SB 188: "An Act relating to criminal law and procedure; relating to a petition for a change of name for certain persons; relating to procedures for bail; relating to consecutive sentencing for violation of condition of release; relating to the duty to register as a sex offender; amending Rules 6(r) and 47, Alaska Rules of Criminal Procedure; amending Rule 12, Alaska Delinquency Rules; amending Rule 84, Alaska Rules of Civil Procedure; and providing for an effective date."
00 SENATE BILL NO. 188 01 "An Act relating to criminal law and procedure; relating to a petition for a change of 02 name for certain persons; relating to procedures for bail; relating to consecutive 03 sentencing for violation of condition of release; relating to the duty to register as a sex 04 offender; amending Rules 6(r) and 47, Alaska Rules of Criminal Procedure; amending 05 Rule 12, Alaska Delinquency Rules; amending Rule 84, Alaska Rules of Civil Procedure; 06 and providing for an effective date." 07 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 08 * Section 1. The uncodified law of the State of Alaska is amended by adding a new section 09 to read: 10 LEGISLATIVE FINDINGS AND INTENT. (a) The legislature finds that it is not 11 now, nor has it ever been, the case that a prosecutor must know conclusively that evidence 12 admitted at grand jury will also be admitted at trial. 13 (b) The legislature further finds that evidence is generally admissible at grand jury as
01 long as the prosecutor believes that the evidence will be admissible at the time of trial. 02 (c) It is the intent of the legislature that Criminal Rule 6(r), as amended by sec. 14 of 03 this Act, overturns the decision of the Alaska Court of Appeals in State v. Powell, 487 P.3d 04 609 (Alaska App. 2021), to the extent the decision held that hearsay evidence admissible 05 under the hearsay exception under Alaska Rule of Evidence 801(d)(3) is inadmissible at grand 06 jury if certain foundational requirements cannot be met at the time of grand jury. 07 (d) It is the intent of the legislature that Alaska Rule of Criminal Procedure 47(b) and 08 (c), as amended by secs. 15 and 16 of this Act, overturns case law with which it is 09 inconsistent, including the decision in Adams v. State, 261 P.3d 758 (Alaska 2011), to the 10 extent the decision held that a constitutional violation will be prejudicial unless the state 11 proves that it was harmless beyond a reasonable doubt; the decision in Moreno v. State, 341 12 P.3d 1134 (Alaska 2015), to the extent the decision held that evidence of a tactical decision 13 not to object to a trial error must be plainly obvious from the record; and the decision in 14 Goldsbury v. State, 342 P.3d 834 (Alaska 2015), to the extent the decision held that plain 15 error may be found even though reasonable people could disagree about a proposition or 16 appropriate remedy. 17 * Sec. 2. AS 09.55.010 is amended to read: 18 Sec. 09.55.010. Jurisdiction in action for change of name. A person may 19 bring an action for change of name in the superior court. Except as provided in (b) 20 and (c) of this section, a [A] change of name of a person may not be made unless the 21 court finds sufficient reasons for the change and also finds it consistent with the public 22 interest. A change of name upon marriage, dissolution, or divorce meets these 23 requirements. 24 * Sec. 3. AS 09.55.010 is amended by adding new subsections to read: 25 (b) The court may not consider an action for change of name brought by a 26 person 27 (1) who is committed to the custody of the Department of Corrections, 28 on probation under AS 33.05 or parole under AS 33.16, or required to register as a sex 29 offender under AS 12.63 unless 30 (i) for a person committed to the custody of the 31 Department of Corrections, on probation under AS 33.05 or parole
