aggravation. 22 * Sec. 17. AS 12.55.155(b) is amended to read: 23 (b) Sentences [SENTENCE INCREMENTS AND DECREMENTS] under 24 this section that are outside of the presumptive ranges set out in AS 12.55.125 25 shall be based on the totality of the aggravating and mitigating factors set out in (c) 26 and (d) of this section. 27 * Sec. 18. AS 12.55.155(c) is amended to read: 28 (c) The following factors shall be considered by the sentencing court if 29 proven in accordance with this section, and may allow imposition of a sentence 30 above the presumptive range [AND MAY AGGRAVATE THE PRESUMPTIVE 31 TERMS] set out in AS 12.55.125: 01 (1) a person, other than an accomplice, sustained physical injury as a 02 direct result of the defendant's conduct; 03 (2) the defendant's conduct during the commission of the offense 04 manifested deliberate cruelty to another person; 05 (3) the defendant was the leader of a group of three or more persons 06 who participated in the offense; 07 (4) the defendant employed a dangerous instrument in furtherance of 08 the offense; 09 (5) the defendant knew or reasonably should have known that the 10 victim of the offense was particularly vulnerable or incapable of resistance due to 11 advanced age, disability, ill health, or extreme youth or was for any other reason 12 substantially incapable of exercising normal physical or mental powers of resistance; 13 (6) the defendant's conduct created a risk of imminent physical injury 14 to three or more persons, other than accomplices; 15 (7) a prior felony conviction considered for the purpose of invoking a 16 [THE] presumptive range under [TERMS OF] this chapter was of a more serious 17 class of offense than the present offense; 18 (8) the defendant's prior criminal history includes conduct involving 19 aggravated or repeated instances of assaultive behavior; 20 (9) the defendant knew that the offense involved more than one victim; 21 (10) the conduct constituting the offense was among the most serious 22 conduct included in the definition of the offense; 23 (11) the defendant committed the offense under [PURSUANT TO] an 24 agreement that the defendant either pay or be paid for the commission of the offense, 25 and the pecuniary incentive was beyond that inherent in the offense itself; 26 (12) the defendant was on release under AS 12.30.020 or 12.30.040 for 27 another felony charge or conviction or for a misdemeanor charge or conviction having 28 assault as a necessary element; 29 (13) the defendant knowingly directed the conduct constituting the 30 offense at an active officer of the court or at an active or former judicial officer, 31 prosecuting attorney, law enforcement officer, correctional employee, fire fighter, 01 emergency medical technician, paramedic, ambulance attendant, or other emergency 02 responder during or because of the exercise of official duties; 03 (14) the defendant was a member of an organized group of five or 04 more persons, and the offense was committed to further the criminal objectives of the 05 group; 06 (15) the defendant has three or more prior felony convictions; 07 (16) the defendant's criminal conduct was designed to obtain 08 substantial pecuniary gain and the risk of prosecution and punishment for the conduct 09 is slight; 10 (17) the offense was one of a continuing series of criminal offenses 11 committed in furtherance of illegal business activities from which the defendant 12 derives a major portion of the defendant's income; 13 (18) the offense was a felony 14 (A) specified in AS 11.41 and was committed against a spouse, 15 a former spouse, or a member of the social unit made up of [COMPRISED 16 OF] those living together in the same dwelling as the defendant; 17 (B) specified in AS 11.41.410 - 11.41.458 and the defendant 18 has engaged in the same or other conduct prohibited by a provision of 19 AS 11.41.410 - 11.41.460 involving the same or another victim; or 20 (C) specified in AS 11.41 that is a crime involving domestic 21 violence and was committed in the physical presence or hearing of a child 22 under 16 years of age who was, at the time of the offense, living within the 23 residence of the victim, the residence of the perpetrator, or the residence where 24 the crime involving domestic violence occurred; 25 (19) the defendant's prior criminal history includes an adjudication as a 26 delinquent for conduct that would have been a felony if committed by an adult; 27 (20) the defendant was on furlough under AS 33.30 or on parole or 28 probation for another felony charge or conviction that would