SCS CSHB 38(FIN) AM S: "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."
00SENATE CS FOR CS FOR HOUSE BILL NO. 38(FIN) am S 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 (5) crimes against the person are generally more serious than crimes against 05 property, crimes against the public health, and other crimes, since crimes against the person 06 threaten the victim's safety and dignity and often result in physical injury, emotional trauma 07 or both; 08 (6) the most serious crimes against the person are those classified as 09 unclassified and class A felonies; 10 (7) although most of the crimes against the person are set out in AS 11.41, two 11 class A felony offenses against the person are found elsewhere. Arson in the first degree, AS 12 11.46.400(a), is a crime against the person since it is primarily aimed at protecting the safety 13 of persons rather than property. Promoting prostitution in the first degree is a crime against 14 the person since it is primarily designed to deal with the coercive aspects that may be involved 15 in prostitution. These coercive aspects threaten the safety of persons. AS 11.66.110(a)(2), 16 which requires proof that a person other than a patron induced or caused a person under 16 17 years of age to engage in prostitution, is particularly serious due to the youth of the victim. 18 (b) By sentencing three-time, most serious offenders to prison for extensive periods 19 without the possibility of parole, the legislature intends to 20 (1) improve public safety by placing the most dangerous criminals in prison; 21 (2) reduce the number of serious, repeat offenders by tougher sentencing; 22 (3) set proper and simplified sentencing practices that both victims and 23 persistent offenders can understand; and 24 (4) restore public trust in our criminal justice system. 25 * Sec. 2. AS 12.55.025(e) is amended to read: 26 (e) Except as provided in (g) and (h) of this section, if the defendant has been 27 convicted of two or more crimes, sentences of imprisonment shall run consecutively. 28 If the defendant is imprisoned upon a previous judgment of conviction for a crime, the 29 judgment shall provide that the imprisonment commences at the expiration of the term 30 imposed by the previous judgment. Nothing in AS 12.55.125(a) or (l) limits the court's 31 ability to impose consecutive sentences.
01 * Sec. 3. AS 12.55.125(c) is amended to read: 02 (c) A defendant convicted of a class A felony may be sentenced to a definite 03 term of imprisonment of not more than 20 years, and shall be sentenced to the 04 following presumptive terms, subject to adjustment as provided in AS 12.55.155 - 05 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, five years; 08 (2) if the offense is a first felony conviction, other than for 09 manslaughter, and the defendant possessed a firearm, used a dangerous instrument, or 10 caused serious physical injury during the commission of the offense, or knowingly 11 directed the conduct constituting the offense at a uniformed or otherwise clearly 12 identified peace officer, fire fighter, correctional officer, emergency medical technician, 13 paramedic, ambulance attendant, or other emergency responder who was engaged in 14 the performance of official duties at the time of the offense, seven years; 15 (3) if the offense is a second felony conviction, 10 years ; 16 (4) if the offense is a third felony conviction and the defendant is not 17 subject to sentencing under (l) of this section, 15 years. 18 * Sec. 4. AS 12.55.125(f) is amended to read: 19 (f) If a defendant is sentenced under (a) or (b) of this section, 20 (1) imprisonment for the prescribed minimum or mandatory term may 21 not be suspended under AS 12.55.080; 22 (2) imposition of sentence may not be suspended under AS 12.55.085; 23 (3) imprisonment for the prescribed minimum or mandatory term may 24 not be [OTHERWISE] reduced, except as provided in (j) of this section. 25 * Sec. 5. AS 12.55.125(i) is amended to read: 26 (i) A defendant convicted of sexual assault in the first degree or sexual abuse 27 of a minor in the first degree may be sentenced to a definite term of imprisonment of 28 not more than 30 years, and shall be sentenced to the following presumptive terms, 29 subject to adjustment as provided in AS 12.55.155 - 12.55.175: 30 (1) if the offense is a first felony conviction and does not involve 31 circumstances described in (2) of this subsection, eight years;
01 (2) if the offense is a first felony conviction, and the defendant 02 possessed a firearm, used a dangerous instrument, or caused serious physical injury 03 during the commission of the offense, 10 years; 04 (3) if the offense is a second felony conviction, 15 years; 05 (4) if the offense is a third felony conviction and the defendant is not 06 subject to sentencing under (l) of this section, 25 years. 07 * Sec. 6. AS 12.55.125(j) is amended to read: 08 (j) A defendant sentenced to a (1) mandatory term of imprisonment of 99 years 09 under (a) of this section may apply once for a modification or reduction of sentence 10 under the Alaska Rules of Criminal Procedure after serving one-half of the mandatory 11 term without consideration of good time earned under AS 33.20.010, or (2) definite 12 term of imprisonment under (l) of this section may apply once for a modification 13 or reduction of sentence under the Alaska Rules of Criminal Procedure after 14 serving the greater of (A) one-half of the definite term or (B) 30 years. A 15 defendant may not file and a court may not entertain more than one motion for 16 modification or reduction of a sentence subject to this subsection, regardless of 17 whether or not the court granted or denied a previous motion. 18 * Sec. 7. AS 12.55.125 is amended by adding a new subsection to read: 19 (l) Notwithstanding any other provision of law, a defendant convicted of an 20 unclassified or class A felony offense, and not subject to a mandatory 99-year sentence 21 under (a) of this section, shall be sentenced to a definite term of imprisonment of at 22 least 40 years but not more than 99 years when the defendant has been previously 23 convicted of two or more most serious felonies and the prosecuting attorney has filed 24 a notice of intent to seek a definite sentence under this subsection at the time the 25 defendant was arraigned in superior court. If a defendant is sentenced to a definite 26 term under this section, 27 (1) imprisonment for the prescribed definite term may not be suspended 28 under AS 12.55.080; 29 (2) imposition of sentence may not be suspended under AS 12.55.085; 30 (3) imprisonment for the prescribed definite term may not be reduced, 31 except as provided in (j) of this section.