01 under AS 33.16, the person provides proof satisfactory to the court that 02 notice of the petition has been served on the Department of 03 Corrections; or 04 (ii) for a person required to register as a sex offender 05 under AS 12.63, the person provides proof satisfactory to the court that 06 notice of the petition has been served on the Department of Public 07 Safety; 08 (2) who is charged with an offense unless the person provides the court 09 with the case number associated with the offense. 10 (c) A change of name of a person under (b) of this section may not be made 11 unless the court finds that the change 12 (1) is consistent with the public interest; 13 (2) does not have a fraudulent purpose; 14 (3) is not intended to hinder or obstruct law enforcement purposes; and 15 (4) would not interfere with the rights of others. 16 * Sec. 4. AS 11.56.840(a) is amended to read: 17 (a) A person commits the crime of failure to register as a sex offender or child 18 kidnapper in the second degree if the person 19 (1) is required to register under AS 12.63.010; 20 (2) knows that the person is required to register under AS 12.63.010; 21 and 22 (3) fails to 23 (A) register; 24 (B) file written notice of 25 (i) change of residence; 26 (ii) change of mailing address; 27 (iii) establishment of an electronic or messaging address 28 or any change to an electronic or messaging address; or 29 (iv) establishment of an Internet communication 30 identifier or any change to an Internet communication identifier; or 31 (v) change of name;
01 (C) file the annual or quarterly written verification; or 02 (D) supply accurate and complete information required to be 03 submitted under this paragraph. 04 * Sec. 5. AS 12.30.006(c) is amended to read: 05 (c) A person who remains in custody 48 hours after appearing before a judicial 06 officer because of inability to meet the conditions of release shall, upon application, be 07 entitled to have the conditions reviewed by the judicial officer who imposed them. If 08 the judicial officer who imposed the conditions of release is not available, any judicial 09 officer in the judicial district may review the conditions. A judicial officer may not 10 review bail under this subsection unless the person provides to the court and the 11 prosecuting authority written notice at least 48 hours before the time set for the 12 review. The notice must include a description of the conditions of release that the 13 person is seeking to modify. 14 * Sec. 6. AS 12.30.006(f) is amended to read: 15 (f) The judicial officer shall issue written [OR ORAL] findings that explain 16 how [THE REASONS THE OFFICER IMPOSED] the particular conditions of release 17 imposed or modifications or additions to conditions previously imposed will 18 reasonably ensure the appearance of the person and the safety of the victim, 19 other persons, or the community. The judicial officer shall inform the person that a 20 law enforcement officer or a pretrial services officer under AS 33.07 may arrest the 21 person without a warrant for violation of the court's order establishing conditions of 22 release. 23 * Sec. 7. AS 12.30.011(d) is amended to read: 24 (d) In making a finding regarding the release of a person under this chapter, 25 (1) except as otherwise provided in this chapter, the burden of proof is 26 on the prosecuting authority that a person charged with an offense should be detained 27 or released with conditions described in (b) of this section or AS 12.30.016; 28 (2) there is a rebuttable presumption that there is a substantial risk that 29 the person will not appear and the person poses a danger to the victim, other persons, 30 or the community, if the person [IS] 31 (A) is charged with an unclassified felony, a class A felony, a
