Revisor’s notes. —

The provisions of this title were redrafted in 1984 to remove personal pronouns pursuant to § 4, ch. 58, SLA 1982 and in 1984, 1990, 1995, 2008, and 2016 to make other, minor word changes.

For a review of the sources of some of Alaska law, see Brown, The Sources of the Alaska and Oregon Codes (pts. 1 and 2), 2 UCLA — Alaska L. Rev. 15, 87 (1972-1973).

Collateral references. —

Isidore Silver, Police Civil Liability (Matthew Bender).

Cook and Sobieski, Civil Rights Actions (Matthew Bender).

Rudstein, Erlinder, and Thomas, Criminal Constitutional Law (Matthew Bender).

Erickson, George, and Tymkovich, United States Supreme Court Cases and Comments: Criminal Law and Procedure (Matthew Bender).

Thomas P. Mauriello, Criminal Investigation Handbook (Matthew Bender).

Chapter 05. Jurisdiction.

Sec. 12.05.010. Crime commenced outside state but consummated inside.

When the commission of a crime commenced outside the state is consummated inside the state, the defendant is liable to punishment in this state even though out of the state at the time of the commission of the crime charged, if the defendant consummated the crime through the intervention of an innocent or guilty agent, or by other means proceeding directly from the defendant.

History. (§ 1.06 ch 34 SLA 1962)

Legislative history reports. —

For report on original bill, see 1962 House Journal, pp. 224-231.

Notes to Decisions

Crime consummated where prohibited result occurred. —

If the prohibited result occurs in a place other than the place of the conduct which occasioned it, the location of the result may fairly be deemed the place where the crime is “consummated.” Wheat v. State, 734 P.2d 1007 (Alaska Ct. App. 1987).

Custodial interference. —

The state of Alaska is vested with authority to convict an individual for the crime of custodial interference when all the acts constituting the offense were committed outside of the state, since the location of the injurious result (Alaska) flowing from the out-of-state conduct is the place where the crime is “consummated” pursuant to this section. Wheat v. State, 734 P.2d 1007 (Alaska Ct. App. 1987).

Canadian territorial waters. —

Where a defendant’s criminal misconduct and the results of that misconduct occurred in Canadian territorial waters, this section did not create jurisdiction to prosecute the defendant in Alaska. State v. Jack, 67 P.3d 673 (Alaska Ct. App. 2003), rev'd, 125 P.3d 311 (Alaska 2005).

Cited in

Gregg v. Gregg, 776 P.2d 1041 (Alaska 1989).

Collateral references. —

21 Am. Jur. 2d, Criminal Law, § 442 et seq.

Sec. 12.05.020. Offenses committed on aircraft or ferries and other watercraft owned or operated by the state.

A person may be prosecuted under the laws of this state for an offense committed on or against an aircraft owned or operated by the state or a ferry or other watercraft owned or operated by the state, even if the aircraft, ferry, or watercraft is in airspace or water outside the state when the offense is alleged to have occurred. This jurisdiction is in addition to that provided by AS 44.03 and any other jurisdictional basis expressed or implied in law.

History. (§ 1 ch 87 SLA 2002)

Sec. 12.05.030. Crimes involving minors committed outside state.

In addition to any other jurisdictional basis expressed or implied in law, a person may be prosecuted under the laws of this state for conduct occurring outside the state for a violation of

  1. AS 11.41.452 if the other person with whom the defendant communicated was in the state; or
  2. AS 11.61.116 if the minor whose image is published or distributed was in the state.

History. (§ 14 ch 20 SLA 2011)

Effective dates. —

Section 30, ch. 20, SLA 2011 makes this section effective July 1, 2011.

Chapter 10. Limitations of Actions.

Collateral references. —

21 Am. Jur. 2d, Criminal Law, § 247 et seq.

22 C.J.S., Criminal Law, § 250 et seq.

Sec. 12.10.010. General time limitations.

  1. Prosecution for the following offenses may be commenced at any time:
    1. murder;
    2. attempt, solicitation, or conspiracy to commit murder or hindering the prosecution of murder;
    3. felony sexual abuse of a minor;
    4. sexual assault that is an unclassified, class A, or class B felony or a violation of AS 11.41.425 (a)(2) — (4);
    5. a violation of AS 11.41.425 , 11.41.427 , 11.41.450 — 11.41.458 , AS 11.66.110 — 11.66.130 , or former AS 11.41.430 , when committed against a person who, at the time of the offense, was under 18 years of age;
    6. kidnapping;
    7. distribution of child pornography in violation of AS 11.61.125 ;
    8. sex trafficking in violation of AS 11.66.110 — 11.66.130 that is an unclassified, class A, or class B felony or that is committed against a person who, at the time of the offense, was under 20 years of age;
    9. human trafficking in violation of AS 11.41.360 or 11.41.365 .
  2. Except as otherwise provided by law or in (a) of this section, a person may not be prosecuted, tried, or punished for an offense unless the indictment is found or the information or complaint is instituted not later than
    1. 10 years after the commission of a felony offense in violation of AS 11.41.120 — 11.41.330 , 11.41.425(a)(1) , 11.41.425(a)(5) , 11.41.425(a)(6) , or 11.41.450 — 11.41.458 ; or
    2. five years after the commission of any other offense.

History. (§ 1.02 ch 34 SLA 1962; am § 1 ch 99 SLA 1962; am § 19 ch 79 SLA 1992; am § 2 ch 86 SLA 2001; am § 18 ch 24 SLA 2007; am § 15 ch 20 SLA 2011; am § 11 ch 43 SLA 2013)

Cross references. —

For governor’s transmittal letter for ch. 43, SLA 2013 (SB 22), see 2013 Senate Journal 38 — 39.

Effect of amendments. —

The 2007 amendment, effective July 1, 2007, added paragraphs (a)(2) and (a)(6), and made related changes.

The 2011 amendment, effective July 1, 2011, in (a)(4), substituted “AS 11.41.425(a)(2) —(4)” for “AS 11.41.425(a)(2) or (3).”

The 2013 amendment, effective July 1, 2013, in (a), added (7), (8), and (9); rewrote (b)(1), which read, “10 years after the commission of a felony offense in violation of AS 11.41.120 — 11.41.370 , 11.41.425(a) , or 11.41.450 — 11.41.458 ; or”.

Editor’s notes. —

Section 36(b), ch. 24, SLA 2007, provides that the 2007 amendment of (a) of this section applies “to acts committed on or after July 1, 2007.”

Under sec. 46(a), ch. 43, SLA 2013, the 2013 changes to this section apply to offenses committed on or after July 1, 2013.

Notes to Decisions

The statute of limitations is jurisdictional. Padie v. State, 557 P.2d 1138 (Alaska 1976).

It is to be construed in favor of the defendant. Padie v. State, 557 P.2d 1138 (Alaska 1976).

Statute of limitations for manslaughter. —

While there is no statute of limitations in Alaska for the offense of murder, the crime of manslaughter is subject to a five-year statute of limitations. Padie v. State, 594 P.2d 50 (Alaska 1979).

Speedy trial. —

Defendant becomes formally accused for speedy trial purposes under the Alaska Constitution not just upon indictment or arrest but also when the State files an information charging the defendant with a crime because (1) the filing of an information marks the beginning of litigation against a defendant, (2) filing an information clearly manifests a prosecutor's decision to prosecute, and (3) the filing of an information is sufficient to toll the statute of limitations on a criminal charge. State v. Wright, 404 P.3d 166 (Alaska 2017).

Perjury charge held time-barred. —

Defendant’s perjury conviction was time-barred under this section and AS 12.10.020(a) , where the state had probable cause to believe that defendant had committed perjury on his medical license application at the time of an affidavit supporting a search warrant for his personnel file, but did not commence the prosecution within one year of the affidavit’s date. Gottlieb v. State, 175 P.3d 664 (Alaska Ct. App. 2008).

Defendant may not be convicted of time-barred lesser included offense. —

Just as a defendant may not be charged with a time-barred offense, he may not be convicted of it, even as a lesser offense included in one which is not time-barred. Padie v. State, 557 P.2d 1138 (Alaska 1976).

But jury may be instructed on elements of such offense. —

A criminal trial jury may be instructed on the elements of a lesser included offense when the statute of limitations has run on the lesser offense but not the charged offense. Padie v. State, 557 P.2d 1138 (Alaska 1976).

Where defendant was charged with first degree murder and the statute of limitations had run on the lesser offense of manslaughter, while the jury should not be instructed that they might find defendant guilty of manslaughter, defendant was entitled to an instruction on the mitigating effects of passion and provocation, requiring the jury to acquit him if he presented such evidence in mitigation and the state did not negate it. Padie v. State, 557 P.2d 1138 (Alaska 1976).

Theft by receiving. —

Because a criminal statute should not be construed as creating a continuing offense unless it plainly appears that the legislature intended to define the offense as a continuing course of conduct, where the defendant committed the offense of theft by receiving when he discovered that an antique rifle was most likely stolen, his motion to dismiss a prosecution commenced nine years later should have been granted. Saathoff v. State, 991 P.2d 1280 (Alaska Ct. App. 1999), aff'd, 29 P.3d 236 (Alaska 2001).

Promoting prostitution in the second-degree. —

The promoting prostitution in the second-degree count in defendant's indictment was not barred by the statute of limitations because a prosecution for a class B felony sex trafficking offense may be commenced at any time. Williams v. State, — P.3d — (Alaska Ct. App. May 13, 2020).

A statute of limitations can be waived if the trial court determines that the following prerequisites have been met: (1) The waiver is knowing, intelligent, and voluntary; (2) it is made for the defendant’s benefit and after consultation with counsel; and (3) the defendant’s waiver does not handicap his defense or contravene any other public policy reasons motivating the enactment of the statute. Padie v. State, 594 P.2d 50 (Alaska 1979).

Case-by-case analysis as to waivability issue. —

Although most courts have treated the waivability issue as dependent on whether a statute is treated as jurisdictional or as an affirmative defense, this arbitrary distinction should be abandoned in favor of a case-by-case analysis focusing on the language of the applicable statute of limitations and the public policies behind its enactment. Padie v. State, 594 P.2d 50 (Alaska 1979).

By seeking an instruction on an offense which is time-barred, defendant does not waive the defense of this section. Padie v. State, 557 P.2d 1138 (Alaska 1976).

Applied in

Coffey v. State, 585 P.2d 514 (Alaska 1978); Jensen v. State, 707 P.2d 940 (Alaska Ct. App. 1985); State v. Saathoff, 29 P.3d 236 (Alaska 2001).

Quoted in

State v. Creekpaum, 753 P.2d 1139 (Alaska 1988).

Stated in

Yarbor v. State, 546 P.2d 564 (Alaska 1976); State v. Brinkley, 681 P.2d 351 (Alaska Ct. App. 1984).

Cited in

Marks v. State, 496 P.2d 66 (Alaska 1972); P.H. v. State, 504 P.2d 837 (Alaska 1972); Linton v. State, 880 P.2d 123 (Alaska Ct. App. 1994); Catholic Bishop of N. Alaska v. Does, 141 P.3d 719 (Alaska 2006); Weber v. State, 166 P.3d 899 (Alaska 2007).

Sec. 12.10.020. Specific time limitation.

  1. Even if the general time limitation has expired, a prosecution for any offense that includes a material element of fraud or breach of fiduciary obligation may be commenced within one year after the discovery of the offense by an aggrieved party or by a person who has legal capacity to represent an aggrieved party or a legal duty to report the offense and who is not a party to the offense, but in no case shall this provision extend the period of limitation otherwise applicable by more than three years.
  2. Even if the general time limitation has expired, a prosecution for any offense based upon misconduct in office by a public officer or employee may be commenced within one year after discovery of the offense by a person having a duty to report such offense, but in no case shall this provision extend the period of limitation otherwise applicable by more than three years.
  3. [Repealed, § 3 ch 86 SLA 2001.]

History. (§ 1.03 ch 34 SLA 1962; am § 7 ch 78 SLA 1983; am § 3 ch 39 SLA 1985; am § 20 ch 79 SLA 1992; am § 10 ch 81 SLA 1998; am § 3 ch 86 SLA 2001)

Notes to Decisions

Extension of limitation period constitutional. —

Extension of the statute of limitations for the offense of sexual abuse of a minor, before the original period of limitations has expired, does not violate the federal or Alaska constitution. State v. Creekpaum, 753 P.2d 1139 (Alaska 1988).

Perjury charge held time-barred. —

Defendant’s perjury conviction was time-barred under AS 12.10.010 and this section, where the state had probable cause to believe that defendant had committed perjury on his medical license application at the time of an affidavit supporting a search warrant for his personnel file, but did not commence the prosecution within one year of the affidavit’s date. Gottlieb v. State, 175 P.3d 664 (Alaska Ct. App. 2008).

Applied in

State, Dep't of Nat. Res. v. Transamerica Premier Ins. Co., 856 P.2d 766 (Alaska 1993).

Stated in

State v. Brinkley, 681 P.2d 351 (Alaska Ct. App. 1984); Linton v. State, 880 P.2d 123 (Alaska Ct. App. 1994).

Sec. 12.10.030. When period of limitation runs.

  1. An offense is committed either when every element occurs, or, if a legislative purpose to prohibit a continuing course of conduct plainly appears, at the time when the course of conduct or the defendant’s complicity therein is terminated. Time starts to run on the day after the offense is committed.
  2. A prosecution is commenced either when an indictment is found or when a warrant is issued, provided that such warrant is executed without unreasonable delay.

History. (§ 1.04 ch 34 SLA 1962)

Notes to Decisions

Warrant requirements. —

Subsection (b) and AS 12.10.040(b) do not require that a warrant be based on an indictment, information, or other charging document before the statute of limitations is tolled by its issuance. Shaw v. State, 634 P.2d 381 (Alaska Ct. App. 1981).

Theft by receiving. —

Because a criminal statute should not be construed as creating a continuing offense unless it plainly appears that the legislature intended to define the offense as a continuing course of conduct, where the defendant committed the offense of theft by receiving when he discovered that an antique rifle was most likely stolen, his motion to dismiss a prosecution commenced nine years later should have been granted. Saathoff v. State, 991 P.2d 1280 (Alaska Ct. App. 1999), aff'd, 29 P.3d 236 (Alaska 2001).

Theft by receiving under AS 11.46.190(a) is not a continuing crime, allowing the tolling of the statute of limitations. State v. Saathoff, 29 P.3d 236 (Alaska 2001).

Unlawful employment benefits comprising series of thefts. —

Where defendant was convicted of theft arising out of unlawful claim of unemployment benefits for two years, trial court properly sentenced defendant as a second offender because the series of thefts met the monetary requirement for felony theft long before the 10-year period expired. McDole v. State, 121 P.3d 166 (Alaska Ct. App. 2005).

Reasonable delay found. —

Where defendant did not appear for sentencing on felony convictions and the trial court issued a bench warrant for his failure to appear, yet not until six years, 10 months, and four days later was defendant indicted for his failure to appear, the issuance of the warrant constituted a pending prosecution under AS 12.10.040(b) which, when combined with the finding of the trial court that under subsection (b) there was a reasonable basis for delay in executing the warrant to toll the statute of limitations, was sufficient to bring prosecution of the offense within the five-year period allowed by the statute of limitations. Shaw v. State, 634 P.2d 381 (Alaska Ct. App. 1981).

Cited in

Gottlieb v. State, 175 P.3d 664 (Alaska Ct. App. 2008).

Collateral references. —

Issuance or service of state-court arrest warrant, summons, citation, or other process as tolling criminal statute of limitations. 71 ALR4th 554.

Sec. 12.10.040. When period of limitation does not run.

  1. The period of limitation does not run during any time when the accused, with a purpose to avoid detection, apprehension, or prosecution, is outside the state or is absent from the accused’s usual place of abode within the state, but in no case shall this provision extend the period of limitation otherwise applicable by more than three years.
  2. The period of limitation does not run during any time when a prosecution against the accused for the same conduct is pending in this state.

History. (§ 1.05 ch 34 SLA 1962)

Notes to Decisions

Warrant requirements. —

AS 12.10.030(b) and subsection (b) do not require that a warrant be based on an indictment, information, or other charging document before the statute of limitations is tolled by its issuance. Shaw v. State, 634 P.2d 381 (Alaska Ct. App. 1981).

Pending prosecution found. —

Where defendant did not appear for sentencing on felony convictions and the trial court issued a bench warrant for his failure to appear, yet not until six years, 10 months, and four days later was defendant indicted for his failure to appear, the issuance of the warrant constituted a pending prosecution under subsection (b) which, when combined with the finding of the trial court that under AS 12.10.030(b) there was a reasonable basis for delay in executing the warrant to toll the statute of limitations, was sufficient to bring prosecution of the offense within the five-year period allowed by the statute of limitations. Shaw v. State, 634 P.2d 381 (Alaska Ct. App. 1981).

Collateral references. —

Necessity of alleging in indictment or information limitation-tolling facts. 52 ALR3d 922.

Chapter 15. Parties.

[Repealed, § 21 ch 166 SLA 1978. For present provisions, see AS 11.16.]

Chapter 20. Bars to Actions.

Collateral references. —

21 Am. Jur. 2d, Criminal Law, § 181 et seq.

22 C.J.S., Criminal Law, § 265 et seq.

Sec. 12.20.010. Conviction or acquittal elsewhere as bar. [Repealed, § 40 ch 75 SLA 2008.]

Editor’s notes. —

Section 43(a), ch. 75, SLA 2008 provides that the 2008 repeal of this section “[applies] to an offense occurring on or after July 1, 2008.”

Section 44, ch. 75, SLA 2008 explicitly declares that § 40, ch. 75, SLA 2008, repealing this section, is subject to severability as authorized by AS 01.10.030 .

Sec. 12.20.020. When acquittal or dismissal is not a bar.

If the defendant is acquitted on the ground of a variance between the charge and the proof, or the charge is dismissed upon an objection to its form or substance, or discharged for want of prosecution, without a judgment of acquittal or in bar of another prosecution, it is not an acquittal of the crime and does not bar a subsequent prosecution for the same crime.

History. (§ 1.12 ch 34 SLA 1962)

Cross references. —

For related court rule, see Alaska Rule of Criminal Procedure 43.

Notes to Decisions

Not applicable. —

In a case where defendant’s kidnapping conviction was overturned, and defendant was sentenced on remand to an assault charge that was “dismissed” for double jeopardy purposes after a verdict, this section and AS 12.20.050 did not bar such action because the dismissal was actually a merger. Hurd v. State, 107 P.3d 314 (Alaska Ct. App. 2005).

Applied in

Schouten v. State, 77 P.3d 739 (Alaska Ct. App. 2003).

Sec. 12.20.030. When acquittal is a bar.

When the defendant is acquitted on the merits, the defendant is acquitted of the same crime, notwithstanding any defect in form or substance in the charge, information, or complaint on which the trial was had.

History. (§ 1.13 ch 34 SLA 1962)

Sec. 12.20.040. When conviction or acquittal is a bar to other offenses.

When the defendant is convicted or acquitted of a crime consisting of different degrees, the conviction or acquittal is a bar to another prosecution for the crime charged in the former or for any inferior degree of that crime, or for an attempt to commit that crime, or for an offense necessarily included in the crime of which the defendant might have been convicted under the information, indictment, or complaint.

History. (§ 1.14 ch 34 SLA 1962)

Notes to Decisions

Origin. —

This section was taken originally from the laws of Oregon. United States v. Farwell, 76 F. Supp. 35, 11 Alaska 507 (D. Alaska 1948), disapproved, Waller v. Florida, 397 U.S. 387, 90 S. Ct. 1184, 25 L. Ed. 2d 435 (U.S. 1970).

This section only prohibits successive prosecutions. Mead v. State, 489 P.2d 738 (Alaska 1971).

But it does not prohibit multiple convictions in the same prosecution. Mead v. State, 489 P.2d 738 (Alaska 1971).

Retrial not barred. —

Trial court did not err by allowing the jury at defendant's first trial to return verdicts on the assault and theft charges after it was unable to reach a verdict on the first-degree robbery charge because theft was not a lesser-included offense of robbery and, under the court's decision in the Hughes case, after the trial court declared the jury hung as to the robbery count, it was proper to allow the jury to continue deliberating on the assault count and return a verdict on that crime. Because the trial court did not enter judgment against defendant until all of the charges were resolved, retrial on the greater offense of robbery was not barred by the double jeopardy clause. Dere v. State, 444 P.3d 204 (Alaska Ct. App. 2019).

Acquittal or conviction of violation of a municipal ordinance does not bar prosecution by the state for the same act. United States v. Farwell, 76 F. Supp. 35, 11 Alaska 507 (D. Alaska 1948), disapproved, Waller v. Florida, 397 U.S. 387, 90 S. Ct. 1184, 25 L. Ed. 2d 435 (U.S. 1970).

Effect of reversal on appeal. —

By appealing, the accused waives the right to thereafter plead once in jeopardy when he has obtained a reversal of the judgment even as to that part of it which acquitted him of the higher while convicting him of the lower offense. When, at his own request, he has obtained a new trial, he must take the burden with the benefit and go back for a new trial of the whole case. United States v. Frank, 8 Alaska 436 (D. Alaska 1933).

The defendant could not avail himself of the provision of this section, for, by appealing and asking for the reversal of his conviction of murder in the second degree, he waived the right to avail himself of the former acquittal of the greater offense, murder in the first degree. United States v. Frank, 8 Alaska 436 (D. Alaska 1933).

Question of law or fact on plea of former acquittal. —

If the defendant succeeds in offering a plea of former acquittal, which the court will accept as sufficient in form, an issue of fact will arise thereby, which must be submitted to a jury; but the question of former jeopardy is so much a question of law that a verdict of the jury must in any case be dependent upon the instructions of the court. United States v. Libby, McNeill & Libby, 7 Alaska 356 (D. Alaska 1925).

Sec. 12.20.050. Dismissal as bar.

  1. It is a bar to another prosecution for the same crime if the crime is a misdemeanor, but it is not a bar if the crime charged is a felony when a person is
    1. held to answer to the grand jury and the court dismisses the charge before the case is presented to the grand jury upon the motion of the prosecuting attorney;
    2. held to answer to the grand jury and the court dismisses the charge because the indictment is not found against the person at the next session of the grand jury; or
    3. indicted for a crime and the indictment is dismissed because the trial is not held within a reasonable period of time, there is not good cause shown for the delay, and the delay was not upon the application of the defendant or with the defendant’s consent.
  2. Unless the court directs a judgment of acquittal to be entered, it is not a bar to another action for the same crime if the court orders an indictment to be discharged because the prosecuting attorney is not prepared to go to trial when the indictment is called for trial and does not show sufficient cause for postponing the trial.

History. (§ 1.15 ch 34 SLA 1962)

Cross references. —

For related court rule, see Alaska Rule of Criminal Procedure 43.

Notes to Decisions

Not applicable. —

In a case where defendant’s kidnapping conviction was overturned and defendant was sentenced on remand for an assault charge that was “dismissed” for double jeopardy purposes after a verdict, AS 12.20.020 and this section did not bar such action since the dismissal was actually a merger. Hurd v. State, 107 P.3d 314 (Alaska Ct. App. 2005).

Dismissal of misdemeanor. —

If a court dismisses a misdemeanor criminal charge under any of the circumstances listed in this section, the dismissal constitutes a bar to further prosecution; however, the State was permitted to refile two previously dismissed hunting charges because defendants had not been held to answer before a grand jury, nor had they been indicted for the crimes, as set forth by subsection (a). Schouten v. State, 77 P.3d 739 (Alaska Ct. App. 2003).

Sec. 12.20.060. Discharge of codefendant as bar.

It is an acquittal of the defendant discharged and a bar to another prosecution for the same crime when two or more persons are charged in the same indictment, and the court dismisses the indictment against a defendant

  1. before that defendant has begun to present a defense and on the application of the prosecuting attorney so that the defendant may be a witness for the state; or
  2. before the evidence is closed and on the application of another defendant on trial so that the discharged defendant may be a witness for a codefendant, and when, in the opinion of the court, there is not sufficient evidence to require the discharged defendant to present a defense.

History. (§ 1.16 ch 34 SLA 1962)

Chapter 25. Arrests and Citations.

Collateral references. —

5 Am. Jur. 2d, Arrest, § 1 et seq.

68 Am. Jur. 2d, Searches and Seizures, § 1 et seq.

6A C.J.S. Arrest, § 1 et seq.

22 C.J.S. Criminal Law, §§ 213-216, 436 et seq.

Article 1. Arrests.

Sec. 12.25.010. Persons authorized to arrest.

An arrest may be made by a peace officer or by a private person.

History. (§ 2.02 ch 34 SLA 1962)

Sec. 12.25.020. Judge or magistrate may order arrest.

When a crime is committed in the presence of a judge or magistrate, the judge or magistrate may, by an oral or written order, command any person to arrest the offender, and may immediately proceed as though the offender had been brought before the court on a warrant of arrest.

History. (§ 2.03 ch 34 SLA 1962; am § 7 ch 8 SLA 1971)

Sec. 12.25.030. Grounds for arrest by private person or peace officer without warrant.

  1. A private person or a peace officer without a warrant may arrest a person
    1. for a crime committed or attempted in the presence of the person making the arrest;
    2. when the person has committed a felony, although not in the presence of the person making the arrest;
    3. when a felony has in fact been committed, and the person making the arrest has reasonable cause for believing the person to have committed it.
  2. In addition to the authority granted by (a) of this section, a peace officer
    1. shall make an arrest under the circumstances described in AS 18.65.530 ;
    2. without a warrant may arrest a person if the officer has probable cause to believe the person has, either in or outside the presence of the officer,
      1. committed a crime involving domestic violence, whether the crime is a felony or a misdemeanor; in this subparagraph, “crime involving domestic violence” has the meaning given in AS 18.66.990 ;
      2. committed the crime of violating a protective order in violation of AS 11.56.740 ; or
      3. violated a condition of release imposed under AS 12.30.016(e) or 12.30.027 ;
    3. without a warrant may arrest a person when the peace officer has probable cause for believing that the person has
      1. committed a crime under or violated conditions imposed as part of the person’s release before trial on misdemeanor charges brought under AS 11.41.270 ;
      2. violated AS 04.16.050 or an ordinance with similar elements; however, unless there is a lawful reason for further detention, a person who is under 18 years of age and who has been arrested for violating AS 04.16.050 or an ordinance with similar elements shall be cited for the offense and released to the person’s parent, guardian, or legal custodian;
      3. violated conditions imposed as part of the person’s release under the provisions of AS 12.30; or
      4. violated AS 11.41.230 at a health care facility, and the person
        1. was not seeking medical treatment at the facility; or
        2. was stable for discharge.
  3. [Repealed, § 16 ch 61 SLA 1982.]
  4. [Repealed, § 72 ch 64 SLA 1996.]
  5. In this section, “health care facility” has the meaning given in AS 18.07.111 .

History. (§ 2.04 ch 34 SLA 1962; am § 11 ch 166 SLA 1978; am § 33 ch 102 SLA 1980; am §§ 11, 16 ch 61 SLA 1982; am § 3 ch 43 SLA 1985; am § 1 ch 27 SLA 1986; am § 9 ch 30 SLA 1992; am § 5 ch 40 SLA 1993; am §§ 2, 3 ch 115 SLA 1994; am § 1 ch 80 SLA 1995; am § 3 ch 81 SLA 1995; am § 7 ch 30 SLA 1996; am §§ 8, 72 ch 64 SLA 1996; am § 11 ch 81 SLA 1998; am § 3 ch 19 SLA 2010; am §§ 8, 9 ch 22 SLA 2018)

Revisor's notes. —

In 1995, (b)(1) of this section was reorganized to harmonize amendments made by § 1, ch. 80 SLA 1995 and § 3, ch. 81, SLA 1995.

In 1996, reference to “AS 04.16.050 or an ordinance with similar elements” was deleted from (b)(3)(A) and a reference to “an ordinance with similar elements” was added in two places in (b)(3)(B) to reconcile § 7, ch. 30, SLA 1996 and § 8, ch. 64, SLA 1996.

Cross references. —

For temporary detention of persons, AS 12.50.201 .

For provision relating to applicability of the 2018 amendments to subsection (b), see sec. 30(a), ch. 22, SLA 2018, in the 2018 Temporary and Special Acts.

Effect of amendments. —

The 2010 amendment, effective July 1, 2010, in (b)(2)(C), substituted “AS 12.30.016(c) ” for “AS 12.30.025”, in (b)(3) substituted “probable” for “reasonable” following “when the peace officer has”, in (3)(C), substituted “under the provisions of AS 12.30” for “before trial on felony charges brought under AS 11.41.410 — 11.41.458 ”, and made a stylistic change.

The 2018 amendment, effective September 12, 2018, added (b)(3)(D); added (e); and made related changes.

Editor's notes. —

Section 13, ch. 80, SLA 1995 provides that the amendment made to subsection (b) by § 1, ch. 80, SLA 1995 applies “to offenses that are committed on or after September 13, 1995, except that references to previous conviction include convictions occurring before, on, or after September 13, 1995.”

Section 31(b), ch. 19, SLA 2010, provides that the 2010 amendment of (b) of this section applies “to arrests for violation of conditions of release occurring on or after July 1, 2010, for offenses occurring before, on, or after July 1, 2010.”

Legislative history reports. —

For governor's transmittal letter for ch. 19, SLA 2010 (House Bill 324), relating to the amendment of (b) of this section, see 2010 House Journal 1401 — 1404.

Opinions of attorney general. —

The Violence Against Women Act, 18 U.S.C. § 2265 (VAWA) requires the State of Alaska to enforce tribal protection orders and foreign protection orders, even where those orders are not registered as required by Alaska law. The unregistered protective order must meet due process requirements, including notice and the opportunity to be heard. If the order would qualify for arrest of the violator under an equivalent Alaska law, the violator may be arrested. The legislature is encouraged to revise Alaska's statutes to comply with VAWA. July 30, 2015 Op. Atty Gen.

Notes to Decisions

Common law breach-of-the-peace requirement discarded. —

Although at common law a police officer was authorized to arrest without a warrant anyone who had committed a misdemeanor in his presence amounting to a breach of the peace, over the years most states, including Alaska, have dropped the breach-of-the-peace requirement, retaining the in-the-presence requirement. Howes v. State, 503 P.2d 1055 (Alaska 1972).

Constitutionality. —

Subsection (b)(3) is constitutional. Felony arrests based on probable cause can be made without a warrant. Shorty v. State, 214 P.3d 374 (Alaska Ct. App. 2009).

Validity of arrest. —

An arrest is lawful where the peace officer has perceived facts which would lead a reasonable man to believe that the arrestee has committed or attempted to commit an offense in his presence. Miller v. State, 462 P.2d 421 (Alaska 1969); McCoy v. State, 491 P.2d 127 (Alaska 1971).

An arrest for a misdemeanor made by an officer without a warrant is valid if the offense is committed in his presence. Miller v. State, 462 P.2d 421 (Alaska 1969); Howes v. State, 503 P.2d 1055 (Alaska 1972).

Trial court did not err in holding defendant’s arrest was valid under this section because defendant had admitted to smoking marijuana and, based on the entire factual record, the trooper had probable cause to arrest defendant for possessing marijuana while in the trooper’s presence. Johnston v. State, — P.3d — (Alaska Ct. App. Nov. 18, 2009).

Authority of state trooper. —

Making arrests and seizing property incident to arrests is conduct that falls within state troopers’ usual authority. Prentzel v. State, 169 P.3d 573 (Alaska 2007).

Officer's presence essential for arrest of person for misdemeanor violation. —

Under this section a peace officer may not arrest a person for a misdemeanor violation unless the crime was actually committed or attempted in the officer’s presence. Layland v. State, 535 P.2d 1043 (Alaska 1975), overruled, Anchorage v. Geber, 592 P.2d 1187 (Alaska 1979), overruled in part, State v. Blank, 90 P.3d 156 (Alaska 2004).

The Alaska legislature has classified both reckless driving and operating or driving an automobile under the influence of intoxicating liquor as misdemeanors. Thus, a state trooper who arrived at an accident scene could not arrest a driver without a warrant for either reckless driving or drunk driving since neither of these offenses was committed or attempted in his presence. Layland v. State, 535 P.2d 1043 (Alaska 1975), overruled, Anchorage v. Geber, 592 P.2d 1187 (Alaska 1979), overruled in part, State v. Blank, 90 P.3d 156 (Alaska 2004); overruled on other grounds Anchorage v. Geber, 592 P.2d 1187 (Alaska 1979).

Two elements are involved in the term “presence”: (1) The officer must observe acts which are indicative of the commission of an offense; (2) The officer must be aware that he is in fact seeing an offense being committed. Howes v. State, 503 P.2d 1055 (Alaska 1972).

Presence requirement met by officer witnessing one segment of continuing offense. —

The presence requirement of this section may be met by the officer witnessing one segment of a continuing offense or of an offense that spans a considerable period of time. Howes v. State, 503 P.2d 1055 (Alaska 1972).

An officer may rely on information and observations reported by other officers helping in the investigation to establish probable cause for his belief that the arrestee has committed, or attempted to commit, an offense in his presence. Howes v. State, 503 P.2d 1055 (Alaska 1972).

Paragraph (3) of subsection (a) must be given a reasonable construction. McCoy v. State, 491 P.2d 127 (Alaska 1971); City of Nome v. Ailak, 570 P.2d 162 (Alaska 1977).

Sufficient evidence for conviction unnecessary under paragraph (a)(3). —

In order to effect a lawful arrest without a warrant under paragraph (3) of subsection (a), it is not necessary that at the time the arrest is made the peace officer have sufficient evidence for conviction. McCoy v. State, 491 P.2d 127 (Alaska 1971).

It was not necessary that the police officer have evidence sufficient to prove defendant’s perpetration of the crime beyond a reasonable doubt. It was necessary only that there be evidence which would cause a reasonably prudent person to reach the conclusion that the person arrested was, in all probability, the one who committed the crime. Richardson v. State, 563 P.2d 266 (Alaska 1977).

Conditions to constitutionally valid arrest. —

Whether an arrest was constitutionally valid depends in turn upon whether, at the moment the arrest was made, the officers had probable cause to make it; whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense. Merrill v. State, 423 P.2d 686 (Alaska), cert. denied, 386 U.S. 1040, 87 S. Ct. 1497, 18 L. Ed. 2d 607 (U.S. 1967).

Police did not need a warrant to arrest defendant for sexual assault in the first degree under AS 11.41.410(a)(1) and AS 11.16.110 because they had probable cause, based in part on the victim’s statement that she had been raped by two men and an identification of defendant by the other man. Shorty v. State, 214 P.3d 374 (Alaska Ct. App. 2009).

Violation of this section, limiting warrantless misdemeanor arrests, does not by itself establish a per se violation of the federal constitution. Prentzel v. State, 169 P.3d 573 (Alaska 2007).

A person has no right to use force to resist a peaceful, but unlawful, arrest made by a police officer. Wilson v. State, 473 P.2d 633 (Alaska 1970).

And right to protect oneself against excessive force is forfeited by commission of armed robbery. —

A person who commits an armed robbery forfeits his right to claim as a defense to a charge of assault the necessity to protect himself against the use of excessive force by either the intended victim of the robbery or by any person intervening to prevent the crime or to apprehend the criminal, absent a factual showing that, at the time the violence occurred, the dangerous situation created by the armed robbery no longer existed. Wilson v. State, 473 P.2d 633 (Alaska 1970).

Private person may arrest intruder. —

Where an intruder enters a private person’s home at 3:00 a.m., armed with a knife, the private person may arrest him. Wilson v. State, 473 P.2d 633 (Alaska 1970).

An intruder would have no right to resist a private person’s effort to restrain him, absent some showing of excessive force. Wilson v. State, 473 P.2d 633 (Alaska 1970).

The use of bare hands against an armed intruder does not constitute unnecessary force. Wilson v. State, 473 P.2d 633 (Alaska 1970).

Citizens' arrest not government action. —

Where two citizens arrested a drunken driver and notified the police that they were holding him, their action in detaining the driver was not government action for purposes of the 4th amendment and the exclusionary rule. O'Connor v. Municipality of Anchorage, 907 P.2d 1377 (Alaska Ct. App. 1995).

Domestic violence. —

The legislature consistently uses the phrase “crimes involving domestic violence” in a context which indicates that the reference is to a criminal act, not a criminal conviction. State v. Bingaman, 991 P.2d 227 (Alaska Ct. App. 1999).

English and American law has always recognized the power to search the person of the accused when legally arrested, to discover and seize the fruits or evidences of the crime. McCoy v. State, 491 P.2d 127 (Alaska 1971).

The Alaska supreme court is not bound by the U.S. Supreme Court’s interpretations of the 4th amendment in expounding the corresponding section of Alaska Const., art. I, § 14. McCoy v. State, 491 P.2d 127 (Alaska 1971).

Searches conducted outside the judicial process. —

Subject only to a few specifically established and well-delineated exceptions, searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the 4th amendment. McCoy v. State, 491 P.2d 127 (Alaska 1971).

To require the police to get a search warrant to search the person of every felony arrestee, when it is to be expected that the magistrate will always find probable cause that evidence of the crime is on his person, will inundate the magistrates with warrant petitions which will be granted as a matter of course and run the risk that magistrates will not carefully examine the circumstances in more deserving cases. McCoy v. State, 491 P.2d 127 (Alaska 1971).

Legal arrest removes personal privacy from realm of protection. —

While the legal arrest of a person should not destroy the privacy of his premises, it does — for at least a reasonable time and to a reasonable extent — take his own privacy out of the realm of protection from police interest in weapons, means of escape, and evidence. McCoy v. State, 491 P.2d 127 (Alaska 1971).

No exact formula for determining reasonableness. —

There seems to be no exact formula for the determination of reasonableness in connection with a search and seizure and so each case must be decided on its own facts and circumstances. Merrill v. State, 423 P.2d 686 (Alaska), cert. denied, 386 U.S. 1040, 87 S. Ct. 1497, 18 L. Ed. 2d 607 (U.S. 1967).

Search without warrant valid where made incident to lawful arrest. —

A search would be unreasonable because made without a warrant, unless the facts were such as to bring this case within an exception to the rule that a search must rest upon a search warrant. The exception is that which recognizes the validity of a search made without a warrant where the search is made incident to a lawful arrest. Merrill v. State, 423 P.2d 686 (Alaska), cert. denied, 386 U.S. 1040, 87 S. Ct. 1497, 18 L. Ed. 2d 607 (U.S. 1967).

And lawfulness of arrest without warrant depends on probable cause. —

Where an arrest is made without a warrant, its lawfulness depends on whether it was based on probable cause, which exists if the facts and circumstances known to the officer would warrant a prudent man in believing that an offense had been or was being committed. Merrill v. State, 423 P.2d 686 (Alaska), cert. denied, 386 U.S. 1040, 87 S. Ct. 1497, 18 L. Ed. 2d 607 (U.S. 1967).

A valid arrest without a warrant may be effected where the arresting officer acted upon probable cause or, in the case of a misdemeanor, was present at the commission of the offense. Drahosh v. State, 442 P.2d 44 (Alaska 1968).

Under paragraph (3) of subsection (a), a peace officer, without a warrant, may arrest a person for a felony when the officer has probable cause to believe that a felony has been committed and probable cause to believe that the person committed it. McCoy v. State, 491 P.2d 127 (Alaska 1971); City of Nome v. Ailak, 570 P.2d 162 (Alaska 1977); Dunn v. State, 653 P.2d 1071 (Alaska Ct. App. 1982).

“Probable cause”. —

Probable cause exists where the facts and circumstances within the officers’ knowledge, and of which they had reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed. McCoy v. State, 491 P.2d 127 (Alaska 1971); Pistro v. State, 590 P.2d 884 (Alaska 1979).

Probable cause for arrest will exist when facts and circumstances known to a police officer would justify a man of reasonable caution in believing that an offense had been or was being committed and that the person to be arrested is the one who committed it. Dunn v. State, 653 P.2d 1071 (Alaska Ct. App. 1982).

In dealing with probable cause, as the very name implies, a court deals with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved. The substance of all the definitions of probable cause is a reasonable ground for belief of guilt. And this means less than evidence which would justify condemnation or conviction. McCoy v. State, 491 P.2d 127 (Alaska 1971).

Police officer had probable cause to arrest a driver for driving while intoxicated, where the driver was stopped for speeding, failed to pass a horizontal gaze nystagmus (HGN) test, but passed four other field sobriety tests, and exhibited several signs of intoxication, including the odor of alcohol, watery and bloodshot eyes, unsteady balance, “bouncy” gait, confusion, talkativeness, and difficulty in showing vehicle registration. State v. Grier, 791 P.2d 627 (Alaska Ct. App. 1990).

Facts and circumstances necessary to establish probable cause. —

Probable cause cannot be established solely on the basis of a good faith belief on the part of the officer that there is probable cause to arrest. In order to establish probable cause, there must exist facts and circumstances known to the officer which would warrant a prudent person in believing that an offense has been or is being committed. City of Nome v. Ailak, 570 P.2d 162 (Alaska 1977); Schmid v. State, 615 P.2d 565 (Alaska 1980).

Probable cause may rest on reasonably trustworthy information from an informant. City of Nome v. Ailak, 570 P.2d 162 (Alaska 1977); Pistro v. State, 590 P.2d 884 (Alaska 1979); Schmid v. State, 615 P.2d 565 (Alaska 1980).

However, some of the details of the information given by the informant must be verified before an arrest. Pistro v. State, 590 P.2d 884 (Alaska 1979).

If the informant is a cooperative citizen rather than informant from the criminal milieu, his or her reliability need not be established before the arrest. However, some of the details of the information given by the informant must be verified before the arrest. City of Nome v. Ailak, 570 P.2d 162 (Alaska 1977).

Information from the informant was sufficiently corroborated by the police officer’s own observations to establish probable cause for arrest. Pistro v. State, 590 P.2d 884 (Alaska 1979).

Aggregate weight of factors established probable cause. —

Although the various factors, if taken individually, were as readily consistent with innocence as guilt, the factors did not occur individually, or in isolation from each other, and the aggregate weight was fully sufficient to meet the established standard of probable cause. Dunn v. State, 653 P.2d 1071 (Alaska Ct. App. 1982).

Where there were no disputes of fact relevant to the determination of whether the officers had probable cause to arrest, the trial court should have made that determination as a legal matter. City of Nome v. Ailak, 570 P.2d 162 (Alaska 1977).

Officer could constitutionally observe what was in plain view. —

Where the driveway involved was a normal means of ingress and egress impliedly open to public use by one desiring to speak to occupants of the garage, or to park off the street while visiting occupants of the house, there was no invasion of rights to privacy when the police officer moved up the driveway, and the officer could constitutionally observe what was in plain view in the garage. Pistro v. State, 590 P.2d 884 (Alaska 1979).

Arrest held lawful. —

Where the facts which were observed by a police officer, together with his prior knowledge of the physical characteristics of a certain package and its illegal contents, were sufficient to lead a reasonable person to believe that the defendants had committed an offense in his presence, arrest was lawful. Howes v. State, 503 P.2d 1055 (Alaska 1972).

Police officers had probable cause to arrest defendant for disorderly conduct committed in their presence, where he was loud and belligerent when approached by the officers at 3:15 a.m. and his conduct and attitude supported a reasonable belief that he would have continued to disturb the peace of his neighbors unless he had been taken into custody. Earley v. State, 789 P.2d 374 (Alaska Ct. App. 1990).

Where defendant was arrested based on a citizen complaint and defendant argued that this section does not authorize arrest for a misdemeanor that was not committed in officers’ presence because officers did not see the transactions reported to police, this argument was rejected because defendant did not raise this issue in superior court and information police had when they contacted defendant established a substantial chance that defendant had committed a felony by selling a drug other than a small quantity of marijuana. Duncan v. State, 178 P.3d 467 (Alaska Ct. App. 2008).

Scope of search and seizure. —

Unquestionably, when a person is lawfully arrested, the police have the right, without a search warrant, to make a contemporaneous search of the person of the accused for weapons, for the fruit of the crime, or for implements used to commit the crime. This right to search and seize without a search warrant extends to things under the accused’s immediate control and, to an extent depending on the circumstances of the case, to the place where he is arrested. The rule allowing contemporaneous searches is justified by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime — things which might easily happen where the weapon or evidence is on the accused’s person or under his immediate control. But these justifications are absent where a search is remote in time or place from the arrest. Merrill v. State, 423 P.2d 686 (Alaska), cert. denied, 386 U.S. 1040, 87 S. Ct. 1497, 18 L. Ed. 2d 607 (U.S. 1967).

Officers may search and seize not only the things physically on the person arrested, but also those things within his immediate physical control. McCoy v. State, 491 P.2d 127 (Alaska 1971).

A search which is reasonable at its inception may violate the 4th amendment by virtue of its intolerable intensity and scope. The scope of the search must be strictly tied to and justified by the circumstances which rendered its initiation permissible. McCoy v. State, 491 P.2d 127 (Alaska 1971).

When a search goes far beyond defendant’s person and the area into which he could reach to obtain a weapon to harm the officer or escape or evidence which he might conceal or destroy, it is unreasonable. McCoy v. State, 491 P.2d 127 (Alaska 1971).

It is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for, and seize, any evidence on the arrestee’s person in order to prevent its concealment or destruction. The area into which an arrestee might reach in order to grab a weapon or evidentiary items must be governed by a like rule. There is ample justification, therefore, for a search of the arrestee’s person and the area within his immediate control. There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs. McCoy v. State, 491 P.2d 127 (Alaska 1971).

Once warrantless searches beyond the area of the arrestee’s immediate control are allowed, the 4th amendment, with its “reasonableness” requirement, suggests no rational limits to circumscribe the search. Searches of the person, on the other hand, have their own inherent physical limitations. Thus, there is less danger that this exception to the warrant requirement will become unrestrained. McCoy v. State, 491 P.2d 127 (Alaska 1971).

The mere fact of arrest does not ipso facto justify an unlimited search of the person. McCoy v. State, 491 P.2d 127 (Alaska 1971).

Defining boundaries incident to arrest exception. —

In defining the boundaries of incident to the arrest exception, the need for the exercise of common sense is apparent. McCoy v. State, 491 P.2d 127 (Alaska 1971).

A search of an arrestee remains incident to an arrest when it is conducted shortly thereafter at the jail or place of detention rather than at the time and place of arrest. McCoy v. State, 491 P.2d 127 (Alaska 1971).

Restrictions on warrantless incidental searches. —

Adequate protection for the arrestee’s legitimate interests in privacy will be provided by the following restrictions on warrantless incidental searches of the person: (1) the arrest must be valid — probable cause for the arrest must exist or the search is unconstitutional; (2) the search must be roughly contemporaneous with the arrest, at least within the boundaries suggested by United States v. De Leo, 422 F.2d 487 (1st Cir. Mass.), cert. denied, 397 U.S. 1037, 90 S. Ct. 1355, 25 L. Ed. 2d 648 (U.S. 1970); (3) the arrest must not be a pretext for the search; a search incident to a sham arrest is not valid. The search must be incident to the arrest, and not vice versa; (4) the arrest must be for a crime, evidence of which could be concealed on a person. McCoy v. State, 491 P.2d 127 (Alaska 1971).

Searching packet of cocaine incident to arrest for forgery. —

Since the search was incident to a valid arrest for the crime of forgery, and evidence of that crime might well have been concealed on accused’s person, the search of a packet containing cocaine was valid and the conviction based on such evidence was proper. McCoy v. State, 491 P.2d 127 (Alaska 1971).

Arrest and subsequent search by a store security guard of a suspected shoplifter in which nondeadly force was used was legal and reasonable, and therefore, permissible under state and federal constitutions. Jackson v. State, 657 P.2d 405 (Alaska Ct. App. 1983).

Application of incidental search doctrine to traffic violations and vagrancy. —

While in most felony cases the incidental search may well turn out to be reasonable, the nexus between the item to be seized and the criminal behavior involved is more difficult to establish in cases involving arrest for such offenses as traffic violations and vagrancy. Automatic application of the incidental search doctrine in such cases may well result in the sanctioning of unreasonable searches in individual cases, contrary to the requirement of the 4th amendment. McCoy v. State, 491 P.2d 127 (Alaska 1971).

The stop and frisk doctrine, a limited exception to the rule that officers can detain a person only on probable cause, is designed to aid police officers in street encounters where suspicious circumstances exist not amounting to probable cause. McCoy v. State, 491 P.2d 127 (Alaska 1971).

The scope of a protective search for weapons in a stop and frisk situation should be more limited than a search incident to an arrest. McCoy v. State, 491 P.2d 127 (Alaska 1971).

Right of police to enter and investigate in an emergency without the accompanying intent to either search or arrest is inherent in the very nature of their duties as police officers and derives from the common law. Herrin v. State, 449 P.2d 674 (Alaska 1969).

Delay in making arrest without warrant. —

Under some circumstances, there may be justification for delay in making an arrest without a warrant, as, for instance, when the interval between the commission of the offense and the actual arrest is spent by the officer in pursuing the offender or in summoning assistance where such may reasonably appear to be necessary. Herrin v. State, 449 P.2d 674 (Alaska 1969).

Release of minor to parents. —

This section serves to protect minors arrested by peace officers by calling for detention, as opposed to release to parents, only where peace officers have a lawful reason for further detention, and the statute establishes duty of police officers to act reasonably when releasing detained minors to parents; under this statute, police officers act non-negligently where they reasonably believed that there was no lawful reason for further detention. Estate of Logusak v. City of Togiak, 185 P.3d 103 (Alaska 2008).

Arrest without warrant for breach of peace or misdemeanor. —

In making an arrest without a warrant for breach of the peace or a misdemeanor, an officer must act promptly at the time of the offense. If he does not act immediately after the offense has been committed, he can, thereafter, make arrests only by procuring a warrant and proceeding in accordance with its terms. In order to justify a delay, there should be a continued attempt on the part of the officer or person apprehending the offender to make the arrest; he cannot delay for any purpose which is foreign to the accomplishment of the arrest. Herrin v. State, 449 P.2d 674 (Alaska 1969).

Applied in

Jacobson v. State, 551 P.2d 935 (Alaska 1976); Sumdum v. State, 612 P.2d 1018 (Alaska 1980); Cullom v. State, 673 P.2d 904 (Alaska Ct. App. 1983); Ford v. State, 699 P.2d 889 (Alaska Ct. App. 1985); Williams v. State, 151 P.3d 460 (Alaska Ct. App. 2006).

Quoted in

Soolook v. State, 447 P.2d 55 (Alaska 1968); Deal v. State, 626 P.2d 1073 (Alaska 1980); Unger v. State, 640 P.2d 151 (Alaska Ct. App. 1982).

Stated in

Hamilton v. State, 59 P.3d 760 (Alaska Ct. App. 2002).

Cited in

Gallmeyer v. State, 640 P.2d 837 (Alaska Ct. App. 1982); Moxie v. State, 662 P.2d 990 (Alaska Ct. App. 1983); State v. Burke, 714 P.2d 374 (Alaska Ct. App. 1986); Jones v. State, 771 P.2d 462 (Alaska Ct. App. 1989); Garcia v. State, — P.3d — (Alaska Ct. App. Aug. 29, 2018).

Collateral references. —

Peace officer’s delay in making arrest without a warrant for misdemeanor or breach of peace. 58 ALR2d 1056.

Police officer’s power to enter private house or inclosure [sic] to make arrest, without a warrant, for a suspected misdemeanor. 76 ALR2d 1432.

Validity, in criminal trial, of arrest without warrant by identified police officer outside of jurisdiction, when not in fresh pursuit. 34 A.L.R.4th 328.

Sec. 12.25.031. Alternative to arrest.

  1. As an alternative to arrest, a peace officer may, at the officer’s discretion, deliver a person to a crisis stabilization center or an evaluation facility or decline to arrest the person if
    1. the arresting officer believes in good faith that the person is suffering from an acute behavioral health crisis; and
    2. the person voluntarily agrees to be taken to a crisis stabilization center or an evaluation facility or to promptly seek outpatient mental health treatment.
  2. Notwithstanding (a) of this section, a peace officer may, as an alternative to arrest, take a person into emergency custody under AS 47.30.705 and deliver the person to a crisis stabilization center or an evaluation facility.
  3. Delivery of a person to a crisis stabilization center or an evaluation facility for examination under (a) of this section does not constitute an involuntary commitment under AS 47.30 or an arrest.
  4. Before a person delivered to a crisis stabilization center or an evaluation facility under (a) or (b) of this section is released to the community, a mental health professional shall make reasonable efforts to inform the arresting officer of the planned release if the officer has specifically requested notification and provided the officer’s contact information to the crisis stabilization center or evaluation facility.
  5. A peace officer is not liable for civil damages arising from an act or omission done with reasonable care and in good faith under this section.
  6. An agreement to participate in outpatient treatment or to be delivered to a crisis stabilization center or an evaluation facility under (a) of this section
    1. may not require a person to stipulate to any facts regarding the alleged criminal activity as a prerequisite to participation in a mental health treatment alternative;
    2. is inadmissible in any criminal or civil proceeding; and
    3. does not create immunity from prosecution for the alleged criminal activity.
  7. If a person violates an agreement to be delivered to a crisis stabilization center or an evaluation facility or to seek outpatient treatment under (a) of this section,
    1. a mental health professional shall make reasonable efforts to inform the arresting officer of the person’s decision to leave the crisis stabilization center or evaluation facility; and
    2. the original charges may be filed or referred to the prosecutor, as appropriate, and the matter may proceed as provided by law.
  8. Notwithstanding the other provisions of this section, charges may be filed or referred to the prosecutor, as appropriate, at any time in accordance with law.
  9. In this section,
    1. “crisis stabilization center” means a facility licensed under AS 47.32 that meets the definition of “crisis stabilization center” in AS 47.32.900 ;
    2. “evaluation facility” has the meaning given in AS 47.30.915 ;
    3. “mental health professional” has the meaning given in AS 47.30.915 .

History. (§ 1 ch 28 SLA 2020)

Effective dates. —

Section 1, ch. 28, SLA 2020, which enacted this section, took effect on July 28, 2020.

Sec. 12.25.033. Arrest without warrant for operating vehicle while under the influence of an alcoholic beverage, inhalant, or controlled substance.

A peace officer may arrest a person without a warrant, whether or not the offense is committed in the presence of the officer, when the officer has probable cause to believe that the person to be arrested has committed the crime of operating a motor vehicle, an aircraft, or a watercraft in violation of AS 28.35.030 or a similar city or borough ordinance, if the violation is alleged to have occurred less than eight hours before the time of arrest.

History. (§ 1 ch 196 SLA 1975; am § 6 ch 117 SLA 1982; am § 3 ch 60 SLA 2002)

Notes to Decisions

Constitutionality. —

This section which permits a police officer to arrest a defendant for violation of AS 28.35.030 on probable cause, but without a warrant, does not violate Alaska Const., art. I, § 14 prohibiting unreasonable searches and seizures and the corresponding provisions of the federal constitution, because these constitutional provisions are not offended by warrantless searches or arrests based on exigent circumstances and the legislature has determined that exigent circumstances exist where there is probable cause to believe a suspect is driving while intoxicated. Proctor v. State, 643 P.2d 5 (Alaska Ct. App. 1982).

Sec. 12.25.035. Arrest without warrant by state trooper when judicial officer is unavailable.

A state trooper may arrest a person without a warrant for a misdemeanor or for the violation of an ordinance when

  1. the officer has reasonable grounds to believe that the person to be arrested has committed a misdemeanor or has violated an ordinance;
  2. personal or property damage is likely to be done unless the person is immediately arrested; and
  3. there is no known judicial officer empowered to issue a warrant within a radius of 25 miles of the person to be apprehended.

History. (§ 1 ch 92 SLA 1968)

Sec. 12.25.040. Taking before judge or magistrate person arrested by bystander.

A peace officer may, without warrant, take before a judge or magistrate a person who, being engaged in a breach of the peace, is arrested by a bystander and delivered to the peace officer.

History. (§ 2.05 ch 34 SLA 1962; am § 8 ch 8 SLA 1971)

Sec. 12.25.050. Method of making arrest.

An arrest is made by the actual restraint of a person or by a person’s submission to the custody of the person making the arrest.

History. (§ 2.06 ch 34 SLA 1962)

Notes to Decisions

Whether an individual was in fact arrested is to be determined by an objective standard. City of Nome v. Ailak, 570 P.2d 162 (Alaska 1977).

Individual held arrested in fact. —

Where an individual was placed by the police in the back of a police vehicle which had no handles on the inside of the back doors in order to prevent escape by occupants in the rear seat, and the jury concluded that the individual did not enter the vehicle voluntarily, there was sufficient evidence from which the jury could have properly found that the individual in question was put under “actual restraint” within the meaning of this section and that he was in fact arrested. City of Nome v. Ailak, 570 P.2d 162 (Alaska 1977).

Drawn guns and handcuffing do not necessarily turn stop into arrest. Howard v. State, 664 P.2d 603 (Alaska Ct. App. 1983).

Lawful stops and custodial arrest distinguished. —

See Howard v. State, 664 P.2d 603 (Alaska Ct. App. 1983).

Applied in

Richardson v. State, 563 P.2d 266 (Alaska 1977).

Stated in

Dorris v. State, 656 P.2d 578 (Alaska Ct. App. 1982).

Sec. 12.25.060. Method of arrest by officer without warrant.

When making an arrest without a warrant, the peace officer shall inform the person to be arrested of the officer’s authority and the cause of the arrest, unless the person to be arrested is then engaged in the commission of a crime, or is pursued immediately after its commission or after an escape.

History. (§ 2.07 ch 34 SLA 1962)

Notes to Decisions

Suppression of evidence denied. —

Failure to suppress evidence was not plain error, even though officers failed to inform defendant of the cause of the arrest as required by this section. Shorty v. State, 214 P.3d 374 (Alaska Ct. App. 2009).

Sec. 12.25.070. Limitation on restraint in arrest.

A peace officer or private person may not subject a person arrested to greater restraint than is necessary and proper for the arrest and detention of the person.

History. (§ 2.08 ch 34 SLA 1962)

Notes to Decisions

Applicability of section. —

This section only speaks to the force that a private person may use to subject a person already arrested to continued arrest and detention. Grant v. State, 621 P.2d 1338 (Alaska 1981).

Necessary force may be used to restrain. —

An officer in making an arrest is privileged by this section to use only that force which is necessary to restrain the arrested person. Gray v. State, 463 P.2d 897 (Alaska), limited, Wilson v. State, 473 P.2d 633 (Alaska 1970).

But if more than necessary force is used, then the officer commits an unprivileged assault on the arrested person. Gray v. State, 463 P.2d 897 (Alaska), limited, Wilson v. State, 473 P.2d 633 (Alaska 1970).

Use of excessive force. —

When the police responded to a request for a welfare check at defendant’s home, defendant became belligerent; he kicked at two officers, attempted to bite an officer, and continued to scream and swear; the officers’ initial deployments of the taser were objectively reasonable because the officers were faced with an immediate threat of bodily harm from defendant kicking and biting them in a rapidly deteriorating situation in the home. However, when defendant was handcuffed, seated on the floor, and then placed on his stomach, the need for force changed. The superior court erred by failing to consider whether the police department’s policy on taser use or the nature of the officers’ actions provided notice that the force they used may have been excessive under the Fourth Amendment. Olson v. City of Hooper Bay, 251 P.3d 1024 (Alaska 2011).

Level of force must be objectively reasonable. —

Regardless of whether the individual officer actually believed that his use of force was reasonable, and regardless of the reasonableness of that belief, the officer is not privileged to use an objectively unreasonable level of force in making an arrest. Samaniego v. City of Kodiak, 2 P.3d 78 (Alaska 2000), overruled in part, Sheldon v. City of Ambler, 178 P.3d 459 (Alaska 2008).

On a claim of excessive force, the court erred in applying an immunity analysis, driven by the officers’ subjective beliefs as to the reasonableness of the force used. Samaniego v. City of Kodiak, 2 P.3d 78 (Alaska 2000), overruled in part, Sheldon v. City of Ambler, 178 P.3d 459 (Alaska 2008).

Police officers reasonably used pepper spray in responding to a domestic dispute where the father resisted the officers’ commands to come out of the bathroom and attempted to shut the door against the officers while holding his wife and child in the bathroom. The officers reasonably handcuffed the father, they did not use excessive force when they failed to provide water to ameliorate the effects of pepper spray, and they called an ambulance about eight minutes after spraying him. Lum v. Koles, 314 P.3d 546 (Alaska 2013).

No excessive force found. —

Officer who shot fleeing person after an extended vehicle pursuit, and search of a wooded area on foot did not use excessive force. The fleeing person, the subject of an involuntary commitment order, was armed and had fired shots earlier in the incident. Maness v. Daily, 307 P.3d 894 (Alaska 2013).

It was not unreasonable for a police officer to grasp and examine a driver’s wrist during a traffic stop. The driver reached inside her coat without telling the officer that she was reaching for her wallet. Summary judgment in favor of the officer on the basis of qualified immunity was proper. Manteufel v. Tarbox, — P.3d — (Alaska Dec. 11, 2013) (memorandum decision).

There is no right to resist a peaceful arrest, even though the arrest was unlawful. Gray v. State, 463 P.2d 897 (Alaska), limited, Wilson v. State, 473 P.2d 633 (Alaska 1970).

A person has no right to use force to resist a peaceful, but unlawful arrest, made by a police officer. Wilson v. State, 473 P.2d 633 (Alaska 1970).

Hence, to the use of necessary force the arrested person cannot claim the privilege of self-defense. Gray v. State, 463 P.2d 897 (Alaska), limited, Wilson v. State, 473 P.2d 633 (Alaska 1970).

But he may defend against unprivileged use of force. —

To an arresting officer’s unprivileged use of force, the arrested person must have the right to use reasonable force to defend himself. Gray v. State, 463 P.2d 897 (Alaska), limited, Wilson v. State, 473 P.2d 633 (Alaska 1970).

Immunity standard for police officers clarified. —

After clarifying the standard for qualified immunity to emphasize that the question was whether an officer reasonably believed that his actions were lawful, the court found that a police officer was not on notice under AS 11.81.370 , this section, or through case law or regulation, that a bear hug and a take down were excessive uses of force when applied to an intoxicated and assaultive arrestee, and the officer was entitled to immunity. Sheldon v. City of Ambler, 178 P.3d 459 (Alaska 2008).

Right to protect oneself against excessive force forfeited by commission of armed robbery. —

A person who commits an armed robbery forfeits his right to claim as a defense to a charge of assault the necessity to protect himself against the use of excessive force by either the intended victim of the robbery or by any person intervening to prevent the crime or to apprehend the criminal, absent a factual showing that at the time the violence occurred, the dangerous situation created by the armed robbery no longer existed. Wilson v. State, 473 P.2d 633 (Alaska 1970).

An intruder would have no right to resist a private person’s efforts to restrain him, absent some showing of excessive force. Wilson v. State, 473 P.2d 633 (Alaska 1970).

The use of bare hands against an armed intruder does not constitute unnecessary force. Wilson v. State, 473 P.2d 633 (Alaska 1970).

