SB 56: "An Act relating to criminal law and procedure, criminal sentences, and probation and parole; and providing for an effective date."
00 SENATE BILL NO. 56 01 "An Act relating to criminal law and procedure, criminal sentences, and probation and 02 parole; and providing for an effective date." 03 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 04 * Section 1. 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. 2. 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
01 AS 12.55.036 if the court does not impose a term of periodic or continuous 02 imprisonment or place the defendant on probation; 03 (2) order the defendant to be placed on probation under conditions 04 specified by the court that may include provision for active supervision; 05 (3) impose a definite term of periodic imprisonment, but only if an 06 employment obligation of the defendant preexisted sentencing and continuous 07 incarceration would cause extreme hardship to the defendant's ability to pay 08 fines or restitution; 09 (4) impose a definite term of continuous imprisonment; 10 (5) order the defendant to make restitution under AS 12.55.045; 11 (6) order the defendant to carry out a continuous or periodic program 12 of community work under AS 12.55.055; 13 (7) suspend execution of all or a portion of the sentence imposed under 14 AS 12.55.080; 15 (8) suspend imposition of sentence under AS 12.55.085; 16 (9) order the forfeiture to the commissioner of public safety or a 17 municipal law enforcement agency of a deadly weapon that was in the actual 18 possession of or used by the defendant during the commission of an offense described 19 in AS 11.41, AS 11.46, AS 11.56, or AS 11.61; 20 (10) order the defendant, while incarcerated, to participate in or 21 comply with the treatment plan of a rehabilitation program that is related to the 22 defendant's offense or to the defendant's rehabilitation if the program is made available 23 to the defendant by the Department of Corrections; 24 (11) order the forfeiture to the state of a motor vehicle, weapon, 25 electronic communication device, or money or other valuables, used in or obtained 26 through an offense that was committed for the benefit of, at the direction of, or in 27 association with a criminal street gang; 28 (12) order the defendant to have no contact, either directly or 29 indirectly, with a victim or witness of the offense until the defendant is 30 unconditionally discharged. 31 * Sec. 3. AS 12.55.025(i) is amended to read:
01 (i) Except as provided by AS 12.55.125(a)(3), [12.55.125(k),] 12.55.145(d), 02 12.55.155(f), and 12.55.165, the preponderance of the evidence standard of proof 03 applies to sentencing proceedings. 04 * Sec. 4. AS 12.55.055(d) is amended to read: 05 (d) The court may offer a defendant convicted of an offense the option of 06 performing community work in lieu of a sentence of imprisonment. Substitution of 07 community work shall be at a rate of eight hours for each day of imprisonment. A 08 court may not offer substitution of community work for any mandatory minimum 09 period of imprisonment or for any period within the [OF A] presumptive range 10 [TERM] of imprisonment for the offense. 11 * Sec. 5. AS 12.55.088(c) is amended to read: 12 (c) A [NO] sentence may not be reduced or modified so as to result in a term 13 of imprisonment that [WHICH] is less than the minimum [OR PRESUMPTIVE] 14 sentence or within the presumptive range required by law for the original sentence. 15 * Sec. 6. AS 12.55.100(a) is amended to read: 16 (a) While on probation and among the conditions of probation, the defendant 17 may be required 18 (1) to pay a fine in one or several sums; 19 (2) to make restitution or reparation to aggrieved parties for actual 20 damages or loss caused by the crime for which conviction was had, including 21 compensation to a victim that is a nonprofit organization for the value of labor or 22 goods provided by volunteers if the labor or goods were necessary to alleviate or 23 mitigate the effects of the defendant's crime; 24 (3) to provide for the support of any persons for whose support the 25 defendant is legally responsible; 26 (4) to perform community work in accordance with AS 12.55.055; 27 (5) to participate in or comply with the treatment plan of an inpatient 28 or outpatient rehabilitation program specified by either the court or the defendant's 29 probation officer that is related to the defendant's offense or to the defendant's 30 rehabilitation; [AND] 31 (6) to satisfy the screening, evaluation, referral, and program
01 requirements of an agency authorized by the court to make referrals for rehabilitative 02 treatment or to provide rehabilitative treatment; and 03 (7) if ordered by the court, to abide by additional conditions of 04 probation imposed by the defendant's probation officer; an additional condition 05 imposed by the probation officer must be provided in writing to the defendant; 06 the additional condition is binding upon delivery until modified by the court; this 07 paragraph does not require written notice of conditions relating to the day-to-day 08 management of probationers, in which probation officers direct the activities of 09 probationers to implement existing court-imposed conditions. 10 * Sec. 7. AS 12.55.120 is amended by adding a new subsection to read: 11 (e) A sentence reviewed by the appellate court under this section and 12 AS 22.07.020, or by the superior court under AS 22.10.020, or a sentence reviewed by 13 petition accepted under court rules, may not be reversed as excessive, and the 14 sentencing court is not required to make specific findings, if the sentence is within an 15 applicable presumptive range set out in AS 12.55.125, or is a consecutive or partially 16 consecutive sentence imposed in accordance with the minimum sentences set out in 17 AS 12.55.127. 