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28th Legislature(2013-2014)

Bill Text 28th Legislature


00 Enrolled HB 218                                                                                                         
01 Relating to the aggravating factor at felony sentencing of multiple prior misdemeanors when a                           
02 prior misdemeanor involves an assault on a correctional employee; providing that deportation                            
03 is not a proper factor for referral of a case to a three-judge panel for sentencing for a felony;                       
04 and providing for an effective date.                                                                                    
05                           _______________                                                                               
06    * Section 1. The uncodified law of the State of Alaska is amended by adding a new section                          
07 to read:                                                                                                                
08       LEGISLATIVE INTENT. It is the intent of the legislature that AS 12.55.165(d),                                     
09 added by sec. 3 of this Act, and AS 12.55.175(g), added by sec. 4 of this Act, overturn the                             
10 decision of the Alaska Court of Appeals in State v. Silvera, 309 P.3d 1277 (Alaska Ct. App.                             
11 2013), and the Alaska Supreme Court in Dale v. State, 626 P.2d 1062 (Alaska 1980) to the                                
12 extent that the decisions hold that the risk of deportation may be considered a basis for                               
13 referral of a felony sentencing to a three-judge panel.                                                               
14    * Sec. 2. AS 12.55.155(c) is amended to read:                                                                      
01            (c)  The following factors shall be considered by the sentencing court if proven                             
02       in accordance with this section, and may allow imposition of a sentence above the                                 
03       presumptive range set out in AS 12.55.125:                                                                        
04                 (1)  a person, other than an accomplice, sustained physical injury as a                                 
05       direct result of the defendant's conduct;                                                                         
06                 (2)  the defendant's conduct during the commission of the offense                                       
07       manifested deliberate cruelty to another person;                                                                  
08                 (3)  the defendant was the leader of a group of three or more persons                                   
09       who participated in the offense;                                                                                  
10                 (4)  the defendant employed a dangerous instrument in furtherance of                                    
11       the offense;                                                                                                      
12                 (5)  the defendant knew or reasonably should have known that the                                        
13       victim of the offense was particularly vulnerable or incapable of resistance due to                               
14       advanced age, disability, ill health, homelessness, consumption of alcohol or drugs, or                           
15       extreme youth or was for any other reason substantially incapable of exercising                                   
16       normal physical or mental powers of resistance;                                                                   
17                 (6)  the defendant's conduct created a risk of imminent physical injury                                 
18       to three or more persons, other than accomplices;                                                                 
19                 (7)  a prior felony conviction considered for the purpose of invoking a                                 
20       presumptive range under this chapter was of a more serious class of offense than the                              
21       present offense;                                                                                                  
22                 (8)  the defendant's prior criminal history includes conduct involving                                  
23       aggravated assaultive behavior, repeated instances of assaultive behavior, repeated                               
24       instances of cruelty to animals proscribed under AS 11.61.140(a)(1) and (3) - (5), or a                           
25       combination of assaultive behavior and cruelty to animals proscribed under                                        
26       AS 11.61.140(a)(1) and (3) - (5); in this paragraph, "aggravated assaultive behavior"                             
27       means assault that is a felony under AS 11.41, or a similar provision in another                                  
28       jurisdiction;                                                                                                     
29                 (9)  the defendant knew that the offense involved more than one victim;                                 
30                 (10)  the conduct constituting the offense was among the most serious                                   
31       conduct included in the definition of the offense;                                                                
01                 (11)  the defendant committed the offense under an agreement that the                                   
02       defendant either pay or be paid for the commission of the offense, and the pecuniary                              
03       incentive was beyond that inherent in the offense itself;                                                         
04                 (12)  the defendant was on release under AS 12.30 for another felony                                    
05       charge or conviction or for a misdemeanor charge or conviction having assault as a                                
06       necessary element;                                                                                                
07                 (13)  the defendant knowingly directed the conduct constituting the                                     
08       offense at an active officer of the court or at an active or former judicial officer,                             
09       prosecuting attorney, law enforcement officer, correctional employee, firefighter,                                
10       emergency medical technician, paramedic, ambulance attendant, or other emergency                                  
11       responder during or because of the exercise of official duties;                                                   