01 sexual felony, or a felony under AS 28.35.030 or 28.35.032; 02 (B) is charged with a felony crime against a person under 03 AS 11.41, was previously convicted of a felony crime against a person under 04 AS 11.41 in this state or a similar offense in another jurisdiction, and less than 05 five years have elapsed between the date of the person's unconditional 06 discharge on the immediately preceding offense and the commission of the 07 present offense; 08 (C) is charged with a felony offense committed while the 09 person was on release under this chapter for a charge or conviction of another 10 offense; 11 (D) is charged with a crime involving domestic violence, and 12 has been convicted in the previous five years of a crime involving domestic 13 violence in this state or a similar offense in another jurisdiction; 14 (E) is arrested in connection with an accusation that the person 15 committed a felony outside the state or is a fugitive from justice from another 16 jurisdiction, and the court is considering release under AS 12.70; or 17 (F) has violated a condition of release imposed under this 18 chapter two or more times in a single case. 19 * Sec. 8. AS 12.55.127(c) is amended to read: 20 (c) If the defendant is being sentenced for 21 (1) escape, the term of imprisonment shall be consecutive to the term 22 for the underlying crime; 23 (2) two or more crimes under AS 11.41, a consecutive term of 24 imprisonment shall be imposed for at least 25 (A) the mandatory minimum term under AS 12.55.125(a) for 26 each additional crime that is murder in the first degree; 27 (B) the mandatory minimum term for each additional crime 28 that is an unclassified felony governed by AS 12.55.125(b); 29 (C) the presumptive term specified in AS 12.55.125(c) or the 30 active term of imprisonment, whichever is less, for each additional crime that 31 is
01 (i) manslaughter; or 02 (ii) kidnapping that is a class A felony; 03 (D) two years or the active term of imprisonment, whichever is 04 less, for each additional crime that is criminally negligent homicide; 05 (E) one-fourth of the presumptive term under AS 12.55.125(c) 06 or (i) for each additional crime that is sexual assault in the first degree under 07 AS 11.41.410 or sexual abuse of a minor in the first degree under 08 AS 11.41.434, or an attempt, solicitation, or conspiracy to commit those 09 offenses; and 10 (F) some additional term of imprisonment for each additional 11 crime, or each additional attempt or solicitation to commit the offense, under 12 AS 11.41.200 - 11.41.250, 11.41.420 - 11.41.432, 11.41.436 - 11.41.458, or 13 11.41.500 - 11.41.520; 14 (3) two or more crimes of violation of condition of release under 15 AS 11.56.757, a consecutive term of imprisonment shall be imposed for some 16 additional term of imprisonment for the underlying crime and each additional 17 crime under AS 11.56.757. 18 * Sec. 9. AS 12.63.010(c) is amended to read: 19 (c) If a sex offender or child kidnapper changes residence or obtains a 20 change of name under AS 09.55.010 after having registered under (a) of this section, 21 the sex offender or child kidnapper shall provide written notice of the change by the 22 next working day following the change to the Alaska state trooper post or municipal 23 police department located nearest to the new residence or, if the residence change is 24 out of state, to the central registry. If a sex offender or child kidnapper establishes or 25 changes an electronic mail address, instant messaging address, or other Internet 26 communication identifier, the sex offender or child kidnapper shall, by the next 27 working day, notify the department in writing of the changed or new address or 28 identifier. 29 * Sec. 10. AS 25.24.165 is amended by adding a new subsection to read: 30 (c) This section does not apply to a person who is committed to the custody of 31 the Department of Corrections, on probation under AS 33.05 or parole under
