Legislature(2007 - 2008)CAPITOL 120
03/28/2008 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB164 | |
| HB323 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 323 | TELECONFERENCED | |
| + | HB 327 | TELECONFERENCED | |
| + | HB 415 | TELECONFERENCED | |
| + | SB 164 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 323 - CRIMINAL LAW/PROCEDURE: OMNIBUS BILL 2:21:13 PM CHAIR RAMRAS announced that the final order of business would be HOUSE BILL NO. 323, "An Act relating to the crimes of assault in the fourth degree and of resisting or interfering with arrest; relating to the determination of time of a conviction; relating to offenses concerning controlled substances; relating to issuance of search warrants; relating to persons found incompetent to stand trial concerning criminal conduct; relating to probation and to restitution for fish and game violations; relating to aggravating factors at sentencing; relating to criminal extradition authority of the governor; removing the statutory bar to prosecution of certain crimes; amending Rule 37(b), Alaska Rules of Criminal Procedure, relating to execution of warrants; and providing for an effective date." The committee took an at-ease from 2:21 p.m. to 2:28 p.m. [Following was a brief discussion regarding how the committee would be proceeding.] 2:29:34 PM REPRESENTATIVE DAHLSTROM moved [to adopt] the proposed committee substitute (CS) for HB 323, Version 25-GH2038\E, Luckhaupt, 3/25/08, [as the work draft]. There being no objection, Version E was before the committee. 2:29:47 PM ANNE CARPENETI, Assistant Attorney General, Legal Services Section, Criminal Division, Department of Law (DOL), explained that Sections 1 and 2 of Version E go hand-in-hand and require pawn brokers - or people who lend money on secondhand items - in municipalities with over 5,000 residents to maintain their transaction records in an electronic format. She added that the DOL is considering asking that these provisions be amended such that those electronic records shall be shared with the Department of Public Safety (DPS) should the DPS request them. The purpose of these provisions is to help victims of property crimes find their stolen property. MS. CARPENETI explained that Section 3 of Version E provides that a third [or subsequent] misdemeanor injury assault within a 10-year period would be a class C felony instead of just a class A misdemeanor. The drafter, who'd suggested this change, drafted it as part of the statute pertaining to assault in the third degree; this makes a lot of sense, she opined, "because then you don't need to go back to [the statute pertaining to] assault in the fourth degree and include all the conforming amendments." 2:32:14 PM REPRESENTATIVE SAMUELS asked whether Sections 3 and 4 are similar to provisions included in another piece of legislation pertaining to domestic violence (DV). MS. CARPENETI said these provisions do something similar but in a different way, and indicated that the DOL prefers the language of HB 323 [Version E] because the DOL is concerned that under the other legislation, different judges will treat similarly- situated people differently. In response to a question, she relayed that the sponsor of that other legislation is aware of the DOL's concern and is willing to work cooperatively to alleviate it. REPRESENTATIVE SAMUELS suggested that the provisions in that other piece of legislation be changed to resemble Sections 3 and 4 of HB 323 [Version E] so that the underlying policy is adopted regardless of which bill passes. REPRESENTATIVE GRUENBERG, referring to Sections 1 and 2 of Version E, said he wants to make sure that they don't violate the single subject rule, since they don't appear to pertain to criminal statutes. MS. CARPENETI posited that Sections 1 and 2 would probably pass such a challenge because both relate to the investigation of stolen property. REPRESENTATIVE GRUENBERG asked Ms. Carpeneti to provide a legal opinion to that effect. MS. CARPENETI agreed to do so. REPRESENTATIVE GRUENBERG posited that such an opinion may help the courts see that that issue was considered by the legislature. 