Legislature(1995 - 1996)
04/21/1995 01:40 PM House FIN
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE BILL NO. 201
An Act relating to prisoner litigation, post-conviction
relief, sentence appeals, amending Alaska
Administrative Rule 10, Alaska Rules of Appellate
Procedure 204, 208, 209, 215, 521, 603, and 604, and
Alaska Rules of Criminal Procedure 11, 33, 35, and
35.1; and providing for an effective date.
The Committee was provided with copies of proposed committee
substitute for HB 201, Work Draft #9-GH0028\0, dated 4/20/95
(copy on file).
Ms. Otto reviewed the work draft. She noted that most of
the statutory changes included in HB 201 were at the request
of the Court. She stated that the first substantive change
made by the work draft was the deletion on page 3, lines 5 -
11 of changes made by CSHB 201 (JUD). She noted that these
provisions would have required screening for frivolous
cases. She explained that this provision would have
required a $200 thousand dollar fiscal note. She noted a
new section was substituted to allow a dismissal of
litigation if there are material false statements in the
filing. She noted that section 10 is new to allow the Court
of Appeals to hear appeals of sentences exceeding two years
for a felony offense or 120 days for a misdemeanor offense.
Ms. Otto stated that sections 19 and 20 would clarify that
advisement would only be given in cases where there is an
appellate right or where there is a plea agreement.
Ms. Otto noted that sections 33, 34 and 35 are new at the
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request of the Public Defender Agency. She explained that
if a person files an application for a post conviction
relief and the Public Defender concludes that the case is
frivolous that a brief would not be required. A certificate
would be filed that the application does not present a
colorable claim for relief. The Court would than give
notice to the defendant of its intent to permit the
appointed counsel to withdraw and dismiss the application.
The applicant would then be given an opportunity to explain
why the case is not frivolous. The Court would next make a
judgement as to the merit of the case. She stressed that
the Department of Law supports these provisions.
Representative Mulder MOVED to adopt work draft #9-GH0028\O,
dated 4/20/95. There being NO OBJECTION, it was so ordered.
MARGI MOCK, APPELLATE SECTION, PUBLIC DEFENDER AGENCY
testified via the teleconference network. She expressed
concern with sections 28 and 29. She noted that these
sections eliminate Rule 35 (a) and reduces the time a
defendant can file for sentence modification from 120 days
to 60 days. She asserted that the legislation would
entirely eliminate sentence modification. She stressed the
difficulty to demonstrate a change or rehabilitation within
60 days. She maintained that the change would result in an
increase in motions. She stated that it makes more sense to
allow modifications when there is enough time to demonstrate
a compelling need for relief and that the defendant can be
returned safely to the community.
Ms. Mock noted that section 20 does not allow the Appellate
Court to accept late filled appeals or petitions for
hearings. She stressed that this penalizes defendants whose
lawyers are negligent and do not file appellate pleadings in
a timely fashion. She recommended that the Court be given
the discretion to relax the deadline in cases where the
interest of justice requires.
Ms. Mock noted that section 36 states that the "applicant
bears the burden of proving all factual assertions by clear
and convincing evidence." She noted that this is new
language. She asserted that there are varying burden of
proofs already set by the Court.
Ms. Otto summarized that under Rule 35 (a) a motion to
modify is allowed for any reason within 120 days after the
day the sentence is opposed or after an appeal has been
decided. She stressed that it is unfair to have those that
accept their sentence to have a shorter period of time than
those that carry their sentence to appeal. She did not
think it appropriate to have two sets of standards for two
classes of defendants.
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Ms. Otto stated that the Court has rejected motions to
modify that are currently in Rule 35 (b). She explained
that the Court has ruled that rehabilitation as a result of
jail time is not a basis for modification of sentence. She
noted that the Court has judged that rehabilitation was the
purpose of the imposed sentence. She pointed out that there
is an executive clemency procedure for individuals that are
outside the time limit.
In response to a question by Representative Brown, Ms. Otto
emphasized that in the small amount of cases where a
sentence modification is appropriate that executive clemency
is a suitable remedy. She stressed the number of frivolous
cases. She stated that executive clemency is authorized by
the Constitution and is investigated by the parole board.
She stated that executive clemency is not frequently
granted.
Representative Brown questioned why the period for sentence
modification was changed from 120 to 60 days. Ms. Otto
stated that there was a general consensus, with the
exception of the Public Defender Agency, that 60 days was
sufficient. Ms. Otto stated that she would not object to
the deletion of the change. She noted that the change takes
place on page 18, line 14. She explained that Rules 35(a)
and (b) were combined into Rule 35(b).
Ms. Otto agreed that defendants should not be penalized for
the negligence of their lawyers. She stressed that the
remedy is on page 20, lines 3 and 4. This would be reason
to grant a post conviction relief application and allow the
appeal to be filed.
She stated that the change is designed to resolve appeals in
a timely fashion.