Use of taser on child. —

Where an 11-year-old girl was driving an ATV dangerously through city streets, and an officer tasered the girl twice even though she was never aggressive toward the officer and did not pose a threat to the officer or others, the officer’s action could be found to constitute conduct so egregious that any reasonable officer would have known it was an excessive use of force. Russell ex rel. J.N. v. Virg-In, 258 P.3d 795 (Alaska 2011).

Cited in

Howard v. State, 664 P.2d 603 (Alaska Ct. App. 1983).

Collateral references. —

Private person’s authority, in making arrest for felony, to shoot or kill alleged felon. 32 ALR3d 1078.

Right to resist excessive force used in accomplishing lawful arrest. 77 ALR3d 281.

Peace officer’s liability for death or personal injuries caused by intentional force in arresting misdemeanant. 83 ALR3d 238.

Sec. 12.25.080. Means to effect resisted arrest. [Repealed, § 21 ch 59 SLA 1982. For present provisions, see AS 11.81.370 — 11.81.390.]

Sec. 12.25.090. Peace officer’s authority to summon aid to make arrest.

A peace officer making an arrest may orally summon as many persons as the officer considers necessary to aid in making the arrest. A person when required by an officer shall aid in making the arrest.

History. (§ 2.10 ch 34 SLA 1962)

Notes to Decisions

Quoted in

Herrin v. State, 449 P.2d 674 (Alaska 1969).

Sec. 12.25.100. Breaking into building or vessel to effect arrest.

A peace officer may break into a building or vessel in which the person to be arrested is or is believed to be, if the officer is refused admittance after the officer has announced the authority and purpose of the entry.

History. (§ 2.11 ch 34 SLA 1962)

Notes to Decisions

This section, in conjunction with AS 12.35.040 , establishes the procedure for forcing entry in executing both a search warrant and an arrest warrant. Davis v. State, 525 P.2d 541 (Alaska 1974).

This section and AS 12.35.040 operate jointly to establish the procedure required for the lawful execution of a search warrant. Lockwood v. State, 591 P.2d 969 (Alaska 1979).

This section does not address the separate question of whether a warrant is also required in addition to compliance with this section in order for a peace officer to make an entry to make an arrest of a suspect in his home where exigent circumstances are not involved. Pascua v. State, 633 P.2d 1033 (Alaska Ct. App. 1981), overruled, Johnson v. State, 662 P.2d 981 (Alaska Ct. App. 1983).

Alternative remedies precluded suit for damages. —

Summary judgment on a family’s unlawful entry claim was warranted because the family could have brought a common law trespass claim or a federal civil rights action, and those alternative remedies precluded a suit for damages under the Alaska constitution. Lum v. Koles, 314 P.3d 546 (Alaska 2013).

Noncompliance renders subsequent search unlawful. —

If the police entry does not comply with the requirements of this section, the subsequent search is unlawful and the evidence obtained will not be admissible. Davis v. State, 525 P.2d 541 (Alaska 1974).

The purposes of the announcement requirement are: (1) To protect the occupant’s right to privacy, (2) to safeguard the police who might be mistaken for prowlers and be shot, and (3) to protect other persons who might be injured by violent resistance to unannounced entries. Davis v. State, 525 P.2d 541 (Alaska 1974); Lockwood v. State, 591 P.2d 969 (Alaska 1979).

Purpose of requirement that police be refused admittance before breaking in. —

The requirement that the police be refused admittance before breaking in, in addition to providing another safeguard to protect the occupant’s privacy and the security of people on or near the premises, has the purpose of preventing damage to property and providing for the convenience of the occupant. Davis v. State, 525 P.2d 541 (Alaska 1974).

The phrase “refused admittance” is not restricted to an affirmative refusal. Indeed, it would be an unusual case coming before the courts where an occupant affirmatively “refused admittance” or otherwise made his refusal known verbally after being given notice. Davis v. State, 525 P.2d 541 (Alaska 1974).

Interval between announcing identity and purpose and entering house held sufficient. —

A wait of 30 seconds to one minute and 15 seconds between the time the police knocked and announced their identity and purpose and the time they entered the house was held sufficient for the police to reasonably infer that they had been refused admittance. Davis v. State, 525 P.2d 541 (Alaska 1974).

Reasonable belief of peril to the police may excuse full compliance with knock-and-announce rules. Sandland v. State, 636 P.2d 1196 (Alaska Ct. App. 1981).

Noncompliance held excusable. —

When examination of the totality of the circumstances reveals that the level of hindrance to the dual statutory purposes is justified in light of the exigencies of the case, lack of literal compliance with the knock-and-announce requirements of this section may be excused. Sandland v. State, 636 P.2d 1196 (Alaska Ct. App. 1981).

Where police officers saw objects deposited outside a window, parted the window curtains and looked inside, saw defendant and, on his kitchen table, plates, measuring spoons, and a gun, and ordered him to freeze and entered through the window, any noncompliance with the provisions of this section was excusable because of the existence of “exigent circumstances.” United States v. Fluker, 543 F.2d 709 (9th Cir. Alaska 1976).

Strict compliance with the knock and announce rule is not required when a balancing test indicates that the exigencies outweigh the hindrance to the dual purposes behind the rule of respecting individual’s privacy and minimizing the destruction of property. Trosper v. State, 721 P.2d 134 (Alaska Ct. App. 1986).

Exigent circumstances justified police entry into a residence where defendant and the victim were present because the officers were responding to the second report of an assault at the residence that evening, and heard a male and female yelling inside; the police reasonably believed the female was in danger, obviating the need to knock and announce. Olsen v. State, — P.3d — (Alaska Ct. App. Feb. 13, 2013) (memorandum decision).

Conduct constituting substantial compliance. —

Where a police officer knocked on the motel room door, and in response to a question in the room, used a ruse; there was activity in the room, after which codefendant opened the door a few inches; the police officer then said it was the police; codefendant attempted to close the door but the police officer pushed it open; and once inside, announced that he was there pursuant to a search warrant, although there was no literal compliance with the statutory knock and announce requirements in that the police officer stepped into the room before announcing his purpose, the police conduct constituted substantial compliance. Lockwood v. State, 591 P.2d 969 (Alaska 1979).

Though the “knock and announce” rule requires that the police announce their authority and purpose before breaking into dwellings to execute a search warrant, there was substantial compliance with the “knock and announce” sections where the defendant had called the police to turn herself in for possessing over five pounds of marijuana, she refused to admit the police when they arrived, the police staked out her house while they acted to secure a warrant, they knocked on the door after securing the warrant, announced “It’s the police,” waited approximately a minute without getting a response, and forced open the door. Fleener v. State, 686 P.2d 730 (Alaska Ct. App. 1984).

Police substantially complied with the knock and announce requirement by announcing their identity and their intent to search while simultaneously entering defendant’s hotel room, and exigent circumstances excused further compliance where police had reason to believe that defendant was armed and that evidence might be destroyed. Hudson v. State, 792 P.2d 290 (Alaska Ct. App. 1990).

Officers’ failure to comply with this section did not constitute plain error. —

See Moreau v. State, 588 P.2d 275 (Alaska 1978).

Failure to announce authority for entry constituted breaking. —

Officers did not substantially comply with this section because, although they identified themselves as police officers as they began their entry into the hotel room, they never announced authority for or the purpose of their entry, and they never requested or demanded entry into the room; because of this, no one ever refused them admittance, and when the officers used the hotel pass key to open the door, it was a breaking under this section. Berumen v. State, 182 P.3d 635 (Alaska Ct. App. 2008).

Standing to complain of violation. —

A person who is not present when a search warrant is executed does not have standing to complain of the state’s failure to comply with the “knock and announce” requirements of Alaska law. State v. Johnson, 716 P.2d 1006 (Alaska Ct. App. 1986).

Burden of proof. —

A defendant complaining of a violation of the knock and announce statutes must make a prima facie showing that the statutes were not complied with; the state then bears the burden of persuasion to show that the requirements were met or that exigent circumstances existed. State v. Johnson, 716 P.2d 1006 (Alaska Ct. App. 1986).

Suppression of evidence as remedy. —

Suppression of evidence is the remedy for serious violations of this section; that is, violations that can not be excused under the doctrine of substantial compliance. Berumen v. State, 182 P.3d 635 (Alaska Ct. App. 2008).

Cited in

Gallmeyer v. State, 640 P.2d 837 (Alaska Ct. App. 1982).

Collateral references. —

What constitutes compliance with knock-and-announce rule in search of private premises — State cases. 85 ALR5th 1.

Sec. 12.25.110. Breaking open building or vessel to liberate.

A peace officer may break open a building or vessel to liberate a person who entered to make an arrest and is detained, or to liberate oneself when necessary.

History. (§ 2.12 ch 34 SLA 1962)

Sec. 12.25.120. Retaking escaped prisoner.

If a person arrested escapes or is rescued, the person from whose custody that person escaped or was rescued may immediately pursue and retake that person at any time and in any place in the state.

History. (§ 2.13 ch 34 SLA 1962)

Sec. 12.25.130. Means usable to retake prisoner. [Repealed, § 21 ch 166 SLA 1978. For present provisions, see AS 11.81.370 — 11.81.390.]

Sec. 12.25.140. Property taken from defendant on arrest.

When money or other property is taken from a person arrested upon a charge of a crime, the officer taking it shall immediately make duplicate receipts for the property, specifying particularly the amount of money or kind of property taken. The officer shall deliver one receipt to the person arrested and the other to the judge or magistrate who examines the charge or, if the arrest is after the information or indictment, to the clerk of the court where the action is pending.

History. (§ 2.15 ch 34 SLA 1962; am § 9 ch 8 SLA 1971)

Administrative Code. —

For admission to adult correctional facilities, see 22 AAC 5, art. 1.

Legislative history reports. —

For report on ch. 8, SLA 1971 (HB 15), see 1971 House Journal, p. 52.

Collateral references. —

Right to compensation for real property damaged by law enforcement personnel in course of apprehending suspect. 23 ALR5th 834.

Sec. 12.25.150. Rights of prisoner after arrest.

  1. A person arrested shall be taken before a judge or magistrate without unnecessary delay and in any event within 24 hours after arrest, absent compelling circumstances, including Sundays and holidays. The unavailability of a report prepared by the pretrial services officer under AS 33.07 or a delay in the transmittal of that report to the parties or to the court may not be considered a sufficient compelling circumstance to justify delaying a hearing beyond 24 hours. The hearing before the judge or magistrate may not take place more than 48 hours after arrest. This requirement applies to municipal police officers to the same extent as it does to state troopers.
  2. Immediately after an arrest, a prisoner shall have the right to telephone or otherwise communicate with the prisoner’s attorney and any relative or friend, and any attorney at law entitled to practice in the courts of Alaska shall, at the request of the prisoner or any relative or friend of the prisoner, have the right to immediately visit the person arrested. This subsection does not provide a prisoner with the right to initiate communication or attempt to initiate communication under circumstances proscribed under AS 11.56.755 .
  3. It shall be unlawful for an officer having custody of a person so arrested to wilfully refuse or neglect to grant the prisoner the rights provided by this section.  A violation of this section is a misdemeanor, and, upon conviction, the offender is punishable by a fine of not more than $100, or by imprisonment for not more than 30 days, or by both.
  4. In addition to the criminal liability in (c) of this section, an officer having a prisoner in custody who refuses to allow an attorney to visit the prisoner when proper application is made therefor shall forfeit and pay to the party aggrieved the sum of $500, recoverable in a court of competent jurisdiction.

History. (§ 2.16 ch 34 SLA 1962; am § 10 ch 8 SLA 1971; am § 2 ch 31 SLA 1973; am § 18 ch 127 SLA 1974; am § 5 ch 86 SLA 1998; am § 16 ch 20 SLA 2011; am § 50 ch 36 SLA 2016)

Cross references. —

For procedures, see Alaska Rule of Criminal Procedure 5.

Administrative Code. —

For admission to adult correctional facilities, see 22 AAC 5, art. 1.

For operations, see 22 AAC 5, art. 3.

For communications, see 22 AAC 5, art. 8.

For discharge, see 22 AAC 5, art. 9.

Effect of amendments. —

The 2011 amendment, effective July 1, 2011, in (a), substituted “within 48 hours after arrest” for “within 24 hours after arrest”.

The 2016 amendment, effective January 1, 2018, rewrote (a), which read, “A person arrested shall be taken before a judge or magistrate without unnecessary delay, and in any event within 48 hours after arrest, including Sundays and holidays. This requirement applies to municipal police officers to the same extent as it does to state troopers.”

Editor’s notes. —

Section 28(a), ch. 20, SLA 2011, provides that the 2011 amendment to this section applies “to arrests for offenses committed before, on, or after July 1, 2011.”

Notes to Decisions

Analysis

I.General Consideration

Applied in

Eben v. State, 599 P.2d 700 (Alaska 1979); Babb v. Anchorage, 813 P.2d 312 (Alaska Ct. App. 1991); Moses v. State, 32 P.3d 1079 (Alaska Ct. App. 2001); Williams v. State, 151 P.3d 460 (Alaska Ct. App. 2006).

Stated in

Moran v. State, 380 P.3d 92 (Alaska Ct. App. 2016).

Cited in

Yerrington v. Anchorage, 675 P.2d 649 (Alaska Ct. App. 1983); Smith v. State, 948 P.2d 473 (Alaska 1997); Smith v. State, 948 P.2d 473 (Alaska 1997).

II.Presentment to Judge or Magistrate

Delay in presentment of defendant to magistrate did not render confessions involuntary. —

See Sovalik v. State, 612 P.2d 1003 (Alaska 1980).

III.Right to Contact Attorney

Similarity of Cr. R. 5(b). —

Criminal R. 5(b) is substantially similar to this section, but specifically provides for a “private” visit. Farrell v. Municipality of Anchorage, 682 P.2d 1128 (Alaska Ct. App. 1984).

No distinction between calls to relatives and attorneys. —

This section is intended to serve, the broad goal of preventing suspects from being held incommunicado. Distinctions are not to be drawn between calls to relatives and to attorneys. Zsupnik v. State, 789 P.2d 357 (Alaska 1990).

Where an arrested motorist was allowed to make a telephone call to his wife before taking a breath test in the field and before waiving his right to an independent chemical test, this satisfied his rights under subsection (b). Moses v. State, 32 P.3d 1079 (Alaska Ct. App. 2001).

Time of attachment of right. —

An arrestee’s statutory right to “immediate” communication with attorneys, relatives, and friends normally does not attach until the arrestee is brought to a place of detention such as a police station or a jail. Wardlow v. State, 2 P.3d 1238 (Alaska Ct. App. 2000).

Pre-test communication with a non-lawyer. —

The rationale articulated in Copelin v. State, 659 P.2d 1206 (Alaska 1983), does, in fact, support interpreting the immediacy requirement of subsection (b) to require pre-breathalyzer test results communications with a non-lawyer such as a relative; and to the extent that Van Wormer v. State, 699 P.2d 895 (Alaska Ct. App. 1985), suggests that the request must specifically be for an attorney, it is overruled. Zsupnik v. State, 789 P.2d 357 (Alaska 1990).

Suppression of defendant’s breath test results was not warranted under subsection (b) of this section because neither of defendant’s requests to make a phone call was related to the breath test; the exclusionary rule did not apply to violations of the statute that were unrelated to the breath test or some other defense purpose. Winfrey v. State, 78 P.3d 725 (Alaska Ct. App. 2003).

Immediate visit with counsel. —

The express language of subsection (b) of this section provides for an immediate visit with counsel following an arrest. Farrell v. Municipality of Anchorage, 682 P.2d 1128 (Alaska Ct. App. 1984).

Right of driving while intoxicated suspect to contact attorney. —

Phone conversation with the public defender constituted contact with an attorney under Copelin v. State, 659 P.2d 1206 (Alaska 1983).Pappas v. Municipality of Anchorage, 698 P.2d 1236 (Alaska Ct. App. 1985).

Right to private consultation with a lawyer was not abrogated during a phone call with the public defender even though the police officer could overhear the suspect due to his yelling and shouting. Pappas v. Municipality of Anchorage, 698 P.2d 1236 (Alaska Ct. App. 1985).

A DWI suspect cannot be forced to contact an attorney chosen by the police; but where the suspect agreed to speak with the public defender, argument that, if the suspect is dissatisfied with an attorney he has agreed to speak with, he should be permitted another opportunity to contact counsel was foreclosed where the suspect never requested a specific attorney or even asked to see a phone book. Pappas v. Municipality of Anchorage, 698 P.2d 1236 (Alaska Ct. App. 1985).

Right to counsel before breathalyzer test. —

When a person is arrested for operating a motor vehicle in violation of state or local drunken driving ordinances and requests to contact an attorney, subsection (b) of this section requires that arrestee be afforded a reasonable opportunity to do so before being required to decide whether or not to submit to a breathalyzer test; and where arrestee is denied that opportunity, subsequently obtained evidence, whether in form of test results or of refusal to take test, must be suppressed. Copelin v. State, 659 P.2d 1206 (Alaska 1983).

The statutory right to contact and consult with counsel prior to being required to decide whether or not to submit to a breathalyzer test is not an absolute one, which might involve a delay long enough to impair testing results, but, rather, a limited one of reasonable time and opportunity that can be reconciled with the implied consent statutes. Copelin v. State, 659 P.2d 1206 (Alaska 1983).

The result of a breathalyzer test secured in violation of the right to counsel should be excluded in a civil license revocation proceeding. Whisenhunt v. State, Dep't of Pub. Safety, 746 P.2d 1298 (Alaska 1987).

Even though a police officer violated Copelin by not offering defendant the opportunity to try to contact an attorney before the breath test as required by this section, the officer cured the violation as, after defendant expressly told the officer that he had declined to take the breath test because he had not had the opportunity to talk to a lawyer, the officer offered to let defendant try to contact an attorney. Hostetter v. State, — P.3d — (Alaska Ct. App. Dec. 3, 2014).

Opportunity to call attorney from station after DUI arrest. —

Defendant’s statutory right to call an attorney under subsection (b) of this section was not violated when he was told that he could call his attorney when he got to the station after his DUI arrest; further, the police had no obligation to expressly offer a telephone call to defendant or to remind defendant of his earlier request to speak to attorney. Huntington v. State, 151 P.3d 523 (Alaska Ct. App. 2007).

No invocation of right to contact attorney before deciding to take breath test. —

Trial court did not err in denying defendant’s motion to suppress the results of a breath test because trial court properly rejected defendant’s argument that police violated his rights under Copeline v. State, AS 12.25.150 , or Alaska R. Crim. P. 5(b) by interfering with his right to contact an attorney before deciding to submit to the test; reasonable interpretation of the record showed that defendant did not invoke his right to contact an attorney before deciding whether to submit to a breath test and that police did not interfere with that right because the only reference that defendant made regarding an attorney was his statement that perhaps he would need to speak with an attorney regarding why he was being charged with felony DUI while his last DUI offenses were misdemeanors. Gallagher v. State, — P.3d — (Alaska Ct. App. Feb. 4, 2009) (memorandum decision).

In a driving under the influence case, police did not violate defendant’s right to counsel by prohibiting her from accessing her cell phone. Defendant merely commented that her cell phone was in her pocket and thus did not invoke her right to consult with an attorney regarding whether to take a breath test. Wing v. State, 268 P.3d 1105 (Alaska Ct. App. 2012).

Finding that defendant did not invoke her right to a phone call when she asked if she got a phone call, the officer responded “Uh huh,” and defendant did not respond but agreed to provide a breath sample without asking to make a call, was proper. Accordingly, the results were not subject to suppression. Clark v. State, — P.3d — (Alaska Ct. App. Apr. 22, 2015).

Reasonable opportunity to contact attorney. —

Although, after an unsuccessful attempt to contact a particular attorney at his business number, the police officer did not attempt to call him at home, the police officer provided defendant with a reasonable opportunity to contact an attorney where defendant was offered the use of a telephone book several times over the course of the DWI processing; the officer asked if there was anyone else defendant wished to call; and defendant’s request had come near the end of the observation period. Rollefson v. Municipality of Anchorage, 782 P.2d 305 (Alaska Ct. App. 1989).

Police limits on communication with attorney. —

Police do not have to compromise their safety to allow a defendant a greater degree of privacy when making a phone call to an attorney, and the officer’s decision to keep defendant handcuffed and hold the telephone for him was but one of the circumstances reviewed when determining what measures to provide privacy should be deemed reasonable. Alexander v. Municipality of Anchorage, 15 P.3d 269 (Alaska Ct. App. 2000).

Officer’s actions not violative of right. —

Trooper’s failure to read yellow pages listing of attorneys to defendant when he knew defendant did not have his glasses and failure to advise defendant regarding persons he might call for assistance did not violate defendant’s right to speak with an attorney prior to deciding whether to submit to a breath test. Saltz v. State, Dep't of Pub. Safety, 942 P.2d 1151 (Alaska 1997).

Right to contact attorney not denied. —

Defendant was given a reasonable opportunity to contact an attorney, but did not do so, his claim that he was tricked into surrendering his cell phone to the trooper was rejected, and he never told the trooper that he wished to make a second phone call; thus the denial of his motion to suppress the breath test result was proper. Greenway v. State, — P.3d — (Alaska Ct. App. Dec. 30, 2015) (memorandum decision).

Right to contact attorney denied. —

Where the state trooper did not provide the defendant with the public defender’s telephone number, defendant was not denied a reasonable opportunity to consult an attorney before taking the breathalyzer. Anderson v. State, 713 P.2d 1220 (Alaska Ct. App. 1986).

Where, during defendant’s telephone conversation with his attorney, a police officer stood next to defendant and took notes on the conversation and, despite specific requests by both defendant and his attorney, the police failed to make even a minimal effort to accommodate defendant’s right to communicate privately with his attorney, defendant was deprived of his right, under this section and Cr. R. 5(b), to a reasonable opportunity to contact his attorney; all evidence subsequently obtained by police from defendant, including defendant’s refusal to take a breathalyzer test and the videotape of his conduct, had therefore to be suppressed. Farrell v. Municipality of Anchorage, 682 P.2d 1128 (Alaska Ct. App. 1984).

State troopers have no duty to inform a DWI arrestee of the right to have counsel present before field sobriety tests are administered. Anderson v. State, 713 P.2d 1220 (Alaska Ct. App. 1986).

The police failed to take reasonable steps to assure that a defendant had privacy in conversing with his attorney where an officer’s presence throughout the duration of the call, the officers’ repeated conduct that affirmatively intruded on the defendant’s attempts to communicate with counsel, and the activation of a tape recorder precluded him from having any kind of meaningful discussion with his attorney. Reekie v. Municipality of Anchorage, 803 P.2d 412 (Alaska Ct. App. 1990).

Defendant was denied her right to telephone access during the 20-minute period after her arrival at a police station and prior to her intoximeter test, where her four separate requests to telephone her uncle were denied, and exclusion of her breath test result was the appropriate remedy therefor. Zsupnik v. State, 789 P.2d 357 (Alaska 1990).

No right to have counsel present during breath test. —

The right to contact counsel does not include a right to have counsel physically present while a breath test is administered. Annas v. State, 726 P.2d 552 (Alaska Ct. App. 1986).

Where a defendant had the opportunity to consult on the telephone with counsel, he received the rights guaranteed him by Copelin v. State, 659 P.2d 1206 (Alaska 1983); and the police were under no duty to delay administration of a breathalyzer examination until counsel could be present, regardless of how short a period that might, in fact, have entailed. Municipality of Anchorage v. Marrs, 694 P.2d 1163 (Alaska Ct. App. 1985).

No right to delay administering of breathalyzer test for further attorney consultation. —

The Court of Appeals does not construe this section to give an arrestee who has spoken with counsel by phone and had a reasonable opportunity to speak with him a right to delay administration of a breathalyzer examination to permit further consultation. Municipality of Anchorage v. Marrs, 694 P.2d 1163 (Alaska Ct. App. 1985).

Collateral references. —

Denial of accused’s request for initial contact with attorney in cases involving offenses other than drunk driving — Cases focusing on presence of inculpatory evidence other than statements by accused and cases focusing on absence of particular inculpatory evidence. 90 ALR5th 225.

Denial of, or interference with, accused’s right to have attorney initially contact accused. 96 ALR5th 327.

Denial of accused’s request for initial contact with attorney — drunk driving cases. 109 ALR5th 611.

Sec. 12.25.160. Definition of “arrest.”

Arrest is the taking of a person into custody in order that the person may be held to answer for the commission of a crime.

History. (§ 2.01 ch 34 SLA 1962)

Notes to Decisions

Arrest for speedy trial purposes. —

“Arrest,” as used in Crim. R. 45, which provides for a 120-day speedy trial period, must be defined in conformity with the statutory definition of an arrest. G.D. v. State, 681 P.2d 366 (Alaska Ct. App. 1984).

Defendant was not arrested on the date of the child-in-need-of-aid hearing, and the 120-day speedy trial period did not begin to run until he was served with a copy of the information charging him with sexual assault in the first degree and contributing to the delinquency of a minor. G.D. v. State, 681 P.2d 366 (Alaska Ct. App. 1984).

Where a defendant was suspected of driving while intoxicated leading to an injury accident, was informed that he could submit to a blood test at the hospital or be arrested and transported to the state police where he would be required by law to submit to a breath test to determine his blood-alcohol level, was released after the blood sample was taken, and was never handcuffed or moved from the hospital, the trial court could find that, although the defendant was in police custody, the custody never amounted to an arrest as defined in this section. Greenawalt v. Municipality of Anchorage, 692 P.2d 983 (Alaska Ct. App. 1985).

Reading Cr. R. 45 and this section together, the time for trial begins to run from the date the defendant is arrested and held to answer for the commission of a specific crime as well as any subsequent charges arising out of the same conduct or same criminal episode. Knowlton v. State, 795 P.2d 1287 (Alaska Ct. App. 1990).

The arrest of a parolee for a parole violation, which is an independent crime, did not trigger the beginning of the 120-day period for prosecution of the underyling offense under Crim. R. 45. Knowlton v. State, 795 P.2d 1287 (Alaska Ct. App. 1990).

The differing purposes governing parole revocation proceedings and criminal trials warranted a conclusion that defendant was not “held to answer” for the commission of the crime of forgery by virtue of his arrest for violating the conditions of his parole, even though the condition violated was that defendant refrain from committing further crimes. Knowlton v. State, 795 P.2d 1287 (Alaska Ct. App. 1990).

Only one hand in handcuffs. —

Defendant’s claim that his arrest was already complete when he prevented the trooper from securing his second arm in handcuffs was meritless; defendant was not entitled to an acquittal because the arrest was not complete for purposes of AS 11.56.700(a) when only one of his arms was in handcuffs. Fallon v. State, 221 P.3d 1016 (Alaska Ct. App. 2010).

Drawn guns and handcuffing do not necessarily turn stop into arrest. Howard v. State, 664 P.2d 603 (Alaska Ct. App. 1983).

Lawful stops and custodial arrest distinguished. —

See Howard v. State, 664 P.2d 603 (Alaska Ct. App. 1983).

Applied in

Goss v. State, 390 P.2d 220 (Alaska 1964); Aldridge v. State, 602 P.2d 798 (Alaska 1979); Maynard v. State, 652 P.2d 489 (Alaska Ct. App. 1982).

Quoted in

Jacobson v. State, 786 P.2d 388 (Alaska Ct. App. 1990); Demientieff v. State, 814 P.2d 745 (Alaska Ct. App. 1991); Lopez v. State, — P.3d — (Alaska Ct. App. Aug. 8, 2018).

Cited in

Cannizzaro v. State, 765 P.2d 110 (Alaska Ct. App. 1988).

Article 2. Citations.

Sec. 12.25.175. Uniform citation format and procedure.

  1. Notwithstanding any contrary provision of law, a citation issued by a peace officer or by another person who is authorized by law to issue a citation in the state must comply with standards concerning uniform citation format and procedure adopted by the Department of Public Safety. The standards must include
    1. a statewide numbering system for citations;
    2. a requirement that a citation be made upon oath or affirmation before a person authorized by law to administer oaths or affirmations or signed with a certification under penalty of perjury that the citation is true and was personally served on the person charged or served in a manner permitted under (d) of this section;
    3. a requirement that the citation contain information required by AS 12.25.200(b) .
  2. The commissioner of public safety shall provide or prescribe citation forms for use by peace officers and other persons who are authorized by law to issue citations.
  3. The commissioner of public safety shall adopt regulations under AS 44.62 (Administrative Procedure Act) to implement this section.
  4. The standards adopted by the department under (a) of this section must allow for service of a citation by other than personal service when the citation is for commission of an infraction or a violation for an offense other than an offense under AS 04.16.050 or an offense involving a moving motor vehicle, the offense is punishable by a fine of $500 or less, and the peace officer or other person authorized by law to issue the citation
    1. leaves the citation in a conspicuous place on the vehicle or other personal or real property that was the subject of the infraction or violation; or
    2. serves the citation in a manner permitted for service of process under Rule 4, Alaska Rules of Civil Procedure.

History. (§ 21 ch 29 SLA 2010; am §§ 1, 2 ch 53 SLA 2014)

Effect of amendments. —

The 2014 amendment, effective June 24, 2014, in the introductory language in (a), substituted “officer or by another person” for “officer and by another person”, in (a)(2), added “or served in a manner permitted under (d) of this section” at the end; added (d).

Effective dates. —

Section 65, ch. 29, SLA 2010 makes this section effective July 1, 2010.

Editor’s notes. —

Under § 61, ch. 29, SLA 2010, this section applies “to all citations issued . . . for violations occurring on or after July 1, 2010.”

Sec. 12.25.180. When peace officer may issue citation or take person before the court.

  1. When a peace officer stops or contacts a person for the commission of a class C felony offense, a misdemeanor, or the violation of a municipal ordinance, the officer may, in the officer’s discretion, issue a citation to the person instead of taking the person before a judge or magistrate under AS 12.25.150 , except the officer may arrest if
    1. the person does not furnish satisfactory evidence of identity;
    2. the peace officer reasonably believes the person is a danger to others;
    3. the crime for which the person is contacted is one involving violence or harm to another person or to property;
    4. the person asks to be taken before a judge or magistrate under AS 12.25.150 ; or
    5. the peace officer has probable cause to believe the person committed a crime involving domestic violence; in this paragraph, “crime involving domestic violence” has the meaning given in AS 18.66.990 .
  2. When a peace officer stops or contacts a person for the commission of an infraction or a violation, the officer shall issue a citation instead of taking the person before a judge or magistrate under AS 12.25.150 , except the officer may arrest if
    1. the person does not furnish satisfactory evidence of identity;
    2. the person refuses to accept service of the citation.
    3. [Repealed, § 138 ch 4 FSSLA 2019.]
  3. A person may not bring a civil action for damages for a failure to comply with the provisions of this section.

History. (§ 1 ch 31 SLA 1973; am § 19 ch 127 SLA 1974; am § 3 ch 144 SLA 1977; am § 34 ch 102 SLA 1980; am § 9 ch 64 SLA 1996; am § 22 ch 29 SLA 2010; am §§ 51, 52 ch 36 SLA 2016; am § 138 ch 4 FSSLA 2019)

Cross references. —

For provision relating to the applicability of the 2016 amendments to this section, see sec. 185(s)(1), ch. 36, SLA 2016, in the 2016 Temporary and Special Acts.

Effect of amendments. —

The 2010 amendment, effective July 1, 2010, in (a), substituted “When a peace officer stops or contacts a person” for “When a person is stopped or contacted by a peace officer”; substituted “the officer may, in the officer’s discretion, issue a citation to the person instead of taking the person before a judge or magistrate under AS 12.25.150 ” for “the person may, in the discretion of the contacting peace officer, be issued a citation instead of being taken before a judge or magistrate under AS 12.25.150 ”, in (a)(2) substituted “the contacting officer reasonably believes” for “the contacting officer has reasonable and probable cause to believe”; rewrote the introductory language of (b), which read, “When a person is stopped or contacted by a peace officer for the commission of an infraction or a violation, the person shall be issued a citation instead of being taken before a judge or magistrate under AS 12.25.150”, rewrote (b)(2), which read, “the person refuses to accept the citation or to give a written promise to appear as provided for under AS 12.25.190(c) ”.

The 2016 amendment, effective January 1, 2017, in (a), inserted “a class C felony offense,” following “commission of” and substituted “except the officer may arrest if” for “unless”; in (2), substituted “peace” for “contacting” and deleted “self or” preceding “others”; in (b), substituted “except the officer may arrest if” for “unless”; added (b)(3); added (c); and made stylistic changes.

The 2019 amendment, effective July 1, 2019, repealed (b)(3).

Editor’s notes. —

Under § 61, ch. 29, SLA 2010, the 2010 amendments of this section apply “to all citations issued . . . for violations occurring on or after July 1, 2010.”

Legislative history reports. —

For report on ch. 31, SLA 1973 (SB 25), see 1973 Senate Journal Supplement No. 7, p. 2.

Notes to Decisions

Credibility of witnesses. —

Since the trial court has the primary responsibility for evaluating witness credibility, where the court concluded that a police officer’s version of events was credible, probable cause existed to stop the defendant and issue a citation, and there was no error in denying the defendant’s suppression motion. Vigue v. State, 987 P.2d 204 (Alaska Ct. App. 1999).

Intent to issue citation. —

Defendant was properly convicted of fourth- and sixth-degree controlled substance misconduct because the evidence against him was obtained lawfully inasmuch as defendant voluntarily disclosed his possession of a pocket knife as soon as he was asked and readily consented to having a police officer take control of the knife for the duration of their encounter, and the discovery of a pipe and marijuana gave the officer an articulable reason to believe that defendant might be carrying additional evidence of a drug offense, which authorized the officer was to conduct a pat-down search of the rest of defendant's pockets even though the officer had already decided that he was going to issue a summons to defendant and then allow him to leave. McGuire v. State, 425 P.3d 203 (Alaska Ct. App. 2018).

Subsection (a) does not require a citation to be issued. —

Subsection (a) authorizes a police officer to issue a citation to a misdemeanor offender in lieu of making an arrest, unless one of the enumerated exceptions applies. But the statute does not require a police officer to follow this course. Jurco v. State, 825 P.2d 909 (Alaska Ct. App. 1992).

Applied in

Ahmaogak v. State, 595 P.2d 985 (Alaska 1979).

Stated in

Hamilton v. State, 59 P.3d 760 (Alaska Ct. App. 2002).

Cited in

State v. Meyers, 479 P.3d 840 (Alaska Ct. App. 2020).

Sec. 12.25.190. When person to be given five-day notice to appear in court.

  1. When a person is contacted by a peace officer and the peace officer exercises one of the options provided for in AS 12.25.180 , the officer shall prepare a written citation and issue it to the person.
  2. The time specified in the notice to appear shall be at least two working days after the issuance of the citation under AS 12.25.180(a) .
  3. The person cited shall accept at least one copy of the written citation prepared by the peace officer.
  4. The time specified in the notice to appear shall be at least five working days after issuance of the citation under AS 12.25.180(b) .

History. (§ 1 ch 31 SLA 1973; am § 20 ch 127 SLA 1974; am § 4 ch 144 SLA 1977; am § 20 ch 178 SLA 1978; am § 12 ch 34 SLA 1984; am § 1 ch 102 SLA 1984; am § 1 ch 132 SLA 1984; am § 1 ch 37 SLA 1987; am § 1 ch 76 SLA 1987; am § 3 ch 81 SLA 1989; am § 25 ch 28 SLA 2000; am § 3 ch 64 SLA 2004; am § 23 ch 29 SLA 2010; am §§ 53, 54 ch 36 SLA 2016)

Delayed amendment of subsection (c). —

Under §§ 26 and 30, ch. 28, SLA 2000, as amended by § 3, ch. 34, SLA 2004, § 41, ch. 12, SLA 2006, § 1, ch. 19, SLA 2009, § 24, ch. 29, SLA 2010, § 1, ch. 47, SLA 2010, and § 3, ch. 31, SLA 2012, effective on the occurrence of the contingency described in § 30(2), ch. 28, SLA 2000, subsection (c) of this section will be repealed and reenacted. The contingency described in § 30(2), ch. 28, SLA 2000, gives effect to the change “90 days after the date the chair of the Alaska Legislative Council notifies the revisor of statutes that in the previous state fiscal year the state did not receive and does not anticipate receiving federal funding for a statewide boating and safety education program; the director of the division of legislative finance shall notify the chair of the Alaska Legislative Council when the state, in the previous fiscal year, did not receive federal funding for a statewide boating and safety program; the chair of the Alaska Legislative Council may not give the notice described in this section unless the notice is approved by a vote of a majority of the members of the Alaska Legislative Council.” Thereafter, subsection (c) will read as follows: “(c) The person cited shall accept at least one copy of the written citation prepared by the peace officer.” As of January 2022, the contingency had not occurred.

Under sec. 1(2), ch. 28, SLA 2000, any other intervening amendments to subsection (c) are not to be retained when that subsection is amended under sec. 30, ch. 28, SLA 2000.

Revisor’s notes. —

In 2008, in (c) of this section, “AS 05.25.090(c) ” was substituted for “AS 05.25.090(b) ” to correct a manifest error.

Cross references. —

For provision relating to the applicability of the 2016 amendments to this section, see sec. 185(s)(2), ch. 36, SLA 2016, in the 2016 Temporary and Special Acts.

Effect of amendments. —

The 2010 amendment, effective July 1, 2010, in (a), substituted “one of the options provided” for “the option provided”; in (b), substituted “five working days after the issuance of the citation” for “five days after the alleged violation or the issuance of the citation, whichever is later, unless the person cited requests an earlier hearing”; rewrote (c); conditionally rewrote (c), as repealed and reenacted by sec. 26, ch. 28, SLA 2000 and by sec. 41, ch. 12, SLA 2006.

The 2016 amendment, effective January 1, 2017, in (b), substituted “two” for “five” and inserted “under AS 12.25.180(a) ” at the end of the sentence; added (d).

Editor’s notes. —

Under § 61, ch. 29, SLA 2010, the 2010 amendment of this section applies “to all citations issued . . . for violations occurring on or after July 1, 2010.”

Notes to Decisions

Applied in

Ahmaogak v. State, 595 P.2d 985 (Alaska 1979).

Sec. 12.25.195. Disposition of scheduled offenses.

  1. If a person cited for an offense for which a scheduled amount of bail or a fine has been established does not contest the citation, the person may mail or personally deliver to the clerk of the court with appropriate jurisdiction if a bailable offense, or to the clerk of the municipality that issued the citation if a scheduled municipal fine, the amount of the bail or fine indicated on the citation for the offense together with a copy of the citation signed by the person indicating the person’s waiver of court appearance, entry of plea of no contest, and forfeiture of bail or fine. The citation with the bail or fine shall be mailed or personally delivered on or before the 30th day after the date the citation was issued.
  2. When bail or a fine is forfeited under this section, a judgment of conviction shall be entered. The bail or fine paid is complete satisfaction for the offense.
  3. Disposition of an offense under (a) of this section may not occur unless the person cited for the offense pays the surcharge prescribed in AS 12.55.039 in addition to the scheduled bail or fine amount. The surcharge required to be paid under this subsection shall be deposited into the general fund and accounted for under AS 37.05.142 .

History. (§ 2 ch 76 SLA 1987; am § 1 ch 56 SLA 1998; am § 25 ch 29 SLA 2010)

Effect of amendments. —

The 2010 amendment, effective July 1, 2010, in (a), in the first sentence, substituted “If a” for “A”, added “does not contest the citation, the person”, and substituted the last sentence for the last two sentences.

Editor’s notes. —

Under § 61, ch. 29, SLA 2010, the 2010 amendment of (a) of this section applies “to all citations issued . . . for violations occurring on or after July 1, 2010.”

Sec. 12.25.200. Form for citations.

  1. The chief administrative officer of each law enforcement agency or other agency authorized to issue citations in the state is responsible for the issuance of books containing appropriate citations, and shall maintain a record of each book and each citation contained in it and shall require and retain a receipt for every book issued to a peace officer or other person authorized to issue citations.
  2. A citation issued under AS 12.25.180 or other law authorizing the issuance of a citation must be in writing and indicate, if applicable,
    1. the amount of bail or fine and the surcharge applicable to the offense;
    2. the procedure a person must follow in responding to the citation;
    3. that, if the person fails to pay the bail or fine, the person must appear in court;
    4. that failure to pay the bail or fine or appear in court for an offense involving a moving motor vehicle may result in
      1. suspension of the person’s driver’s license, privilege to drive, or privilege to obtain a license; or
      2. attachment of the person’s permanent fund dividend to pay the fine plus court and collection costs under AS 28.05.155 ; and
    5. that the person has a right to
      1. a trial;
      2. engage counsel;
      3. confront and question witnesses;
      4. testify;
      5. subpoena witnesses on the person’s behalf.

History. (§ 1 ch 31 SLA 1973; am § 3 ch 76 SLA 1987; am § 2 ch 47 SLA 1996; am § 2 ch 56 SLA 1998; am § 26 ch 29 SLA 2010)

Effect of amendments. —

The 2010 amendment, effective July 1, 2010, in (a), added “or other agency authorized to issue citations” following “law enforcement agency”, and “or other person authorized to issue citations” following “for every book issued to a peace officer”; rewrote the introductory language of (b), which read, “A citation issued under AS 12.25.180 must indicate”, and made stylistic changes.

Editor’s notes. —

Under § 61, ch. 29, SLA 2010, the 2010 amendment of this section applies “to all citations issued . . . for violations occurring on or after July 1, 2010.”

Sec. 12.25.210. Disposition and records of citations.

  1. A peace officer or other person authorized by law to issue a citation, upon issuing a citation to an alleged violator under AS 12.25.180 or other law, on or before the 10th working day after issuance, shall deposit the original or a copy of the citation with a court having jurisdiction over the alleged offense. If the citation charges an offense under a municipal ordinance for which a scheduled fine has been established, the peace officer shall deposit the original or a copy of the citation with the clerk of the municipality that issued the citation, unless otherwise provided under rule adopted by the supreme court. Failure to file the citation within the prescribed time is not a basis for dismissal of the citation.
  2. Upon the deposit of the original or a copy of the citation with a court having jurisdiction over the alleged offense, the original or copy of the citation may be disposed of only by trial in the court or other official action by a magistrate or judge of the court.
  3. It is unlawful and official misconduct for a peace officer or other officer or public employee to dispose of a citation or copies of it or of the record of the issuance of the citation in a manner other than as required in this section.
  4. The chief administrative officer of each law enforcement or other agency shall require each officer or other person in the agency to retain a copy of every citation issued by the officer or other person to an alleged violator of a law or ordinance and all copies of every citation that has been spoiled or upon which any entry has been made and not issued to an alleged violator.
  5. The chief administrative officer of each law enforcement or other agency shall also maintain, in connection with every citation issued by an officer or other person in the agency, a record of the disposition of the charge by the court in which the original or copy of the citation was deposited.

History. (§ 1 ch 31 SLA 1973; am § 4 ch 76 SLA 1987; am §§ 27 — 29 ch 29 SLA 2010)

Effect of amendments. —

The 2010 amendment, effective July 1, 2010, in (a), in the first sentence, added “or other person authorized by law to issue a citation” following “A peace officer”, and “or other law, on or before the 10th working day after issuance” following “AS 12.25.180 ”, and added the last sentence; in (d), added “or other” following “each law enforcement”, added “or other person” two times, and substituted “retain” for “return” following “in the agency to”; in (e), added “or other” following “each law enforcement”, “or other person” following “issued by an officer”, and made stylistic changes.

Editor’s notes. —

Under § 61, ch. 29, SLA 2010, the 2010 amendments to (a), (d), and (e) of this section apply “to all citations issued —. for violations occurring on or after July 1, 2010.”

Sec. 12.25.220. When copy of citation considered a lawful complaint.

If the form of citation provided under AS 12.25.200 includes information and is sworn to as required under the laws of this state in respect to a complaint charging commission of the offense alleged in the citation, then the citation when filed with a court having jurisdiction is considered to be a lawful complaint for the purpose of prosecution.

History. (§ 1 ch 31 SLA 1973)

Notes to Decisions

When citation is a charge within meaning of Crim. R. 45. —

When a citation is served which gives a person official notice that he or she is accused of a crime and is summoned to appear in court to answer for such crime upon penalty of fine and/or imprisonment, the citation is a charge within the meaning of Crim. R. 45 which triggers the 120-day period for commencing a trial. Ahmaogak v. State, 595 P.2d 985 (Alaska 1979).

Service of a Uniform Summons and Complaint triggers the 120-day period in which trial must be commenced under Crim. R. 45. Ahmaogak v. State, 595 P.2d 985 (Alaska 1979).

Cited in

Bailey v. Municipality of Anchorage, 955 P.2d 947 (Alaska Ct. App. 1998).

Sec. 12.25.230. Failure to obey citation; limitation on penalty.

  1. Except as provided in (b) of this section or otherwise specifically provided by law, a person who fails to appear in court to answer the citation, regardless of the disposition of the charge for which the citation was issued, is guilty of a class A misdemeanor.
  2. A person who fails to pay the bail or fine or appear in court in response to a citation for which a scheduled bail or fine is established, regardless of the disposition of the charge for which the citation was issued, is guilty of a class B misdemeanor.
  3. If a person cited for an offense for which an amount of scheduled bail or fine has been established appears in court and is found guilty, the penalty imposed for the offense may not exceed the bail or fine established for the offense.

History. (§ 1 ch 31 SLA 1973; am § 5 ch 144 SLA 1977; am §§ 5, 6 ch 76 SLA 1987; am §§ 30, 31 ch 29 SLA 2010)

Effect of amendments. —

The 2010 amendment, effective July 1, 2010, in (a), added “or otherwise specifically provided by law” following “in (b) of this section”, and substituted “guilty of a class A misdemeanor” for “guilty of a misdemeanor and upon conviction is punishable by a fine of not more than $1,000, or by imprisonment for not more than one year, or by both.”; repealed and reenacted (b).

Editor’s notes. —

Under § 61, ch. 29, SLA 2010, the 2010 amendments to (a) and (b) of this section apply “to all citations issued . . . for violations occurring on or after July 1, 2010.”

Notes to Decisions

Applied in

Ahmaogak v. State, 595 P.2d 985 (Alaska 1979).

Chapter 30. Bail.

Revisor’s notes. —

Chapter 20, SLA 1966, which repealed and reenacted this chapter, was based largely on SB 1357, 89th Congress, First Session.

Cross references. —

For court rules on bail, see Rule 41, Alaska Rules of Criminal Procedure; for constitutional provisions, see art. I, § 11, Alaska Constitution.

Legislative history reports. —

For governor’s transmittal letter for ch. 19, SLA 2010 (House Bill 324), relating to the 2010 additions, amendments, reenactments, and repeals of provisions of this chapter, see 2010 House Journal 1401 — 1404.

Collateral references. —

8A Am. Jur. 2d, Bail and Recognizance, § 1 et seq.

8 C.J.S., Bail, § 1 et seq.

Sec. 12.30.006. Release procedures.

  1. At the first appearance before a judicial officer, a person charged with an offense shall be released or detained under the provisions of this chapter.
  2. At the first appearance before a judicial officer, a person may be detained up to 48 hours for the prosecuting authority to demonstrate that release of the person under AS 12.30.011 would not reasonably ensure the appearance of the person or will pose a danger to the victim, other persons, or the community, if the person has
    1. been charged with an unclassified, class A, class B, or class C felony; or
    2. a criminal conviction or charge outside the state.
  3. A person who remains in custody 48 hours after appearing before a judicial officer because of inability to meet the conditions of release shall, upon application, be entitled to have the conditions reviewed by the judicial officer who imposed them. If the judicial officer who imposed the conditions of release is not available, any judicial officer in the judicial district may review the conditions.
  4. If a person remains in custody after review of conditions by a judicial officer under (c) of this section, the person may request a subsequent review of conditions. Unless the prosecuting authority stipulates otherwise or the person has been incarcerated for a period equal to the maximum sentence for the most serious charge for which the person is being held, a judicial officer may not schedule a bail review hearing under this subsection unless
    1. the person provides to the court and the prosecuting authority a written statement that new information not considered at the previous review will be presented at the hearing; the statement must include a description of the information and the reason the information was not presented at a previous hearing; in this paragraph, “new information” includes the person’s inability to post the required bail if the person can show that the person made a good faith effort to post the required bail;
    2. the prosecuting authority and any surety, if applicable, have at least 48 hours’ written notice before the time set for the review requested under this subsection; the defendant shall notify the surety; and
    3. at least seven days have elapsed between the previous review and the time set for the requested review; however, a person may receive only one bail review hearing solely for inability to pay.
  5. A judicial officer may solicit comments by the victim or a parent or guardian of a minor victim who is present at the bail review hearing and wishes to comment. The judicial officer shall consider those comments and any response by the person before making a decision concerning the release of the person.
  6. The judicial officer shall issue written or oral findings that explain the reasons the officer imposed the particular conditions of release or modifications or additions to conditions previously imposed. The judicial officer shall inform the person that a law enforcement officer or a pretrial services officer under AS 33.07 may arrest the person without a warrant for violation of the court’s order establishing conditions of release.
  7. Information offered or introduced at a bail hearing to determine conditions of release need not conform to the rules governing the admissibility of evidence.

History. (§ 4 ch 19 SLA 2010; am §§ 55 — 58 ch 36 SLA 2016; am § 26 ch 1 4SSLA 2017; am § 10 ch 22 SLA 2018; am §§ 56 — 58 ch 4 FSSLA 2019)

Cross references. —

For provision relating to the applicability of the 2016 amendments to this section, see sec. 185(o)(1) — (4), ch. 36, SLA 2016, in the 2016 Temporary and Special Acts.

For provision relating to applicability of the 2017 amendment to subsection (b), see sec. 75(a)(21), ch. 1, 4SSLA 2017, in the 2017 Temporary and Special Acts.

Effect of amendments. —

The 2016 amendment, effective January 1, 2018, in (b), inserted “, other than a class C felony and the person has been assessed as low risk under AS 12.30.011(c)(1) ,” following “with a felony”; substituted “AS 12.30.011 ” for “AS 12.30.011(a) ”; substituted “ensure” for “assure”; added the last sentence in (c) and added (c)(1) and (c)(2); in (d)(1), substituted “includes the person's inability” for “does not include the inability”; at the end of (d)(3), inserted “; however, a person may receive only one bail review hearing solely for inability to pay”; in (f), inserted “or a pretrial services officer under AS 33.07” preceding “may arrest”.

The 2017 amendment, effective January 1, 2018, in the introductory language in (b), deleted “who is charged with a felony, other than a class C felony and the person has been assessed as low risk under AS 12.30.011(c)(1) ,” preceding “may be detained”, inserted “, if the person has been charged with the following crimes:” at the end, added (b)(1) — (3).

The 2018 amendment, effective June 15, 2018, rewrote (b).

The 2019 amendment, effective July 9, 2019, deleted “that has not been used in determining the person’s risk level in the pretrial risk assessment under AS 33.07” at the end of (b)(2); rewrote (c), which read, “A person who remains in custody 48 hours after appearing before a judicial officer because of inability to meet the conditions of release shall, upon application, be entitled to have the conditions reviewed by the judicial officer who imposed them. If the judicial officer who imposed the conditions of release is not available, any judicial officer in the judicial district may review the conditions. Upon review of the conditions, the judicial officer shall revise any conditions of release that have prevented the defendant from being released unless the judicial officer finds on the record that there is clear and convincing evidence that less restrictive release conditions cannot reasonably ensure the

“(1) appearance of the person in court; and

“(2) safety of the victim, other persons, and the community.”; and in (d), added “if the person can show that the person made a good faith effort to post the required bail” at the end of (d)(1), and substituted “48 hours’” for “48 hours”” in (d)(2).

Effective dates. —

Section 32, ch. 19, SLA 2010 makes this section effective July 1, 2010.

Editor's notes. —

Under § 31(c), ch. 19, SLA 2010, this section applies “to bail proceedings occurring on or after July 1, 2010, for offenses occurring on or after July 1, 2010.”

Section 142(a), ch. 4, FSSLA 2019, provides that the 2019 amendments of (b) – (d) of this section apply “to offenses committed on or after July 9, 2019.”

Notes to Decisions

Editor's notes. —

Many of the cases cited in the notes below were decided under former AS 12.30.010 or 12.30.020 .

An indigent defendant does not have an absolute right to be released on his own recognizance prior to trial. Reeves v. State, 411 P.2d 212 (Alaska 1966); Gilbert v. State, 540 P.2d 485 (Alaska 1975).

Pretrial release for all indigent defendants is not required by any provisions of the Criminal Code or under the federal constitution or the Alaska Constitution. Reeves v. State, 411 P.2d 212 (Alaska 1966).

Independent assessment of conditions of release required. —

Superior court was not entitled to clarification of the appellate court’s order to set defendant’s bail because it was up to the superior court to inquire into the assets available to defendant’s family to meet the monetary component of her bail, the appropriate legal framework for the analysis was set out in the Alaska Constitution, the superior court should also consider its obligations under the bail statute, the statutory restrictions were predicated on the assumption that there had already been a full inquiry into the available assets, and specific findings were needed the trial court’s justification for imposing the $ 500,000 cash or corporate surety monetary condition. West v. State, — P.3d — (Alaska Ct. App. Sept. 2, 2014).

Because the superior court was required to independently assess defendant's conditions of release, and the supreme court was unable to say that defendant received the hearing to which he was entitled, his case was remanded to the superior court so that it could conduct the independent review. Torgerson v. State, 444 P.3d 235 (Alaska Ct. App. 2019).

At a first bail review hearing, a judicial officer is required to assess a defendant's conditions of release anew; at a defendant's first bail review hearing, a court is required to conduct an independent assessment of the defendant's conditions of release, and the court may not simply defer to the bail conditions imposed at a defendant's first court appearance. Torgerson v. State, 444 P.3d 235 (Alaska Ct. App. 2019).

When subsections (c) and (d) are read together, it is clear that a defendant need not present any “new” information at the first bail review hearing under subsection (c), that is, the defendant need not present any information that was not previously known at the time of the defendant's first appearance; instead, at a first bail hearing, a defendant who remains in custody is “entitled” to have the conditions reviewed by a judicial officer. Torgerson v. State, 444 P.3d 235 (Alaska Ct. App. 2019).

Requirement that judges conduct an independent assessment of a defendant's conditions of release at the first bail review hearing affords defendants a meaningful opportunity to consult with their attorney and gather any necessary information relevant to the bail decision; it also allows the court an opportunity to explain its bail decision, in order to help foster understanding of the decision by the defendant and the public, and to allow for meaningful appellate review. Torgerson v. State, 444 P.3d 235 (Alaska Ct. App. 2019).

Because the superior court was required to independently assess defendant's conditions of release, and because the court of appeals was unable to say that defendant received the bail review hearing to which he was entitled, the case was remanded to the superior court to conduct that independent review. James v. State, — P.3d — (Alaska Ct. App. Feb. 25, 2020).

The ability of an arrestee to obtain a prompt release by posting bail for a petty offense should not depend on the fortuitous circumstance of one having sufficient money on his person to post the bail at the time he arrives at the jail. Many people do not carry much cash on their person. Those persons should be permitted access to a telephone in order to get in touch with a relative, an employer, a friend, or an attorney, who could come to the stationhouse within a reasonable time and put up the necessary bail. Whether circumstances justify a variance will depend on the particular facts involved. Zehrung v. State, 569 P.2d 189 (Alaska 1977).

Such released arrestee should not be subjected to booking procedures. —

Where a jail had been provided with a bail schedule for petty offenses, the purpose of which was to afford an arrestee the opportunity to avoid incarceration by posting the established bail without need to appear before a magistrate, if one is arrested for a petty offense and has sufficient funds on his person to post the established bail when brought to the jail facility, he should be released immediately. There is no reason to subject such an arrestee to booking procedures with the resultant inventory search of his person since he is not to be incarcerated. Zehrung v. State, 569 P.2d 189 (Alaska 1977).

In camera bail hearings not authorized. —

Neither Alaska’s Bail Reform Act nor the rules of criminal procedure authorize the trial courts of Alaska to conduct in camera bail hearings. Carman v. State, 564 P.2d 361 (Alaska 1977).

Trial judges have wide latitude. Although the trial court may not deny bail to an accused, the trial judge can consider danger to the community as a factor in assessing the amount of bail or fixing the terms of a conditional release. Martin v. State, 517 P.2d 1389 (Alaska 1974).

Evidence relevant in determining amount of bail or conditions of release. —

Evidence in bail proceedings to the effect that an accused is a danger to the community has been decreed relevant by the legislature for the purpose of determining either the amount of bail or conditions of release. Carman v. State, 564 P.2d 361 (Alaska 1977).

It was error to deny defendants' motions for a second bail review hearing because the existence of the COVID-19 pandemic was "new information" for such purposes, entitling defendants to hearings to individually assess bail release proposals in the context of the pandemic. Karr v. State, 459 P.3d 1183 (Alaska Ct. App. 2020).

Bail review hearing. —

Trial court did not err in holding a bail review hearing at the State's request; if the State has new information related to a person's flight risk or dangerousness, the court has the authority to hear that new information and to determine whether the existing bail conditions are sufficient in light of that new information, but any change in the bail must actually be predicated on this new information. James v. State, — P.3d — (Alaska Ct. App. Dec. 11, 2019).

Cited in

Sergie v. State, — P.3d — (Alaska Ct. App. July 30, 2021).

Sec. 12.30.010. Bail before or after conviction; restrictions on release without bail. [Repealed, § 30 ch 19 SLA 2010.]

Sec. 12.30.011. Release before trial.

  1. Except as otherwise provided in this chapter, a judicial officer shall order a person charged with an offense to be released on the person’s personal recognizance or upon execution of an unsecured appearance bond, on the condition that the person
    1. obey all court orders and all federal, state, and local laws;
    2. appear in court when ordered;
    3. if represented, maintain contact with the person’s lawyer; and
    4. notify the person’s lawyer, who shall notify the prosecuting authority and the court, not more than 24 hours after the person changes residence.
  2. If a judicial officer determines that the release under (a) of this section will not reasonably ensure the appearance of the person or will pose a danger to the victim, other persons, or the community, the officer shall impose the least restrictive condition or conditions that will reasonably ensure the person’s appearance and protect the victim, other persons, and the community. In addition to conditions under (a) of this section, the judicial officer may, singly or in combination,
    1. require the execution of an appearance bond in a specified amount of cash to be deposited into the registry of the court, in a sum not to exceed 10 percent of the amount of the bond;
    2. require the execution of a bail bond with sufficient solvent sureties or the deposit of cash;
    3. require the execution of a performance bond in a specified amount of cash to be deposited in the registry of the court;
    4. place restrictions on the person’s travel, association, or residence;
    5. order the person to refrain from possessing a deadly weapon on the person or in the person’s vehicle or residence;
    6. require the person to maintain employment or, if unemployed, actively seek employment;
    7. require the person to notify the person’s lawyer and the prosecuting authority within two business days after any change in employment;
    8. require the person to avoid all contact with a victim, a potential witness, or a codefendant;
    9. require the person to refrain from the consumption and possession of alcoholic beverages;
    10. require the person to refrain from the use of a controlled substance as defined by AS 11.71, unless prescribed by a licensed health care provider with prescriptive authority;
    11. require the person to be physically inside the person’s residence, or in the residence of the person’s third-party custodian, at time periods set by the court;
    12. require the person to keep regular contact with a law enforcement officer or agency;
    13. order the person to refrain from entering or remaining in premises licensed under AS 04;
    14. place the person in the custody of an individual who agrees to serve as a third-party custodian of the person as provided in AS 12.30.021 ;
    15. if the person is under the treatment of a licensed health care provider, order the person to follow the provider’s treatment recommendations;
    16. order the person to take medication that has been prescribed for the person by a licensed health care provider with prescriptive authority;
    17. order the person to submit to electronic monitoring;
    18. order the person to submit to a pretrial risk assessment by the Department of Corrections under AS 33.07;
    19. order the person to submit to supervision by a pretrial services officer under AS 33.07, which may include the use of electronic monitoring;
    20. order the person to comply with any other condition that is reasonably necessary to ensure the appearance of the person and to ensure the safety of the victim, other persons, and the community; and
    21. require the person to comply with a program established under AS 47.38.020 if the person has been charged with an alcohol-related or substance-abuse-related offense that is an unclassified felony, a class A felony, a sexual felony, or a crime involving domestic violence.
  3. In determining the conditions of release under this chapter, the court shall consider the following:
    1. the nature and circumstances of the offense charged;
    2. the weight of the evidence against the person;
    3. the nature and extent of the person’s family ties and relationships;
    4. the person’s employment status and history;
    5. the length and character of the person’s past and present residence;
    6. the person’s record of convictions and any pending criminal charges;
    7. the person’s record of appearance at court proceedings;
    8. assets available to the person to meet monetary conditions of release;
    9. the person’s reputation, character, and mental condition;
    10. the effect of the offense on the victim, any threats made to the victim, and the danger that the person poses to the victim;
    11. any other facts that are relevant to the person’s appearance or the person’s danger to the victim, other persons, or the community; and
    12. the pretrial risk assessment provided by a pretrial services officer, if available.
  4. In making a finding regarding the release of a person under this chapter,
    1. except as otherwise provided in this chapter, the burden of proof is on the prosecuting authority that a person charged with an offense should be detained or released with conditions described in (b) of this section or AS 12.30.016 ;
    2. there is a rebuttable presumption that there is a substantial risk that the person will not appear and the person poses a danger to the victim, other persons, or the community, if the person is
      1. charged with an unclassified felony, a class A felony, a sexual felony, or a felony under AS 28.35.030 or 28.35.032 ;
      2. charged with a felony crime against a person under AS 11.41, was previously convicted of a felony crime against a person under AS 11.41 in this state or a similar offense in another jurisdiction, and less than five years have elapsed between the date of the person’s unconditional discharge on the immediately preceding offense and the commission of the present offense;
      3. charged with a felony offense committed while the person was on release under this chapter for a charge or conviction of another offense;
      4. charged with a crime involving domestic violence, and has been convicted in the previous five years of a crime involving domestic violence in this state or a similar offense in another jurisdiction;
      5. arrested in connection with an accusation that the person committed a felony outside the state or is a fugitive from justice from another jurisdiction, and the court is considering release under AS 12.70.
  5. If the supreme court establishes a schedule of bail amounts or conditions of release for misdemeanor offenses, the schedule must include a condition providing that a correctional facility shall, at the time of release, conduct a chemical test of the breath of a person who has been arrested and who is intoxicated and shall detain the person until the test result indicates that the person’s breath has less than 0.08 grams of alcohol for each 210 liters of breath or, with the consent of the person, release the person to another person who is willing and able to provide care for the person.

History. (§ 5 ch 19 SLA 2010; am § 20 ch 83 SLA 2014; § 59 ch 36 SLA 2016; am § 27 ch 1 4SSLA 2017; am §§ 11 — 15 ch 22 SLA 2018; am § 59 ch 4 FSSLA 2019)

Cross references. —

For provision relating to the applicability of the 2016 amendments to this section, see sec. 185(o)(5), ch. 36, SLA 2016, in the 2016 Temporary and Special Acts. For the effect of the 2016 amendments to this section that take effect in 2018 on Rule 41, Alaska Rules of Criminal Procedure, see sec. 180(a), ch. 36, SLA 2016 in the 2016 Temporary and Special Acts.

