00 SENATE BILL NO. 186 01 "An Act relating to persons found guilty but mentally ill; relating to sentencing 02 procedures for factors that may increase the presumptive range or affect mandatory 03 parole eligibility; relating to the granting of probation; relating to procedures for 04 finding aggravating factors at sentencing; amending Rule 32.1, Alaska Rules of 05 Criminal Procedure; and providing for an effective date." 06 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 07 * Section 1. AS 12.47.040(b) is amended to read: 08 (b) To return a verdict under (a)(4) of this section, the fact finder [JURY] 09 must find beyond a reasonable doubt that the defendant committed the crime and 10 [FIND BY A PREPONDERANCE OF THE EVIDENCE] that, when the defendant 11 committed the crime, the defendant was guilty but mentally ill as defined in 12 AS 12.47.030. 13 * Sec. 2. AS 12.47.060(a) is amended to read: 01 (a) In a prosecution for a crime when the affirmative defense of insanity is not 02 raised and when evidence of mental disease or defect of the defendant is not admitted 03 at trial under AS 12.47.020, [AND THE DEFENDANT IS CONVICTED OF A 04 CRIME,] the defendant or [,] the prosecuting attorney [, OR THE COURT ON ITS 05 OWN MOTION] may raise the issue of whether the defendant is guilty but mentally 06 ill. A party that seeks a post-conviction determination of guilty but mentally ill 07 must give notice 10 days before trial of intent to do so; however, this deadline is 08 waived if the opposing party presents evidence or argument at trial tending to 09 show that the defendant may be guilty but mentally ill. A hearing must be held on 10 this issue [AT OR] before the same fact finder that returned the verdict of guilty 11 under procedures set by the court. In cases decided by a jury, at the request of 12 the defendant and with the concurrence of the prosecuting attorney, the court 13 may decide the issue. A waiver of consideration by a jury must be in writing and 14 in person before the court [SENTENCING HEARING]. At the hearing, the fact 15 finder [COURT] shall determine whether the defendant has been shown to be guilty 16 but mentally ill beyond a reasonable doubt, considering [BY A 17 PREPONDERANCE OF THE] evidence presented at the hearing and any evidence 18 relevant to the issue that was presented at trial. 19 * Sec. 3. AS 12.47.060(b) is amended to read: 20 (b) If the fact finder [COURT] finds that a defendant is guilty but mentally 21 ill, the court [IT] shall sentence the defendant as provided by law and shall enter the 22 finding of guilty but mentally ill as part of the judgment. 23 * Sec. 4. AS 12.55.025(i) is amended to read: 24 (i) Except as otherwise provided in this chapter [BY AS 12.55.125(a)(3), 25 12.55.145(d), 12.55.155(f), AND 12.55.165], the preponderance of the evidence 26 standard of proof applies to sentencing proceedings. 27 * Sec. 5. AS 12.55.090(b) is amended to read: 28 (b) Except as otherwise provided in (f) of this section, the [THE] court may 29 revoke or modify any condition of probation [,] or may change the period of 30 probation. 31 * Sec. 6. AS 12.55.090 is amended by adding a new subsection to read: 01 (f) Unless the defendant and the prosecuting authority agree at the probation 02 revocation proceeding or other proceeding, the court may not reduce the specific 03 period of probation, or the specific term of suspended incarceration except by the 04 amount of incarceration imposed for a probation violation, if 05 (1) the sentence was imposed in accordance with a plea agreement 06 under Rule 11, Alaska Rules of Criminal Procedure; and 07 (2) the agreement required a specific period of probation or a specific 08 term of suspended incarceration. 09 * Sec. 7. AS 12.55.125(a) is amended to read: 10 (a) A defendant convicted of murder in the first degree or murder of an unborn 11 child under AS 11.41.150(a)(1) shall be sentenced to a definite term of imprisonment 12 of at least 20 years but not more than 99 years. A defendant convicted of murder in the 13 first degree shall be sentenced to a mandatory term of imprisonment of 99 years when 14 (1) the defendant is convicted of the murder of a uniformed or 15 otherwise clearly identified peace officer, firefighter, or correctional employee who 16 was engaged in the performance of official duties at the time of the murder; 17 (2) the defendant has been previously convicted of 18 (A) murder in the first degree under AS 11.41.100 or former 19 AS 11.15.010 or 11.15.020; 20 (B) murder in the second degree under AS 11.41.110 or former 21 AS 11.15.030; or 22 (C) homicide under the laws of another jurisdiction when the 23 offense of which the defendant was convicted contains elements similar to first 24 degree murder under AS 11.41.100 or second degree murder under 25 AS 11.41.110; 26 (3) [THE COURT FINDS BY CLEAR AND CONVINCING 27 EVIDENCE THAT] the defendant subjected the murder victim to substantial physical 28 torture; 29 (4) the defendant is convicted of the murder of and personally caused 30 the death of a person, other than a participant, during a robbery; or 31 (5) [THE COURT FINDS BY CLEAR AND CONVINCING 01 EVIDENCE THAT] the defendant is a peace officer who used the officer's authority 02 as a peace officer to facilitate the murder. 