18 * Sec. 8. AS 12.55.125(c) is amended to read: 19 (c) Except as provided in (i) of this section, a defendant convicted of a class A 20 felony may be sentenced to a definite term of imprisonment of not more than 20 years, 21 and shall be sentenced to a definite term within the following presumptive ranges 22 [TERMS], subject to adjustment as provided in AS 12.55.155 - 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 to eight [FIVE] years; 25 (2) if the offense is a first felony conviction 26 [(A) OTHER THAN FOR MANSLAUGHTER] and the 27 defendant possessed a firearm, used a dangerous instrument, or caused serious 28 physical injury or death during the commission of the offense, or knowingly 29 directed the conduct constituting the offense at a uniformed or otherwise 30 clearly identified peace officer, fire fighter, correctional employee, emergency 31 medical technician, paramedic, ambulance attendant, or other emergency
01 responder who was engaged in the performance of official duties at the time of 02 the offense, seven to eleven [SEVEN] years; 03 [(B) FOR MANSLAUGHTER AND THE CONDUCT 04 RESULTING IN THE CONVICTION WAS KNOWINGLY DIRECTED 05 TOWARDS A CHILD UNDER THE AGE OF 16, SEVEN YEARS; 06 (C) FOR MANSLAUGHTER AND THE CONDUCT 07 RESULTING IN THE CONVICTION INVOLVED DRIVING WHILE 08 UNDER THE INFLUENCE OF AN ALCOHOLIC BEVERAGE, 09 INHALANT, OR CONTROLLED SUBSTANCE, SEVEN YEARS;] 10 (3) if the offense is a second felony conviction, 10 to 14 [10] years; 11 (4) if the offense is a third felony conviction and the defendant is not 12 subject to sentencing under (l) of this section, 15 to 20 [15] years. 13 * Sec. 9. AS 12.55.125(d) is amended to read: 14 (d) Except as provided in (i) of this section, a defendant convicted of a class B 15 felony may be sentenced to a definite term of imprisonment of not more than 10 years, 16 and shall be sentenced to a definite term within the following presumptive ranges 17 [TERMS], subject to adjustment as provided in AS 12.55.155 - 12.55.175: 18 (1) if the offense is a first felony conviction and does not involve 19 circumstances described in (2) of this subsection, one to three years; 20 (2) if the offense is a first felony conviction, the defendant violated 21 AS 11.41.130, and the victim was a child under 16 years of age, two to four years; 22 (3) if the offense is a second felony conviction, four to seven [FOUR] 23 years; 24 (4) [(2)] if the offense is a third felony conviction, six to ten [SIX] 25 years. 26 * Sec. 10. AS 12.55.125(e) is amended to read: 27 (e) Except as provided in (i) of this section, a defendant convicted of a class C 28 felony may be sentenced to a definite term of imprisonment of not more than five 29 years, and shall be sentenced to a definite term within the following presumptive 30 ranges [TERMS], subject to adjustment as provided in AS 12.55.155 - 12.55.175: 31 (1) if the offense is a first felony conviction and does not involve
01 circumstances described in (4) of this subsection, zero to two years; 02 (2) if the offense is a second felony conviction, two to four [TWO] 03 years; 04 (3) [(2)] if the offense is a third felony conviction, three to five 05 [THREE] years; 06 (4) [(3)] if the offense is a first felony conviction, and the defendant 07 violated AS 08.54.720(a)(15), one to two years [ONE YEAR]. 08 * Sec. 11. AS 12.55.125(g) is amended to read: 09 (g) If a defendant is sentenced under (c), (d), (e) [(d)(1), (d)(2), (e)(1), (e)(2), 10 (e)(3)], or (i) of this section, except to the extent permitted under AS 12.55.155 - 11 12.55.175, 12 (1) imprisonment may not be suspended under AS 12.55.080; 13 (2) imposition of sentence may not be suspended under AS 12.55.085; 14 (3) terms of imprisonment may not be otherwise reduced. 15 * Sec. 12. AS 12.55.125(i) is amended to read: 16 (i) A defendant convicted of 17 (1) sexual assault in the first degree or sexual abuse of a minor in the 18 first degree may be sentenced to a definite term of imprisonment of not more than 40 19 years and shall be sentenced to a definite term within the following presumptive 20 ranges [TERMS], subject to adjustment as provided in AS 12.55.155 - 12.55.175: 21 (A) if the offense is a first felony conviction and does not 22 involve circumstances described in (B) of this paragraph, eight to twelve 23 [EIGHT] years; 24 (B) if the offense is a first felony conviction and the defendant 25 possessed a firearm, used a dangerous instrument, or caused serious physical 26 injury during the commission of the offense, 12 to 16 [10] years; 27 (C) if the offense is a second felony conviction and does not 28 involve circumstances described in (D) of this paragraph, 15 to 20 [15] years; 29 (D) if the offense is a second felony conviction and the 30 defendant has a prior conviction for a sexual felony, 20 to 30 [20] years; 31 (E) if the offense is a third felony conviction and the defendant
01 is not subject to sentencing under (F) of this paragraph or (l) of this section, 25 02 to 35 [25] years; 03 (F) if the offense is a third felony conviction, the defendant is 04 not subject to sentencing under (l) of this section, and the defendant has two 05 prior convictions for sexual felonies, 30 to 40 [30] years; 06 (2) attempt, conspiracy, or solicitation to commit sexual assault in the 07 first degree or sexual abuse of a minor in the first degree may be sentenced to a 08 definite term of imprisonment of not more than 30 years and shall be sentenced to a 09 definite term within the following presumptive ranges [TERMS], subject to 10 adjustment as provided in AS 12.55.155 - 12.55.175: 11 (A) if the offense is a first felony conviction and does not 12 involve circumstances described in (B) of this paragraph, five to eight [FIVE] 13 years; 14 (B) if the offense is a first felony conviction, and the defendant 15 possessed a firearm, used a dangerous instrument, or caused serious