2:36:44 PM MS. CARPENETI, turning attention back to Section 3, said that the predicate crimes would include homicide, assault, felony assault, physical injury assault - not including fear assault - assault on an unborn child, stalking, and first and second degree sexual assault and sexual abuse [of a minor]. Section 4 is a conforming amendment that directs the courts with regard to what the legislature means in terms of what constitutes a conviction. MS. CARPENETI explained that Version E's Section 5, which was suggested by Representative Ramras - addresses the problem of people stealing property from a commercial establishment without the property having been concealed; it will allow a person to be detained and investigated even if the property he/she is attempting to walk away with is not concealed. She indicated that [Section 6 of Version E mirrors Section 3] of the original bill; that Section 7 [of Version E mirrors Section 5 of the original bill] but also adds the drug zopiclone - commonly called "Lunesta" - to the list of schedule IVA controlled substances; and that Sections 8 and 9 of Version E mirror [Sections 6 and 7] of the original bill. REPRESENTATIVE GRUENBERG [referring to Section 8] asked whether there is any constitutional problem with a court issuing a search warrant for property located outside [the court's] jurisdiction. MS. CARPENETI said she doesn't believe there is, though problems might arise in the other jurisdiction with regard to enforcing such a search warrant. [The problem Section 8 is meant to address] is that some judges don't feel comfortable issuing a search warrant for property located outside their court's jurisdiction, and Section 8 would specifically outline in statute that it is acceptable to do so. In response to a question, she agreed to furnish the committee with examples of such cases, again adding her belief that any problems [resulting from the adoption of Section 8] would stem from an enforcement issue and not a constitutional issue. In response to another question, she explained that even under Section 8, one would still have to comply with the requirements currently pertaining to the issuing of search warrants, such as establishing probable cause. In response to comments and a question, she elaborated: If the place where you were going to be [searching] refused to cooperate, then you would have to go to a court in the other jurisdiction and ask them to give full faith and credit and issue their own ... order. But this arises mainly in [child] pornography cases ... [wherein Internet providers] are perfectly willing to give us their records [but] they need a piece of paper, and that's why [the DOL is proposing Section 8]. If they want to see a search warrant or a subpoena, we can't get a subpoena 'til there's a court case going on, so we need the ability to ask for a search warrant. REPRESENTATIVE GRUENBERG said he just wants to ensure that no one will move to quash "on that basis." MS. CARPENETI pointed out that that can't be prevented - people can say whatever they want and file any motion they want. REPRESENTATIVE GRUENBERG clarified that he doesn't want a court to issue an order quashing a case. 2:42:54 PM MS. CARPENETI went on to explain that Sections 10, 11, 12, [21, and 22] of Version E are similar to [Sections 8, 9, 10, 19, and 20 of] the original bill, but the DOL has worked with the Office of Public Advocacy (OPA) and the Public Defender Agency (PDA) to address their concerns. These sections deal with situations involving persons who are charged with a serious crime but are incompetent to be tried, and the goal is to ensure that they are treated in as fair a manner as possible while also protecting the public. The language of the original bill provided for mandatory evaluation and treatment for all people who are found incompetent, whereas the language of Version E provides for mandatory evaluation and treatment for only those charged with felonies. MS. CARPENETI explained that Section 13 of Version E has been ratcheted down a bit from what it was [as Section 11 of the original bill] by saying that the court can order probation for an offense under Title 11 or Title 16 but not necessarily for a violation under other titles. Sections 14 and 15 of Version E are similar to language included in the original bill. Section 16 of Version E is a bit different than [Section 17 of the original bill] in that now the governor may only appoint either the lieutenant governor or the head of a principal department to act on the governor's behalf in performing extradition duties. REPRESENTATIVE GRUENBERG questioned whether the U.S. Constitution contains a provision regarding extradition, whether extradition under such a provision must be performed by the chief executive, and, if so, whether such a provision would allow the Alaska state legislature to provide the governor with the ability to delegate that duty. MS. CARPENETI said her research supports the delegation of that duty, and offered to provide the committee with substantiating case citations. REPRESENTATIVE GRUENBERG suggested that she simply include them in the legal opinion she'll be providing. MS. CARPENETI agreed to do so. She then noted that the DOL has suggested a change in a Senate bill's version of this provision that specifies that the delegation and subsequent action is on the governor's behalf and at his/her direction so that he/she remains principally responsible. That language is based on Oregon law and has been upheld in Oregon. The DOL reviews every extradition in which Alaska is involved, and isn't aware of any other state wherein the governor actually signs the extradition documents himself/herself. 