CSHB 38(JUD): "An Act relating to criminal sentencing; relating to the availability for good time credit for offenders convicted of certain first degree murders; relating to definite sentences, parole, good time credit, pardon, commutation of sentence, modification or reduction of sentence, reprieve, furlough, and service of sentence at a correctional restitution center for offenders with at least three serious felony convictions; and amending Alaska Rule of Criminal Procedure 35."
00CS FOR HOUSE BILL NO. 38(JUD) 01 "An Act relating to criminal sentencing; relating to the availability for good time 02 credit for offenders convicted of certain first degree murders; relating to definite 03 sentences, parole, good time credit, pardon, commutation of sentence, modification 04 or reduction of sentence, reprieve, furlough, and service of sentence at a 05 correctional restitution center for offenders with at least three serious felony 06 convictions; and amending Alaska Rule of Criminal Procedure 35." 07 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 08 * Section 1. FINDINGS AND INTENT. (a) The legislature finds that 09 (1) community protection from persistent offenders is a priority for any 10 civilized society; 11 (2) a large percentage of criminal offenders convicted in this state have prior 12 criminal histories; 13 (3) punishments for criminal offenses should be proportionate to both the 14 seriousness of the crime and the prior criminal history of the offender;
01 (4) the legislature has a right and the responsibility to determine when to 02 impose extensive periods of confinement. 03 (b) By sentencing three-time, most serious offenders to prison for extensive periods 04 without the possibility of parole, the legislature intends to 05 (1) improve public safety by placing the most dangerous criminals in prison; 06 (2) reduce the number of serious, repeat offenders by tougher sentencing; 07 (3) set proper and simplified sentencing practices that both victims and 08 persistent offenders can understand; and 09 (4) restore public trust in our criminal justice system. 10 * Sec. 2. AS 12.55.025(e) is amended to read: 11 (e) Except as provided in (g) and (h) of this section, if the defendant has been 12 convicted of two or more crimes, sentences of imprisonment shall run consecutively. 13 If the defendant is imprisoned upon a previous judgment of conviction for a crime, the 14 judgment shall provide that the imprisonment commences at the expiration of the term 15 imposed by the previous judgment. Nothing in AS 12.55.125(a) or (l) limits the court's 16 ability to impose consecutive sentences. 17 * Sec. 3. AS 12.55.125(c) is amended to read: 18 (c) A defendant convicted of a class A felony may be sentenced to a definite 19 term of imprisonment of not more than 20 years, and shall be sentenced to the 20 following presumptive terms, subject to adjustment as provided in AS 12.55.155 - 21 12.55.175: 22 (1) if the offense is a first felony conviction and does not involve 23 circumstances described in (2) of this subsection, five years; 24 (2) if the offense is a first felony conviction, other than for 25 manslaughter, and the defendant possessed a firearm, used a dangerous instrument, or 26 caused serious physical injury during the commission of the offense, or knowingly 27 directed the conduct constituting the offense at a uniformed or otherwise clearly 28 identified peace officer, fire fighter, correctional officer, emergency medical technician, 29 paramedic, ambulance attendant, or other emergency responder who was engaged in 30 the performance of official duties at the time of the offense, seven years; 31 (3) if the offense is a second felony conviction, 10 years ;
01 (4) if the offense is a third felony conviction and the defendant is not 02 subject to sentencing under (l) of this section, 15 years. 03 * Sec. 4. AS 12.55.125(f) is amended to read: 04 (f) If a defendant is sentenced under (a) or (b) of this section, 05 (1) imprisonment for the prescribed minimum or mandatory term may 06 not be suspended under AS 12.55.080; 07 (2) imposition of sentence may not be suspended under AS 12.55.085; 08 (3) imprisonment for the prescribed minimum or mandatory term may 09 not be [OTHERWISE] reduced, except as provided in (j) of this section. 10 * Sec. 5. AS 12.55.125(i) is amended to read: 11 (i) A defendant convicted of sexual assault in the first degree or sexual abuse 12 of a minor in the first degree may be sentenced to a definite term of imprisonment of 13 not more than 30 years, and shall be sentenced to the following presumptive terms, 14 subject to adjustment as provided in AS 12.55.155 - 12.55.175: 15 (1) if the offense is a first felony conviction and does not involve 16 circumstances described in (2) of this subsection, eight years; 17 (2) if the offense is a first felony conviction, and the defendant 18 possessed a firearm, used a dangerous instrument, or caused serious physical injury 19 during the commission of the offense, 10 years; 20 (3) if the offense is a second felony conviction, 15 years; 21 (4) if the offense is a third felony conviction and the defendant is not 22 subject to sentencing under (l) of this section, 25 years. 23 * Sec. 6. AS 12.55.125(j) is amended to read: 24 (j) A defendant sentenced to a 25 (1) mandatory term of imprisonment of 99 years under (a) of this 26 section may apply for a modification or reduction of sentence under the Alaska Rules 27 of Criminal Procedure after serving one-half of the mandatory term without 28 consideration of good time earned under AS 33.20.010; 29 (2) definite term of imprisonment under (l) of this section may 30 apply for a modification or reduction of sentence under the Alaska Rules of 31 Criminal Procedure after serving the greater of