01 AS 33.16, or required to register as a sex offender under AS 12.63. 02 * Sec. 11. AS 33.05.020 is amended by adding a new subsection to read: 03 (j) The commissioner shall notify the victim of a crime upon receiving notice 04 that the probationer has filed a petition for a change of name under AS 09.55.010. 05 * Sec. 12. AS 33.16.180 is amended to read: 06 Sec. 33.16.180. Duties of the commissioner. The commissioner shall 07 (1) conduct investigations of prisoners eligible for discretionary parole, 08 as requested by the board and as provided in this section; 09 (2) supervise the conduct of parolees; 10 (3) appoint and assign parole officers and personnel; 11 (4) notify the board and provide information on a prisoner 120 days 12 before the prisoner's mandatory release date, if the prisoner is to be released on 13 mandatory parole; 14 (5) maintain records, files, and accounts as requested by the board; 15 (6) prepare preparole reports under AS 33.16.110(a); 16 (7) notify the board in writing of a prisoner's compliance or 17 noncompliance with the prisoner's case plan created under AS 33.30.011(a)(8) not less 18 than 30 days before the prisoner's next parole eligibility date or the prisoner's parole 19 hearing date, whichever is earlier; 20 (8) establish an administrative sanction and incentive program to 21 facilitate a swift and certain response to a parolee's compliance with or violation of the 22 conditions of parole and shall adopt regulations to implement the program; at a 23 minimum, the regulations must include 24 (A) a decision-making process to guide parole officers in 25 determining the suitable response to positive and negative offender behavior 26 that includes a list of sanctions for the most common types of negative 27 behavior, including technical violations of conditions of parole, and a list of 28 incentives for compliance with conditions and positive behavior that exceeds 29 those conditions; 30 (B) policies and procedures that ensure 31 (i) a process for responding to negative behavior that
01 includes a review of previous violations and sanctions; 02 (ii) that enhanced sanctions for certain negative conduct 03 are approved by the commissioner or the commissioner's designee; and 04 (iii) that appropriate due process protections are 05 included in the process, including notice of negative behavior, an 06 opportunity to dispute the accusation and the sanction, and an 07 opportunity to request a review of the accusation and the sanction; 08 [AND] 09 (9) within 30 days after sentencing of an offender, provide the victim 10 of a crime information on the earliest dates the offender could be released on furlough, 11 probation, or parole, including deductions or reductions for good time or other good 12 conduct incentives, and the process for release, including contact information for the 13 decision-making bodies; and 14 (10) notify the board and the victim of a crime upon receiving 15 notice of the filing of a petition for a change of name of a parolee under 16 AS 09.55.010. 17 * Sec. 13. AS 33.30.013(a) is amended to read: 18 (a) The commissioner shall notify the victim if the offender 19 (1) escapes from custody; 20 (2) is discharged from parole under AS 33.16; [OR] 21 (3) is released to the community on a furlough, on an early release 22 program, or for any other reason; or 23 (4) petitions the court for a change of name and the commissioner 24 has received notice of the filing of the petition under AS 09.55.010. 25 * Sec. 14. The uncodified law of the State of Alaska is amended by adding a new section to 26 read: 27 DIRECT COURT RULE AMENDMENT. Rule 6(r) Alaska Rules of Criminal 28 Procedure, is amended to read: 29 (r) Admissibility of Evidence. 30 (1) Evidence which the prosecutor believes would be legally 31 admissible at trial shall be admissible before the grand jury. Witnesses [IN
