Legislature(2011 - 2012)BELTZ 105 (TSBldg)
02/10/2012 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB135 | |
| SB140 | |
| SB186 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 135 | TELECONFERENCED | |
| += | SB 140 | TELECONFERENCED | |
| *+ | SB 186 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 186-SENTENCING/PROBATION/MENTALLY ILL
1:45:33 PM
CHAIR FRENCH announced the consideration of SB 186, a committee
bill sponsored by request of the administration.
1:45:56 PM
ANNE CARPENETI, Assistant Attorney General representing the
Criminal Division, Department of Law (DOL), thanked the
committee for sponsoring SB 186. She provided a sectional
analysis.
Section 1 clarifies in statute that for a person to be
found guilty but mentally ill (GBMI), the fact finder must
prove beyond a reasonable doubt that when the defendant
committed the crime he or she was guilty but mentally ill.
This major change was required by the U.S. Supreme Court
decisions, Apprendi v. New Jersey in 2000 and Blakely v.
Washington in 2004. The court held that the Sixth Amendment
right to a jury trial requires that a factual finding that
would increase the statutory maximum penalty for an offense
must be made by a jury, unless waived by the defendant, by
proof beyond a reasonable doubt.
In 2005, the Legislature made major changes to Alaska's
presumptive sentencing laws. Since then, a court of appeals
decision said that a person who is guilty but mentally ill
does not qualify for parole (sometimes called good time
release), including mandatory parole, until the defendant's
health has improved to the point that he or she can no
longer be found a danger. Because a person who is found
GBMI may not qualify for mandatory parole, the factual
decisions addressing whether the defendant is GBMI must be
made by a jury, unless waived by the defendant, and proven
beyond a reasonable doubt.
Section 2 makes changes to the procedure for addressing the
GBMI issue as articulated in Apprendi and Blakely. It also
adopts a procedure for giving notice 10 days before trial
if the party intends to raise the issue after trial.
Section 3 clarifies that the jury must determine whether
the defendant is guilty but mentally ill, unless the
defendant waives the right. The court then determines the
sentence.
Section 4 recognizes that that current law has provisions
that require a different standard of proof than by a
preponderance of the evidence. This clarifies the
importance of looking at the specific law.
Sections 5 and 6 and the conforming Sections 10 and 11 add
provisions to ensure that neither the prosecuting authority
nor the defendant can, without mutual agreement, change the
terms of a Rule 11, Alaska Rules of Criminal Procedure,
agreement after it has been imposed. This would effectively
overrule the court of appeals decision in State v. Henry.
Judges, in sentencing a person who has violated a condition
of probation, must still apply the Chaney criteria in
deciding how much, if any, of the suspended period of
incarceration should be imposed. However, the court may not
reduce the period of probation or the period of suspended
time (less the time imposed for the probation violation)
without agreement from the prosecuting authority.
MS. CARPENETI explained that in State v. Henry, Mr. Henry
was charged with felony drunk driving. He was also charged
with driving with a revoked or suspended operator's
license, failure to stop at the direction of a police
officer and driving without motor vehicle insurance. Mr.
Henry and the state entered into a Rule 11 plea agreement
and the state dismissed the latter three charges. The
defendant agreed to plead guilty to felony drunk driving
and to the sentence, which was 24 months in prison with 19
months suspended.
Mr. Henry specifically agreed to serve 5 months in jail,
pay a mandatory fine and probation for a period of 3 years.
One of the conditions of probation was that he would not
consume alcohol. With "good time" or mandatory parole he
probably served 3.5 months in jail and was released. Within
2 weeks of his release he was found in possession of
alcohol, and his blood alcohol concentration (BAC) was .245
percent.
At the hearing the state filed a motion to revoke
probation, and the defendant told the court he no longer
wanted to be on probation. Over the state's objection, the
court sentenced Mr. Henry to 15 months in jail and
eliminated the rest of the probationary period. The court
reasoned it should be able to use the Chaney criteria in
determining how much time should be imposed on a petition
to revoke probation. The Department of Law agrees with
that, but it does not agree with the decision of the court
to unilaterally end probation and reduce the period of
suspended time. The state had good reasons to enter into
the plea bargain and both the defense and the judge agreed.