01 (A) one-half of the definite term; or 02 (B) 30 years. 03 * Sec. 7. AS 12.55.125 is amended by adding a new subsection to read: 04 (l) Notwithstanding any other provision of law, a defendant convicted of an 05 unclassified or class A felony offense, and not subject to a mandatory 99-year sentence 06 under (a) of this section, shall be sentenced to a definite term of imprisonment of at 07 least 40 years but not more than 99 years when the defendant has been previously 08 convicted of two or more most serious felonies and the prosecuting attorney has filed 09 a notice of intent to seek a definite sentence under this subsection at the time the 10 defendant was arraigned in superior court. If a defendant is sentenced to a definite 11 term under this section, 12 (1) imprisonment for the prescribed definite term may not be suspended 13 under AS 12.55.080; 14 (2) imposition of sentence may not be suspended under AS 12.55.085; 15 (3) imprisonment for the prescribed definite term may not be reduced, 16 except as provided in (j) of this section. 17 * Sec. 8. AS 12.55.145(a) is amended to read: 18 (a) For purposes of considering prior convictions in imposing sentence under 19 (1) AS 12.55.125(c), (d)(1), (d)(2), (e)(1), (e)(2), or (i), 20 (A) [(1)] a prior conviction may not be considered if a period 21 of 10 or more years has elapsed between the date of the defendant's 22 unconditional discharge on the immediately preceding offense and commission 23 of the present offense unless the prior conviction was for an unclassified or 24 class A felony; 25 (B) [(2)] a conviction in this or another jurisdiction of an 26 offense having elements similar to those of a felony defined as such under 27 Alaska law at the time the offense was committed is considered a prior felony 28 conviction; 29 (C) [(3)] two or more convictions arising out of a single, 30 continuous criminal episode during which there was no substantial change in 31 the nature of the criminal objective are considered a single conviction unless
01 the defendant was sentenced to consecutive sentences for the crimes; offenses 02 committed while attempting to escape or avoid detection or apprehension after 03 the commission of another offense are not part of the same criminal episode 04 or objective; 05 (2) AS 12.55.125(l), 06 (A) a conviction in this or another jurisdiction of an offense 07 having elements similar to those of a most serious felony is considered a 08 prior most serious felony conviction; 09 (B) commission of and conviction for offenses relied on as 10 prior most serious felony offenses must occur in the following order: 11 conviction for the first offense must occur before commission of the second 12 offense, and conviction for the second offense must occur before 13 commission of the offense for which the defendant is being sentenced. 14 * Sec. 9. AS 12.55.145(c) is amended to read: 15 (c) The defendant shall file with the court and serve on the prosecuting 16 attorney notice of denial, consisting of a concise statement of the grounds relied 17 upon and that may be supported by affidavit or other documentary evidence, no 18 later than 10 days before the date set for the imposition of sentence if [IF] the 19 defendant 20 (1) denies 21 (A) the authenticity of a prior judgment of conviction; 22 (B) [,] that the defendant is the person named in the judgment; 23 (C) [,] that the elements of a prior offense committed in this or 24 another jurisdiction are similar [SUBSTANTIALLY IDENTICAL] to those of 25 a 26 (i) felony defined as such under Alaska law; 27 (ii) most serious felony, defined as such under Alaska 28 law; 29 (D) [, OR] that a prior conviction occurred within the period 30 specified in (a)(1)(A) [(a)(1)] of this section; or 31 (E) that a previous conviction occurred in the order
