CSHB 38(JUD) AM: "An Act relating to criminal sentencing; relating to good time credit; 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) am 01 "An Act relating to criminal sentencing; relating to good time credit; relating to 02 the availability for good time credit for offenders convicted of certain first degree 03 murders; relating to definite sentences, parole, good time credit, pardon, 04 commutation of sentence, modification or reduction of sentence, reprieve, furlough, 05 and service of sentence at a correctional restitution center for offenders with at 06 least three serious felony convictions; and amending Alaska Rule of Criminal 07 Procedure 35." 08 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 09 * Section 1. FINDINGS AND INTENT. (a) The legislature finds that 10 (1) community protection from persistent offenders is a priority for any 11 civilized society; 12 (2) a large percentage of criminal offenders convicted in this state have prior 13 criminal histories; 14 (3) punishments for criminal offenses should be proportionate to both the
01 seriousness of the crime and the prior criminal history of the offender; 02 (4) the legislature has a right and the responsibility to determine when to 03 impose extensive periods of confinement. 04 (b) By sentencing three-time, most serious offenders to prison for extensive periods 05 without the possibility of parole, the legislature intends to 06 (1) improve public safety by placing the most dangerous criminals in prison; 07 (2) reduce the number of serious, repeat offenders by tougher sentencing; 08 (3) set proper and simplified sentencing practices that both victims and 09 persistent offenders can understand; and 10 (4) restore public trust in our criminal justice system. 11 * Sec. 2. AS 12.55.025(e) is amended to read: 12 (e) Except as provided in (g) and (h) of this section, if the defendant has been 13 convicted of two or more crimes, sentences of imprisonment shall run consecutively. 14 If the defendant is imprisoned upon a previous judgment of conviction for a crime, the 15 judgment shall provide that the imprisonment commences at the expiration of the term 16 imposed by the previous judgment. Nothing in AS 12.55.125(a) or (l) limits the court's 17 ability to impose consecutive sentences. 18 * Sec. 3. AS 12.55.125(c) is amended to read: 19 (c) A defendant convicted of a class A felony may be sentenced to a definite 20 term of imprisonment of not more than 20 years, and shall be sentenced to the 21 following presumptive terms, subject to adjustment as provided in AS 12.55.155 - 22 12.55.175: 23 (1) if the offense is a first felony conviction and does not involve 24 circumstances described in (2) of this subsection, five years; 25 (2) if the offense is a first felony conviction, other than for 26 manslaughter, and the defendant possessed a firearm, used a dangerous instrument, or 27 caused serious physical injury during the commission of the offense, or knowingly 28 directed the conduct constituting the offense at a uniformed or otherwise clearly 29 identified peace officer, fire fighter, correctional officer, emergency medical technician, 30 paramedic, ambulance attendant, or other emergency responder who was engaged in 31 the performance of official duties at the time of the offense, seven years;
01 (3) if the offense is a second felony conviction, 10 years ; 02 (4) if the offense is a third felony conviction and the defendant is not 03 subject to sentencing under (l) of this section, 15 years. 04 * Sec. 4. AS 12.55.125(f) is amended to read: 05 (f) If a defendant is sentenced under (a) or (b) of this section, 06 (1) imprisonment for the prescribed minimum or mandatory term may 07 not be suspended under AS 12.55.080; 08 (2) imposition of sentence may not be suspended under AS 12.55.085; 09 (3) imprisonment for the prescribed minimum or mandatory term may 10 not be [OTHERWISE] reduced, except as provided in (j) of this section. 11 * Sec. 5. AS 12.55.125(i) is amended to read: 12 (i) A defendant convicted of sexual assault in the first degree or sexual abuse 13 of a minor in the first degree may be sentenced to a definite term of imprisonment of 14 not more than 30 years, and shall be sentenced to the following presumptive terms, 15 subject to adjustment as provided in AS 12.55.155 - 12.55.175: 16 (1) if the offense is a first felony conviction and does not involve 17 circumstances described in (2) of this subsection, eight years; 18 (2) if the offense is a first felony conviction, and the defendant 19 possessed a firearm, used a dangerous instrument, or caused serious physical injury 20 during the commission of the offense, 10 years; 21 (3) if the offense is a second felony conviction, 15 years; 22 (4) if the offense is a third felony conviction and the defendant is not 23 subject to sentencing under (l) of this section, 25 years. 24 * Sec. 6. AS 12.55.125(j) is amended to read: 25 (j) A defendant sentenced to a 26 (1) mandatory term of imprisonment of 99 years under (a) of this 27 section may apply for a modification or reduction of sentence under the Alaska Rules 28 of Criminal Procedure after serving one-half of the mandatory term without 29 consideration of good time earned under AS 33.20.010; 30 (2) definite term of imprisonment under (l) of this section may 31 apply for a modification or reduction of sentence under the Alaska Rules of