1:57:46 PM
Section 7 amends the sentencing provisions for murder in
the first degree, changing the burden of proof that the
defendant subjected the victim to substantial physical
torture or that the defendant was a peace officer who used
the officer's authority to facilitate the murder. Current
statute provides for a clear and convincing burden on the
prosecution, but under the Apprendi and Blakely decisions,
the state must prove these factors beyond a reasonable
doubt.
Section 8 codifies the requirements of Apprendi and
Blakely. If a sentence is imposed on a defendant that would
preclude the person from receiving good time, the jury
(unless waived by the defendant) must determine the factual
issue beyond a reasonable doubt. Additionally, if a court
is sentencing a person who is subject to a presumptive
range and the prosecution seeks to increase the range by
proof of certain aggravating factors, the jury (unless
waived by the defendant) must determine the factual issue
by proof beyond a reasonable doubt.
Section 9 addresses aggravating factors that have caused
confusion in the courts. The first deals with the
aggravating factor of the person's conduct was the most
serious in the definition of the offense. This specifies
that the factual finding of what the defendant's conduct
was must be submitted to the jury (unless waived by the
defendant), and proven beyond a reasonable doubt. But the
legal decision about whether or not that conduct was the
most serious in the definition of the offense is left to
the judge. This codifies that provision.
2:00:35 PM
CHAIR FRENCH posed a hypothetical situation of assault in
the first degree and asked how the jury would make a
decision and how and when the judge would make a decision.
MS. CARPENETI clarified that these provisions allow a judge
to make decisions on the procedure in each individual case.
She continued to explain that the prosecution would give
notice that it planned to claim an aggravating factor.
After the jury returned a guilty verdict, the prosecution
would ask the court to consider making specific findings on
the conduct of the defendant. For example, if a person beat
another person nearly to death and caused permanent brain
damage, the prosecution would ask the fact finder to make
that determination. The prosecution would then ask the
judge to conclude that based on those facts that was the
most serious in the definition of the offense.
CHAIR FRENCH asked if the prosecution would have to tell
the grand jury it wanted an indictment on assault in the
first degree and that it was among the most serious in this
category.
MS. CARPENETI replied it wouldn't be required at that
point.
CHAIR FRENCH asked at what point the trial jury gets this
decision.
MS. CARPENETI replied the jury would get the evidence for
the underlying charge. If the prosecution then asks the
jury to make specific findings, it would be based on the
defendant's conduct and how it affected the victim.
CHAIR FRENCH asked if the jury would fill out an additional
verdict form and decide if that conduct was the most
serious.
MS. CARPENETI clarified that the jury would only make the
factual findings; the judge would make the decision about
whether or not that conduct was the most serious.
CHAIR FRENCH asked what factual finding a jury would make
in an assault case.
MS. CARPENETI replied it might be that the harm paralyzed
the victim or caused whole life injuries from which the
victim would never recover.
CHAIR FRENCH said it is not a defined element in criminal
law; it's an aspect of proving that it was a serious
assault.
MS. CARPENETI agreed.
2:04:13 PM
SENATOR PASKVAN asked what the problem was in the Henry
case.
MS. CARPENETI replied the problem was that the judge
unilaterally eliminated the rest of Mr. Henry's probation.
Sometimes the prosecution will agree to a change of
conditions, but not the Henry case. He was a felony drunk
driver and a danger to the public.
SENATOR PASKVAN asked what sentence would likely be imposed
for violating probation by consuming alcohol.
MS. CARPENETI offered to follow up with the information.
2:07:11 PM
CHAIR FRENCH opined that the sentence would probably be two
months, but he'd also have 17 months suspended hanging over
his head for the next three years.
SENATOR MCGUIRE stated support for the provision and asked
if the committee could spend some time looking at success
rates for alcohol rehabilitation programs in prison and
when people are on probation.