01 * Sec. 8. AS 12.55.145(a) is amended to read: 02 (a) For purposes of considering prior convictions in imposing sentence under 03 (1) AS 12.55.125(c), (d)(1), (d)(2), (e)(1), (e)(2), or (i), 04 (A) [(1)] a prior conviction may not be considered if a period 05 of 10 or more years has elapsed between the date of the defendant's 06 unconditional discharge on the immediately preceding offense and commission 07 of the present offense unless the prior conviction was for an unclassified or 08 class A felony; 09 (B) [(2)] a conviction in this or another jurisdiction of an 10 offense having elements similar to those of a felony defined as such under 11 Alaska law at the time the offense was committed is considered a prior felony 12 conviction; 13 (C) [(3)] two or more convictions arising out of a single, 14 continuous criminal episode during which there was no substantial change in 15 the nature of the criminal objective are considered a single conviction unless 16 the defendant was sentenced to consecutive sentences for the crimes; offenses 17 committed while attempting to escape or avoid detection or apprehension after 18 the commission of another offense are not part of the same criminal episode 19 or objective; 20 (2) AS 12.55.125(l), 21 (A) a conviction in this or another jurisdiction of an offense 22 having elements similar to those of a most serious felony is considered a 23 prior most serious felony conviction; 24 (B) commission of and conviction for offenses relied on as 25 prior most serious felony offenses must occur in the following order: 26 conviction for the first offense must occur before commission of the second 27 offense, and conviction for the second offense must occur before 28 commission of the offense for which the defendant is being sentenced. 29 * Sec. 9. AS 12.55.145(c) is amended to read: 30 (c) The defendant shall file with the court and serve on the prosecuting 31 attorney notice of denial, consisting of a concise statement of the grounds relied
01 upon and that may be supported by affidavit or other documentary evidence, no 02 later than 10 days before the date set for the imposition of sentence if [IF] the 03 defendant 04 (1) denies 05 (A) the authenticity of a prior judgment of conviction; 06 (B) [,] that the defendant is the person named in the judgment; 07 (C) [,] that the elements of a prior offense committed in this or 08 another jurisdiction are similar [SUBSTANTIALLY IDENTICAL] to those of 09 a 10 (i) felony defined as such under Alaska law; 11 (ii) most serious felony, defined as such under Alaska 12 law; 13 (D) [, OR] that a prior conviction occurred within the period 14 specified in (a)(1)(A) [(a)(1)] of this section; or 15 (E) that a previous conviction occurred in the order 16 required under (a)(2)(B) of this section; or 17 (2) [IF THE DEFENDANT] alleges that two or more purportedly 18 separate prior convictions should be considered a single conviction under (a)(1)(C) 19 [(a)(3)] of this section [, THE DEFENDANT SHALL FILE WITH THE COURT AND 20 SERVE ON THE PROSECUTING ATTORNEY NOTICE OF DENIAL NO LATER 21 THAN 10 DAYS BEFORE THE DATE SET FOR IMPOSITION OF SENTENCE. 22 THE NOTICE OF DENIAL MUST INCLUDE A CONCISE STATEMENT OF THE 23 GROUNDS RELIED UPON AND MAY BE SUPPORTED BY AFFIDAVIT OR 24 OTHER DOCUMENTARY EVIDENCE]. 25 * Sec. 10. AS 12.55.145(d) is amended to read: 26 (d) Matters alleged in a notice of denial shall be heard by the court sitting 27 without a jury. If the defendant introduces substantial evidence that the defendant is 28 not the person named in a prior judgment of conviction, that the judgment is not 29 authentic, that the conviction did not occur within the period specified in (a)(1)(A) 30 [(a)(1)] of this section, [OR] that a conviction should not be considered a prior felony 31 conviction under (a)(1)(B) [(a)(2)] of this section or a prior most serious felony