01 APPROPRIATE CASES, HOWEVER, WITNESSES] may be presented to 02 summarize admissible evidence if the admissible evidence will be available at trial. 03 [EXCEPT AS STATED IN SUBPARAGRAPHS (2), (3), AND (6), HEARSAY 04 EVIDENCE SHALL NOT BE PRESENTED TO THE GRAND JURY ABSENT 05 COMPELLING JUSTIFICATION FOR ITS INTRODUCTION. IF HEARSAY 06 EVIDENCE IS PRESENTED TO THE GRAND JURY, THE REASONS FOR ITS 07 USE SHALL BE STATED ON THE RECORD.] 08 (2) [IN A PROSECUTION FOR AN OFFENSE UNDER 09 AS 11.41.410 - 11.41.458, HEARSAY EVIDENCE OF A STATEMENT RELATED 10 TO THE OFFENSE, NOT OTHERWISE ADMISSIBLE, MADE BY A CHILD 11 WHO IS THE VICTIM OF THE OFFENSE MAY BE ADMITTED INTO 12 EVIDENCE BEFORE THE GRAND JURY IF 13 (i) THE CIRCUMSTANCES OF THE STATEMENT 14 INDICATE ITS RELIABILITY; 15 (ii) THE CHILD IS UNDER 10 YEARS OF AGE 16 WHEN THE HEARSAY EVIDENCE IS SOUGHT TO BE 17 ADMITTED; 18 (iii) ADDITIONAL EVIDENCE IS INTRODUCED 19 TO CORROBORATE THE STATEMENT; AND 20 (iv) THE CHILD TESTIFIES AT THE GRAND JURY 21 PROCEEDING OR THE CHILD WILL BE AVAILABLE TO 22 TESTIFY AT TRIAL. 23 (3) HEARSAY EVIDENCE RELATED TO THE OFFENSE, NOT 24 OTHERWISE ADMISSIBLE, MAY BE ADMITTED INTO EVIDENCE BEFORE 25 THE GRAND JURY IF 26 (i) THE INDIVIDUAL PRESENTING THE 27 HEARSAY EVIDENCE IS A PEACE OFFICER INVOLVED IN THE 28 INVESTIGATION; AND 29 (ii) THE HEARSAY EVIDENCE CONSISTS OF THE 30 STATEMENT AND OBSERVATIONS MADE BY ANOTHER 31 PEACE OFFICER IN THE COURSE OF AN INVESTIGATION;
01 AND 02 (iii) ADDITIONAL EVIDENCE IS INTRODUCED 03 TO CORROBORATE THE STATEMENT. 04 (4)] If the testimony presented by a peace officer [UNDER 05 PARAGRAPH (3) OF THIS SECTION] is inaccurate because of intentional, grossly 06 negligent, or negligent misstatements or omissions, then the court shall dismiss an 07 indictment resulting from the testimony if the defendant shows that the inaccuracy 08 prejudices substantial rights of the defendant. 09 (3) [(5)] In this section "statement" means an oral or written assertion 10 or nonverbal conduct if the nonverbal conduct is intended as an assertion. 11 (4) [(6)] When a prior conviction is an element of an offense, hearsay 12 evidence received through the Alaska Public Safety Information Network or from 13 other government agencies of prior convictions may be presented to the grand jury. 14 * Sec. 15. The uncodified law of the State of Alaska is amended by adding a new section to 15 read: 16 DIRECT COURT RULE AMENDMENT. Rule 47(b), Alaska Rules of 17 Criminal Procedure, is amended to read: 18 (b) Plain Error. 19 (1) Plain errors [OR DEFECTS AFFECTING SUBSTANTIAL 20 RIGHTS] may be noticed by the reviewing court although they were not brought to 21 the attention of the trial court. Where plain error has been established, the remedy 22 shall be determined by the reviewing court, but should be employed only in cases 23 where the plain error seriously affects the fairness, integrity, or public reputation 24 of judicial proceedings. 25 (2) The party seeking to establish plain error has the burden of 26 proving 27 (A) any factual assertions by clear and convincing evidence; 28 and 29 (B) all of the elements of plain error, regardless of whether 30 the claimed error is constitutional in nature. 31 (3) Where the record is silent or ambiguous, the error cannot be
01 deemed plain unless the factual finding asserted on appeal is the only finding 02 rationally supported by the record. 03 * Sec. 16. The uncodified law of the State of Alaska is amended by adding a new section to 04 read: 05 DIRECT COURT RULE AMENDMENT. Rule 47, Alaska Rules of Criminal 06 Procedure, is amended by adding a new subsection to read: 07 (c) Definitions. 08 (1) Obvious. An error is obvious if every competent judge would have 09 recognized it as an error. An error is not obvious if 10 (A) reasonable judges could disagree about a proposition or 11 appropriate remedy; or 12 (B) simply because it is constitutional in nature. 13 (2) Plain Error. An error is plain if it was obvious, involved 14 substantial rights, and was prejudicial. An error that is the result of an intelligent 15 waiver or a forfeiture due to a tactical decision not to object, is not a plain error. 16 (3) Prejudicial. An error is prejudicial if there is a reasonable 17 probability that the error appreciably affected the outcome of the proceeding. 18 (4) Substantial Rights. A right is substantial if it significantly 19 contributes to the fundamental fairness of the proceeding. The denial of a substantial 20 right could cause a miscarriage of justice. A substantial right may be substantive or 21 procedural. 