Legislature(2013 - 2014)

02/24/2014 02:06 PM House JUD


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                                                                                                                                
        HB 218-PENALTY: ASSAULT ON CORRECTIONAL EMPLOYEE                                                                    
           SENTENCING; AGGRAVATOR/DEPORTATION STATUS                                                                        
                                                                                                                              
                                                                                                                              
2:06:14 PM                                                                                                                    
                                                                                                                                
CHAIR  KELLER announced  the  first order  of  business would  be                                                               
HOUSE BILL  NO. 218, "An  Act relating to the  aggravating factor                                                               
at felony sentencing of multiple  prior misdemeanors when a prior                                                               
misdemeanor involves an assault on a correctional employee."                                                                    
                                                                                                                                
CHAIR KELLER closed public testimony.                                                                                           
                                                                                                                                
2:07:35 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG  moved that the committee's  rescind its                                                               
action   in  adopting   Amendment   1,  labelled   28-LS0941\A.2,                                                               
Strasbaugh, 2/11/14, on 2/12/14 which read:                                                                                     
                                                                                                                                
     Page 1, line 3, following "employee":                                                                                    
          Insert "; providing that deportation is not a                                                                       
     proper factor for  referral of a case  to a three-judge                                                                  
     panel for  sentencing for a  felony; and  providing for                                                                  
     an effective date"                                                                                                       
                                                                                                                                
     Page 1, following line 4:                                                                                                  
     Insert a new bill section to read:                                                                                         
        "* Section  1. The  uncodified law  of the  State of                                                                
     Alaska is amended by adding a new section to read:                                                                         
          LEGISLATIVE INTENT FOR SECTIONS 3 AND 4 OF THIS                                                                       
     ACT.  It   is  the  intent  of   the  legislature  that                                                                    
     AS 12.55.165(d),  added  by sec.  3  of  this Act,  and                                                                    
     AS 12.55.175(g), added by sec. 4  of this Act, overturn                                                                    
     the decision  of the Alaska  Court of Appeals  in State                                                                    
     v. Silvera, 309  P.3d 1277 (Alaska Ct.  App. 2013), and                                                                    
     the Alaska  Supreme Court  in Dale  v. State,  626 P.2d                                                                    
     1062  (Alaska 1980)  to the  extent that  the decisions                                                                    
     hold that the  risk of deportation may  be considered a                                                                    
     basis for referral  of a felony sentencing  to a three-                                                                    
     judge panel."                                                                                                              
                                                                                                                                
     Page 1, line 5:                                                                                                            
          Delete "Section 1"                                                                                                  
          Insert "Sec. 2"                                                                                                     
                                                                                                                                
     Renumber the following bill section accordingly.                                                                           
                                                                                                                                
     Page 6, following line 4:                                                                                                  
     Insert new bill sections to read:                                                                                          
        "* Sec. 3.  AS 12.55.165 is amended by  adding a new                                                                
     subsection to read:                                                                                                        
          (d)  A court may not refer a case to a three-                                                                         
     judge panel  under (a) of  this section if  the request                                                                    
     for  referral is  based, in  whole or  in part,  on the                                                                    
     claim that a sentence  within the presumptive range may                                                                    
     result  in  the  classification  of  the  defendant  as                                                                    
     deportable  under  federal   immigration  law  or  that                                                                    
     collateral  consequences  may  or will  result  if  the                                                                    
     defendant is classified as deportable.                                                                                     
        * Sec.  4. AS 12.55.175 is  amended by adding  a new                                                                  
     subsection to read:                                                                                                        
          (g)      A   defendant   being   sentenced   under                                                                    
     AS 12.55.125(c),  (d), (e)  or (i)  may not  establish,                                                                    
     nor  may a  three-judge panel  find under  (b) of  this                                                                    
     section or  any other  provision of law,  that manifest                                                                    
     injustice would result from  imposing a sentence within                                                                    
     the presumptive  range based, in  whole or in  part, on                                                                    
     the  claim   that  the  sentence  may   result  in  the                                                                    
     classification  of the  defendant  as deportable  under                                                                    
     federal    immigration   law    or   that    collateral                                                                    
     consequences  may or  will result  if the  defendant is                                                                    
     classified as deportable.                                                                                                  
        * Sec. 5. The uncodified  law of the State of Alaska                                                                  
     is amended by adding a new section to read:                                                                                
          APPLICABILITY. (a) Section 2 of this Act applies                                                                      
     to offenses  committed on or  after the  effective date                                                                    
     of this Act.                                                                                                               
          (b)  Sections 3 and 4 of this Act apply to                                                                            
     offenses committed  before, on, or after  the effective                                                                    
     date  of this  Act if  the  sentence is  imposed on  or                                                                    
     after the effective date of this Act.                                                                                      
        * Sec. 6. This Act takes effect July 1, 2014."                                                                        
                                                                                                                                