01 conviction under (a)(2)(A) of this section, or that a previous conviction did not 02 occur in the order required under (a)(2)(B) of this section, then the burden is on 03 the state to prove the contrary beyond a reasonable doubt. The burden of proof that 04 two or more convictions should be considered a single conviction under (a)(1)(C) 05 [(a)(3)] of this section is on the defendant by clear and convincing evidence. 06 * Sec. 11. AS 12.55.145 is amended by adding a new subsection to read: 07 (f) Under this section, a prior conviction has occurred when a defendant has 08 entered a plea of guilty, guilty but mentally ill, or nolo contendere, or when a verdict 09 of guilty or guilty but mentally ill has been returned by a jury or by the court. 10 * Sec. 12. AS 12.55.155(c)(20) is amended to read: 11 (20) the defendant was on furlough under AS 33.30 or on parole or 12 probation for another felony charge or conviction that would be considered a prior 13 felony conviction under AS 12.55.145(a)(1)(B) [AS 12.55.145(a)(2)]; 14 * Sec. 13. AS 12.55.185 is amended by adding a new paragraph to read: 15 (14) "most serious felony" means 16 (A) arson in the first degree, promoting prostitution in the first 17 degree under AS 11.66.110(a)(2), or any unclassified or class A felony 18 prescribed under AS 11.41; or 19 (B) an attempt, or conspiracy to commit, or criminal solicitation 20 under AS 11.31.110 of, an unclassified felony prescribed under AS 11.41.; 21 * Sec. 14. AS 33.16.090(b) is amended to read: 22 (b) Except as provided in (e) of this section, a prisoner is not eligible for 23 discretionary parole during the term of a presumptive sentence; however, a prisoner 24 is eligible for discretionary parole during a term of sentence enhancement imposed 25 under AS 12.55.155(a) or during the term of a consecutive or partially consecutive 26 presumptive sentence imposed under AS 12.55.025(e) or (g). A prisoner sentenced to 27 a mandatory 99-year term under AS 12.55.125(a) or a definite term under 28 AS 12.55.125(l) is not eligible for discretionary parole during the entire term. 29 * Sec. 15. AS 33.20.010(a) is amended to read: 30 (a) Notwithstanding [EXCEPT AS PROVIDED IN (b) OF THIS SECTION 31 AND NOTWITHSTANDING] AS 12.55.125(f)(3) and 12.55.125(g)(3), a prisoner
01 convicted of an offense against the state or a political subdivision of the state and 02 sentenced to a term of imprisonment that exceeds three days is entitled to a deduction 03 of one-third of the term of imprisonment rounded off to the nearest day if the prisoner 04 follows the rules of the correctional facility in which the prisoner is confined. A 05 prisoner is not eligible for a good time deduction if the prisoner has been 06 sentenced to a 07 (1) mandatory 99-year term of imprisonment under AS 12.55.125(a) 08 after the effective date of this Act; or 09 (2) definite term under AS 12.55.125(l). 10 * Sec. 16. AS 33.30.101 is amended by adding a new subsection to read: 11 (c) The regulations adopted under (a) of this section may not provide for the 12 granting of a furlough of any type to a prisoner sentenced to a mandatory 99-year term 13 of imprisonment under AS 12.55.125(a) or a definite term of imprisonment under 14 AS 12.55.125(l) unless the prisoner is at all times in the direct custody of a 15 correctional officer while the prisoner is away from the correctional facility. 16 * Sec. 17. AS 33.30.161(b) is amended to read: 17 (b) To be eligible to serve time in a correctional restitution center, the prisoner 18 (1) must be employable or eligible to work on community service 19 projects approved by the commissioner and agree to secure employment or participate 20 in community service projects and obey the rules of the center; 21 (2) may not be serving a sentence for conviction of an offense 22 (A) involving violence or the use of force; 23 (B) under AS 11.41.320, 11.41.330, or AS 11.56.740; 24 (3) may not have been convicted of a felony offense, in the state or 25 another jurisdiction, involving violence or the use of force; [AND] 26 (4) may not have been convicted of an offense under AS 11.41.410 - 27 11.41.470 or an offense in the state or another jurisdiction having elements 28 substantially identical to an offense under AS 11.41.410 - 11.41.470; and 29 (5) may not have been sentenced to a 30 (A) mandatory 99-year term of imprisonment under 31 AS 12.55.125(a); or
01 (B) definite term of imprisonment under AS 12.55.125(l). 02 * Sec. 18. AS 33.20.010(b) is repealed. 03 * Sec. 19. APPLICABILITY. References to prior or previous convictions in this Act apply 04 to all convictions occurring before, on, or after the effective date of this Act. 05 * Sec. 20. AS 12.55.125(j), amended by sec. 6 of this Act, has the effect of amending 06 Alaska Rule of Criminal Procedure 35 by 07 (1) limiting the number of motions for modification or reduction of sentence 08 that may be filed under the authority of that section; and 09 (2) permitting a court to reduce or modify a definite sentence of imprisonment 10 imposed under AS 12.55.125(l) only after the defendant has served the greater of one-half of 11 the definite term or 30 years.