For provision relating to applicability of the 2017 enactment of subsection ( l ), see sec. 75(b)(1), ch. 1, 4SSLA 2017, in the 2017 Temporary and Special Acts.

For statement of legislative intent regarding a release decision when a person's criminal conviction or charge outside the state is included in a pretrial risk assessment conducted under AS 33.07, see sec. 1, ch. 22, SLA 2018, in the 2018 Temporary and Special Acts.

For provision relating to applicability of the 2018 amendments to this section, see sec. 30(b), ch. 22, SLA 2018, in the 2018 Temporary and Special Acts.

For the effect of the 2018 amendments to this section on Rule 41, Alaska Rules of Criminal Procedure, see sec. 29, ch. 22, SLA 2018, in the 2018 Temporary and Special Acts.

Effect of amendments. —

The 2014 amendment, effective July 17, 2014, added (b)(18), and made a related change.

The 2016 amendment, effective January 1, 2018, rewrote the section.

The 2017 amendment, effective January 1, 2018, added ( l ).

The 2018 amendment, effective June 15, 2018, in (a), substituted “Except as otherwise provided by this chapter, a judicial officer” for “A judicial officer”; in (b), deleted “risk shall be released on the person's own recognizance or upon execution of an unsecured appearance bond or unsecured performance bond; or” and made related changes; in (c), deleted “low risk shall be released on the person's own recognizance or upon execution of an unsecured appearance bond or unsecured performance bond; or” and made related and stylistic changes; in the introductory language in (g), substituted “chapter” for “section”, and in (g)(5), added “if the person is represented by an attorney” at the end; in (i)(6), added “, including convictions outside the state”.

The 2019 amendment, effective July 9, 2019, repealed and reenacted this section.

Effective dates. —

Section 32, ch. 19, SLA 2010 makes this section effective July 1, 2010.

Editor's notes. —

Under § 31(c), ch. 19, SLA 2010, this section applies “to bail proceedings occurring on or after July 1, 2010, for offenses occurring on or after July 1, 2010.”

Although the 2014 amendments were to have taken effect July 1, 2014 under Sec. 42, ch. 83, SLA 2014, the Governor did not sign the bill until July 16, 2014, and so the actual effective date of the 2014 amendments was July 17, 2014 under AS 01.10.070(d) .

Under sec. 36(a), ch. 83, SLA 2014, subsection (b) as amended by sec. 20, ch. 83, SLA 2014, applies to offenses occurring on or after July 17, 2014.

Section 142(a), ch. 4, FSSLA 2019, provides that the 2019 repeal and reenactment of this section applies "to offenses committed on or after July 9, 2019.”

Notes to Decisions

Editor's notes. —

Many of the cases cited in the notes below were decided under former AS 12.30.010 or 12.30.020 .

The right to bail under this section is guaranteed prior to conviction. Martin v. State, 517 P.2d 1389 (Alaska 1974).

Statutory presumption. —

Statutory presumption of dangerousness is largely meaningless in a case where the court has already found the defendant to be dangerous and has already accounted for that dangerousness in the court's bail order; likewise, a statutory presumption that a defendant is a flight risk is irrelevant in a case where that presumption was apparently rebutted, and no appearance bond was ever imposed. James v. State, — P.3d — (Alaska Ct. App. Dec. 11, 2019).

Amount of bond not abuse of discretion. —

Superior court's decision to require a $ 50,000 performance bond was not unreasonable; superior court considered the relevant factors and made explicit findings in support of its decision, and given the seriousness of the current charges and defendant's past criminal history, no abuse of discretion was found. Vaneyck v. State, — P.3d — (Alaska Ct. App. Oct. 9, 2018).

Denial of bail prior to conviction is unconstitutional. —

An order denying bail to one accused of a crime, but not yet convicted, is in violation of Alaska Const., art. I, § 11, and the provisions of the Alaska Bail Reform Act. Gilbert v. State, 540 P.2d 485 (Alaska 1975).

Former AS 12.30.011(d)(2) (amended 2018) is unconstitutional as it presumes that a defendant cannot be released on bail, and Alaska Const. art. I, § 11, contains a specific guarantee of pre-conviction bail. Hamburg v. State, 434 P.3d 1165 (Alaska Ct. App. 2018), vacated, — P.3d — (Alaska Ct. App. 2019).

Discretion of court. —

Contrary to defendant's argument, even under the new bail statute, trial courts retain the discretion to require defendants to post 100 percent of the bond, either in cash or by surety. Vaneyck v. State, — P.3d — (Alaska Ct. App. Oct. 9, 2018).

But trial judge may consider danger to community in assessing amount of bail. —

Although he may not deny bail to an accused, prior to conviction, the trial judge can consider danger to the community as a factor in assessing the amount of bail or fixing the terms of a conditional release. He is in a far better position than an appellate court to assess the evidence and to determine, in the first instance, what alternatives are available, and the amount of bail that should be required. Gilbert v. State, 540 P.2d 485 (Alaska 1975) (decided under former AS 12.30.010 ).

Cash performance bond did not preclude other conditions. —

There was no merit to defendant's claim that the $5,000 cash performance bond precluded the imposition of any other bail conditions, given that the statute permitted such. Redfox v. State, — P.3d — (Alaska Ct. App. Apr. 1, 2021) (memorandum decision).

Application of new bail statute. —

It was not clear that application of the new bail statute to defendant's case would make any material difference to his bail, as the superior court rescinded its no-bail order and set conditions of release; the new bail statute had essentially the same standard that applied under the former bail statute once the no-bail presumption had been rebutted, as it had been in defendant's case, plus under the new statute, defendant would be subject to the same bail restrictions as under the former statute. Vaneyck v. State, — P.3d — (Alaska Ct. App. Oct. 9, 2018).

Increase of performance bond. —

Because the State did not ultimately present any new information regarding James's conduct or dangerousness, the superior court should not have increased defendant's performance bond and should have declined further review. James v. State, — P.3d — (Alaska Ct. App. Dec. 11, 2019).

Ability to pay. —

To the extent superior court might have been wrong in its estimation of defendant's ability to pay, it was incumbent on him to object to the $ 50,000 bond on that basis and provide sufficient financial information to allow the court to assess his argument; without this kind of record, the court would not second-guess the superior court's reasons for imposing the bond, nor assume the amount was outside defendant's ability to pay. Vaneyck v. State, — P.3d — (Alaska Ct. App. Oct. 9, 2018).

State properly conceded that the trial court erred in refusing to hear testimony regarding the ability of defendant's family to post a $25,00 cash-only performance bond and in failing to provide case-specific reasons for why that amount of monetary bail was necessary given the factors set fort in AS § 12.30.011(c), the prohibitions on excessive bail in U.S. Const. amend. VIII; Alaska Const. art. I, § 12, and the case law requirements for a particularized statement and explanation. Sergie v. State, — P.3d — (Alaska Ct. App. July 30, 2021).

Bail amount constituted abuse of discretion. —

Monetary amount imposed for bail constituted an abuse of discretion because the superior court approved a highly restrictive bail release plan with electronic monitoring, house arrest, and partial third-party custodians; appellant agreed to augment that plan with a $10,000 unsecured appearance bond and a $3,000 cash-only performance bond; it was not clear why imposing an additional $17,000 beyond what appellant's family had the ability to pay would make the community any safer or her bail plan materially more robust; and the superior court was required to impose the least restrictive bail conditions that would reasonably ensure appellant's appearance and the safety of the community. Francis v. State, — P.3d — (Alaska Ct. App. Jan. 15, 2021).

The purpose of bail in the administration of criminal justice is to insure the defendant’s appearance at trial. Reeves v. State, 411 P.2d 212 (Alaska 1966).

Determining the conditions of release.

Trial court erred in reconsidering the monetary component of defendant's bail because, despite repeated hearings on remand, the court did not sufficiently explain why a $250,000 all-cash appearance bond was the least restrictive monetary amount necessary in light of the other supervisory bail conditions in place. Pisano v. State, — P.3d — (Alaska Ct. App. Sept. 23, 2019).

Superior court was not entitled to clarification of the appellate court’s order to set defendant’s bail because it was up to the superior court to inquire into the assets available to defendant’s family to meet the monetary component of her bail, the appropriate legal framework for the analysis was set out in the Alaska Constitution, the superior court should also consider its obligations under the bail statute, the statutory restrictions were predicated on the assumption that there had already been a full inquiry into the available assets, and specific findings were needed the trial court’s justification for imposing the $ 500,000 cash or corporate surety monetary condition. West v. State, — P.3d — (Alaska Ct. App. Sept. 2, 2014).

Posting of bond. —

Superior court considered defendant's request that he be permitted to post only 10 percent of the appearance bond, but rejected the request because a 100 percent deposit was required to reasonably assure defendant's future court appearances, given his prior convictions for failure to appear; no abuse of discretion was found. Vaneyck v. State, — P.3d — (Alaska Ct. App. Oct. 9, 2018).

Independent assessment of conditions of release required.

Because the superior court was required to independently assess defendant's conditions of release, and because the court of appeals was unable to say that defendant received the bail review hearing to which he was entitled, the case was remanded to the superior court to conduct that independent review. James v. State, — P.3d — (Alaska Ct. App. Feb. 25, 2020).

Release of person accused of unclassified felony on unsecured appearance bond. —

Superior court judge had authority to release defendant, who was accused of sexual abuse of a minor in the first degree, which is an unclassified felony, on an unsecured appearance bond. State v. Thompson, 784 P.2d 249 (Alaska Ct. App. 1989).

Trial judges have wide latitude in imposing suitable conditions for prehearing release, other than the denial of bail. Martin v. State, 517 P.2d 1389 (Alaska 1974).

Although the trial court may not deny bail to an accused, the trial judge can consider danger to the community as a factor in assessing the amount of bail or fixing the terms of a conditional release. Martin v. State, 517 P.2d 1389 (Alaska 1974).

Remand required for further findings. —

On remand, trial court was ordered to reconsider bail for defendant as it could not be discerned from the record why the trial court believed that bail in amounts totaling $ 1,300,000 was the least restrictive bail necessary in light of the otherwise structured and restrictive supervision plan in place; it also did not appear that the trial court meaningfully integrated the consideration of defendant's ability to pay. Pisano v. State, — P.3d — (Alaska Ct. App. May 24, 2018).

Stated in

Francis-Fields v. State, — P.3d — (Alaska Ct. App. Dec. 17, 2020).

Cited in

Thomas v. State, — P.3d — (Alaska Ct. App. Apr. 9, 2021).

Sec. 12.30.016. Release before trial in certain cases.

  1. A judicial officer may impose, in addition to those required or authorized under AS 12.30.011 , conditions of release for offenses described in this section, if necessary to reasonably assure the person’s appearance or the safety of the victim, other persons, or the community.
  2. In a prosecution charging a violation of AS 04.11.010 , 04.11.499 , AS 28.35.030 , or 28.35.032 , a judicial officer may order the person
    1. to refrain from
      1. consuming alcoholic beverages; or
      2. possessing on the person, in the person’s residence, or in any vehicle or other property over which the person has control, alcoholic beverages;
    2. to submit to a search without a warrant of the person, the person’s personal property, the person’s residence, or any vehicle or other property over which the person has control, for the presence of alcoholic beverages by a peace officer or pretrial services officer who has reasonable suspicion that the person is violating the conditions of the person’s release by possessing alcoholic beverages;
    3. to submit to a breath test when requested by a law enforcement officer or pretrial services officer;
    4. to provide a sample for a urinalysis or blood test when requested by a law enforcement officer or pretrial services officer;
    5. to take a drug or combination of drugs intended to prevent substance abuse;
    6. to follow any treatment plan imposed by the court under AS 28.35.028 ;
    7. to comply with a program established under AS 47.38.020 .
  3. In a prosecution charging a violation of AS 11.71 or AS 11.73, a judicial officer may order the person
    1. to refrain from
      1. consuming a controlled substance; or
      2. possessing on the person, in the person’s residence, or in any vehicle or other property over which the person has control, a controlled substance or drug paraphernalia;
    2. to submit to a search without a warrant of the person, the person’s personal property, the person’s residence, or any vehicle or other property over which the person has control, for the presence of a controlled substance or drug paraphernalia by a peace officer or pretrial services officer who has reasonable suspicion that the person is violating the terms of the person’s release by possessing controlled substances or drug paraphernalia;
    3. to enroll in a random drug testing program, at the person’s expense, with testing to occur not less than once a week, or to submit to random drug testing by the pretrial services office in the Department of Corrections to detect the presence of a controlled substance, with the results being submitted to the court and the prosecuting authority;
    4. to refrain from entering or remaining in a place where a controlled substance is being used, manufactured, grown, or distributed;
    5. to refrain from being physically present at, within a two-block area of, or within a designated area near, the location where the alleged offense occurred or at other designated places, unless the person actually resides within that area;
    6. to refrain from the use or possession of an inhalant; or
    7. to comply with a program established under AS 47.38.020 .
  4. [Repealed, § 179 ch 36 SLA 2016.]
  5. In a prosecution charging the crime of stalking that is not a crime involving domestic violence, a judicial officer may order the person to
    1. follow the provisions of any protective order to which the person is respondent;
    2. refrain from contacting, in any manner, including by telephone or electronic communication, the victim;
    3. engage in counseling; if available in the community, the judicial officer shall require that counseling ordered include counseling about alternatives to aggressive behavior;
    4. participate in a monitoring program with a global positioning device or similar technological means that meets guidelines for a monitoring program adopted by the Department of Corrections in consultation with the Department of Public Safety.
  6. In a prosecution charging a crime under AS 11.41.410 — 11.41.458 , a judicial officer
    1. may order the person to have no contact with the victim except as specifically allowed by the court;
    2. may order the person to reside in a place where the person is not likely to come into contact with the victim of the offense;
    3. may order the person to have no contact with any person under 18 years of age except in the normal course of business in a public place;
    4. shall assure that the victim and the parent or guardian of a minor victim have been notified by a law enforcement agency or the prosecuting authority of a hearing where release is being considered, or that a reasonable effort at notification has been made; and
    5. shall solicit comments from the victim or a parent or guardian of the minor victim who is present and wishes to comment, and consider those comments before making a decision concerning the release of the person.

History. (§ 5 ch 19 SLA 2010; am § 12 ch 43 SLA 2013; am §§ 21, 22 ch 83 SLA 2014; am §§ 60, 61, 179 ch 36 SLA 2016)

Cross references. —

For governor’s transmittal letter for ch. 43, SLA 2013 (SB 22), see 2013 Senate Journal 38 — 39.

For provision relating to the applicability of the 2016 amendments to this section, see sec. 185(o)(6) and (7), ch. 36, SLA 2016, in the 2016 Temporary and Special Acts.

Effect of amendments. —

The 2013 amendment, effective July 1, 2013, added (e)(4), and made a stylistic change.

The 2014 amendment, effective July 17, 2014, added (b)(7); added (c)(7), and made related changes.

The 2016 amendment, effective January 1, 2018, in (b)(2) — (4) and (c)(2), inserted “or pretrial services officer” following “officer”; in (c)(3), inserted “with testing to occur not less than once a week, or to submit to random drug testing by the pretrial services office in the Department of Corrections” preceding “to detect” and deleted “with testing to occur not less than once a week, and”; repealed (d) effective July 12, 2016.

Effective dates. —

Section 32, ch. 19, SLA 2010 makes this section effective July 1, 2010.

Editor's notes. —

Under § 31(c), ch. 19, SLA 2010, this section applies “to bail proceedings occurring on or after July 1, 2010, for offenses occurring on or after July 1, 2010.”

Under sec. 46(a), ch. 43, SLA 2013, the 2013 changes to (e) of this section apply to offenses committed on or after July 1, 2013.

Although the 2014 amendments were to have taken effect July 1, 2014 under Sec. 42, ch. 83, SLA 2014, the Governor did not sign the bill until July 16, 2014, and so the actual effective date of the 2014 amendments was July 17, 2014 under AS 01.10.070(d) .

Under sec. 36(a), ch. 83, SLA 2014, subsections (b) and (c) as amended by secs. 21 and 22, ch. 83, SLA 2014, apply to offenses occurring on or after July 17, 2014.

Notes to Decisions

But trial judge may consider danger to community in assessing amount of bail. —

Although he may not deny bail to an accused, prior to conviction, the trial judge can consider danger to the community as a factor in assessing the amount of bail or fixing the terms of a conditional release. He is in a far better position than an appellate court to assess the evidence and to determine, in the first instance, what alternatives are available, and the amount of bail that should be required. Gilbert v. State, 540 P.2d 485 (Alaska 1975) (decided under former AS 12.30.010 ).

Sec. 12.30.020. Release before trial. [Repealed, § 30 ch 19 SLA 2010.]

Sec. 12.30.021. Third-party custodians.

  1. In addition to other conditions imposed under AS 12.30.011 or 12.30.016 , a judicial officer may appoint a third-party custodian if the officer finds that the appointment will, singly or in combination with other conditions, reasonably ensure the person’s appearance and the safety of the victim, other persons, and the community.
  2. A judicial officer may appoint an individual as a third-party custodian if the proposed custodian
    1. provides information to the judicial officer about the proposed custodian’s residence, occupation, ties to the community, and relationship with the person, and provides any other information requested by the judicial officer;
    2. is physically able to perform the duties of custodian of the person;
    3. personally, by telephone, or by other technology approved by the court, appears in court with the person and acknowledges to the judicial officer orally and in writing that the proposed custodian
      1. understands the duties of custodian and agrees to perform them; the proposed custodian must specifically agree to immediately report in accordance with the terms of the order if the person released has violated a condition of release; and
      2. understands that failure to perform those duties may result in the custodian’s being held criminally liable under AS 09.50.010 or AS 11.56.758 .
  3. A judicial officer may not appoint a person as a third-party custodian if
    1. the proposed custodian is acting as a third-party custodian for another person;
    2. the proposed custodian has been unconditionally discharged within the previous five years from a felony, a crime under AS 11.41, or a similar crime in this or another jurisdiction;
    3. criminal charges are pending in this state or another jurisdiction against the proposed custodian;
    4. the proposed custodian is on probation in this state or another jurisdiction for an offense;
    5. the proposed custodian may be called as a witness in the prosecution of the person;
    6. the proposed custodian resides out of state; however, a nonresident may serve as a custodian if the nonresident resides in the state while serving as custodian.

History. (§ 6 ch 19 SLA 2010; am §§ 62, 63 ch 36 SLA 2016; am §§ 60, 61 ch 4 FSSLA 2019)

Cross references. —

For provision relating to the applicability of the 2016 amendments to this section, see sec. 185(o)(8) and (9), ch. 36, SLA 2016, in the 2016 Temporary and Special Acts.

Effect of amendments. —

The 2016 amendment, effective January 1, 2018, in (a), inserted “, on the record,” following “officer finds”; added (1), (2) and the first phrase of (3); deleted “the appointment will, singly or in combination with other conditions,” preceding “reasonably”; substituted “ensure” for “assure” in the last phrase of the subsection; in (c)(5), inserted “there is a reasonable probability that the state will call” preceding “the proposed custodian” and deleted “may be called”.

The 2019 amendment, effective July 9, 2019, rewrote (a), which read, “(a) In addition to other conditions imposed under AS 12.30.011 or 12.30.016 , a judicial officer may appoint a third-party custodian if the officer finds, on the record, that

“(1) pretrial supervision under AS 33.07 is not available in the person’s location;

“(2) no secured appearance or performance bonds have been ordered; and

“(3) no other conditions of release or combination of conditions can reasonably ensure the person’s appearance and the safety of the victim, other persons, and the community.”; in (c), rewrote (2), which read, “the proposed custodian has been convicted in the previous three years of a crime under AS 11.41 or a similar crime in this or another jurisdiction;” and rewrote (5), which read, there is a reasonable probability that the state will call the proposed custodian as a witness in the prosecution of the person;”.

Effective dates. —

Section 32, ch. 19, SLA 2010 makes this section effective July 1, 2010.

Editor's notes. —

Under § 31(c), ch. 19, SLA 2010, this section applies “to bail proceedings occurring on or after July 1, 2010, for offenses occurring on or after July 1, 2010.”

Section 142(a), ch. 4, FSSLA 2019, provides that the 2019 amendments of (a) and (c) of this section apply “to offenses committed on or after July 9, 2019.”

Secs. 12.30.023, 12.30.025. Release before trial in cases involving controlled substances or alcohol; release before trial in cases involving stalking. [Repealed, § 30 ch 19 SLA 2010.]

Sec. 12.30.027. Release in domestic violence cases.

  1. Before ordering release before or after trial, or pending appeal, of a person charged with or convicted of a crime involving domestic violence, the judicial officer shall consider the safety of the victim or other household member. To protect the victim, household member, other persons, and the community and to reasonably ensure the person’s appearance, the judicial officer
    1. shall impose conditions required under AS 12.30.011 ;
    2. may impose any of the conditions authorized under AS 12.30.011 ;
    3. may impose any of the provisions of AS 18.66.100(c)(1) — (7) and (11);
    4. may order the person to participate in a monitoring program with a global positioning device or similar technological means that meets guidelines for a monitoring program adopted by the Department of Corrections in consultation with the Department of Public Safety; and
    5. may impose any other condition necessary to protect the victim, household member, other persons, and the community, and to ensure the appearance of the person in court, including ordering the person to refrain from the consumption of alcohol.
  2. A judicial officer may not order or permit a person released under (a) of this section to return to the residence or place of employment of the victim or the residence or place of employment of a petitioner who has a protective order directed to the person and issued, filed, or recognized under AS 18.66.100 — 18.66.180 unless
    1. 20 days have elapsed following the date the person was arrested;
    2. the victim or petitioner consents to the person’s return to the residence or place of employment;
    3. the person does not have a prior conviction for an offense under AS 11.41 that is a crime involving domestic violence; and
    4. the court finds by clear and convincing evidence that the return to the residence or place of employment does not pose a danger to the victim or petitioner.
  3. If the court imposes conditions of release under (a) of this section, it shall
    1. issue a written order specifying the conditions of release;
    2. provide a copy of the order to the person arrested or charged; and
    3. immediately distribute a copy of the order to the law enforcement agency that arrested the person.
  4. When a person is released from custody under (a) of this section,
    1. from a correctional facility, the correctional facility shall notify the prosecuting authority and the prosecuting authority shall make reasonable efforts to immediately notify the alleged victim of the release, and to furnish the alleged victim with a copy of the order setting any conditions of release;
    2. from other than a correctional facility, the arresting authority shall make reasonable efforts to immediately notify the alleged victim of the release, and to furnish the alleged victim with a copy of the order setting any conditions of release.
  5. A person arrested for a crime involving domestic violence or for violation of a condition of release in connection with a crime involving domestic violence may not be released from custody until the person has appeared in person before a judicial officer or telephonically for arraignment.
  6. A person may not bring a civil action for damages for a failure to comply with the provisions of this section.
  7. [Repealed, § 30 ch 19 SLA 2010.]

History. (§ 11 ch 64 SLA 1996; am §§ 7, 8, 30 ch 19 SLA 2010; am §§ 13, 14 ch 43 SLA 2013; am § 7 ch 13 SLA 2017)

Cross references. —

For governor’s transmittal letter for ch. 43, SLA 2013 (SB 22), see 2013 Senate Journal 38 — 39.

Effect of amendments. —

The 2010 amendment, effective July 1, 2010, in (a), substituted “judicial officer” for “court”, substituted “community” for “public” in two places, added “other persons” following “household member” in two places, substituted “judicial officer shall impose conditions required under AS 12.30.11, and” for “court” following “assure the person’s appearance, the”, substituted “AS 12.30.011 ” for “AS 12.30.020 ” following “conditions authorized under”, deleted “bail and” following “may impose”, deleted “alleged” preceding “victim” in three places; in (b), in the introductory language, substituted “judicial officer” for “court”, added “or place of employment” twice following “the residence”, added “unless” following “AS 18.66.100 — 18.66.180 ”, and added (b)(1) through (b)(4); and repealed (g).

The 2013 amendment, effective July 1, 2013, in (a), substituted “ensure” for “assure” in the second sentence, inserted “may impose” at the beginning of (a)(3) and (a)(5), added (a)(4), and made stylistic changes; in (e), inserted “or for violation of a condition of release in connection with a crime involving domestic violence” following “A person arrested for a crime involving domestic violence”.

The 2017 amendment, effective September 17, 2017, in (b), near the end of the introductory language, substituted “issued, filed, or recognized” for “issued or filed”.

Editor’s notes. —

Under § 31(e), ch. 19, SLA 2010, the 2010 amendments to (a) and (b) of this section “apply to bail proceedings occurring on or after July 1, 2010, for offenses occurring before, on, or after July 1, 2010.”

Under sec. 46(a), ch. 43, SLA 2013, the 2013 changes to (a) and (e) of this section apply to offenses committed on or after July 1, 2013.

Notes to Decisions

Construction. —

The legislature intended to restrict courts from releasing defendants charged with or convicted of a crime of domestic violence to the residence of the alleged victim, not only to the residence of a petitioner who had obtained a protective order. State v. Roberts, 999 P.2d 151 (Alaska Ct. App. 2000).

Proper consideration by court. —

Given defendant's prior violation of the court order not to contact his girlfriend, her significant fear of him, and the circumstances of his criminal history, including a prior conviction for assaulting the girlfriend, the trial court reasonably found that the in-person supervision and accountability that a third-party custodian provided was necessary in this case, no abuse of discretion was found, and his bail was not excessive. Redfox v. State, — P.3d — (Alaska Ct. App. Apr. 1, 2021) (memorandum decision).

Subsection (b) unconstitutional. —

Subsection (b) of this section violates the equal protection provision of Alaska Const. art. I, § 1 because it unduly restricts the liberty interests of an accused, who is not yet convicted, by prohibiting the accused’s return to the family residence: The accused retains a liberty interest, and there are less restrictive alternatives available to protect alleged domestic violence victims, such as the alternatives in AS 18.66.100 . Williams v. State, 151 P.3d 460 (Alaska Ct. App. 2006).

Subsection (b) of this section is unconstitutional in that it deprived an important liberty interest of a husband, accused of assaulting his wife and still awaiting trial after more than two years, by prohibiting his return to the family residence. Williams v. State, 151 P.3d 460 (Alaska Ct. App. 2006).

Legislative intent reflected. —

Crime victim did not have standing to appeal her husband’s sentence for domestic violence because, although judges must consider the interests of the public and crime victims in domestic violence cases before making certain decisions, crime victims are not parties to the criminal prosecution, nor did the legislature intend to have crime victims file appeals whenever they are dissatisfied with a judge’s weighing of their interests. Cooper v. Dist. Court, 133 P.3d 692 (Alaska Ct. App. 2006).

Assault in the third degree. —

A conviction for assault in the third degree was a crime involving domestic violence pursuant to this section. State v. Roberts, 999 P.2d 151 (Alaska Ct. App. 2000).

Stated in

Vickers v. State, 175 P.3d 1280 (Alaska Ct. App. 2008).

Cited in

Prentzel v. State, 169 P.3d 573 (Alaska 2007).

Sec. 12.30.029. Release in sexual abuse and sexual assault cases. [Repealed, § 30 ch 19 SLA 2010.]

Sec. 12.30.030. Appeal from conditions of release.

  1. If a person remains in custody after a review provided for in AS 12.30.006(c) or (d), an appeal may be taken to the court having appellate jurisdiction over the court imposing the conditions. The appellate court shall affirm the order unless it finds that the lower court abused its discretion.
  2. If the appellate court finds that the lower court abused its discretion, the appellate court may modify the order, remand the matter for further proceedings, or remand the matter directing entry of the appropriate order, including release under AS 12.30.011(a) . The appeal shall be determined promptly.

History. (Sec. 3.01 ch 34 SLA 1962; am § 1 ch 20 SLA 1966; am § 12 ch 69 SLA 1970; am § 12 ch 21 SLA 1991; am § 2 ch 65 SLA 2005; am § 9 ch 19 SLA 2010)

Effect of amendments. —

The 2010 amendment, effective July 1, 2010, repealed and reenacted the section.

Effective dates. —

Under § 31(c), ch. 19, SLA 2010, the provisions of the 2010 repeal and reenactment of this section apply “to bail proceedings occurring on or after July 1, 2010, for offenses occurring on or after July 1, 2010.”

Notes to Decisions

Many of the cases cited in the notes below were decided under former AS 12.30.010 .

Alaska’s Bail Reform Act provides for expeditious review of bail determinations. Carman v. State, 564 P.2d 361 (Alaska 1977).

The need for rapid review of bail orders is reflected in this section. Martin v. State, 517 P.2d 1389 (Alaska 1974).

Bail amount constituted abuse of discretion.. —

Monetary amount imposed for bail constituted an abuse of discretion because the superior court approved a highly restrictive bail release plan with electronic monitoring, house arrest, and partial third-party custodians; appellant agreed to augment that plan with a $10,000 unsecured appearance bond and a $3,000 cash-only performance bond; it was not clear why imposing an additional $17,000 beyond what appellant's family had the ability to pay would make the community any safer or her bail plan materially more robust; and the superior court was required to impose the least restrictive bail conditions that would reasonably ensure appellant's appearance and the safety of the community. Francis v. State, — P.3d — (Alaska Ct. App. Jan. 15, 2021).

But trial judge may consider danger to community in assessing amount of bail. —

Although he may not deny bail to an accused, prior to conviction, the trial judge can consider danger to the community as a factor in assessing the amount of bail or fixing the terms of a conditional release. He is in a far better position than an appellate court to assess the evidence and to determine, in the first instance, what alternatives are available, and the amount of bail that should be required. Gilbert v. State, 540 P.2d 485 (Alaska 1975) (decided under former AS 12.30.010 ).

The supreme court has implemented this section by the adoption of Appellate Rule 206 and Appellate Rule 207. Griffith v. State, 641 P.2d 228 (Alaska Ct. App. 1982).

Applied in

Gilbert v. State, 540 P.2d 485 (Alaska 1975); A.M. v. State, 653 P.2d 346 (Alaska Ct. App. 1982).

Quoted in

Stiegele v. State, 685 P.2d 1255 (Alaska Ct. App. 1984); Pisano v. State, — P.3d — (Alaska Ct. App. Sept. 23, 2019).

Cited in

Pisano v. State, — P.3d — (Alaska Ct. App. Jan. 31, 2020); Vaneyck v. State, — P.3d — (Alaska Ct. App. Oct. 9, 2018); Pisano v. State, — P.3d — (Alaska Ct. App. May 24, 2018).

Sec. 12.30.031. Temporary release.

  1. A person, either before trial or after conviction, who is detained under this chapter may be released temporarily if
    1. the person is being held in connection with a misdemeanor or class B or C felony;
    2. the release is requested because of the
      1. death of an immediate family member of the person;
      2. birth of the person’s child if the defendant executes an affidavit of paternity before the release;
      3. person’s need for a mental health or substance abuse assessment that the court finds cannot be accommodated in the facility or telephonically; or
      4. person’s need for a medical or dental examination required for acceptance into a residential treatment facility; and
    3. the court solicits information from the Department of Corrections regarding the defendant’s conduct while incarcerated and considers that information when making a decision under this subsection.
  2. If a court orders temporary release of a person under (a) of this section, the court shall order the person to appear in court during normal business hours at the end of the period of temporary release and before the person is returned to a correctional facility.

History. (§ 10 ch 19 SLA 2010)

Effective dates. —

Section 32, ch. 19, SLA 2010 makes this section effective July 1, 2010.

Editor’s notes. —

Under § 31(c), ch. 19, SLA 2010, this section applies “to bail proceedings occurring on or after July 1, 2010, for offenses occurring on or after July 1, 2010.”

Sec. 12.30.035. Release pending appeal by state.

If the state appeals an order dismissing an indictment, information, or complaint, or granting a new trial after verdict or judgment, the court shall treat the defendant in accordance with the provisions governing pretrial release under this chapter.

History. (§ 13 ch 63 SLA 1997)

Sec. 12.30.040. Release before sentence; release after conviction.

  1. Except as provided in (b) of this section, a person who has been convicted of an offense and is awaiting sentence or who has filed an appeal may be released under the provisions of this chapter if the person establishes, by clear and convincing evidence, that the person can be released under conditions that will reasonably assure the appearance of the person and the safety of the victim, other persons, and the community.
  2. A person may not be released under (a) of this section if the person has been convicted of an offense that is
    1. an unclassified or class A felony;
    2. a sexual felony;
    3. a class B felony if the person has been convicted within the previous 10 years of a felony committed in this state or a similar offense committed in another jurisdiction; or
    4. a felony in violation of AS 11.41, and the person has been found guilty but mentally ill.
  3. A person who has been convicted of an offense and who has filed an application for post-conviction relief may not be released under this section until the court enters an order vacating all convictions against the person. A person who has prevailed in an application for post-conviction relief may seek release before trial in accordance with the provisions of this chapter.

History. (Sec. 3.02 ch 34 SLA 1962; am § 1 ch 20 SLA 1966; am § 3 ch 24 SLA 1966; am § 3 ch 39 SLA 1974; am § 36 ch 102 SLA 1980; am § 15 ch 45 SLA 1982; am § 42 ch 6 SLA 1984; am § 2 ch 50 SLA 1995; am § 5 ch 79 SLA 1995; am § 14 ch 63 SLA 1997; am § 2 ch 95 SLA 2000; am § 11 ch 19 SLA 2010)

Effect of amendments. —

The 2010 amendment, effective July 1, 2010, repealed and reenacted the section.

Editor’s notes. —

Under § 31(c), ch. 19, SLA 2010, the provisions of the 2010 repeal and reenactment of this section apply “to bail proceedings occurring on or after July 1, 2010, for offenses occurring on or after July 1, 2010.”

Notes to Decisions

Application of section is limited. —

This section, which provides for release after trial, is limited in application to convicted persons awaiting sentence or whose appeal is pending. Martin v. State, 517 P.2d 1389 (Alaska 1974).

Application of Alaska Constitution bail clause. —

The bail clause of the Alaska Constitution does not apply after the conviction of a person accused of a crime. State v. Wassillie, 606 P.2d 1279 (Alaska 1980).

Criminal defendants are not guaranteed the right to post-conviction bail by either the Eighth Amendment to the United States Constitution or Article I, Section 12 of the Alaska Constitution.Hosier v. State, 976 P.2d 869 (Alaska Ct. App. 1999).

Factors in deciding whether to remand to custody. —

In making the determination “that no one or more conditions of release will reasonably assure the appearance of the person as required or prevent the person from posing a danger” to other persons and the community, the trial court can consider the facts of the crime of which the defendant was convicted and the likely sentence which he will receive in determining the risk of flight and violence which he presents. Muzzana v. State, 653 P.2d 658 (Alaska Ct. App. 1982).

Where the trial court did not make the findings required by subsection (a) of this section as a prerequisite to denying bail after conviction, the court of appeals reversed the decision and remanded for further findings. Muzzana v. State, 653 P.2d 658 (Alaska Ct. App. 1982).

Power of trial court to grant bail in derogation of subsection (b). —

Although there is an inherent power in the trial courts to grant bail where no statute or constitutional provision expressly authorizes or prohibits it, since the legislature has here specifically forbidden bail to those convicted of unclassified felonies and class A felonies and the supreme court has enacted a rule which the court of appeals has construed to be consistent with that legislative action, the trial court has no inherent authority to grant bail in derogation of subsection (b). Stiegele v. State, 685 P.2d 1255 (Alaska Ct. App. 1984).

When a defendant asks a trial court to exercise its common-law authority to grant bail release during a sentence appeal, the court must not release the defendant on bail if that same defendant would be barred under subsection (b) from obtaining bail release during a merit appeal. Hosier v. State, 937 P.2d 1360 (Alaska Ct. App. 1998).

Applicability of 1982 amendment. —

Provision of subsection (b) that if a person has been convicted of an offense which is an unclassified felony or a class A felony, the person may not be released on bail either before sentencing or pending appeal, does not apply to defendants whose convictions occurred before its effective date of January 1, 1983, and it was error to revoke defendant’s bail on the basis of that provision where defendant had been convicted prior to January 1, 1983. Kwallek v. State, 658 P.2d 794 (Alaska Ct. App. 1983).

The 1982 amendment of subsection (b), effective January 1, 1983, did not apply to defendant arrested prior to January 1, 1983, but convicted after that date. Parker v. State, 667 P.2d 1272 (Alaska Ct. App. 1983).

Applicability of 2010 amendment. —

Because the offense occurred prior to the legislature’s amendment to this section which prohibited the court from releasing a defendant convicted of “a sexual felony,” that amendment did not apply to defendant. Olsen v. State, — P.3d — (Alaska Ct. App. Feb. 13, 2013) (memorandum decision).

No conflict exists between subsection (b) and Crim. R. 41, which provides that a defendant in a criminal proceeding is entitled to bail pursuant to AS 12.30.010 — 12.30.080 , since Crim. R. 41 adopted by reference subsequent amendments, including the 1982 amendments to subsection (b). Stiegele v. State, 685 P.2d 1255 (Alaska Ct. App. 1984).

Constitutionality of subsection (b). —

For constitutionality of subsection (b) prior to 1982 amendment, see Griffith v. State, 641 P.2d 228 (Alaska Ct. App. 1982). See also Walker v. State, 652 P.2d 88 (Alaska 1982) and Muzzana v. State, 653 P.2d 658 (Alaska Ct. App. 1982).

Subsection (b), which denies release or bail before sentencing or pending appeal to persons convicted of an unclassified or class A felony, is not an unconstitutional invasion of the supreme court’s rule-making power since it does not conflict with any supreme court rule. Stiegele v. State, 685 P.2d 1255 (Alaska Ct. App. 1984).

This section does not deny substantive due process or equal protection rights since the average member of the class comprised of those convicted of unclassified felonies and class A felonies will serve a longer sentence and, therefore, present a greater risk of flight than the average offender convicted of a class B felony or a lesser offense and, in addition, it would not have been unreasonable for the legislature to conclude that the average unclassified or class A offender is more dangerous than the average class B or C offender; therefore, a legitimate basis exists for the legislative classification distinguishing unclassified and class A felonies from class B felonies. Stiegele v. State, 685 P.2d 1255 (Alaska Ct. App. 1984).

Superior court properly denied defendant's request for a bail hearing because he had a prior felony conviction within 10 years of his current conviction, the legislative history demonstrated that the legislature's purpose in revising the bail state in 2010 was to protect victims and the public from defendants who demonstrated a certain level of dangerousness, while protecting the right of other less dangerous offenders to bail release, the legislature intended the 10-year look back to be calculated from the date of the defendant's conviction of a class B felony, and, while the line the legislature drew was to some extent arbitrary, it did not render the statute unconstitutionally arbitrary. Bowlin v. State, 366 P.3d 534 (Alaska Ct. App. 2016).

Bail pending appeal. —

Defendant conceded that he was convicted within the previous 10 years of a felony committed in Alaska, under former AS 11.71.040(a)(2) . Accordingly, AS 12.30.040(b)(3) rendered defendant ineligible for bail pending appeal. McGraw v. State, — P.3d — (Alaska Ct. App. Oct. 29, 2020).

Remand for reconsideration.—

Superior court, in denying defendant's request for bail pending a sentence appeal, stated that it was not convinced that the proposed bail conditions ensured the safety of the community, but did not provide any explanation for this finding, nor acknowledge that the applicable legal standard was “reasonably assure” rather than “ensure.” Because the appellate court could not determine whether the court applied the proper legal standard to defendant's request, remand for reconsideration of the request was remanded with appropriate findings. Shepersky v. State, 401 P.3d 990 (Alaska Ct. App. 2017).

In an appeal of a superior court's order denying defendant bail pending a sentence appeal, the appellate court concluded that remand for reconsideration was required. The superior court's written order did not acknowledge the appellate court's decision in Shepersky v. State , nor did the superior court apply the legal standard the appellate court announced in that decision. Skupa v. State, — P.3d — (Alaska Ct. App. Apr. 29, 2019).

Applied in

Nighswonger v. State, 680 P.2d 105 (Alaska Ct. App. 1984).

Quoted in

Dobrova v. State, 674 P.2d 834 (Alaska Ct. App. 1984); Burt v. State, 823 P.2d 14 (Alaska Ct. App. 1991); State v. Shetters, 246 P.3d 338 (Alaska Ct. App. 2010).

Stated in

Walker v. Huston, 689 F.2d 901 (9th Cir. Alaska 1982).

Cited in

Kelly v. State, 663 P.2d 967 (Alaska Ct. App. 1983); Dyer v. State, 666 P.2d 438 (Alaska Ct. App. 1983); State v. Judson, 45 P.3d 329 (Alaska Ct. App. 2002); Butts v. State, 53 P.3d 609 (Alaska Ct. App. 2002); Michael v. State, 115 P.3d 517 (Alaska 2005).

Sec. 12.30.050. Release of material witnesses.

  1. If the prosecution or defense establishes by affidavit or other evidence that the testimony of a person is material in a criminal proceeding, and that it may be impracticable to secure the presence of the person by subpoena, a judicial officer may order the arrest of the person and consider the release or detention of the person under the provisions of AS 12.30.011 .
  2. A material witness may not be detained because of inability to comply with any condition of release if the testimony of the witness can adequately be secured by deposition, unless further detention is necessary to prevent a failure of justice.
  3. Release of a material witness under (a) of this section may be delayed for a reasonable period of time for the deposition of the witness to be taken.

History. (§ 1 ch 20 SLA 1966; am § 12 ch 19 SLA 2010)

Effect of amendments. —

The 2010 amendment, effective July 1, 2010, rewrote the section.

Editor’s notes. —

Under § 31(d), ch. 19, SLA 2010, the provisions of the 2010 repeal and reenactment of this section apply “to bail proceedings occurring on or after July 1, 2010, for offenses occurring before, on, or after July 1, 2010.”

Notes to Decisions

Cited in

In re Curda, 49 P.3d 255 (Alaska 2002).

Sec. 12.30.055. Persons appearing on petition to revoke.

  1. A person who is in custody in connection with a petition to revoke probation for a felony crime against a person under AS 11.41 does not have a right to be released under this chapter. A judicial officer may, however, release the person under the provisions of this chapter, if it is established by a preponderance of the evidence that the proposed release conditions will reasonably assure the appearance of the person and the safety of the victim, other persons, and the community.
  2. [Repealed, § 138 ch 4 FSSLA 2019.]

History. (§ 13 ch 19 SLA 2010; am § 64 ch 36 SLA 2016; am § 138 ch 4 FSSLA 2019)

Cross references. —

For provision relating to the applicability of the 2016 amendments to subsection (b), see sec. 185(e), ch. 36, SLA 2016, in the 2016 Temporary and Special Acts.

Effect of amendments. —

The 2016 amendment, effective January 1, 2017, added (b).

The 2019 amendment, effective July 1, 2019, repealed (b).

Effective dates. —

Section 32, ch. 19, SLA 2010 makes this section effective July 1, 2010.

Editor’s notes. —

Under § 31(c), ch. 19, SLA 2010, this section applies “to bail proceedings occurring on or after July 1, 2010, for offenses occurring on or after July 1, 2010.”

Sec. 12.30.060. Penalties for failure to appear. [Repealed, § 30 ch 19 SLA 2010.]

Sec. 12.30.070. Contempt.

Nothing in this chapter shall prevent a court from exercising its power to punish for contempt.

History. (§ 1 ch 20 SLA 1966)

Notes to Decisions

Violations punishable as contempt. —

This section generally characterizes violations of conditions of release as conduct punishable as contempt. Prentzel v. State, 169 P.3d 573 (Alaska 2007).

Stated in

White v. State, 514 P.2d 814 (Alaska 1973).

Collateral references. —

Bail jumping after conviction, failure to surrender or to appear for sentencing and the like as contempt. 34 ALR2d 1100.

Sec. 12.30.075. Forfeited cash and other securities.

  1. Cash or other security posted by a person under AS 12.30.011 that would otherwise be forfeited shall be held by the court in trust for the benefit of the victim if, within 30 days after an order of the court establishing a failure to appear or a violation of conditions of release, the prosecuting authority gives notice that restitution may be requested as part of the sentence if the person is convicted.
  2. If a restitution order is not entered, the court shall order the cash or other security being held in trust to be forfeited to the state.
  3. If a restitution order is entered, the court shall apply the cash or other security to the satisfaction of the order. If the cash or other security held in trust is applied to an order of restitution, the court shall issue a separate judgment against the defendant in favor of the state in the amount that would have otherwise been forfeited, and any cash or other security remaining after payment of the restitution shall be applied against that judgment. Any cash or other security remaining shall be forfeited to the state.

History. (§ 6 ch 92 SLA 2001; am § 14 ch 19 SLA 2010)

Effect of amendments. —

The 2010 amendment, effective July 1, 2010, in (a), substituted “person under AS 12.30.011 ” for “defendant under AS 12.30.020 ” and “person” for “defendant” following “part of the sentence if the”.

Editor’s notes. —

Under § 31(e), ch. 19, SLA 2010, the 2010 amendments to (a) of this section “apply to bail proceedings occurring on or after July 1, 2010, for offenses occurring before, on, or after July 1, 2010.”

Notes to Decisions

Forfeiture of bail money. —

Although both the criminal procedure statute and the criminal rule authorize the court to seize pledged bail money when a defendant willfully fails to appear in court, neither authorize the court to seize a defendant’s bail when he fails to comply with other conditions of release. Lonis v. State, 998 P.2d 441 (Alaska Ct. App. 2000) (decided under former AS 12.30.060 ).

Sec. 12.30.078. Conviction occurrence.

In this chapter, a conviction occurs at the time the person is found guilty, either by plea or verdict, of the offense.

History. (§ 15 ch 19 SLA 2010)

Effective dates. —

Section 32, ch. 19, SLA 2010 makes this section effective July 1, 2010.

Editor’s notes. —

Under § 31(c), ch. 19, SLA 2010, this section applies “to bail proceedings occurring on or after July 1, 2010, for offenses occurring on or after July 1, 2010.”

Sec. 12.30.080. Definitions.

In this chapter,

  1. “crime involving domestic violence” has the meaning given in AS 18.66.990 ;
  2. “judicial officer” means a person authorized to release a person pending trial, sentencing, or pending appeal;
  3. “knowingly” has the meaning given in AS 11.81.900 ;
  4. “offense” means any criminal offense;
  5. “peace officer” has the meaning given in AS 11.81.900 ;
  6. “sexual felony” has the meaning given in AS 12.55.185 ;
  7. “stalking” means a violation of AS 11.41.260 or 11.41.270 .

History. (§ 1 ch 20 SLA 1966; am § 16 ch 19 SLA 2010)

Revisor’s notes. —

Paragraphs (1) and (3) were enacted as (3) and (4); renumbered in 2010 to maintain alphabetical order.

Effect of amendments. —

The 2010 amendment, effective July 1, 2010, added definitions of “crime involving domestic violence”, “knowingly”, “peace officer”, “sexual felony”, and “stalking”.

Editor’s notes. —

Under § 31(e), ch. 19, SLA 2010, the 2010 amendments to this section “apply to bail proceedings occurring on or after July 1, 2010, for offenses occurring before, on, or after July 1, 2010.”

Chapter 35. Search and Seizure.

Cross references. —

For court rules on search warrants, see Rule 37, Alaska Rules of Criminal Procedure; for constitutional provisions, see art. I, § 14 of the Alaska Constitution.

Collateral references. —

68 Am. Jur. 2d, Searches and Seizures, § 1 et seq.

79 C.J.S., Searches and Seizures, § 1 et seq.

Sec. 12.35.010. Issuance of search warrant; extraterritorial jurisdiction.

  1. A judicial officer may issue a search warrant upon a showing of probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the thing to be seized. The court may issue a search warrant for a place or property located either in the state or outside the state.
  2. A judicial officer may issue a search warrant upon the sworn oral testimony of a person communicated by telephone or other appropriate means, or sworn affidavit submitted by facsimile machine, in accordance with AS 12.35.015 .

History. (§ 4.01 ch 34 SLA 1962; am § 13 ch 69 SLA 1970; am § 17 ch 143 SLA 1982; am § 1 ch 60 SLA 1991; am § 17 ch 75 SLA 2008)

Effect of amendments. —

The 2008 amendment, effective July 1, 2008, added the last sentence of subsection (a).

Notes to Decisions

For discussion of when an affidavit contains sufficient facts to establish probable cause for the issuance of a search warrant, see Keller v. State, 543 P.2d 1211 (Alaska 1975).

Glass warrant. —

Glass warrant ( State v. Glass, 583 P.2d 872 (Alaska 1978), requiring police to obtain judicial authorization before secretly recording a person’s private conversations) issued pursuant to an informant’s testimony that defendant confessed his involvement in a robbery and homicide was valid; the informant led police to the murder weapon. State v. Anderson, 73 P.3d 1242 (Alaska Ct. App. 2003).

Applied in

Nelson v. State, 628 P.2d 884 (Alaska 1981).

Cited in

Gregg v. Gregg, 776 P.2d 1041 (Alaska 1989).

Collateral references. —

Propriety and legality of issuing only one search warrant to search more than one place or premises occupied by same person. 31 ALR2d 864.

Sufficiency of description of automobile or other conveyance to be searched. 47 ALR2d 1444.

Interest in, or connection with, premises searched as affecting standing to attack legality of search. 78 ALR2d 246.

Lawfulness of nonconsensual search and seizure without warrant, prior to arrest. 89 ALR2d 715.

Sufficiency of showing as to time of occurrence of facts relied upon. 100 ALR2d 525.

Propriety of considering hearsay or other incompetent evidence in establishing probable cause for issuance of search warrant. 10 ALR3d 359.

Sufficiency of description, in search warrant, of apartment or room to be searched in multiple-occupancy structure. 11 ALR3d 1330.

Modern status of rule as to validity of nonconsensual search and seizure made without warrant after lawful arrest as affected by lapse of time between, or difference in places of, arrest and search. 19 ALR3d 727.

Disputation of truth of matters stated in affidavit in support of search warrant — modern cases. 24 ALR4th 1266.

Propriety in state prosecution of severance of partially valid search warrant and limitation of suppression to items seized under invalid portions of warrant. 32 ALR4th 378.

Seizure of books, documents, or other papers under search warrant not describing such items. 54 A.L.R.4th 391.

Lawfulness of search of person or personal effects under medical emergency exception to warrant requirement. 11 ALR5th 52.

Prisoner’s rights as to search and seizure under state law or constitution — post- Hudson cases. 14 ALR5th 913.

State constitutional requirements as to exclusion of evidence unlawfully seized — post- Leon cases. 19 ALR5th 470.

Search and seizure: lawfulness of demand for driver’s license, vehicle registration, or proof of insurance pursuant to police stop to assist motorist. 19 ALR5th 884.

Admissibility, in motor vehicle license suspension proceedings, of evidence obtained by unlawful search and seizure. 23 ALR5th 108.

Propriety of execution of search warrant at night time. 41 ALR5th 171.

Sufficiency of description of person to be searched. 43 ALR5th 1.

Warrantless detention of mail for investigative purposes as violative of Fourth Amendment. 115 ALR Fed. 439.

Permissibility under Fourth Amendment of detention of motorist by police, following lawful stop for traffic offense, to investigate matters not related to offense. 118 A.L.R. Fed. 567.

Sec. 12.35.015. Issuance of search warrant upon testimony communicated by telephone or other means.

  1. A judicial officer may issue a search warrant upon the sworn oral testimony of a person communicated by telephone or other appropriate means, or sworn affidavit transmitted by facsimile machine.
  2. A judicial officer shall place under oath each person whose oral testimony forms a basis of the application and each person applying for the search warrant. The judicial officer shall record the proceeding by using a voice recording device.
  3. If a facsimile search warrant cannot be transmitted to the applicant under (g) of this section, the applicant shall prepare a document to be known as a duplicate original warrant and shall read it verbatim to the judicial officer. The judicial officer shall enter, verbatim, on an original search warrant what is read to the judicial officer. The judicial officer may direct that the duplicate original search warrant be modified.
  4. Except as provided in (g) of this section, if a search warrant is issued under this section, the judicial officer shall orally authorize the applicant to sign the judicial officer’s name on the duplicate original search warrant. The judicial officer shall immediately sign the original search warrant and enter on the face of the original search warrant the exact time when the search warrant was ordered to be issued.
  5. The person who executes a search warrant issued under this section shall enter the exact time of execution on the face of the facsimile search warrant issued under (g) of this section or the duplicate original search warrant.
  6. [Repealed, § 39 ch 75 SLA 2008.]
  7. A search warrant issued by a judicial officer may be transmitted by facsimile machine to the applicant. The facsimile search warrant shall serve as an original.

History. (§ 18 ch 143 SLA 1982; am §§ 2 — 7 ch 60 SLA 1991; am § 1 ch 42 SLA 2003; am §§ 18, 39 ch 75 SLA 2008)

Cross references. —

For court rule governing the issuance of search warrants by telephone, see Rule 38.1, Alaska Rule of Criminal Procedure.

Effect of amendments. —

The 2008 amendment, effective July 1, 2008, rewrote subsection (a), in part by deleting specific required findings of probable cause, and repealed subsection (f), regarding motions to suppress warrants issued under this section.

Notes to Decisions

Purported violation of section. —

Where defendant did not claim that purported violation of this section was in bad faith, nor that absent the questioned telephonic testimony of state trooper, the warrant would be invalid, the exclusionary rule embodied in Alaska Rule of Evidence 412 was inapplicable, and evidence produced by the search was properly admitted. Burrece v. State, 976 P.2d 241 (Alaska Ct. App. 1999).

Cited in

State v. Gutman, 670 P.2d 1166 (Alaska Ct. App. 1983); Gregg v. Gregg, 776 P.2d 1041 (Alaska 1989).

Sec. 12.35.020. Grounds for issuance.

A search warrant may be issued if the judicial officer reasonably believes any of the following:

  1. that the property was stolen or embezzled;
  2. that the property was used as a means of committing a crime;
  3. that the property is in the possession of a person who intends to use it as the means of committing a crime, or in possession of another to whom the person may have delivered it for the purpose of concealing it or preventing its being discovered;
  4. that the property constitutes evidence of a particular crime or tends to show that a certain person has committed a particular crime;
  5. that either reasonable legislative or administrative standards for conducting a routine or area inspection with regard to air pollution are satisfied with respect to the particular place, dwelling, structure, premises, or vehicle, or there is reason to believe that a condition of nonconformity exists with respect to the particular place, dwelling, structure, premises, or vehicle.

History. (§ 4.02 ch 34 SLA 1962; am §§ 1, 2 ch 198 SLA 1968; am § 3 ch 86 SLA 1969; am § 14 ch 69 SLA 1970)

Notes to Decisions

Probable cause to believe that marijuana possession is illegal. —

Court might properly issue a search warrant if the state establishes probable cause to believe that the marijuana is possessed for commercial purposes, or that the amount of marijuana is in excess of the permitted quantity. State v. Crocker, 97 P.3d 93 (Alaska Ct. App. 2004).

Defendant was entitled to suppress evidence of marijuana plants seized from his home pursuant to a search warrant where the warrant application failed to establish probable cause to believe that defendant’s possession of marijuana was illegal. State v. Crocker, 97 P.3d 93 (Alaska Ct. App. 2004).

Anticipatory search warrants. —

An anticipatory search warrant, i.e., one which is based upon an affidavit showing probable cause that at some future time certain evidence will be at the location set forth in the warrant, is constitutionally permissible and not invalid for lack of present probable cause. It is not precluded by the statutory authority of paragraph (3), which requires only reasonable belief of possession of the item for issuance of the warrant, without specifying that possession must be contemporaneous with the issuance, as distinct from the execution, of the warrant. Johnson v. State, 617 P.2d 1117 (Alaska 1980).

For an anticipatory warrant to be valid, there must be probable cause to believe that the items to be seized will be at the place to be searched at the time the warrant is executed, or in other words, that the warrant will not be prematurely executed. Johnson v. State, 617 P.2d 1117 (Alaska 1980).

In anticipatory warrant situations, the magistrate should insert a direction in the search warrant making execution contingent on the happening of an event which evidences probable cause that the item to be seized is in the place to be searched, rather than directing that the warrant be executed immediately or forthwith. Johnson v. State, 617 P.2d 1117 (Alaska 1980).

Issuance of search warrant prohibited. —

Evidence that a person possesses an unspecified quantity of marijuana in his home does not, standing alone, establish probable cause to believe that the person is breaking the law. Without some additional indication of illegality, the search and seizure provision of Alaska Const. art. I, § 14 prohibits the issuance of a search warrant. State v. Crocker, 97 P.3d 93 (Alaska Ct. App. 2004).

Cited in

Braund v. State, 12 P.3d 187 (Alaska Ct. App. 2000); State v. Evans, 378 P.3d 413 (Alaska Ct. App. 2016).

Sec. 12.35.025. Seizure of property.

  1. Property described in AS 12.35.020 may be taken on a warrant from
    1. a house or other place in which it is concealed or may be found;
    2. the possession of the person by whom it was stolen, embezzled, or used in the commission of a crime;
    3. a person who is in possession of the property;
    4. the possession of a person to whom the property has been delivered for the purpose of concealing it or preventing its being discovered, or from a house or other place occupied by that person or under that person’s control.
  2. When property is seized under this chapter, the peace officer taking the property shall give to the person from whom or from whose premises the property was taken a copy of the warrant, a copy of the supporting affidavit, and a receipt for the property taken, or shall leave the copies and the receipt at the place from which the property was taken.
  3. The return of the warrant to the court shall be made promptly and shall be accompanied by a written inventory of the property taken.  The inventory shall be made in the presence of the applicant for the warrant and the person from whose possession or premises the property was taken, if they are present, or in the presence of at least one other person as a witness.
  4. The inventory required by (c) of this section shall be signed by the peace officer under penalty of perjury under AS 09.63.020 .  The judge or magistrate shall, upon request, deliver a copy of the inventory to the person from whom or from whose premises the property was taken and to the applicant for the warrant.

History. (§ 15 ch 69 SLA 1970; § 19 ch 143 SLA 1982)

Notes to Decisions

Exclusive jurisdiction over seized property. —

A search warrant is clearly more than just a means of establishing in personam jurisdiction; it also enables a court to exercise exclusive jurisdiction over the property seized pursuant to it. Johnson v. Johnson, 849 P.2d 1361 (Alaska 1993).

Cited in

Braund v. State, 12 P.3d 187 (Alaska Ct. App. 2000).

Collateral references. —

Authority to consent for another to search or seizure. 31 ALR2d 1078.

Lawfulness of seizure of property used in violation of law as prerequisite to forfeiture action or proceeding. 8 ALR3d 473.

Validity of consent to search given by one in custody of officers. 9 ALR3d 858.

Sec. 12.35.030. Showing of probable cause. [Repealed, § 16 ch 69 SLA 1970.]

Sec. 12.35.040. Authority of officer executing warrant.

In the execution or service of a search warrant, the officer has the same power and authority in all respects to break open any door or window, to use the necessary and proper means to overcome forcible resistance made to the officer, or to call any other person to the officer’s aid as the officer has in the execution or service of a warrant of arrest.

History. (§ 4.04 ch 34 SLA 1962)

Cross references. —

For authority to execute arrest warrant, see AS 12.25.

Notes to Decisions

AS 12.25.100 , in conjunction with this section, establishes the procedure for forcing entry in executing both a search warrant and an arrest warrant. Davis v. State, 525 P.2d 541 (Alaska 1974).

AS 12.25.100 and this section operate jointly to establish the procedure required for the lawful execution of a search warrant. Lockwood v. State, 591 P.2d 969 (Alaska 1979).

Civilian aid authorized. —

State troopers were authorized to enlist civilian aid in executing a warrant to electronically monitor telephone conversations with the defendant. Bohanan v. State, 992 P.2d 596 (Alaska Ct. App. 1999).

Because state troopers are not explicitly required to be physically present when civilians aid them in executing a warrant, where troopers instructed the civilian on the use of recording equipment and coached her as to the kinds of statements that would be helpful to the investigation, they were held to have supervised her participation in the execution of the warrant. Bohanan v. State, 992 P.2d 596 (Alaska Ct. App. 1999).

Standing to complain of violation. —

A person who is not present when a search warrant is executed does not have standing to complain of the state’s failure to comply with the “knock and announce” requirements of Alaska law. State v. Johnson, 716 P.2d 1006 (Alaska Ct. App. 1986).

Police substantially complied with the knock and announce requirement by announcing their identity and their intent to search while simultaneously entering defendant’s hotel room, and exigent circumstances excused further compliance where police had reason to believe that defendant was armed and that evidence might be destroyed. Hudson v. State, 792 P.2d 290 (Alaska Ct. App. 1990).

Burden of proof. —

A defendant complaining of a violation of the knock and announce statutes must make a prima facie showing that the statutes were not complied with; the state then bears the burden of persuasion to show that the requirements were met, or that exigent circumstances existed. State v. Johnson, 716 P.2d 1006 (Alaska Ct. App. 1986).

National Guard soldiers could be called by police officers to assist them in serving a search warrant. Wallace v. State, 933 P.2d 1157 (Alaska Ct. App. 1997), cert. denied, 528 U.S. 987, 120 S. Ct. 447, 145 L. Ed. 2d 364 (U.S. 1999).

Applied in

Fleener v. State, 686 P.2d 730 (Alaska Ct. App. 1984).

Quoted in

Sandland v. State, 636 P.2d 1196 (Alaska Ct. App. 1981).

Cited in

Lum v. Koles, 314 P.3d 546 (Alaska 2013).

Collateral references. —

What constitutes compliance with knock-and-announce rule in search of private premises — State cases. 85 ALR5th 1.

Sec. 12.35.050. Disposition of property taken. [Repealed, § 42 ch 143 SLA 1982. For present provisions, see AS 12.36.]

For present provisions, see AS 12.36.

For present provisions, see AS 12.36.

Sec. 12.35.060. Malicious procurement of search warrant.

A person who maliciously and without probable cause causes a search warrant to be issued and executed is guilty of a misdemeanor.

History. (§ 4.06 ch 34 SLA 1962)

Sec. 12.35.070. Search of defendant in presence of judge or magistrate.

When a person charged with a crime is believed by the judge or magistrate before whom that person is brought to have on the person a dangerous weapon, or anything that may be used as evidence of the commission of the crime, the judge or magistrate may direct the accused to be searched in the presence of the judge or magistrate, and the weapon or other thing be retained subject to the order of the judge or magistrate or the order of the court in which the defendant may be tried.

History. (§ 4.07 ch 34 SLA 1962)

Secs. 12.35.080 — 12.35.110. Disposition of stolen property. [Repealed, § 42 ch 143 SLA 1982. For present provisions, see AS 12.36.]

For present provisions, see AS 12.36.

For present provisions, see AS 12.36.

Sec. 12.35.120. Definition of search warrant.