2:08:07 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  PRUITT objected  to  rescinding  the adoption  of                                                               
Amendment 1 and  stated that after analyzing  prior testimony, he                                                               
found  no  reason defendants  in  the  same sentencing  situation                                                               
should be identified separately.                                                                                                
                                                                                                                                
2:08:54 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG opined that  the adoption of Amendment 1                                                               
should  be rescinded  as  it  renders that  section  of the  bill                                                               
unconstitutional.   He  advised  that  Naturalized Americans  are                                                               
already a  "special group" subject  to deportation  under federal                                                               
law; Amendment  1 merely allows  the court to entertain  a motion                                                               
to  rectify  the situation  and  state  law provides  no  special                                                               
preference.    In  Padilla the  importance  of  deportation,  de-                                                             
naturalization,  and   [a  defendant]  exiled  from   America  is                                                               
discussed.     He  reminded  the  committee   that  [adoption  of                                                               
Amendment  1] reverses  a case  referred to  a three-judge  panel                                                               
which  determined it  was appropriate  to mitigate  [deportation.                                                               
The case  was then appealed  to the  court of appeals  it decided                                                               
deportation as  a factor]  was deemed  appropriate, and  then the                                                               
Alaska  Supreme Court  refused to  review.   There hasn't  been a                                                               
single  judge  in  the  state   that  has  adopted  the  approach                                                               
[embodied in  Amendment 1].   He opined Amendment 1  will "breed"                                                               
litigation,  [spend]  public  money,  and  more  importantly,  he                                                               
offered that Amendment 1 is "just wrong."                                                                                       
                                                                                                                                
2:12:05 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  LYNN related  his belief  that when  a crime  has                                                               
been committed there should be one  set of rules for everyone and                                                               
[Alaska] should not [create] a second class of citizens.                                                                        
                                                                                                                                
2:12:47 PM                                                                                                                    
                                                                                                                                
CHAIR KELLER advised he is  voting against [the motion to rescind                                                               
the committee's  action in adopting  Amendment 1] as  Alaska does                                                               
not  have  the  resources  or the  inclination  to  second  guess                                                               
federal immigration  judges and  adjust Alaska's Criminal  Law to                                                               
Federal Immigration Law.                                                                                                        
                                                                                                                                
2:13:31 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE MILLETT noted that  subsequent to discussions with                                                               
Anne  Carpeneti,  Margaret Stock,  and  Ann  Black, she  came  to                                                               
certain conclusions and referred the committee to the Alaska                                                                    
Constitution, Article I, which read:                                                                                            
                                                                                                                                
     § 12. Criminal Administration                                                                                              
                                                                                                                                
     Excessive  bail shall  not be  required, nor  excessive                                                                    
     fines  imposed,  nor   cruel  and  unusual  punishments                                                                    
     inflicted. Criminal administration  shall be based upon                                                                    
     the  following: the  need  for  protecting the  public,                                                                    
     community condemnation  of the offender, the  rights of                                                                    
     victims of  crimes, restitution from the  offender, and                                                                    
     the principle of reformation.                                                                                              
                                                                                                                                