physical 16 injury during the commission of the offense, 10 to 14 [10] years; 17 (C) if the offense is a second felony conviction and does not 18 involve circumstances described in (D) of this paragraph, 12 to 16 [10] years; 19 (D) if the offense is a second felony conviction and the 20 defendant has a prior conviction for a sexual felony, 15 to 20 [15] years; 21 (E) if the offense is a third felony conviction, does not involve 22 circumstances described in (F) of this paragraph, and the defendant is not 23 subject to sentencing under (l) of this section, 15 to 25 [15] years; 24 (F) if the offense is a third felony conviction, the defendant is 25 not subject to sentencing under (l) of this section, and the defendant has two 26 prior convictions for sexual felonies, 20 to 30 [20] years; 27 (3) sexual assault in the second degree, sexual abuse of a minor in the 28 second degree, unlawful exploitation of a minor, or distribution of child pornography 29 may be sentenced to a definite term of imprisonment of not more than 20 years and 30 shall be sentenced to a definite term within the following presumptive ranges 31 [TERMS], subject to adjustment as provided in AS 12.55.155 - 12.55.175:
01 (A) if the offense is a first felony conviction, two to four 02 years; 03 (B) if the offense is a second felony conviction and does not 04 involve circumstances described in (C) [(B)] of this paragraph, five to eight 05 [FIVE] years; 06 (C) [(B)] if the offense is a second felony conviction and the 07 defendant has a prior conviction for a sexual felony, 10 to 14 [10] years; 08 (D) [(C)] if the offense is a third felony conviction, does not 09 involve circumstances described in (E) [(D)] of this paragraph, 10 to 14 [10] 10 years; 11 (E) [(D)] if the offense is a third felony conviction, and the 12 defendant has two prior convictions for sexual felonies, 15 to 20 [15] years; 13 (4) sexual assault in the third degree, incest, indecent exposure in the 14 first degree, possession of child pornography, or attempt, conspiracy, or solicitation to 15 commit sexual assault in the second degree, sexual abuse of a minor in the second 16 degree, unlawful exploitation of a minor, or distribution of child pornography, may be 17 sentenced to a definite term of imprisonment of not more than 10 years and shall be 18 sentenced to a definite term within the following presumptive ranges [TERMS], 19 subject to adjustment as provided in AS 12.55.155 - 12.55.175: 20 (A) if the offense is a first felony conviction, one to two 21 years; 22 (B) if the offense is a second felony conviction and does not 23 involve circumstances described in (C) [(B)] of this paragraph, two to five 24 [TWO] years; 25 (C) [(B)] if the offense is a second felony conviction and the 26 defendant has a prior conviction for a sexual felony, three to six [THREE] 27 years; 28 (D) [(C)] if the offense is a third felony conviction and does not 29 involve circumstances described in (E) [(D)] of this paragraph, three to six 30 [THREE] years; 31 (E) [(D)] if the offense is a third felony conviction and the
01 defendant has two prior convictions for sexual felonies, six to ten [SIX] years. 02 * Sec. 13. AS 12.55.125 is amended by adding a new subsection to read: 03 (n) In imposing a sentence within a presumptive range under (c), (d), (e), or (i) 04 of this section, the total term, made up of the active term of imprisonment plus any 05 suspended term of imprisonment, must fall within the presumptive range, and the 06 active term of imprisonment may not fall below the lower end of the presumptive 07 range. 08 * Sec. 14. AS 12.55.127(d) is amended by adding a new paragraph to read: 09 (4) "presumptive term" means the middle of the applicable 10 presumptive range set out in AS 12.55.125. 11 * Sec. 15. AS 12.55.145(a) is amended to read: 12 (a) For purposes of considering prior convictions in imposing sentence under 13 (1) AS 12.55.125(c), (d), or (e) [(d)(1), (d)(2), (e)(1), OR (e)(2)], 14 (A) a prior conviction may not be considered if a period of 10 15 or more years has elapsed between the date of the defendant's unconditional 16 discharge on the immediately preceding offense and commission of the present 17 offense unless the prior conviction was for an unclassified or class A felony; 18 (B) a conviction in this or another jurisdiction of an offense 19 having elements similar to those of a felony defined as such under Alaska law 20 at the time the offense was committed is considered a prior felony conviction; 21 (C) two or more convictions arising out of a single, continuous 22 criminal episode during which there was no substantial change in the nature of 23 the criminal objective are considered a single conviction unless the defendant 24 was sentenced to consecutive sentences for the crimes; offenses committed 25 while attempting to escape or avoid detection or apprehension after the 26 commission of another offense are not part of the same criminal episode or 27 objective; 28 (2) AS 12.55.125(l), 29 (A) a conviction in this or another jurisdiction of an offense 30 having elements similar to those of a most serious felony is considered a prior 31 most serious felony conviction;