be considered a prior 29 felony conviction under AS 12.55.145(a)(1)(B); 30 (21) the defendant has a criminal history of repeated instances of 31 conduct violative of criminal laws, whether punishable as felonies or misdemeanors, 01 similar in nature to the offense for which the defendant is being sentenced under this 02 section; 03 (22) the defendant knowingly directed the conduct constituting the 04 offense at a victim because of that person's race, sex, color, creed, physical or mental 05 disability, ancestry, or national origin; 06 (23) the defendant is convicted of an offense specified in AS 11.71 and 07 (A) the offense involved the delivery of a controlled substance 08 under circumstances manifesting an intent to distribute the substance as part of 09 a commercial enterprise; or 10 (B) at the time of the conduct resulting in the conviction, the 11 defendant was caring for or assisting in the care of a child under 10 years of 12 age; 13 (24) the defendant is convicted of an offense specified in AS 11.71 and 14 the offense involved the transportation of controlled substances into the state; 15 (25) the defendant is convicted of an offense specified in AS 11.71 and 16 the offense involved large quantities of a controlled substance; 17 (26) the defendant is convicted of an offense specified in AS 11.71 and 18 the offense involved the distribution of a controlled substance that had been 19 adulterated with a toxic substance; 20 (27) the defendant, being 18 years of age or older, 21 (A) is legally accountable under AS 11.16.110(2) for the 22 conduct of a person who, at the time the offense was committed, was under 18 23 years of age and at least three years younger than the defendant; or 24 (B) is aided or abetted in planning or committing the offense by 25 a person who, at the time the offense was committed, was under 18 years of 26 age and at least three years younger than the defendant; 27 (28) the victim of the offense is a person who provided testimony or 28 evidence related to a prior offense committed by the defendant; 29 (29) the defendant committed the offense for the benefit of, at the 30 direction of, or in association with a criminal street gang; 31 (30) the defendant is convicted of an offense specified in AS 11.41.410 01 - 11.41.455, and the defendant knowingly supplied alcohol or a controlled substance to 02 the victim in furtherance of the offense with the intent to make the victim 03 incapacitated; in this paragraph, "incapacitated" has the meaning given in 04 AS 11.41.470; 05 (31) the defendant's prior criminal history includes convictions for 06 five or more crimes in this or another jurisdiction that are class A misdemeanors 07 under the law of this state, or having elements similar to a class A misdemeanor; 08 two or more convictions arising out of a single continuous episode are considered 09 a single conviction; however, an offense is not a part of a continuous episode if 10 committed while attempting to escape or resist arrest or if it is an assault upon a 11 uniformed or otherwise clearly identified peace officer; notice and denial of 12 convictions are governed by AS 12.55.145(b), (c), and (d). 13 * Sec. 19. AS 12.55.155(d) is amended to read: 14 (d) The following factors shall be considered by the sentencing court if 15 proven in accordance with this section, and may allow imposition of a sentence 16 below the presumptive range [AND MAY MITIGATE THE PRESUMPTIVE 17 TERMS] set out in AS 12.55.125: 18 (1) the offense was principally accomplished by another person, and 19 the defendant manifested extreme caution or sincere concern for the safety or well- 20 being of the victim; 21 (2) the defendant, although an accomplice, played only a minor role in 22 the commission of the offense; 23 (3) the defendant committed the offense under some degree of duress, 24 coercion, threat, or compulsion insufficient to constitute a complete defense, but that 25 [WHICH] significantly affected the defendant's conduct; 26 (4) the conduct of a youthful defendant was substantially influenced by 27 another person more mature than the defendant; 28 (5) the conduct of an aged defendant was substantially a product of 29 physical or mental infirmities resulting from the defendant's age; 30 (6) in a conviction for assault under AS 11.41.200 - 11.41.220, the 31 defendant acted with serious provocation from the victim; 01 (7) except in the case of a crime defined by AS 11.41.410 - 11.41.470, 02 the victim provoked the crime to a significant degree; 03 (8) [REPEALED 04 (9)] the conduct constituting the offense