01 Criminal Procedure after serving the greater of 02 (A) one-half of the definite term; or 03 (B) 30 years. 04 * Sec. 7. AS 12.55.125 is amended by adding a new subsection to read: 05 (l) Notwithstanding any other provision of law, a defendant convicted of an 06 unclassified or class A felony offense, and not subject to a mandatory 99-year sentence 07 under (a) of this section, shall be sentenced to a definite term of imprisonment of at 08 least 40 years but not more than 99 years when the defendant has been previously 09 convicted of two or more most serious felonies and the prosecuting attorney has filed 10 a notice of intent to seek a definite sentence under this subsection at the time the 11 defendant was arraigned in superior court. If a defendant is sentenced to a definite 12 term under this section, 13 (1) imprisonment for the prescribed definite term may not be suspended 14 under AS 12.55.080; 15 (2) imposition of sentence may not be suspended under AS 12.55.085; 16 (3) imprisonment for the prescribed definite term may not be reduced, 17 except as provided in (j) of this section. 18 * Sec. 8. AS 12.55.145(a) is amended to read: 19 (a) For purposes of considering prior convictions in imposing sentence under 20 (1) AS 12.55.125(c), (d)(1), (d)(2), (e)(1), (e)(2), or (i), 21 (A) [(1)] a prior conviction may not be considered if a period 22 of 10 or more years has elapsed between the date of the defendant's 23 unconditional discharge on the immediately preceding offense and commission 24 of the present offense unless the prior conviction was for an unclassified or 25 class A felony; 26 (B) [(2)] a conviction in this or another jurisdiction of an 27 offense having elements similar to those of a felony defined as such under 28 Alaska law at the time the offense was committed is considered a prior felony 29 conviction; 30 (C) [(3)] two or more convictions arising out of a single, 31 continuous criminal episode during which there was no substantial change in
01 the nature of the criminal objective are considered a single conviction unless 02 the defendant was sentenced to consecutive sentences for the crimes; offenses 03 committed while attempting to escape or avoid detection or apprehension after 04 the commission of another offense are not part of the same criminal episode 05 or objective; 06 (2) AS 12.55.125(l), 07 (A) a conviction in this or another jurisdiction of an offense 08 having elements similar to those of a most serious felony is considered a 09 prior most serious felony conviction; 10 (B) commission of and conviction for offenses relied on as 11 prior most serious felony offenses must occur in the following order: 12 conviction for the first offense must occur before commission of the second 13 offense, and conviction for the second offense must occur before 14 commission of the offense for which the defendant is being sentenced. 15 * Sec. 9. AS 12.55.145(c) is amended to read: 16 (c) The defendant shall file with the court and serve on the prosecuting 17 attorney notice of denial, consisting of a concise statement of the grounds relied 18 upon and that may be supported by affidavit or other documentary evidence, no 19 later than 10 days before the date set for the imposition of sentence if [IF] the 20 defendant 21 (1) denies 22 (A) the authenticity of a prior judgment of conviction; 23 (B) [,] that the defendant is the person named in the judgment; 24 (C) [,] that the elements of a prior offense committed in this or 25 another jurisdiction are similar [SUBSTANTIALLY IDENTICAL] to those of 26 a 27 (i) felony defined as such under Alaska law; 28 (ii) most serious felony, defined as such under Alaska 29 law; 30 (D) [, OR] that a prior conviction occurred within the period 31 specified in (a)(1)(A) [(a)(1)] of this section; or
01 (E) that a previous conviction occurred in the order 02 required under (a)(2)(B) of this section; or 03 (2) [IF THE DEFENDANT] alleges that two or more purportedly 04 separate prior convictions should be considered a single conviction under (a)(1)(C) 05 [(a)(3)] of this section [, THE DEFENDANT SHALL FILE WITH THE COURT AND 06 SERVE ON THE PROSECUTING ATTORNEY NOTICE OF DENIAL NO LATER 07 THAN 10 DAYS BEFORE THE DATE SET FOR IMPOSITION OF SENTENCE. 08 THE NOTICE OF DENIAL MUST INCLUDE A CONCISE STATEMENT OF THE 09 GROUNDS RELIED UPON AND MAY BE SUPPORTED BY AFFIDAVIT OR 10 OTHER DOCUMENTARY EVIDENCE]. 