2:10:25 PM
MS. CARPENETI offered to find out what treatment program
Mr. Henry was following.
SENATOR MCGUIRE expressed a desire to look at the programs
available to someone on probation and if someone can be
required to go through alcohol treatment while in prison.
MS. CARPENETI offered to find out all the conditions of
probation in that case.
2:12:00 PM
SENATOR COGHILL asked for additional explanation of the
aggravating factor in Section 9.
MS. CARPENETI explained that at trial the state is
generally required to prove every element of the crime
charged beyond a reasonable doubt. When there is a
determination of guilt, the prosecution could submit
additional evidence to the trial jury during the sentencing
phase. If the judge wants to sentence above the mandatory
sentencing range, aggravating factors have to be proven. If
the judge wants to sentence below the mandatory sentencing
range, the defense needs to prove mitigating factors.
SENATOR COGHILL asked, under Blakely, if it was the jury's
discretion or the court's discretion to present additional
evidence before final sentencing.
MS. CARPENETI explained that before both Blakely and
Apprendi, a person would be found guilty and there would be
a sentencing hearing. The prosecution would file
aggravating factors, the defense would file mitigating
factors, and there would be a hearing before the judge who
would find whether or not the factors were present by clear
and convincing evidence. The Blakely decision stopped that
and now there are sentencing ranges. To go above or below
those ranges, aggravating factors have to be proven beyond
a reasonable doubt.
SENATOR COGHILL asked how the jury is involved in that
proof.
MS. CARPENETI replied the defendant has a right for the
jury to determine factors unless the aggravating factor is
a prior conviction, because the jury already decided that.
But the jury can decide aggravating factors such as the
defendant was particularly cruel or he chose the victim
based on a vulnerable factor.
2:16:42 PM
SENATOR PASKVAN said he assumes that the same jury that
found the defendant guilty would have to make a
determination on the additional fact, and it would use the
standard of beyond a reasonable doubt.
MS. CARPENETI agreed and reiterated that the prosecution
would have to give notice before trial that it was going to
seek an additional charge after a guilty finding.
Responding to further questions, she confirmed that the
aggravator [under AS 12.55.155(c)(10)] caused particular
difficulty and DOL wanted to codify what it thought was the
law in this area.
2:19:32 PM
SENATOR PASKVAN asked if a second trial jury could be
called to address the question of an aggravator if the
prosecution had not raised the issue until after a guilty
verdict and the initial trial jury was dismissed.
MS. CARPENETI offered her belief that if notice wasn't
given initially, the prosecution probably lost the
opportunity.
SENATOR PASKVAN summarized that before the jury makes a
determination as to guilt or innocence on the initial
charge, the prosecution has to make a determination as to
whether or not to try to prove an aggravator.
MS. CARPENETI agreed.
SENATOR PASKVAN continued that if the jury finds an
aggravating factor, the judge can impose a sentence subject
to a presumptive range.
MS. CARPENETI confirmed that a finding of an aggravating
factor allows the judge to impose the maximum term for that
offense.
2:21:12 PM
CHAIR FRENCH commented that the discussion reminded him of
his initial irritation with the Blakely decision, which was
that it needlessly tied the hands of prosecutors and
judges.
MS. CARPENETI agreed that it was discouraging to the
prosecution the judge and probably the defense bar as well.
She said the last aggravating factor that is codified in
law is subsection (j) in Section 9 that appears on page 4,
line 31. Once one aggravating factor has been determined by
law, the judge may impose the maximum term. The prosecution
does not have to go through that procedure for other
aggravating factors. She noted the sectional analysis cites
Reandeau v. State.
CHAIR FRENCH asked Mr. Moody to provide his perspective of
SB 186.