01 (B) commission of and conviction for offenses relied on as 02 prior most serious felony offenses must occur in the following order: 03 conviction for the first offense must occur before commission of the second 04 offense, and conviction for the second offense must occur before commission 05 of the offense for which the defendant is being sentenced; 06 (3) AS 12.55.135(g), 07 (A) a prior conviction may not be considered if a period of five 08 or more years has elapsed between the date of the defendant's unconditional 09 discharge on the immediately preceding offense and commission of the present 10 offense unless the prior conviction was for an unclassified or class A felony; 11 (B) a conviction in this or another jurisdiction of an offense 12 having elements similar to those of a crime against a person or a crime 13 involving domestic violence is considered a prior conviction; 14 (C) two or more convictions arising out of a single, continuous 15 criminal episode during which there was no substantial change in the nature of 16 the criminal objective are considered a single conviction unless the defendant 17 was sentenced to consecutive sentences for the crimes; offenses committed 18 while attempting to escape or avoid detection or apprehension after the 19 commission of another offense are not part of the same criminal episode or 20 objective; 21 (4) AS 12.55.125(i), 22 (A) a conviction in this or another jurisdiction of an offense 23 having elements similar to those of a sexual felony is a prior conviction for a 24 sexual felony; 25 (B) a felony conviction in another jurisdiction making it a 26 crime to commit any lewd and lascivious act upon a child under the age of 16 27 years, with the intent of arousing, appealing to, or gratifying the sexual desires 28 of the defendant or the victim is a prior conviction for a sexual felony; 29 (C) two or more convictions arising out of a single, continuous 30 criminal episode during which there was no substantial change in the nature of 31 the criminal objective are considered a single conviction unless the defendant
01 was sentenced to consecutive sentences for the crimes; offenses committed 02 while attempting to escape or avoid detection or apprehension after the 03 commission of another offense are not part of the same criminal episode or 04 objective. 05 * Sec. 16. AS 12.55.155(a) is amended to read: 06 (a) Except as provided in (e) of this section, if [IF] a defendant is convicted 07 of an offense and is subject to sentencing under AS 12.55.125(c), (d), (e), or (i) 08 [AS 12.55.125(c), (d)(1), (d)(2), (e)(1), (e)(2), (e)(3), OR (i)] and 09 (1) the low end of the presumptive range [TERM] is four years or 10 less, the court may impose any sentence below the presumptive range [DECREASE 11 THE PRESUMPTIVE TERM BY AN AMOUNT AS GREAT AS THE 12 PRESUMPTIVE TERM] for factors in mitigation or may increase the active term of 13 imprisonment [PRESUMPTIVE TERM] up to the maximum term of imprisonment 14 for factors in aggravation; 15 (2) the low end of the presumptive range [TERM OF 16 IMPRISONMENT] is more than four years, the court may impose a sentence below 17 the presumptive range as long as the active term of imprisonment is not less than 18 50 percent of the low end of the presumptive range [DECREASE THE 19 PRESUMPTIVE TERM BY AN AMOUNT AS GREAT AS 50 PERCENT OF THE 20 PRESUMPTIVE TERM] for factors in mitigation or may increase the active term of 21 imprisonment [PRESUMPTIVE TERM] up to the maximum term of imprisonment 22 for factors in aggravation. 23 * Sec. 17. AS 12.55.155(b) is amended to read: 24 (b) Sentences [SENTENCE INCREMENTS AND DECREMENTS] under 25 this section that are outside of the presumptive ranges set out in AS 12.55.125 26 shall be based on the totality of the aggravating and mitigating factors set out in (c) 27 and (d) of this section. 28 * Sec. 18. AS 12.55.155(c) is amended to read: 29 (c) The following factors shall be considered by the sentencing court if 30 proven in accordance with this section, and may allow imposition of a sentence 31 above the presumptive range [AND MAY AGGRAVATE THE PRESUMPTIVE
01 TERMS] set out in AS 12.55.125: 02 (1) a person, other than an accomplice, sustained physical injury as a 03 direct result of the defendant's conduct; 04 (2) the defendant's conduct during the commission of the offense 05 manifested deliberate cruelty to another person; 06 (3) the defendant was the leader of a group of three or more persons 07 who participated in the offense; 08 (4) the defendant employed a dangerous instrument in furtherance of 09 the offense; 10 (5) the defendant knew or reasonably should have known that the 11 victim of the offense was particularly vulnerable or incapable of resistance due to 12 advanced age, disability, ill health, or extreme youth or was for any other reason 13 substantially incapable of exercising normal physical or mental powers of resistance; 14 (6) the defendant's conduct created a risk of imminent physical injury 15 to three or more persons, other than accomplices; 16 (7) a prior felony conviction considered for the purpose of invoking a 17 [THE] presumptive range under [TERMS OF] this chapter was of a more serious 18 class of offense than the present offense; 19 (8) the defendant's prior criminal history includes conduct involving 20 aggravated or repeated instances of assaultive behavior; 21 (9) the defendant knew that the offense involved more than one victim; 22 (10) the conduct constituting the offense was among the most serious 23 conduct included in the definition of the offense; 24 (11) the defendant committed the offense under [PURSUANT TO] an 25 agreement that the defendant either pay or be paid for the commission of the offense, 26 and the pecuniary incentive was beyond that inherent in the offense itself; 27 (12) the defendant was on release under AS 12.30.020 or 12.30.040 for 28 another felony charge or conviction or for a misdemeanor charge or conviction having 29 assault as a necessary element; 30 (13) the defendant knowingly directed the conduct constituting the 31 offense at an active officer of the court or at an active or former judicial officer,