03 * Sec. 8. AS 12.55.125 is amended by adding a new subsection to read: 04 (p) If the state seeks either (1) the imposition of a sentence under (a) of this 05 section that would preclude the defendant from being awarded a good time deduction 06 under AS 33.20.010(a) based on a fact other than a prior conviction; or (2) to establish 07 a fact that would increase the presumptive sentencing range under (c)(2), (d)(2), (e)(4), 08 (i)(1)(A) or (B), or (i)(2)(A) or (B) of this section, the factual question required to be 09 decided shall be presented to a trial jury and proven beyond a reasonable doubt under 10 procedures set by the court, unless the defendant waives trial by jury and either 11 stipulates to the existence of the fact or consents to have the fact proven to the court 12 sitting without a jury. Written notice of the intent to establish a fact under this 13 subsection must be served on the defendant and filed with the court as provided for 14 notice under AS 12.55.155(f)(2). 15 * Sec. 9. AS 12.55.155 is amended by adding new subsections to read: 16 (i) If the state seeks to establish a factor in aggravation at sentencing under 17 (c)(10) of this section, 18 (1) the assessment of the facts underlying the state's allegation that the 19 defendant's conduct was among the most serious included in the definition of the 20 offense shall be made by the trial jury under procedures set by the court and as 21 provided in (f)(2) of this section, unless the defendant waives trial by jury, stipulates 22 to the existence of the aggravating factor or to the facts alleged by the state, or 23 consents to have the assessment proved under procedures set out in (f)(1) of this 24 section; factual assertions underlying the state's allegation that the defendant's conduct 25 was among the most serious included in the definition of the offense must be proved 26 beyond a reasonable doubt; 27 (2) the legal decision concerning whether the defendant's conduct 28 determined under (1) of this subsection was among the most serious included in the 29 definition of the offense shall be made by the court under procedures set out in (f)(1) 30 of this section. 31 (j) If one of the aggravating factors in (c) of this section is established as 01 provided in (f)(1) and (2) of this section, the court may increase the term of 02 imprisonment up to the maximum term of imprisonment. Any additional aggravating 03 factor may then be established by clear and convincing evidence by the court sitting 04 without a jury, including an aggravating factor that the jury has found not to have been 05 established beyond a reasonable doubt. 06 * Sec. 10. AS 33.05.050 is amended to read: 07 Sec. 33.05.050. Report of probation officer. When directed by the court, the 08 probation officer shall report to the court [,] with a statement of the conduct of the 09 probationer while on probation. Except as otherwise provided by law, the [THE] 10 court may then discharge the probationer from further supervision and may terminate 11 the proceedings against the probationer, or may extend the probation, as shall seem 12 advisable. 13 * Sec. 11. AS 33.05.070(b) is amended to read: 14 (b) As speedily as possible after arrest, the probationer shall be taken before 15 the court for the district having jurisdiction over the probationer. Except as provided 16 in AS 12.55.090(f), [THEREUPON] the court may revoke the probation and require 17 the probationer to serve the sentence imposed [,] or any lesser sentence [,] and, if 18 imposition of sentence was suspended, may impose any sentence that [WHICH] 19 might originally have been imposed, subject to the limitation specified in 20 AS 12.55.086(c). 21 * Sec. 12. The uncodified law of the State of Alaska is amended by adding a new section to 22 read: 23 INDIRECT COURT RULE AMENDMENT. AS 12.55.125(p), enacted by sec. 8 of 24 this Act, and AS 12.55.155(i) and (j), enacted by sec. 9 of this Act, have the effect of 25 changing Rule 32.1, Alaska Rules of Criminal Procedure, by amending procedures for 26 sentencing persons convicted of certain crimes. 27 * Sec. 13. The uncodified law of the State of Alaska is amended by adding a new section to 28 read: 29 APPLICABILITY. (a) AS 12.47.040(b), as amended by sec. 1 of this Act, 30 AS 12.47.060(a), as amended by sec. 2 of this Act, AS 12.47.060(b), as amended by sec. 3 of 31 this Act, AS 12.55.025(i), as amended by sec. 4 of this Act, and AS 12.55.125(a), as amended 01 by sec. 7 of this Act, apply to proceedings occurring on or after the effective date of this Act 02 for offenses occurring before, on, or after the effective date of this Act. 03 (b) AS 12.55.090, as amended by sec. 6 of this Act, applies to offenses occurring on 04 or after the effective date of this Act. 05 (c) AS 12.55.125(p), enacted by sec. 8 of this Act, applies to sentencing proceedings 06 occurring on or after the effective date of this Act for offenses occurring before, on, or after 07 the effective date of this Act. 08 * Sec. 14. The uncodified law of the State of Alaska is amended by adding a new section to 09 read: 10 CONDITIONAL EFFECT. Sections 8 and 9 of this Act take effect only if sec. 12 of 11 this Act receives the two-thirds majority vote of each house required by art. IV, sec. 15, 12 Constitution of the State of Alaska. 13 * Sec. 15. This Act takes effect July 1, 2012.