2:46:32 PM MS. CARPENETI explained that Sections 17 and 18 are new provisions that amend the statute of limitations for post- conviction relief applications from two years to one year; this proposed change will make the statutes pertaining to post- conviction relief uniform with regard to their statute of limitations. She added that the DOL has worked with the PDA and the OPA on these provisions. She indicated that these provisions require the inclusion of [an indirect court rule amendment] found later in the bill. REPRESENTATIVE GRUENBERG, referring to Section 17, asked whether there will be exceptions to the proposed one-year statute of limitations. MS. CARPENETI said that there are several exceptions such as one pertaining to newly discovered evidence, but if an exception doesn't apply, then the statute of limitations will be one year. REPRESENTATIVE GRUENBERG mentioned the standard set out in Salinas v. State, 373 P.2d 512 (Alaska 1962), which he called the main first case addressing motions for a new trial. MS. CARPENETI then relayed that Section 25 of Version E has been changed from [Section 22 of] the original version in that now the warrant shall be executed and returned within 30 days as opposed to just within a reasonable time. 2:49:08 PM REPRESENTATIVE GRUENBERG asked what provisions of law are being repealed by Sections 23 and 24 of Version E. MS. CARPENETI relayed that those sections repeal provisions that were being repealed [via Section 21 of] the original bill. Under Version E, Section 23 repeals a provision of statute in order to conform to the change being made [via Section 9 of Version E], the bill's "telephonic" search warrant provisions, and Section 24 repeals the existing bar against the state going forward with a criminal prosecution of a criminal act when that act has already been prosecuted by the federal government. She offered that even though such prosecutions by the state wouldn't come up very often - and the state would still have to comply with certain timeline requirements/restrictions - it's important, for the sovereignty of the state of Alaska, to pursue crimes against its own laws and not be usurped by the federal government. In response to a question, she said that the issue of double jeopardy only arises in instances of two prosecutions by the same sovereignty. In response to another question, she offered her belief that a conviction in federal court could not be used as evidence in a state prosecution. REPRESENTATIVE GRUENBERG questioned whether, under the bill, an "ex post facto" issue would arise should the state choose to pursue those [legislators] who've recently been convicted by the federal government of bribery. MS. CARPENETI opined that such an issue would arise because of the effective date of the bill. In response to a question, she indicated that in order for similar cases in the future to be prosecuted by both the federal government and the state, the acts would also have to be illegal under state law. REPRESENTATIVE GRUENBERG questioned whether the state should enact laws prohibiting acts such as money laundering. MS. CARPENETI said that might not be a bad idea, but she would prefer to give that concept further consideration. 2:56:41 PM REPRESENTATIVE GRUENBERG referred to Amendment 1 to Version E, labeled 25-GH2038\E.2, Luckhaupt, 3/27/08, which read: Page 1, line 2, following "felons;": Insert "relating to arson and criminally negligent burning;" Page 4, following line 10: Insert new bill sections to read: "* Sec. 7. AS 11.46.410(a) is amended to read: (a) A person commits the crime of arson in the second degree if the person knowingly [INTENTIONALLY] damages a building by starting a fire or causing an explosion. * Sec. 8. AS 11.46 is amended by adding a new section to read: Sec. 11.46.427. Criminally negligent burning in the first degree. (a) A person commits the crime of criminally negligent burning in the first degree if the person (1) violates AS 11.46.430; and (2) has been previously convicted of violating AS 11.46.400 - 11.46.430 or AS 41.15.150 or a law or ordinance of this or another jurisdiction with elements similar to those offenses. (b) Criminally negligent burning in the