                                                                                                                                
REPRESENTATIVE MILLETT then referred the committee to State of                                                                
Alaska v. Chaney, [477 P.2d 441, Alaska 1970], which resulted in                                                              
the following:                                                                                                                  
                                                                                                                                
     AS 12.55.005. Declaration of Purpose.                                                                                      
                                                                                                                                
     The purpose  of this  chapter is  to provide  the means                                                                    
     for determining the appropriate  sentence to be imposed                                                                    
     upon conviction  of an  offense. The  legislature finds                                                                    
     that  the  elimination   of  unjustified  disparity  in                                                                    
     sentences and  the attainment of  reasonable uniformity                                                                    
     in sentences can best be  achieved through a sentencing                                                                    
     framework  fixed   by  statute  as  provided   in  this                                                                    
     chapter.   In  imposing   sentence,  the   court  shall                                                                    
     consider                                                                                                                   
                                                                                                                                
     (1) the seriousness of  the defendant's present offense                                                                    
     in relation to other offenses;                                                                                             
                                                                                                                                
     (2)  the prior  criminal history  of the  defendant and                                                                    
     the likelihood of rehabilitation;                                                                                          
                                                                                                                                
     (3)  the  need  to  confine the  defendant  to  prevent                                                                    
     further harm to the public;                                                                                                
                                                                                                                                
     (4) the circumstances of the  offense and the extent to                                                                    
     which the  offense harmed the victim  or endangered the                                                                    
     public safety or order;                                                                                                    
                                                                                                                                
     (5)  the  effect  of  the sentence  to  be  imposed  in                                                                    
     deterring  the defendant  or other  members of  society                                                                    
     from future criminal conduct;                                                                                              
                                                                                                                                
       (6) the effect of the sentence to be imposed as a                                                                        
      community condemnation of the criminal act and as a                                                                       
     reaffirmation of societal norms; and                                                                                       
                                                                                                                                
     (7) the restoration of the victim and the community.                                                                       
                                                                                                                                
2:15:30 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  MILLETT directed  attention to  the seven  issues                                                               
taken into  consideration when  a defendant  is before  a [state]                                                               
sentencing judge.   When a non-citizen is allowed to  go before a                                                               
three-judge panel,  they are receiving special  treatment because                                                               
a U.S.  citizen can't  use the  same excuse.   With  regarding to                                                               
prior  testimony about  Alaska Natives  and immigrants  and their                                                               
families,  Representative   Millet  suggested   those  discussion                                                               
played on  people's emotions.   In fact,  within the last  six or                                                               
seven  years Alaska  has  had no  cases  involving separation  of                                                               
families  and   surmised  that   possibly  prior   testimony  was                                                               
regarding  the federal  government's actions  [that resulted  in]                                                               
separating  families.   [Amendment  1]  discusses  state law  not                                                               
federal  law, she  opined.   She  further opined  that the  state                                                               
should remain  neutral regarding citizenship status  and imposing                                                               
criminal  penalties for  violations of  a state  law as  Alaskans                                                               
[must]  have  confidence  in  their  courts  by  being  sentenced                                                               
similarly  for  the   same  crime.    A   mitigating  factor  for                                                               
deportation  should   not  be  allowed   to  determine   that  an                                                               
individual can  go before  a three-judge  panel.   Therefore, she                                                               
encouraged the  committee to consider the  importance of Alaska's                                                               
courts.  She  then reasoned that public safety is  also a concern                                                               
inasmuch as the [deportable] defendant  receives a lower sentence                                                               
of 364 days  and is not required  to be on probation  or any type                                                               
of supervision following  release.  A separate  class of citizens                                                               
is created  when allowing an  immigrant to use deportation  as an                                                               
excuse to  get away  with a  crime, she  noted.   This amendment,                                                               
however, treats all Alaskans the same, she emphasized.                                                                          
                                                                                                                                