01 prosecuting attorney, law enforcement officer, correctional employee, fire fighter, 02 emergency medical technician, paramedic, ambulance attendant, or other emergency 03 responder during or because of the exercise of official duties; 04 (14) the defendant was a member of an organized group of five or 05 more persons, and the offense was committed to further the criminal objectives of the 06 group; 07 (15) the defendant has three or more prior felony convictions; 08 (16) the defendant's criminal conduct was designed to obtain 09 substantial pecuniary gain and the risk of prosecution and punishment for the conduct 10 is slight; 11 (17) the offense was one of a continuing series of criminal offenses 12 committed in furtherance of illegal business activities from which the defendant 13 derives a major portion of the defendant's income; 14 (18) the offense was a felony 15 (A) specified in AS 11.41 and was committed against a spouse, 16 a former spouse, or a member of the social unit made up of [COMPRISED 17 OF] those living together in the same dwelling as the defendant; 18 (B) specified in AS 11.41.410 - 11.41.458 and the defendant 19 has engaged in the same or other conduct prohibited by a provision of 20 AS 11.41.410 - 11.41.460 involving the same or another victim; or 21 (C) specified in AS 11.41 that is a crime involving domestic 22 violence and was committed in the physical presence or hearing of a child 23 under 16 years of age who was, at the time of the offense, living within the 24 residence of the victim, the residence of the perpetrator, or the residence where 25 the crime involving domestic violence occurred; 26 (19) the defendant's prior criminal history includes an adjudication as a 27 delinquent for conduct that would have been a felony if committed by an adult; 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); 31 (21) the defendant has a criminal history of repeated instances of
01 conduct violative of criminal laws, whether punishable as felonies or misdemeanors, 02 similar in nature to the offense for which the defendant is being sentenced under this 03 section; 04 (22) the defendant knowingly directed the conduct constituting the 05 offense at a victim because of that person's race, sex, color, creed, physical or mental 06 disability, ancestry, or national origin; 07 (23) the defendant is convicted of an offense specified in AS 11.71 and 08 (A) the offense involved the delivery of a controlled substance 09 under circumstances manifesting an intent to distribute the substance as part of 10 a commercial enterprise; or 11 (B) at the time of the conduct resulting in the conviction, the 12 defendant was caring for or assisting in the care of a child under 10 years of 13 age; 14 (24) the defendant is convicted of an offense specified in AS 11.71 and 15 the offense involved the transportation of controlled substances into the state; 16 (25) the defendant is convicted of an offense specified in AS 11.71 and 17 the offense involved large quantities of a controlled substance; 18 (26) the defendant is convicted of an offense specified in AS 11.71 and 19 the offense involved the distribution of a controlled substance that had been 20 adulterated with a toxic substance; 21 (27) the defendant, being 18 years of age or older, 22 (A) is legally accountable under AS 11.16.110(2) for the 23 conduct of a person who, at the time the offense was committed, was under 18 24 years of age and at least three years younger than the defendant; or 25 (B) is aided or abetted in planning or committing the offense by 26 a person who, at the time the offense was committed, was under 18 years of 27 age and at least three years younger than the defendant; 28 (28) the victim of the offense is a person who provided testimony or 29 evidence related to a prior offense committed by the defendant; 30 (29) the defendant committed the offense for the benefit of, at the 31 direction of, or in association with a criminal street gang;
01 (30) the defendant is convicted of an offense specified in AS 11.41.410 02 - 11.41.455, and the defendant knowingly supplied alcohol or a controlled substance to 03 the victim in furtherance of the offense with the intent to make the victim 04 incapacitated; in this paragraph, "incapacitated" has the meaning given in 05 AS 11.41.470; 06 (31) the defendant's prior criminal history includes convictions for 07 five or more crimes in this or another jurisdiction that are class A misdemeanors 08 under the law of this state, or having elements similar to a class A misdemeanor; 09 two or more convictions arising out of a single continuous episode are considered 10 a single conviction; however, an offense is not a part of a continuous episode if 11 committed while attempting to escape or resist arrest or if it is an assault upon a 12 uniformed or otherwise clearly identified peace officer; notice and denial of 13 convictions are governed by AS 12.55.145(b), (c), and (d). 14 * Sec. 19. AS 12.55.155(d) is amended to read: 15 (d) The following factors shall be considered by the sentencing court if 16 proven in accordance with this section, and may allow imposition of a sentence 17 below the presumptive range [AND MAY MITIGATE THE PRESUMPTIVE 18 TERMS] set out in AS 12.55.125: 19 (1) the offense was principally accomplished by another person, and 20 the defendant manifested extreme caution or sincere concern for the safety or well- 21 being of the victim; 22 (2) the defendant, although an accomplice, played only a minor role in 23 the commission of the offense; 24 (3) the defendant committed the offense under some degree of duress, 25 coercion, threat, or compulsion insufficient to constitute a complete defense, but that 26 [WHICH] significantly affected the defendant's conduct; 27 (4) the conduct of a youthful defendant was substantially influenced by 28 another person more mature than the defendant; 29 (5) the conduct of an aged defendant was substantially a product of 30 physical or mental infirmities resulting from the defendant's age; 31 (6) in a conviction for assault under AS 11.41.200 - 11.41.220, the