01 required under (a)(2)(B) of this section; or 02 (2) [IF THE DEFENDANT] alleges that two or more purportedly 03 separate prior convictions should be considered a single conviction under (a)(1)(C) 04 [(a)(3)] of this section [, THE DEFENDANT SHALL FILE WITH THE COURT AND 05 SERVE ON THE PROSECUTING ATTORNEY NOTICE OF DENIAL NO LATER 06 THAN 10 DAYS BEFORE THE DATE SET FOR IMPOSITION OF SENTENCE. 07 THE NOTICE OF DENIAL MUST INCLUDE A CONCISE STATEMENT OF THE 08 GROUNDS RELIED UPON AND MAY BE SUPPORTED BY AFFIDAVIT OR 09 OTHER DOCUMENTARY EVIDENCE]. 10 * Sec. 10. AS 12.55.145(d) is amended to read: 11 (d) Matters alleged in a notice of denial shall be heard by the court sitting 12 without a jury. If the defendant introduces substantial evidence that the defendant is 13 not the person named in a prior judgment of conviction, that the judgment is not 14 authentic, that the conviction did not occur within the period specified in (a)(1)(A) 15 [(a)(1)] of this section, [OR] that a conviction should not be considered a prior felony 16 conviction under (a)(1)(B) [(a)(2)] of this section or a prior most serious felony 17 conviction under (a)(2)(A) of this section, or that a previous conviction did not 18 occur in the order required under (a)(2)(B) of this section, then the burden is on 19 the state to prove the contrary beyond a reasonable doubt. The burden of proof that 20 two or more convictions should be considered a single conviction under (a)(1)(C) 21 [(a)(3)] of this section is on the defendant by clear and convincing evidence. 22 * Sec. 11. AS 12.55.145 is amended by adding a new subsection to read: 23 (f) Under this section, a prior conviction has occurred when a defendant has 24 entered a plea of guilty, guilty but mentally ill, or nolo contendere, or when a verdict 25 of guilty or guilty but mentally ill has been returned by a jury or by the court. 26 * Sec. 12. AS 12.55.155(c)(20) is amended to read: 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) [AS 12.55.145(a)(2)]; 30 * Sec. 13. AS 12.55.185 is amended by adding a new paragraph to read: 31 (14) "most serious felony" means any unclassified or class A felony
01 prescribed under AS 11 or an attempt or conspiracy to commit, or criminal solicitation 02 under AS 11.31.110 of, an unclassified felony prescribed under AS 11. 03 * Sec. 14. AS 33.16.090(b) is amended to read: 04 (b) Except as provided in (e) of this section, a prisoner is not eligible for 05 discretionary parole during the term of a presumptive sentence; however, a prisoner 06 is eligible for discretionary parole during a term of sentence enhancement imposed 07 under AS 12.55.155(a) or during the term of a consecutive or partially consecutive 08 presumptive sentence imposed under AS 12.55.025(e) or (g). A prisoner sentenced to 09 a mandatory 99-year term under AS 12.55.125(a) or a definite term under 10 AS 12.55.125(l) is not eligible for discretionary parole during the entire term. 11 * Sec. 15. AS 33.20.010(a) is amended to read: 12 (a) Except as provided in (b) of this section and notwithstanding 13 AS 12.55.125(f)(3) and 12.55.125(g)(3), a prisoner convicted of an offense against the 14 state or a political subdivision of the state and sentenced to a term of imprisonment 15 that exceeds three days is entitled to a deduction of one-third of the term of 16 imprisonment rounded off to the nearest day if the prisoner follows the rules of the 17 correctional facility in which the prisoner is confined. A prisoner is not eligible for 18 a good time deduction if the prisoner has been sentenced to a 19 (1) mandatory 99-year term of imprisonment under AS 12.55.125(a) 20 after the effective date of this Act; or 21 (2) definite term under AS 12.55.125(l). 22 * Sec. 16. AS 33.30.101 is amended by adding a new subsection to read: 23 (c) The regulations adopted under (a) of this section may not provide for the 24 granting of a furlough of any type to a prisoner sentenced to a definite term of 25 imprisonment under AS 12.55.125(l) unless the prisoner is at all times in the direct 26 custody of a correctional officer while the prisoner is away from the correctional 27 facility. 28 * Sec. 17. AS 33.30.161(b) is amended to read: 29 (b) To be eligible to serve time in a correctional restitution center, the prisoner 30 (1) must be employable or eligible to work on community service 31 projects approved by the commissioner and agree to secure employment or participate
01 in community service projects and obey the rules of the center; 02 (2) may not be serving a sentence for conviction of an offense 03 (A) involving violence or the use of force; 04 (B) under AS 11.41.320, 11.41.330, or AS 11.56.740; 05 (3) may not have been convicted of a felony offense, in the state or 06 another jurisdiction, involving violence or the use of force; [AND] 07 (4) may not have been convicted of an offense under AS 11.41.410 - 08 11.41.470 or an offense in the state or another jurisdiction having elements 09 substantially identical to an offense under AS 11.41.410 - 11.41.470; and 10 (5) may not have been sentenced to a definite term of imprisonment 11 under AS 12.55.125(l). 12 * Sec. 18. APPLICABILITY. References to prior or previous convictions in this Act apply 13 to all convictions occurring before, on, or after the effective date of this Act. 14 * Sec. 19. AS 12.55.125(j), amended by sec. 6 of this Act, has the effect of amending 15 Alaska Rule of Criminal Procedure 35 by permitting a court to reduce or modify a definite 16 sentence of imprisonment imposed under AS 12.55.125(l) only after the defendant has served 17 the greater of one-half of the definite term or 30 years.