first degree is a class C felony. * Sec. 9. AS 11.46.430 is amended to read: Sec. 11.46.430. Criminally negligent burning in the second degree. (a) A person commits the crime of criminally negligent burning in the second degree if with criminal negligence the person damages property of another by fire or explosion. (b) Criminally negligent burning in the second degree is a class A misdemeanor." Renumber the following bill sections accordingly. Page 6, following line 19: Insert a new bill section to read: "* Sec. 17. AS 12.55.127(c) is amended to read: (c) If the defendant is being sentenced for (1) escape, the term of imprisonment shall be consecutive to the term for the underlying crime; (2) two or more crimes under AS 11.41, a consecutive term of imprisonment shall be imposed for at least (A) the mandatory minimum term under AS 12.55.125(a) for each additional crime that is murder in the first degree; (B) the mandatory minimum term for each additional crime that is an unclassified felony governed by AS 12.55.125(b); (C) the presumptive term specified in AS 12.55.125(c) or the active term of imprisonment, whichever is less, for each additional crime that is (i) manslaughter; or (ii) kidnapping that is a class A felony; (D) two years or the active term of imprisonment, whichever is less, for each additional crime that is criminally negligent homicide; (E) one-fourth of the presumptive term under AS 12.55.125(c) or (i) for each additional crime that is sexual assault in the first degree under AS 11.41.410 or sexual abuse of a minor in the first degree under AS 11.41.434, or an attempt, solicitation, or conspiracy to commit those offenses; and (F) some additional term of imprisonment for each additional crime, or each additional attempt or solicitation to commit the offense, under AS 11.41.200 - 11.41.250, 11.41.420 - 11.41.432, 11.41.436 - 11.41.458, [OR] 11.41.500 - 11.41.520, or AS 11.46.400 - 11.46.430." Renumber the following bill sections accordingly. Page 11, line 21: Delete "secs. 17 and 18" Insert "secs. 21 and 22" Page 11, line 22: Delete "sec. 19" Insert "sec. 23" Page 11, line 28: Delete "Sections 3, 4, 7, 13 - 15, 20, and 24" Insert "Sections 3, 4, 7 - 10, 16 - 18, 24, and 28" Page 12, line 3: Delete "Sections 8, 9, 23, and 25" Insert "Sections 11, 12, 27, and 29" Page 12, line 6: Delete "Sections 10 - 12, 21, and 22" Insert " Sections 13 - 15, 25, and 26" Page 12, line 9: Delete "Section 16" Insert "Section 19" Page 12, line 14: Delete "Sections 17 - 19 and 26" Insert "Sections 21 - 23 and 30" REPRESENTATIVE GRUENBERG indicated that Amendment 1 is meant to address the series of arsons that have been occurring in his district and in Mountain View. Amendment 1 will tighten and strengthens the current arson and negligent burning laws in three ways: it alters AS 11.46.410 - pertaining to the crime of arson in the second degree - by changing the mental state from "intentionally" to "knowingly"; it adds a new section 427 to AS 11.46, thus establishing the crime of criminally negligent burning in the first degree - a class C felony that will be applicable to repeat violators of AS 11.46.400 - 11.46.430 and AS 41.15.150; it alters AS 11.46.430 such that it now pertains to the crime of criminally negligent burning in the second degree; [and it adds violations of AS 11.46.400 - 11.46.430 to the sentencing provisions of AS 12.55.127(c), which addresses consecutive and concurrent terms of imprisonment]. CHAIR RAMRAS questioned whether [proposed AS 11.46.427] would address those who set fires to cars in recreational-use areas. REPRESENTATIVE GRUENBERG, remarking that it is his intention that it do so, said he would research that issue further. CHAIR RAMRAS said, "We would want it to be at least as bad to commit a negligent burning in an urban area as it is to burn a car in the Knik recreation area." REPRESENTATIVE GRUENBERG concurred. He noted that he and the DOL would be researching whether there should be a look-back period associated with [proposed AS 11.46.427]. 