11 * Sec. 10. AS 12.55.145(d) is amended to read: 12 (d) Matters alleged in a notice of denial shall be heard by the court sitting 13 without a jury. If the defendant introduces substantial evidence that the defendant is 14 not the person named in a prior judgment of conviction, that the judgment is not 15 authentic, that the conviction did not occur within the period specified in (a)(1)(A) 16 [(a)(1)] of this section, [OR] that a conviction should not be considered a prior felony 17 conviction under (a)(1)(B) [(a)(2)] of this section or a prior most serious felony 18 conviction under (a)(2)(A) of this section, or that a previous conviction did not 19 occur in the order required under (a)(2)(B) of this section, then the burden is on 20 the state to prove the contrary beyond a reasonable doubt. The burden of proof that 21 two or more convictions should be considered a single conviction under (a)(1)(C) 22 [(a)(3)] of this section is on the defendant by clear and convincing evidence. 23 * Sec. 11. AS 12.55.145 is amended by adding a new subsection to read: 24 (f) Under this section, a prior conviction has occurred when a defendant has 25 entered a plea of guilty, guilty but mentally ill, or nolo contendere, or when a verdict 26 of guilty or guilty but mentally ill has been returned by a jury or by the court. 27 * Sec. 12. AS 12.55.155(c)(20) is amended to read: 28 (20) the defendant was on furlough under AS 33.30 or on parole or 29 probation for another felony charge or conviction that would be considered a prior 30 felony conviction under AS 12.55.145(a)(1)(B) [AS 12.55.145(a)(2)]; 31 * Sec. 13. AS 12.55.185 is amended by adding a new paragraph to read:
01 (14) "most serious felony" means 02 (A) arson in the first degree, promoting prostitution in the first 03 degree under AS 11.66.110(a)(2), or any unclassified or class A felony 04 prescribed under AS 11.41; or 05 (B) an attempt, or conspiracy to commit, or criminal solicitation 06 under AS 11.31.110 of, an unclassified felony prescribed under AS 11.41.; 07 * Sec. 14. AS 33.16.090(b) is amended to read: 08 (b) Except as provided in (e) of this section, a prisoner is not eligible for 09 discretionary parole during the term of a presumptive sentence; however, a prisoner 10 is eligible for discretionary parole during a term of sentence enhancement imposed 11 under AS 12.55.155(a) or during the term of a consecutive or partially consecutive 12 presumptive sentence imposed under AS 12.55.025(e) or (g). A prisoner sentenced to 13 a mandatory 99-year term under AS 12.55.125(a) or a definite term under 14 AS 12.55.125(l) is not eligible for discretionary parole during the entire term. 15 * Sec. 15. AS 33.20.010(a) is amended to read: 16 (a) Notwithstanding [EXCEPT AS PROVIDED IN (b) OF THIS SECTION 17 AND NOTWITHSTANDING] AS 12.55.125(f)(3) and 12.55.125(g)(3), a prisoner 18 convicted of an offense against the state or a political subdivision of the state and 19 sentenced to a term of imprisonment that exceeds three days is entitled to a deduction 20 of one-third of the term of imprisonment rounded off to the nearest day if the prisoner 21 follows the rules of the correctional facility in which the prisoner is confined. A 22 prisoner is not eligible for a good time deduction if the prisoner has been 23 sentenced to a 24 (1) mandatory 99-year term of imprisonment under AS 12.55.125(a) 25 after the effective date of this Act; or 26 (2) definite term under AS 12.55.125(l). 27 * Sec. 16. AS 33.30.101 is amended by adding a new subsection to read: 28 (c) The regulations adopted under (a) of this section may not provide for the 29 granting of a furlough of any type to a prisoner sentenced to a definite term of 30 imprisonment under AS 12.55.125(l) unless the prisoner is at all times in the direct 31 custody of a correctional officer while the prisoner is away from the correctional
01 facility. 02 * Sec. 17. AS 33.30.161(b) is amended to read: 03 (b) To be eligible to serve time in a correctional restitution center, the prisoner 04 (1) must be employable or eligible to work on community service 05 projects approved by the commissioner and agree to secure employment or participate 06 in community service projects and obey the rules of the center; 07 (2) may not be serving a sentence for conviction of an offense 08 (A) involving violence or the use of force; 09 (B) under AS 11.41.320, 11.41.330, or AS 11.56.740; 10 (3) may not have been convicted of a felony offense, in the state or 11 another jurisdiction, involving violence or the use of force; [AND] 12 (4) may not have been convicted of an offense under AS 11.41.410 - 13 11.41.470 or an offense in the state or another jurisdiction having elements 14 substantially identical to an offense under AS 11.41.410 - 11.41.470; and 15 (5) may not have been sentenced to a definite term of imprisonment 16 under AS 12.55.125(l). 17 * Sec. 18. AS 33.20.010(b) is repealed. 18 * Sec. 19. APPLICABILITY. References to prior or previous convictions in this Act apply 19 to all convictions occurring before, on, or after the effective date of this Act. 20 * Sec. 20. AS 12.55.125(j), amended by sec. 6 of this Act, has the effect of amending 21 Alaska Rule of Criminal Procedure 35 by permitting a court to reduce or modify a definite 22 sentence of imprisonment imposed under AS 12.55.125(l) only after the defendant has served 23 the greater of one-half of the definite term or 30 years.