was among the least serious 05 conduct included in the definition of the offense; 06 (9) [(10)] before the defendant knew that the criminal conduct had 07 been discovered, the defendant fully compensated or made a good faith effort to fully 08 compensate the victim of the defendant's criminal conduct for any damage or injury 09 sustained; 10 (10) [(11)] the defendant was motivated to commit the offense solely 11 by an overwhelming compulsion to provide for emergency necessities for the 12 defendant's immediate family; 13 (11) [(12)] the defendant assisted authorities to detect, apprehend, or 14 prosecute other persons who committed an offense; 15 (12) [(13)] the facts surrounding the commission of the offense and 16 any previous offenses by the defendant establish that the harm caused by the 17 defendant's conduct is consistently minor and inconsistent with the imposition of a 18 substantial period of imprisonment; 19 (13) [(14)] the defendant is convicted of an offense specified in 20 AS 11.71 and the offense involved small quantities of a controlled substance; 21 (14) [(15)] the defendant is convicted of an offense specified in 22 AS 11.71 and the offense involved the distribution of a controlled substance, other 23 than a schedule IA controlled substance, to a personal acquaintance who is 19 years of 24 age or older for no profit; 25 (15) [(16)] the defendant is convicted of an offense specified in 26 AS 11.71 and the offense involved the possession of a small amount of a controlled 27 substance for personal use in the defendant's home; 28 (16) [(17)] in a conviction for assault or attempted assault or for 29 homicide or attempted homicide, the defendant acted in response to domestic violence 30 perpetrated by the victim against the defendant and the domestic violence consisted of 31 aggravated or repeated instances of assaultive behavior; 01 (17) except in the case of an offense defined by AS 11.41 or 02 AS 11.46.400 or a defendant who has previously been convicted of a felony, the 03 defendant, at the time of sentencing, is actively participating in or has 04 successfully completed a state-approved treatment program that is relevant to 05 the offense and that was begun after the offense was committed; 06 (18) except in the case of an offense defined under AS 11.41 or 07 AS 11.46.400 or a defendant who has previously been convicted of a felony, the 08 defendant committed the offense while suffering from a mental disease or defect 09 as defined in AS 12.47.130 that was insufficient to constitute a complete defense 10 but that significantly affected the defendant's conduct. 11 * Sec. 20. AS 12.55.155(e) is amended to read: 12 (e) If a factor in aggravation is a necessary element of the present offense, or 13 requires the imposition of a sentence within the presumptive range [TERM] under 14 AS 12.55.125(c)(2), that factor may not be used to impose a sentence above the high 15 end of [AGGRAVATE] the presumptive range [TERM]. If a factor in mitigation is 16 raised at trial as a defense reducing the offense charged to a lesser included offense, 17 that factor may not be used to impose a sentence below the low end of [MITIGATE] 18 the presumptive range [TERM]. 19 * Sec. 21. AS 12.55.155(f) is amended to read: 20 (f) If the state seeks to establish a factor in aggravation at sentencing 21 (1) under (c)(7), (8), (12), (15), (19), (20), (21), or (31) of this 22 section, or if the defendant seeks to establish a factor in mitigation at sentencing, 23 written notice must be served on the opposing party and filed with the court not later 24 than 10 days before the date set for imposition of sentence; the factors [. FACTORS] 25 in aggravation listed in this paragraph and factors in mitigation must be established 26 by clear and convincing evidence before the court sitting without a jury; all [. ALL] 27 findings must be set out with specificity; 28 (2) other than one listed in (1) of this subsection, the factor shall be 29 presented to a trial jury under procedures set by the court, unless the defendant 30 waives trail by jury, stipulates to the existence of the factor, or consents to have 31 the factor proven under procedures set out in (1) of this subsection; a factor in 01 aggravation presented to a jury is established if proved beyond a reasonable 02 doubt; written notice of the intent to establish a factor in aggravation must be 03 served on the defendant and filed with the court 04 (A) 20 days before trial, or at another time specified by the 05 court; 06 (B) within 48 hours, or at a time specified by the court, if 07 the court instructs the jury about the option to return a verdict for a lesser 08 included offense; or 09 (C) five days before entering a plea that results in a finding 10 of guilt, or at another time specified by the court. 