A search warrant is an order in writing, signed by a judge or magistrate or signed at the direction of a judicial officer in accordance with AS 12.35.015 , directed to a peace officer, commanding the peace officer to search for personal property and bring it before the judge or magistrate.

History. (§ 4.01 ch 34 SLA 1962; am § 14 ch 8 SLA 1971; am § 20 ch 143 SLA 1982)

Notes to Decisions

Quoted in

Johnson v. Johnson, 849 P.2d 1361 (Alaska 1993).

Chapter 36. Disposition of Recovered or Seized Property; Preservation of Evidence.

Cross references. —

For provisions relating to abandoned property, see AS 34.45.110 — 34.45.780 .

Collateral references. —

68 Am. Jur. 2d, Searches and Seizures, §§ 301-304.

79 C.J.S., Searches and Seizures, § 276 et seq.

Article 1. Property Disposition.

Sec. 12.36.010. Property disposition.

When property not belonging to a law enforcement agency comes into the custody of the agency, the property shall be disposed of in accordance with this chapter.

History. (§ 21 ch 143 SLA 1982)

Sec. 12.36.020. Return of property.

  1. A law enforcement agency may
    1. not return property in its custody to the owner or the agent of the owner, except as provided in AS 12.36.200 , if
      1. the property is in custody in connection with a children’s court proceeding, a criminal proceeding, or an official investigation of a crime; or
      2. the property in custody is subject to forfeiture under the laws of the
        1. state; or
        2. United States, and the United States has commenced forfeiture proceedings against the property or has requested the transfer of the property for the commencement of forfeiture proceedings; and
    2. with the approval of the court, transfer the property to another state or federal law enforcement agency for forfeiture proceedings by that agency; the court having jurisdiction shall grant the approval under this paragraph if the property
      1. will be retained within the jurisdiction of the court by the agency to which the property is being transferred; or
      2. is
        1. not needed as evidence; or
        2. needed as evidence, and the property is fungible or the property’s evidentiary value can otherwise be preserved without retaining the property within the jurisdiction of the court.
  2. In a criminal proceeding or a children’s court proceeding involving the wrongful taking or damaging of property where photographs of the property are used as evidence in place of the property, the prosecuting attorney may release the property to the owner upon presentation of satisfactory proof of ownership.
  3. If wrongfully taken or damaged property is not photographed and authenticated under AS 12.45.086 and the property is used as evidence in a criminal proceeding or a children’s court proceeding, the law enforcement agency in possession of the property shall return it to the owner upon presentation of satisfactory proof of ownership within 60 days after the final disposition of the case.

History. (§ 21 ch 143 SLA 1982; am § 1 ch 129 SLA 1996; am § 1 ch 20 SLA 2010)

Revisor’s notes. —

In 1995, in subsection (c), “AS 12.45.086 ” was substituted for “AS 12.80.050 ” to reflect the 1995 renumbering of AS 12.80.050 .

Effect of amendments. —

The 2010 amendment, effective July 1, 2010, in (a), at the end of (a)(1) added “, except as provided in AS 12.36.200 ,”.

Notes to Decisions

Municipal liability for unauthorized property transfer. —

The municipal police had no authority to unilaterally transfer a criminal defendant’s money seized by a search warrant because it was within the custody and exclusive jurisdiction of the court, and the transfer of the money without court approval to a federal agency violated this section, rendering the federal agency’s forfeiture actions invalid. Consequently, the municipality was liable for the full value of the resulting conversion. Johnson v. Johnson, 849 P.2d 1361 (Alaska 1993).

Sec. 12.36.030. Disposal of unclaimed property used as evidence.

  1. Unless the property is a firearm, ammunition, or a firearm part subject to AS 18.65.340 , if property that is used as evidence in a criminal proceeding or a children’s court proceeding, including wrongfully taken or damaged property, is not claimed by the owner within one year after the final disposition of the case, the law enforcement agency having custody of the property shall dispose of it under (b) of this section.
  2. Property referenced in (a) of this section shall be disposed of by a
    1. municipal law enforcement agency in the following manner:
      1. for that part of the property that is subject to AS 34.45.110 — 34.45.780 , in accordance with AS 34.45.110 — 34.45.780 ;
      2. for that part of the property that is not subject to AS 34.45.110 — 34.45.780, by selling the property in the same manner as a sale upon execution; after paying the expenses for the preservation and sale of the property, the law enforcement agency shall dispose of the proceeds of the sale in the same manner as money collected upon a judgment;
    2. state law enforcement agency in the following manner:
      1. if the property is a firearm or ammunition, in the manner provided in AS 18.65.340 ;
      2. if the property is other than a firearm or ammunition, and the property is
        1. subject to AS 34.45.110 — 34.45.780, in accordance with AS 34.45.110 — 34.45.780;
        2. not subject to AS 34.45.110 — 34.45.780, by selling the property in the same manner as a sale upon execution; after paying the expenses for the preservation and sale of the property, the law enforcement agency shall dispose of the proceeds of the sale in the same manner as money collected upon a judgment.
  3. This section does not apply to property that comes into the custody of a law enforcement agency of a municipality if the municipality has adopted an ordinance providing for the custody and disposition of the property and if the ordinance requires that
    1. property held or collected as evidence in a children’s court proceeding, a criminal proceeding, or an official investigation of a crime is to be held until at least 30 days after final disposition of the case to which the evidence pertains; and
    2. the municipality make reasonable attempts to identify and locate the owner of the property that is unclaimed.

History. (§ 21 ch 143 SLA 1982; am § 4 ch 133 SLA 1986; am § 1 ch 13 SLA 1996; am § 2 ch 129 SLA 1996; am § 1 ch 70 SLA 2006)

Sec. 12.36.040. Disposal of property when owner unknown; exceptions.

  1. When the owner of property is unknown and the property comes into the possession of a law enforcement agency as suspected evidence of a crime but is not used in a criminal proceeding or a children’s court proceeding, or when the property comes into the possession of a law enforcement agency by other means, the property shall be held for one year. If the property is not claimed within one year of the date it comes into the possession of a law enforcement agency, the property shall be disposed of as provided in AS 12.36.030(b) .
  2. This section does not apply to property that comes into the custody of a law enforcement agency of a municipality that has adopted an ordinance providing for the custody and disposition of property that meets the requirements specified in AS 12.36.030(c) .

History. (§ 21 ch 143 SLA 1982; am § 3 ch 129 SLA 1996; am § 1 ch 26 SLA 2000)

Notes to Decisions

Quoted in

Wilson v. State, 756 P.2d 307 (Alaska Ct. App. 1988).

Sec. 12.36.045. When finder of property is considered the owner.

  1. When a private individual obtains property of another that is lost, mislaid, or delivered to the individual by mistake, the individual delivers that property to a law enforcement agency, and the true owner of the property remains unknown for a period of one year or does not claim the property within one year, the individual delivering the property shall be considered the owner of the property under this chapter if possession of the property by the individual is otherwise legal. If, after the one-year period, the private individual who delivered the property to the law enforcement agency cannot be found or does not want the property, the property shall be disposed of by the agency as if the owner is unknown.
  2. This section does not apply to property that comes into the custody of a law enforcement agency of a municipality that has adopted an ordinance providing for the custody and disposition of property that meets the requirements specified in AS 12.36.030(c) .

History. (§ 2 ch 26 SLA 2000)

Sec. 12.36.050. Remission of forfeited property.

  1. A claimant seeking remission of the claimant’s interest in a weapon ordered forfeited under AS 12.55.015(a)(9) shall prove to the court by a preponderance of evidence that the claimant
    1. has a valid interest in the weapon, acquired in good faith;
    2. did not knowingly participate in the commission of the crime in which the weapon was used; and
    3. did not know or have reasonable cause to believe that the weapon was used or would be used to commit a crime.
  2. Upon a showing that a claimant is entitled to relief under (a) of this section, the court may order that the weapon be released to the claimant.
  3. A claim may not be filed under this section more than 120 days after the entry of the last final judgment in the case in which the weapon was ordered forfeited.

History. (§ 1 ch 169 SLA 1988; am § 29 ch 50 SLA 1989)

Sec. 12.36.060. Disposal of forfeited deadly weapons.

  1. A deadly weapon, other than a firearm or ammunition, forfeited to the state under AS 12.55.015(a)(9) , unless remitted under AS 12.36.050 , shall be disposed of by the commissioner of public safety under this section. Under this subsection, the commissioner of public safety
    1. may declare a weapon surplus and transfer it to the commissioner of administration;
    2. may, if the weapon is suitable for law enforcement purposes, training, or identification, retain the weapon for use by the Department of Public Safety or transfer the weapon to the municipal law enforcement agency making the arrest that led to the forfeiture;
    3. shall destroy a weapon that is unsafe or unlawful.
  2. The commissioner of public safety may adopt regulations necessary to carry out the provisions of this section.
  3. A firearm or ammunition forfeited to the state under AS 12.55.015(a)(9) , unless remitted under AS 12.36.050 , shall be disposed of as provided in AS 18.65.340 .

History. (§ 1 ch 169 SLA 1988; am §§ 2, 3 ch 13 SLA 1996; am § 4 ch 129 SLA 1996)

Sec. 12.36.070. Return of property by hearing.

  1. A crime victim who is the owner of property not belonging to a law enforcement agency that is in the custody of the agency under this chapter may request that the office of victims’ rights request that the agency return the property to the crime victim. The request under this subsection shall be filed by the office of victims’ rights on behalf of the crime victim after the office has conducted an investigation and has concluded that the crime victim is entitled to the return of the property under the factors listed in (c) of this section.
  2. Within 10 days after receipt of a request under (a) of this section and following reasonable notice to the prosecution, defense, and other interested parties, the agency shall request a hearing before the court to determine if the property shall be released to the crime victim. If the property is being held in connection with a criminal case, the hearing shall be before the court with jurisdiction of the criminal case. If no criminal case is pending regarding the property, the hearing shall be before a district or superior court where the property is located.
  3. At the hearing, a party that objects to the return of the property shall state the reason on the record. After a hearing, the court may order the return of the property in the custody of a law enforcement agency to the crime victim if
    1. the crime victim by a preponderance of the evidence provides satisfactory proof of ownership; and
    2. the party that objects to the return of the property fails to prove by a preponderance of the evidence that the property must be retained by the agency for evidentiary purposes under the provisions of this chapter or another law.
  4. If the court orders the return of the property to the crime victim, the court may impose reasonable conditions on the return. Those conditions may include an order that the crime victim retain and store the property so that the property is available for future court hearings, requiring photographs of the property to be taken, or any other condition the court considers necessary to maintain the evidentiary integrity of the property.
  5. In this section, “crime victim” has the meaning given to “victim” in AS 12.55.185 .
  6. If the agency fails to act on a request under (a) of this section within the deadline set in (b) of this section, the victims’ advocate may request a hearing under (b) of this section. If the victims’ advocate requests a hearing under this subsection, the role of the victims’ advocate in the hearing is limited to advocating for the return of the victim’s property. The victims’ advocate may not participate in the case as a party or an intervenor unless the court orders otherwise.

History. (§ 1 ch 3 SLA 2012; am § 1 ch 91 SLA 2014)

Effect of amendments. —

The 2014 amendment, effective October 14, 2014, added (f).

Effective dates. —

Section 1, ch. 3, SLA 2012, which enacted this section, took effect on June 19, 2012.

Sec. 12.36.090. Definitions.

In AS 12.36.010 — 12.36.090 ,

  1. “final disposition of a case” means the time when all appeals have been exhausted or the time when all appeals that could have been taken has expired;
  2. “law enforcement agency” means a public agency that performs as one of its principal functions an activity relating to crime prevention, control, or reduction or relating to the enforcement of the criminal law; “law enforcement agency” does not include a court.

History. (§ 21 ch 143 SLA 1982; am § 53 ch 30 SLA 1996; am § 2 ch 20 SLA 2010)

Effect of amendments. —

The 2010 amendment, effective July 1, 2010, in the introductory language, substituted “AS 12.36.010 — 12.36.090 ” for “this chapter”.

Article 2. Preservation of Evidence.

Sec. 12.36.200. Preservation of evidence.

  1. Notwithstanding AS 12.36.010 — 12.36.090 , the Department of Law, the Department of Public Safety, the Alaska Court System, or a municipal law enforcement agency shall preserve
    1. all evidence that is obtained in relation to an investigation or prosecution of a crime under AS 11.41.100 — 11.41.130 , 11.41.410 , or 11.41.434 for the period of time that the crime remains unsolved or 50 years, whichever ends first;
    2. biological evidence in an amount and manner that is sufficient to develop a DNA profile from any material contained in or included on the evidence that was obtained in relation to the prosecution of a person convicted of, or adjudicated a delinquent for, a crime under AS 11.41.100 — 11.41.130 , a person convicted of a crime after being indicted under AS 11.41.410 or 11.41.434 while the person remains a prisoner in the custody of the Department of Corrections or subject to registration as a sex offender, or a person adjudicated a delinquent for a crime after the filing of a petition alleging a violation of AS 11.41.410 or 11.41.434 while the person remains committed to a juvenile facility or subject to registration as a sex offender.
  2. Under (a) of this section, an agency is not required to preserve physical evidence of a crime that is of a size, bulk, quantity, or physical character that renders preservation impracticable. When preservation of evidence of a crime is impracticable, the agency shall, before returning or disposing of the evidence, remove and preserve portions of the material likely to contain relevant evidence related to the crime in a quantity sufficient to permit future DNA testing. In making decisions under this section, an agency shall follow written policies on evidence retention.
  3. Upon written request of a person convicted of a crime and a prisoner, adjudicated delinquent for a crime and committed, or subject to registration as a sex offender, an agency shall prepare or provide an inventory of biological evidence that has been preserved under (a)(2) of this section in connection with the person’s criminal case.
  4. An agency required to preserve biological evidence under (a) of this section may destroy biological evidence before the expiration of the time period in (a)(2) of this section if
    1. the agency is not required to maintain the evidence under another provision of state or federal law;
    2. the agency sends, by certified mail with proof of delivery, notice of its intent to destroy evidence to
      1. each person who remains a prisoner or committed or subject to registration as a sex offender for the crime for which the evidence was preserved under (a)(2) of this section;
      2. the attorneys of record, if known, for each person listed in (A) of this paragraph;
      3. the Public Defender Agency;
      4. the district attorney responsible for prosecuting the crime; and
    3. no person who is notified under (2) of this subsection, within 120 days after receiving the notice,
      1. files a motion for testing of the evidence; or
      2. submits a written request for continued preservation of the evidence.
  5. Upon receipt of a request for continued preservation of biological evidence under (d)(3)(B) of this section, an agency may petition the court for permission to destroy the evidence. The court may grant the petition if the court finds that the request is without merit or that the evidence has no significant value for biological material.
  6. When an agency is required to produce biological evidence required to be preserved under this section and the agency is unable to locate the evidence, the chief evidence custodian of that agency shall submit an affidavit, executed under penalty of perjury, describing the evidence that could not be located and detailing the efforts taken to locate the evidence.
  7. If a court finds that evidence was destroyed in violation of the provisions of this section, the court may order remedies the court determines to be appropriate.
  8. A person may not bring a civil action for damages against the state or a political subdivision of the state, their officers, agents, or employees, or a law enforcement agency, its officers, or employees for any unintentional failure to comply with the provisions of this section.
  9. In this section,
    1. “agency” means the Department of Law, the Department of Public Safety, the Alaska Court System, or a municipal law enforcement agency;
    2. “biological evidence” means
      1. the contents of a sexual assault forensic examination kit;
      2. semen, blood, hair, saliva, skin tissue, fingernail scrapings, bone, bodily fluids, or other identifiable human bodily material collected as part of a criminal investigation;
      3. a slide, swab, or test tube containing material described in (B) of this paragraph; and
      4. swabs or cuttings from items that contain material described in (B) of this section;
    3. “DNA” means deoxyribonucleic acid;
    4. “prisoner” has the meaning given in AS 33.30.901 .

History. (§ 3 ch 20 SLA 2010)

Effective dates. —

Section 19, ch. 20, SLA 2010 makes this section effective July 1, 2010.

Editor’s notes. —

Section 16(a), ch. 20, SLA 2010, provides that this section “applies to all evidence in the possession of an agency, as defined in AS 12.36.200(i) , on or after January 1, 2011, for evidence collected before, on, or after July 1, 2010.”

Chapter 37. Interceptions and Access to Communications.

Cross references. —

For provisions regarding communications, eavesdropping, and wiretapping, see AS 42.20.300 — 42.20.390 .

Legislative history reports. —

For governor’s transmittal letter on the bill (HB 187) that became ch. 61, SLA 1993, which enacted this chapter, see 1993 House Journal 488 — 489.

Notes to Decisions

Legislative intent. —

In passing this chapter, the legislature intended to expand authorization for the interception of communications and to provide procedures similar to those provided in federal law, rather than to eliminate the interception of communications where a participant to the conversation has consented to the interception when the police have obtained a Glass ( State v. Glass, 583 P.2d 872 (Alaska 1978)), requiring police to obtain judicial authorization before secretly recording a person’s private conversations) warrant. Bachlet v. State, 941 P.2d 200 (Alaska Ct. App. 1997).

Article 1. Interception of Private Communications.

Sec. 12.37.010. Authorization to intercept communications.

The attorney general, or a person designated in writing or by law to act for the attorney general, may authorize, in writing, an ex parte application to a court of competent jurisdiction for an order authorizing the interception of a private communication if the interception may provide evidence of, or may assist in the apprehension of persons who have committed, are committing, or are planning to commit, the following offenses:

  1. murder in the first or second degree under AS 11.41.100 — 11.41.110 ;
  2. kidnapping under AS 11.41.300 ;
  3. a class A or unclassified felony drug offense under AS 11.71;
  4. sex trafficking in the first or second degree under AS 11.66.110 and 11.66.120 ; or
  5. human trafficking in the first degree under AS 11.41.360 .

History. (§ 1 ch 61 SLA 1993; am § 15 ch 43 SLA 2013)

Cross references. —

For governor’s transmittal letter for ch. 43, SLA 2013 (SB 22), see 2013 Senate Journal 38 — 39.

Effect of amendments. —

The 2013 amendment, effective July 1, 2013, added (4) and (5) and made related changes.

Editor’s notes. —

Under sec. 46(a), ch. 43, SLA 2013, the 2013 changes to this section apply to offenses committed on or after July 1, 2013.

Notes to Decisions

Quoted in

Bachlet v. State, 941 P.2d 200 (Alaska Ct. App. 1997).

Sec. 12.37.020. Application for order authorizing a communication interception.

  1. An application for an order authorizing the interception of a private communication shall be made in writing upon oath or affirmation and must state
    1. the authority of the applicant to make the application;
    2. the identity of the peace officer for whom the authority to intercept the communication is sought;
    3. the facts relied upon by the applicant for the order, including
      1. if known, the identity of the particular person committing the offense and whose communication is to be intercepted;
      2. the details as to the particular offense that has been, is being, or is about to be committed;
      3. the specific type of communication to be intercepted;
      4. a showing that there is probable cause to believe that the communication will be communicated on the specific communication facility involved or at the specific place where the oral communication is to be intercepted;
      5. a showing that there is probable cause to believe that the facility from which, or the place where, the communication is to be intercepted, is, has been, or is about to be used in connection with the commission of the offense, or is leased to, listed in the name of, or commonly used by, the person whose communication is to be intercepted;
      6. the character and location of the specific communication facility involved or the specific place where the oral communication is to be intercepted;
      7. the objective of the investigation;
      8. a statement of the period of time for which the interception is required to be maintained, and, if the objective of the investigation is such that the authorization for interception should not automatically terminate when the described type of communication has been first obtained, a specific statement of facts establishing probable cause to believe that additional communications of the same type will continue to occur;
      9. a specific statement of facts showing that other normal investigative procedures with respect to the offense have been tried and have failed, or reasonably appear to be unlikely to succeed if tried, or are too dangerous to employ;
    4. the facts known to the applicant concerning all previous applications made to a court for the issuance of an order authorizing the interception of a private communication involving any of the same facilities or places specified in the current application or involving the same person whose communication is to be intercepted, and the action taken by the court on each application;
    5. if the application is for an extension of a previously issued order, a statement of facts showing the results obtained thus far from the interception, or a reasonable explanation for the failure to obtain results;
    6. a proposed order authorizing the communication interception; and
    7. any additional facts in support of the application considered appropriate by the applicant or by the court.
  2. If an applicant for an order authorizing a communications interception is relying upon uncorroborated evidence provided by a confidential informant, the court may hold an in camera hearing at which it may inquire as to the identity of the informant or as to any other relevant information concerning the basis upon which the applicant is applying for the order.

History. (§ 1 ch 61 SLA 1993)

Sec. 12.37.030. Requirements for an order authorizing a communications interception.

  1. Upon consideration of an application, the court may enter an ex parte order authorizing the interception of a private communication if the court determines, on the basis of the application, that
    1. there is probable cause to believe that the person whose communication is to be intercepted is committing, has committed, or is planning to commit an offense listed in AS 12.37.010 ;
    2. there is probable cause to believe that a communication concerning the offense may be obtained through the interception;
    3. there is probable cause to believe that the facility from which, or the place where, the communication is to be intercepted, is, has been, or is about to be used in connection with the commission of the offense, or is leased to, listed in the name of, or commonly used by, the person whose communication is to be intercepted;
    4. normal investigative procedures with respect to the offense have been tried and have failed or reasonably appear to be either unlikely to succeed if tried or too dangerous to employ; and
    5. if the application, other than an application for an extension, is for an order to intercept a communication of a person, or involving a communications facility, that was the subject of a previous application, the current application is based upon new evidence or information different from and in addition to the evidence or information offered to support the previous application.
  2. In addition to exercising authority under (a) of this section, on consideration of an application relating to a private communication of a minor, the court may enter an ex parte order authorizing the interception of the private communication. The court may enter the order only if the court determines, after making appropriate findings of fact and on the basis of the application, that there is probable cause to believe that
    1. a party to the private communication
      1. has committed, is committing, or is about to commit a felony or misdemeanor;
      2. has been, is, or is about to be a victim of a felony or misdemeanor; or
      3. has been, is, or is about to be a witness to a felony or misdemeanor;
    2. the health or safety of a minor is in danger; or
    3. a parent of a minor has consented in good faith to the interception of a communication of the minor based on the parent’s objectively reasonable belief that it is necessary for the welfare of the minor and is in the best interest of the minor.
  3. In (b) of this section, “minor” and “parent” have the meanings given in AS 42.20.390 .

History. (§ 1 ch 61 SLA 1993; am § 1 ch 104 SLA 2006)

Effect of amendments. —

The 2006 amendment, effective November 2, 2006, added subsections (b) and (c).

Sec. 12.37.040. Contents of order authorizing a communications interception; limitations on disclosure.

  1. An order entered under AS 12.37.030 must state
    1. that the court is authorized to enter the order;
    2. if known, the identity of, or a particular description of, the person whose communications are to be intercepted;
    3. the character and location of the particular communication facility or the particular place of the communication as to which authority to intercept is granted;
    4. a specific description of the type of communication to be intercepted and a statement of the particular offense to which it relates;
    5. the identity of the peace officer or officers to whom the authority to intercept a communication is given and the identity of the person who authorized the application; and
    6. the period of time during which the interception is authorized, including a statement as to whether or not the interception automatically terminates when the described communication has been first obtained, and a statement that the interception shall begin and terminate as soon as practicable and be conducted in such a manner as to minimize the interception of communications not otherwise subject to interception.
  2. An order entered under AS 12.37.030 may not authorize the interception of private communications for a period of time exceeding 30 days or that period necessary to achieve the objective of the authorization, whichever is shorter. The authorized interception period begins on the day on which the peace officer first begins to conduct an interception under the order or 10 days after the order is entered, whichever is earlier. Extensions of 30 days or less may be granted if application for each extension order is made under AS 12.37.020 and the necessary findings are made by the court under AS 12.37.030 .
  3. The court may require an applicant to file periodic reports with the court, showing what progress is being made toward achieving the authorized objective of the communication interception and what need exists for continued interception. The intervals at which the reports are to be filed shall be determined by the court.
  4. An order entered under AS 12.37.030 may, upon request of the applicant, direct that a communications common carrier, provider of wire or electronic communication services, landlord, owner, building operator, custodian, or other person furnish the applicant, without delay, all information, facilities, and technical assistance necessary to accomplish the interception unobtrusively. The obligations of a communications common carrier under an order may include the obligation to conduct an in-progress trace during an interception. A communications common carrier, provider of wire or electronic communication services, landlord, owner, building operator, custodian, or other person who furnishes facilities or technical assistance under this subsection shall be compensated by the applicant at prevailing rates.
  5. A communications common carrier, provider of wire or electronic communication services, landlord, owner, building operator, custodian, or other person who, under this section, has been shown a copy of an order authorizing the interception of a private communication may not disclose the existence of the order or of the device used to accomplish the interception unless
    1. the person is required to do so by legal process; and
    2. the person gives prior notification to the attorney general or the attorney general’s designee who authorized the application for the order.
  6. An order entered under AS 12.37.030 may, upon the request of the applicant, authorize the applicant to enter a designated place or facility as often as necessary to install, maintain, or remove an intercepting device. The applicant shall notify the court of each such entry before its occurrence, if practicable. If prior notice is not practicable, the applicant shall notify the court within 72 hours after the entry.

History. (§ 1 ch 61 SLA 1993)

Sec. 12.37.050. Privileged communications.

An otherwise privileged communication intercepted in accordance with, or in violation of, the provisions of AS 12.37.010 — 12.37.130 does not lose its privileged character by reason of the interception.

History. (§ 1 ch 61 SLA 1993)

Sec. 12.37.060. Collateral authority of court; interpretation of AS 12.37.010 — 12.37.130.

  1. Notwithstanding any other provision of AS 12.37.010 — 12.37.130 , a court to which an application is made for an order authorizing the interception of a private communication may take the evidence, make the findings, or issue the other orders necessary to conform the proceedings or the entry of an order to the United States Constitution, the Constitution of the State of Alaska, or any applicable law of the United States or of the state.
  2. When the language of AS 12.37.010 — 12.37.130 is the same or similar to the language of 18 U.S.C. 2510 — 2521, the courts of this state in construing AS 12.37.010 — 12.37.130 shall follow the construction given to those federal statutes by the federal courts.

History. (§ 1 ch 61 SLA 1993)

Sec. 12.37.070. Records and recordings and custody of them.

  1. A communication intercepted under AS 12.37.010 — 12.37.130 shall, if practicable, be recorded by tape or wire or other comparable method. The recording shall, if practicable, be done in a way that will protect it from editing or other alteration. During an interception, the peace officer authorized to act under the court’s order shall, if practicable, keep a signed, written record of the interception, that shall include the following information:
    1. the date and hours during which the interception equipment or site was monitored;
    2. the time and duration of each intercepted communication;
    3. the parties to each intercepted communication, if known; and
    4. a summary of the contents of each intercepted communication.
  2. Immediately upon expiration of the authorized interception period specified in an order entered under AS 12.37.030 or, if an extension order has been entered, upon expiration of the authorized interception period specified in that order, any tapes or other recordings, and any records made during the interception, and all orders authorizing the interception, shall be transferred to the court that entered the order and shall be sealed under its direction. Custody of the tapes, other recordings, and records of the interception shall be maintained as the court directs. The tapes, recordings, and records of the interception may not be destroyed except upon order of the court, and in any event shall be kept for a minimum period of 10 years. Duplicate recordings and records of the interception may be made for disclosure or use under AS 12.37.090(d) and 12.37.110 . The presence of the seal required by this subsection, or a satisfactory explanation for its absence, is a prerequisite for the use or disclosure of the contents of any communication intercepted under AS 12.37.010 — 12.37.130 .

History. (§ 1 ch 61 SLA 1993)

Sec. 12.37.080. Custody of applications and orders; penalty for disclosure.

  1. Except for a copy that may be retained for use by the applicant, all applications made and orders entered under AS 12.37.010 — 12.37.130 for the interception of private communications shall be sealed by the court and maintained as the court directs. The applications and orders may not be destroyed except upon order of the court and in any event shall be kept for a minimum period of 10 years.
  2. In addition to any other remedies or penalties provided by law, the disclosure of applications and orders in violation of AS 12.37.010 — 12.37.130 is punishable under AS 09.50.020 as contempt of court.

History. (§ 1 ch 61 SLA 1993)

Sec. 12.37.090. Notice of interception and disclosure.

  1. Within a reasonable period of time, but no later than 90 days following the expiration of the authorized interception period specified in an order entered under AS 12.37.030 or, if an extension order has been entered, upon expiration of the authorized interception period specified in that order, the court entering the order shall cause a notice of interception to be served on
    1. a person who is named in the order; or
    2. a party to the intercepted communications if the court determines in its discretion that the party should be informed in the interest of justice.
  2. The notice of interception must include a statement of
    1. the fact of the entry of the order under AS 12.37.030 ;
    2. the date of the entry of the order;
    3. the period of time for which the interception was authorized; and
    4. whether and how many private communications were intercepted.
  3. On an ex parte showing of good cause, the court may postpone service of the notice of interception.
  4. Upon the filing of a motion, the court may make available for inspection to a person or the person’s attorney, as the court determines to be in the interest of justice, those portions of an intercepted communication, an application for an order, and an order that the court considers appropriate.

History. (§ 1 ch 61 SLA 1993)

Sec. 12.37.100. Approval for unanticipated interception.

If, while intercepting a private communication under the provisions of AS 12.37.010 — 12.37.130 , a peace officer intercepts a communication that relates to a felony offense other than one specified in the order of authorization, the attorney general, or a person designated in writing or by law to act for the attorney general, may file a motion for an order approving that interception so that the communication, or evidence derived from it, may be used during testimony in an official proceeding. A court may enter an order approving the interception if it finds that the person who intercepted the communication was otherwise acting under the provisions of AS 12.37.010 — 12.37.130 .

History. (§ 1 ch 61 SLA 1993)

Sec. 12.37.110. Use of intercepted communication.

An intercepted private communication, and evidence derived from it, may not be received in evidence or otherwise disclosed in an official proceeding unless each party to the communication who is a party in the official proceeding was furnished, at least 10 days before the proceeding, with a copy of the court order authorizing the interception and of the application for authorization under which the order was issued. The 10-day period may be waived by the presiding official if the presiding official finds that it was not practicable to furnish the person with the information 10 days before the proceeding and also finds that the person will not be prejudiced by the delay in receiving the information.

History. (§ 1 ch 61 SLA 1993)

Sec. 12.37.120. Suppression of unlawful interceptions.

  1. A motion to suppress the contents of an intercepted private communication, or evidence derived from it, may be filed in a proceeding on the ground that the
    1. interception was unlawful;
    2. order of authorization under which the communication was intercepted is insufficient on its face; or
    3. interception was not made in substantial compliance with the order of authorization.
  2. Upon the filing of a motion to suppress under this section, the court may make available to the moving party or that party’s attorney, for inspection, the portion or portions of the intercepted communication, applications, and orders that the court determines to be in the interest of justice.
  3. Suppression is the only judicial sanction available for a nonconstitutional violation of AS 12.37.010 — 12.37.130 involving an intercepted private communication.

History. (§ 1 ch 61 SLA 1993)

Sec. 12.37.130. Required reports.

  1. Within 30 days after the expiration of the authorized interception period specified in an order entered under AS 12.37.030 or, if an extension order has been entered, upon expiration of the authorized interception period specified in that order, the court entering the order shall report to the Administrative Office of the United States Courts the following information:
    1. the fact that an order or extension order was applied for;
    2. the kind of order or extension order applied for;
    3. whether the order or extension order was granted as applied for or was granted as modified;
    4. the period of time for which the interception is authorized by the order and the number of, and duration of the authorized interception period specified in, any extension orders regarding that order;
    5. the offense specified in the order, extension order, or application;
    6. the name and title of the applicant; and
    7. the nature of the facilities from which or the place where the communication was to be intercepted.
  2. In January of each year, the attorney general or the attorney general’s designee shall report to the Administrative Office of the United States Courts the following information with respect to orders and extension orders obtained in the preceding calendar year:
    1. the information required by (a) of this section with respect to each application for an order or extension order made;
    2. a general description of the interceptions made under the order or extension, including the approximate
      1. nature and frequency of incriminating communications intercepted;
      2. nature and frequency of other communications intercepted;
      3. number of persons whose communications were intercepted; and
      4. nature, amount, and cost of the manpower and other resources used in the interceptions;
    3. the number of arrests resulting from interceptions made under the order or extension order, and the offenses for which arrests were made;
    4. the number of trials resulting from the interceptions;
    5. the number of motions to suppress made with respect to the interceptions, the number of such motions granted, and the number of such motions denied; and
    6. the number of convictions resulting from interceptions and the offenses for which the convictions were obtained, and a general assessment of the importance of the interceptions.
  3. In addition to the report required by (b) of this section, the attorney general or the attorney general’s designee shall prepare and make available to the public annual reports on the operation of AS 12.37.010 — 12.37.130 . The reports shall contain the following information:
    1. the number of applications made under AS 12.37.010 — 12.37.130 ;
    2. the number of orders entered by the court;
    3. the effective period of time for which each interception was authorized;
    4. the number of, and duration of the authorized interception period specified in, any extension orders;
    5. the offenses in connection with which the communications were sought;
    6. the names and titles of the applicants;
    7. the number of indictments or other charges resulting from each application;
    8. the offenses that each indictment or other charge relates to; and
    9. the disposition of each indictment or other charge.

History. (§ 1 ch 61 SLA 1993)

Article 2. Pen Registers and Trap Devices.

Sec. 12.37.200. Authorization to use pen registers and trap devices.

Upon application by a peace officer made in conformity with any provision of federal law authorizing such an application, a court may issue an order authorizing or concerning the use of a pen register or a trap device as permitted under federal law.

History. (§ 1 ch 61 SLA 1993)

Article 3. Communications in Electronic Storage.

Sec. 12.37.300. Authorization for access to and use of communications in electronic storage.

Upon application by a peace officer made in conformity with any provision of federal law authorizing such an application, a court may issue an order authorizing or concerning access to and disclosure or use of communications in electronic storage as permitted under federal law.

History. (§ 1 ch 61 SLA 1993)

Article 4. Police Use of Body Wires.

Sec. 12.37.400. Police use of body wire.

  1. A peace officer may intercept an oral communication by use of an electronic, mechanical, or other eavesdropping device that is concealed on or carried on the person of the peace officer and that transmits that oral communication by means of radio to a receiving unit that is monitored by other peace officers, if
    1. the interception and monitoring occurs
      1. during the investigation of a crime or the arrest of a person for a crime; and
      2. for the purpose of ensuring the safety of the peace officer conducting the investigation or making the arrest;
    2. the peace officer intercepting the conversation is a party to the oral communication and has consented to the interception; and
    3. the communication intercepted is not recorded.
  2. A peace officer monitoring a receiving unit under (a) of this section, or any other person intercepting an oral communication transmitted under (a) of this section, is not competent to testify in a criminal proceeding involving a party to the oral communication about the contents of the oral communication that was intercepted or the fact that the communication occurred.

History. (§ 3 ch 64 SLA 1999)

Article 5. General Provisions.

Sec. 12.37.900. Definitions.

In this chapter,

  1. “communications common carrier” has the meaning given in AS 42.20.390 ;
  2. “contents” has the meaning given in AS 42.20.390 ;
  3. “court” means superior court, except that in AS 12.37.200 it means either superior or district court;
  4. “electronic communication” has the meaning given in AS 42.20.390 ;
  5. “electronic communication service” has the meaning given in AS 42.20.390 ;
  6. “electronic storage” means any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission of the communication, and any storage of the communication by an electronic communication service for purposes of backup protection of the communication;
  7. “in-progress trace” means to determine the origin of a wire communication to a telephone instrument, equipment, or facility during the course of the communication;
  8. “intercept” has the meaning given in AS 42.20.390 ;
  9. “official proceeding” means a judicial, legislative, or administrative proceeding or any other proceeding before a government agency or official authorized to hear evidence under oath, other than a grand jury;
  10. “oral communication” has the meaning given in AS 42.20.390 ;
  11. “peace officer” has the meaning given in AS 11.81.900(b) ;
  12. “pen register” means a device or apparatus that is connected to a telephone instrument, equipment, or facility to determine the destination of a wire communication to a telephone instrument, equipment, or facility, but that does not intercept the contents of the communication; “pen register” does not include a device used by a provider or customer of a wire or electronic communication service for billing, or for recording as an incident to billing, for communications services provided by the provider, nor a device used by a provider or customer of a wire communication service for cost accounting or other like purposes in the ordinary course of its business;
  13. “private communication” has the meaning given in AS 42.20.390 ;
  14. “trap device” means a device or apparatus that is connected to a telephone instrument, equipment, or facility to determine the origin of a wire communication to the telephone instrument, equipment, or facility, but that does not intercept the contents of the communication;
  15. “wire communication” has the meaning given in AS 42.20.390 .

History. (§ 1 ch 61 SLA 1993; am §§ 36 — 38 ch 13 SLA 2019)

Revisor's notes. —

In 2008, the paragraphs of this section were renumbered to maintain alphabetical order.

Effect of amendments. —

The 2019 amendment, effective October 17, 2019, in (7), (12), and (14), deleted “or telegraph” following “a telephone” five times.

Chapter 40. Grand Jury.

Cross references. —

For court rules on grand juries, see Rules 6 and 6.1, Alaska Rule of Criminal Procedure; for constitutional provisions, see art. I, § 8 of the Alaska Constitution.

For provisions relating to a requirement of a grand jury before a general court martial, see AS 26.05.440 and 26.05.445 .

Notes to Decisions

Grand jury bias due to preindictment publicity. —

See Chief v. State, 718 P.2d 475 (Alaska Ct. App. 1986).

Collateral references. —

38 Am. Jur. 2d, Grand Jury, § 1 et seq.

38A C.J.S., Grand Juries, § 1 et seq.

Sec. 12.40.010. Qualifications and manner of drawing grand jurors.

Grand jurors shall have the qualifications and be drawn as are trial jurors under AS 09.20.010 — 09.20.080 .

History. (§ 5.01 ch 34 SLA 1962)

Notes to Decisions

Exclusionary method of jury selection held invalid. —

Any method of jury selection which is in reality a subterfuge to exclude from juries, systematically and intentionally some cognizable group or class of citizens in the community must be held invalid. Hampton v. State, 569 P.2d 138 (Alaska 1977), cert. denied, 434 U.S. 1056, 98 S. Ct. 1225, 55 L. Ed. 2d 757 (U.S. 1978).

Juror not selected at public drawing held not qualified. —

See Crawford v. State, 408 P.2d 1002 (Alaska 1965).

Collateral references. —

Exclusion of attorneys from jury list in criminal cases. 32 ALR2d 890.

Validity of indictment where grand jury heard incompetent witness. 39 ALR3d 1064.

Law enforcement officers as qualified jurors in criminal cases. 72 ALR3d 895.

Former law enforcement officers as qualified jurors in criminal cases. 72 ALR3d 958.

Age group under representation in grand jury or petit jury venire. 62 ALR4th 859.

Sec. 12.40.020. Number of jurors.

The grand jury consists of not less than 12 nor more than 18 members.

History. (§ 5.02 ch 34 SLA 1962)

Notes to Decisions

Cited in

Sanford v. State, 24 P.3d 1263 (Alaska Ct. App. 2001).

Sec. 12.40.030. Duty of inquiry into crimes and general powers.

The grand jury shall inquire into all crimes committed or triable within the jurisdiction of the court and present them to the court. The grand jury shall have the power to investigate and make recommendations concerning the public welfare or safety.

History. (§ 5.03 ch 34 SLA 1962)

Notes to Decisions

A grand jury proceeding is not a criminal action. It is merely an inquiry to determine whether there is probable cause to believe the accused is guilty of the offense charged. Brown v. State, 372 P.2d 785 (Alaska 1962).

Cited in

Schouten v. State, 77 P.3d 739 (Alaska Ct. App. 2003).

Sec. 12.40.040. Juror to disclose knowledge of crime.

If an individual grand juror knows or has reason to believe that a crime has been committed that is triable by the court, the juror shall disclose it to the other jurors, who shall investigate it.

History. (§ 5.04 ch 34 SLA 1962)

Sec. 12.40.050. Holding to answer as affecting indictment or presentment.

The grand jury may indict or present a person for a crime upon sufficient evidence, whether that person has been held to answer for the crime or not.

History. (§ 5.05 ch 34 SLA 1962)

Notes to Decisions

Sufficiency of the evidence is the test prescribed by this section. State v. Parks, 437 P.2d 642 (Alaska 1968); Sleziak v. State, 454 P.2d 252 (Alaska), cert. denied, 396 U.S. 921, 90 S. Ct. 252, 24 L. Ed. 2d 202 (U.S. 1969).

Hearsay. —

Hearsay, if relevant, is evidence, and if it is such that, unexplained or uncontradicted, it would persuade a grand jury that it would warrant the conviction of the defendant at the trial, then it is sufficient evidence to justify the finding of an indictment. State v. Parks, 437 P.2d 642 (Alaska 1968).

Indictment against defendant for escaping from a halfway house was invalid because it was based on an incident report — prepared by a staff member at the halfway house, relaying another resident's description of defendant's conduct, and introduced to the grand jury through the testimony of an uninvolved supervisor — that was not admissible under the business records exception and without the report the evidence before the grand jury was insufficient to support an indictment. The error was not rendered harmless by defendant's conviction. Wassillie v. State, 411 P.3d 595 (Alaska 2018).

Cited in

Schouten v. State, 77 P.3d 739 (Alaska Ct. App. 2003); State v. Leighton, 336 P.3d 713 (Alaska Ct. App. 2014); Smith v. State, — P.3d — (Alaska Ct. App. July 3, 2018).

Sec. 12.40.060. Access to public jails, prisons, and public records.

The grand jury is entitled to access, at all reasonable times, to the public jails and prisons, to offices pertaining to the courts of justice in the state, and to all other public offices, and to the examination of all public records in the state.

History. (§ 5.06 ch 34 SLA 1962)

Sec. 12.40.070. Duty of prosecuting attorney.

The prosecuting attorney

  1. shall submit an indictment to the grand jury and cause the evidence in support of the indictment to be brought before them in every case when a person is held to answer a criminal charge in the court where the jury is formed;
  2. may submit an indictment in any case when the prosecuting attorney has good reason to believe a crime has been committed that is triable by the court; and
  3. shall, when required by the grand jury, prepare indictments or presentments for them and attend their sittings to advise them in relation to their duties or to examine witnesses in their presence.

History. (§ 5.07 ch 34 SLA 1962)

Notes to Decisions

The same duties of the district attorney that are set out in Alaska Rule of Criminal Procedure 6(i) are stated in this section. Coleman v. State, 553 P.2d 40 (Alaska 1976).

Prosecutor’s function in the grand jury process. —

See Coleman v. State, 553 P.2d 40 (Alaska 1976).

Right to indictment by grand jury free of prosecutor-instigated prejudice. —

Although no provision of the United States or Alaska constitution specifically guarantees the right of an accused to be indicted by a grand jury free of prosecutor-instigated prejudice, a strong historical basis exists for holding that the grand jury should operate to control abuses by the government and protect the interests of the accused. Coleman v. State, 553 P.2d 40 (Alaska 1976).

When presenting a case to a grand jury, the prosecutor should not make statements or arguments which would influence the grand jury in a manner which would be impermissible at trial. Putnam v. State, 629 P.2d 35 (Alaska 1980).

Liability for utterances of witness. —

Absent some evidence that the prosecutor knew or should have known that the response to his question would contain improper evidence, he is not held answerable for the utterances of the witness. This does not mean to imply that a prosecutor need not be concerned with the answers which his questions might elicit. He remains under a duty to present to the grand jury only that evidence which he believes would be admissible at trial. Putnam v. State, 629 P.2d 35 (Alaska 1980).

Overriding prior immunity grant. —

If a grand jury seeks, under this section, to compel a prosecutor to override a prior immunity grant, any resulting indictment is to be dismissed with prejudice. Surina v. Buckalew, 629 P.2d 969 (Alaska 1981).

Stated in

Bujaki v. Egan, 237 F. Supp. 822 (D. Alaska 1965).

Collateral references. —

Limitations on state prosecuting attorney’s discretion to initiate prosecution by indictment or information. 44 ALR4th 401.

Sec. 12.40.080. Effect of failure to return indictment.

When a grand jury does not return an indictment, the charge is dismissed, and it may not be again submitted to or inquired into by the grand jury unless the court so orders.

History. (§ 5.08 ch 34 SLA 1962)

Notes to Decisions

Reconsideration decision. —

A grand jury may, sua sponte, reconsider a decision to return a “no true bill” and hear new evidence so long as the reconsideration takes place prior to the foreperson’s endorsing the indictment “no true bill” and signing it. Andreanoff v. State, 746 P.2d 473 (Alaska Ct. App. 1987).

Decision to reconsider a decision to return a “no true bill” was not coerced by the prosecution where after the prosecutor’s inquiries regarding possible lesser-included offenses, it became clear that the entire grand jury was interested in considering additional evidence and postponing its ultimate decision until that evidence was received. Andreanoff v. State, 746 P.2d 473 (Alaska Ct. App. 1987).

Applied in

Bujaki v. Egan, 237 F. Supp. 822 (D. Alaska 1965).

Sec. 12.40.090. Questioning juror for conduct.

A grand juror cannot be questioned for anything the juror may say or any vote the juror may give while acting as a grand juror, in relation to any matter legally pending before the grand jury, except for a perjury of which the juror may have been guilty in giving testimony before that jury.

History. (§ 5.09 ch 34 SLA 1962)

Sec. 12.40.100. Contents of indictment.

  1. The indictment must be direct and certain as it regards
    1. the party charged;
    2. the crime charged; and
    3. the particular circumstances of the crime charged when they are necessary to constitute a complete crime.
  2. The statement of the facts constituting the offense must be in ordinary and concise language, without repetition, and in a manner that will enable a person of common understanding to know what is intended.
  3. An indictment that complies with this section and with applicable rules adopted by the supreme court is valid and need not specify aggravating factors set out in AS 12.55.155 .

History. (§ 5.10 ch 34 SLA 1962; am § 2 ch 2 SLA 2005)

Cross references. —

For similar court rule, see Rule 7(c), Alaska Rule of Criminal Procedure.

For a statement of legislative intent relating to (c) of this section, see § 1, ch. 2, SLA 2005, in the 2005 Temporary and Special Acts.

Effect of amendments. —

The 2005 amendment, effective March 23, 2005, added subsection (c).

Editor’s notes. —

Section 33, ch. 2, SLA 2005, provides that (c) of this section applies “to offenses committed before, on, or after March 23, 2005.” See § 33, ch. 2, SLA 2005, in the 2005 Temporary and Special Acts.

Notes to Decisions

Indictment must answer purpose for which intended. —

An indictment has a purpose — to require a defendant to stand trial for a criminal offense with which he is charged. If the indictment is not adequate to answer the purpose for which it is intended, then it is insufficient, regardless of the fact that it may meet all the formal statutory requisites and have all the appearances of validity. State v. Shelton, 368 P.2d 817 (Alaska 1962).

No conflict between Criminal Rule 7(c) and paragraph (a)(3). —

There is no conflict between Criminal Rule 7(c) and the provisions of paragraph (a)(3) of this section, for it has been established that the means and manner by which the victim met his death are not elements of the crime of murder. Flores v. State, 443 P.2d 73 (Alaska 1968).

Use of conjunctive and disjunctive in indictment and instructions was not prejudicial. —

Where there was only one offense charged in one count of the indictment, i.e., one assault with a dangerous weapon, but the jury was told that the assault was directed at either or both of two people, though the conjunctive was used in the indictment and in one of the instructions and the disjunctive used in other instructions, this in no way operated to prejudice any of the defendant’s substantial rights. Larson v. State, 569 P.2d 783 (Alaska 1977).

Indictment sufficient to charge murder in first degree. —

See Flores v. State, 443 P.2d 73 (Alaska 1968).

The charging words of an indictment for first degree murder, that the defendant “did, with deliberate and premeditated malice, willfully, unlawfully and feloniously kill one Don Iannitti by shooting said Don Iannitti with a .357 caliber magnum revolver,” should leave no doubt in the mind of a person of common understanding that the element of purpose was intended to be, and is, reflected in the words used in the indictment to describe the nature of the killing. Marrone v. State, 359 P.2d 969 (Alaska 1961).

For cases construing earlier law, see United States v. Clark, 46 F. 633, 1 Alaska Fed. 215 (D. Alaska 1891); Fitzpatrick v. United States, 178 U.S. 304, 20 S. Ct. 944, 44 L. Ed. 1078 (U.S. 1900); Stockslager v. United States, 116 F. 590, 1 Alaska Fed. 810 (9th Cir. Alaska 1902); Griggs v. United States, 158 F. 572, 3 Alaska Fed. 1 (9th Cir. Alaska 1908); United States v. Smith, 4 Alaska 396 (D. Alaska 1911); Canoe Pass Packing Co. v. United States, 270 F. 533, 5 Alaska Fed. 25 (9th Cir. Alaska 1921); Freihage v. United States, 56 F.2d 127, 5 Alaska Fed. 618 (9th Cir. Alaska 1932); United States v. Abrahamson, 10 Alaska 518 (D. Alaska 1945); Barbeau v. United States, 193 F.2d 945, 13 Alaska 551 (9th Cir. Alaska 1951), cert. denied, 343 U.S. 968, 72 S. Ct. 1064, 96 L. Ed. 1364 (U.S. 1952); United States v. Aloowsine, 17 F.R.D. 211, 15 Alaska 483 (D. Alaska 1955).

Applied in

Spight v. State, 450 P.2d 157 (Alaska 1969).

Stated in

Wassillie v. State, 411 P.3d 595 (Alaska 2018).

Cited in

Stewart v. State, 438 P.2d 387 (Alaska 1968); State v. Dague, 143 P.3d 988 (Alaska Ct. App. 2006).

Collateral references. —

38A C.J.S., Grand Juries, § 100 et seq.

Sec. 12.40.110. Hearsay evidence in prosecutions for sexual offenses.

  1. In a prosecution for an offense under AS 11.41.410 — 11.41.458 , hearsay evidence of a statement related to the offense, not otherwise admissible, made by a child who is the victim of the offense may be admitted into evidence before the grand jury if
    1. the circumstances of the statement indicate its reliability;
    2. the child is under 10 years of age when the hearsay evidence is sought to be admitted;
    3. additional evidence is introduced to corroborate the statement; and
    4. the child testifies at the grand jury proceeding or the child will be available to testify at trial.
  2. In this section “statement” means an oral or written assertion or nonverbal conduct if the nonverbal conduct is intended as an assertion.

History. (§ 1 ch 41 SLA 1985; am § 12 ch 81 SLA 1998)

Notes to Decisions

Constitutionality. —

This section is constitutional. Murray v. State, 770 P.2d 1131 (Alaska Ct. App. 1989).

A statutory classification which permits hearsay from child declarants to be presented to grand juries in sexual abuse cases, but implicitly rejects the use of hearsay in other cases involving crimes against children, does not violate equal protection. Murray v. State, 770 P.2d 1131 (Alaska Ct. App. 1989).

Permitting hearsay before a grand jury in cases of sexual assault on children does not deprive a defendant of due process or of the constitutional right to a grand jury review of the prosecution’s evidence before the return of an indictment. Murray v. State, 770 P.2d 1131 (Alaska Ct. App. 1989).

Legislative intent. —

The legislature adopted this section with the express intention of amending Alaska Rule of Criminal Procedure 6(r), which governs the admissibility of testimony at a grand jury proceeding. Murray v. State, 770 P.2d 1131 (Alaska Ct. App. 1989).

Factors for assessing reliability of child hearsay statements include (1) whether there is an apparent motive to lie; (2) the general character of the declarant; (3) whether more than one person heard the statements; (4) whether the statements were made spontaneously; and (5) the timing of the declaration and the relationship between the declarant and the witness. Murray v. State, 770 P.2d 1131 (Alaska Ct. App. 1989).

Corroboration. —

One child’s claims of sexual abuse may corroborate another child’s claim against the same individual. Murray v. State, 770 P.2d 1131 (Alaska Ct. App. 1989).

Burden of corroboration upon state. —

Where the declarants are truly unavailable and the defendant denies their allegations under oath, the state should bear the burden of proving the veracity of each declarant and corroborating his or her testimony. Hamilton v. State, 771 P.2d 1358 (Alaska Ct. App. 1989).

Applied in

Petersen v. State, 838 P.2d 812 (Alaska Ct. App. 1992).

Chapter 45. Trial, Evidence, Compromise.

Collateral references. —

75 Am. Jur. 2d, Trial, § 1 et seq.

23A C.J.S., Criminal Law, § 1556 et seq.

88 C.J.S., Trial, § 1 et seq.

Article 1. Trial Jury.

Sec. 12.45.010. Formation of trial jury.

The qualification, disqualification, and exemption of jurors, the preparation of jury lists, and the composition of jury panel in criminal actions are the same as provided in civil actions.

History. (§ 6.01 ch 34 SLA 1962)

Cross references. —

For provisions in civil actions, see AS 09.20.010 — 09.20.100 ; for court rules, see Rule 24, Alaska Rule of Criminal Procedure and Rule 47, Alaska Rule of Civil Procedure.

Notes to Decisions

Invalid method of jury selection. —

Any method of jury selection which is in reality a subterfuge to exclude from juries, systematically and intentionally, some cognizable group or class of citizens in the community must be held invalid. Hampton v. State, 569 P.2d 138 (Alaska 1977), cert. denied, 434 U.S. 1056, 98 S. Ct. 1225, 55 L. Ed. 2d 757 (U.S. 1978).

Applying the “cognizable group” standards for jury composition to less-than-one-year residents, a defendant’s 6th amendment right to an impartial jury is not impaired. The excluded group is not a static one with definite parameters. There is no common thread, a basic similarity in attitudes or ideas or experience, except the lack of familiarity with the community. Hampton v. State, 569 P.2d 138 (Alaska 1977), cert. denied, 434 U.S. 1056, 98 S. Ct. 1225, 55 L. Ed. 2d 757 (U.S. 1978).

Defendant may not take advantage of nonprejudicial departures from statutory procedure. —

The defendant in a criminal action cannot take advantage of slight departures from the procedure enacted for selecting jurors without showing that his rights have been prejudiced thereby. Hauptman v. United States, 43 F.2d 86, 5 Alaska Fed. 556 (9th Cir. Alaska 1930), cert. denied, 282 U.S. 900, 51 S. Ct. 212, 75 L. Ed. 793 (U.S. 1931).

Applied in

Vail v. State, 599 P.2d 1371 (Alaska 1979).

Cited in

Crawford v. State, 408 P.2d 1002 (Alaska 1965).

Collateral references. —

Validity and construction of statute or court rule prescribing number of peremptory challenges in criminal cases according to nature of offense or extent of punishment. 8 ALR4th 149.

Necessity for presence of judge during voir dire examination of prospective jurors in state criminal case. 39 ALR4th 465.

Propriety, under state statute or court rule, of substituting state trial juror with alternate after case has been submitted to jury. 88 ALR4th 711.

Exclusion of public and media from voir dire examination of prospective jurors in state criminal case. 16 ALR5th 152.

Sec. 12.45.015. Introduction of victim and defendant to jury.

  1. During jury selection or as part of an opening statement at trial, the prosecuting attorney may introduce the victim to the jury, and the attorney for the defendant may introduce the defendant to the jury.
  2. In this section, “victim” has the meaning given in AS 12.55.185 .

History. (§ 3 ch 65 SLA 2005)

Editor’s notes. —

Section 7, ch. 65, SLA 2005, provides that the enactment of this section has the effect of amending Rule 27, Alaska Rules of Criminal Procedure, by changing the order of proceedings of a trial before a jury to allow for the introduction to the jury of the defendant and the victim.

Sec. 12.45.018. Juror counseling following graphic evidence or testimony.

  1. The trial judge may offer not more than 10 hours of post-trial psychological counseling, without charge, to a juror or an alternate juror who serves on a trial jury in a trial involving extraordinarily graphic, gruesome, or emotional evidence or testimony.
  2. The counseling offered under (a) of this section applies only to a juror or alternate juror who serves on a trial jury for a trial involving the following offenses:
    1. murder under AS 11.41.100 and 11.41.110 ;
    2. manslaughter under AS 11.41.120 ;
    3. criminally negligent homicide under AS 11.41.130 ;
    4. felonious assault under AS 11.41.200 — 11.41.220 ;
    5. a sexual offense under AS 11.41.410 — 11.41.460 .
  3. The counseling offered under (a) of this section
    1. must occur not later than 180 days after the jury is dismissed;
    2. may be provided by the court system, by a state agency, or by contract; and
    3. may be individual or group counseling.

History. (§ 1 ch 111 SLA 2010)

Effective dates. —

Section 1, ch 111, SLA 2010, which enacted this section, took effect on September 26, 2010.

Article 2. Discovery, Testimony, and Evidence.

Cross references. —

For court rules on evidence, see Alaska Rules of Evidence.

Collateral references. —

What constitutes crime involving “dishonesty or false statement” under Rule 609(a)(2) of the Uniform Rules of Evidence. 83 ALR5th 277.

Sec. 12.45.020. Conviction on testimony of accomplice and corroboration.

A conviction shall not be had on the testimony of an accomplice unless it is corroborated by other evidence that tends to connect the defendant with the commission of the crime; and the corroboration is not sufficient if it merely shows the commission of the crime or the circumstances of the commission.

History. (§ 6.02 ch 34 SLA 1962)

Notes to Decisions

Analysis

I.General Consideration

Oregon statute is identical. —

The Oregon statute on corroboration of the testimony of an accomplice is identical with that of Alaska. Christy v. United States, 261 F.2d 357, 17 Alaska 107 (9th Cir. Alaska 1958), cert. denied, 360 U.S. 919, 79 S. Ct. 1438, 3 L. Ed. 2d 1535 (U.S. 1959).

Applied in

Carman v. State, 602 P.2d 1255 (Alaska 1979); Miller v. State, 629 P.2d 546 (Alaska Ct. App. 1981).

Quoted in

Oksoktaruk v. State, 611 P.2d 521 (Alaska 1980); Price v. State, 647 P.2d 611 (Alaska Ct. App. 1982).

Stated in

Daniels v. State, 388 P.2d 813 (Alaska 1964).

II.Accomplice

An accomplice’s testimony is viewed with distrust, because the accomplice usually believes he has a personal interest in aiding the prosecution. Fresneda v. State, 458 P.2d 134 (Alaska 1969); Lemon v. State, 514 P.2d 1151 (Alaska 1973).

Inherent distrust attaches to accomplice testimony; such testimony may be motivated by blackmail, malice, or an abnormal psychological condition. Johnson v. State, 501 P.2d 762 (Alaska 1972).

“Accomplice”. —

An accomplice is generally defined as one who in some manner, knowingly and with criminal intent, aids, abets, assists or participates in a criminal act. Mahle v. State, 371 P.2d 21 (Alaska 1962); Daniels v. State, 383 P.2d 323 (Alaska 1963), cert. denied, 375 U.S. 979, 84 S. Ct. 502, 11 L. Ed. 2d 424 (U.S. 1964); Taylor v. State, 391 P.2d 950 (Alaska 1964); Beavers v. State, 492 P.2d 88 (Alaska 1971); Evans v. State, 550 P.2d 830 (Alaska 1976).

Neither knowledge that a crime is being committed nor the concealment of that knowledge by itself makes a person an accomplice. Evans v. State, 550 P.2d 830 (Alaska 1976); Bendle v. State, 583 P.2d 840 (Alaska 1978).

Complicity is established only if there is conduct voluntarily undertaken for the purpose of participating or assisting in the completion of a crime. Evans v. State, 550 P.2d 830 (Alaska 1976); Bendle v. State, 583 P.2d 840 (Alaska 1978).

To qualify as an accomplice a person need not commit every element of the offense with which the defendant is charged. However, it is essential that he in some way associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed. Evans v. State, 550 P.2d 830 (Alaska 1976).

In order to find a person an accomplice to a crime, it is essential that he in some way associate himself with the criminal venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed. Bendle v. State, 583 P.2d 840 (Alaska 1978).

Mere presence at the scene of the crime is not in itself enough to make out complicity. Evans v. State, 550 P.2d 830 (Alaska 1976); Bendle v. State, 583 P.2d 840 (Alaska 1978).

One is not an accomplice unless he can be charged with the same crime for which the defendant is prosecuted. Howard v. State, 496 P.2d 657 (Alaska 1972).

Hence, a purchaser of illegally sold narcotics cannot be an accomplice to the sale. Howard v. State, 496 P.2d 657 (Alaska 1972).

Therefore, his testimony need not be corroborated. Howard v. State, 496 P.2d 657 (Alaska 1972).

Statutory requirement of corroboration is limited by its terms to the testimony of an accomplice. Evans v. State, 550 P.2d 830 (Alaska 1976).

Requirement not extended to all addict informers. —

Where an addict informer is not in the status of accomplice, broad cross-examination and argument is sufficient to suggest to the jury the possibility of prevarication on the informer’s part. The supreme court, therefore, declined to extend the corroboration requirement to all addict informers. Evans v. State, 550 P.2d 830 (Alaska 1976).

Accomplice as a matter of law. —

One who voluntarily participated in the completion of the crime by assisting in forcing open a safe, extracting the contents therefrom, and then disposing of the safe and its contents, made himself an accomplice in a larceny. In such a state of the record, the court should not have left it to the jurors to decide whether he was an accomplice, but should have instructed them that he was an accomplice as a matter of law — certainly with respect to the crime of larceny. Mahle v. State, 371 P.2d 21 (Alaska 1962).

Facts showing witness was accomplice. —

In a prosecution for uttering and publishing forged checks, a witness who brought to Alaska the checks to be forged, as well as the check protector, assisted one of the defendants in typing in the names and amounts on the checks, including those to be uttered, and assisted in running the checks through the check protector, could have been indicted and punished for the offenses of which the defendants were convicted and was an accomplice. Ing v. United States, 278 F.2d 362 (9th Cir. Alaska 1960).

Facts showing witness was not accomplice. —

General statement by witness that he and defendant, “had talked over the fact of burglarizing King Builders” was not enough to show that he conspired in a prearranged plan to commit the particular crimes with which defendant was charged, or that he in any manner aided, abetted, assisted or participated in the criminal acts. Taylor v. State, 391 P.2d 950 (Alaska 1964).

That witness later disposed of the stolen goods, knowing they were stolen, did not make him an accomplice to the original crime. Taylor v. State, 391 P.2d 950 (Alaska 1964).

III.Corroboration

Corroboration required. —

The testimony of accomplices must be corroborated in order to support a conviction. Johnson v. State, 501 P.2d 762 (Alaska 1972).

Historical basis for requirement of corroboration. —

The requirement of corroboration was based historically on the assumption or suspicion that the accomplice might expect to purchase immunity from punishment by falsely accusing and procuring the conviction of others. Implicit here was the assumption that the accomplice was not to be trusted in the story that he told. Oxenberg v. State, 362 P.2d 893 (Alaska), cert. denied, 368 U.S. 56, 82 S. Ct. 189, 7 L. Ed. 2d 128 (U.S. 1961).