22 (5) Tactical Decision. A decision is tactical if the record supports a 23 plausible reason for the failure to object. There is a rebuttable presumption that 24 failures to object are tactical. The party seeking to establish plain error has the burden 25 of rebutting this presumption and must prove all factual assertions by clear and 26 convincing evidence. 27 * Sec. 17. The uncodified law of the State of Alaska is amended by adding a new section to 28 read: 29 DIRECT COURT RULE AMENDMENT. Rule 12, Alaska Delinquency 30 Rules, is amended by adding a new subsection to read: 31 (f) Notice. Not less than 48 hours before a hearing under (e) of this section,
01 the minor or the minor's attorney shall provide written notice to the court, Department, 02 and prosecuting attorney of any proposed conditions of release. 03 * Sec. 18. AS 12.40.110 is repealed. 04 * Sec. 19. The uncodified law of the State of Alaska is amended by adding a new section to 05 read: 06 INDIRECT COURT RULE AMENDMENT. AS 09.55.010, as amended by secs. 2 07 and 3 of this Act, has the effect of changing Rule 84, Alaska Rules of Civil Procedure, by 08 establishing specific parties that must be notified and findings that must be made by the court 09 when certain persons petition for a change of name. 10 * Sec. 20. The uncodified law of the State of Alaska is amended by adding a new section to 11 read: 12 APPLICABILITY. (a) AS 11.56.840(a), as amended by sec. 4 of this Act, 13 AS 12.30.006(c), as amended by sec. 5 of this Act, AS 12.30.006(f), as amended by sec. 6 of 14 this Act, AS 12.30.011(d), as amended by sec. 7 of this Act, and AS 12.55.127(c), as amended 15 by sec. 8 of this Act, apply to offenses committed on or after the effective date of those 16 sections. 17 (b) AS 12.63.010(c), as amended by sec. 9 of this Act, applies to the duty to register 18 as a sex offender or child kidnapper for offenses committed before, on, or after the effective 19 date of this Act. 20 (c) Rule 6(r), Alaska Rules of Criminal Procedure, as amended by sec. 14 of this Act, 21 applies to indictments occurring on or after the effective date of this Act for offenses 22 committed before, on, or after the effective date of this Act. 23 (d) Rule 47(b), Alaska Rules of Criminal Procedure, as amended by sec. 15 of this 24 Act, applies to appeals filed before, on, or after the effective date of this Act for convictions 25 occurring before, on, or after the effective date of this Act. 26 (e) Nothing in (d) of this section may be construed as invalidating a decision of the 27 Court of Appeals rendered before the effective date of this Act. 28 * Sec. 21. The uncodified law of the State of Alaska is amended by adding a new section to 29 read: 30 CONDITIONAL EFFECT. (a) AS 09.55.010, as amended by sec. 2 of this Act, and 31 AS 09.55.010(b) and (c), enacted by sec. 3 of this Act, take effect only if sec. 19 of this Act
01 receives the two-thirds majority vote of each house required by art. IV, sec. 15, Constitution 02 of the State of Alaska. 03 (b) Rule 6(r), Alaska Rules of Criminal Procedure, as amended by sec. 14 of this Act, 04 takes effect only if sec. 14 of this Act receives the two-thirds majority vote of each house 05 required by art. IV, sec. 15, Constitution of the State of Alaska. 06 (c) Rule 47(b), Alaska Rules of Criminal Procedure, as amended by sec. 15 of this 07 Act, and Rule 47(c), Alaska Rules of Criminal Procedure, enacted by sec. 16 of this Act, take 08 effect only if secs. 15 and 16 of this Act receive the two-thirds majority vote of each house 09 required by art. IV, sec. 15, Constitution of the State of Alaska. 10 (d) Rule 12, Alaska Delinquency Rules, as amended by sec. 17 of this Act, takes 11 effect only if sec. 17 of this Act receives the two-thirds majority vote of each house required 12 by art. IV, sec. 15, Constitution of the State of Alaska. 13 * Sec. 22. This Act takes effect July 1, 2022.