11 * Sec. 22. AS 12.55.165(a) is amended to read: 12 (a) If the defendant is subject to sentencing under AS 12.55.125(c), (d), (e), or 13 (i) [AS 12.55.125(c), (d)(1), (d)(2), (e)(1), (e)(2), (e)(3), OR (i)] and the court finds by 14 clear and convincing evidence that manifest injustice would result from failure to 15 consider relevant aggravating or mitigating factors not specifically included in 16 AS 12.55.155 or from imposition of a sentence within the presumptive range 17 [TERM], whether or not adjusted for aggravating or mitigating factors, the court shall 18 enter findings and conclusions and cause a record of the proceedings to be transmitted 19 to a three-judge panel for sentencing under AS 12.55.175. 20 * Sec. 23. AS 12.55.175(b) is amended to read: 21 (b) Upon receipt of a record of proceedings under AS 12.55.165, the three- 22 judge panel shall consider all pertinent files, records, and transcripts, including the 23 findings and conclusions of the judge who originally heard the matter. The panel may 24 hear oral testimony to supplement the record before it. If the panel supplements the 25 record, the panel shall permit the victim to testify before the panel. If the panel finds 26 that manifest injustice would result from failure to consider relevant aggravating or 27 mitigating factors not specifically included in AS 12.55.155 or from imposition of a 28 sentence within the presumptive range [TERM], whether or not adjusted for 29 aggravating or mitigating factors, it shall sentence the defendant in accordance with 30 this section. If the panel does not find that manifest injustice would result, it shall 31 remand the case to the sentencing court, with a written statement of its findings and 01 conclusions, for sentencing under AS 12.55.125. 02 * Sec. 24. AS 12.55.175(e) is amended to read: 03 (e) If the three-judge panel determines under (b) of this section that manifest 04 injustice would result from imposition of a sentence within the presumptive range 05 [TERM] and the panel also finds that the defendant has an exceptional potential for 06 rehabilitation and that a sentence of less than the presumptive range [TERM] should 07 be imposed because of the defendant's exceptional potential for rehabilitation, the 08 panel 09 (1) shall sentence the defendant within [TO] the presumptive range 10 [TERM] required under AS 12.55.125 or as permitted under AS 12.55.155; 11 (2) shall order the defendant under AS 12.55.015 to engage in 12 appropriate programs of rehabilitation; and 13 (3) may provide that the defendant is eligible for discretionary parole 14 under AS 33.16.090 during the second half of the sentence imposed under this 15 subsection if the defendant successfully completes all rehabilitation programs ordered 16 under (2) of this subsection. 17 * Sec. 25. AS 12.55.185 is amended by adding a new paragraph to read: 18 (18) "active term of imprisonment" has the meaning given in 19 AS 12.55.127. 20 * Sec. 26. AS 33.05.070 is amended by adding new subsections to read: 21 (c) At any time within the probation period, a police officer certified by the 22 Alaska Police Standards Council may detain a probationer if the police officer has 23 reasonable suspicion that the probationer has recently violated or may imminently 24 violate a probation condition relating to one of the topics set out in (d) of this section. 25 The police officer may also arrest the probationer without a warrant if the police 26 officer has probable cause to believe that the probationer has violated a probation 27 condition relating to one of the topics set out in (d) of this section. 28 (d) The conditions that permit a police officer to detain or arrest a probationer 29 or parolee without a warrant under AS 33.16.240 and (c) of this section are those 30 conditions imposed by the court, or the parole board, relating to 31 (1) geographic limitations on the probationer's movements; 01 (2) possessing or consuming controlled substances under state or 02 federal law; 03 (3) possessing firearms; 04 (4) possessing or consuming alcoholic beverages, or being in a place 05 where they are sold or served; 06 (5) operating or driving a motor vehicle; or 07 (6) other conduct that creates an imminent public danger or threatens 08 serious harm to persons or property. 