2:22:58 PM
DOUGLAS MOODY, Deputy Director, Public Defender Agency,
Department of Administration, Anchorage, AK, stated disagreement
with Ms. Carpeneti's assessment of Section 9, and said he
believes that it will leave the statute open to attack under
federal constitutional law. Blakely basically made these
aggravating factors an element of the offense that has to be
proven to a jury. The state wants the jury to decide the facts
and the judge to decide whether it's the most serious. He opined
that juries are quite capable of making these decisions, and
highlighted that the U.S. Supreme Court has been rather
consistent in its support of Blakely. That is not likely to
change anytime soon.
2:26:40 PM
SENATOR PASKVAN asked if one or both subsections in Section
9 present a constitutional problem.
MR. MOODY replied both present a problem. Subsection (i) is
directly in conflict with Blakely and subsection (j)
contravenes the Sixth Amendment right to a trial by a jury
when a judge can weigh an aggravating factor without a
jury.
2:30:57 PM
CHAIR FRENCH referred to Section 9, subsection (i), and
asked what the current procedure is for proving the most
serious aggravator in an assault trial.
MR. MOODY acknowledged that he hadn't been a felony trial
lawyer for a long time, and therefore could not immediately
provide an answer.
CHAIR FRENCH expressed interest in knowing how the state
was doing it and held the question in abeyance for the time
being.
SENATOR COGHILL asked, at some point, for a discussion of
the principle of the constitutional issue in Section 9.
SENATOR PASKVAN asked, at some point, for clarification of
the meaning of the last sentence in Section 9 subsection
(j) on page 5, lines 2-5.
CHAIR FRENCH asked Mr. Moody the rationale for his belief
that there were constitutional issues in Section 9.
2:33:58 PM
MR. MOODY explained that the basic rationale is the federal
constitutional right to a jury trial, and that the court
has said that part of that right is the right to have every
element of the offense proven to the jury. If a factor
changes the maximum sentence that could be imposed by the
judge, then it's considered an element of the offense. The
right to a jury trial means that element must be decided by
the jury.
SENATOR COGHILL summarized that it's the right to have a
jury discern the elements of a crime and its egregiousness
versus the judge's sentencing discretion.
CHAIR FRENCH added that it ensures that the jury stands
between the defendant and the judge's sentence and
considers each aspect.
SENATOR PASKVAN summarized his understanding and Senator
French agreed with his assessment.
CHAIR FRENCH said the grief that many people felt with the
Blakely decision was that the judge can't impose the
maximum penalty for assault in the first degree unless
aggravators are proven and the aggravators now have to go
to a jury.
He asked Mr. Moody to continue his discussion of the bill.
2:36:35 PM
MR. MOODY turned to Section 6, and highlighted that it was
not a new decision in State v. Henry to give trial judges
the discretion to terminate a defendant's probation early
and impose some of the original sentence. That was decided
in the 1997 DeMario case that said trial courts have the
duty to reevaluate a sentence on the original conduct and
the conduct on probation (including an unwillingness to do
probation) and impose a fair and just sentence in light of
the Chaney criteria. The potential problem is that this
strips the court of the discretion to review the sentence
in entirety.
2:44:20 PM
CHAIR FRENCH said he too had concerns with the discretion
issue, but this was a bargain that was struck knowingly on
both sides, and it's perhaps unfair to deprive the state of
what it felt it bargained for.
SENATOR PASKVAN asked where the duty to reevaluate is found
because it didn't appear to be before the committee.
MR. MOODY cited DeMario v. State. In 1997 the court of
appeals said:
It is well settled that when the trial court
revokes probation, it may not automatically impose
all previously suspended time. Instead, the court
must carefully reevaluate all currently available
information in light of the Chaney criteria. The
court's sentence must be based on the totality of
the circumstances, including the original offense,
the offender, and the offender's intervening
conduct. These sentencing principles apply with
equal force to situations in which the defendant
refuses probation; The defendant's refusal of a
probationary term cannot, in itself, be given
determinative consideration.
MR. MOODY stated that this has been case law for a long
time in this state.
SENATOR PASKVAN asked if the question is can the
Legislature statutorily change that.
CHAIR FRENCH responded that the judge is always free to
consider the totality of the circumstances and impose some
of the suspended time. But the judge cannot eliminate the
suspended time that was imposed initially saying it was too
much.