2:21:08 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG  stated it is the  legislature's duty to                                                               
adhere   to  both   the  Alaska   State  Constitution   and  U.S.                                                               
Constitution  as  ultimately, if  Alaska  passes  a law  that  is                                                               
possibly  unconstitutional  it  may   become  a  federal  court's                                                               
decision based upon the U.S.  Constitution.  Therefore, the state                                                               
should be mindful  of cases from the 9th  Circuit, local district                                                               
courts, state courts, and the  U.S. Supreme Court. Representative                                                               
Gruenberg specified that  the only argument advanced  in favor of                                                               
Amendment 1  is that it  is not  a violation of  equal protection                                                               
which was  brought forth  in the Silvera  case and  was rejected.                                                             
In fact,  that issue has  been dispositively and  adversely dealt                                                               
with at every level of Alaska's  court system.  He then described                                                               
health,  age, and  "all  kinds of  issues" that  can  be used  as                                                               
mitigating factors  and [deportation] is merely  one such factor.                                                               
Therefore,  if   [non-citizens]  are  not  allowed   to  use  the                                                               
mitigating  factor of  deportation, then  they are  being singled                                                               
out in  reverse.  He  opined there  are various remedies  a judge                                                               
can  rule that  will provide  equal protection  to the  community                                                               
without deportation and separation  from innocent family members.                                                               
He emphasized  that he is  merely suggesting that  the individual                                                               
be allowed to  make the argument and if it  is unfair, unjust, or                                                               
wrong, will come out before the court.                                                                                          
                                                                                                                                
2:27:34 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE MILLETT,  in response to  Representative Gruenberg                                                               
contended  that  regarding  adhering  to both  the  Alaska  State                                                               
Constitution  and  U.S.   Constitution,  the  federal  government                                                               
deports  people  and  partakes in  the  process  of  deportation,                                                               
Alaska does not.   She then stated that  a [deportable] defendant                                                               
[is also allowed to use]  the mitigating factors of illness, age,                                                               
and others.  With regard  to comments about the innocent children                                                               
[of the  non-citizen], Representative Millet emphasized  she does                                                               
not  want to  cause a  disservice  to Alaskan  victims and  their                                                               
families by allowing a [deportable]  defendant the opportunity of                                                               
a three-judge panel and a reduced sentence.                                                                                     
                                                                                                                                
2:29:22 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE PRUITT called for the question.                                                                                  
                                                                                                                                
2:30:02 PM                                                                                                                    
                                                                                                                                
A  roll  call vote  was  taken.   Representatives  Gruenberg  and                                                               
LeDoux voted  in favor  of rescinding  the committee's  action in                                                               
adopting Amendment  1.  Representatives Millett,  Pruitt, Foster,                                                               
Lynn,  and Keller  voted against  it.   Therefore, the  committee                                                               
failed to  rescind its action in  adopting Amendment 1 by  a vote                                                               
of 2-5 and HB 218, as amended, was before the committee.                                                                        
                                                                                                                                
2:30:52 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE PRUITT moved to report  HB 218, as amended, out of                                                               
committee  with individual  recommendations and  the accompanying                                                               
fiscal notes.                                                                                                                   
                                                                                                                                
REPRESENTATIVE GRUENBERG objected for  purposes of discussion and                                                               
stated he strongly supports the  original bill and cannot support                                                               
Amendment 1.                                                                                                                    
                                                                                                                                
A  roll  call vote  was  taken.   Representatives  Foster,  Lynn,                                                               
Millett, Pruitt, and  Keller voted in favor of  reporting HB 218,                                                               
as  amended,  from  committee.    Representatives  Gruenberg  and                                                               
LeDoux voted against  it.  Therefore, CSHB  218(JUD) was reported                                                               
from the House Judiciary Standing Committee by a vote of 5-2.                                                                   
                                                                                                                                
2:33:06 PM                                                                                                                    
                                                                                                                                
The committee took a brief at-ease.                                                                                             
                                                                                                                                
2:33:08 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG related that  his recommendation on CSHB
218(JUD) will be to amend for the reasons he previously stated.                                                                 
                                                                                                                                
2:33:19 PM                                                                                                                    
                                                                                                                                
The committee took a brief at-ease.                                                                                             
                                                                                                                                

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