The statutory requirement of corroboration is based on an assumption that an accomplice might falsely accuse others of a crime in order to purchase for himself immunity from punishment. Dimmick v. State, 473 P.2d 616 (Alaska 1970).

The statutory requirement of corroboration is based on an assumption that an accomplice might falsely accuse others of a crime in order to purchase for himself immunity from punishment. This assumption is dispelled and the statutory requirement satisfied when the corroborating evidence tends to induce in the minds of the jurors a rational belief that the accomplice was speaking the truth when he implicated the defendant in the criminal event. Pulakis v. State, 476 P.2d 474 (Alaska 1970), overruled, State v. Coon, 974 P.2d 386 (Alaska 1999); Anthony v. State, 521 P.2d 486 (Alaska 1974).

Required corroboration of accomplice’s testimony. —

To meet the statutory requirement, the state must show no more than that the corroborating evidence strengthens or confirms the testimony of the accomplice; there is no requirement that every element of an offense testified to by an accomplice be independently corroborated by other evidence. Brown v. State, 693 P.2d 324 (Alaska Ct. App. 1984).

“Corroborate”. —

The word “corroborate” means to strengthen, to make certain, to confirm. Oxenberg v. State, 362 P.2d 893 (Alaska), cert. denied, 368 U.S. 56, 82 S. Ct. 189, 7 L. Ed. 2d 128 (U.S. 1961).

Evidence corroborates when it induces a rational belief that the narrative of the accomplice is a correct one; when it dispels the assumed notion that he was an inventor of facts and incidents. If it does this, then the element of distrust is removed, and the object of the statute is accomplished. Oxenberg v. State, 362 P.2d 893 (Alaska), cert. denied, 368 U.S. 56, 82 S. Ct. 189, 7 L. Ed. 2d 128 (U.S. 1961).

The fact that a jar with the defendant’s fingerprint on it was found in one of the buildings where burglary occurred would lend credence to, and thus tend to corroborate, the accomplice’s story. Braham v. State, 376 P.2d 714 (Alaska 1962).

Section does not provide that “other evidence” be considered alone. —

The language of this section does not provide that the other evidence be considered by itself and without the aid of the testimony of the accomplice. Oxenberg v. State, 362 P.2d 893 (Alaska), cert. denied, 368 U.S. 56, 82 S. Ct. 189, 7 L. Ed. 2d 128 (U.S. 1961).

In determining whether there is evidence sufficient to inspire the fact-finders with confidence in the story of the accomplice, it is impracticable to require that what the accomplice has said be put aside and that the other evidence be examined alone to see if it “tends to connect the defendant with the commission of the crime.” Oxenberg v. State, 362 P.2d 893 (Alaska), cert. denied, 368 U.S. 56, 82 S. Ct. 189, 7 L. Ed. 2d 128 (U.S. 1961); Pulakis v. State, 476 P.2d 474 (Alaska 1970), overruled, State v. Coon, 974 P.2d 386 (Alaska 1999).

“Tend”. —

One of the definitions of “tend” is “to serve as a means.” Oxenberg v. State, 362 P.2d 893 (Alaska), cert. denied, 368 U.S. 56, 82 S. Ct. 189, 7 L. Ed. 2d 128 (U.S. 1961).

Corroborating evidence need not be direct and positive, but may be circumstantial in character. Christy v. United States, 261 F.2d 357, 17 Alaska 107 (9th Cir. Alaska 1958), cert. denied, 360 U.S. 919, 79 S. Ct. 1438, 3 L. Ed. 2d 1535 (U.S. 1959).

It need not establish corpus delicti. —

Corroborating evidence need not establish the actual commission of the offense, the corpus delicti. Christy v. United States, 261 F.2d 357, 17 Alaska 107 (9th Cir. Alaska 1958), cert. denied, 360 U.S. 919, 79 S. Ct. 1438, 3 L. Ed. 2d 1535 (U.S. 1959).

But must tend to connect defendant with commission of crime. —

Corroborating evidence is sufficient if it tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the witness, who must be corroborated, is telling the truth. Christy v. United States, 261 F.2d 357, 17 Alaska 107 (9th Cir. Alaska 1958), cert. denied, 360 U.S. 919, 79 S. Ct. 1438, 3 L. Ed. 2d 1535 (U.S. 1959).

Corroborative evidence ought to be reviewed in relation to, rather than apart from, the accomplice’s narrative in order that it might be fairly and rationally appraised for whatever worth it may have. If such evidence can be brought into contact with the circumstances related by the accomplice, and if at all points of contact there is consistency and harmony rather than incongruity and discord, then there is good ground for presuming that what the accomplice said is true. Oxenberg v. State, 362 P.2d 893 (Alaska), appeal dismissed and cert. denied, 368 U.S. 56, 82 S. Ct. 189, 7 L. Ed. 2d 128 (1961); Pulakis v. State, 476 P.2d 474 (Alaska 1970), overruled, State v. Coon, 974 P.2d 386 (Alaska 1999). But see Ing v. United States, 278 F.2d 362 (9th Cir. 1960), holding that corroborative evidence must be considered without the aid of the testimony to be corroborated, and that such corroborating evidence must connect or tend to connect the accused with the commission of the crime with which he is charged.

The corroborating evidence should be considered in conjunction with the accomplice’s testimony, and such evidence must be consistent and harmonious with his testimony. Johnson v. State, 501 P.2d 762 (Alaska 1972).

Knowledge of crime or concealment of that knowledge is insufficient. —

Neither the knowledge that a crime is being committed, nor the concealment of that knowledge, makes a person an accomplice, unless he aided or participated in the offense or conspired to commit it. Daniels v. State, 383 P.2d 323 (Alaska 1963), cert. denied, 375 U.S. 979, 84 S. Ct. 502, 11 L. Ed. 2d 424 (U.S. 1964).

Wife may corroborate testimony of husband. —

The trial court ruled correctly that wife was not an accomplice and that her evidence could be used to corroborate the testimony of the defendants’ accomplice, her husband. Daniels v. State, 383 P.2d 323 (Alaska 1963), cert. denied, 375 U.S. 979, 84 S. Ct. 502, 11 L. Ed. 2d 424 (U.S. 1964).

Function of court. —

It is the court’s function to determine whether the evidence was sufficient to meet the statutory requirement of corroboration. Oxenberg v. State, 362 P.2d 893 (Alaska), cert. denied, 368 U.S. 56, 82 S. Ct. 189, 7 L. Ed. 2d 128 (U.S. 1961); Thomas v. State, 391 P.2d 18 (Alaska 1964), limited, Doisher v. State, 632 P.2d 242 (Alaska Ct. App. 1981).

It is for the trial judge to determine whether the corroborative evidence could justify a reasonable belief that the accomplice was speaking the truth and the supreme court shall not set aside his determination unless there has been an abuse of discretion. Braham v. State, 376 P.2d 714 (Alaska 1962).

And jury. —

It is the jury’s function to decide whether the evidence is effective in making the accomplice’s testimony worthy of belief. Oxenberg v. State, 362 P.2d 893 (Alaska), cert. denied, 368 U.S. 56, 82 S. Ct. 189, 7 L. Ed. 2d 128 (U.S. 1961); Thomas v. State, 391 P.2d 18 (Alaska 1964), limited, Doisher v. State, 632 P.2d 242 (Alaska Ct. App. 1981).

The weight of the corroborating evidence is for the jury. Christy v. United States, 261 F.2d 357, 17 Alaska 107 (9th Cir. Alaska 1958), cert. denied, 360 U.S. 919, 79 S. Ct. 1438, 3 L. Ed. 2d 1535 (U.S. 1959).

It is the province of the jury to determine the weight and credibility to be given to the evidence of corroboration and to the evidence of the accomplice. Braham v. State, 376 P.2d 714 (Alaska 1962).

And there is question for court only when there is no evidence connecting defendant with crime. —

It is only when there is no evidence tending to connect the defendant with the commission of the crime that a question of law arises upon motion for directed verdict of acquittal. Christy v. United States, 261 F.2d 357, 17 Alaska 107 (9th Cir. Alaska 1958), cert. denied, 360 U.S. 919, 79 S. Ct. 1438, 3 L. Ed. 2d 1535 (U.S. 1959).

Evidence not connecting defendants with crime. —

Where the facts and circumstances relied upon for corroboration did no more than show an opportunity for the defendants to have committed the crimes or connect them with the perpetrators, such evidence did not tend to connect the defendants with the commission of the crimes of which they were convicted. Ing v. United States, 278 F.2d 362 (9th Cir. Alaska 1960).

Sufficiency of corroborating testimony. —

Corroborating testimony is not sufficient if it requires the interpretation and direction of the testimony to be corroborated. Ing v. United States, 278 F.2d 362 (9th Cir. Alaska 1960).

Evidence was sufficient to satisfy the statutory requirement of corroboration. Thomas v. State, 391 P.2d 18 (Alaska 1964), limited, Doisher v. State, 632 P.2d 242 (Alaska Ct. App. 1981).

The statutory requirement of corroboration is satisfied when the corroborating evidence tends to induce in the minds of the jurors a rational belief that the accomplice was speaking the truth when he implicated the defendant in the criminal event. Dimmick v. State, 473 P.2d 616 (Alaska 1970).

The corroborative evidence fulfills the requirement that it tend to connect the defendant with the commission of the crime where it serves as a means of inducing in the minds of the jurors a rational belief that the accomplice was speaking the truth when he implicated the defendant in the criminal event. Pulakis v. State, 476 P.2d 474 (Alaska 1970), overruled, State v. Coon, 974 P.2d 386 (Alaska 1999).

Corroborating evidence need only be sufficient to induce in the minds of the jurors a rational belief that the accomplice was speaking the truth when he implicated the defendant in the criminal event. Anthony v. State, 521 P.2d 486 (Alaska 1974).

Corroborating evidence in appellant juvenile's case was sufficient to support a rational belief that appellant's accomplice was speaking the truth when he implicated appellant in a theft. M.H. v. State, 382 P.3d 1201 (Alaska Ct. App. 2016).

Accomplice’s testimony sufficiently corroborated to satisfy this section. —

See Jackson v. State, 695 P.2d 227 (Alaska Ct. App. 1985); Silvernail v. State, 777 P.2d 1169 (Alaska Ct. App. 1989).

In a prosecution for unnatural carnal copulation, there was ample corroboration of alleged accomplice’s testimony. Christy v. United States, 261 F.2d 357, 17 Alaska 107 (9th Cir. Alaska 1958), cert. denied, 360 U.S. 919, 79 S. Ct. 1438, 3 L. Ed. 2d 1535 (U.S. 1959).

In defendant’s assault trial, evidence was sufficient to corroborate accomplice testimony that defendant participated in the assault where a police officer testified that he interviewed defendant and defendant admitted hitting the victim in the chest, where another witness testified that defendant admitted participating in the assault, and where the bottoms of defendant’s shoes matched footprints that the police found at the scene of the assault. Itta v. State, 191 P.3d 1013 (Alaska Ct. App. 2008).

Raising issue of erroneously allowing uncorroborated testimony to go to jury. —

That it was error for the court to allow uncorroborated testimony to go to the jury is an issue properly raised by a motion for judgment of acquittal. Beavers v. State, 492 P.2d 88 (Alaska 1971).

Section inapplicable to grand jury proceedings. —

This section’s evidentiary requirement of corroboration is inapplicable to grand jury proceedings. Merrill v. State, 423 P.2d 686 (Alaska), cert. denied, 386 U.S. 1040, 87 S. Ct. 1497, 18 L. Ed. 2d 607 (U.S. 1967).

There is no requirement in either Alaska’s Code of Criminal Procedure, or in its Rules of Criminal Procedure, that an accomplice’s testimony be corroborated before an indictment can be properly returned. Merrill v. State, 423 P.2d 686 (Alaska), cert. denied, 386 U.S. 1040, 87 S. Ct. 1497, 18 L. Ed. 2d 607 (U.S. 1967).

Sec. 12.45.030. Necessary evidence for false pretenses. [Repealed, § 21 ch 166 SLA 1978.]

Sec. 12.45.035. Admissibility of DNA profiles.

  1. In a criminal action or proceeding, evidence of a DNA profile is admissible to prove or disprove any relevant fact, if the court finds that the technique underlying the evidence is scientifically valid. The admission of the DNA profile does not require a finding of general acceptance in the relevant scientific community of DNA profile evidence.
  2. In this section,
    1. “deoxyribonucleic acid” means the molecules in all cellular forms that contain genetic information in a patterned chemical structure for each individual;
    2. “DNA profile”
      1. means an analysis of blood, semen, tissue, or other cells bearing deoxyribonucleic acid resulting in the identification of the individual’s patterned chemical structure of genetic information;
      2. includes statistical population frequency comparisons of the patterned chemical structures described in (A) of this paragraph.

History. (§ 2 ch 7 SLA 1995)

Notes to Decisions

Admission of DNA was harmless error. —

Admission of DNA evidence during defendant’s trial for sexual abuse of a minor was error because it was not accompanied by population frequency statistics; however, the error was harmless because such admission did not appreciably affect the jury’s verdict. Peters v. State, 18 P.3d 1224 (Alaska Ct. App. 2001).

Cited in

Harmon v. State, 908 P.2d 434 (Alaska Ct. App. 1995).

Sec. 12.45.037. Admissibility of expert testimony relating to criminal street gang activity.

  1. In a criminal prosecution, expert testimony is admissible to show, in regard to a specific criminal street gang or criminal street gangs whose conduct is relevant to the case,
    1. common characteristics of persons who are members of the criminal street gang or criminal street gangs;
    2. rivalries between specific criminal street gangs;
    3. common practices and operations of the criminal street gang or criminal street gangs and the members of those gangs;
    4. social customs and behavior of members of the criminal street gang or the criminal street gangs;
    5. terminology used by members of the criminal street gang or the criminal street gangs;
    6. codes of conduct of the particular criminal street gang or criminal street gangs; and
    7. the types of crimes that are likely to be committed by the particular criminal street gang.
  2. In this section, “criminal street gang” has the meaning given in AS 11.81.900(b) .

History. (§ 6 ch 60 SLA 1996)

Sec. 12.45.040. Necessary evidence for prostitution or seduction. [Repealed, § 21 ch 166 SLA 1978.]

Sec. 12.45.042. Mental examination of victim.

In a criminal prosecution under AS 11.41, the court may not order or compel the victim to undergo a psychiatric or psychological examination unless

  1. the victim’s psychiatric or psychological condition is an element of the offense charged; or
  2. the prosecution has given notice that it will present evidence at trial that the victim suffers from a continuing psychological or psychiatric condition that resulted from the offense charged.

History. (§ 15 ch 63 SLA 1997)

Notes to Decisions

Evaluation denied. —

Superior court did not err in denying defendant's request for an independent psychological evaluation of his daughter because it did not deny the request outright; rather, it indicated that it would order an independent evaluation if the defense attorney could show that the proposed evaluation would have a "beneficial purpose," i.e., that it would provide information that would be useful to the superior court's decision whether to allow the daughter to testify via closed-circuit television. Hughes v. State, — P.3d — (Alaska Ct. App. May 20, 2020).

Sec. 12.45.045. Evidence of past sexual conduct in trials of certain sexual offenses.

  1. In prosecutions for the crimes of sexual assault in any degree, sexual abuse of a minor in any degree, unlawful exploitation of a minor, or an attempt to commit any of these crimes, evidence of the sexual conduct of the complaining witness, occurring either before or after the offense charged, may not be admitted nor may reference be made to it in the presence of the jury except as provided in this section. When the defendant seeks to admit the evidence for any purpose, the defendant shall apply for an order of the court not later than five days before trial or at a later time as the court may, for good cause, permit. The defendant may, for good cause shown, apply for an order during trial if the request is based on information learned after the deadline or during the trial. After the application is made, the court shall conduct a hearing in camera to determine the admissibility of the evidence. If the court finds that evidence offered by the defendant regarding the sexual conduct of the complaining witness is relevant, and that the probative value of the evidence offered is not outweighed by the probability that its admission will create undue prejudice, confusion of the issues, or unwarranted invasion of the privacy of the complaining witness, the court shall make an order stating what evidence may be introduced and the nature of the questions that may be permitted. The defendant may then offer evidence under the order of the court.
  2. In the absence of a persuasive showing to the contrary, evidence of the complaining witness’ sexual conduct occurring more than one year before the date of the offense charged is presumed to be inadmissible under this section.
  3. In this section “complaining witness” means the alleged victim of the crime charged, the prosecution of which is subject to this section.

History. (§ 1 ch 165 SLA 1975; am § 18 ch 166 SLA 1978; am § 4 ch 39 SLA 1985; am § 16 ch 43 SLA 2013)

Cross references. —

For similar court rule, see Alaska Rule of Evidence 404(a)(2).

For effect of the 2013 amendments to AS 12.45.045(a) on Rule 404(a), Alaska Rules of Evidence, see sec. 45, ch. 43, SLA 2013 in the 2013 Temporary and Special Acts.

For governor’s transmittal letter for ch. 43, SLA 2013 (SB 22), see 2013 Senate Journal 38 — 39.

Effect of amendments. —

The 2013 amendment, effective July 1, 2013, in the first sentence of (a), substituted “the sexual conduct of the complaining witness, occurring either before or after the offense charged,” for “the complaining witness’ previous sexual conduct”; in the second sentence of (a), substituted “not later than five days before the trial or at a later time as the court may, for good cause, permit” for “at any time before or during the trial or preliminary hearing”; added the third sentence of (a).

Editor’s notes. —

Under sec. 46(b), ch. 43, SLA 2013, the 2013 changes to (a) of this section apply to offenses committed before, on, or after July 1, 2013.

Notes to Decisions

Constitutionality. —

When properly applied, the rape shield statute will not encroach on the confrontation clause, because there is no right to confront and cross-examine on irrelevant issues. Jager v. State, 748 P.2d 1172 (Alaska Ct. App. 1988).

Legislative intent. —

The legislative history of this section clearly indicates that the original statute, even before it was amended in 1985, was meant to include victims of sexual abuse as well as victims of rape. Jager v. State, 748 P.2d 1172 (Alaska Ct. App. 1988).

Good cause exception to deadline. —

In response to defendant’s challenge to this section, the appellate court concluded that the statute does, in fact, contain a general good cause exception to the statutory deadline; and that the exception allows a court to consider a mid-trial application to present evidence of the complaining witness’s sexual history even if the defendant was aware of that information before the statutory deadline. State v. Stidston, 343 P.3d 911 (Alaska Ct. App. 2015).

Screening of evidence. —

Although the rape shield law requires the defendant to seek the court’s permission before introducing any evidence of the victim’s prior sexual activity, this procedural safeguard does not bar all evidence of prior sexual activity between the defendant and the victim, but rather is written broadly to ensure that all evidence is screened before being presented to the jury. Napoka v. State, 996 P.2d 106 (Alaska Ct. App. 2000).

When evidence excluded. —

The primary purpose of the rape shield statute is to prevent the use of evidence of past sexual conduct as proof of the victim’s current willingness to consent. Daniels v. State, 767 P.2d 1163 (Alaska Ct. App. 1989).

The rape shield statute is not intended to exclude evidence of prior sexual conduct when such evidence is directly relevant to establish bias, prejudice, or motive to fabricate. Daniels v. State, 767 P.2d 1163 (Alaska Ct. App. 1989).

Both the rape shield statute’s rule of exclusion and Alaska Rule of Evidence 404(b)(1) bar specified evidence when that evidence is offered for a specific prohibited purpose. Napoka v. State, 996 P.2d 106 (Alaska Ct. App. 2000).

Virginity evidence excluded. —

This rule precludes the use of evidence of a victim’s virginity or lack of sexual experience as circumstantial proof of the victim’s current unwillingness to consent to a particular sexual act, its probative value being relatively inconsequential since it renders consent neither more nor less likely. Heath v. State, 849 P.2d 786 (Alaska Ct. App. 1993).

Balancing test for admissibility. —

The balancing test established by the rape shield statute is substantially similar to the test of Alaska Rule of Evidence 403, which provides for the exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time. Only when the probative value of evidence relating to prior sexual conduct is outweighed by its potential for prejudice can that evidence be excluded. Jager v. State, 748 P.2d 1172 (Alaska Ct. App. 1988).

Defense based on misunderstanding as to victim’s age. —

Defendant was entitled to defend a charge of sexual abuse of a minor in the second degree on the ground that he reasonably believed the thirteen year old victim was sixteen years of age or older, where most of the information he knew about her came from a telephone conversation with her in which he claimed she discussed her prior sexual history and experience in detail. Bibbs v. State, 814 P.2d 738 (Alaska Ct. App. 1991).

In camera hearing before presenting evidence. —

In prosecution for attempted sexual assault in the first degree, defendant’s counsel should have moved for an in camera hearing before presenting any evidence relating to the victim’s prior sexual conduct. Baden v. State, 667 P.2d 1275 (Alaska Ct. App. 1983).

Evidence properly excluded. —

Where the primary purpose for which the evidence was offered was to show that, in the months prior to the alleged assault, the parties had been involved in a relationship that was sexual, rather than merely platonic, the evidence was properly excluded. Wood v. State, 736 P.2d 363 (Alaska Ct. App. 1987).

Defendant, who was convicted of sexually abusing his two daughters, was not allowed to introduce evidence of prior abuse years earlier of one victim by her grandfather. There was no evidence suggesting that the victim confused the abuse by the grandfather with the abuse by her father. Hersh v. State, — P.3d — (Alaska Ct. App. Dec. 21, 2011) (memorandum decision).

Evidence of the victim’s alleged flirtatious conduct with a cab driver which occurred more than a year after the assault with which the defendant was charged was inadmissible. Exclusion of the evidence did not violate defendant’s right of confrontation, and was proper based on the policy underlying this section. The judge concluded the victim’s behavior with the cab driver had little relevance and that admission of the evidence would be unfairly prejudicial. Olsen v. State, — P.3d — (Alaska Ct. App. Feb. 13, 2013) (memorandum decision).

During defendant's trial for second-degree sexual assault, the trial court did not err by excluding defendant's girlfriend's testimony about the victim's alleged sexual overture toward her because the trial court could have reasonably concluded that the evidence said little or nothing about the victim's willingness to engage in consensual activity with defendant several hours later and that it was not particularly relevant to whether the victim was incapacitated when defendant engaged in sex with her several hours after the alleged overture. Ackerman v. State, — P.3d — (Alaska Ct. App. Feb. 20, 2019) (memorandum decision).

Evidence of a sexual assault victim's prior assault was properly excluded because (1) it was not shown that the two assaults were similar, and (2) the victim's characterization of the experience during the charged assault as being in a dreamlike state did not show the victim imagined the assault. Dunn v. State, — P.3d — (Alaska Ct. App. Nov. 20, 2019) (memorandum decision).

Evidence improperly excluded. —

The trial court erred in excluding evidence regarding the victim’s prior sexual activity with the defendant where that evidence did not hinge on any inference concerning the victim’s character but was important because of what it revealed about the relationship between the victim and the defendant and how that might have influenced the defendant’s perception of whether consent to sexual activity had been given. Napoka v. State, 996 P.2d 106 (Alaska Ct. App. 2000).

Where the victim had previously falsely alleged that another man had sexually assaulted her on an earlier occasion and the state interjected the alleged rape into the present case and made its occurrence a central part of the case against defendant, defendant was entitled to litigate the truth or falsity of the victim’s earlier rape report, and because it was an abuse of discretion to exclude the testimony of the man accused on the earlier occasion, reversal was required. Worthy v. State, 999 P.2d 771 (Alaska 2000).

Defendant offered evidence of alleged victim’s prior sexual abuse to explain the victim’s sexualized behavior and why the victim might falsely have accused defendant. Therefore, to the extent that the superior court excluded the evidence under the rape shield law, the court erred. W.L. v. State, — P.3d — (Alaska Ct. App. Apr. 15, 2015) (memorandum decision).

Applied in

Padgett v. State, 590 P.2d 432 (Alaska 1979); Moss v. State, 620 P.2d 674 (Alaska 1980); Kvasnikoff v. State, 674 P.2d 302 (Alaska Ct. App. 1983); Patterson v. State, 689 P.2d 146 (Alaska Ct. App. 1984); Williamson v. State, 692 P.2d 965 (Alaska Ct. App. 1984).

Quoted in

Wood v. Alaska, 957 F.2d 1544 (9th Cir. Alaska 1992).

Cited in

Oswald v. State, 715 P.2d 276 (Alaska Ct. App. 1986).

Collateral references. —

Modern status of admissibility, in statutory rape prosecution, of complainant’s prior sexual acts or general reputation for unchastity. 90 ALR3d 1300.

Modern status of admissibility, in forcible rape prosecution, of complainant’s prior sexual acts. 94 ALR3d 257.

Sec. 12.45.046. Testimony of children in criminal proceedings.

  1. In a criminal proceeding under  AS 11.41 involving the prosecution of an offense committed against a child under the age of 16, or witnessed by a child under the age of 16, the court
    1. may appoint a guardian ad litem for the child;
    2. on its own motion or on the motion of the party presenting the witness or the guardian ad litem of the child, may order that the testimony of the child be taken by closed circuit television or through one-way mirrors if the court determines that the testimony by the child victim or witness under normal court procedures would result in the child’s inability to effectively communicate.
  2. In making a determination under (a)(2) of this section, the court shall consider factors it considers relevant, including
    1. the child’s chronological age;
    2. the child’s level of development;
    3. the child’s general physical health;
    4. any physical, emotional, or psychological injury experienced by the child; and
    5. the mental or emotional strain that will be caused by requiring the child to testify under normal courtroom procedures.
  3. If the court determines under (a)(2) of this section that the testimony by the child victim or witness under normal court procedures would result in the child’s inability to effectively communicate, the court may order that the testimony of the child be taken in a room other than the courtroom and be televised by closed circuit equipment in the courtroom to be viewed by the defendant, the court, and the finder of fact in the proceeding. If the court authorizes use of closed circuit televised testimony under this subsection,
    1. each of the following may be in the room with the child when the child testifies:
      1. the prosecuting attorney;
      2. the attorney for the defendant; and
      3. operators of the closed circuit television equipment;
    2. the court may, in addition to persons specified in (1) of this subsection, admit a person whose presence, in the opinion of the court, contributes to the well-being of the child.
  4. When a child is to testify under (c) of this section, only the court and counsel may question the child. The persons operating the equipment shall do so in as unobtrusive a manner as possible. If the defendant requests, the court shall excuse the defendant from the courtroom, shall permit the defendant to attend in another location, and shall afford the defendant a means of viewing the child’s testimony and of communicating with the defendant’s attorney throughout the proceedings. Upon request of the defendant or the defendant’s attorney, the court shall permit a recess to allow them to confer. The court shall provide a means of communicating with the attorneys during the questioning of the child. Objections made by the attorneys to questions of a child witness may be resolved in the courtroom if the court finds it necessary.
  5. If the court determines under (a)(2) of this section that the testimony by the child victim or witness under normal court procedures would result in the child’s inability to effectively communicate, the court may authorize the use of one-way mirrors in conjunction with the taking of the child’s testimony. The attorneys may pose questions to the child and have visual contact with the child during questioning, but the mirrors shall be placed to provide a physical shield so that the child does not have visual contact with the defendant and jurors.
  6. If the court does not find under (a)(2) of this section that the testimony by the child victim or witness under normal court procedures will result in the child’s inability to effectively communicate, the court may, after taking into consideration the factors specified in (b) of this section, supervise the spatial arrangements of the courtroom and the location, movement, and deportment of all persons in attendance so as to safeguard the child from emotional harm or stress. In addition to other procedures it finds appropriate, the court may
    1. allow the child to testify while sitting on the floor or on an appropriately sized chair;
    2. schedule the procedure in a room that provides adequate privacy, freedom from distractions, informality, and comfort appropriate to the child’s developmental age; and
    3. order a recess when the energy, comfort, or attention span of the child warrants.

History. (§ 2 ch 92 SLA 1988; am § 1 ch 78 SLA 1994)

Cross references. —

For statement of legislative purpose, see sec. 1, ch. 92, SLA 1988 in the Temporary and Special Acts.

See Rule 801(d)(3), Alaska Rules of Evidence, for the admissibility into evidence of a prior recorded statement of a crime victim who is less than 16 years of age as an exception to the rule barring use of hearsay evidence.

See Rule 38.3, Alaska Rules of Criminal Procedure, for related procedure for testimony by video conference.

Notes to Decisions

Confrontation with accuser. —

The constitution forbids denying the accused face-to-face confrontation with an accuser in a criminal trial absent specific evidence and an express finding that the probable effect of the defendant’s presence on the witness would significantly impair the substance of the witness’s testimony. A mere finding of some general, or de minimis effect will not suffice. Likewise, generalized, subjective impressions or assumptions will not substitute for case-specific evidence. Blume v. State, 797 P.2d 664 (Alaska Ct. App. 1990).

Right to confront witnesses. —

A defendant’s constitutional right to confront the witnesses against him was not violated where, in his trial for assault on his wife, his son testified from a smaller chair arranged perpendicular to where the defendant was sitting, and the trial judge’s finding that the child’s position relative to his father was “not really different from where their positions would be if he were in the regular witness chair” was not clearly erroneous. Brandon v. State, 839 P.2d 400 (Alaska Ct. App. 1992).

The preponderance of the evidence standard cannot provide sufficient protection against violation of a defendant’s right to confrontation, and no dilution of the right of confrontation should be permitted without an express finding that the requirements of this section, including the requirements of Maryland v. Craig, 497 U.S. 836 (1990), that are implicit therein, have been met by clear and convincing evidence. Reutter v. State, 886 P.2d 1298 (Alaska Ct. App. 1994).

Requirements for showing inability to communicate. —

This section requires that a determination of the child’s inability to effectively communicate under paragraph (a)(2) must be based on case-specific evidence establishing that (1) the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant, (2) confrontation would pose a threat of serious emotional harm to the child; and (3) the use of the special procedure authorized under this section is therefore necessary to protect the welfare of the particular child witness who seeks to testify. Reutter v. State, 886 P.2d 1298 (Alaska Ct. App. 1994), incorporating the requirements of Maryland v. Craig, 497 U.S. 836, 110 S. Ct. 3157, 111 L. Ed. 2d 666 (U.S. 1990).

Stated in

Vince B. v. Sarah B., 425 P.3d 55 (Alaska 2018).

Cited in

Renkel v. State, 807 P.2d 1087 (Alaska Ct. App. 1991).

Collateral references. —

Closed-circuit television witness examination. 61 ALR4th 1155.

Exclusion of public from state criminal trial by conducting trial or part thereof at other than regular place or time. 70 A.L.R.4th 632.

Secs. 12.45.047, 12.45.048. Testimony by young victim of sexual offense. [Repealed, § 4 ch 92 SLA 1988.]

Sec. 12.45.049. Privilege relating to domestic violence and sexual assault counseling.

Confidential communications between a victim of domestic violence or sexual assault and a victim counselor are privileged under AS 18.66.200 — 18.66.250 .

History. (§ 2 ch 95 SLA 1992)

Revisor’s notes. —

In 1996, “AS 18.66.200 — 18.66.250 ” was substituted for “AS 25.35.100 — 25.35.150” to reflect the 1996 renumbering of AS 25.35.100 — 25.35.150.

Sec. 12.45.050. Limitation on discovery of statement of prosecution witness.

In a criminal prosecution, no statement or report in the possession of the state which was made by a prosecution witness or prospective prosecution witness (other than the defendant) to an agent of the state may be the subject of subpoena, discovery, or inspection until the witness has testified on direct examination at the preliminary hearing, or in the trial of the case.

History. (§ 6.05 ch 34 SLA 1962; am § 1 ch 22 SLA 1965)

Notes to Decisions

Quoted in

Miller v. State, 462 P.2d 421 (Alaska 1969).

Cited in

Martinez v. State, 423 P.2d 700 (Alaska 1967).

Sec. 12.45.060. Discovery after direct examination of witness.

After a witness called by the state has testified on direct examination, the court shall, on motion of the defendant, order the state to produce any statement of the witness in the possession of the state that relates to the subject matter as to which the witness has testified. If the entire contents of the statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for examination and use.

History. (§ 6.06 ch 34 SLA 1962)

Notes to Decisions

Based on Jencks Act. —

This statute was modeled after the federal Jencks Act, 18 U.S.C. § 3500. Therefore, when faced with questions requiring the interpretation of the statute the court has turned to federal case law for instruction. Putnam v. State, 629 P.2d 35 (Alaska 1980).

Criminal R. 16 and Jencks Act not inconsistent. —

Alaska Rule of Criminal Procedure 16 governs pretrial discovery while the Jencks Act, 18 U.S.C. § 3500, governs discovery during trial. Although the same evidence may be discoverable under both the rule and the statute, they are not so overlapping as to be inconsistent. Putnam v. State, 629 P.2d 35 (Alaska 1980).

Duty of state to preserve evidence. —

It is the state’s duty to preserve any evidence which is discoverable by the defendant. This duty attaches once any arm of the state has first gathered and taken possession of the evidence in question. Putnam v. State, 629 P.2d 35 (Alaska 1980).

The state’s duty to preserve evidence that is discoverable by the defendant attaches once any arm of the state has first gathered and taken possession of the evidence in question. In this case involving killing a moose same day airborne, the state never had possession or control of any items that might have been found at the remote kill site, so the duty to preserve evidence was never activated. March v. State, 859 P.2d 714 (Alaska Ct. App. 1993).

Discovery of confidential materials. —

The proper procedure to be followed when a party requests discovery of confidential materials is for the court to conduct an in camera inspection of those materials and then determine which, if any, are discoverable. As long as the party seeking discovery has a good faith basis for asserting that the materials in question may lead to the disclosure of favorable evidence, the trial court should conduct an in camera review before ruling on a request for discovery. March v. State, 859 P.2d 714 (Alaska Ct. App. 1993).

When sanctions appropriate. —

Where it appears that the evidence was lost or destroyed in good faith, the imposition of sanctions will depend upon the degree to which the defendant has been prejudiced. Putnam v. State, 629 P.2d 35 (Alaska 1980); Abdulbaqui v. State, 728 P.2d 1211 (Alaska Ct. App. 1986).

Where the evidence in question was destroyed in bad faith or as part of a deliberate attempt to avoid production, sanctions will normally follow. Putnam v. State, 629 P.2d 35 (Alaska 1980); Abdulbaqui v. State, 728 P.2d 1211 (Alaska Ct. App. 1986).

When sanctions inappropriate. —

Assuming, without deciding, that the state has a duty to preserve police dispatch tapes, the state court of appeals found that the state had met its burden of establishing that the destruction of the tape was done in good faith and had demonstrated that the defendant was not prejudiced by the tape’s destruction where. Even if the tape had been preserved, it would have been cumulative of other evidence and not particularly favorable to the defendant. Abdulbaqui v. State, 728 P.2d 1211 (Alaska Ct. App. 1986).

Discretion of trial court. —

What sanction is appropriate in a given case is best left to the sound discretion of the trial court. Putnam v. State, 629 P.2d 35 (Alaska 1980).

Good faith alone does not excuse breach. —

That evidence was deliberately not preserved in good faith as a result of ignorance or as part of a department policy, established practice, or anything of this nature will not automatically excuse the state’s breach of its duty. The mere fact of good faith does not make the state’s breach any less a violation of Alaska Rule of Criminal Procedure 16 or the Jencks Act, 18 U.S.C. § 3500. Putnam v. State, 629 P.2d 35 (Alaska 1980).

Burden of proof. —

The heavy burdens of establishing that the failure to preserve the evidence occurred in good faith and not out of a desire to suppress evidence and of demonstrating that the defendant has suffered no resulting prejudice rest squarely on the shoulders of the state. Putnam v. State, 629 P.2d 35 (Alaska 1980).

Strict application of harmless error doctrine. —

The difficulties involved in speculating whether or not the lost or destroyed materials could have been utilized effectively at trial mandate that the harmless error doctrine be strictly applied. Putnam v. State, 629 P.2d 35 (Alaska 1980).

Cryptic summaries of statements made by interviewed witnesses are not producible. —

While there is generally no “work product” exception to production under the Jencks Act, 18 U.S.C. § 3500, “mere jottings” or cryptic summaries of statements made by interviewed witnesses are not producible. Wright v. State, 501 P.2d 1360 (Alaska 1972).

As cryptic summaries of statements made by an interviewed witness, notes made by a district attorney do not qualify as producible statements under the Jencks Act, 18 U.S.C. § 3500. Wright v. State, 501 P.2d 1360 (Alaska 1972).

Where notes taken by the district attorney were part of the record before the supreme court and consisted of seven pages of legal sized note paper filled with comments, questions, and one diagram which according to testimony were taken during a one hour interview between a witness and the district attorney, such notes did not qualify as a statement under the Jencks Act, 18 U.S.C. § 3500, since they were neither a substantially verbatim statement of what the witness said nor were they ever approved by the witness. Wright v. State, 501 P.2d 1360 (Alaska 1972).

Destruction of notes prior to trial viewed as device to avoid production. —

The destruction of notes prior to trial has been viewed as a device used by some law enforcement officials to avoid production under the Jencks Act, 18 U.S.C. § 3500. Wright v. State, 501 P.2d 1360 (Alaska 1972).

Unless destruction was in good faith. —

If notes were destroyed in good faith, without the intent to avoid production, it is the general rule that their destruction is not a ground for reversal. Wright v. State, 501 P.2d 1360 (Alaska 1972).

Where notes taken by a police captain appear to have been destroyed in good faith by police personnel during the absence of the captain from the state, where they were in cryptic form, it is quite possible that they did not seem to be important documents and were destroyed during a periodic clean-up of the captain’s office; therefore their destruction cannot be viewed as prejudicial. Wright v. State, 501 P.2d 1360 (Alaska 1972).

Quoted in

Miller v. State, 462 P.2d 421 (Alaska 1969).

Cited in

Martinez v. State, 423 P.2d 700 (Alaska 1967).

Sec. 12.45.070. Discovery of portions of statement.

If the state claims that any statement ordered to be produced under AS 12.45.060 contains matter that does not relate to the subject matter of the testimony of the witness, the court shall order the state to deliver the statement for the inspection of the court in chambers. Upon delivery the court shall excise the portions of the statement that do not relate to the subject matter of the testimony of the witness. With the material excised, the court shall then direct delivery of the statement to the defendant for the use of the defendant. If, pursuant to this procedure, any portion of the statement is withheld from the defendant and the defendant objects to the withholding, and the trial is continued to an adjudication of the guilt of the defendant, the entire text of the statement shall be preserved by the state and, in the event the defendant appeals, shall be made available to the appellate court for the purpose of determining the correctness of the ruling of the trial judge. When a statement is delivered to a defendant, the court may recess the trial for the defendant’s examination of the statement and preparation for its use in the trial.

History. (§ 6.07 ch 34 SLA 1962)

Notes to Decisions

Duty of state to preserve evidence. —

See case annotations following AS 12.45.060 .

Applied in

Putnam v. State, 629 P.2d 35 (Alaska 1980).

Cited in

Martinez v. State, 423 P.2d 700 (Alaska 1967).

Collateral references. —

23 C.J.S., Criminal Law, § 1220 et seq.

26B C.J.S., Depositions, § 1 et seq.

Exclusion of evidence in state criminal action for failure of prosecution to comply with discovery requirements as to physical or documentary evidence or the like—modern cases. 27 ALR4th 105.

Sec. 12.45.080. Disposition of proceeding upon failure of state to comply with order.

If the state elects not to comply with an order of the court to deliver to the defendant a statement or a portion of a statement as the court may direct, the court shall strike from the record the testimony of the witness, and the preliminary hearing or trial shall proceed unless the court in its discretion determines that the interests of justice require that the preliminary hearing be terminated immediately or a mistrial be declared.

History. (§ 6.08 ch 34 SLA 1962; am § 2 ch 22 SLA 1965)

Notes to Decisions

Failure to comply with production order results in striking testimony or in mistrial. —

Failure of the state to comply with a production order results either in striking the testimony of the witness or in a mistrial. Wright v. State, 501 P.2d 1360 (Alaska 1972).

Destruction of notes prior to trial viewed as device to avoid production. —

The destruction of notes prior to trial has been viewed as a device used by some law enforcement officials to avoid production under the Jencks Act, 18 U.S.C. § 3500. Wright v. State, 501 P.2d 1360 (Alaska 1972).

Duty of state to preserve evidence. —

See note to AS 12.45.060 , Notes to Decisions.

Applied in

Putnam v. State, 629 P.2d 35 (Alaska 1980).

Quoted in

Miller v. State, 462 P.2d 421 (Alaska 1969).

Cited in

Martinez v. State, 423 P.2d 700 (Alaska 1967).

Sec. 12.45.082. Definition of “statement”.

In AS 12.45.060 — 12.45.080 , the term “statement,” in relation to any witness called by the state, means

  1. a written statement made by the witness and signed or otherwise adopted or approved by the witness; or
  2. a stenographic, mechanical, electrical, or other recording, or a transcription of the statement that is a substantially verbatim recital of an oral statement made by the witness to an agent of the state and recorded contemporaneously with the making of the oral statement.

History. (§ 6.09 ch 34 SLA 1962)

Revisor’s notes. —

Formerly AS 12.45.160 . Renumbered in 1984.

Notes to Decisions

Applied in

Wright v. State, 501 P.2d 1360 (Alaska 1972).

Sec. 12.45.083. Mental disease or defect excluding responsibility. [Repealed, § 42 ch 143 SLA 1982. For present provisions, see AS 12.47.]

For present provisions, see AS 12.47.

For present provisions, see AS 12.47.

Sec. 12.45.084. Laboratory report of controlled substances.

  1. In a prosecution under AS 11.71.010 — 11.71.060 , a complete copy of an official laboratory report from the Department of Public Safety or a laboratory operated by another law enforcement agency is prima facie evidence of the content, identity, and weight of a controlled substance.  The report must be signed by the person performing the analysis and must state that the substance which is the basis of the alleged offense has been weighed and analyzed.  In the report, the author shall state with specificity findings as to the content, weight, and identity of the substance.
  2. A sworn statement prepared by the author of the report provided for in (a) of this section must be attached to the report.  The statement must set out the identity of the author and include a statement that the author is an employee of the laboratory issuing the report and that performing the analysis is a part of the author’s regular duties.  The statement must also include an outline of the author’s education, training, and experience for performing an analysis. The author shall state that scientifically accepted tests were performed with due caution, and whether to the author’s knowledge the evidence was handled in accordance with established and accepted procedures while in the custody of the laboratory.
  3. The prosecuting attorney shall serve a copy of the report on the attorney of record for the accused, or on the defendant if the defendant has no attorney, not later than 20 days before a proceeding in which the report is to be used against the accused.  However, at a preliminary hearing or grand jury proceeding, the report may be used without having previously been served upon the accused.
  4. The accused or the accused’s attorney may demand the testimony of the person signing the report, by serving a written demand showing cause upon the prosecuting attorney within seven days from receipt of the report.
  5. A report issued for use under this section must contain notice of the right of the accused to demand the testimony of the person signing the report.

History. (§ 16 ch 45 SLA 1982)

Revisor’s notes. —

Formerly AS 12.45.155 . Renumbered in 1995.

In 2008, “11.71.060” was substituted for “11.71.070” in subsection (a) to reflect the 1991 repeal of AS 11.71.070 .

Sec. 12.45.085. Evidence of mental disease or defect. [Repealed, § 42 ch 143 SLA 1982. For present provisions, see AS 12.47.]

For present provisions, see AS 12.47.

For present provisions, see AS 12.47.

Sec. 12.45.086. Photographic evidence of property wrongfully taken or damaged.

  1. In a criminal proceeding or a children’s court proceeding involving the wrongful taking or damaging of property, photographs of the property are competent evidence of the property and are admissible in the proceeding to the same extent as if the property had been introduced as evidence.
  2. Photographs of property that are to be introduced as evidence under this section shall be accompanied by a written description of the property, the name of the owner of the property, the location where the alleged crime occurred, the name of the investigating peace officer, the date the photograph was taken, and the name and signature of the photographer.  The written description shall be signed by the investigating peace officer under penalty of perjury under AS 09.63.020 .
  3. In a prosecution for a violation of AS 11.46.120 — 11.46.150 in which the property is commercial fishing gear as defined in AS 16.43.990 , the gear shall be returned to the owner as soon as possible.  The prosecutor may obtain photographs of the gear for use as evidence in accordance with (a) and (b) of this section.

History. (§ 40 ch 143 SLA 1982; am § 2 ch 73 SLA 1986)

Revisor’s notes. —

Formerly AS 12.80.050 . Renumbered in 1995. To the extent that the provisions of this section conflict with the Alaska Rules of Evidence, the rules control, as § 44, ch. 143, SLA 1982 did not receive the required 2/3 vote in the legislature.

Notes to Decisions

Applied in

Hatfield v. State, 663 P.2d 987 (Alaska Ct. App. 1983).

Quoted in

Page v. State, 725 P.2d 1082 (Alaska 1986).

Secs. 12.45.087 — 12.45.115. Psychiatric examination; procedure. [Repealed, § 42 ch 143 SLA 1982. For present provisions, see AS 12.47.]

For present provisions, see AS 12.47.

For present provisions, see AS 12.47.

Article 3. Compromise and Satisfaction.

Sec. 12.45.120. Authority to compromise misdemeanors for which victim has civil action.

If a defendant is held to answer on a charge of misdemeanor for which the person injured by the act constituting the crime has a remedy by a civil action, the crime may be compromised except when it was committed

  1. by or upon a peace officer, judge, or magistrate while in the execution of the duties of that office;
  2. riotously;
  3. with an intent to commit a felony;
  4. larcenously;
  5. against
    1. a spouse or a former spouse of the defendant;
    2. a parent, grandparent, child, or grandchild of the defendant;
    3. a member of the social unit comprised of those living together in the same dwelling as the defendant; or
    4. a person who is not a spouse or former spouse of the defendant but who previously lived in a spousal relationship with the defendant.

History. (§ 6.13 ch 34 SLA 1962; am § 15 ch 8 SLA 1971; am § 1 ch 4 SLA 1988)

Notes to Decisions

No authority to dismiss indictment. —

Because the trial court did not conduct a hearing or approve the civil compromise until after the State indicted defendant, and because Alaska law did not authorize the compromise of a felony crime, the court had no authority to dismiss the charges against defendant under the civil compromise statutes after defendant was indicted; thus, the trial court erred in dismissing the indictment. State v. Azzarella, 483 P.3d 904 (Alaska Ct. App. 2021).

Approval by court required. —

Civil compromise is not effective unless and until it is approved by the court. State v. Azzarella, 483 P.3d 904 (Alaska Ct. App. 2021).

Accused has no right to dismissal. —

Under the Alaska civil compromise statute, the decision whether to dismiss or prosecute is vested in the sound discretion of the trial court; and no right to dismissal is conferred upon the accused. State v. Nelles, 713 P.2d 806 (Alaska Ct. App. 1986).

No prosecutorial consent to dismissal necessary. —

There is no suggestion in the civil compromise statutes that the court’s power to dismiss is conditioned upon the agreement of the prosecutor; in fact, the contrary appears to be the case. State v. Nelles, 713 P.2d 806 (Alaska Ct. App. 1986).

No automatic stay of proceedings. —

Filing of the notice of civil compromise did not automatically stay the proceedings, such that the State was barred from securing an indictment until after the trial court conducted the civil compromise hearing because the civil compromise statutes provided that the prosecution could not be stayed except as authorized by law; and there was nothing in the civil compromise statutes to suggest that a stay as a matter of law once a notice was filed. State v. Azzarella, 483 P.3d 904 (Alaska Ct. App. 2021).

Leaving the scene of accident. —

The act constituting the crime of leaving the scene of an accident is the failure to stop and make the necessary exchanges of information or assistance after the accident has occurred. This omission is not one which causes injury to the private citizen within the meaning of the civil compromise statutes. Settlement of the claim for injuries resulting from the accident cannot settle the state’s claim for a violation of its laws. Hensel v. State, 585 P.2d 878 (Alaska 1978).

No double jeopardy violation. —

Trial court's finding that prosecution of the indictment violated double jeopardy was incorrect as the State's decision to indict him was not the result of prosecutorial vindictiveness or an attempt to secure two opportunities to prosecute him; and the State did not convene the grand jury and secure an indictment in response to defendant's notice of civil compromise. State v. Azzarella, 483 P.3d 904 (Alaska Ct. App. 2021).

Legislative concern over domestic violence. —

By enacting the aggravating factor in AS 12.55.155(c)(18)(A) , the legislature has declared that felony assaults against spouses and former spouses are to be considered atypically serious, all else being equal. That provision, along with paragraph (5) of this section, embodies concern over the alarming frequency and devastating consequences of domestic violence. Pickard v. State, 965 P.2d 755 (Alaska Ct. App. 1998).

Applicability of (5)(D). —

The bar against civil compromise set forth in subparagraph (5)(D) is not limited to crimes classified as “offenses against the person,” but applies to all crimes committed against the victims enumerated therein, including property crimes. Municipality of Anchorage v. Sanders, 902 P.2d 347 (Alaska Ct. App. 1995).

Applied in

State v. Nelles, 713 P.2d 806 (Alaska Ct. App. 1986).

Sec. 12.45.130. Acknowledgment of satisfaction by injured party.

If the party injured appears before the court in which the defendant is bound to appear, at any time before trial, and acknowledges in writing that satisfaction has been received for the injury, the court may, on payment of the costs incurred, order the prosecution dismissed and the defendant discharged. The order is a bar to another prosecution for the same crime.

History. (§ 6.14 ch 34 SLA 1962)

Notes to Decisions

No automatic stay of proceedings. —

Filing of the notice of civil compromise did not automatically stay the proceedings, such that the State was barred from securing an indictment until after the trial court conducted the civil compromise hearing because the civil compromise statutes provided that the prosecution could not be stayed except as authorized by law; and there was nothing in the civil compromise statutes to suggest that a stay as a matter of law once a notice was filed. State v. Azzarella, 483 P.3d 904 (Alaska Ct. App. 2021).

Accused has no right to dismissal. —

Under the Alaska civil compromise statute, the decision whether to dismiss or prosecute is vested in the sound discretion of the trial court; and no right to dismissal is conferred upon the accused. State v. Nelles, 713 P.2d 806 (Alaska Ct. App. 1986).

No authority to dismiss indictment. —

Because the trial court did not conduct a hearing or approve the civil compromise until after the State indicted defendant, and because Alaska law did not authorize the compromise of a felony crime, the court had no authority to dismiss the charges against defendant under the civil compromise statutes after defendant was indicted; thus, the trial court erred in dismissing the indictment. State v. Azzarella, 483 P.3d 904 (Alaska Ct. App. 2021).

Approval by court required. —

Civil compromise is not effective unless and until it is approved by the court. State v. Azzarella, 483 P.3d 904 (Alaska Ct. App. 2021).

No prosecutorial consent to dismissal necessary. —

There is no suggestion in the civil compromise statutes that the court’s power to dismiss is conditioned upon the agreement of the prosecutor; in fact, the contrary appears to be the case. State v. Nelles, 713 P.2d 806 (Alaska Ct. App. 1986).

No double jeopardy violation. —

Trial court's finding that prosecution of the indictment violated double jeopardy was incorrect as the State's decision to indict him was not the result of prosecutorial vindictiveness or an attempt to secure two opportunities to prosecute him; and the State did not convene the grand jury and secure an indictment in response to defendant's notice of civil compromise. State v. Azzarella, 483 P.3d 904 (Alaska Ct. App. 2021).

Leaving scene of accident. —

The act constituting the crime of leaving the scene of an accident is the failure to stop and make the necessary exchanges of information or assistance after the accident has occurred. This omission is not one which causes injury to the private citizen within the meaning of the civil compromise statutes. Settlement of the claim for injuries resulting from the accident cannot settle the state’s claim for a violation of its laws. Hensel v. State, 585 P.2d 878 (Alaska 1978).

Sec. 12.45.140. Compromise or stay upon compromise by other means prohibited.

A crime may not be compromised or the prosecution or punishment upon a compromise dismissed or stayed except as provided by law.

History. (§ 6.15 ch 34 SLA 1962)

Notes to Decisions

Leaving scene of accident. —

The act constituting the crime of leaving the scene of an accident is the failure to stop and make the necessary exchanges of information or assistance after the accident has occurred. This omission is not one which causes injury to the private citizen within the meaning of the civil compromise statutes. Settlement of the claim for injuries resulting from the accident cannot settle the state’s claim for a violation of its laws. Hensel v. State, 585 P.2d 878 (Alaska 1978).

No authority to dismiss indictment. —

Because the trial court did not conduct a hearing or approve the civil compromise until after the State indicted defendant, and because Alaska law did not authorize the compromise of a felony crime, the court had no authority to dismiss the charges against defendant under the civil compromise statutes after defendant was indicted; thus, the trial court erred in dismissing the indictment. State v. Azzarella, 483 P.3d 904 (Alaska Ct. App. 2021).

Approval by court required. —

Civil compromise is not effective unless and until it is approved by the court. State v. Azzarella, 483 P.3d 904 (Alaska Ct. App. 2021).

No automatic stay of proceedings. —

Filing of the notice of civil compromise did not automatically stay the proceedings, such that the State was barred from securing an indictment until after the trial court conducted the civil compromise hearing because this statute provided that the prosecution could not be stayed except as authorized by law; and there was nothing in the civil compromise statutes to suggest that a stay entered as a matter of law once a notice was filed. State v. Azzarella, 483 P.3d 904 (Alaska Ct. App. 2021).

Sec. 12.45.150. Order for private prosecutor to pay costs for malicious prosecution without probable cause. [Repealed, § 1 ch 19 SLA 1987.]

Sec. 12.45.155. [Renumbered as AS 12.45.084.]

Renumbered as AS 12.45.084 .

Renumbered as AS 12.45.084 .

Sec. 12.45.160. [Renumbered as AS 12.45.082.]

Renumbered as AS 12.45.082 .

Renumbered as AS 12.45.082 .

Chapter 47. Insanity and Competency to Stand Trial.

Notes to Decisions

Consideration of mental state and mental illness. —

A trial court, in imposing a presumptive sentence, may consider the interplay between the defendant’s mental state and any mental illness he may have in determining whether the defendant has proved by clear and convincing evidence the requirements of paragraph (d)(3). Hart v. State, 702 P.2d 651 (Alaska Ct. App. 1985), declining to overrule Bell v. State, 658 P.2d 787 (Alaska Ct. App. 1983).

Sec. 12.47.010. Insanity as affirmative defense.

  1. In a prosecution for a crime, it is an affirmative defense that when the defendant engaged in the criminal conduct, the defendant was unable, as a result of a mental disease or defect, to appreciate the nature and quality of that conduct.
  2. The affirmative defense defined in (a) of this section may not be raised at trial unless the defendant, within 10 days of entering a plea or such later time as the court may for good cause permit, files a written notice of intent to rely on the defense.
  3. Evidence of a mental disease or defect that is manifested only by repeated criminal or other antisocial conduct is not sufficient to establish the affirmative defense under (a) of this section.
  4. The affirmative defense specified in (a) of this section is the affirmative defense of insanity.  A defendant who successfully raises the affirmative defense of insanity shall be found not guilty by reason of insanity and the verdict shall so state.

History. (§ 22 ch 143 SLA 1982)

Cross references. —

Definition of “affirmative defense,” “mental disease or defect” — AS 12.47.130

Form of verdict when evidence of mental disease or defect admissible — AS 12.47.040

Psychiatric examination — AS 12.47.070

Procedure after raising defense of insanity — AS 12.47.090

Original Code Provision — AS 12.45.083 .

Notes to Decisions

Constitutionality. —

The court of appeals rejected defendant’s argument that this section was adopted in a bill that was not passed by both houses of legislature for the same reasons. Hart v. State, 702 P.2d 651 (Alaska Ct. App. 1985).

Examination erroneously ordered. —

It was error to make defendant waive rights to remain silent and present a defense and submit to psychiatric exams to assert an involuntariness defense because (1) the court did not clearly understand the proposed defense's factual contours without letting defendant make a full offer of proof describing supporting evidence, (2) the facts were not necessarily inconsistent with involuntariness, and (3) the defense was distinct from insanity or diminished capacity. Palmer v. State, 379 P.3d 981 (Alaska Ct. App. 2016).

Construction of subsection (a). —

If the legislature had intended subsection (a) to encompass a defendant’s capacity to appreciate the wrongfulness of his or her conduct, it would have had little reason to enact that language in the AS 12.47.030(a) definition of “guilty but mentally ill.” State v. Patterson, 740 P.2d 944 (Alaska 1987).

Under the rule derived from M’Naghten’s Case , 8 Eng. Rep. 718 (H.L. 1843), a defendant could be found not guilty by reason of insanity: (1) if she did not appreciate the quality and nature of her conduct, or (2) if she did not understand the wrongfulness of her conduct. The statutory definition of the insanity defense in subsection (a) encompasses only the first prong of the traditional M’Naghten insanity defense. State v. Patterson, 740 P.2d 944 (Alaska 1987).

Defendant properly found guilty but mentally ill. —

Defendant who murdered her three sons was properly found to be guilty but mentally ill, rather than not guilty by reason of insanity, despite findings that she killed her children to save them from “Evil” because of her mental illness and that she believed she was doing the right thing. The requisite intent was established because defendant engaged in a deliberate, conscious, and detailed plan to kill her children. Lord v. State, 262 P.3d 855 (Alaska Ct. App. 2011).

Distinguished from rebuttal evidence. —

This section and AS 12.47.030 are consistent with traditional statutes purporting to describe insanity defenses in that they both involve something distinct from, and in addition to, a claim that by virtue of mental illness a person either acted unconsciously or involuntarily or was unable to formulate the necessary mens rea to be guilty of an offense. Hart v. State, 702 P.2d 651 (Alaska Ct. App. 1985).

State may constitutionally eliminate separate insanity defense based on “irresistible impulse” or inability to conform one’s conduct to the requirements of the law. Hart v. State, 702 P.2d 651 (Alaska Ct. App. 1985) (discussing in depth the history of the insanity defense in Alaska).

Defendant could be examined by an independent psychiatrist under AS 12.47.070 , even though defendant never gave formal notice of a defense under either this section or AS 12.47.020 . Nelson v. State, 874 P.2d 298 (Alaska Ct. App. 1994).

Former law construed. —

See Smith v. State, 614 P.2d 300 (Alaska 1980); Walunga v. State, 630 P.2d 527 (Alaska 1980); Nielsen v. State, 623 P.2d 304 (Alaska 1981); Evans v. State, 645 P.2d 155 (Alaska 1982) (these cases were decided under former AS 12.45.083 ).

Cited in

Barrett v. State, 772 P.2d 559 (Alaska Ct. App. 1989); Lewis v. State, 195 P.3d 622 (Alaska Ct. App. 2008); Lane v. Ballot, 330 P.3d 338 (Alaska 2014); Dorsey v. State, 480 P.3d 1211 (Alaska Ct. App. 2021); Lord v. State, 489 P.3d 374 (Alaska Ct. App. 2021).

Sec. 12.47.020. Mental disease or defect negating culpable mental state.

  1. Evidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did or did not have a culpable mental state which is an element of the crime.  However, evidence of mental disease or defect that tends to negate a culpable mental state is not admissible unless the defendant, within 10 days of entering a plea, or at such later time as the court may for good cause permit, files a written notice of intent to rely on that defense.
  2. When the trier of fact finds that all other elements of the crime have been proved but, as a result of mental disease or defect, there is a reasonable doubt as to the existence of a culpable mental state that is an element of the crime, it shall enter a verdict of not guilty by reason of insanity.  A defendant acquitted under this subsection, and not found guilty of a lesser included offense, shall automatically be considered to have established the affirmative defense of insanity under AS 12.47.010 . The defendant is then subject to the provisions of AS 12.47.090 .
  3. If a verdict of not guilty by reason of insanity is reached under (b) of this section, the trier of fact shall also consider whether the defendant is guilty of any lesser included offense.  If the defendant is convicted of a lesser included offense, the defendant shall be sentenced for that offense and shall automatically be considered guilty but mentally ill under AS 12.47.030 and 12.47.050 . Upon completion of a sentence for a lesser included offense, a hearing shall be held under AS 12.47.090(c) to determine the necessity of further commitment of the defendant, based on the acquittal for the greater charge under (b) of this section.  If the defendant is committed under AS 12.47.090(c) , the defendant is subject to the provisions of AS 12.47.090(d) — (i) and (k).

History. (§ 22 ch 143 SLA 1982)

Cross references. —

Definition of “culpable mental state,” “mental disease or defect” — AS 12.47.130

Guilty but mentally ill — AS 12.47.030

Form of verdict when evidence of mental disease or defect admissible — AS 12.47.040

Disposition of defendant found guilty but mentally ill — AS 12.47.050

Procedure after raising defense of insanity — AS 12.47.090

Original Code Provision — AS 12.45.085 .

Revisor’s notes. —

In 1995, in subsection (c), “AS 12.47.090(d) — (i) and (k)” was substituted for “AS 12.47.090(d) — (j)” to reflect the 1995 relettering of AS 12.47.090(j) and (k).

Notes to Decisions

Defendant could be examined by an independent psychiatrist under AS 12.47.070 , even though defendant never gave formal notice of a defense under either AS 12.47.010 or this section. Nelson v. State, 874 P.2d 298 (Alaska Ct. App. 1994).

Examination erroneously ordered.—

It was error to make defendant waive rights to remain silent and present a defense and submit to psychiatric exams to assert an involuntariness defense because (1) the court did not clearly understand the proposed defense's factual contours without letting defendant make a full offer of proof describing supporting evidence, (2) the facts were not necessarily inconsistent with involuntariness, and (3) the defense was distinct from insanity or diminished capacity. Palmer v. State, 379 P.3d 981 (Alaska Ct. App. 2016).

Sufficient mental disease or defect for not guilty verdict. —

The mental disease or defect need only be a substantial factor in causing the lack of the requisite mens rea in order to substitute a not guilty by reason of insanity verdict for a not guilty verdict. Barrett v. State, 772 P.2d 559 (Alaska Ct. App. 1989).

Ability to form requisite intent. —

Defendant who murdered her three sons was properly found to be guilty but mentally ill, rather than not guilty by reason of insanity, despite findings that she killed her children to save them from “Evil” because of her mental illness and that she believed she was doing the right thing. The requisite intent was established because defendant engaged in a deliberate, conscious, and detailed plan to kill her children. Lord v. State, 262 P.3d 855 (Alaska Ct. App. 2011).

Jury instruction. —

Instruction requiring the jury to find a mental disease or defect as a matter of fact before considering its relevance to a finding of mens rea did not substantially prejudice defendant and was not a plain error. Barrett v. State, 772 P.2d 559 (Alaska Ct. App. 1989).