MR. MOODY confirmed that the provision says the judge
cannot do that, and then pointed out that the DeMario case
was the background law under which all Rule 11 agreements
were entered into, including the one that formed the basis
of the Henry decision. It says that when a person comes
before the court on a revocation, the court can reevaluate
the sentence in totality.
Referring to an earlier statement that the parties entered
into a bargain, he said the problem is that it's not an
equal bargaining position. The defendant is bargaining to
get out of jail and, in general, will take more jail time
than the defense would recommend or a court would impose if
it gets him or her out immediately. It is therefore
appropriate to have a judge reevaluate the fairness of the
entire sentence.
CHAIR FRENCH thanked Mr. Moody for offering his views on
the bill.
He asked Senator Coghill to discuss his idea for an
amendment conceptually before offering it formally.
2:50:29 PM
SENATOR COGHILL explained that the proposed amendment
relates to property crimes and the limits on the value of
the property or service. The amendment seeks to adjust
values that were established in the 1970s to levels more
appropriate for the new century. For example, someone who
is charged with a $500 felony theft is in court with people
who have done very serious personal damage to another
person. When these values were established, $500 would
probably have been enough to buy a fleet of bicycles,
whereas today it would probably buy just one. The question
is whether that level of theft should be a felony, and "I
don't think so," he said.
He offered to follow up with a written summary of the
proposal, but it would basically increase property crime
limits from $50 to $250 and $500 to $1,500.
CHAIR FRENCH observed that this adjustment would touch a
lot of different parts of the law. He asked when these
numbers were adopted and last adjusted.
2:53:10 PM
SENATOR COGHILL replied they have not been adjusted since
they were adopted in 1978.
CHAIR FRENCH asked where the numbers would be if they were
inflation adjusted.
SENATOR COGHILL replied they'd be considerable higher than
what he is suggesting; the $1,500 figure would probably be
closer to $2,500.
CHAIR FRENCH asked if this was aimed at just the
misdemeanor/felony cutoff or if it also focuses on class B
felonies and class A felonies.
SENATOR COGHILL responded that the primary purpose was to
adjust the misdemeanor/felony cutoff. "I don't want to look
soft on crime," but the reality is that some of these
things do not merit what is now a felony charge, he opined.
CHAIR FRENCH observed that there were good examples on page
4 relating to issuing a bad check and the fraudulent use of
an access device. He asked what conversations he'd had with
law enforcement, the Department of Law (DOL) and others.
2:55:25 PM
SENATOR COGHILL said DOL might not be an advocate, but
there wasn't any pushback. There has been some concern
regarding vulnerable adults and seniors who have been taken
advantage of, but there should be some way of dealing with
that other than making that conduct a felony. He said the
biggest problem relates to plea bargaining that was
discussed earlier, and that a felony hammer is a nice
bargaining tool. Property crimes is one area that the state
uses to bargain from a felony to a misdemeanor.
2:56:44 PM
CHAIR FRENCH related that Senator Coghill brought the
proposal forward at his encouragement with the knowledge
that it would be controversial. On one hand, there's the
soft on crime argument; on the other hand, more money could
have been put into the base student allocation (BSA) today
if the state had not had the need to build a $250 million
prison.
SENATOR PASKVAN expressed support for the concept, and
observed that the ultimate question was at what point a
person would be a criminal, but not a felon.
SENATOR WIELECHOWSKI asked to hear from DOL about the
number of people this would have impacted in the last
couple of years.
MS. CARPENETI offered to try to get the numbers.
2:58:19 PM
SENATOR FRENCH said he'd look at what other states do and
suggested that perhaps the court system could offer
anecdotal information about the amounts of the last three
convictions for felony theft.
SB 186 was held in committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 135 Committee Substitute Continuances.pdf |
SJUD 2/10/2012 1:30:00 PM |
SB 135 |
| SB140 Committee Substitute Cathinone.pdf |
SJUD 2/10/2012 1:30:00 PM |
SB 140 |