3:00:53 PM CRAIG GOODRICH, Fire Chief, Anchorage Fire Department (AFD), Municipality of Anchorage (MOA), said the AFD supports Amendment 1 [to Version E]. He went on to explain that arson is a very prevalent activity, and that it is rare for someone [who has served or is serving time] in the criminal justice system to not have a background in setting fires. For example, it was relayed to him by staff at the McLaughlin Youth Center that they don't track which of their inmates have committed arson; instead they simply assume that all their inmates have committed arson at some point in their criminal careers because almost all of them have. The AFD has two full time arson investigators and is considering adding a third, and this, in and of itself, he observed, speaks to the fact that there is plenty of arson investigation work to be had. There are some sections of the municipality that are more prone to instances of arson than other sections. As a practical matter, the fires that are started often spread out of control and do a great deal of harm to both life and property. In conclusion, he said that what he likes about [Amendment 1] is that it ensures that repeat arson offenders will be treated differently, adding "We're pretty excited about ... all of this and the potential for it moving forward." CHAIR RAMRAS expressed appreciation for Amendment 1, and indicated that it would be included in a forthcoming proposed CS. REPRESENTATIVE GRUENBERG noted that Representative Gatto has also been very involved with this issue. 3:04:54 PM RODNEY DIAL, Lieutenant, Deputy Commander, A Detachment, Division of Alaska State Troopers, Department of Public Safety (DPS), relayed he would be speaking to the provisions pertaining to search warrants - Sections 8 and 9 [of Version E] - and that the DPS supports HB 323. With regard to Section 8, which would allow the court to issue a search warrant for locations outside the state, he remarked that this proposed change is important when investigating crimes involving Internet technology or in situations involving interactions with the Royal Canadian Mounted Police (RCMP). LIEUTENANT DIAL offered an example of the latter type of situation involving law enforcement officers in Ketchikan investigating a person in Hyder who had had a serious accident while driving under the influence (DUI) and had seriously injured [himself and] a number of people. The driver was transported to Stewart, Canada, for treatment, and, in this particular case, the officers were able to find a local [Alaska] judge who issued a search warrant for the medical records of the perpetrator in order to illustrate his blood alcohol concentration (BAC), and this warrant was honored by the Canadian government. However, the judge could have refused, since there is no requirement in state law that a judge issue a search warrant for property located in another jurisdiction. He added that the DPS definitely supports Section 8. LIEUTENANT DIAL posited that Section 9 - which pertains to search warrants issued via telephone - will increase the productivity of law enforcement officers across the state. Working in remote areas of Alaska, there are many instances where the need for a search warrant has been identified, but currently law enforcement officers have to travel to a community with a magistrate or judge in order to present evidence and get a search warrant. The ability to do that telephonically will be an enormous time saver, but will in no way lower the current high standard that must be met in order to get a search warrant issued; in fact, it might even be more difficult to obtain a search warrant telephonically because the evidence wouldn't be presented in person at the time of the request. Regardless of this potential increased difficulty, Section 9 will provide a way for law enforcement officers to increase their productivity and make better use of their time. 3:07:45 PM REPRESENTATIVE GRUENBERG, referring to Section 8, questioned whether an interstate compact or federal legislation could be of assistance, and whether the federal government should be looking at international treaties or agreements with regard to this issue. LIEUTENANT DIAL said he would have to research those points. REPRESENTATIVE GRUENBERG observed that the legislature could assist in getting things moving in that direction if such would be of any help. He said he doesn't want the state to get into a situation where there are conflicts; it would be worth it to work out potential problems beforehand. CHAIR RAMRAS indicated that [Amendments 2 and 3 to Version E] would also be included in a forthcoming proposed CS. 3:10:30 PM MS. CARPENETI referred to Amendment 2, which read [original punctuation provided]: Page 9, lines 13 - 21: Delete all material and insert the following: "(d) The court may not consider a substantive claim in an application brought under AS 12.72.010 or the Alaska Rules of Criminal Procedure until the court has first determined that (1) the application is timely; and (2) except for an application described in AS 12.72.025 or allowed under (c) of this section, no previous application has been filed. MS. CARPENETI explained that Amendment 2 would address a concern the OPA has with regard to Section 19 of Version E. The intention [with Section 19 and Amendment 2] is to provide the