01 defendant acted with serious provocation from the victim; 02 (7) except in the case of a crime defined by AS 11.41.410 - 11.41.470, 03 the victim provoked the crime to a significant degree; 04 (8) [REPEALED 05 (9)] the conduct constituting the offense was among the least serious 06 conduct included in the definition of the offense; 07 (9) [(10)] before the defendant knew that the criminal conduct had 08 been discovered, the defendant fully compensated or made a good faith effort to fully 09 compensate the victim of the defendant's criminal conduct for any damage or injury 10 sustained; 11 (10) [(11)] the defendant was motivated to commit the offense solely 12 by an overwhelming compulsion to provide for emergency necessities for the 13 defendant's immediate family; 14 (11) [(12)] the defendant assisted authorities to detect, apprehend, or 15 prosecute other persons who committed an offense; 16 (12) [(13)] the facts surrounding the commission of the offense and 17 any previous offenses by the defendant establish that the harm caused by the 18 defendant's conduct is consistently minor and inconsistent with the imposition of a 19 substantial period of imprisonment; 20 (13) [(14)] the defendant is convicted of an offense specified in 21 AS 11.71 and the offense involved small quantities of a controlled substance; 22 (14) [(15)] the defendant is convicted of an offense specified in 23 AS 11.71 and the offense involved the distribution of a controlled substance, other 24 than a schedule IA controlled substance, to a personal acquaintance who is 19 years of 25 age or older for no profit; 26 (15) [(16)] the defendant is convicted of an offense specified in 27 AS 11.71 and the offense involved the possession of a small amount of a controlled 28 substance for personal use in the defendant's home; 29 (16) [(17)] in a conviction for assault or attempted assault or for 30 homicide or attempted homicide, the defendant acted in response to domestic violence 31 perpetrated by the victim against the defendant and the domestic violence consisted of
01 aggravated or repeated instances of assaultive behavior. 02 * Sec. 20. AS 12.55.155(e) is amended to read: 03 (e) If a factor in aggravation is a necessary element of the present offense, or 04 requires the imposition of a sentence within the presumptive range [TERM] under 05 AS 12.55.125(c)(2), that factor may not be used to impose a sentence above the high 06 end of [AGGRAVATE] the presumptive range [TERM]. If a factor in mitigation is 07 raised at trial as a defense reducing the offense charged to a lesser included offense, 08 that factor may not be used to impose a sentence below the low end of [MITIGATE] 09 the presumptive range [TERM]. 10 * Sec. 21. AS 12.55.155(f) is amended to read: 11 (f) If the state seeks to establish a factor in aggravation at sentencing 12 (1) under (c)(7), (8), (12), (15), (19), (20), (21), or (31) of this 13 section, or if the defendant seeks to establish a factor in mitigation at sentencing, 14 written notice must be served on the opposing party and filed with the court not later 15 than 10 days before the date set for imposition of sentence; the factors [. FACTORS] 16 in aggravation listed in this paragraph, and factors in mitigation must be established 17 by clear and convincing evidence before the court sitting without a jury; all [. ALL] 18 findings must be set out with specificity; 19 (2) other than one listed in (1) of this subsection, the factor shall be 20 presented to a trial jury under procedures set by the court, unless the defendant 21 waives trail by jury, stipulates to the existence of the factor, or consents to have 22 the factor proven under procedures set out in (1) of this subsection; a factor in 23 aggravation presented to a jury is established if proved beyond a reasonable 24 doubt; written notice of the intent to establish a factor in aggravation must be 25 served on the defendant and filed with the court 26 (A) 10 days before trial, or at another time specified by the 27 court; 28 (B) within 48 hours, or at a time specified by the court, if 29 the court instructs the jury about the option to return a verdict for a lesser 30 included offense; or 31 (C) five days before entering a plea that results in a finding
01 of guilt, or at another time specified by the court. 02 * Sec. 22. AS 12.55.165(a) is amended to read: 03 (a) If the defendant is subject to sentencing under AS 12.55.125(c), (d), (e), or 04 (i) [AS 12.55.125(c), (d)(1), (d)(2), (e)(1), (e)(2), (e)(3), OR (i)] and the court finds by 05 clear and convincing evidence that manifest injustice would result from failure to 06 consider relevant aggravating or mitigating factors not specifically included in 07 AS 12.55.155 or from imposition of a sentence within the presumptive range 08 [TERM], whether or not adjusted for aggravating or mitigating factors, the court shall 09 enter findings and conclusions and cause a record of the proceedings to be transmitted 10 to a three-judge panel for sentencing under AS 12.55.175. 11 * Sec. 23. AS 12.55.175(b) is amended to read: 12 (b) Upon receipt of a record of proceedings under AS 12.55.165, the three- 13 judge panel shall consider all pertinent files, records, and transcripts, including the 14 findings and conclusions of the judge who originally heard the matter. The panel may 15 hear oral testimony to supplement the record before it. If the panel supplements the 16 record, the panel shall permit the victim to testify before the panel. If the panel finds 17 that manifest injustice would result from failure to consider relevant aggravating or 18 mitigating factors not specifically included in AS 12.55.155 or from imposition of a 19 sentence within the presumptive range [TERM], whether or not adjusted for 20 aggravating or mitigating factors, it shall sentence the defendant in accordance with 21 this section. If the panel does not find that manifest injustice would result, it shall 22 remand the case to the sentencing court, with a written statement of its findings and 23 conclusions, for sentencing under AS 12.55.125. 24 * Sec. 24. AS 12.55.175(e) is amended to read: 25 (e) If the three-judge panel determines under (b) of this section that manifest 26 injustice would result from imposition of a sentence within the presumptive range 27 [TERM] and the panel also finds that the defendant has an exceptional potential for 28 rehabilitation and that a sentence of less than the presumptive range [TERM] should 29 be imposed because of the defendant's exceptional potential for rehabilitation, the 30 panel 31 (1) shall sentence the defendant within [TO] the presumptive range