12                 (14)  the defendant was a member of an organized group of five or                                       
13       more persons, and the offense was committed to further the criminal objectives of the                             
14       group;                                                                                                            
15                 (15)  the defendant has three or more prior felony convictions;                                         
16                 (16)  the defendant's criminal conduct was designed to obtain                                           
17       substantial pecuniary gain and the risk of prosecution and punishment for the conduct                             
18       is slight;                                                                                                        
19                 (17)  the offense was one of a continuing series of criminal offenses                                   
20       committed in furtherance of illegal business activities from which the defendant                                  
21       derives a major portion of the defendant's income;                                                                
22                 (18)  the offense was a felony                                                                          
23                      (A)  specified in AS 11.41 and was committed against a spouse,                                     
24            a former spouse, or a member of the social unit made up of those living                                      
25            together in the same dwelling as the defendant;                                                              
26                      (B)  specified in AS 11.41.410 - 11.41.458 and the defendant                                       
27            has engaged in the same or other conduct prohibited by a provision of                                        
28            AS 11.41.410 - 11.41.460 involving the same or another victim;                                               
29                      (C)  specified in AS 11.41 that is a crime involving domestic                                      
30            violence and was committed in the physical presence or hearing of a child                                    
31            under 16 years of age who was, at the time of the offense, living within the                                 
01            residence of the victim, the residence of the perpetrator, or the residence where                            
02            the crime involving domestic violence occurred;                                                              
03                      (D)  specified in AS 11.41 and was committed against a person                                      
04            with whom the defendant has a dating relationship or with whom the defendant                                 
05            has engaged in a sexual relationship; or                                                                     
06                      (E)  specified in AS 11.41.434 - 11.41.458 or AS 11.61.128 and                                     
07            the defendant was 10 or more years older than the victim;                                                    
08                 (19)  the defendant's prior criminal history includes an adjudication as a                              
09       delinquent for conduct that would have been a felony if committed by an adult;                                    
10                 (20)  the defendant was on furlough under AS 33.30 or on parole or                                      
11       probation for another felony charge or conviction that would be considered a prior                                
12       felony conviction under AS 12.55.145(a)(1)(B);                                                                    
13                 (21)  the defendant has a criminal history of repeated instances of                                     
14       conduct violative of criminal laws, whether punishable as felonies or misdemeanors,                               
15       similar in nature to the offense for which the defendant is being sentenced under this                            
16       section;                                                                                                          
17                 (22)  the defendant knowingly directed the conduct constituting the                                     
18       offense at a victim because of that person's race, sex, color, creed, physical or mental                          
19       disability, ancestry, or national origin;                                                                         
20                 (23)  the defendant is convicted of an offense specified in AS 11.71 and                                
21                      (A)  the offense involved the delivery of a controlled substance                                   
22            under circumstances manifesting an intent to distribute the substance as part of                             
23            a commercial enterprise; or                                                                                  
24                      (B)  at the time of the conduct resulting in the conviction, the                                   
25            defendant was caring for or assisting in the care of a child under 10 years of                               
26            age;                                                                                                         
27                 (24)  the defendant is convicted of an offense specified in AS 11.71 and                                
28       the offense involved the transportation of controlled substances into the state;                                  
29                 (25)  the defendant is convicted of an offense specified in AS 11.71 and                                
30       the offense involved large quantities of a controlled substance;                                                  
31                 (26)  the defendant is convicted of an offense specified in AS 11.71 and                                
01       the offense involved the distribution of a controlled substance that had been                                     
02       adulterated with a toxic substance;                                                                               
03                 (27)  the defendant, being 18 years of age or older,                                                    
04                      (A)  is legally accountable under AS 11.16.110(2) for the                                          
05            conduct of a person who, at the time the offense was committed, was under 18                                 
06            years of age and at least three years younger than the defendant; or                                         