courts with direction regarding post-conviction relief applications, such that the courts should first determine whether an application is timely and whether it is illegally successive to another application, and then - if the application is timely and not illegally successive - go on to consider the merits/substance of the application. Because a post-conviction relief application can sometimes be very complicated, the DOL believes that it will save the court time if it is directed to bifurcate its consideration of a post-conviction relief application in order to first determine whether it should even be considered at all. She said that Amendment 2 accomplishes this in a manner that both the OPA and the DOL are comfortable with. REPRESENTATIVE GRUENBERG indicated that he would later be researching the exceptions outlined in Amendment 2's proposed AS 12.72.020(d)(2). MS. CARPENETI noted that they are located in AS 12.72 - which pertains to post-conviction relief procedures for persons convicted of criminal offenses. 3:12:55 PM MS. CARPENETI referred to Amendment 3, [which was drafted to fit the original version of the bill and] which read [original punctuation provided]: Page 8, following line 9: Insert a new bill section to read: *Sec. 22. The uncodified laws of the State of Alaska as enacted in Chapter 24, Section 36(c), SLA 2007 is amended to read: (c) AS 12.72.025, enacted by sec. 25 of this Act, applies to offenses committed before, on, or after the effective date of sec. 25 of this Act. A person whose application for post-conviction relief was denied before the effective date of sec. 25 of this act has until July 1, 2008, to file a claim described in AS 12.72.025. This subsection does not authorize filing a claim under AS 12.72 or the Alaska Rules of Criminal Procedure that is not otherwise available under AS 12.72, the Alaska Rules of Criminal Procedure, or other provisions of law." Renumber the following bill sections accordingly. Page 9, following line 7: Insert a new bill section to read: *Sec. 23. Section 22 of this Act is retroactive to July 1, 2007. Renumber the following bill sections accordingly. MS. CARPENETI, characterizing Amendment 3 as probably the cleanest way to go about addressing the issue, explained that Amendment 3 is an amendment to an applicability section that was adopted last year via HB 90, which provided a one-year statute of limitations for what she termed, "Grinols PCRs"; a PCR is a post-conviction relief application and Grinols v. State of Alaska is a case wherein the court decided that due process fairness requires a person to get a lawyer to litigate whether the lawyer assisting the person with his/her first post- conviction relief application was effective. The one-year statute of limitations adopted by HB 90 for bringing a Grinols PCR is one year from when the court denied the first post- conviction relief application. She indicated that that aforementioned applicability section has been interpreted by some people to mean that a person gets "one free application for a PCR without complying with the other statutory provisions and court common-law provisions of PCRs." Because of [this interpretation] there is now someone who is claiming, for a murder conviction in 1980, that this gives him/her "another free PCR." MS. CARPENETI said that the DOL wanted to clarify that instead all the other provision of law - common law, statutory law, and court rules, such as the requirement that one must exercise due diligence in bringing a post-conviction relief application - apply to Grinols PCRs too. Clarity is needed on this issue because there is some concern that there will be "a rash of PCRs based on 1980s and 1990s murder convictions" since those people are still in jail. Again, the goal is to clarify that Grinols requires due diligence when bringing a post-conviction relief application based on ineffective counsel for one's first post- conviction relief application, that the same standards that apply to other post-conviction relief applications apply to Grinols PCRs as well. MS. CARPENETI explained that the letter of intent included in members' packets for consideration would clarify that Amendment 3's proposed change to the aforementioned applicability section is simply saying that all laws that apply to post-conviction relief applications also apply to "these that are brought up 'til July 1, 2008." In conclusion, she said that the DOL has worked cooperatively with the PDA on Amendments 2 and 3 [to Version E], but has not yet gotten a response back from the PDA regarding the letter of intent. [HB 323, Version E, was held over.]
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