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: ยง 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.