07                      (B)  is aided or abetted in planning or committing the offense by                                  
08            a person who, at the time the offense was committed, was under 18 years of                                   
09            age and at least three years younger than the defendant;                                                     
10                 (28)  the victim of the offense is a person who provided testimony or                                   
11       evidence related to a prior offense committed by the defendant;                                                   
12                 (29)  the defendant committed the offense for the benefit of, at the                                    
13       direction of, or in association with a criminal street gang;                                                      
14                 (30)  the defendant is convicted of an offense specified in AS 11.41.410                                
15       - 11.41.455, and the defendant knowingly supplied alcohol or a controlled substance to                            
16       the victim in furtherance of the offense with the intent to make the victim                                       
17       incapacitated; in this paragraph, "incapacitated" has the meaning given in                                        
18       AS 11.41.470;                                                                                                     
19                 (31)  the defendant's prior criminal history includes convictions for five                              
20       or more crimes in this or another jurisdiction that are class A misdemeanors under the                            
21       law of this state, or having elements similar to a class A misdemeanor; two or more                               
22       convictions arising out of a single continuous episode are considered a single                                    
23       conviction; however, an offense is not a part of a continuous episode if committed                                
24       while attempting to escape or resist arrest or if it is an assault on [UPON] a uniformed                      
25       or otherwise clearly identified peace officer or correctional employee; notice and                            
26       denial of convictions are governed by AS 12.55.145(b), (c), and (d);                                              
27                 (32)  the offense is a violation of AS 11.41 or AS 11.46.400 and the                                    
28       offense occurred on school grounds, on a school bus, at a school-sponsored event, or                              
29       in the administrative offices of a school district if students are educated at that office;                       
30       in this paragraph,                                                                                                
31                      (A)  "school bus" has the meaning given in AS 11.71.900;                                           
01                      (B)  "school district" has the meaning given in AS 47.07.063;                                      
02                      (C)  "school grounds" has the meaning given in AS 11.71.900;                                       
03                 (33)  the offense was a felony specified in AS 11.41.410 - 11.41.455,                                   
04       the defendant had been previously diagnosed as having or having tested positive for                               
05       HIV or AIDS, and the offense either (A) involved penetration, or (B) exposed the                                  
06       victim to a risk or a fear that the offense could result in the transmission of HIV or                            
07       AIDS; in this paragraph, "HIV" and "AIDS" have the meanings given in                                              
08       AS 18.15.310;                                                                                                     
09                 (34)  the defendant committed the offense on, or to affect persons or                                   
10       property on, the premises of a recognized shelter or facility providing services to                               
11       victims of domestic violence or sexual assault;                                                                   
12                 (35)  the defendant knowingly directed the conduct constituting the                                     
13       offense at a victim because that person was 65 years of age or older.                                             
14    * Sec. 3. AS 12.55.165 is amended by adding a new subsection to read:                                              
15            (d)  A court may not refer a case to a three-judge panel under (a) of this section                           
16       if the request for referral is based, in whole or in part, on the claim that a sentence                           
17       within the presumptive range may result in the classification of the defendant as                                 
18       deportable under federal immigration law.                                                                         
19    * Sec. 4. AS 12.55.175 is amended by adding a new subsection to read:                                              
20            (g)  A defendant being sentenced under AS 12.55.125(c), (d), (e), or (i) may                                 
21       not establish, nor may a three-judge panel find under (b) of this section or any other                            
22       provision of law, that manifest injustice would result from imposing a sentence within                            
23       the presumptive range based, in whole or in part, on the claim that the sentence may                              
24       result in the classification of the defendant as deportable under federal immigration                             
25       law.                                                                                                              
26    * Sec. 5. The uncodified law of the State of Alaska is amended by adding a new section to                          
27 read:                                                                                                                   
28       APPLICABILITY. (a) Section 2 of this Act applies to offenses committed on or after                                
29 the effective date of this Act.                                                                                         
30       (b)  Sections 3 and 4 of this Act apply to offenses committed before, on, or after the                            
31 effective date of this Act if the sentence is imposed on or after the effective date of this Act.                       
01    * Sec. 6. This Act takes effect July 1, 2014.                                                                      
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