Defendant’s argument that the jury should not have been given the option of returning a verdict of guilty but mentally ill was rejected because AS 12.47.040(a) requires presentation of that option; evidence of defendant’s mental diseases or defects was relevant and admissible to rebut his claim that his erratic behavior was due entirely to his ingestion of the drug, and tended to prove the state’s allegations of third-degree assault. Lewis v. State, 195 P.3d 622 (Alaska Ct. App. 2008).

Ineffective assistance of counsel not shown.—

Documents suggested that petitioner might have been suffering from some mental health issues, possibly drug-related, at the time of the shooting, but they did not alone show that his attorney was incompetent for concluding that petitioner did not have a meritorious mental disease or defect defense that could have been raised at trial. Coday v. State, — P.3d — (Alaska Ct. App. Jan. 11, 2017) (memorandum decision).

Petitioner had not shown that he was incompetent to assist in his own defense, and given the attorney's reliance on an expert opinion that there was no viable mental disease or defect defense, petitioner had not established a prima facie case that his attorney was incompetent for considering petitioner’s own strongly stated wishes as part of the attorney's determination of what defenses to raise at trial. Coday v. State, — P.3d — (Alaska Ct. App. Jan. 11, 2017) (memorandum decision).

Appellate review of order permitting psychiatric testimony. —

The defendant’s abandonment of his diminished capacity defense, as a result of the trial court’s denial of his motion for a protective order to exclude expert testimony of a psychiatrist testifying against him, barred the defendant from raising on appeal the issue of whether or not the psychiatrist’s testimony should have been barred at the trial level. Meaningful appellate review is impeded in such situations by the uncertainty attendant to determining whether any error might ultimately have proven harmless. Sam v. State, 842 P.2d 596 (Alaska Ct. App. 1992).

Quoted in

Hart v. State, 702 P.2d 651 (Alaska Ct. App. 1985); State v. Groppel, 433 P.3d 1113 (Alaska 2018).

Cited in

State v. Patterson, 740 P.2d 944 (Alaska 1987); State v. Clifton, 315 P.3d 694 (Alaska Ct. App. 2013).

Collateral references. —

21 Am. Jur. 2d, Criminal Law, §§ 86-109.

22 C.J.S., Criminal Law, § 128 et seq.

Modern status of rules as to burden and sufficiency of proof of mental irresponsibility in criminal case. 17 ALR3d 146.

Mental or emotional condition as diminishing responsibility for crime. 22 A.L.R.3d 1228.

XYY syndrome as affecting criminal responsibility. 42 ALR3d 1414.

Amnesia as affecting capacity to commit crime or stand trial. 46 A.L.R.3d 544.

Admissibility on issue of sanity of expert opinion based partly on medical, psychological or hospital reports. 55 ALR3d 551.

Modern status of test of criminal responsibility — state cases. 9 ALR4th 526.

Adequacy of defense counsel’s representation of criminal client — pretrial conduct or conduct at unspecified time regarding issues of diminished capacity, intoxication, and unconsciousness. 79 ALR5th 419.

Sec. 12.47.030. Guilty but mentally ill.

  1. A defendant is guilty but mentally ill if, when the defendant engaged in the criminal conduct, the defendant lacked, as a result of a mental disease or defect, the substantial capacity either to appreciate the wrongfulness of that conduct or to conform that conduct to the requirements of law.  A defendant found guilty but mentally ill is not relieved of criminal responsibility for criminal conduct and is subject to the provisions of AS 12.47.050 .
  2. Evidence of a mental disease or defect that is manifested only by repeated criminal or antisocial conduct is not sufficient to establish that the defendant was guilty but mentally ill under (a) of this section.

History. (§ 22 ch 143 SLA 1982; am § 43 ch 6 SLA 1984)

Cross references. —

Definition of “mental disease or defect” — AS 12.47.130

Form of verdict when evidence of mental disease or defect admissible — AS 12.47.040

Disposition of defendant found guilty but mentally ill — AS 12.47.050

Original Code Provision — None.

Notes to Decisions

State may constitutionally eliminate separate insanity defense based on “irresistible impulse” or inability to conform one’s conduct to the requirements of the law. Hart v. State, 702 P.2d 651 (Alaska Ct. App. 1985) (discussing in depth the history of the insanity defense in Alaska).

Error to equate involuntary intoxication defense with guilty but mentally ill verdict. —

Trial court erred in equating defendant's proposed involuntary intoxication defense with a guilty but mentally ill verdict because the mild transient delirium diagnosed by defendant's expert did not meet the statutory definition of mental disease or defect. Dorsey v. State, 480 P.3d 1211 (Alaska Ct. App. 2021).

Rebuttal evidence distinguished. —

Whatever insanity defense exists, it is different from and in addition to the use of psychiatric rebuttal evidence to show diminished capacity to negate the prosecution’s proof that the defendant had the necessary mens rea to commit a particular offense, at least an offense requiring specific intent. Hart v. State, 702 P.2d 651 (Alaska Ct. App. 1985).

Collateral estoppel. —

“Guilty but mentally ill” conviction was subject to the collateral estoppel doctrine, as the jury’s verdict established beyond a reasonable doubt that defendant knowingly engaged in sexual penetration with victim without her consent and recklessly caused serious physical injury, satisfying the elements of several tort causes of action, including assault and battery and civil rape. Lane v. Ballot, 330 P.3d 338 (Alaska 2014).

Burden of proof. —

Under AS 12.47.030(a) , proof that a defendant suffered from mental illness at the time of the offense is not enough to support a verdict of “guilty but mentally ill”. Rather, the government must prove that the defendant suffered from a mental illness and that, because of this mental illness, the defendant lacked the substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law. State v. Clifton, 315 P.3d 694 (Alaska Ct. App. 2013).

Requisite intent. —

Defendant who murdered her three sons was properly found to be guilty but mentally ill, rather than not guilty by reason of insanity, despite findings that she killed her children to save them from “Evil” because of her mental illness and that she believed she was doing the right thing. The requisite intent was established because defendant engaged in a deliberate, conscious, and detailed plan to kill her children. Lord v. State, 262 P.3d 855 (Alaska Ct. App. 2011).

Conviction reversed. —

Where a jury instruction directed the jury to consider and decide the issue of insanity after a threshold determination of actus reus only, before any consideration of culpable mental state, the instruction diluted the state’s burden of proving culpable mental state. This error in instruction required reversal of a jury finding of guilty but mentally ill and a remand for a new trial. Patterson v. State, 708 P.2d 712 (Alaska Ct. App. 1985), rev'd, 740 P.2d 944 (Alaska 1987).

Trial court erred in equating involuntary intoxication defense with guilty but mentally ill verdict. —

Trial court erred in equating defendant's proposed involuntary intoxication defense with a guilty but mentally ill verdict because the mild transient delirium diagnosed by defendant's expert did not meet the statutory definition of mental disease or defect. Dorsey v. State, 480 P.3d 1211 (Alaska Ct. App. 2021).

Jury properly instructed on guilty but mentally ill verdict. See Barrett v. State, 772 P.2d 559 (Alaska Ct. App. 1989).

Applied in

Monroe v. State, 847 P.2d 84 (Alaska Ct. App. 1993).

Quoted in

Hastings v. State, 736 P.2d 1157 (Alaska Ct. App. 1987).

Stated in

Lane v. State, — P.3d — (Alaska Ct. App. Jan. 28, 2015).

Cited in

Beaudoin v. State, 57 P.3d 703 (Alaska Ct. App. 2002); Lewis v. State, 195 P.3d 622 (Alaska Ct. App. 2008); Lord v. State, 489 P.3d 374 (Alaska Ct. App. 2021).

Collateral references. —

“Guilty but mentally ill” statutes: validity and construction. 71 ALR4th 702.

Sec. 12.47.040. Form of verdict in certain cases involving insanity or mental disease or defect.

  1. In a prosecution for a crime when the affirmative defense of insanity is raised under AS 12.47.010 , or when evidence of a mental disease or defect of the defendant is otherwise admissible at trial under AS 12.47.020 , the trier of fact shall find, and the verdict shall state, whether the defendant is
    1. guilty;
    2. not guilty;
    3. not guilty by reason of insanity; or
    4. guilty but mentally ill.
  2. To return a verdict under (a)(4) of this section, the fact finder must find beyond a reasonable doubt that the defendant committed the crime and that, when the defendant committed the crime, the defendant was guilty but mentally ill as defined in AS 12.47.030 .
  3. When the jury is instructed as to the verdicts under (a) of this section, it shall also be instructed on the dispositions available under AS 12.47.050 and 12.47.090 .

History. (§ 22 ch 143 SLA 1982; am § 5 ch 70 SLA 2012)

Cross references. —

Insanity excluding responsibility — AS 12.47.010

Mental disease or defect negating culpable mental state — AS 12.47.020

Guilty but mentally ill — AS 12.47.030

Disposition of defendant found guilty but mentally ill — AS 12.47.050

Procedure after raising defense of insanity — AS 12.47.090

Original Code Provision — None.

Effect of amendments. —

The 2012 amendment, effective July 1, 2012, in (b), substituted “fact finder” for “jury” and deleted “find by a preponderance of the evidence” following “committed the crime and”.

Editor’s notes. —

Section 17, ch. 70, SLA 2012 provides that the 2012 amendment to subsection (b) applies “to proceedings occurring on or after July 1, 2012 for offenses occurring before, on, or after July 1, 2012.”

Notes to Decisions

Jury instructions. —

Defendant’s argument that the jury should not have been given the option of returning a verdict of guilty but mentally ill was rejected because trial court was obligated to do so under subsection (a) of this section; evidence of defendant’s mental diseases or defects was relevant and admissible to rebut his claim that his erratic behavior was due entirely to his ingestion of the drug and tended to prove the state’s allegations of third-degree assault. Lewis v. State, 195 P.3d 622 (Alaska Ct. App. 2008).

Cited in

Hastings v. State, 736 P.2d 1157 (Alaska Ct. App. 1987); Barrett v. State, 772 P.2d 559 (Alaska Ct. App. 1989); State v. Clifton, 315 P.3d 694 (Alaska Ct. App. 2013).

Sec. 12.47.050. Disposition of defendant found guilty but mentally ill.

  1. If the trier of fact finds that a defendant is guilty but mentally ill, the court shall sentence the defendant as provided by law and shall enter the verdict of guilty but mentally ill as part of the judgment.
  2. The Department of Corrections shall provide mental health treatment to a defendant found guilty but mentally ill. The treatment must continue until the defendant no longer suffers from a mental disease or defect that causes the defendant to be dangerous to the public peace or safety.  Subject to (c) and (d) of this section, the Department of Corrections shall determine the course of treatment.
  3. When treatment terminates under (b) of this section, the defendant shall be required to serve the remainder of the sentence imposed.
  4. Notwithstanding any contrary provision of law, a defendant receiving treatment under (b) of this section may not be released
    1. on furlough under AS 33.30.101 — 33.30.131 , except for treatment in a secure setting; or
    2. on parole.
  5. Not less than 30 days before the expiration of the sentence of a defendant found guilty but mentally ill, the commissioner of corrections shall file a petition under AS 47.30.700 for a screening investigation to determine the need for further treatment of the defendant if
    1. the defendant is still receiving treatment under (b) of this section; and
    2. the commissioner has good cause to believe that the defendant is suffering from a mental illness that causes the defendant to be dangerous to the public peace or safety; in this paragraph, “mental illness” has the meaning given in AS 47.30.915 .

History. (§ 22 ch 143 SLA 1982; am E.O. No. 55, §§ 3, 4 (1984); am § 5 ch 88 SLA 1986)

Revisor’s notes. —

Subsection (e) was enacted as (f). Relettered in 1982 when the original (e) was renumbered as AS 12.47.055 .

Opinions of attorney general. —

Placements in properly licensed private treatment facilities became available for persons committed to the commissioner of the Department of Corrections, pursuant to AS 12.47.050(b) , on September 4, 1986, when ch. 88, SLA 1986, became effective. July 8, 1986 Op. Att’y Gen.

“Treatment,” for purposes of this section, means the therapeutic milieu, process and/or medication employed by a mental health professional to achieve a behavioral state in the guilty but mentally ill inmate who is no longer dangerous to public peace or safety. December 5, 1986 Op. Att’y Gen.

The treatment and restrictions placed upon the guilty but mentally ill inmate need only last until a determination is made that the inmate is no longer dangerous to the public peace or safety. This determination does not mean that treatment must cease after the inmate is determined to be no longer dangerous. It means that the disabilities associated with this section may be removed upon determination that the inmate does not constitute a danger; he may then be “treated” like any other prisoner in need of psychological or psychiatric treatment. December 5, 1986 Op. Att’y Gen.

While legislative intent involuntarily subjects the guilty but mentally ill inmate to most conventional mental health treatment methods, approaches which fall within the “spirit of intrusion” reflected in such examples as psychosurgery and medical or psychiatric programs involving adverse conditioning should be closely scrutinized and applied only pursuant to clearly defined policy. December 5, 1986 Op. Att’y Gen.

The determination of whether a guilty but mentally ill inmate is a danger to public peace or safety rests with the commissioner. December 5, 1986 Op. Att’y Gen.

While at present it appears that there is no department policy whereby the guilty but mentally ill inmate can receive a review of dangerousness, without a “dangerousness review” there could be guilty but mentally ill inmates who, while behaviorally indistinguishable from the mentally ill offender in the general population, may be denied furlough or parole pursuant to AS 12.47.050(d) , which would raise the serious question of denial of equal protection. December 5, 1986 Op. Att’y Gen.

Notes to Decisions

Incarceration constitutional. —

Incarceration of a person found guilty but mentally ill does not violate the due process or cruel and unusual punishment clauses of the Alaska Constitution. Barrett v. State, 772 P.2d 559 (Alaska Ct. App. 1989).

As is denial of furlough or parole. —

The provision in this section which denies a defendant the opportunity for furloughs or releases on parole, so long as he is mentally ill and a danger to the public, does not violate his right to equal protection of the laws. Barrett v. State, 772 P.2d 559 (Alaska Ct. App. 1989).

Parole eligibility review required. —

A defendant found guilty but mentally ill must be provided some procedural mechanism to seek eligibility for parole or furlough by demonstrating his lack of continued dangerousness. Monroe v. State, 847 P.2d 84 (Alaska Ct. App. 1993).

Length of confinement. —

While the current statutory scheme requires the state to provide appropriate medical and psychiatric care to offenders found guilty but mentally ill, it does not call for any reduction in the overall length of confinement to be imposed. It strongly suggests that an offender whose crime is the product of a mental illness should not automatically be entitled to a more mitigated sentence than would have been appropriate had no mental illness existed. Washington v. State, 828 P.2d 172 (Alaska Ct. App. 1992).

No release while still ill. —

Alaska law restricts the parole eligibility of defendants who are found guilty but mentally ill. Such defendants cannot be released on parole until they no longer suffer from a mental disease or defect that causes them to be dangerous to the public. Beaudoin v. State, 57 P.3d 703 (Alaska Ct. App. 2002).

Sentence upheld. —

The superior court did not abuse its discretion in imposing a sentence on a defendant found guilty but mentally ill when it went considerably beyond the established benchmark for regular offenders. The sentence was held to reflect the defendant’s history of violence, the seriousness of the conduct behind the current offense, and the exceptional danger posed by the defendant’s demonstrated resistance to his prescribed treatment. Monroe v. State, 847 P.2d 84 (Alaska Ct. App. 1993).

Post-conviction relief. —

Superior court properly dismissed defendant's application for post-conviction relief for failure to state a prima facie claim for relief because her trial attorneys were not incompetent for failing to interview an expert witness regarding defendant's conditions of confinement if she were found guilty-but-mentally-ill since questioning the expert witness about the conditions of defendant's confinement was not clearly within the scope of the trial attorneys' duties, and defendant did not suffer any prejudice by her attorneys' failure to raise a legal argument that was expressly rejected two years after her direct appeal. Lord v. State, 489 P.3d 374 (Alaska Ct. App. 2021).

Stated in

Lord v. State, 262 P.3d 855 (Alaska Ct. App. 2011).

Cited in

Hastings v. State, 736 P.2d 1157 (Alaska Ct. App. 1987); Lewis v. State, 195 P.3d 622 (Alaska Ct. App. 2008); State v. Clifton, 315 P.3d 694 (Alaska Ct. App. 2013); Lane v. Ballot, 330 P.3d 338 (Alaska 2014).

Sec. 12.47.055. Treatment for other defendants not limited.

Nothing in AS 12.47.050 limits the discretion of the court to recommend, or of the Department of Corrections to provide, psychiatrically indicated treatment for a defendant who is not adjudged guilty but mentally ill.

History. (§ 22 ch 143 SLA 1982; am E.O. No. 55, § 5 (1984))

Cross references. —

Definition of “mental disease or defect” — AS 12.47.130

Definition of “mental illness” — AS 47.30.915

Guilty but mentally ill — AS 12.47.030

Original Code Provision — None.

Revisor’s notes. —

Enacted as AS 12.47.050(e) . Renumbered in 1982.

Sec. 12.47.060. Post conviction determination of mental illness.

  1. In a prosecution for a crime when the affirmative defense of insanity is not raised and when evidence of mental disease or defect of the defendant is not admitted at trial under AS 12.47.020 , the defendant or the prosecuting attorney may raise the issue of whether the defendant is guilty but mentally ill. A party that seeks a post-conviction determination of guilty but mentally ill must give notice 10 days before trial of intent to do so; however, this deadline is waived if the opposing party presents evidence or argument at trial tending to show that the defendant may be guilty but mentally ill. A hearing must be held on this issue before the same fact finder that returned the verdict of guilty under procedures set by the court. In cases decided by a jury, at the request of the defendant and with the concurrence of the prosecuting attorney, the court may decide the issue. A waiver of consideration by a jury must be in writing and in person before the court. At the hearing, the fact finder shall determine whether the defendant has been shown to be guilty but mentally ill beyond a reasonable doubt, considering evidence presented at the hearing and any evidence relevant to the issue that was presented at trial.
  2. If the fact finder finds that a defendant is guilty but mentally ill, the court shall sentence the defendant as provided by law and shall enter the finding of guilty but mentally ill as part of the judgment.
  3. A defendant determined to be guilty but mentally ill under this section is subject to the provisions of AS 12.47.050 .
  4. In this section, “guilty but mentally ill” has the meaning given in AS 12.47.030 .

History. (§ 22 ch 143 SLA 1982; am §§ 6, 7 ch 70 SLA 2012)

Cross references. —

Guilty but mentally ill — AS 12.47.030

Disposition of defendant found guilty but mentally ill — AS 12.47.050

Original Code Provision — None.

Effect of amendments. —

The 2012 amendment, effective July 1, 2012, rewrote (a); in (b), substituted “If the fact finder” for “If the court”, and made a stylistic change.

Editor’s notes. —

Section 17, ch. 70, SLA 2012 provides that the 2012 amendments to subsections (a) and (b) apply “to proceedings occurring on or after July 1, 2012 for offenses occurring before, on, or after July 1, 2012.”

Notes to Decisions

Elements. —

Even in the cases covered by this section, where no evidence of the defendant’s mental illness is presented at trial, and the litigation regarding the “guilty but mentally ill” verdict occurs after the jury has found the defendant guilty — (1) the elements of the “guilty but mentally ill” verdict are the same, (2) the State bears the burden of proving those elements beyond a reasonable doubt, (3) the defendant is entitled to demand that the same jury decide both the underlying offense and the question of whether the defendant is guilty but mentally ill, and (4) the same consequences attach to any resulting verdict of “guilty but mentally ill.” State v. Clifton, 315 P.3d 694 (Alaska Ct. App. 2013).

Applicability. —

The procedure set forth in this section applies only in cases where neither the State nor the defendant presents evidence of the defendant’s mental disease or defect during litigation of the defendant’s guilt. State v. Clifton, 315 P.3d 694 (Alaska Ct. App. 2013).

Trial court could convene another jury. —

In a case in which defendant had been convicted of attempted murder and third-degree assault but had not yet been sentenced, the trial court could lawfully convene another jury to determine whether defendant should be found guilty but mentally ill. State v. Clifton, 315 P.3d 694 (Alaska Ct. App. 2013).

Applied in

Monroe v. State, 847 P.2d 84 (Alaska Ct. App. 1993).

Cited in

Hastings v. State, 736 P.2d 1157 (Alaska Ct. App. 1987); Washington v. State, 828 P.2d 172 (Alaska Ct. App. 1992); Lewis v. State, 195 P.3d 622 (Alaska Ct. App. 2008).

Sec. 12.47.070. Psychiatric examination.

  1. If a defendant has filed a notice of intention to rely on the affirmative defense of insanity under AS 12.47.010 or has filed notice under AS 12.47.020(a) , or there is reason to doubt the defendant’s fitness to proceed, or there is reason to believe that a mental disease or defect of the defendant will otherwise become an issue in the case, the court shall appoint at least two qualified psychiatrists or two forensic psychologists certified by the American Board of Forensic Psychology to examine and report upon the mental condition of the defendant.  If the court appoints psychiatrists, the psychiatrists may select psychologists to provide assistance. If the defendant has filed notice under AS 12.47.090(a) , the report shall consider whether the defendant can still be committed under AS 12.47.090(c) .  The court may order the defendant to be committed to a secure facility for the purpose of the examination for not more than 60 days or such longer period as the court determines to be necessary for the purpose and may direct that a qualified psychiatrist retained by the defendant be permitted to witness and participate in the examination.
  2. In an examination under (a) of this section, any method may be employed which is accepted by the medical profession for the examination of those alleged to be suffering from mental disease or defect.
  3. The report of an examination under (a) of this section shall include the following:
    1. a description of the nature of the examination;
    2. a diagnosis of the mental condition of the defendant;
    3. if the defendant suffers from a mental disease or defect, an opinion as to the defendant’s capacity to understand the proceedings against the defendant and to assist in the defendant’s defense;
    4. if a notice of intention to rely on the affirmative defense of insanity under AS 12.47.010(b) has been filed, an opinion as to the extent, if any, to which the capacity of the defendant to appreciate the nature and quality of the defendant’s conduct was impaired at the time of the crime charged; and
    5. if notice has been filed under AS 12.47.020(a) , an opinion as to the capacity of the defendant to have a culpable mental state which is an element of the crime charged.
  4. If the examination under (a) of this section cannot be conducted by reason of the unwillingness of the defendant to participate in it, the report shall so state and shall include, if possible, an opinion as to whether the unwillingness of the defendant was the result of mental disease or defect.
  5. The report of the examination under (a) of this section shall be filed with the clerk of the court, who shall cause copies to be delivered to the prosecuting attorney and to counsel for the defendant.

History. (§ 22 ch 143 SLA 1982)

Cross references. —

Insanity excluding responsibility — AS 12.47.010

Mental disease or defect negating culpable mental state — AS 12.47.020

Procedure after raising defense of insanity — AS 12.47.090

Original Code Provision — AS 12.45.087 .

Notes to Decisions

Annotator’s notes. —

Many of the cases annotated below were decided under former AS 12.45.087 .

The conviction of a person who is incompetent to stand trial violates due process of law. Schade v. State, 512 P.2d 907 (Alaska 1973).

The defendant must have some minimum ability to provide his counsel with information necessary or relevant to his defense. He must also be able to understand the nature of the proceedings sufficiently to participate in certain decisions about the conduct of the defense. Schade v. State, 512 P.2d 907 (Alaska 1973).

But this does not mean that a defendant must possess any high degree of legal sophistication or intellectual prowess. Schade v. State, 512 P.2d 907 (Alaska 1973).

Not every emotional flaw renders one incompetent to stand trial. Schade v. State, 512 P.2d 907 (Alaska 1973).

The presence of some degree of mental illness is not an invariable barrier to prosecution. There may be an impaired functioning of some aspects of the defendant’s personality and yet he may still be minimally able to aid in his defense and to understand the nature of the proceedings against him. Schade v. State, 512 P.2d 907 (Alaska 1973).

No violation of Fifth Amendment rights. —

Trial court did not err by ordering psychiatric evaluations of defendant, and the evaluations did not violate defendant’s Fifth Amendment rights because defendant waived his Fifth Amendment privilege to object to the evaluations by: (1) putting his mental health at issue when he asserted that his behavior was attributable to ingestion of a drug not prescribed to him; and (2) arguing at trial that because of his underlying mental diseases or defects, he lacked the culpable mental states required for third-degree assault. Lewis v. State, 195 P.3d 622 (Alaska Ct. App. 2008).

Standard for determining competency is relative. —

See Schade v. State, 512 P.2d 907 (Alaska 1973).

Where psychiatric examination of defendant yields professional findings that he is competent to stand trial, the question of whether to hold any further or evidentiary hearings is addressed to the sound discretion of the trial court. Schade v. State, 512 P.2d 907 (Alaska 1973).

Physical examination did not violate predecessor section. —

A physical examination between a clinical psychologist and defendant shortly after defendant was arrested and taken into custody, because the police feared defendant was suicidal, was properly authorized under former AS 33.30.130(a), which specified the duty of the commissioner of public safety to provide for persons pending arraignment or commitment, and did not violate subsection (a) of former AS 12.45.087 . The evidence resulting from the examination was, therefore, legally obtained. Loveless v. State, 592 P.2d 1206 (Alaska 1979).

Duty to order examination. —

Once motion for competency evaluation was made under former AS 12.45.100 that was neither frivolous nor lacking in good faith and that set forth reasonable cause to believe accused might be incompetent, trial court had mandatory duty to order examination. Leonard v. State, 658 P.2d 798 (Alaska Ct. App. 1983).

If possible Alaska Psychiatric Institute must perform examinations.—

If it becomes necessary for the superior court to conduct an evidentiary hearing, that hearing must be searching and produce a comprehensive record for review; while the Alaska Psychiatric Institute may not employ psychologists certified by the American Board of Forensic Psychology as required by the statute, no such limiting certification is required by the statute for psychiatrists: the statute only requires "qualified psychiatrists." State v. Groppel, 433 P.3d 1113 (Alaska 2018).

Alaska Psychiatric Institute (API) is required to provide qualified psychiatrists or psychologists as defined by the statute to serve as court-appointed, neutral expert witnesses or must explain at an evidentiary hearing why it cannot; if statutorily adequate experts can be appointed from API, they must be. State v. Groppel, 433 P.3d 1113 (Alaska 2018).

Examination erroneously ordered.—.

It was error to make defendant waive rights to remain silent and present a defense and submit to psychiatric exams to assert an involuntariness defense because (1) the court did not clearly understand the proposed defense's factual contours without letting defendant make a full offer of proof describing supporting evidence, (2) the facts were not necessarily inconsistent with involuntariness, and (3) the defense was distinct from insanity or diminished capacity. Palmer v. State, 379 P.3d 981 (Alaska Ct. App. 2016).

Under this section, defendant could be examined by independent psychiatrist even though defendant never gave formal notice of a defense under either AS 12.47.010 or AS 12.47.020 . Nelson v. State, 874 P.2d 298 (Alaska Ct. App. 1994).

Court to determine whether expert qualified.—

Whether a psychiatrist is qualified within the meaning of the statute is a determination to be made by the court; thus, because it was not clear from the record whether the superior court made its own independent determination or simply accepted the Alaska Psychiatric Institute's (API) representation, the matter was remanded for the superior court to appoint qualified API psychiatrists or psychologists unless there is a legitimate reason not to. State v. Groppel, 433 P.3d 1113 (Alaska 2018).

Court system must bear costs of court-appointed experts.—

Superior court's order that the parties each bear the cost of one expert was error because if the Alaska Psychiatric Institute (API) could not provide experts to perform the evaluations, then the Court System had to bear the costs of the court-appointed experts; when API is determined to be unable to provide qualified experts, the Court System must bear the costs of the court-appointed experts. State v. Groppel, 433 P.3d 1113 (Alaska 2018).

Payment of court-appointed experts. —

Superior court erred in holding that the State would pay for one of the appointed experts and the Alaska Office of Public Advocacy, which was appointed to represent defendant, would pay for the other court-appointed expert because, upon certification from the court of appeals, the Supreme Court of Alaska held that court-appointed experts were neutral experts appointed to answer the statutory questions and any other questions requested by the court. State v. Groppel, — P.3d — (Alaska Jan. 24, 2018).

Appellate review of order permitting psychiatric testimony. —

The defendant’s abandonment of his diminished capacity defense, as a result of the trial court’s denial of his motion for a protective order to exclude expert testimony of a psychiatrist testifying against him, barred the defendant from raising on appeal the issue of whether or not the psychiatrist’s testimony should have been barred at the trial level. Meaningful appellate review is impeded in such situations by the uncertainty attendant to determining whether any error might ultimately have proven harmless. Sam v. State, 842 P.2d 596 (Alaska Ct. App. 1992).

Defendant was not illegally subjected to pre-trial psychological evaluations because defense counsel affirmatively told the trial court that he did not object and then actively worked to arrange and facilitate the psychological examinations. Kangas v. State, 463 P.3d 189 (Alaska Ct. App. 2020).

Use of defendant's statements to the two forensic psychologists was not barred because the record showed that the trial court had proper grounds for concluding that the mental examinations were authorized and defendant was not compelled to participate in the psychological examinations against his will, as defense counsel took repeated steps in the ensuing weeks to promote and facilitate these examinations and defendant was expressly warned by at least one of the forensic psychologists that he had the right not to participate in the examination and he agreed to participate in both examinations. Kangas v. State, 463 P.3d 189 (Alaska Ct. App. 2020).

Where trial judge erroneously denied defendant’s motion for competency evaluation under former AS 12.45.100, proper remedy was new trial preceded by competency determination. Leonard v. State, 658 P.2d 798 (Alaska Ct. App. 1983).

Cited in

Samaniego v. City of Kodiak, 80 P.3d 216 (Alaska 2003); State v. Alexander, 364 P.3d 458 (Alaska Ct. App. 2015).

Sec. 12.47.080. Procedure upon verdict of not guilty.

  1. If a defendant is found not guilty under AS 12.47.040(a)(2) , the prosecuting attorney shall, within 24 hours, file a petition under AS 47.30.700 for a screening investigation to determine the need for treatment if the prosecuting attorney has good cause to believe that the defendant is suffering from a mental illness and as a result is gravely disabled or likely to cause serious harm to self or others.
  2. In this section, “mental illness” has the meaning given in AS 47.30.915 .

History. (§ 22 ch 143 SLA 1982)

Cross references. —

Definition of “mental illness” — AS 47.30.915 (12)

Form of verdict when evidence of mental disease or defect admissible — AS 12.47.040

Original Code Provision — None.

Notes to Decisions

Quoted in

Barrett v. State, 772 P.2d 559 (Alaska Ct. App. 1989).

Sec. 12.47.090. Procedure after raising defense of insanity.

  1. At the time the defendant files notice to raise the affirmative defense of insanity under AS 12.47.010 or files notice under AS 12.47.020(a) , the defendant shall also file notice as to whether, if found not guilty by reason of insanity under AS 12.47.010 or 12.47.020(b) , the defendant will assert that the defendant is not presently suffering from any mental illness that causes the defendant to be dangerous to the public peace or safety.
  2. If the defendant is found not guilty by reason of insanity under AS 12.47.010 or 12.47.020(b) , and has not filed the notice required under (a) of this section, the court shall immediately commit the defendant to the custody of the commissioner of health and social services.
  3. If the defendant is found not guilty by reason of insanity under AS 12.47.010 or 12.47.020(b) , and has filed the notice required under (a) of this section, a hearing shall be held immediately after a verdict of not guilty by reason of insanity to determine the necessity of commitment.  The hearing shall be held before the same trier of fact as heard the underlying charge.  At the hearing, the defendant has the burden of proving by clear and convincing evidence that the defendant is not presently suffering from any mental illness that causes the defendant to be dangerous to the public.  If the court or jury determines that the defendant has failed to meet the burden of proof, the court shall order the defendant committed to the custody of the commissioner of health and social services.  If the hearing is before a jury, the verdict must be unanimous.
  4. A defendant committed under (b) or (c) of this section shall be held in custody for a period of time not to exceed the maximum term of imprisonment for the crime for which the defendant was acquitted under AS 12.47.010 or 12.47.020(b) or until the mental illness is cured or corrected as determined at a hearing under (e) of this section.
  5. A defendant committed under (b) or (c) of this section may have the need for continuing commitment under this section reviewed by the court sitting without a jury under a petition filed in the superior court at intervals beginning no sooner than a year from the defendant’s initial commitment, and yearly thereafter.  The burden and standard of proof at a hearing under this subsection are the same as at a hearing under (c) of this section.  A copy of all petitions for release shall be served on the attorney general at Juneau, Alaska.  A copy shall also be served upon the attorney of record, if the attorney of record is not the attorney general, who represented the state or a municipality at the time the defendant was first committed.
  6. Continued commitment following expiration of the maximum term of imprisonment for the crime for which the defendant was acquitted under AS 12.47.010 or 12.47.020(b) is governed by the standards pertaining to civil commitments as set out in AS 47.30.735 .
  7. A person committed under this section may not be released during the term of commitment except upon court order following a hearing in accordance with (e) of this section. On the grounds that the defendant has been cured of any mental illness that would cause the defendant to be dangerous to the public peace or safety, the state may at any time request the court to hold a hearing to decide if the defendant should be released.
  8. The commissioner of health and social services or the commissioner’s authorized representative shall submit periodic written reports to the court on the mental condition of a person committed under this section.
  9. An order entered under (c) or (e) of this section may be reviewed by the court of appeals on appeal brought by either the defendant or the state within 40 days from the entry of the order.
  10. If the court finds that a defendant committed under (b) or (c) of this section can be adequately controlled and treated in the community with proper supervision, the court may order the defendant conditionally released from confinement under AS 12.47.092 for a period of time not to exceed the maximum term of imprisonment for the crime for which the defendant was acquitted under AS 12.47.010 or 12.47.020(b) or until the mental illness is cured or corrected, whichever first occurs, as determined at a hearing under (c) of this section.
  11. In this section,
    1. “dangerous” means a determination involving both the magnitude of the risk that the defendant will commit an act threatening the public peace or safety, as well as the magnitude of the harm that could be expected to result from this conduct; a finding that a defendant is “dangerous” may result from a great risk of relatively slight harm to persons or property, or may result from a relatively slight risk of substantial harm to persons or property;
    2. “mental illness” means any mental condition that increases the propensity of the defendant to be dangerous to the public peace or safety; however, it is not required that the mental illness be sufficient to exclude criminal responsibility under AS 12.47.010 , or that the mental illness presently suffered by the defendant be the same one the defendant suffered at the time of the criminal conduct.

History. (§ 22 ch 143 SLA 1982; am § 1 ch 74 SLA 1986)

Cross references. —

Insanity excluding responsibility — AS 12.47.010

Mental disease or defect negating culpable mental state — AS 12.47.020

Original Code Provision — AS 12.45.090.

Revisor’s notes. —

Subsection (j) was formerly (k) and subsection (k) was formerly (j). Relettered in 1995.

Opinions of attorney general. —

Properly licensed private treatment facilities may be used for the placement of persons committed to the commissioner of the Department of Health and Social Services pursuant to AS 12.47.090 and 12.47.110 . July 8, 1986 Op. Att’y Gen.

According to the House Commentary (House J. Supp. No. 64, at 7 (June 2, 1982)), the not guilty by reason of insanity commitment procedure “provides substantial protection for the public by requiring a person criminally committed to bear the burden of demonstrating his lack of danger to others before he is released,” the focus being on whether the mentally ill defendant is a threat to public peace or safety. December 5, 1986 Op. Att’y Gen.

Notes to Decisions

Link to underlying crime. —

Based on the provisions of AS 47.30.745(b) , AS 47.30.755(a) , AS 47.30.770(c) , and this section the legislature has linked an insanity acquittee’s commitment term to the underlying crime. Alto v. State, 64 P.3d 141 (Alaska Ct. App. 2003).

Prior statute construed. —

See Clark v. State, 645 P.2d 1236 (Alaska Ct. App. 1982) (decided under former AS 12.45.090).

Quoted in

Barrett v. State, 772 P.2d 559 (Alaska Ct. App. 1989).

Stated in

Lord v. State, 262 P.3d 855 (Alaska Ct. App. 2011).

Cited in

Blackburn v. State, 661 P.2d 1100 (Alaska Ct. App. 1983).

Sec. 12.47.092. Procedure for conditional release.

  1. A defendant committed to the custody of the commissioner of health and social services under AS 12.47.090(b) or (c) may be conditionally released from confinement subject to the conditions and requirements for treatment that the court may impose, and placed under the supervision of the Department of Health and Social Services, a local government agency, a private agency, or an adult, who agrees to assume supervision of the defendant.
  2. The commissioner of health and social services or the commissioner’s authorized representative shall submit, at a minimum, quarterly written reports to the court describing the defendant’s progress in treatment, compliance with conditions of release, and other information required by the court for defendants conditionally released under this section.
  3. A person or agency responsible for supervision or treatment under an order for conditional release shall immediately notify the commissioner of health and social services upon the defendant’s failure to appear for required medication or treatment, or for failure to comply with other conditions imposed by the court.
  4. If the court, after petition or on its own motion, reasonably believes that a conditionally released defendant is failing to adhere to the terms and conditions of the conditional release, the court may order that the conditionally released defendant be apprehended and held until a hearing can be scheduled with the court to determine the facts and whether or not the defendant’s conditional release should be revoked or modified.  Nothing in this subsection is intended to limit procedures available for emergency situations, including emergency detention under AS 47.30.705 .
  5. The commissioner of health and social services or the conditionally released defendant may petition the court for modification of an order of conditional release.  A petition by the defendant for modification of conditional release may not be filed more often than once every six months.
  6. A defendant conditionally released under AS 12.47.090(j) may petition the court for discharge in accordance with AS 12.47.090(e) .

History. (§ 2 ch 74 SLA 1986)

Cross references. —

Procedure After Raising Defense of Insanity — AS 12.47.090

Emergency Detention for Evaluation — AS 47.30.705

Original Code Provision — AS 12.45.090.

Revisor’s notes. —

In 1995, in subsection (f), “AS 12.47.090(j) ” was substituted for “AS 12.47.090(k) ” to reflect the 1995 relettering of AS 12.47.090(j) and (k).

Notes to Decisions

Ex parte communications. —

Judge who conducted hearings on a request for conditional release engaged in a series of improper ex parte communications with the Commissioner of the Department of Health and Social Services that were not authorized by law and required the judge’s disqualification from the case under Alaska Code Jud. Conduct 3E(1). State v. Dussault, 245 P.3d 436 (Alaska Ct. App. 2011).

Collateral references. —

Right to notice and hearing prior to revocation of conditional release status of mental patient. 29 ALR4th 394.

Sec. 12.47.095. Notice to victims.

  1. If an offender has been committed to the custody of the commissioner of health and social services under AS 12.47.090 , the victim of that crime is entitled to notice of a pending or actual change in the status of the offender. The commissioner of health and social services shall give notice as required by this section if
    1. the offender has been continued in commitment following expiration of the maximum term of imprisonment under AS 12.47.090(f) and the commissioner gives notice of release of the offender;
    2. the court is to consider modification of an order of conditional release for the offender under AS 12.47.092(e) ;
    3. a court is to consider conditional release of the offender under AS 12.47.090(j) and 12.47.092(a) ;
    4. the offender petitions for discharge under AS 12.47.092(f) ; or
    5. the offender escapes, is released from custody on conditional release, furlough or authorized absence, or is discharged or released from custody for any reason.
  2. If a victim desires notice under this section, the victim shall maintain a current, valid mailing address on file with the commissioner of health and social services. The commissioner shall send the notice required by this section to the victim’s last known address. The victim’s address may not be disclosed to the offender or offender’s attorney.
  3. The commissioner of health and social services is required to give notice of a change in the status of an offender under this section to any victim who has requested notice.
  4. If more than one person who qualifies as a victim under AS 12.55.185 desires notice, the commissioner of health and social services shall designate one person for purposes of receiving any notice required and exercising the rights granted by this section.
  5. A victim who has received notice under (a) of this section that a change in the status of the offender is pending before a court has the right to submit to the court a written statement, or to appear personally at a hearing to present a written statement, and to give sworn testimony or an unsworn oral presentation to the court.
  6. In this section,
    1. “offender” has the meaning given in AS 12.61.020 ;
    2. “victim” has the meaning given in AS 12.55.185 .

History. (§ 3 ch 59 SLA 1989; am §§ 1, 2 ch 10 SLA 1992)

Revisor’s notes. —

Subsection (e) enacted as (f). Relettered in 1992, at which time former subsection (e) was relettered as (f).

In 1995, in paragraph (a)(3), “AS 12.47.090(j) ” was substituted for “AS 12.47.090(k) ” to reflect the 1995 relettering of AS 12.47.090(j) and (k).

Sec. 12.47.100. Incompetency to proceed.

  1. A defendant who, as a result of mental disease or defect, is incompetent because the defendant is unable to understand the proceedings against the defendant or to assist in the defendant’s own defense may not be tried, convicted, or sentenced for the commission of a crime so long as the incompetency exists.
  2. If, before imposition of sentence, the prosecuting attorney or the attorney for the defendant has reasonable cause to believe that the defendant is presently suffering from a mental disease or defect that causes the defendant to be unable to understand the proceedings or to assist in the person’s own defense, the attorney may file a motion for a judicial determination of the competency of the defendant. Upon that motion, or upon its own motion, the court shall have the defendant examined by at least one qualified psychiatrist or psychologist, who shall report to the court concerning the competency of the defendant. For the purpose of the examination, the court may order the defendant committed for a reasonable period to a suitable hospital or other facility designated by the court. If the report of the psychiatrist or psychologist indicates that the defendant is incompetent, the court shall hold a hearing, upon due notice, at which evidence as to the competency of the defendant may be submitted, including that of the reporting psychiatrist or psychologist, and make appropriate findings. Before the hearing, the court shall, upon request of the prosecuting attorney, order the defendant to submit to an additional evaluation by a psychiatrist or psychologist designated by the prosecuting attorney.
  3. A defendant is presumed to be competent. The party raising the issue of competency bears the burden of proving the defendant is incompetent by a preponderance of the evidence. When the court raises the issue of competency, the burden of proving the defendant is incompetent shall be on the party who elects to advocate for a finding of incompetency. The court shall then apply the preponderance of the evidence standard to determine whether the defendant is competent.
  4. A statement made by the defendant in the course of an examination into the person’s competency under this section, whether the examination is with or without the consent of the defendant, may not be admitted in evidence against the defendant on the issue of guilt in a criminal proceeding unless the defendant later relies on a defense under AS 12.47.010 or 12.47.020 . A finding by the judge that the defendant is competent to stand trial in no way prejudices the defendant in a defense based on insanity; the finding may not be introduced in evidence on that issue or otherwise be brought to the notice of the jury.
  5. In determining whether a person has sufficient intellectual functioning to adapt or cope with the ordinary demands of life, the court shall consider whether the person has obtained a driver’s license, is able to maintain employment, or is competent to testify as a witness under the Alaska Rules of Evidence.
  6. In determining if the defendant is unable to understand the proceedings against the defendant, the court shall consider, among other factors considered relevant by the court, whether the defendant understands that the defendant has been charged with a criminal offense and that penalties can be imposed; whether the defendant understands what criminal conduct is being alleged; whether the defendant understands the roles of the judge, jury, prosecutor, and defense counsel; whether the defendant understands that the defendant will be expected to tell defense counsel the circumstances, to the best of the defendant’s ability, surrounding the defendant’s activities at the time of the alleged criminal conduct; and whether the defendant can distinguish between a guilty and not guilty plea.
  7. In determining if the defendant is unable to assist in the defendant’s own defense, the court shall consider, among other factors considered relevant by the court, whether the defendant’s mental disease or defect affects the defendant’s ability to recall and relate facts pertaining to the defendant’s actions at times relevant to the charges and whether the defendant can respond coherently to counsel’s questions. A defendant is able to assist in the defense even though the defendant’s memory may be impaired, the defendant refuses to accept a course of action that counsel or the court believes is in the defendant’s best interest, or the defendant is unable to suggest a particular strategy or to choose among alternative defenses.
  8. In a hearing to determine competency under this section, the court may, at the court’s discretion, allow a witness, including a psychiatrist or psychologist who examined the defendant, to testify concerning the competency of the defendant by contemporaneous two-way video conference if the witness is in a place from which people customarily travel by air to the court, and the procedure allows the parties a fair opportunity to examine the witness. The video conference technician shall be the only person in the presence of the witness unless the court, at the court’s discretion, determines that another person may be present. Any person present with the witness must be identified on the record. In this subsection, “contemporaneous two-way video conference”
    1. means a conference among people at different places by means of transmitted audio and video signals;
    2. includes all communication technologies that allow people at two or more places to interact by two-way video and audio transmissions simultaneously.

History. (§ 22 ch 143 SLA 1982; am § 1 ch 62 SLA 1996; am § 18 ch 1 TSSLA 2012)

Cross references. —

Definition of “mental disease or defect” — AS 12.47.130

Commitment on finding of incompetency — AS 12.47.110

Determination of sanity after commitment — AS 12.47.120

Original Code Provision — AS 12.45.100.

Revisor’s notes. —

In 1996, “preponderance of the” was substituted for “preponderance of” in the second sentence of subsection (c), to correct a manifest error in § 1, ch. 62, SLA 1996.

Effect of amendments. —

The 2012 amendment, effective July 1, 2012, added (h).

Editor’s notes. —

Section 27(b), ch. 1, TSSLA 2012, provides that subsection (h) applies to offenses committed on or after July 1, 2012.

Legislative history reports. —

For legislative letter of intent concerning the amendment of this section made by § 1, ch. 62, SLA 1996 (HCS SB 321(JUD)), see 1996 House Journal 4203-4205.

For the governor's transmittal letter concerning ch. 1, TSSLA 2012 (HB 359), see 2012 House Journal 1666 — 1668.

Notes to Decisions

Annotator’s notes. —

Many of the cases annotated below were decided under former AS 12.45.100.

Mandate of former AS 12.45.100 was of constitutional dimensions. —

Subsection (a) of former AS 12.45.100 prohibited the trial, conviction and sentencing of a defendant who could not assist in his own defense or understand the proceedings against him. That statutory mandate is of constitutional dimensions. McKinney v. State, 566 P.2d 653 (Alaska 1977), overruled, Evans v. State, 645 P.2d 155 (Alaska 1982).

The conviction of a person who is incompetent to stand trial violates due process of law. Schade v. State, 512 P.2d 907 (Alaska 1973); Fajeriak v. State, 520 P.2d 795 (Alaska 1974); McKinney v. State, 566 P.2d 653 (Alaska 1977), overruled, Evans v. State, 645 P.2d 155 (Alaska 1982).

And his sentence is therefore vulnerable to post-conviction attack. Fajeriak v. State, 520 P.2d 795 (Alaska 1974).

This is true whether or not defendant presented issue of incompetency at trial. Fajeriak v. State, 520 P.2d 795 (Alaska 1974).

But incompetency to stand trial is a concept of restricted application. Fajeriak v. State, 520 P.2d 795 (Alaska 1974).

One of the primary reasons for requiring that defendant be competent before standing trial is to safeguard the accuracy of the guilt finding process. Schade v. State, 512 P.2d 907 (Alaska 1973).

Former AS 12.45.100 appeared to codify the common law rule. Schade v. State, 512 P.2d 907 (Alaska 1973).

It was the rule at common law that an accused should not be subjected to a criminal trial if he is in such a mental condition that he is unable to understand the proceedings against him or to properly assist in his own defense. Bosel v. State, 398 P.2d 651 (Alaska 1965); Schade v. State, 512 P.2d 907 (Alaska 1973).

Subsection (b) of former AS 12.45.100 was patterned after former 18 U.S.C. § 4244. Bosel v. State, 398 P.2d 651 (Alaska 1965); Smiloff v. State, 579 P.2d 28 (Alaska 1978)(See now 18 U.S.C. § 4241 et seq.).

The test in former AS 12.45.100 was substantially identical to the federal statutory standard of incompetency. Fajeriak v. State, 520 P.2d 795 (Alaska 1974).

Subsection (b) of former AS 12.45.100 was clear enough. Thessen v. State, 454 P.2d 341 (Alaska 1969), cert. denied, 396 U.S. 1029, 90 S. Ct. 588, 24 L. Ed. 2d 525 (U.S. 1970).

A defendant need not be proved certifiably incompetent to stand trial before the court is required to order a psychiatric examination. Fajeriak v. State, 520 P.2d 795 (Alaska 1974).

Subsection (b) of former AS 12.45.100 directed only that “reasonable cause” to believe that the defendant might be incompetent to stand trial be shown. Fajeriak v. State, 520 P.2d 795 (Alaska 1974).

The defendant must have some minimum ability to provide his counsel with information necessary or relevant to his defense. He must also be able to understand the nature of the proceedings sufficiently to participate in certain decisions about the conduct of the defense. Schade v. State, 512 P.2d 907 (Alaska 1973).

Some strategic choices must be the product of meaningful communication between the defendant and his counsel. Schade v. State, 512 P.2d 907 (Alaska 1973).

But this does not mean that a defendant must possess any high degree of legal sophistication or intellectual prowess. Schade v. State, 512 P.2d 907 (Alaska 1973); Smiloff v. State, 579 P.2d 28 (Alaska 1978).

Numerous persons are subjected to criminal prosecution, even though they are of relatively low intelligence or are suffering from some significant emotional or physical impairment. Schade v. State, 512 P.2d 907 (Alaska 1973); Smiloff v. State, 579 P.2d 28 (Alaska 1978).

Not every emotional flaw renders one incompetent to stand trial. Schade v. State, 512 P.2d 907 (Alaska 1973).

The presence of some degree of mental illness is not an invariable barrier to prosecution. There may be an impaired functioning of some aspects of the defendant’s personality and yet he may still be minimally able to aid in his defense and to understand the nature of the proceedings against him. Schade v. State, 512 P.2d 907 (Alaska 1973); McKinney v. State, 566 P.2d 653 (Alaska 1977), overruled, Evans v. State, 645 P.2d 155 (Alaska 1982).

That there may be something mentally wrong with a defendant or that he may be emotionally unstable does not necessarily render him mentally incompetent to understand the proceedings against him. Fajeriak v. State, 520 P.2d 795 (Alaska 1974).

Not every mental illness necessarily disables a defendant from functioning adequately in a criminal proceeding. McKinney v. State, 566 P.2d 653 (Alaska 1977), overruled, Evans v. State, 645 P.2d 155 (Alaska 1982).

Possibility that defendant might suffer episodes of vertigo or momentary unconsciousness during trial is not enough to render a defendant mentally incompetent. It could with equal justification be argued that a chronically drowsy defendant could not be tried because he might doze off during proceedings. Fajeriak v. State, 520 P.2d 795 (Alaska 1974).

Amnesia, be it partial or total, is not an adequate ground for a declaration of incompetency to stand trial. Fajeriak v. State, 520 P.2d 795 (Alaska 1974).

Policy cojoins with precedent to oppose an expansion of the doctrine of incompetency to include amnesia. The potential for fraudulent allegations of memory loss is so great that the supreme court would for this reason alone be reluctant to allow amnesia as a ground for a finding of incompetency even if it were otherwise inclined to do so. Fajeriak v. State, 520 P.2d 795 (Alaska 1974).

Memory loss, whether partial or total, is not an adequate ground for a declaration of incompetency. Smiloff v. State, 579 P.2d 28 (Alaska 1978).

Temporary psychosis, though serious, may not necessarily preclude competency, even where it involves loss of memory. McKinney v. State, 566 P.2d 653 (Alaska 1977), overruled, Evans v. State, 645 P.2d 155 (Alaska 1982).

Duty to determine competency is not one that can be once determined and then ignored. Smiloff v. State, 579 P.2d 28 (Alaska 1978).

Self-incrimination privilege in competency hearing. —

Requiring defendant, who had been charged with two counts of second degree assault, to testify at his competency hearing would violate his rights under the Fifth Amendment and Alaska Const. art. I, § 9, not to take the stand against his will. Diggs v. State, 274 P.3d 504 (Alaska Ct. App. 2012).

Competency demonstrated by preponderance of evidence. —

Competency to stand trial need be demonstrated only by a preponderance of the evidence; the court rejected the contention that the state prove competency beyond a reasonable doubt. McCarlo v. State, 677 P.2d 1268 (Alaska Ct. App. 1984).

In determining competency, the standard of judgment must be a relative one. Schade v. State, 512 P.2d 907 (Alaska 1973); Smiloff v. State, 579 P.2d 28 (Alaska 1978).

Some comparison must be made between the apparent competency of the accused and the ability level of the average criminal defendant. Schade v. State, 512 P.2d 907 (Alaska 1973); Smiloff v. State, 579 P.2d 28 (Alaska 1978).

To a large extent each case must be considered on its particular facts and must call for the application of judicial discretion. Schade v. State, 512 P.2d 907 (Alaska 1973).

The determination is a relative one, and each case must be determined on its own facts. McKinney v. State, 566 P.2d 653 (Alaska 1977), overruled, Evans v. State, 645 P.2d 155 (Alaska 1982).

Great deference is to be accorded defense counsel’s assessment in matters of defendant’s competence to stand trial, insofar as he is better able than the trial judge or the prosecutor to assess the defendant’s ability to participate in his defense and to understand the nature of the proceedings against him. Fajeriak v. State, 520 P.2d 795 (Alaska 1974); Smiloff v. State, 579 P.2d 28 (Alaska 1978).

But his opinion is not determinative. —

A defense attorney’s duty as an advocate will often require him to present arguments of incompetence on behalf of his client; and while his opinion is relevant, it is not determinative. McKinney v. State, 566 P.2d 653 (Alaska 1977), overruled, Evans v. State, 645 P.2d 155 (Alaska 1982).

Defendant was competent to stand trial despite his attorney’s continuing objections that defendant could not meaningfully participate in his own defense. The trial court made its own independent findings and continued to make additional findings at later hearings, demonstrating its awareness that defendant’s situation was not necessarily stable and that the highly intrusive delusions that previously presented a barrier to defendant’s competency could quickly return. Gamble v. State, 334 P.3d 714 (Alaska Ct. App. 2014).

The evaluation by defense counsel of the defendant’s competency is only of evidentiary value and is not dispositive of the issue. Smiloff v. State, 579 P.2d 28 (Alaska 1978).

Commitment not mandatory. —

Subsection (b) of this section states that the court “may order the accused committed for a reasonable period,” but such commitment is not mandatory. Vail v. State, 599 P.2d 1371 (Alaska 1979).

Reasonable cause for commitment. —

This section assumes that the person making the motion to commit the accused to a mental hospital to determine his competency has “reasonable cause” to believe that the accused is laboring under a mental disease or defect. Vail v. State, 599 P.2d 1371 (Alaska 1979).

Where the psychiatric examination of the defendant yields professional findings that he is competent to stand trial, the question of whether to hold any further or evidentiary hearings is addressed to the sound discretion of the trial court. Schade v. State, 512 P.2d 907 (Alaska 1973); Smiloff v. State, 579 P.2d 28 (Alaska 1978).

This section is silent on procedures to be employed if psychiatrist’s reports indicate that accused is competent. Smiloff v. State, 579 P.2d 28 (Alaska 1978).

Where defendant chooses not to assist in defense. —

Although a defendant’s decisions may reflect an unwise choice not to aid in his defense, the fact that he chooses not to assist in his defense does not mean he is incapable of doing so. McKinney v. State, 566 P.2d 653 (Alaska 1977), overruled, Evans v. State, 645 P.2d 155 (Alaska 1982).

Disagreements with defendant. —

Where the main thrust of the trial counsel’s showing was the fact that he had encountered difficulties and disagreements with defendant over whether to accept a plea bargain and whether to have a jury trial and defense counsel did not refer to any bizarre behavior on defendant’s part or any specific facts indicating defendant’s incompetency, the superior court did not err in ruling that a fresh competency hearing was not required. Smiloff v. State, 579 P.2d 28 (Alaska 1978).

Limited appellate role on review. —

See McKinney v. State, 566 P.2d 653 (Alaska 1977), overruled, Evans v. State, 645 P.2d 155 (Alaska 1982).

Viewing the evidence in the light most favorable to the state, the supreme court will examine whether or not there was substantial evidence in the record to uphold the ruling below. If there is substantial evidence, it will not substitute its opinion for that of the trial court. McKinney v. State, 566 P.2d 653 (Alaska 1977), overruled, Evans v. State, 645 P.2d 155 (Alaska 1982).

Substantial evidence supporting ruling that defendant was competent. —

See McKinney v. State, 566 P.2d 653 (Alaska 1977), overruled, Evans v. State, 645 P.2d 155 (Alaska 1982).

Quoted in

Jones v. State, 812 P.2d 613 (Alaska Ct. App. 1991).

Cited in

Burks v. State, 748 P.2d 1178 (Alaska Ct. App. 1988); Ortberg v. State, 751 P.2d 1368 (Alaska Ct. App. 1988); Monroe v. State, 847 P.2d 84 (Alaska Ct. App. 1993); Samaniego v. City of Kodiak, 80 P.3d 216 (Alaska 2003).

Sec. 12.47.110. Commitment on finding of incompetency.

  1. When the trial court determines by a preponderance of the evidence, in accordance with AS 12.47.100 , that a defendant is so incompetent that the defendant is unable to understand the proceedings against the defendant or to assist in the defendant’s own defense, the court shall order the proceedings stayed, except as provided in (d) of this section, and shall commit a defendant charged with a felony, and may commit a defendant charged with any other crime, to the custody of the commissioner of health and social services or the commissioner’s authorized representative for further evaluation and treatment until the defendant is mentally competent to stand trial, or until the pending charges against the defendant are disposed of according to law, but in no event longer than 90 days.
  2. On or before the expiration of the initial 90-day period of commitment, the court shall conduct a hearing to determine whether or not the defendant remains incompetent. If the court finds by a preponderance of the evidence that the defendant remains incompetent, the court may recommit the defendant for a second period of 90 days. The court shall determine at the expiration of the second 90-day period whether the defendant has become competent. If, at the expiration of the second 90-day period, the court determines that the defendant continues to be incompetent to stand trial, the charges against the defendant shall be dismissed without prejudice, and continued commitment of the defendant shall be governed by the provisions relating to civil commitments under AS 47.30.700 — 47.30.915 unless the defendant is charged with a crime involving force against a person and the court finds that the defendant presents a substantial danger of physical injury to other persons and that there is a substantial probability that the defendant will regain competency within a reasonable period of time, in which case the court may extend the period of commitment for an additional six months. If the defendant remains incompetent at the expiration of the additional six-month period, the charges shall be dismissed without prejudice, and continued commitment proceedings shall be governed by the provisions relating to civil commitment under AS 47.30.700 — 47.30.915 . If the defendant remains incompetent for five years after the charges have been dismissed under this subsection, the defendant may not be charged again for an offense arising out of the facts alleged in the original charges, except if the original charge is a class A felony or unclassified felony.
  3. The defendant is not responsible for the expenses of hospitalization or transportation incurred as a result of the defendant’s commitment under this section.  Liability for payment under AS 47.30.910 does not apply to commitments under this section.
  4. A defendant receiving medication for either a physical or a mental condition may not be prohibited from standing trial, if the medication either enables the defendant to understand the proceedings and to properly assist in the defendant’s defense or does not disable the defendant from understanding the proceedings and assisting in the defendant’s own defense.
  5. A defendant charged with a felony and found to be incompetent to proceed under this section is rebuttably presumed to be mentally ill and to present a likelihood of serious harm to self or others in proceedings under AS 47.30.700 — 47.30.915 . In evaluating whether a defendant is likely to cause serious harm, the court may consider as recent behavior the conduct with which the defendant was originally charged.

History. (§ 22 ch 143 SLA 1982; am § 2 ch 62 SLA 1996; am §§ 19 — 21 ch 75 SLA 2008)

Cross references. —

Incompetency to proceed — AS 12.47.100

Determination of sanity after commitment — AS 12.47.120

Original Code Provision — AS 12.45.110.

Opinions of attorney general. —

Properly licensed private treatment facilities may be used for the placement of persons committed to the commissioner of the Department of Health and Social Services pursuant to AS 12.47.090 and 12.47.110 . July 8, 1986 Op. Att’y Gen.

Notes to Decisions

Jurisdiction. —

Superior court was the proper court for commencement of civil proceedings for commitment and involuntary medication, and the superior court did not err when it denied a criminal defendant's motions to stay or dismiss the proceedings because of the competency commitment ordered by the district court. The superior court was the only court with jurisdiction to entertain an involuntary medication petition despite the fact that a district court had committed the defendant for competency purposes. In re Hospitalization of Linda M., 440 P.3d 168 (Alaska 2019).

Defendant’s due process rights. —

Prolonged delay in obtaining competency restoration treatment violated defendant's right to substantive due process and required dismissal without prejudice of his criminal case because he was charged with a misdemeanor and it was apparent within days of the issuance of the commitment order that he was unlikely to be transferred to the Alaska Psychiatric Institute within a reasonable time and that he was likely to languish in jail, further decompensating mentally, for most, if not all, of the 90-day commitment order. J.K. v. State, 469 P.3d 434 (Alaska Ct. App. 2020).

Cited in

State v. Galbraith, 199 P.3d 1216 (Alaska Ct. App. 2009).

Sec. 12.47.120. Determination of sanity after commitment.

  1. When, in the medical judgment of the custodian of an accused person committed under AS 12.47.110 , the accused is considered to be mentally competent to stand trial, the committing court shall hold a hearing, after due notice, as soon as conveniently possible.  At the hearing, evidence as to the mental condition of the accused may be submitted including reports by the custodian to whom the accused was committed for care.
  2. If at the hearing the court determines that the accused is presently mentally competent to understand the nature of the proceedings against the accused and to assist in the accused’s own defense, appropriate criminal proceedings may be commenced against the accused.
  3. If at the hearing the court determines that the accused is still presently mentally incompetent, the court shall recommit the accused in accordance with AS 12.47.110 .
  4. A finding by the court that the accused is mentally competent to stand trial in no way prejudices the accused in a defense based on mental disease or defect excluding responsibility. This finding may not be introduced in evidence on that issue or otherwise brought to the notice of the jury.

History. (§ 22 ch 143 SLA 1982)

Cross references. —

Incompetency to proceed — AS 12.47.100

Commitment on finding of incompetency — AS 12.47.110

Original Code Provision — AS 12.45.115.

Sec. 12.47.130. Definitions.

In this chapter,

  1. “affirmative defense” has the meaning given in AS 11.81.900(b) ;
  2. “assist in the defendant’s own defense” means to consult with a lawyer while exercising a reasonable degree of rational functioning;
  3. “culpable mental state” has the meaning given in AS 11.81.900(b) ;
  4. “incompetent” means a defendant is unable to understand the proceedings against the defendant or to assist in the defendant’s own defense;
  5. “mental disease or defect” means a disorder of thought or mood that substantially impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life; “mental disease or defect” also includes intellectual and developmental disabilities that result in significantly below average general intellectual functioning that impairs a person’s ability to adapt to or cope with the ordinary demands of life;
  6. “understand the proceedings against the defendant” means that the defendant’s elementary mental process is such that the defendant has a reasonably rational comprehension of the proceedings.

