HOUSE BILL NO. 231 "An Act relating to aggravating and mitigating factors at sentencing." 3 GEORGE DOZIER, STAFF, REPRESENTATIVE PETE KOTT explained that CSHB 231 (JUD) modifies an aggravating factor and establishes a mitigating factor for purposes of presumptive sentencing. He noted that current law provides that if a defendant is convicted of a sex crime against a minor and has engaged in the same or similar conduct there is an aggravating factor. There is also an aggravating factor if the defendant is convicted of sexual assault and previously engaged in a sexual assault. There is not an aggravating factor pertaining to a defendant that has committed sexual abuse of a minor and previously committed sexual assault against an adult. Section 1 would add an aggravating factor if a defendant is subject to sentencing for a felony sex crime and has violated any other sexual crime statute. Mr. Dozier explained that a mitigating factor would be added when a defendant is being sentenced for a felony and a prior felony offense has triggered a presumptive sentence, when the prior felony offense is of a less serious nature. Mr. Dozier noted that section three which referred to a three judge panel was deleted by the House Judiciary Committee. JAYNE ANDREN, COUNCIL DOMESTIC VIOLENCE AND SEXUAL ASSAULT spoke in support of section 1 of the legislation. She suggested that language be added to section 2 to prohibit the mitigator in cases where the prior or current conviction concerns an offense covered by Alaska Statutes 11.41, Crimes Against Persons. CAREN ROBINSON, ALASKA NETWORK ON DOMESTIC VIOLENCE AND SEXUAL ASSAULT spoke in support of section 1. She also recommended that language be added to section 2 to prohibit the mitigator in cases where the prior or current conviction concerns an offense covered by Alaska Statutes 11.41. She noted that AS 11.41 are crimes of murder, manslaughter, assault, sexual assault, sexual abuse of a minor, kidnapping, and other serious crimes. She observed that charges may be pleaded down. Representative Brown referred to a letter to Representative Kott from the Alaska Sentencing Commission, dated 3/25/94 (copy on file). She noted that the Commission recommended that the "legislative history reflect that this factor should not be applied if it would reward an escalating pattern of behavior or criminal career." MARGOT KNUTH, CRIMINAL DIVISION, DEPARTMENT OF LAW suggested that a intent section could be added to the legislation. She noted that if the mitigator is not adopted, a judge would have to send a case that do not compel the presumptive 4 sentence to a three judge panel. She argued that the mitigator would allow the judge's discretion. She gave examples of cases which would trigger the mitigator. A first offense robbery of under $500 and a second offense of sexual assault would trigger the mitigator. In response to a question by Representative Therriault, Ms. Knuth noted that the judge can not reduce the presumptive sentence by more than half without going to a three judge panel. Representative Brown provided members with AMENDMENT 1 (copy on file). Amendment 1 would insert on page 2, line 6 after "offense", "unless the prior conviction and the present offense are violations of AS 11.41." Ms. Knuth pointed out that the amendment would pertain to more cases if the "and" is changed to "or". (Tape Change, HFC 94-24, Side 1) Representative Hanley noted that, under the second presumptive sentence mitigator, a presumptive sentence could be reduced to less than the penalty of the first time offense. CINDY SMITH, DIRECTOR, ALASKA NETWORK ON DOMESTIC VIOLENCE AND SEXUAL ASSAULT stated that mitigators should not be allowed in cases involving crimes against persons. She suggested that "or" would allow more cases to be exempt from the mitigator. Representative Brown elected to changed "and" to "or" before offering her amendment. Representative Brown MOVED to ADOPT, Amendment 1: Insert on page 2, line 6 after "offense", "unless the prior conviction or the present offense are violations of AS 11.41." There being NO OBJECTION, it was so ordered. JERRY LUCKHAUPT, LEGAL COUNSEL, LEGISLATIVE AFFAIRS AGENCY clarified that section 2 was added at the request of the Alaska Sentencing Commission. He observed that under current law a defendant convicted of two class A felonies would receive the same penalty as a defendant convicted of a class C first offense and a class A second offense. He stressed that only class A, B and C felonies are included. Unclassified felonies are not included. In response to a question by Representative Navarre, Mr. Luckhaupt discussed the burden of proof. Mr. Luckhaupt questioned the rationale for a letter of intent. 5 Representative Brown suggested that the title should reflect the contents of the legislation. Representative Hanley MOVED to delete section 2. He stressed that the option to receive less time than the first offense penalty should not exist under a mitigator second felony offense. Ms. Knuth assured him that a reasonable judge would not issue a lesser penalty than what a first offense would require. She added that additional mitigating factors allow judges more flexibility. She noted that judges can send cases to a three judge panel if they question the presumptive sentence. Co-Chair Larson OBJECTED to the motion to delete section 2 from CSHB 231 (JUD). A roll call vote was taken on the motion. IN FAVOR: Brown, Grussendorf, Hoffman, Navarre, Foster, Hanley, Martin, Therriault, MacLean OPPOSED: Larson Representative Parnell was not present for the vote. The MOTION PASSED (9-1). Co-Chair Larson noted that CSHB 231 (JUD) would be HELD in Committee for further discussion in regards to the bills title.