01 [TERM] required under AS 12.55.125 or as permitted under AS 12.55.155; 02 (2) shall order the defendant under AS 12.55.015 to engage in 03 appropriate programs of rehabilitation; and 04 (3) may provide that the defendant is eligible for discretionary parole 05 under AS 33.16.090 during the second half of the sentence imposed under this 06 subsection if the defendant successfully completes all rehabilitation programs ordered 07 under (2) of this subsection. 08 * Sec. 25. AS 12.55.185 is amended by adding a new paragraph to read: 09 (18) "active term of imprisonment" has the meaning given in 10 AS 12.55.127. 11 * Sec. 26. AS 33.05.070 is amended by adding new subsections to read: 12 (c) At any time within the probation period, a police officer certified by the 13 Alaska Police Standards Council may detain a probationer if the police officer has 14 reasonable suspicion that the probationer has recently violated or may imminently 15 violate a probation condition relating to one of the topics set out in (d) of this section. 16 The police officer may also arrest the probationer without a warrant if the police 17 officer has probable cause to believe that the probationer has violated a probation 18 condition relating to one of the topics set out in (d) of this section. 19 (d) The conditions that permit a police officer to detain or arrest a probationer 20 or parolee without a warrant under AS 33.16.240 and (c) of this section are those 21 conditions imposed by the court, or the parole board, relating to 22 (1) geographic limitations on the probationer's movements; 23 (2) possessing or consuming controlled substances under state or 24 federal law; 25 (3) possessing firearms; 26 (4) possessing or consuming alcoholic beverages, or being in a place 27 where they are sold or served; 28 (5) operating or driving a motor vehicle; or 29 (6) other conduct that creates an imminent public danger or threatens 30 serious harm to persons or property. 31 * Sec. 27. AS 33.16.085(a) is amended to read:
01 (a) Notwithstanding a presumptive, mandatory, or mandatory minimum term 02 or sentence a prisoner may be serving or any restriction on parole eligibility under 03 AS 12.55, a prisoner who is serving a term of at least 181 days, may, upon application 04 by the prisoner or the commissioner, be released by the board on special medical 05 parole if the board determines that 06 (1) the prisoner has not been convicted of an offense under 07 AS 11.41.410 - 11.41.425 or 11.41.434 - 11.41.438 and the prisoner is severely 08 medically or cognitively disabled as certified in writing by a physician licensed under 09 AS 08.64 10 (2) a reasonable probability exists that 11 (A) the prisoner will live and remain at liberty without 12 violating any laws or conditions imposed by the board; 13 (B) because of the prisoner's severe medical or cognitive 14 disability, the prisoner will not pose a threat of harm to the public if released 15 on parole; and 16 (C) release of the prisoner on parole would not diminish the 17 seriousness of the crime; 18 (3) the prisoner 19 (A) was not suffering from the severe medical or cognitive 20 disability at the time the prisoner committed the offense or parole or probation 21 violation for which the prisoner is presently incarcerated; or 22 (B) was suffering from the severe medical or cognitive 23 disability at the time the prisoner committed the offense or parole or probation 24 violation for which the prisoner is presently incarcerated and the medical or 25 cognitive disability has progressed so that the likelihood of the prisoner's 26 committing the same or a similar offense is low; 27 (4) the care and supervision that the prisoner requires can be provided 28 in a more medically appropriate or cost-effective manner than by the department; 29 (5) the prisoner is incapacitated to an extent that incarceration does not 30 impose significant additional restrictions on the prisoner; 31 (6) the prisoner is likely to remain subject to the severe medical or
01 cognitive disability throughout the entire period of parole or to die and there is no 02 reasonable expectation that the prisoner's medical or cognitive disability will improve 03 noticeably; and 04 (7) an appropriate discharge plan has been formulated that addresses 05 basic life domains of the prisoner, including care coordination, housing, eligibility for 06 public benefits, and health care, including necessary medication. 