History. (§ 22 ch 143 SLA 1982; am § 3 ch 62 SLA 1996; am § 2 ch 42 SLA 2013)

Revisor’s notes. —

Paragraph (2) was enacted as (4) and paragraph (4) was enacted as (5). Renumbered in 1996, at which time former paragraph (2) was renumbered as (3) and former paragraph (3) was renumbered as (5), alphabetizing the defined terms.

Effect of amendments. —

The 2013 amendment, effective September 1, 2013, in (5), substituted “intellectual and developmental disabilities that result in” for “mental retardation, which means a”.

Notes to Decisions

Quoted in

Jackson v. State, 890 P.2d 587 (Alaska Ct. App. 1995); Dorsey v. State, 480 P.3d 1211 (Alaska Ct. App. 2021).

Cited in

Pieniazek v. State, 394 P.3d 621 (Alaska Ct. App. 2017).

Chapter 50. Witnesses.

Collateral references. —

81 Am. Jur. 2d, Witnesses, § 1 et seq.

98 C.J.S., Witnesses, § 1 et seq.

Article 1. Uniform Act to Secure Attendance in Criminal Proceedings.

Notes to Decisions

Effect of article. —

For witnesses not in prison, this article provides a means by which prosecuting authorities from one state can obtain an order from a court in the state where the witness is found directing the witness to appear in court in the first state to testify. The state seeking his appearance must pay the witness a specified sum as a travel allowance and compensation for his time. Stores v. State, 625 P.2d 820 (Alaska 1980).

Cited in

Morton v. State, 684 P.2d 144 (Alaska Ct. App. 1984).

Sec. 12.50.010. Witness subpoenaed in this state to testify in another state.

  1. If a judge of a court of record in any state which by its laws has made provision for commanding persons within the state to attend and testify in this state certifies under the seal of the court that there is a criminal prosecution pending in the court, or that a grand jury investigation has commenced or is about to commence, that a person within this state is a material witness in that prosecution or grand jury investigation, and that the presence of that person will be required for a specified number of days, then, upon presentation of the certificate to a judge of a court of record in the judicial district in which the person is, the judge shall fix a time and place for a hearing and shall make an order directing the witness to appear at a time and place certain for the hearing.
  2. If at a hearing the judge determines that the witness is material and necessary, that it will not cause undue hardship to the witness to be compelled to attend and testify in the prosecution or grand jury investigation in the other state, and that the laws of the state in which the prosecution is pending or grand jury investigation has commenced or is about to commence will give to the witness protection from arrest and the service of civil and criminal process, the judge shall issue a subpoena, with a copy of the certificate attached, directing the witness to attend and testify in the court where the prosecution is pending or where a grand jury investigation has commenced or is about to commence at a time and place specified in the subpoena.  In any such hearing the certificate shall be prima facie evidence of all of the facts stated therein.
  3. If the certificate recommends that the witness be taken into immediate custody and delivered to an officer of the requesting state to assure attendance in the requesting state, the judge may, in lieu of notification of the hearing, direct that the witness be immediately brought before the judge for said hearing; and if the judge at the hearing is satisfied of the desirability of the custody and delivery, for which determination the certificate shall be prima facie proof of this desirability, the judge may, in lieu of issuing subpoena, order that the witness be immediately taken into custody and delivered to an officer of the requesting state.
  4. If the witness who is subpoenaed as provided in this section, after being paid or tendered by a properly authorized person a sum equivalent to the cost of air fare round trip passage on a certificated carrier or such prepaid passage and reasonable incidental travel allowance for going to and from airports plus $20 per day for each day that the witness is required to travel and attend as a witness, fails without good cause to attend and testify as directed in the subpoena, the witness shall be punished in the manner provided for the punishment of a witness who disobeys a subpoena issued from a court of record in this state.

History. (§ 7.04 ch 34 SLA 1962)

Notes to Decisions

Constitutionality. —

Use and derivative use immunity is constitutionally infirm. State v. Gonzalez, 853 P.2d 526 (Alaska 1993).

This section impermissibly dilutes the protection art. I, § 9, of the Alaska Constitution. Problems of proof and ordinary human frailties combine to pose a potent threat to an individual compelled to testify. The state cannot meaningfully safeguard against nonevidentiary use of compelled testimony. State v. Gonzalez, 853 P.2d 526 (Alaska 1993).

Applied in

Wahl v. State, 441 P.3d 424 (Alaska 2019).

Cited in

Lewis v. State, 452 P.2d 892 (Alaska 1969); Commercial Union Cos. v. Smallwood, 550 P.2d 1261 (Alaska 1976).

Sec. 12.50.020. Witness from another state subpoenaed to testify in this state.

  1. If a person in a state which by its laws has made provision for commanding persons inside its borders to attend and testify in criminal prosecutions or grand jury investigations commenced or about to commence in this state as a material witness in a criminal action pending in a court of record of this state, or in a grand jury investigation which has commenced or is about to commence, a judge of the court may issue a certificate under the seal of the court stating these facts and specifying the number of days the witness will be required.  The certificate may include a recommendation that the witness be taken into immediate custody and delivered to an officer of this state to assure attendance in this state. This certificate shall be presented to a judge of a court of record in the county or judicial district in which the witness is found.  This order of a court in the other state delivering custody of a witness to an officer of this state shall be sufficient authority to an officer of this state to take the witness into custody and hold the witness until discharged by a court of this state.
  2. If the witness is subpoenaed to attend and testify in this state the witness shall be tendered a sum equivalent to the cost of air fare round trip passage on a certificated carrier or such prepaid passage and reasonable incidental travel allowance for going to and from airports plus $20 per day for each day that the witness is required to travel and attend as a witness.  A witness who has appeared in accordance with the provisions of the subpoena shall not be required to remain within the state a longer period of time than the period mentioned in the certificate, unless otherwise ordered by the court.  If the witness, after coming into this state, fails without good cause to attend and testify as directed in the subpoena, the witness shall be punished in the manner provided for the punishment of any witness who disobeys a subpoena issued from a court of record in this state.

History. (§ 7.05 ch 34 SLA 1962)

Notes to Decisions

Securing presence of witness in criminal case. —

This section specifies that, upon issuance of a certificate by a judge of this state, presence of a witness may be secured in a criminal case if the witness is located in a state which also adheres to the Uniform Act to Secure Attendance of Witnesses in Criminal Proceedings. Tarnef v. State, 492 P.2d 109 (Alaska 1971).

Sec. 12.50.030. Immunity of witness from arrest or service of process.

If a person comes into this state in obedience to a subpoena directing the person to attend and testify in this state, the person shall not, while in this state pursuant to the subpoena, be subject to arrest or the service of process, civil or criminal, in connection with matters which arose before entering this state under the subpoena.

History. (§ 7.06 ch 34 SLA 1962)

Notes to Decisions

Cited in

Morton v. State, 684 P.2d 144 (Alaska Ct. App. 1984).

Collateral references. —

98 C.J.S., Witnesses, § 14 et seq.

Sec. 12.50.040. Immunity of foreign witness passing through state from arrest or process.

If a person passes through this state while going to another state in obedience to a subpoena to attend and testify in that state or while returning therefrom, the person shall not, while so passing through this state, be subject to arrest or the service of process, civil or criminal, in connection with matters which arose before entering this state under the subpoena.

History. (§ 7.07 ch 34 SLA 1962)

Sec. 12.50.050. Party seeking witness.

The right to obtain witnesses under AS 12.50.010 — 12.50.080 in criminal proceedings shall extend to the state or a defendant. Witness fees shall be paid by the party calling the witness, except as provided in Rule 17(b), Alaska Rules of Criminal Procedure. If the time estimate in the certificate of the requesting court is exceeded, the nonindigent defendant shall be required to tender additional per diem or post bond to insure payment of total witness fees.

History. (§ 7.09 ch 34 SLA 1962)

Sec. 12.50.060. Uniformity of interpretation.

AS 12.50.010 — 12.50.080 shall be so interpreted and construed as to effectuate the general purpose to make uniform the laws of the states which enact similar legislation.

History. (§ 7.08 ch 34 SLA 1962)

Sec. 12.50.070. Definitions.

In AS 12.50.010 — 12.50.080 ,

  1. “state” means a state, territory of the United States, and the District of Columbia;
  2. “subpoena” includes a summons in a state where a summons is used in lieu of subpoena, order, or other notice requiring the appearance of a witness; the word subpoena also includes a subpoena duces tecum;
  3. “witness” includes a person whose testimony is desired in a proceeding or investigation by a grand jury or in a criminal action, prosecution, or proceeding.

History. (§ 7.03 ch 34 SLA 1962)

Sec. 12.50.080. Short title.

AS 12.50.010 — 12.50.080 may be cited as the Uniform Act to Secure Attendance of Witnesses in Criminal Proceedings.

History. (§ 7.10 ch 34 SLA 1962)

Notes to Decisions

Cited in

Lewis v. State, 452 P.2d 892 (Alaska 1969).

Secs. 12.50.090 — 12.50.100. Material witnesses. [Repealed, § 2 ch 20 SLA 1966. For current law, see AS 12.30.050.]

For current law, see AS 12.30.050 .

For current law, see AS 12.30.050 .

Article 2. Witness Immunity.

Sec. 12.50.101. Immunity of witnesses.

  1. If a witness refuses, on the basis of the privilege against self-incrimination, to testify or provide other information in a criminal proceeding before or ancillary to a court or grand jury of this state, and a judge issues an order under (b) of this section, the witness may not refuse to comply with the order on the basis of the privilege against self-incrimination. If the witness fully complies with the order, the witness may not be prosecuted for an offense about which the witness is compelled to testify, except in a prosecution based on perjury, giving a false statement or otherwise knowingly providing false information, or hindering prosecution.
  2. In the case of an individual who has been or may be called to testify or provide other information in a criminal proceeding before or ancillary to a court or a grand jury of this state, a superior or district court for the judicial district in which the proceeding is or may be held shall issue, upon the application of the attorney general or the attorney general’s designee in accordance with (d) of this section, an order requiring the individual to give testimony or provide other information that the individual refuses to give or provide based on the privilege against self-incrimination.
  3. An order issued under (b) of this section is effective when communicated to the individual specified in the order.
  4. The attorney general or the attorney general’s designee may apply for an order under (b) of this section when, in the judgment of the attorney general or the attorney general’s designee,
    1. the testimony or other information may be necessary to the administration of criminal justice; and
    2. the individual who is the subject of the application has refused or is likely to refuse to testify or to provide other information on the basis of the privilege against self-incrimination.
  5. If a witness refuses, or there is reason to believe the witness will refuse, to testify or provide other information based on the privilege against self-incrimination, and if the attorney general or the attorney general’s designee has not applied for an order under (b) of this section, the court shall inform the witness of the right to be represented by an attorney, and that an attorney will be appointed for the witness if the witness qualifies for counsel under AS 18.85. The court shall recess the proceeding to allow the witness to consult with the attorney for the witness.
  6. If the attorney general or the attorney general’s designee declines to seek an order under (b) of this section after the witness has had an opportunity to consult with an attorney, and the witness continues to refuse to testify or provide other information, the court shall hold a hearing to determine the validity of the claim of privilege by the witness. The hearing shall be in camera.
  7. At the hearing under (f) of this section, the attorney for the witness, in the form of a proffer, shall describe the testimony or other information that the witness claims is privileged. The proffer must include a description of how the testimony or other information could connect the witness with a crime. The proffer is privileged and inadmissible for any other purpose. If the proffer establishes a factual basis that there is a real or substantial danger that the testimony or other information to be compelled would support a conviction or would furnish a link in the chain of evidence leading to conviction for a crime, the court may find that the witness has a valid claim of privilege.
  8. If the court finds that the witness has a valid claim of privilege, it shall advise an attorney designated by the attorney general of that finding and inform the attorney of the category or categories of offense to which the privilege applies: a higher-level felony, a lower-level felony, or a misdemeanor. If the designated attorney decides that granting immunity to the witness is appropriate, the designated attorney shall inform the prosecution of that decision, and shall deliver or cause to be delivered a letter to the witness, or an attorney for the witness, granting immunity to the witness. The designated attorney may not disclose the category of offense to anyone.
  9. In this section,
    1. “higher-level felony” means an unclassified or class A felony;
    2. “lower-level felony” means a class B or class C felony;
    3. “other information” means books, papers, documents, records, recordings, or other similar material;
    4. “proffer” means a written or oral statement by the attorney for the witness, stating the attorney’s good faith belief of the substance of the witness’s testimony or other information.

History. (§ 23 ch 143 SLA 1982; am §§ 20 — 22 ch 124 SLA 2004)

Cross references. —

Perjury — AS 11.56.200

Hindering prosecution — AS 11.56.770 , 11.56.780

Revisor’s notes. —

Subsections (e) - (h) were enacted as subsections (f) - (i). Relettered in 2004, at which time former subsection (e) was relettered as subsection (i).

Effect of amendments. —

The 2004 amendment, effective July 1, 2004, rewrote the second sentence of subsection (a), added the definitions of “higher-level felony,”, “lower-level felony,” and “proffer” in subsection (i), and added subsections (e) through (h).

Editor’s notes. —

Section 32(d), ch. 124, SLA 2004, provides that the 2004 amendment of subsection (a) of this section and the 2004 enactment of subsections (e) - (h) of this section apply “to criminal proceedings for offenses committed before, on, or after July 1, 2004.”

Notes to Decisions

Constitutionality. —

This section violates the Alaska Constitution’s privilege against self-incrimination. State v. Gonzalez, 853 P.2d 526 (Alaska 1993) (decided prior to 2004 amendments).

Trial court did not abuse its discretion in ordering counts charging defendant with sexually abusing his daughter to be dismissed in the interest of justice after the state refused to grant use immunity to a critical witness whose proposed testimony was deemed to be of crucial exculpatory value. State v. Echols, 793 P.2d 1066 (Alaska Ct. App. 1990).

Refusal of immunized witness to testify. —

Immunized witness could not refuse to testify because a witness cannot assert the privilege against self-incrimination under Alaska Const. art. I, § 9 and U.S. Const. amend. 5 based on the possibility that the State will disbelieve the witness’s testimony and prosecute the witness for committing perjury during the immunized testimony. Dan v. Dan, 286 P.3d 772 (Alaska Ct. App. 2012).

Cited in

O'Leary v. Superior Court, Third Judicial Dist., 816 P.2d 163 (Alaska 1991); State v. Finley, 337 P.3d 527 (Alaska Ct. App. 2014).

Article 3. Temporary Detention and Identification of Persons.

Sec. 12.50.201. Temporary detention and identification of persons.

  1. A peace officer may temporarily detain a person under circumstances that give the officer reasonable suspicion that
    1. the person witnessed or was at or near the scene of the commission of a felony crime against a person under AS 11.41, arson under AS 11.46.400 or 11.46.410 , criminal mischief under AS 11.46.475 or 11.46.480 , or misconduct involving weapons under AS 11.61.190 or 11.61.195(a)(3) ;
    2. the person has information of material aid in the investigation of that crime; and
    3. the temporary detention of the person is reasonably necessary to obtain or verify the identification of the person, to obtain an account of the crime, to protect a crime victim from imminent harm, or for other exigent circumstances.
  2. A peace officer who temporarily detains a person under (a) of this section may
    1. detain the person only as long as reasonably necessary to accomplish the purposes of that subsection;
    2. take one or more photographs of the person, if photographs can be taken without unreasonably delaying the person or removing the person from the vicinity; and
    3. if the person does not provide valid government-issued photographic identification or other valid identification that the officer finds to be reliable to identify the person, or the officer has reasonable suspicion that the identification is not valid,
      1. serve a subpoena on the person to appear before the grand jury where the crime was committed; and
      2. take the person’s fingerprint impressions if
        1. the crime under investigation is murder, attempted murder, or misconduct involving weapons under AS 11.61.190 or 11.61.195(a)(3) ; and
        2. fingerprint impressions can be taken without unreasonably delaying the person or removing the person from the vicinity.
  3. A peace officer electing to serve a subpoena under (b) of this section may not require the person to sign the subpoena or another document. The officer or the subpoena must advise the person that failure to honor the subpoena may be punishable as criminal contempt of court under AS 09.50.010 . A person receiving a subpoena to testify under (b) of this section may request the district attorney to withdraw the subpoena if, before the grand jury proceeding for which the person has been served a subpoena to appear, the person provides the peace officer who served the subpoena or the lead investigator with valid government-issued photographic identification or other valid identification that the officer or lead investigator finds to be reliable to identify the person.
  4. Photographs or fingerprints taken under (b) of this section
    1. may be used for identification purposes only, and not for criminal investigative purposes unless it is determined that the person is suspected of committing a crime within the scope of the investigation; and
    2. must be destroyed upon the earlier of the following occurrences unless it is determined that the person is suspected of committing a crime within the scope of the investigation:
      1. the person has testified in a grand jury or court proceeding in connection with the matter under investigation; or
      2. completion of the prosecution of the crime being investigated.
  5. This section does not limit the authority of peace officers to investigate crimes, to collect evidence, to photograph crime scenes, evidence, or bystanders, to issue lawful court process, or to ensure the welfare of crime victims or other persons.
  6. A person who refuses or resists the taking of photographs or fingerprints under this section commits a class B misdemeanor, punishable as provided in AS 12.55, except that a sentence of imprisonment, if imposed, may not exceed 10 days.
  7. Notwithstanding (f) of this section, if the person establishes that the person does not have information of material aid in the investigation of the crime, it is within the discretion of the court to determine that this is a civil matter punishable by a civil fine of not more than $1,000.

History. (§ 2 ch 1 TSSLA 2006)

Legislative history reports. —

For governor’s transmittal letter for ch. 1, TSSLA 2006 (SB 3005), proposing to give police statutory authority temporarily to detain witnesses to crimes substantially as set out in this section, see 2006 Senate Journal 3679 — 3682.

Chapter 55. Sentencing and Probation.

Legislative history reports. —

For report on ch. 166, SLA 1978 (HB 661), see 1978 Senate Journal Supplement No. 47 (June 12, 1978).

Notes to Decisions

Constitutionality of presumptive sentencing provisions. —

The presumptive sentencing provisions, AS 12.55.125 — 12.55.175 , do not conflict with Alaska Const., art. I, § 12 because the legislature has the authority to reasonably restrict judicial discretion in order to accomplish the goal of eliminating unjustified sentencing disparity. Nell v. State, 642 P.2d 1361 (Alaska Ct. App. 1982).

The presumptive sentencing provisions contained in AS 12.55.125 — 12.55.175 are not an unconstitutional violation of the separation of powers doctrine or of Alaska Const., art. IV, § 1 as a legislative infringement on the power of the judiciary to sentence on the basis of the particular facts of the case and the nature of a particular offender because although the presumptive sentencing statutes do limit the discretion of a judge in imposing a sentence, they do not foreclose sentences of less than the presumptive sentence or the possibility of placing a person on probation. Nell v. State, 642 P.2d 1361 (Alaska Ct. App. 1982).

Applied in

Hornaday v. Rowland, 674 P.2d 1333 (Alaska 1983).

Collateral references. —

21 Am. Jur. 2d, Criminal Law, § 736 et seq., 588 to 631

21A Am. Jur. 2d, Criminal Law, § 844 et seq.

24 C.J.S. Criminal Law, § 1995 et seq.

Sec. 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.

History. (§ 12 ch 166 SLA 1978; am § 1 ch 103 SLA 2000)

Cross references. —

Original Code Provision — None.

TD: VI, 18-22.

Notes to Decisions

Chaney criteria incorporated in section. —

The criteria of State v. Chaney, 477 P.2d 441 (Alaska 1970) have essentially been incorporated into the criminal code as this section. Nell v. State, 642 P.2d 1361 (Alaska Ct. App. 1982); Schnecker v. State, 739 P.2d 1310 (Alaska Ct. App. 1987).

Legislative intent reflected. —

The presumptive sentencing provisions contained in AS 12.55.125 and 12.55.155 reflect the legislature’s intent to assure predictability and uniformity in sentencing by the use of fixed and relatively inflexible sentences, statutorily prescribed, for persons convicted of second or subsequent felony offenses. Juneby v. State, 641 P.2d 823 (Alaska Ct. App. 1982), modified, 665 P.2d 30 (Alaska Ct. App. 1983).

The comprehensive and highly regimented provisions of the presumptive sentencing statute were enacted to assure that sentencing would become a predictable process and that disparity in sentencing between similarly situated offenders would be eliminated. Lacquement v. State, 644 P.2d 856 (Alaska Ct. App. 1982).

When the legislature enacted Alaska’s presumptive sentencing laws, the legislature declared that its primary goals were to attain reasonable uniformity in sentences and to eliminate unjustified sentencing disparity. Brown v. State, 4 P.3d 961 (Alaska Ct. App. 2000).

Crime victim did not have standing to appeal her husband’s sentence for domestic violence because crime victims are not parties to the criminal prosecution of the perpetrator; nor did the legislature intend to have crime victims file appeals whenever they are dissatisfied with a judge’s weighing of their interests. Cooper v. Dist. Court, 133 P.3d 692 (Alaska Ct. App. 2006).

Reasonable uniformity in sentences required. —

The principle of reasonable sentencing uniformity requires a sentencing judge who decides that an offender deserves a sentence which is significantly different from sentences previously given to similarly situated offenders to expressly find some legitimate basis for the difference — some basis related to “legally relevant sentencing criteria.” That basis should be spelled out on the sentencing record, so that the defendant and a reviewing court can understand the reasons for the disparity. Ross v. State, 836 P.2d 378 (Alaska Ct. App. 1992).

Purpose of benchmark range. —

Benchmarks in sentencing range are intended to help courts avoid unjustified disparity in sentencing by forcing judges to articulate reasons for imposing atypical sentences and to foster the goal of better-informed appellate review of sentencing decisions. Brown v. State, 973 P.2d 1158 (Alaska Ct. App. 1999).

Deviation from sentencing benchmarks. —

Appellate courts should not place inflexible restrictions on a sentencing judge’s authority based on pre-established criteria. Instead, sentencing benchmarks serve only as guidelines, and that any sentencing decision ultimately must be justified on the particular facts of a defendant’s offense and background, evaluated in light of the sentencing criteria and the range of sentences authorized by the legislature. Phelps v. State, 236 P.3d 381 (Alaska Ct. App. 2010).

Where defendant was charged with and pled guilty to 23 offenses—including second-degree murder, first-degree assault, vehicle theft, and driving under the influence—after stealing a car and becoming involved in a high-speed chase, the trial court’s imposition of a 66-year sentence was not inappropriate given the totality of defendant’s conduct and his lengthy criminal history. Defendant’s conduct demonstrated a level of blameworthiness far exceeding the conduct of the typical defendants in vehicular homicide cases. Felber v. State, 243 P.3d 1007 (Alaska Ct. App. 2010).

Court of appeals erred in ruling that the parole restriction made part of defendant’s sentence was excessive because it was not clearly mistaken; the sentencing court considered the relevant factors in fashioning its overall sentence and entered specific findings that the parole restriction was necessary to protect defendant’s children and society at large for an extended period of time, and was appropriate due to the severity of the case and defendant’s lack of remorse and concern. State v. Korkow, 314 P.3d 560 (Alaska 2013).

Criteria enumerated in this section must be given primary significance in the sentencing of first offenders. Kimbrell v. State, 647 P.2d 618 (Alaska Ct. App. 1982).

The “clearly mistaken” test implies a permissible range of reasonable sentences which a reviewing court, after an independent review of the record, will not modify. This “range of reasonableness” should be determined not by imposition of an artificial ceiling which limits a large class of offenses to the lower end of the sentencing spectrum, but, rather, by an examination of the particular facts of the individual case in light of the total range of sentences authorized by the legislature for the particular offense. State v. Wentz, 805 P.2d 962 (Alaska 1991).

Mandatory consideration of criteria. —

The court must base any modification or reduction on the criteria set forth in this section. State v. Felix, 50 P.3d 807 (Alaska Ct. App. 2002).

Defendant’s one-year sentence for throwing urine on a correctional officer was not excessive or mistaken because, while the sentence was imposed primarily to deter other inmates from similar conduct by threating criminal sanctions, the judge was aware of and addressed the statutory criteria, including defendant’s serious criminal history, his lengthy sentence, his many disciplinary violations, and the judge’s comments indicated that he had very little hope for defendant’s rehabilitation. Carney v. State, — P.3d — (Alaska Ct. App. Jan. 29, 2014) (memorandum decision).

Defendant’s composite sentence was not excessive because, given the conduct underlying defendant’s original offenses and defendant’s frequent and serious violations of probation; the sentence was not clearly beyond that which a court might have imposed on an offender who rejected further probation and asked for a sentence comprised solely of active imprisonment. Logan v. State, — P.3d — (Alaska Ct. App. Sept. 24, 2014) (memorandum decision).

Remand for further sentencing findings was required because (1) the court did not explicitly find public protection or other sentencing goals in AS 12.55.005 required a sentence greater than the 10-year maximum for first-degree burglary, and (2) the court mistakenly stated defendant had six prior felony convictions when defendant had only four. Beaty v. State, — P.3d — (Alaska Ct. App. Sept. 20, 2017).

Adjustment of presumptive sentence. —

When applied to the adjustment of a presumptive sentence, the State v. Chaney, 477 P.2d 441 (Alaska 1970), analysis, as stated in this section, should not be broadened into a consideration of all circumstances of the offense, as if the sentence were being imposed anew, without regard for the presumptive term. Instead, consideration of the Chaney criteria should focus specifically on the aggravating and mitigating conduct in the particular case. The presumptive term should remain as the starting point of the analysis, and the Chaney criteria should be employed for the limited purpose of determining the extent to which the totality of the aggravating and mitigating factors will justify deviation from the presumptive term. Juneby v. State, 641 P.2d 823 (Alaska Ct. App. 1982), modified, 665 P.2d 30 (Alaska Ct. App. 1983).

Trial court could properly conclude that the facts of the case and defendant’s background required it to sentence him to a term of eight years’ imprisonment with four years suspended for the interference with official proceedings conviction. Sentence was not excessive where defendant, a first-felony offender, had a record of assaultive behavior, where the offense was aggravated, where alcohol was involved, and where the court was concerned for the safety of the community. Bailey v. State, — P.3d — (Alaska Ct. App. Sept. 30, 2009) (memorandum decision).

Based on evidence showing multiple acts of aggravated indecent exposure to a minor, and failure to appear for over 15 years, conviction on four misdemeanor counts was proper. While defendant’s composite sentence could not exceed one year under the Neal-Mutschler rule, the sentencing court was permitted to impose a composite sentence of one and a half years based upon a consideration of the factors set forth in this section; defendant’s offenses were among the most serious, his failure to appear prolonged the criminal prosecution, and he caused the victim to suffer emotional problems. Phelps v. State, 236 P.3d 381 (Alaska Ct. App. 2010).

After defendants requested that a probation term be terminated and that they simply be sentenced to an active prison term, sentencing judges did not err in imposing less than the full term that was previously suspended after considering Chaney sentencing criteria in applying this section; a plea bargain did not require defendants to give up the right to reject further probation. State v. Henry, 240 P.3d 846 (Alaska Ct. App. 2010).

Aggravating factors were properly imposed to sentence defendant because (1) the record was clear that the court found only the AS 12.55.005(c)(15) and (21) factors, and (2) whether three prior convictions should have been counted as one made no difference as it did not affect the judge's sentencing authority to sentence defendant as a third felony offender. Beaty v. State, — P.3d — (Alaska Ct. App. Sept. 20, 2017).

Length of suspended sentence held excessive. —

72-year suspended portion of defendant’s sentence was excessive because the sentencing court found that defendant’s conduct was extremely typical for possession of child pornography, it found reasons to be cautiously optimistic about his potential for rehabilitation, it did not find that 72 years was the appropriate period of time needed to motivate defendant or to protect the public if he were to violate any of the terms of his probation, and it made no findings to justify such a lengthy suspended term based on the individual circumstances of defendant’s case. Smith v. State, 349 P.3d 1087 (Alaska Ct. App. 2015).

Impact of statutory aggravator on sentencing and probation revocation. —

Having found a statutory aggravator, a sentencing judge must weigh that factor in light of the sentencing criteria codified in this section to determine whether the presence of the aggravator shows a defendant to be an atypically serious offender or shows his crime to be more serious than a typical instance of the charged crime. Surrells v. State, 151 P.3d 483 (Alaska Ct. App. 2006).

Nature of offense is relevant factor in sentencing. —

Throughout the supreme court’s review of sentences, the degree of physical or psychological violence involved in the offense has been an important factor. Kelly v. State, 622 P.2d 432 (Alaska 1981).

Tailoring sentence to fit crime committed in the specific case is a central tenet of the sentencing provisions contained in the Revised Alaska Criminal Code. Maal v. State, 670 P.2d 708 (Alaska Ct. App. 1983).

Plea agreement. —

Restriction on defendant’s parole eligibility was not clearly mistaken because his plea agreement left the terms of the sentence to the court, he did not seek to rescind the agreement on the basis that the restriction was outside its scope, and the superior court considered the statutory factors as they related to defendant’s dangerousness, community condemnation, general and specific deterrence, and that, without the restriction, the sentence would be too lenient. Dixiano v. State, — P.3d — (Alaska Ct. App. Feb. 5, 2014) (memorandum decision).

Second-degree murder. —

The benchmark sentencing range established in Page v. State, 657 P.2d 850 (Alaska Ct. App. 1983), governs sentencing in second-degree murder cases. Brown v. State, 973 P.2d 1158 (Alaska Ct. App. 1999).

Trial judge did not err in sentencing defendant to 40 years for second-degree murder under AS 11.41.110(a)(2) and AS 12.55.125(b) , the jury was not required to decide whether defendant’s sentence should exceed the Page benchmark range, and defendant’s prior history under this section and repeated perjury were sufficient reasons to exceed the range. Carlson v. State, 128 P.3d 197 (Alaska Ct. App.), cert. denied, 549 U.S. 966, 127 S. Ct. 415, 166 L. Ed. 2d 294 (U.S. 2006).

Defendant's composite sentence of 32 years for two counts of second-degree murder based on vehicular homicide was remanded to the trial court for reconsideration because the trial court erred by concluding that at 20- to 30-year benchmark sentencing range applied to first felony offenders convicted of second-degree murder arising from a vehicular homicide, as the Page benchmark range applied only to second-degree murders that arose from intentional assaults. The trial court also erred by concluding that defendant's sentence should be increased because his conduct endangered three or more people and it relied on an improper interpretation of community condemnation that incorporated raw emotion and notions of retribution. Graham v. State, 440 P.3d 309 (Alaska Ct. App. 2019).

Lesser prior sentence not limit on sentencing discretion. —

In reviewing a sentence of 25 years imprisonment with seven years suspended (18 years to serve) for a vehicular homicide involving three deaths, a sentence higher than any other that had been affirmed on appeal in Alaska, the fact that lesser sentences had been affirmed for such offense did not mean that they constituted the limit of sentencing discretion. Pusich v. State, 907 P.2d 29 (Alaska Ct. App. 1995).

Sentencing of “worst offender.” —

A “worst offender” designation, standing alone, permits imposition of the maximum term for the single most serious offense. The designation does not, however, automatically permit consecutive sentences exceeding the maximum for the single most serious crime. In order to impose such a sentence, the court must actually find, as a matter of fact, that the defendant will continue to pose a danger to the community during the extended term and that his continued isolation is actually necessary. Such a finding does not necessarily justify pyramiding consecutive maximum sentences; rather, such a finding permits only an incrementally more severe sentence based on the actual need for protection of the public under the totality of the circumstances of the prosecution’s case. Hancock v. State, 741 P.2d 1210 (Alaska Ct. App. 1987).

Defendant had a colorable claim that his 99-year sentence for first-degree murder was excessive where he had no significant adult criminal record, did not appear to have a juvenile record, and appeared to have unaddressed mental health issues; defendant would have to show some reason to believe that his offense was mitigated or that his background was atypically favorable. Johnson v. State, 77 P.3d 11 (Alaska Ct. App. 2003).

Sentencing for extended term for deterrence and rehabilitation. —

In order to make the determination that a defendant requires a period in excess of 15 years for deterrence and rehabilitation, it is imperative that the trial court compare his background, experience, and offenses with those of others sentenced to extended terms, disregarding eligibility for parole. Hancock v. State, 741 P.2d 1210 (Alaska Ct. App. 1987).

Sentencing for extended term to protect the public. —

Where a sentencing judge imposes consecutive sentences totalling more than the maximum sentence for a defendant’s most serious offense, the judge must expressly find that the total sentence is necessary to protect the public; the judge has the authority to protect the public from the commission of property crimes as well as from violent crime. Vandergriff v. State, 125 P.3d 360 (Alaska Ct. App. 2005).

Statutory maximum sentence. —

Because defendant was a third felony offender, the high end of the presumptive sentencing ranges he faced by virtue of his convictions was the same as the maximum statutory penalties for those crimes. Thus, the trial court was authorized to impose the statutory maximum sentence for defendant's burglary and assault convictions without finding any aggravating factors. Beaty v. State, — P.3d — (Alaska Ct. App. Sept. 20, 2017).

Emphasis on isolation in sentencing. —

Based on the trial judge’s discretion under the State v. Chaney (477 P.2d 441 (Alaska 1970)) criteria and the defendant’s status as a repeat offender and a worst offender in his class, the original sentence of seven years’ imprisonment, with five and one-half years suspended, for 14 fish and game violations was reinstated; the sentencing judge specifically emphasized the Chaney factor of isolation based on the defendant’s extensive record of flagrant fish and game violations. State v. Graybill, 695 P.2d 725 (Alaska 1985).

Factors considered provided reasonable basis. —

Where defendant served one year of his three-year term of imprisonment on an attempted second-degree sexual abuse conviction, revocation of his probation and imposition of the remaining two years imprisonment was proper, as his conduct on probation provided reasonable basis for sentencing judge to be pessimistic about defendant’s prospects for rehabilitation. Oyoumick v. State, 185 P.3d 771 (Alaska Ct. App. 2008).

In a murder case, defendant’s 106 year sentence was proper where his criminal history stretched back to 1980, and he was on felony probation at the time of the murder. Defendant’s previous probation and parole supervision had done nothing to deter him from engaging in further criminal conduct, and similar measures were unlikely to deter him in the future. Christian v. State, 276 P.3d 479 (Alaska Ct. App. 2012).

Trial judge properly sentenced defendant to a sentence above the low end of the applicable presumptive range because defendant’s blood alcohol level was substantially above the legal limit, the driver of the vehicle that defendant rear-ended suffered a broken neck, defendant tampered with evidence when he prevailed on a bystander to remove the beer from his vehicle and hide it, and the sentencing judge was concerned about defendant’s potential for rehabilitation. Stacks v. State, — P.3d — (Alaska Ct. App. Feb. 26, 2014) (memorandum decision).

Not all factors will be relevant to every parole eligibility determination, and the most relevant factors often will be public safety and potential for rehabilitation; a sentencing court must consider all of the statutory factors, determine which are relevant to the case, and support its overall sentence, including parole eligibility restrictions, with expressly articulated reasons backed by substantial evidence. State v. Korkow, 314 P.3d 560 (Alaska 2013).

In sentencing the defendant, the court carefully considered the seriousness of the assault on the victim, its impact on her, and defendant’s criminal history. The judge evaluated possible probation conditions and imposed those addressing alcohol treatment, domestic violence, and anger management. Tracey v. State, — P.3d — (Alaska Ct. App. Dec. 26, 2013) (memorandum decision).

Sentence imposed upon defendant for attempted medical assistance fraud, was within the permissible range of sentences that a reasonable judge would impose under the circumstances and was not clearly mistaken; the sentencing judge took into account defendant's lack of criminal history, her prospects for rehabilitation, and her remorse, but concluded that they were outweighed by the other sentencing criteria. Francisco v. State, — P.3d — (Alaska Ct. App. Nov. 16, 2016) (memorandum decision).

Defendant was required to serve one year of his previously suspended jail time because he willfully failed to comply with his sex offender treatment programs on three separate occasions, and, although the court did not expressly address the statutory sentencing criteria individually, it was clear that the court focused on defendant's failure to pursue rehabilitative efforts in a meaningful way, and the resulting danger that defendant, because he was untreated, would re-offend. Tanner v. State, — P.3d — (Alaska Ct. App. Sept. 21, 2016).

Sentence for manslaughter was not excessive because the sentencing court recognized the extreme recklessness of defendant's conduct when defendant fired a handgun while intoxicated, was concerned about defendant's admitted history of recklessly handling loaded firearms while intoxicated, found a need to express the community's condemnation and to try to achieve general deterrence, found that defendant's conduct was so reckless that it bordered on intentional, and noted that it was not convinced by defendant's explanation of what occurred. Degenstein v. State, — P.3d — (Alaska Ct. App. July 31, 2019).

Defendant's composite sentence was not excessive when defendant pleaded guilty to second-degree assault and misdemeanor assault for assaulting defendant's paramour, the paramour's minor child, an adult, and a police officer because the court considered aggravating factors—defendant's conduct manifested deliberate cruelty, defendant knew or should have known that the victim was particularly vulnerable, and defendant's conduct was among the most serious included in the definition of second-degree assault—and defendant's rehabilitative potential. Van Kapotak v. State, — P.3d — (Alaska Ct. App. June 26, 2019).

Defendant's composite sentence was not excessive when defendant pleaded guilty to second-degree assault and misdemeanor assault for assaulting defendant's paramour, the paramour's minor child, an adult, and a police officer because the court considered the appropriate aggravating factors and defendant's rehabilitative potential as did not have a lengthy criminal record, was intelligent, and had the support of family and friends. Van Kapotak v. State, — P.3d — (Alaska Ct. App. June 26, 2019).

Superior court properly convicted defendant, following a jury trial, of second-degree sexual assault for vaginally penetrating his cousin (the victim) while she was unconscious because the evidence established that the victim was incapacitated and that defendant knew that she was incapacitated—she had four to six shots of whiskey, did not remember lying down in the bed in which she woke up, did not remember the sexual assault, and never would have consciously consented to have sex with defendant—defendant failed to explain how an error in the timing of the admission of the text messages prejudiced him, and the court engaged in a thorough review of the statutory criteria and explained in detail the reasons it imposed the sentence it did. Williams v. State, 486 P.3d 1134 (Alaska Ct. App. 2021).

Relevant factors considered.—

Defendant faced a presumptive sentencing range of three to five years' imprisonment for felony eluding and felony driving under the influence convictions, and a term of 30 days to one year for a driving while license revoked conviction. His composite sentence of 7 1/2 years to serve was not clearly mistaken because the trial court found that his conduct, engaging in a high-speed vehicle chase while high on drugs, showed a complete disregard for the safety of others. Also, defendant committed the offenses while on probation, with his driver's license revoked, and after serving significant periods of imprisonment. Debeaulieau v. State, — P.3d — (Alaska Ct. App. Aug. 24, 2016) (memorandum decision).

The relevant factors were applied when sentencing defendant, and while the judge did not specifically mention the word rehabilitation, many of his comments were directed to this sentencing factor; the judge concluded that defendant could not be rehabilitated on probation given his secretiveness and unwillingness to engage in meaningful conversations with his probation officer or the sex offender clinician, and thus defendant’s sentence was not clearly mistaken. Ripplinger v. State, — P.3d — (Alaska Ct. App. Sept. 14, 2016).

Sentencing factors must not be simply recited. —

It is insufficient for the trial judge to simply recite the sentencing factors set forth in State v. Chaney and the statute in list form without further discussion, as the judge did here; the judge did not reveal whether or not he took defendant's 81-month federal sentence into account when he imposed a consecutive four-year sentence, largely for the same conduct. Davis v. State, — P.3d — (Alaska Ct. App. Nov. 21, 2018).

Restricting discretionary parole. —

Specific factors govern the sentencing court’s authority under AS 12.55.115 to restrict discretionary parole as part of a sentence of imprisonment; the statutory language is clear and uncontradicted by any legislative history, a sentencing court must consider all the enumerated criteria in the statute when restricting discretionary parole as a part of a sentence, not just public protection and the defendant’s reformation. State v. Korkow, 314 P.3d 560 (Alaska 2013).

Role of appellate court in review of sentencing. —

A benchmark range is but a starting point for sentencing analysis, and any sound reason can justify a departure from the benchmark range; however, when the record fails to support a sentencing judge’s offered justifications for departing from a benchmark range, an appellate court should direct the sentencing judge to impose a sentence within the benchmark range. Brown v. State, 4 P.3d 961 (Alaska Ct. App. 2000).

Applied in

Hartley v. State, 653 P.2d 1052 (Alaska Ct. App. 1982); Tazruk v. State, 655 P.2d 788 (Alaska Ct. App. 1982); Peetook v. State, 655 P.2d 1308 (Alaska Ct. App. 1982); Weston v. State, 656 P.2d 1186 (Alaska Ct. App. 1982); Graybill v. State, 672 P.2d 138 (Alaska Ct. App. 1983); Clemans v. State, 680 P.2d 1179 (Alaska Ct. App. 1984); State v. Andrews, 707 P.2d 900 (Alaska Ct. App. 1985); Bland v. State, 846 P.2d 815 (Alaska Ct. App. 1993); Haire v. State, 877 P.2d 1302 (Alaska Ct. App. 1994); Griffin v. State, 9 P.3d 301 (Alaska Ct. App. 2000).

Quoted in

Kelly v. State, 663 P.2d 967 (Alaska Ct. App. 1983); Hancock v. State, 706 P.2d 1164 (Alaska Ct. App. 1985); Aveoganna v. State, 757 P.2d 75 (Alaska Ct. App. 1988); Williams v. State, 809 P.2d 931 (Alaska Ct. App. 1991).

Stated in

Erhart v. State, 656 P.2d 1199 (Alaska Ct. App. 1982); State v. Rastopsoff, 659 P.2d 630 (Alaska Ct. App. 1983); Brown v. State, 12 P.3d 201 (Alaska Ct. App. 2000); Hunt v. State, 18 P.3d 69 (Alaska Ct. App. 2001).

Cited in

Nukapigak v. State, 645 P.2d 215 (Alaska Ct. App. 1982); Howard v. State, 664 P.2d 603 (Alaska Ct. App. 1983); Martin v. State, 664 P.2d 612 (Alaska Ct. App. 1983); Heathcock v. State, 670 P.2d 1155 (Alaska Ct. App. 1983); Pickens v. State, 675 P.2d 665 (Alaska Ct. App. 1984); Crouse v. State, 736 P.2d 783 (Alaska Ct. App. 1987); Kirby v. State, 748 P.2d 757 (Alaska Ct. App. 1987); State v. Ambrose, 758 P.2d 639 (Alaska Ct. App. 1988); Williams v. State, 800 P.2d 955 (Alaska Ct. App. 1990); Lewis v. State, 845 P.2d 447 (Alaska Ct. App. 1993); State v. McPherson, 855 P.2d 420 (Alaska 1993); Ross v. State, 877 P.2d 777 (Alaska Ct. App. 1994); State v. McKinney, 946 P.2d 456 (Alaska Ct. App. 1997); Morrison v. State, 7 P.3d 955 (Alaska Ct. App. 2000); Foley v. State, 9 P.3d 1038 (Alaska Ct. App. 2000); Buckwalter v. State, 23 P.3d 81 (Alaska Ct. App. 2001); State v. Brueggeman, 24 P.3d 583 (Alaska Ct. App. 2001); Hamilton v. State, 59 P.3d 760 (Alaska Ct. App. 2002); Allen v. Municipality of Anchorage, 168 P.3d 890 (Alaska Ct. App. 2007); Tsen v. State, 176 P.3d 1 (Alaska Ct. App. 2008); Baker v. State, 182 P.3d 655 (Alaska Ct. App. 2008); Doe v. State, 189 P.3d 999 (Alaska 2008); Gray v. State, 267 P.3d 667 (Alaska Ct. App. 2011); Johnson v. State, 334 P.3d 701 (Alaska Ct. App. 2014); Ghosh v. State, 400 P.3d 147 (Alaska Ct. App. 2017); Mendenhall v. State, — P.3d — (Alaska Ct. App. Mar. 7, 2018); Pisano v. State, — P.3d — (Alaska Ct. App. May 24, 2018)Swartz v. Municipality of Anchorage, 436 P.3d 1104 (Alaska Ct. App. 2019); Ray v. State, 452 P.3d 688 (Alaska Ct. App. 2019); Ray v. State, 452 P.3d 688 (Alaska Ct. App. 2019); Oviok v. State, — P.3d — (Alaska Ct. App. Oct. 14, 2020); Williams v. State, 480 P.3d 95 (Alaska Ct. App. 2021); Galindo v. State, 481 P.3d 686 (Alaska Ct. App. 2021); Collins v. State, 494 P.3d 60 (Alaska Ct. App. 2021).

Sec. 12.55.010. Imprisonment on judgment for payment of fine. [Repealed, § 21 ch 166 SLA 1978. For present provisions, see AS 12.55.035(a).]

Sec. 12.55.011. Victim and community involvement in sentencing.

  1. A court, when considering the sentence to be imposed under this chapter for an offense other than a violation of AS 11.41, AS 11.46.400 , or a crime involving domestic violence, may permit the victim and the offender to submit a sentence for the court’s review based upon a negotiated agreement between the victim and the offender, or between the offender and the community if there is no victim. The court may, with the consent of the victim and the offender, impose the sentence that has been determined by the negotiated agreement between the offender and the victim, or between the offender and the community if there is no victim, if that sentence otherwise complies with this chapter and accomplishes the goals of restoration of the victim and the community and rehabilitation of the offender. Before accepting a negotiated agreement, the court shall determine that the victim has not been intimidated or coerced in reaching the agreement. In this section, “community” has the meaning determined by the court.
  2. At the time of sentencing, the court shall, if practicable, provide the victim with a form that
    1. provides information on
      1. whom the victim should contact if the victim has questions about the sentence or release of the offender;
      2. the potential for release of the offender on furlough, probation, or parole or for good time credit; and
    2. allows the victim to update the victim’s contact information with the court, the Victim Information and Notification Everyday service, and the Department of Corrections.

History. (§ 2 ch 103 SLA 2000; am § 65 ch 36 SLA 2016; am § 8 ch 13 SLA 2017)

Effect of amendments. —

The 2016 amendment, effective October 9, 2016, added (b).

The 2017 amendment, effective June 20, 2017, in (b), in the introductory language, inserted “, if practicable,” following “the court shall”.

Sec. 12.55.015. Authorized sentences; forfeiture.

  1. Except as limited by AS 12.55.125 — 12.55.175 , the court, in imposing sentence on a defendant convicted of an offense, may singly or in combination
    1. impose a fine when authorized by law and as provided in AS 12.55.035 ;
    2. order the defendant to be placed on probation under conditions specified by the court that may include provision for active supervision;
    3. impose a definite term of periodic imprisonment, but only if an employment obligation of the defendant preexisted sentencing and the defendant receives a composite sentence of not more than two years to serve;
    4. impose a definite term of continuous imprisonment;
    5. order the defendant to make restitution under AS 12.55.045 ;
    6. order the defendant to carry out a continuous or periodic program of community work under AS 12.55.055 ;
    7. suspend execution of all or a portion of the sentence imposed under AS 12.55.080 ;
    8. suspend entry of judgment under AS 12.55.078 or suspend imposition of sentence under AS 12.55.085 ;
    9. order the forfeiture to the commissioner of public safety or a municipal law enforcement agency of a deadly weapon that was in the actual possession of or used by the defendant during the commission of an offense described in AS 11.41, AS 11.46, AS 11.56, or AS 11.61;
    10. order the defendant, while incarcerated, to participate in or comply with the treatment plan of a rehabilitation program that is related to the defendant’s offense or to the defendant’s rehabilitation if the program is made available to the defendant by the Department of Corrections;
    11. order the forfeiture to the state of a motor vehicle, weapon, electronic communication device, or money or other valuables, used in or obtained through an offense that was committed for the benefit of, at the direction of, or in association with a criminal street gang;
    12. order the defendant to have no contact, either directly or indirectly, with a victim or witness of the offense until the defendant is unconditionally discharged;
    13. order the defendant to refrain from consuming alcoholic beverages for a period of time.
  2. The court, in exercising sentencing discretion as provided in this chapter, shall impose a sentence involving imprisonment when
    1. the defendant deserves to be imprisoned, considering the seriousness of the present offense and the defendant’s prior criminal history, and imprisonment is equitable considering sentences imposed for other offenses and other defendants under similar circumstances;
    2. imprisonment is necessary to protect the public from further harm by the defendant; or
    3. sentences of lesser severity have been repeatedly imposed for substantially similar offenses in the past and have proven ineffective in deterring the defendant from further criminal conduct.
  3. In addition to the penalties authorized by this section, the court may invoke any authority conferred by law to order a forfeiture of property, suspend or revoke a license, remove a person from office, or impose any other civil penalty. When forfeiting property under this subsection, a court may award to a municipal law enforcement agency that participated in the arrest or conviction of the defendant, the seizure of property, or the identification of property for seizure, (1) the property if the property is worth $5,000 or less and is not money or some other thing that is divisible, or (2) up to 75 percent of the property or the value of the property if the property is worth more than $5,000 or is money or some other thing that is divisible. In determining the percentage a municipal law enforcement agency may receive under this subsection, the court shall consider the municipal law enforcement agency’s total involvement in the case relative to the involvement of the state.
  4. [Repealed, § 1 ch 188 SLA 1990.]
  5. If the defendant is ordered to serve a definite term of imprisonment, the court may recommend that the defendant serve all or part of the term
    1. in a correctional restitution center;
    2. by electronic monitoring.
  6. Notwithstanding (a) of this section, the court shall order the forfeiture to the commissioner of public safety or a municipal law enforcement agency of a deadly weapon that was in the actual possession of or used by the defendant during the commission of a crime involving domestic violence.
  7. Unless a defendant is ineligible for a deduction under AS 33.20, when a defendant is sentenced to a term of imprisonment of two years or more, the sentence consists of two parts: (1) a minimum term of imprisonment that is equal to not less than two-thirds of the total term of imprisonment; and (2) a maximum term of supervised release on mandatory parole that is equal to not more than one-third of the total term of imprisonment; the amount of time that the inmate actually serves in imprisonment and on supervised release is subject to the provisions of AS 33.20.010 — 33.20.060 .
  8. In addition to penalties authorized by this section, the court shall order a person convicted of an offense requiring the state to collect a blood sample, oral sample, or both, for the deoxyribonucleic acid identification registration system under AS 44.41.035 to submit to the collection of
    1. the sample or samples when requested by a health care professional acting on behalf of the state to provide the sample or samples; or
    2. an oral sample when requested by a juvenile or adult correctional, probation, or parole officer, or a peace officer.
  9. In addition to penalties authorized by this section, the court may order a defendant convicted of a violation of AS 11.41.410 or 11.41.434 where the victim of the offense was under 13 years of age to be subject to electronic monitoring up to the maximum length of probation on the person’s release from a correctional facility.
  10. Nothing in (a)(13) of this section limits or restricts the authority of a court to order a person to refrain from the consumption of alcohol as a condition of sentence or probation.
  11. In making a determination under (a)(12) of this section for a defendant convicted of a crime involving a sex offense as defined in AS 12.63.100 or a crime involving domestic violence as defined in AS 18.66.990 , there is a presumption that, unless the court finds on the record that contact between a defendant and the victim of the offense is necessary, the court shall order the defendant to have no contact, either directly or indirectly, with the victim until the defendant is unconditionally discharged.
  12. In this section “deadly weapon” has the meaning given in AS 11.81.900 .

History. (§ 12 ch 166 SLA 1978; am § 37 ch 102 SLA 1980; am § 3 ch 45 SLA 1982; am § 3 ch 72 SLA 1985; am §§ 2, 3 ch 169 SLA 1988; am §§ 1, 12 ch 188 SLA 1990; am § 1 ch 79 SLA 1994; am § 7 ch 60 SLA 1996; am § 12 ch 64 SLA 1996; am §§ 5, 6 ch 129 SLA 1996; am § 2 ch 37 SLA 1997; am § 6 ch 86 SLA 1998; am § 5 ch 95 SLA 1998; am § 3 ch 116 SLA 1998; am § 2 ch 44 SLA 2000; am § 3 ch 2 SLA 2005; am § 2 ch 42 SLA 2008; am § 4 ch 33 SLA 2009; am §§ 17, 18 ch 19 SLA 2010; am § 9 ch 13 SLA 2017; am § 62 ch 4 FSSLA 2019)

Revisor's notes. —

Subsection (f) was enacted as (g). Relettered in 1996, at which time former (f) was relettered as (g). Subsection (g) was enacted as (h) in 1997 and subsection (h) was enacted as (i) in 1998. Both were relettered in 1998, at which time former subsection (g) (relettered from (f) in 1996) was relettered as (i). Subsection (i) was enacted as subsection (j); relettered in 2008, at which time former subsection (i) was relettered as (j), then relettered as (k) [now ( l )] in 2010; subsection (j) was enacted as (k) and relettered in 2010.

Subsection (k) was enacted as ( l ). Relettered in 2019, at which time former (k) was relettered as ( l ).

Effect of amendments. —

The 2009 amendment, effective September 14, 2009, repealed (a)(1)(B).

The 2010 amendment, effective July 1, 2010, in (a), deleted the (1)(A) and (1)(B) designations, added (a)(13); added (k) (now (j)).

The 2017 amendment, effective June 20, 2017, in (a)(8), inserted “entry of judgment under AS 12.55.078 or suspend” near the beginning.

The 2019 amendment, effective July 9, 2019, added ( l ) [now (k)].

Editor's notes. —

Section 15, ch. 95, SLA 1998 provides that the 1998 enactment of subsection (h) applies “to offenses committed before, on, or after September 10, 1998.”

Section 6(b), ch. 42, SLA 2008 provides that (j) of this section, relettered as (i), “applies to persons convicted of offenses on or after January 1, 2009.”

Section 142(b), ch. 4, FSSLA 2019, provides that the 2019 addition of ( l ) [now (k)] of this section applies “to sentences imposed on or after July 9, 2019, for conduct occurring on or after July 9, 2019.”

Legislative history reports. —

For report on ch. 102, SLA 1980 (HCS CSSB 511), see 1980 Senate Journal Supplement, No. 44, (May 29, 1980) or 1980 House Journal Supplement, No. 79, (May 29, 1980).

Notes to Decisions

Paragraph (a)(10) not unconstitutionally vague. —

The language of paragraph (a)(10) which allows a court to order a defendant to participate in and comply with a treatment program is not unconstitutionally vague. Williams v. State, 924 P.2d 104 (Alaska Ct. App. 1996).

Sentence after plea of no contest. —

Defendant’s no contest plea to attempted first-degree abuse of a minor conclusively established his guilt; therefore, the sentencing judge court had a reasoned basis for ordering him to undergo sex offender treatment while in prison. Scott v. State, 928 P.2d 1234 (Alaska Ct. App. 1996).

Restricting discretionary parole. —

When imposing a discretionary parole eligibility restriction beyond the statutory minimum for any sentence, a sentencing court may consider whether the parole board will at a later date be better able to assess the defendant’s prospects for successful parole; however, there is no legal presumption against a restriction beyond the statutory minimum set by AS 33.16.090(b)(1) . State v. Korkow, 314 P.3d 560 (Alaska 2013).

The factors contained in AS 12.55.005 govern the sentencing court’s authority to restrict discretionary parole as part of a sentence of imprisonment; because the statutory language is clear and uncontradicted by any legislative history, a sentencing court must consider all the enumerated criteria in AS 12.55.005 when restricting discretionary parole as a part of a sentence, not just public protection and the defendant’s reformation. State v. Korkow, 314 P.3d 560 (Alaska 2013).

There is no authority which would sanction expansion of superior court’s jurisdiction to pass sentence into a realm of review and modification which is statutorily vested in either the supreme court or the executive branch of government. Therefore, the superior court lacks jurisdiction to review its own sentence, after it has entered a judgment on the matter, more than 60 days after it has imposed sentence. Davenport v. State, 543 P.2d 1204 (Alaska 1975); Szeratics v. State, 572 P.2d 63 (Alaska 1977).

Modification of probation. —

A court may modify probation to the defendant’s detriment without violating the double jeopardy clause when the applicable statutes authorize the modification, as they do when the court finds that the defendant has violated probation; but, once sentence is meaningfully imposed, a sentencing court does not have the power to alter probation to the defendant’s detriment simply because the court comes to believe that a longer probationary term or more onerous conditions of probation would be better. Reyes v. State, 978 P.2d 635 (Alaska Ct. App. 1999).

Trial court exceeded scope of sentencing powers by ordering defendant to attend a sexual offender rehabilitation program while incarcerated, where the order was set out as a separate provision of the written judgment and not as a condition of probation, and any failure to abide by the order could not have served as a predicate for a finding of criminal contempt. Benboe v. State, 738 P.2d 356 (Alaska Ct. App. 1987).

Parole restriction not clear error. —

Parole restriction made part of defendant’s sentence was not reversible as excessive because it was not clearly mistaken; the sentencing court considered the relevant factors in fashioning its overall sentence and entered specific findings that the parole restriction was necessary to protect defendant’s children and society at large for an extended period of time and was appropriate due to the severity of the case and defendant’s lack of remorse and concern. State v. Korkow, 314 P.3d 560 (Alaska 2013).

Power to restrict discretionary parole eligibility. —

Nothing in this section’s plain language or legislative history suggests room for a legal presumption limiting a sentencing court’s power to restrict discretionary parole eligibility beyond one-third of the prisoner’s actual term, and nothing in it’s plain language or legislative history suggests sentencing courts are to limit this power out of deference to the parole board. State v. Korkow, 314 P.3d 560 (Alaska 2013).

Restricting parole eligibility. —

When imposing a discretionary parole eligibility restriction beyond the statutory minimum for any sentence, a sentencing court may consider whether the parole board will at a later date be better able to assess the defendant’s prospects for successful parole, but there is no legal presumption against a restriction beyond the statutory minimum set by AS 33.16.090(b)(1) . State v. Korkow, 314 P.3d 560 (Alaska 2013).

Test to be used in determining whether multiple offenses can be punished separately. —

See State v. Occhipinti, 562 P.2d 348 (Alaska 1977).

Separate sentences were called for where defendant’s conduct in kidnapping and raping his victim and assaulting her with a deadly weapon constituted the commission of three distinct offenses, each of which violated a different societal interest. State v. Occhipinti, 562 P.2d 348 (Alaska 1977).

Power to suspend sentence. —

While courts do not have the inherent power to suspend execution of a sentence, the legislature has given this power to the trial courts. Curtis v. State, 831 P.2d 359 (Alaska Ct. App. 1992).

When a statute of general application grants sentencing courts the power to suspend all or part of a sentence, that statute will govern unless the legislature specifically provides otherwise. Curtis v. State, 831 P.2d 359 (Alaska Ct. App. 1992).

Community work service. —

Upon conviction of defendant for negligent discharge of oil under AS 46.03.740 , the trial court had authority to impose both a fine and imprisonment and could impose 1000 hours of community work service in lieu thereof. Hazelwood v. State, 962 P.2d 196 (Alaska Ct. App. 1998).

Sentence allowing periodic jailing. —

A sentencing judge is empowered to require a defendant to serve time in jail as a condition of a suspended imposition of sentence, and under paragraph (a)(3), a sentencing court is authorized to allow a defendant to serve a term of imprisonment in periodic installments, or seasonally, so as not to jeopardize the defendant’s livelihood. State v. Brueggeman, 24 P.3d 583 (Alaska Ct. App. 2001).

Authority to award restitution to state for drug buy money. —

Where the statutes that govern awards of restitution as part of a sentence authorize the court to order restitution “to the victim or other person injured by the offense,” the court has the authority to award restitution for drug buy money to the state, both as a condition of probation and as part of a sentence. Haynes v. State, 15 P.3d 1088 (Alaska Ct. App. 2001).

Revocation of probation. —

Revocation of probation for failure to complete sex offender program was improper because defendant was not told that the failure to complete a timely application would have resulted in a violation of the terms of probation; moreover, defendant never indicated an unwillingness to participate in such a program. Hamrick v. State, 64 P.3d 175 (Alaska Ct. App. 2003).

Anticipatory revocation of parole. —

The parole board had the authority to anticipatorily revoke the scheduled release of a prisoner for failure to complete a sex offender treatment program. Webb v. Alaska Dep't of Corr., 963 P.2d 1074 (Alaska Ct. App. 1998).

Parole Board had the authority to anticipatorily revoke scheduled mandatory parole release on account of prisoner’s failure to complete the sex offender treatment ordered by the sentencing court. Gwalthney v. State, 964 P.2d 1285 (Alaska Ct. App. 1998).

Where trial court ruled that sex offender “take advantage of sex offender programs that were available in the facility,” defendant’s failure to “fully participate” in the treatment program constituted grounds for revoking his parole status. Alexander v. State, 38 P.3d 543 (Alaska Ct. App. 2001).

Applied in

Austin v. State, 627 P.2d 657 (Alaska Ct. App. 1981); State Dep't of Corr. v. Lundy, 188 P.3d 692 (Alaska Ct. App. 2008); Ray v. State, 452 P.3d 688 (Alaska Ct. App. 2019); Ray v. State, 452 P.3d 688 (Alaska Ct. App. 2019).

Quoted in

Leuch v. State, 633 P.2d 1006 (Alaska 1981); Hancock v. State, 706 P.2d 1164 (Alaska Ct. App. 1985); State v. Wagner, 835 P.2d 454 (Alaska Ct. App. 1992).

Stated in

Kimbrell v. State, 647 P.2d 618 (Alaska Ct. App. 1982); Erhart v. State, 656 P.2d 1199 (Alaska Ct. App. 1982); State v. Falealo Manuele Pulusila, 467 P.3d 211 (Alaska 2020); State v. Meyers, 479 P.3d 840 (Alaska Ct. App. 2020).

Cited in

Whittlesey v. State, 626 P.2d 1066 (Alaska 1980); Juneby v. State, 641 P.2d 823 (Alaska Ct. App. 1982); Lacquement v. State, 644 P.2d 856 (Alaska Ct. App. 1982); Schnecker v. State, 739 P.2d 1310 (Alaska Ct. App. 1987); State v. Ambrose, 758 P.2d 639 (Alaska Ct. App. 1988); State v. Felix, 50 P.3d 807 (Alaska Ct. App. 2002); Parrott v. Municipality of Anchorage, 69 P.3d 1 (Alaska Ct. App. 2003).

Collateral references. —

Permissibility of sentence to a fine only, under statutory provision for imprisonment or imprisonment and fine. 35 ALR4th 192.

Persons or entities entitled to restitution as “victim” under state criminal restitution statute. 92 ALR5th 35.

Sec. 12.55.020. Enforcing judgment to pay money. [Repealed, § 21 ch 166 SLA 1978. For present provisions, see AS 12.55.025(f), AS 12.55.035(a), (d) and AS 12.55.051.]

Sec. 12.55.022. Victim impact statement.

As part of the presentence report prepared on each felony offender, the probation officer shall prepare a victim impact statement reporting the following information:

  1. the financial, emotional, and medical effects of the offense on the victim;
  2. the need of the victim for restitution; and
  3. any other information required by the court.