09 * Sec. 27. AS 33.16.085(a) is amended to read: 10 (a) Notwithstanding a presumptive, mandatory, or mandatory minimum term 11 or sentence a prisoner may be serving or any restriction on parole eligibility under 12 AS 12.55, a prisoner who is serving a term of at least 181 days, may, upon application 13 by the prisoner or the commissioner, be released by the board on special medical 14 parole if the board determines that 15 (1) the prisoner has not been convicted of an offense under 16 AS 11.41.410 - 11.41.425 or 11.41.434 - 11.41.438 and the prisoner is severely 17 medically or cognitively disabled as certified in writing by a physician licensed under 18 AS 08.64; 19 (2) a reasonable probability exists that 20 (A) the prisoner will live and remain at liberty without 21 violating any laws or conditions imposed by the board; 22 (B) because of the prisoner's severe medical or cognitive 23 disability, the prisoner will not pose a threat of harm to the public if released 24 on parole; and 25 (C) release of the prisoner on parole would not diminish the 26 seriousness of the crime; 27 (3) the prisoner 28 (A) was not suffering from the severe medical or cognitive 29 disability at the time the prisoner committed the offense or parole or probation 30 violation for which the prisoner is presently incarcerated; or 31 (B) was suffering from the severe medical or cognitive 01 disability at the time the prisoner committed the offense or parole or probation 02 violation for which the prisoner is presently incarcerated and the medical or 03 cognitive disability has progressed so that the likelihood of the prisoner's 04 committing the same or a similar offense is low; 05 (4) the care and supervision that the prisoner requires can be provided 06 in a more medically appropriate or cost-effective manner than by the department; 07 (5) the prisoner is incapacitated to an extent that incarceration does not 08 impose significant additional restrictions on the prisoner; 09 (6) the prisoner is likely to remain subject to the severe medical or 10 cognitive disability throughout the entire period of parole or to die and there is no 11 reasonable expectation that the prisoner's medical or cognitive disability will improve 12 noticeably; and 13 (7) an appropriate discharge plan has been formulated that addresses 14 basic life domains of the prisoner, including care coordination, housing, eligibility for 15 public benefits, and health care, including necessary medication. 16 * Sec. 28. AS 33.16.090 is repealed and reenacted to read: 17 Sec. 33.16.090. Eligibility for discretionary parole and minimum terms to 18 be served. (a) A prisoner sentenced to an active term of imprisonment of at least 181 19 days may, in the discretion of the board, be released on discretionary parole if the 20 prisoner has served the amount of time specified under (b) of this section, except that 21 (1) a prisoner sentenced to one or more mandatory 99-year terms under 22 AS 12.55.125(a) or one or more definite terms under AS 12.55.125(l) is not eligible 23 for consideration for discretionary parole; 24 (2) a prisoner is not eligible for consideration of discretionary parole if 25 made ineligible by order of a court under AS 12.55.115; 26 (3) a prisoner imprisoned under AS 12.55.086 is not eligible for 27 discretionary parole unless the actual term of imprisonment is more than one year. 28 (b) A prisoner eligible under (a) of this section who is sentenced 29 (1) to a single sentence under AS 12.55.125(a) or (b) may not be 30 released on discretionary parole until the prisoner has served the mandatory minimum 31 term under AS 12.55.125(a) or (b), one-third of the active term of imprisonment 01 imposed, or any term set under AS 12.55.115, whichever is greatest; 02 (2) to a single sentence within or below a presumptive range set out in 03 AS 12.55.125(c), (d)(2) - (4), (e)(3) and (4), or (i), and has not been allowed by the 04 three-judge panel under AS 12.55.175 to be considered for discretionary parole 05 release, may not be released on discretionary parole until the prisoner has served the 06 term imposed, less good time earned under AS 33.20.010; 07 (3) to a single sentence under AS 12.55.125(c), (d)(2) - (4), (e)(3) and 08 (4), or (i), and has been allowed by the three-judge panel under AS 12.55.175 to be 09 considered for discretionary parole release during the second half of the sentence, may 10 not be released on discretionary parole until 11 (A) the prisoner has served that portion of the active term of 12 imprisonment required by the three-judge panel; and 13 (B) in addition to the factors