07 * Sec. 28. AS 33.16.090 is repealed and reenacted to read: 08 Sec. 33.16.090. Eligibility for discretionary parole and minimum terms to 09 be served. (a) A prisoner sentenced to an active term of imprisonment of at least 181 10 days may, in the discretion of the board, be released on discretionary parole if the 11 prisoner has served the amount of time specified under (b) of this section, except that 12 (1) a prisoner sentenced to one or more mandatory 99-year terms under 13 AS 12.55.125(a) or one or more definite terms under AS 12.55.125(l) is not eligible 14 for consideration for discretionary parole; 15 (2) a prisoner is not eligible for consideration of discretionary parole if 16 made ineligible by order of a court under AS 12.55.115; 17 (3) a prisoner imprisoned under AS 12.55.086 is not eligible for 18 discretionary parole unless the actual term of imprisonment is more than one year. 19 (b) A prisoner eligible under (a) of this section who is sentenced 20 (1) to a single sentence under AS 12.55.125(a) or (b) may not be 21 released on discretionary parole until the prisoner has served the mandatory minimum 22 term under AS 12.55.125(a) or (b), one-third of the active term of imprisonment 23 imposed, or any term set under AS 12.55.115, whichever is greatest; 24 (2) to a single sentence within or below a presumptive range set out in 25 AS 12.55.125(c), (d)(2) - (4), (e)(3) and (4), or (i), and has not been allowed by the 26 three-judge panel under AS 12.55.175 to be considered for discretionary parole 27 release, may not be released on discretionary parole until the prisoner has served the 28 term imposed, less good time earned under AS 33.20.010; 29 (3) to a single sentence under AS 12.55.125(c), (d)(2) - (4), (e)(3) and 30 (4), or (i), and has been allowed by the three-judge panel under AS 12.55.175 to be 31 considered for discretionary parole release during the second half of the sentence, may
01 not be released on discretionary parole until 02 (A) the prisoner has served that portion of the active term of 03 imprisonment required by the three-judge panel; and 04 (B) in addition to the factors set out in AS 33.16.100(a), the 05 board determines that 06 (i) the defendant has successfully completed all 07 rehabilitation programs ordered by the three-judge panel that were 08 made available to the prisoner; and 09 (ii) the prisoner would not constitute a danger to the 10 public if released on parole; 11 (4) to a single enhanced sentence under AS 12.55.155(a) that is above 12 the applicable presumptive range, may not be released on discretionary parole until the 13 prisoner has served the greater of the following: 14 (A) an amount of time, less good time earned under 15 AS 33.20.010, equal to the upper end of the presumptive range plus one-fourth 16 of the amount of time above the presumptive range; or 17 (B) any term set under AS 12.55.115; 18 (5) to a single sentence under any other provision of law, may not be 19 released on discretionary parole until the prisoner has served at least one-fourth of the 20 active term of imprisonment, any mandatory minimum sentence imposed under any 21 provision of law, or any term set under AS 12.55.115, whichever is greatest; 22 (6) to concurrent sentences, may not be released on discretionary 23 parole until the prisoner has served the greatest of 24 (A) any mandatory minimum sentence or sentences imposed 25 under any provision of law; 26 (B) any term set under AS 12.55.115; or 27 (C) the amount of time that is required to be served under (1) - 28 (5) of this subsection for the sentence imposed for the primary crime, had that 29 been the only sentence imposed; 30 (7) to consecutive or partially consecutive sentences, may not be 31 released on discretionary parole until the prisoner has served the greatest of
01 (A) the composite total of any mandatory minimum sentence or 02 sentences imposed under any provision of law, including AS 12.55.127; 03 (B) any term set under AS 12.55.115; or 04 (C) the amount of time that is required to be served under (1) - 05 (5) of this subsection for the sentence imposed for the primary crime, had that 06 been the only sentence imposed, plus one-quarter of the composite total of the 07 active term of imprisonment imposed as consecutive or partially consecutive 08 sentences imposed for all crimes other than the primary crime. 09 (c) As used in this section, 10 (1) "active term of imprisonment" has the meaning given in 11 AS 12.55.185; 12 (2) "primary crime" has the meaning given in AS 12.55.127. 13 * Sec. 29. AS 33.16.100 is amended by adding a new subsection to read: 14 (e) If the parole board considers an application for discretionary parole, and 15 denies parole because the prisoner does not meet the standards in (a) of this section, 16 the board may make a prisoner ineligible for further consideration of discretionary 17 parole, or may require that additional time be served before the prisoner is again 18 eligible for consideration for discretionary parole. 19 * Sec. 30. AS 33.16.240(c) is amended to read: 20 (c) In addition to the powers granted to a police officer under (g) of this 21 section, a [A] parole officer may, without a warrant, arrest a parolee for a violation of 22 parole only if there is danger to the public, if there is a likelihood that the parolee will 23 flee, or if the parolee committed a crime in the presence of the parole officer. 24 * Sec. 31. AS 33.16.240 is amended by adding a new subsection to read: 25 (g) At any time within the period of parole supervision, a police officer 26 certified by the Alaska Police Standards Council may detain a parolee if the officer 27 has reasonable suspicion that the person has recently violated or may imminently 28 violate a parole condition relating to one of the topics set out in AS 33.05.070(d). The 29 officer may also arrest the parolee without a warrant if the officer has probable cause 30 to believe that the person has violated a parole condition relating to one of the topics 31 set out in AS 33.05.070(d).
01 * Sec. 32. AS 12.55.125(k); AS 33.16.100(c) and 33.16.100(d) are repealed. 02 * Sec. 33. The uncodified law of the State of Alaska is amended by adding a new section to 03 read: 04 APPLICABILITY. Sections 1, 4, 6, 26, and 29 - 31 of this Act apply to offenses 05 committed before, on, or after the effective date of this Act. Sections 2, 3, 5, 7 - 25, and 27 - 06 28 of this Act apply to offenses committed on or after the effective date of this Act. 07 References to prior offenses or convictions in secs. 8 - 21 of this Act include offenses 08 committed before, on, or after the effective date of this Act. 09 * Sec. 34. This Act takes effect July 1, 2005.