Ms. Otto referred to section 36. She felt that the section
is an appropriate step by the Legislature to impose a clear
and convincing burden of proof. She emphasized that the
section applies to post conviction relief applications. She
stressed that post conviction relief application is the
second round of appeals filed after someone has already lost
on direct appeal. She stated that after the State has met a
higher burden of proof that it is appropriate that someone
seeking relief on a second round of appeals have the burden
of proving factual matters by clear and convincing evidence.
In response to a question by Representative Brown, Ms. Otto
noted that page 19 details circumstances for which a post
conviction relief application can be granted.
Ms. Otto explained that in the first case the State would
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have the burden of proof. In the relief application the
defendant would have the burden of proof. Current law is
based on the preponderance of the evidence.
(Tape Change, HFC 95-92, Side 2)
Ms. Otto stated that if the Court finds under section 30(4),
"that there exists evidence of material facts, not
previously presented and heard, that requires vacation of
the conviction or sentence in the interest of justice", the
application would be granted.
Representative Navarre summarized that the evidence would
not have been available at appeal. He questioned how often
post conviction relief applications are successful. Ms.
Otto stated that post convictions relief applications are
occasionally successful.
Representative Navarre expressed concern that innocent
persons not receive a higher burden of proof. Ms. Otto
emphasized that once a person is convicted they are not
presumed to be innocent.
Ms. Otto summarized that the legislation will reduce the
number of cases that will be filed and provide appropriate
uniform procedures. She estimated that the vast majority of
applications are supported by unsubstantiated facts.
Representative Grussendorf recounted personal experiences
with prisoners seeking appeal.
Representative Mulder spoke in support of the legislation.
In response to a question by Representative Brown, Ms. Otto
clarified that if a defendant's lawyer did not file a
petition for appeal they would be rendered ineffective
assistance of counsel on appeal. This is grounds for a post
conviction relief application. The defendant would then be
allowed to present an appeal.
Representative Therriault referred to page 5, section 6.
Ms. Otto explained that the presumptive sentence for a C
felony is 2 years. She stated that the Department of Law
was unable to locate an conviction of less than 2 years for
a felony offense that was overturned. She noted that case
law is complicated for sentences over 2 years. She noted
that the right to appeal differs from state to state. She
stressed that classes of cases were sought where defendants
always loose.
Representative Brown referred to comments by Alaska Civil
Liberties Union (ACLU) to Representative Porter, dated April
7, 1995 (copy on file). Ms. Otto stressed that it is
unlikely for a sentence of two years or less to succeed in a
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sentence appeal.
Representative Brown noted concerns by the ACLU in regards
to sections 8 and 9. Ms. Otto stated that a defendant
cannot collaterally attack an evidentiary ruling unless he
can establish a direct violation of his constitutional
rights. She maintained that this provision is a
codification of existing practice.
In response to a question by Representative Brown, Ms. Otto
clarified that under section 28 the Court has the ability to
grant a judgement of acquittal after the State's case is
concluded, stating that there is not enough evidence to
convict the defendant. She stressed that some judges do not
want to take this responsibility. The trial is left to
continue and after a jury reaches a verdict the judge rules
that the verdict is against the weight of evidence. She
maintained that if there is not enough evidence that the
judge should grant a motion for judgement of acquittal.
Ms. Otto referred to section 27. She noted the difficulty
of locating witnesses after time. Section 27 changes the
time for motion of a new trial from 2 years to 180 days
after final judgement. She noted that if new evidence is
discovered after 180 days a motion for post conviction
relief could be entertained.
In response to a question by Representative Navarre, Ms.
Otto acknowledged that it is uncommon for courts to grant a
new trial after a jury verdict. Ms. Otto reiterated that it
is more appropriate for a judge to not allow a case to go to
jury if the weight of the evidence is insufficient. She
maintained that a judgement of acquittal should be granted.
Ms. Otto discussed concerns by ACLU in regards to page 23,
lines 27 and 28. She noted that there is a new civil rule
that has been passed by the Court that states that once a
case is filed everybody has to disclose everything that is
relevant. She stated that the Department of Law does not
want this rule to apply in prisoner cases because they do
not want to give out correctional officer's addresses and
phone numbers and other such safety information.
Ms. Otto noted that page 3, lines 24 - 26 applies to civil
litigation by prisoners of the state.
Ms. Mock stated that in order to file an ineffective
assistance claim that a determination must first be made by
a lower court. She summarized that litigation would be
increased by this change. She estimated that the work would
be 10 to 20 times greater than filing an affidavit stating
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that the client did not have an appeal filed on their
behalf. She noted that defendant lawyers will be required
to certify under oath that claims are not frivolous.
Ms. Mock noted that Rule 35(b) states that the Court cannot
reduce or modify a sentence unless conditions have changed
so that the original purpose of the sentence is being
fulfilled. She maintained that a court would not modify a
sentence after 60 days. She stated that a person who
appeals their sentence should not be penalized.
HB 201 was HELD in Committee for further discussion.
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