set out in AS 33.16.100(a), the 14 board determines that 15 (i) the prisoner has successfully completed all 16 rehabilitation programs ordered by the three-judge panel that were 17 made available to the prisoner; and 18 (ii) the prisoner would not constitute a danger to the 19 public if released on parole; 20 (4) to a single enhanced sentence under AS 12.55.155(a) that is above 21 the applicable presumptive range may not be released on discretionary parole until the 22 prisoner has served the greater of the following: 23 (A) an amount of time, less good time earned under 24 AS 33.20.010, equal to the upper end of the presumptive range plus one-fourth 25 of the amount of time above the presumptive range; or 26 (B) any term set under AS 12.55.115; 27 (5) to a single sentence under any other provision of law may not be 28 released on discretionary parole until the prisoner has served at least one-fourth of the 29 active term of imprisonment, any mandatory minimum sentence imposed under any 30 provision of law, or any term set under AS 12.55.115, whichever is greatest; 31 (6) to concurrent sentences may not be released on discretionary parole 01 until the prisoner has served the greatest of 02 (A) any mandatory minimum sentence or sentences imposed 03 under any provision of law; 04 (B) any term set under AS 12.55.115; or 05 (C) the amount of time that is required to be served under (1) - 06 (5) of this subsection for the sentence imposed for the primary crime, had that 07 been the only sentence imposed; 08 (7) to consecutive or partially consecutive sentences may not be 09 released on discretionary parole until the prisoner has served the greatest of 10 (A) the composite total of any mandatory minimum sentence or 11 sentences imposed under any provision of law, including AS 12.55.127; 12 (B) any term set under AS 12.55.115; or 13 (C) the amount of time that is required to be served under (1) - 14 (5) of this subsection for the sentence imposed for the primary crime, had that 15 been the only sentence imposed, plus one-quarter of the composite total of the 16 active term of imprisonment imposed as consecutive or partially consecutive 17 sentences imposed for all crimes other than the primary crime. 18 (c) As used in this section, 19 (1) "active term of imprisonment" has the meaning given in 20 AS 12.55.185; 21 (2) "primary crime" has the meaning given in AS 12.55.127. 22 * Sec. 29. AS 33.16.100 is amended by adding a new subsection to read: 23 (e) If the parole board considers an application for discretionary parole and 24 denies parole because the prisoner does not meet the standards in (a) of this section, 25 the board may make a prisoner ineligible for further consideration of discretionary 26 parole, or may require that additional time be served before the prisoner is again 27 eligible for consideration for discretionary parole. 28 * Sec. 30. AS 33.16.240(c) is amended to read: 29 (c) In addition to the powers granted to a police officer under (g) of this 30 section, a [A] parole officer may, without a warrant, arrest a parolee for a violation of 31 parole only if there is danger to the public, if there is a likelihood that the parolee will 01 flee, or if the parolee committed a crime in the presence of the parole officer. 02 * Sec. 31. AS 33.16.240 is amended by adding a new subsection to read: 03 (g) At any time within the period of parole supervision, a police officer 04 certified by the Alaska Police Standards Council may detain a parolee if the officer 05 has reasonable suspicion that the person has recently violated or may imminently 06 violate a parole condition relating to one of the topics set out in AS 33.05.070(d). The 07 officer may also arrest the parolee without a warrant if the officer has probable cause 08 to believe that the person has violated a parole condition relating to one of the topics 09 set out in AS 33.05.070(d). 10 * Sec. 32. AS 12.55.125(k); AS 33.16.100(c), and 33.16.100(d) are repealed. 11 * Sec. 33. The uncodified law of the State of Alaska is amended by adding a new section to 12 read: 13 APPLICABILITY. Sections 2, 5, 26, and 29 - 31 of this Act apply to offenses 14 committed before, on, or after the effective date of this Act. Sections 3, 4, 6 - 25, 27, and 28 15 of this Act apply to offenses committed on or after the effective date of this Act. References 16 to prior offenses or convictions in secs. 8 - 21 of this Act include offenses committed before, 17 on, or after the effective date of this Act. 18 * Sec. 34. This Act takes effect immediately under AS 01.10.070(c).