History. (§ 1 ch 154 SLA 1984)

Cross references. —

Definition of “victim” — AS 12.55.185

Restitution — AS 12.55.045

Original Code Provision — None.

Collateral references. —

Victim impact evidence in capital sentencing hearings — post- Payne v. Tennessee . 79 ALR5th 33.

Sec. 12.55.023. Participation by victim in sentencing.

  1. If a victim requests, the prosecuting attorney shall provide the victim, before the sentencing hearing, with a copy of the following portions of the presentence report:
    1. the summary of the offense prepared by the Department of Corrections;
    2. the defendant’s version of the offense;
    3. all statements and summaries of statements of the victim;
    4. the sentence recommendation of the Department of Corrections; and
    5. letters of support submitted to the court for consideration.
  2. A victim may submit to the sentencing court a written statement that the victim believes is relevant to the sentencing decision and may give sworn testimony or make an unsworn oral presentation to the court at the sentencing hearing. If there are numerous victims, the court may reasonably limit the number of victims who may give sworn testimony or make an unsworn oral presentation during the hearing. When requested by the victim of a felony or a class A misdemeanor, if the class A misdemeanor is a crime involving domestic violence or a crime against a person under AS 11.41, when the victim does not submit a statement, give testimony, or make an oral presentation, the victims’ advocate may submit a written statement or make an unsworn oral presentation at the sentencing hearing on behalf of the victim.

History. (§ 4 ch 59 SLA 1989; am § 6 ch 57 SLA 1991; am § 7 ch 92 SLA 2001; am § 17 ch 43 SLA 2013)

Cross references. —

Definition of “victim” — AS 12.55.185

Designation of representative — AS 12.55.172

Original Code Provision — None.

Effect of amendments. —

The 2013 amendment, effective July 1, 2013, added (a)(5) and made a related change.

Sec. 12.55.025. Sentencing procedures.

  1. When imposing a sentence for conviction of a felony offense or a sentence of imprisonment exceeding 90 days or upon a conviction of a violation of AS 04, a regulation adopted under AS 04, or an ordinance adopted in conformity with AS 04.21.010 , the court shall prepare, as a part of the record, a sentencing report that includes the following:
    1. a verbatim record of the sentencing hearing and any other in-court sentencing procedures;
    2. findings on material issues of fact and on factual questions required to be determined as a prerequisite to the selection of the sentence imposed;
    3. a clear statement of the terms of the sentence imposed; if a term of imprisonment is imposed, the statement must include
      1. the approximate minimum term the defendant is expected to serve before being released or placed on mandatory parole if the defendant is eligible for and does not forfeit good conduct deductions under AS 33.20.010 ; and
      2. if applicable, the approximate minimum term of imprisonment the defendant must serve before becoming eligible for release on discretionary parole;
    4. any recommendations as to the place of confinement or the manner of treatment; and
    5. in the case of a conviction for a felony offense, information assessing
      1. the financial, emotional, and medical effects of the offense on the victim;
      2. the need of the victim for restitution; and
      3. any other information required by the court.
  2. The sentencing report required under (a) of this section shall be furnished within 30 days after imposition of sentence to the Department of Law, the defendant, the Department of Corrections, the state Board of Parole if the defendant will be eligible for parole, and to the Alcoholic Beverage Control Board if the defendant is to be sentenced for a conviction of a violation of AS 04, a regulation adopted under AS 04, or an ordinance adopted under AS 04.21.010 .
  3. Except as provided in (d) of this section, when a defendant is sentenced to imprisonment, the term of confinement commences on the date of imposition of sentence unless the court specifically provides that the defendant must report to serve the sentence on another date. If the court provides another date to begin the term of confinement, the court shall provide the defendant with written notice of the date, time, and location of the correctional facility to which the defendant must report. A defendant shall receive credit for time spent in custody pending trial, sentencing, or appeal, if the detention was in connection with the offense for which the sentence was imposed. A defendant may not receive credit for more than the actual time spent in custody pending trial, sentencing, or appeal. The time during which a defendant is voluntarily absent from official detention after the defendant has been sentenced may not be credited toward service of the sentence.
  4. A sentence of imprisonment shall be stayed if an appeal is taken and the defendant is admitted to bail. If an appeal is taken and the defendant is not admitted to bail, the Department of Corrections shall designate the facility in which the defendant shall be detained pending appeal or admission to bail.
  5. [Repealed, § 7 ch 125 SLA 2004.]
  6. A sentence that the defendant pay money, either as a fine or in restitution or both, constitutes a lien in the same manner as a judgment for money entered in a civil action. Nothing in this section limits the authority of the court to otherwise enforce payment of a fine or restitution.
  7. [Repealed, § 7 ch 125 SLA 2004.]
  8. [Repealed, § 7 ch 125 SLA 2004.]
  9. Except as otherwise provided in this chapter, the preponderance of the evidence standard of proof applies to sentencing proceedings.
  10. The approximate minimum terms provided under (a)(3) of this section in the sentencing report are for information purposes only. The approximate minimum terms are not part of the sentence imposed and do not form a basis for review or appeal of the sentence imposed or provide a defendant with a right to any specific term of imprisonment or supervised release on mandatory parole.
  11. If a defendant intends to claim credit under AS 12.55.027 toward a sentence of imprisonment for time spent in a treatment program as a condition of bail in connection with an offense for which the defendant is being sentenced, the defendant shall file notice with the court and the prosecutor 10 days before the sentencing hearing. The notice shall include the number of days the defendant is claiming. The defendant must prove by a preponderance of evidence that the requirements of AS 12.55.027 are met before credit may be awarded. Except as provided in (l) of this section, except for good cause, a court may not consider a request for credit made under this subsection more than 90 days after the sentencing hearing.
  12. If a defendant intends to claim credit under AS 12.55.027 toward a sentence of imprisonment for time spent in a treatment program as a condition of bail while pending appeal, the defendant shall file notice with the court and the prosecutor not later than 90 days after return of the case to the trial court following appeal. The notice shall include the number of days the defendant is claiming. The defendant must prove by a preponderance of evidence that the requirements of AS 12.55.027 are met before credit may be awarded. Except for good cause, the court may not consider a request for credit made under this subsection after the deadline.
  13. When imposing a sentence for conviction of a felony offense or a sentence of imprisonment exceeding 90 days or, upon a conviction of a violation of AS 04, a regulation adopted under AS 04, or an ordinance adopted in conformity with AS 04.21.010 , the court shall orally state on the record the terms of the sentence of imprisonment imposed and the approximate minimum sentence that must be served before the defendant may be eligible for mandatory parole and that the period of active incarceration may be reduced under other provisions of law.

History. (§ 12 ch 166 SLA 1978; §§ 7, 8 ch 131 SLA 1980; am §§ 24, 25 ch 143 SLA 1982; am E.O. No. 55, §§ 6, 7 (1984); am § 2 ch 154 SLA 1984; am §§ 5, 6 ch 66 SLA 1988; am §§ 21, 22 ch 79 SLA 1992; am § 2 ch 7 SLA 1996; am §§ 3, 4 ch 37 SLA 1997; am § 13 ch 81 SLA 1998; am § 6 ch 124 SLA 2000; am §§ 2, 7 ch 125 SLA 2004; am § 4 ch 2 SLA 2005; am § 8 ch 70 SLA 2012; am § 18 ch 43 SLA 2013; am §§ 66, 67 ch 36 SLA 2016; am § 28 ch 1 4SSLA 2017; am §§ 63, 64 ch 4 FSSLA 2019)

Cross references. —

Original Code Provisions — AS 11.05.040; AS 11.05.050; AS 12.55.020 .

TD: VI, 23-26.

For provision relating to the applicability of the 2016 amendments to this section, see sec. 185(d)(1) and (2), ch. 36, SLA 2016, in the 2016 Temporary and Special Acts.

Administrative Code. —

For eligibility for discretionary parole, see 22 AAC 20, art. 1.

Effect of amendments. —

The 2012 amendment, effective July 1, 2012, in (i), substituted “Except as otherwise provided in this chapter” for “Except as provided by AS 12.55.125(a)(3) , 12.55.145(d) , 12.55.155(f) , and 12.55.165 ”.

The 2013 amendment, effective July 1, 2013, added (k) and ( l ).

The 2016 amendment, effective January 1, 2017, in (a)(3)(B), inserted “or administrative” preceding “parole”; in (c), inserted “including a technical violation of probation as provided in AS 12.55.110 ” following “sentence was imposed”.

The 2017 amendment, effective November 27, 2017, in (a)(3)(B), deleted “or administrative” following “release on discretionary”.

The 2019 amendment, effective July 9, 2019, in (c), substituted “for which the sentence was imposed” for “for which sentence was imposed including a technical violation of probation as provided in AS 12.55.110 ”; and added (m).

Editor's notes. —

Section 17, ch. 70, SLA 2012 provides that the 2012 amendment to subsection (i) applies “to proceedings occurring on or after July 1, 2012 for offenses occurring before, on, or after July 1, 2012.”

Under sec. 46(c), ch. 43, SLA 2013, subsections (k) and ( l ), added by sec. 18, ch. 43, SLA 2013, apply to sentencing hearings occurring on or after July 1, 2013.

Section 142(e), ch. 4, FSSLA 2019, provides that the 2019 amendment of (c) of this section applies “to probation ordered before, on, or after July 9, 2019, for conduct occurring on or after July 9, 2019.”

Section 142(j), ch. 4, FSSLA 2019, provides that the 2019 addition of (m) of this section applies “to sentences imposed on or after July 9, 2019, for offenses committed before, on, or after July 9, 2019.”

Legislative history reports. —

For sectional analysis of CS SSSB 239, the predecessor of FCCSSB 239 (ch. 131, SLA 1980), see 1980 Senate Journal Supplement No. 23, April 1, 1980.

For House letter of intent on ch. 66, SLA 1988 (CSHB 237 (Jud)), which amended this section, see 1988 House Journal 2330-2333.

Opinions of attorney general. —

Authority exists to both award and forfeit statutory good time for pretrial detainees. February 18, 1986 Op. Att’y Gen.

Notes to Decisions

Analysis

I.General Consideration

Construction with other laws. —

Even if the Department of Law was mistaken in telling the House Judiciary Committee that their proposed statute was simply a codification of the Nygren v. State rule, this does not mean that the court could disregard the wording of the statute and continue to apply the Nygren rule. The debate over the precise wording of AS 12.55.027(c)(2) , demonstrates that the Committee members fully understood the restrictions they were placing on the types of treatment programs that would qualify for sentencing credit. McKinley v. State, 275 P.3d 567 (Alaska Ct. App. 2012).

Construction with other laws. —

Even if the Department of Law was mistaken in telling the House Judiciary Committee that their proposed statute was simply a codification of the Nygren v. State rule, this does not mean that the court could disregard the wording of the statute and continue to apply the Nygren rule. The debate over the precise wording of AS 12.55.027(c)(2) , demonstrates that the Committee members fully understood the restrictions they were placing on the types of treatment programs that would qualify for sentencing credit. McKinley v. State, 275 P.3d 567 (Alaska Ct. App. 2012).

For cases construing former AS 12.55.075, relating to imposition of sentences, see Perrin v. State, 543 P.2d 413 (Alaska 1975); Andrews v. State, 552 P.2d 150 (Alaska 1976); Rust v. State, 582 P.2d 134 (Alaska 1978); Morgan v. State, 582 P.2d 1030 (Alaska 1978).

Consideration of totality of defendant's conduct. —

Regardless of the trial court’s decision to sentence consecutively or concurrently, the total sentence must reflect the totality of the defendant’s conduct considered in light of his background and experience and measured against the standards of rehabilitation, deterrence of self and others, and affirmation of community norms. Comegys v. State, 747 P.2d 554 (Alaska Ct. App. 1987).

Consideration of uncharged offenses or police contacts. —

A sentencing court may properly consider uncharged offenses where they are verified by supporting data or information and the defendant is given the opportunity to deny the allegations and offer rebuttal evidence. Pascoe v. State, 628 P.2d 547 (Alaska 1980).

Effect of perjury at trial. —

It is improper to increase a sentence because a defendant has committed perjury at trial, but the fact of such perjury may be considered as relevant to the defendant’s prospects for rehabilitation. La Pierre v. State, 626 P.2d 1065 (Alaska 1980).

Oral sentence controls. —

The written judgment should conform to the oral sentence. The latter ordinarily controls. Whittlesey v. State, 626 P.2d 1066 (Alaska 1980).

Unsolicited letters. —

Judges must make available to counsel for the state and the defendant any unsolicited letters received concerning sentencing of a particular defendant. Bowlin v. State, 643 P.2d 1 (Alaska Ct. App. 1982).

The sentencing record must affirmatively reflect whether unsolicited letters received by the court have been considered at sentencing. Bowlin v. State, 643 P.2d 1 (Alaska Ct. App. 1982).

Composite sentence for multiple crimes. —

When an offender is convicted of multiple crimes, the presumptive term for the most serious crime remains an important benchmark — a benchmark that is not to be exceeded without good reason. Nevertheless, the appropriate focus is no longer on the narrow issue of public danger, but rather on whether a composite sentence exceeding the presumptive term is warranted under the totality of the circumstances. Farmer v. State, 746 P.2d 1300 (Alaska Ct. App. 1987).

A composite sentence of five years with two years suspended, imposed upon a first felony offender upon conviction of two counts of burglary in the second degree, one count of theft in the second degree, and one count of theft in the third degree, was not excessive, where defendant’s conviction of two separate burglaries and related thefts, and his admission of two additional burglaries and related thefts, justified a greater sentence than would a conviction of an isolated burglary and theft. Comegys v. State, 747 P.2d 554 (Alaska Ct. App. 1987).

No credit for time served for prior offense. —

Defendant was not entitled to credit for the excess time he served on his 1982 robbery offense toward his 1987 robbery offense, where the only connection shown between the earlier and later offenses was that the 1987 offense may have been committed while defendant was on parole on the 1982 offense and that the state originally used the 1982 conviction as a prior felony offense to enhance defendant’s sentence on the 1987 offense. Marker v. State, 829 P.2d 1191 (Alaska Ct. App. 1992).

Electronic monitoring does not support credit for time served. —

Defendant who was electronically monitored before sentence with a tracking device that also sensed if defendant had drunk alcohol was not entitled to receive credit for the time that he was monitored, because the conditions of defendant’s release did not sufficiently approximate the conditions defendant would have experienced if incarcerated. Matthew v. State, 152 P.3d 469 (Alaska Ct. App. 2007)(See AS 12.55.027 ).

Superior court properly denied defendant's request for credit against his sentence for the time he spent under the conditions of his release because the conditions—house arrest with supervision by one of two third-party custodians—did not approximate conditions of imprisonment, the 2015 amendments to the subject statute—authorizing sentencing credit for time spent on electronic monitoring—demonstrated that the legislature did not intend to authorize credit for time spent on house arrest or third-party custodianship unaccompanied by electronic monitoring. Collins v. State, — P.3d — (Alaska Ct. App. June 30, 2021) (memorandum decision).

Credit for residential treatment after probation revocation. —

Even assuming AS 12.55.025(c) applied to defendant's request for credit, the superior court erred in concluding that the statute precluded defendant from seeking credit for the time he spent in residential treatment after the court sentenced him to a term of imprisonment in connection with a subsequent probation revocation in the same case where his days in treatment and incarceration term were in connection with his underlying criminal offenses. Medina v. State, 418 P.3d 861 (Alaska Ct. App.), aff'd, — P.3d — (Alaska Ct. App. 2018).

Delegation of authority to impose conditions. —

The sentencing court may not delegate its authority to impose conditions of probation which are the functional equivalent of incarceration, such as by abiding by the recommendation of a local council on alcoholism that defendant serve 30 days in a residential alcohol treatment center. Hester v. State, 777 P.2d 217 (Alaska Ct. App. 1989).

Applied in

Schwing v. State, 633 P.2d 311 (Alaska Ct. App. 1981); O'Shea v. State, 683 P.2d 286 (Alaska Ct. App. 1984); Lewis v. State, 706 P.2d 715 (Alaska Ct. App. 1985); Oswald v. State, 715 P.2d 276 (Alaska Ct. App. 1986); State v. Moody, 726 P.2d 194 (Alaska 1986); State v. Merry, 784 P.2d 253 (Alaska Ct. App. 1989); Kepley v. State, 791 P.2d 1020 (Alaska Ct. App. 1990); Griffin v. State, 9 P.3d 301 (Alaska Ct. App. 2000); State v. Howard, 357 P.3d 1207 (Alaska Ct. App. 2015).

Quoted in

Jennings v. State, 713 P.2d 1222 (Alaska Ct. App. 1986); Helton v. State, 778 P.2d 1156 (Alaska Ct. App. 1989).

Cited in

State v. Ahwinona, 635 P.2d 488 (Alaska Ct. App. 1981); Houston v. State, 648 P.2d 1024 (Alaska Ct. App. 1982); State v. Rastopsoff, 659 P.2d 630 (Alaska Ct. App. 1983); Hodges v. State, 660 P.2d 1203 (Alaska Ct. App. 1983); Juneby v. State, 665 P.2d 30 (Alaska Ct. App. 1983); LeFever v. State, 877 P.2d 1298 (Alaska Ct. App. 1994); Callan v. State, 904 P.2d 856 (Alaska Ct. App. 1995); Jackson v. State, 31 P.3d 105 (Alaska Ct. App. 2001); State v. Felix, 50 P.3d 807 (Alaska Ct. App. 2002); Yang v. State, 107 P.3d 302 (Alaska Ct. App. 2005); Billum v. State, 151 P.3d 507 (Alaska Ct. App. 2006); Smith v. State, 187 P.3d 511 (Alaska Ct. App. 2008); State v. Walker, 283 P.3d 668 (Alaska Ct. App. 2012).

II.Computation of Term

Determination of credit for time served. —

The appropriate time to resolve credit for time served is at the sentencing hearing and the trial court should expressly identify those periods of time for which credit is to be allowed. Ackermann v. State, 716 P.2d 5 (Alaska Ct. App. 1986).

Superior court properly denied defendant’s request for credit against his sentence for the time spent on electronic monitoring because prior case law, which concluded that constraints imposed by electronic monitoring were not the equivalent of incarceration for purposes of this section, was not originally erroneous. Ackerman v. State, 179 P.3d 951 (Alaska Ct. App. 2008)(See AS 12.55.027 ).

If the Board later revokes parole and orders mandatory parolees to serve some or all of their remaining sentence, their time in custody in a correctional restitution center, a halfway house, or other non-prison correctional center by order of the Alaska Parole Board is properly considered in determining credit for time served and good-time credit under AS 33.20.010(a) , corresponding to the period of their confinement. State v. Shetters, 246 P.3d 338 (Alaska Ct. App. 2010).

Provision in formal judgment. —

In order to prevent problems arising when sentence is served outside Alaska, judges should include a provision granting credit for time served in the formal judgment. Black v. State, 569 P.2d 804 (Alaska 1977).

Although credit for time already served in prison is awarded automatically by statute and is not dependent on the judge’s stating that credit should be given, judgment forms should expressly state that the defendant will receive credit for time served in order to protect defendants who may serve all or part of their terms in out-of-state prisons. Qualle v. State, 652 P.2d 481 (Alaska Ct. App. 1982).

Credit for time spent on probation. —

A person in third-party custody who has the freedom to move about the community, limited only by his custodian’s accompaniment, and one who is confined to a fishing boat while it is at sea is not entitled to credit for time spent on probation. Ackermann v. State, 716 P.2d 5 (Alaska Ct. App. 1986).

Where a sentencing court, in imposing the original sentence, has unambiguously manifested its intent to require that a specified term of imprisonment be served in addition to time previously served, the Alaska Court of Appeals has not hesitated to hold that subsection (c) does not require additional credit to be given; conversely, where there has been ambiguity in a trial court’s sentencing remarks, the court has applied subsection (c) and required that credit be given for time previously served. Coates v. State, 721 P.2d 655 (Alaska Ct. App. 1986).

Credit for time served since arrest for subsequent offenses. —

Where defendant’s sentences were to be served consecutively to a sentence then being served for a parole revocation on an earlier offense, the trial court’s order that the defendant receive no credit for time served since his arrest was proper in view of the court’s action in making the sentences consecutive to the time to be served on the parole revocation, for the time served from defendant’s arrest should properly have been credited toward the parole revocation sentence. Reynolds v. State, 595 P.2d 21 (Alaska 1979).

Where defendant, while on probation following a sentence for theft, was arrested and charged with misconduct involving a controlled substance, he was entitled to credit for the 13 days he spent in custody between the time he was arrested for the drug offense and the date his probation officer filed a petition to revoke probation. Walters v. State, 798 P.2d 357 (Alaska Ct. App. 1990).

In determining if a facility is such so that confinement there warrants credit for time spent in custody, the court suggests as a point of reference that common characteristics of incarcerative facilities are that their residents are invariably sent there by court order; the facilities require residency, and residency requirements are sufficiently stringent to involve a definite element of confinement; residents of the facilities are subject to 24-hour physical custody or supervision; any periods during which residents may be permitted to leave the facility are expressly limited, both as to time and purpose; while in the facility, residents are under a continuing duty to conform their conduct to institutional rules and to obey orders of persons who have immediate custody over them; and residents are subject to sanctions if they violate institutional rules or orders and to arrest if they leave the facility without permission. Nygren v. State, 658 P.2d 141 (Alaska Ct. App. 1983)(See AS 12.55.027 ).

In determining if a facility is such that confinement there warrants credit for time spent in custody, defendant was not entitled to credit against her sentence for the five months she spent at a transitional house. Even though defendant was obliged to follow house guidelines if she wished to continue living there, defendant was not subject to custody or to monitoring during most of the day. Deemer v. State, — P.3d — (Alaska Ct. App. Apr. 11, 2012) (memorandum decision).

Credit for time spent in residential alcohol treatment programs. —

Defendant was entitled to credit for time she spent in residential alcohol treatment programs while she was on bail pending trial and while she was on bail pending appeal after her conviction and sentence. Nygren v. State, 658 P.2d 141 (Alaska Ct. App. 1983)(See AS 12.55.027 ).

The Alaska Supreme Court’s decision in Nygren v. State, 658 P.2d 141 (Alaska Ct. App. 1983), allows a person credit for time served in a therapeutic community, but only when the individual is confined in the therapeutic program by virtue of a court order validly issued requiring that she remain there. A defendant is not entitled to Nygren credit when his residence at a treatment facility is required by his employer. State v. Fortuny, 42 P.3d 1147 (Alaska Ct. App. 2002)(See AS 12.55.027 ).

Where defendant voluntarily entered treatment facility before sentencing, he was only entitled to credit against his sentence for the period of time he spent in the facility after the court ordered that he remain there and complete the program as a condition of release. State v. Fortuny, 42 P.3d 1147 (Alaska Ct. App. 2002)(See AS 12.55.027 ).

Superior court did not err in sentencing defendant for second-degree theft because defendant was not entitled to credit for time he spent in aftercare of a rehabilitation program, as this time did not approximate incarceration under this section. McKinley v. State, 215 P.3d 378 (Alaska Ct. App. 2009).

Good time credit allowed. —

When the Parole Board orders a mandatory parolee to reside at a correctional restitution center, a halfway house, or any other non-prison correctional center, the mandatory parolee is entitled to both credit for time served under AS 12.55.025(c) and good time credit under AS 33.20.010(a) , corresponding to the period of enforced residence at the correctional center, if the Board later revokes parole and imposes some or all of the remaining sentence. State v. Shetters, 246 P.3d 332 (Alaska Ct. App.), reaff'd, 246 P.3d 338 (Alaska Ct. App. 2010).

Consecutive sentences upheld. —

In defendant’s sexual assault case, consecutive 15-year sentences were proper because the trial court found that defendant had a “profound antisocial nature,” and that he was a “particularly violent and dangerous” offender; the sexual assaults were “reprehensible and destructive” to both the victim and the community, and defendant was a worst offender with no likelihood of rehabilitation. Douglas v. State, 151 P.3d 495 (Alaska Ct. App. 2006).

In a case in which defendant was convicted of several offenses related to the burglary of a grocery store and a social club, the sentencing judge’s decision to impose consecutive three-year sentences was not clearly mistaken. The judge recognized her discretion to impose either consecutive or concurrent sentences and stated valid reasons supporting her decision to impose consecutive sentences. Gage v. State, — P.3d — (Alaska Ct. App. Apr. 18, 2012) (memorandum decision).

For cases construing former computation of term statute, see Thompson v. State, 496 P.2d 651 (Alaska 1972); Lock v. State, 609 P.2d 539 (Alaska 1980).

Collateral references. —

Right of convicted defendant or prosecution to receive updated presentence report at sentencing proceedings. 22 ALR5th 660.

Sec. 12.55.027. Credit for time spent toward service of a sentence of imprisonment.

  1. A court may grant a defendant credit toward a sentence of imprisonment for time spent in a treatment program that furthers the reformation and rehabilitation of the defendant if the court finds that the program places a substantial restriction on the defendant’s freedom of movement and behavior and is consistent with this section.
  2. A court may only grant credit under this section
    1. in the amount of one day of credit toward a sentence of imprisonment for each full day the defendant spent in a treatment program; and
    2. if the court ordered the defendant to participate in and comply with the conditions of the treatment program before the defendant entered the program.
  3. In granting credit toward a sentence of imprisonment for time spent in a treatment program, a court shall consider the following factors:
    1. the restrictions on the defendant's freedom of movement and behavior;
    2. the circumstances under which the defendant was enrolled in the program;
    3. the residency requirements of the program;
    4. the physical custody and supervision of the defendant at the program;
    5. the circumstances under which the defendant is permitted to leave the program's facility;
    6. the rules of the program and the requirement that the defendant obey the orders of persons who have immediate custody or control over the defendant;
    7. the sanctions on the defendant for violating the program's rules or orders;
    8. whether the defendant is subject to arrest for leaving the program's facility without permission;
    9. the use of an electronic monitoring device;
    10. whether the program provides substance abuse treatment;
    11. the use of other technology that monitors or restricts the defendant's movement and behavior;
    12. other factors that support the court's finding that the program places a substantial restriction on the defendant's freedom of movement and behavior;
    13. other factors that support the court's finding that the program furthers the reformation and rehabilitation of the defendant.
  4. A court may grant credit against a sentence of imprisonment for time spent under electronic monitoring if the person has not committed a criminal offense while under electronic monitoring and the court imposes restrictions on the person’s freedom of movement and behavior while under the electronic monitoring program, including requiring the person to be confined to a residence except for a
    1. court appearance;
    2. meeting with counsel; or
    3. period during which the person is at a location ordered by the court for the purposes of employment, attending educational or vocational training, performing community volunteer work, or attending a rehabilitative activity or medical appointment.
  5. If a defendant intends to claim credit toward a sentence of imprisonment for time spent in a treatment program or under electronic monitoring either as a condition of probation or as a condition of bail release after a petition to revoke probation has been filed, the defendant shall file notice with the court and the prosecutor 10 days before the disposition hearing. The notice shall include the amount of time the defendant is claiming. The defendant must prove by a preponderance of the evidence that the credit claimed meets the requirements of this section. A court may not consider, except for good cause, a request for credit made under this subsection more than 90 days after the disposition hearing.
  6. To qualify as a treatment program under this section, a program must
    1. be intended to address criminogenic traits or behaviors;
    2. provide measures of progress or completion; and
    3. require notification to the prosecuting authority, pretrial services officer, or probation officer if the person is discharged from the program for noncompliance.
  7. Unless the defendant participated in a residential treatment program under (c) and (f) of this section while under electronic monitoring, a court may not grant credit against a sentence of imprisonment under (d) of this section if the sentence is for
    1. a felony crime against a person under AS 11.41;
    2. a crime involving domestic violence as defined in AS 18.66.990 ;
    3. an offense under AS 11.71 involving the delivery of a controlled substance to a person under 19 years of age;
    4. burglary in the first degree under AS 11.46.300 ; or
    5. arson in the first degree under AS 11.46.400 .
  8. Nothing in this section authorizes the release of a person on electronic monitoring after conviction and while awaiting sentencing if the person is ineligible for release under AS 12.30.040(b) .
  9. A court may not grant credit under this section for time spent in a treatment program or under electronic monitoring for a sex offense as defined in AS 12.63.100 .
  10. A court may grant credit under this section for time spent in a treatment program or under electronic monitoring if the court finds that the sentence, including credit toward the sentence of imprisonment, meets the requirements of AS 12.55.005 .
  11. When a court grants credit toward a sentence of imprisonment under this section, if a defendant spends time in a treatment program while under electronic monitoring, the court may grant credit for either the time spent in the treatment program or for the time spent under electronic monitoring, but not for both.
  12. A court granting credit against a sentence of imprisonment under (a) of this section may grant credit of not more than 365 days against the total term of imprisonment imposed.

History. (§ 20 ch 24 SLA 2007; am § 19 ch 43 SLA 2013; am § 23 ch 83 SLA 2014; am §§ 1 — 3 ch 20 SLA 2015; am §§ 68 — 71 ch 36 SLA 2016; am § 29 ch 1 4SSLA 2017; am §§ 6, 7 ch 11 SLA 2019; am §§ 65, 66 ch 4 FSSLA 2019)

Revisor's notes. —

Subsection ( l ) was enacted as (i). Relettered in 2019.

Cross references. —

For provision relating to the applicability of the 2016 amendments to this section, see sec. 185(c), ch. 36, SLA 2016, in the 2016 Temporary and Special Acts.

Effect of amendments. —

The 2013 amendment, effective July 1, 2013, added (e).

The 2014 amendment, effective July 17, 2014, in (c), in the introductory language, substituted “for a day” for “for time”, and inserted “on that day” following “a person’s liberty”, rewrote (c)(2), which read, “must be confined at all times to the grounds of the facility or be in the physical custody of an employee of the facility, except for court appearances, meetings with counsel, and work required by the treatment program and approved in advance by the court”, added (c)(2)(D).

The 2015 amendment, effective August 12, 2015, in (a), inserted “or under electronic monitoring” following “time spent in a treatment program”; rewrote (d), which read, “A court may not grant credit against a sentence of imprisonment for time spent in a private residence or under electronic monitoring”; in (e), in the first sentence, inserted “or under electronic monitoring” following “for time spend in a treatment program”.

The 2016 amendment, effective October 9, 2016, in (a), substituted “that furthers the reformation and rehabilitation of the defendant if the court finds that the program places a substantial restriction on the defendant's freedom of movement and behavior and is consistent with” for “or under electronic monitoring only as provided in”; rewrote (b ) and (c); added (f) and (g).

The 2017 amendment, effective November 27, 2017, added (h).

The first 2019 amendment, effective October 17, 2019, rewrote (g), added (i) through (k).

The second 2019 amendment, effective July 9, 2019, in (f)(3), substituted “notification to the prosecuting authority, pretrial services officer, or” for “notification to the pretrial services office or”; and added (i) [now ( l )].

Editor's notes. —

Section 36(a), ch. 24, SLA 2007, provides that this section “applies to credit for time served for a sentence imposed on or after July 1, 2007, regardless of when the criminal act was committed.”

Under sec. 46(d), ch. 43, SLA 2013, subsection (e), added by sec. 19, ch. 43, SLA 2013, applies to disposition hearings occurring in proceedings on petitions to revoke probation filed on or after July 1, 2013.

Although the 2014 amendments were to have taken effect July 1, 2014 under Sec. 42, ch. 83, SLA 2014, the Governor did not sign the bill until July 16, 2014, and so the actual effective date of the 2014 amendments was July 17, 2014 under AS 01.10.070(d) .

Under sec. 36(a), ch. 83, SLA 2014, subsection (c) as amended by sec. 23, ch. 83, SLA 2014, applies to offenses occurring on or after July 17, 2014.

Under sec. 5(a), ch. 20, SLA 2015, the changes made to subsections (a), (d), and (e) in secs. 1 — 3, ch. 20, SLA 2015 apply to “an offense committed before, on, or after August 12, 2015.”

Section 11, ch. 11, SLA 2019, provides that the 2019 amendments of (i) — (k) of this section apply “to offenses committed on or after October 17, 2019.”

Section 142(b)(3), ch. 4, FSSLA 2019, provides that the 2019 amendment to (i) [now ( l )] of this section applies to “sentences imposed on or after July 9, 2019 for conduct occurring on or after July 9, 2019.”

Notes to Decisions

Retroactive application. —

Even assuming that a superior court’s application of subsection (d) somehow amounted to a retroactive application of the statute, denial of defendant’s request that she be awarded credit against her sentence for certain periods was correct. The Alaska Legislature expressly declared that subsection (d) was to apply to all sentences imposed after the statute took effect, even when the defendant’s underlying crime predated the enactment of the statute. Teayoumeak v. State, — P.3d — (Alaska Ct. App. Mar. 7, 2012) (memorandum decision).

Defendant was not entitled to sentence credit for time spent on electronic monitoring because (1) AS 12.55.027(d) , holding defendant was not entitled to such credit, applied retroactively, as the provision merely clarified existing law, and (2) the restrictions on defendant’s movement were relatively minor. Wright v. State, 347 P.3d 1000 (Alaska Ct. App. 2015), rev'd, 404 P.3d 166 (Alaska 2017).

Construction. —

This section should be interpreted in accordance with its wording, even though it may impose a more restrictive rule than is found in the Nygren v. State line of cases. McKinley v. State, 275 P.3d 567 (Alaska Ct. App. 2012).

Defendant received credit for the time he spent on electronic monitoring because at the time defendant violated his bail conditions by drinking alcoholic beverages and illicitly using drugs, the offenses were "violations" of the bail conditions, and not criminal offenses. State v. Thompson, 425 P.3d 166 (Alaska Ct. App. 2018).

Legislative intent. —

Even if the Department of Law was mistaken in telling the House Judiciary Committee that their proposed statute was simply a codification of the Nygren v. State rule, this does not mean that the court could disregard the wording of the statute and continue to apply the Nygren rule. The debate over the precise wording of subsection (c)(2), demonstrates that the Committee members fully understood the restrictions they were placing on the types of treatment programs that would qualify for sentencing credit. McKinley v. State, 275 P.3d 567 (Alaska Ct. App. 2012).

Although defendant claimed that the superior court erred when it applied AS 12.55.027(d) to his request for credit against his sentence because doing so violated the prohibition against ex post facto laws, defendant did not satisfy the Nygren test. Therefore, the appellate court did not have to address defendant’s claim. Milazzo v. State, — P.3d — (Alaska Ct. App. Nov. 12, 2014) (memorandum decision).

Electronic monitoring. —

Defendant was entitled to sentence credit for a period of time spent on electronic monitoring because (1) defendant's electronic monitoring conditions were sufficiently restrictive, and (2) defendant did not commit a new crime during that period. State v. Bell, 421 P.3d 128 (Alaska Ct. App. 2018).

Defendant was not entitled to sentence credit for a certain electronic monitoring period because defendant committed a new crime at the end of the period, depriving a court of discretion to grant defendant sentence credit for the entire period, whether or not defendant was charged with or convicted of the new crime. State v. Bell, 421 P.3d 128 (Alaska Ct. App. 2018).

When defendant was placed on electronic monitoring, defendant was not entitled to sentence credit for time spent grocery shopping because (1) this activity was not specified in the statute, and (2) the legislature could validly distinguish between this activity and statutorily specified activities. Tanner v. State, 436 P.3d 1061 (Alaska Ct. App. 2018).

When defendant was placed on electronic monitoring, defendant was not entitled to sentence credit for time spent grocery shopping under the statutory provision for rehabilitative activities because the statute referred to this authorized purpose for leaving home as “attending a rehabilitative activity,” indicating a reference to enrolling in scheduled sessions of counseling or training, rather than leaving home for an unspecified destination and for an unspecified length of time to go shopping for groceries. Tanner v. State, 436 P.3d 1061 (Alaska Ct. App. 2018).

Right to counsel.

Superior court erred in refusing appellant's request for appointed counsel where he had been represented by private counsel at sentencing, he apparently became unable to pay for his private counsel, private counsel was allowed to withdraw when appellant filed his pro se motion for sentencing credit, and there was no inquiry into whether appellant was eligible for appointed counsel. Belknap v. State, 426 P.3d 1156 (Alaska Ct. App. 2018).

Commission of a new crime. —

State must be allowed to litigate whether defendant did, in fact, commit either fourth-degree assault or fourth-degree criminal mischief, or both, during that first period of electronic monitoring release because, while those charges were dismissed as part of a plea bargain, the statute did not speak to a defendant's conviction for a new crime while on electronic monitoring, rather, the statute spoke to a defendant's commission of a new crime. State v. Thompson, 425 P.3d 166 (Alaska Ct. App. 2018).

Work-related therapy. —

Retroactive approval of defendant’s unaccompanied absences from his treatment program as “work-related therapy” and granting defendant credit for a treatment program that did not otherwise comply with the requirements of this section was error. State v. Derry, — P.3d — (Alaska Ct. App. July 30, 2014) (memorandum decision).

Completion of treatment program not required. —

While defendant failed to complete two residential treatment programs while on bail release prior to her sentencing, this section awards credit to defendant for each day of successful participation in a court-ordered treatment program that meet the requirements of subsection (c), even though defendant may have ultimately been discharged from the program for misbehavior or noncompliance. Gates v. State, 178 P.3d 1173 (Alaska Ct. App. 2008).

Treatment programs qualifying for credit. —

A treatment program did not qualify for sentencing credit where it allowed unsupervised absences from the facility for any purpose other than court appearances, meetings with counsel, and work required by the treatment program and approved in advance by the court. More liberal case law interpreting the circumstances under which credit was allowed was supplanted by the enactment of this section. McKinley v. State, 275 P.3d 567 (Alaska Ct. App. 2012).

No one asserted that defendant would be eligible for jail time credit for her enrollment in a specific treatment program, and the judge’s comments, which were phrased in the conditional, indicated that the issue of credit was an open question; the record did not support that defendant detrimentally relied on the judge’s comments. Baisch v. State, — P.3d — (Alaska Ct. App. Oct. 15, 2014).

It was defendant’s burden to establish that the residential treatment program he attended qualified for credit, and he failed to meet that burden; the request was denied originally because he failed to show that the program was sufficiently restrictive of his liberty, but he was advised to submit any additional information to the court, which he did not do. Coomes v. State, — P.3d — (Alaska Ct. App. Jan. 28, 2015) (memorandum decision).

Ineffective assistance of counsel.—

Application for post-conviction relief was denied because appellant failed to show that his attorney was incompetent for advising him that he would receive credit for time spent on private electronic monitoring and for failing to anticipate that the practice would later change; appellant failed to show prejudice because he accepted the plea knowing he could never be placed on electronic monitoring and thus, could never request credit in the first place. .

Violation of bail conditions. —

In an action where defendant sought credit for time spent under electronic monitoring remand was necessary because the superior court did not specify which of the prosecutor's allegations the court found to be proved and did not address defendant's potential defenses to the alleged violations of his bail conditions. Parsons v. State, — P.3d — (Alaska Ct. App. Dec. 19, 2018) (memorandum decision).

Applied in

State v. Howard, 357 P.3d 1207 (Alaska Ct. App. 2015).

Cited in

Fungchenpen v. State, 181 P.3d 1115 (Alaska Ct. App. 2008); McKinley v. State, 215 P.3d 378 (Alaska Ct. App. 2009); State v. Shetters, 246 P.3d 338 (Alaska Ct. App. 2010).

Sec. 12.55.030. Discharge of indigents imprisoned for nonpayment of fine. [Repealed, § 16 ch 53 SLA 1973.]

Sec. 12.55.035. Fines.

  1. Upon conviction of an offense, a defendant may be sentenced to pay a fine as authorized in this section or as otherwise authorized by law.
  2. Upon conviction of an offense, a defendant who is not an organization may be sentenced to pay, unless otherwise specified in the provision of law defining the offense, a fine of not more than
    1. $500,000 for murder in the first or second degree, attempted murder in the first degree, murder of an unborn child, sexual assault in the first degree, sexual abuse of a minor in the first degree, kidnapping, sex trafficking in the first degree under AS 11.66.110(a)(2) , or misconduct involving a controlled substance in the first degree;
    2. $250,000 for a class A felony;
    3. $100,000 for a class B felony;
    4. $50,000 for a class C felony;
    5. $25,000 for a class A misdemeanor;
    6. $2,000 for a class B misdemeanor;
    7. $500 for a violation.
  3. Upon conviction of an offense, a defendant that is an organization may be sentenced to pay a fine not exceeding the greatest of
    1. an amount that is
      1. $2,500,000 for a felony offense or for a misdemeanor offense that results in death;
      2. $500,000 for a class A misdemeanor offense that does not result in death;
      3. $75,000 for a class B misdemeanor offense that does not result in death;
      4. $25,000 for a violation;
    2. three times the pecuniary gain
      1. realized by the defendant as a result of the offense; or
      2. sought by the defendant for the defendant or for others by the commission of the offense; or
    3. three times the pecuniary damage or loss
      1. caused by the defendant to another, or to the property of another, as a result of the offense; or
      2. to another or the property of another sought by the defendant by the commission of the offense.
  4. If a defendant is sentenced to pay a fine, the court may grant permission for the payment to be made within a specified period of time or in specified installments.
  5. In imposing a fine under (c) of this section, in addition to any other relevant factors, the court shall consider
    1. measures taken by the organization to discipline an officer, director, employee, or agent of the organization;
    2. measures taken by the organization to prevent a recurrence of the offense;
    3. the organization’s obligation to make restitution to a victim of the offense, and the extent to which imposition of a fine will impair the ability of the organization to make restitution; and
    4. the extent to which the organization will pass on to consumers the expense of the fine.
  6. In imposing a fine, the court may not reduce the fine by the amount of a surcharge or otherwise consider the applicability of a surcharge to the offense.
  7. Fines imposed and collected under this section shall be separately accounted for under AS 37.05.142 .
  8. [Repealed, § 5 ch 110 SLA 2010.]

History. (§ 12 ch 166 SLA 1978; am § 17 ch 45 SLA 1982; am § 26 ch 143 SLA 1982; am § 4 ch 59 SLA 1988; am § 18 ch 85 SLA 1988; am §§ 1, 2 ch 142 SLA 1990; am § 2 ch 71 SLA 1992; am §§ 2 — 4 ch 79 SLA 1994; am § 3 ch 56 SLA 1998; am §§ 1, 2 ch 131 SLA 2002; am § 7 ch 73 SLA 2006; am § 21 ch 24 SLA 2007; am §§ 1 — 3 ch 33 SLA 2009; am § 1 ch 54 SLA 2010; am § 8 ch 58 SLA 2010; am §§ 1, 4 ch 110 SLA 2010; am § 19 ch 1 TSSLA 2012; am § 72 ch 36 SLA 2016)

Cross references. —

Definition of “organization” — AS 11.81.900(b)

Sentencing procedures — AS 12.55.025(f)

Enforcement of fines and restitution — AS 12.55.051

Original Code Provision — None.

TD: VI, 49-51.

Revisor’s notes. —

Subsection (h) of this section was enacted as an uncodified section, sec. 4, ch. 110, SLA 2010, codified in 2010, and repealed effective January 31, 2012 under sec. 5, ch. 110, SLA 2010.

Cross references. —

For classification of offenses, see AS 11.81.250 ; for sentences of imprisonment for felonies, see AS 12.55.125 ; for sentences of imprisonment for misdemeanors, see AS 12.55.135 .

For provision relating to the applicability of the 2016 amendments to subsection (b), see sec. 185(a)(31), ch. 36, SLA 2016, in the 2016 Temporary and Special Acts.

Effect of amendments. —

The 2006 amendment, effective September 14, 2006, inserted “murder of an unborn child” in paragraph (b)(1).

The 2007 amendment, effective July 1, 2007, inserted “promoting prostitution in the first degree under AS 11.66.110(a)(2) ” in paragraph (b)(1).

The 2009 amendment, effective September 14, 2009, substituted “Upon” for “Except as provided in AS 12.55.036 , upon”, at the beginning of (a), (b), and (c).

The first 2010 amendment by § 8 ch 58, effective June 10, 2010, in the introductory language of (c), substituted “not exceeding the greatest of” for “not exceeding the greater of”.

The second 2010 amendment by § 1 ch 54, effective September 7, 2010, in (c)(1)(A), substituted “$2,500,000” for “$1, 000,000”, in (c)(1)(B), substituted “$500,000” for “$200,000”, in (c)(1)(C), substituted “$75,000” for “$25,000”, in (c)(1)(D), substituted “$25,000” for “$10,000”; in (c)(2), added the (A) and (B) designations, added (c)(2)(B); in (c)(3), added the (A) and (B) designations, added (c)(3)(B).

The third 2010 amendment by § 1 ch 110, effective September 26, 2010, added (g).

The 2012 amendment, effective July 1, 2012, in (b)(1), substituted “sex trafficking” for “promoting prostitution”; made a stylistic change.

The 2016 amendment, effective July 12, 2016, in (b)(5), substituted “$25,000 for “$10,000”.

Editor’s notes. —

Section 36(d), ch. 24, SLA 2007, provides that the 2007 amendment of (b) of this section applies “to offenses committed on or after July 1, 2007.”

Section 2, ch. 54, SLA 2010, provides that the amendments to (c) of this section made by § 1, ch. 54, SLA 2010 “apply to offenses occurring on or after September 7, 2010.”

Section 27(a), ch. 1, TSSLA 2012, provides that the 2012 amendments to subsection (b) apply to offenses committed before, on, or after July 1, 2012.

Legislative history reports. —

For the governor's transmittal letter concerning ch. 1, TSSLA 2012 (HB 359), see 2012 House Journal 1666 — 1668.

Notes to Decisions

No financial inquiry required. —

Following the 1992 amendment of this section, there is no duty upon the court to inquire into defendant’s ability to pay any fine imposed. Ashton v. State, 737 P.2d 1365 (Alaska Ct. App. 1987); Dodge v. Municipality of Anchorage, 877 P.2d 270 (Alaska Ct. App. 1994).

Where defendant was convicted of numerous counts of assault arising from two separate incidents in which defendant, in his private aircraft, swooped down on hunting parties in an attempt to scare them and compel them to move away from defendant’s own hunting camp, the trial court did not err in imposing a fine of $5,000 on each count without considering defendant’s ability to pay the fine because AS 12.55.035(b)(4) required no such investigation. Lamb v. State, — P.3d — (Alaska Ct. App. Jan. 14, 2009) (memorandum decision).

Forfeitures. —

The monetary limits set out in this section do not apply to forfeitures. Hillman v. Municipality of Anchorage, 941 P.2d 211 (Alaska Ct. App. 1997).

Forfeiture of an airplane worth $40,000 was not grossly disproportionate to defendant’s offense of possessing and transporting illegally taken game, because under AS 08.54.720 when a licensed guide violates a hunting statute or regulation, or aids another person in doing so, the penalty for a first offense includes a fine of not more than $30,000, while the penalty for a second or subsequent offense includes a fine of up to $50,000. Baum v. State, 24 P.3d 577 (Alaska Ct. App. 2001).

Jury trial. —

Because the magistrate had no authority to take or limit defendant’s commercial driver’s license, defendant was properly tried in the district court under the procedures established in Alaska Dist. Ct. R. Crim. P. 8 and defendant was not entitled to a jury trial. Davis v. State, 235 P.3d 1017 (Alaska Ct. App. 2010).

Construction with other statutes. —

Where an assistant district attorney erroneously informed the defendant that a payment was not a fine under AS 08.54.605 , referring to this section rather than AS 12.55.100 , his statement was not technically inconsistent with the licensing commission’s rejection of the defendant’s license renewal application. Boyd v. Department of Commerce & Econ. Dev., Div. of Occupational Licensing, 977 P.2d 113 (Alaska 1999).

Applied in

Wright v. State, 651 P.2d 846 (Alaska Ct. App. 1982); Wilson v. State, 756 P.2d 307 (Alaska Ct. App. 1988); Hazelwood v. State, 962 P.2d 196 (Alaska Ct. App. 1998).

Stated in

Doe v. Dep't of Public Safety, 92 P.3d 398 (Alaska 2004).

Cited in

Manderson v. State, 655 P.2d 1320 (Alaska Ct. App. 1983); Constantine v. State, 739 P.2d 188 (Alaska Ct. App. 1987); State v. Buza, 886 P.2d 1318 (Alaska Ct. App. 1994); Ace v. Aetna Life Ins. Co., 139 F.3d 1241 (9th Cir. Alaska 1998); Boyd v. Department of Commerce & Econ. Dev., Div. of Occupational Licensing, 977 P.2d 113 (Alaska 1999); State v. Brueggeman, 24 P.3d 583 (Alaska Ct. App. 2001); Casciola v. F. S. Air Serv., 120 P.3d 1059 (Alaska 2005); Lamb v. Anderson, 147 P.3d 736 (Alaska 2006); Doe v. State, 189 P.3d 999 (Alaska 2008).

Sec. 12.55.036. Day fines. [Repealed, § 4 ch 33 SLA 2009.]

Sec. 12.55.039. Surcharge.

  1. In addition to any fine or other penalty prescribed by law, a defendant who pleads guilty or nolo contendere to, forfeits bail for, or is convicted of a
    1. felony shall be assessed a surcharge of $200;
    2. violation of a misdemeanor offense under AS 28.33.030 , 28.33.031 , AS 28.35.030 , or 28.35.032 , or a violation of a municipal ordinance comparable to a misdemeanor offense under AS 28.33.030 , 28.33.031 , AS 28.35.030 , or 28.35.032 and adopted under AS 28.01.010 , shall be assessed a surcharge of $150;
    3. misdemeanor or a violation of a municipal ordinance if a sentence of incarceration may be imposed for the misdemeanor or ordinance violation, other than a provision identified in (2) of this subsection, shall be assessed a surcharge of $100;
    4. misdemeanor for which a sentence of incarceration may not be imposed, a violation or an infraction under state law, or a violation of a municipal ordinance imposing a penalty authorized by AS 29.25.070(a) if a sentence of incarceration may not be imposed for the ordinance violation, shall be assessed a surcharge of $20 if the fine or bail forfeiture amount for the offense is $30 or more.
  2. A court may not fail to impose the surcharge required under this section. The surcharge may not be waived, deferred, or suspended. A court may allow a defendant who is unable to pay the surcharge required to be imposed under this section to perform community work under AS 12.55.055(c) in lieu of the surcharge.
  3. The surcharge shall be paid within 10 days of imposition or such shorter period of time as ordered by the court. Failure to pay the surcharge is punishable as contempt of court. Proceedings to collect the surcharge may be instituted by the state, the municipality, or by the court on its own motion.
  4. Money collected under this section shall be deposited into the general fund and accounted for under AS 37.05.142 .

History. (§ 2 ch 119 SLA 1994; am § 4 ch 56 SLA 1998; am § 1 ch 24 SLA 2000; am § 16 ch 22 SLA 2018)

Cross references. —

For provision relating to applicability of the 2018 amendments to subsection (a), see sec. 30(c), ch. 22, SLA 2018, in the 2018 Temporary and Special Acts.

Effect of amendments. —

The 2018 amendment, effective January 1, 2019, in (a)(1), substituted “$200” for “$100”, in (a)(2), substituted “$150” for “$75”, in (a)(3), substituted “$100” for “$50”, in (a)(4) substituted “a surcharge of $20” for “a surcharge of $10” following “shall be assessed”, near the end.

Notes to Decisions

Imposition. —

Superior court should not have imposed a separate surcharge pursuant to AS 12.55.039 for each of defendant's 116 convictions. Instead, the superior court should have only assessed a single surcharge of $100. Miller v. State, 382 P.3d 1192 (Alaska Ct. App. 2016).

Even though AS 12.55.039 refers to the money collected under the section as a “surcharge,” this surcharge is the legal equivalent of a mandatory additional fine. Miller v. State, 382 P.3d 1192 (Alaska Ct. App. 2016).

Only one surcharge should be imposed under AS 12.55.039 in any one criminal case. Miller v. State, 382 P.3d 1192 (Alaska Ct. App. 2016).

Sentencing court's imposition of multiple police surcharges were vacated where subsequent case law determined that only a single surcharge was allowed under AS 12.55.039(a) , and under the Charles / Griffith standard, that decision applied retroactively. Vonda v. State, — P.3d — (Alaska Ct. App. Sept. 19, 2018) (memorandum decision).

Sec. 12.55.040. Increased punishment for habitual criminal after conviction of petty larceny or misdemeanor involving fraud. [Repealed, § 21 ch 166 SLA 1978.]

Sec. 12.55.041. Correctional facility surcharge.

  1. In addition to any fine or other penalty prescribed by law, a defendant who pleads guilty or nolo contendere to, or is convicted of, a crime under state law shall pay a correctional facility surcharge if, in connection with the crime, the defendant
    1. was arrested and taken to a correctional facility, regardless of whether the defendant was released or admitted to the facility; or
    2. is sentenced to serve a term of imprisonment.
  2. The court shall impose a single surcharge under (a) of this section on a defendant being sentenced for one or more crimes in a single judgment. The surcharge is
    1. $100 if the judgment includes a sentence for a felony;
    2. $50 if the judgment does not include a sentence for a felony.
  3. If the court places the defendant on probation, the court shall order that the defendant pay an additional correctional facility surcharge of $100. The additional surcharge shall be suspended but later imposed if the defendant’s probation is revoked and, in connection with the probation revocation, the defendant
    1. was arrested and taken to a correctional facility, regardless of whether the defendant was released or admitted to the facility; or
    2. is ordered to serve a term of imprisonment for the probation revocation.
  4. The court shall include a surcharge imposed under (a) of this section in the judgment of conviction. The court shall include the imposition of a surcharge under (c) of this section in the order revoking probation. For a surcharge that is not paid by the person as required by this section, the state shall seek reimbursement from the person’s permanent fund dividend as provided under AS 43.23.140 . For purposes of collection and priority of attachment under AS 43.23.140 , a surcharge imposed under this section is accounted for in the same manner as a cost of imprisonment under AS 28.35.030(k) and 28.35.032(o) . The state may enforce payment of a surcharge under this section under AS 09.35 as if it were a civil judgment enforceable by execution. This subsection does not limit the authority of the court to enforce surcharges.
  5. In this section, “correctional facility” has the meaning given in AS 33.30.901 .

History. (§ 1 ch 88 SLA 2004)

Revisor’s notes. —

In 2018, “AS 43.23.140 ” was substituted for “43.23.065” in subsection (d) to reflect the renumbering of that section.

Sec. 12.55.045. Restitution and compensation.

  1. The court shall, when presented with credible evidence, unless the victim or other person expressly declines restitution, order a defendant convicted of an offense to make restitution as provided in this section, including restitution to the victim or other person injured by the offense, to a public, private, or private nonprofit organization that has provided or is or will be providing counseling, medical, or shelter services to the victim or other person injured by the offense, or as otherwise authorized by law. The court shall, when presented with credible evidence, unless the victim expressly declines restitution, also order a defendant convicted of an offense to compensate a victim that is a nonprofit organization for the value of labor or goods provided by volunteers if the labor or goods were necessary to alleviate or mitigate the effects of the defendant’s crime. In determining the amount and method of payment of restitution or compensation, the court shall take into account the
    1. public policy that favors requiring criminals to compensate for damages and injury, including loss of income, to their victims; and
    2. financial burden placed on the victim and those who provide services to the victim and other persons injured by the offense as a result of the criminal conduct of the defendant.
  2. An order of restitution under this section does not limit any civil liability of the defendant arising from the defendant’s conduct.
  3. If a defendant is sentenced to pay restitution, the court may grant permission for the payment to be made within a specified period of time or in specified installments. If the defendant fails to make one or more payments required under this section, the victim or the state on the victim’s behalf may enforce the total amount remaining under the order of restitution as provided in (l) of this section.
  4. In any case, including a case in which the defendant is convicted of a violation of AS 11.46.120 — 11.46.150 and the property is commercial fishing gear as defined in AS 16.43.990 , the court shall consider the victim’s loss, and the order of restitution may include compensation for loss of income.
  5. [Repealed, § 7 ch 17 SLA 2004.]
  6. [Repealed, § 7 ch 17 SLA 2004.]
  7. The court may not, in ordering the amount of restitution, consider the defendant’s ability to pay restitution.
  8. In imposing restitution under this section, the court may require the defendant to make restitution by means other than the payment of money.
  9. An order of restitution made under this section is a condition of the defendant’s sentence and, in cases in which the court suspends all or a portion of the defendant’s sentence, the order of restitution is a condition of the suspended sentence. If the court suspends imposition of sentence under AS 12.55.085 , the order of restitution is a condition of the suspended imposition of sentence.
  10. A defendant who is convicted of an offense for which restitution may be ordered shall submit financial information as ordered by the court. The Alaska Court System shall prepare a form, in consultation with the Department of Law, for the submission of the information; the form must include a warning that submission of incomplete or inaccurate information is punishable as unsworn falsification in the second degree under AS 11.56.210 . A defendant who is convicted of (1) a felony shall submit the form to the probation office within 30 days after conviction, and the probation officer shall attach the form to the presentence report, or (2) a misdemeanor shall file the form with the defendant’s response or opposition to the restitution amount. The defendant shall provide a copy of the completed form to the prosecuting authority.
  11. The court, on its own motion or at the request of the prosecuting authority or probation officer, may order a defendant on probation who has been ordered to pay restitution to submit financial information to the court using the form specified in (j) of this section. The defendant shall file the completed form with the court within five days after the court’s order. The defendant shall provide a copy of the completed form to the prosecuting authority and the person’s probation officer, if any.
  12. An order by the court that the defendant pay restitution is a civil judgment for the amount of the restitution. An order by the court that the defendant pay restitution when the court suspends entry of judgment under AS 12.55.078 or suspends imposition of sentence under AS 12.55.085 is a civil judgment for the amount of the restitution and remains enforceable and is not discharged when the proceeding is dismissed under AS 12.55.078 or a conviction is set aside under AS 12.55.085 . The victim or the state on behalf of the victim may enforce the judgment through any procedure authorized by law for the enforcement of a civil judgment. If the victim enforces or collects restitution through civil process, collection costs and full reasonable attorney fees shall be awarded. If the state on the victim’s behalf enforces or collects restitution through civil process, collection costs and full reasonable attorney fees shall be awarded, up to a maximum of twice the amount of restitution owing at the time the civil process was initiated. This section does not limit the authority of the court to enforce orders of restitution.
  13. Notwithstanding another provision of law, the court shall accept
    1. payments of restitution from a defendant at any time; and
    2. prepayments of restitution or payments in anticipation of an order of restitution.
  14. In determining the amount of actual damages or loss for restitution under this section, the court shall value property as the market value of the property at the time and place of the crime or, if the market value cannot reasonably be ascertained, the cost of replacement of the property within a reasonable time after the crime.
  15. In this section,
    1. “conviction” means that the defendant has entered a plea of guilty, guilty but mentally ill, or nolo contendere, or has been found guilty or guilty but mentally ill by a court or jury;
    2. “loss of income” includes the total loss of income a business or person suffers as a result of not having stolen property available during the time it takes to obtain a replacement.

History. (§ 12 ch 166 SLA 1978; am § 38 ch 102 SLA 1980; am § 1 ch 73 SLA 1986; am §§ 1, 2 ch 75 SLA 1988; am § 3 ch 53 SLA 1991; am §§ 3, 4 ch 71 SLA 1992; am § 4 ch 71 SLA 1996; am §§ 3, 4 ch 103 SLA 2000; am §§ 9, 10 ch 92 SLA 2001; am § 1 ch 23 SLA 2002; am § 1 ch 26 SLA 2003; am §§ 1 — 4, 7 ch 17 SLA 2004; am § 11 ch 42 SLA 2006; am §§ 1 — 3 ch 17 SLA 2015; am § 10 ch 13 SLA 2017; am § 1 ch 21 SLA 2018)

Effect of amendments. —

The 2017 amendment, effective June 20, 2017, in ( l ), in the second sentence, inserted “suspends entry of judgment under AS12.55.078 or” following “when the court” and “the proceeding is dismissed under AS 12.55.078 or” following “is not discharged when”.

The 2018 amendment, effective January 1, 2019, in (m)(2), deleted the second sentence, which read, “If the recipient has elected to have the Department of Law collect the judgment of restitution under AS 12.55.051(g) , the court shall forward all payments of restitution to the Department of Law within five days after the court’s acceptance.”

Cross references. —

Enforcement of fines and restitution — AS 12.55.051

Suspension of Commercial License and Entry Permit — AS 16.05.710

Theft in the first, second, third, and fourth degree - AS 11.46.120 — 11.46.150

Original Code Provision — None.

TD: VI, 54-56.

Revisor’s notes. —

Subsection (m) was enacted as (n); relettered in 2004. Subsection (n) was enacted as (o); relettered in 2015. Subsection (o) was relettered from (n) in 2015 and from (m) to (n) in 2004.

Cross references. —

For restitution as condition of probation, see AS 12.55.100 ; for requirement that court suspend commercial fishing privileges of certain defendants, see AS 16.05.710(b) .

For the applicability provision relating to the 2015 amendments to this section amending paragraph (a)(1), adding a new subsection (n), and adding a new paragraph (o)(2), see sec. 5, ch. 17, SLA 2015.

Notes to Decisions

Ex post facto application held error. —

In a robbery case, retrospective application of this section violated the prohibition against ex post facto laws. Trial court was directed to apply the version of the restitution statute that existed at the time defendant committed the robbery. Ortiz v. State, 173 P.3d 430 (Alaska Ct. App. 2007).

No ex post facto violation of defendant’s rights found. —

Subsection ( l ) of this section, allowing a civil judgment and requiring a defendant to pay court-ordered restitution, did not violate defendant’s rights ex post facto because the enactment of ( l ) did not operate to change the amount of restitution or the nature of defendant’s obligation to his victims, nor did it alter the factors that the superior court was to consider when setting restitution. Lapp v. State, 220 P.3d 534 (Alaska Ct. App. 2009).

Restitution order violative of double jeopardy. —

A trial judge who imposed restitution as a special condition of probation under AS 12.55.100 and not as an independent portion of the defendant’s sentence under this section, could not terminate the defendant’s probation and order her to serve the unserved time remaining on her original sentence while at the same time enforcing this restitution order without violating the constitutional protection against double jeopardy. If the judge wished to order the defendant to pay restitution independent of her conditions of probation, this had to be done at the time she originally imposed sentence. Kelly v. State, 842 P.2d 612 (Alaska Ct. App. 1992).

Where restitution was not imposed as a condition of defendant’s probation at original sentencing, Alaska law does not authorize the judge to go back and add this condition to probation at subsequent resentencing following vacation of original sentence. Reyes v. State, 978 P.2d 635 (Alaska Ct. App. 1999).

Purpose and amount of restitution. —

Restitution should not only compensate the victim for the harm inflicted by the offender, but should further the rehabilitation of the offender; if restitution is ordered in an amount that is clearly impossible for the offender to pay, the offender’s rehabilitation will be inhibited and not furthered. Karr v. State, 686 P.2d 1192 (Alaska 1984).

Restitution order held valid. —

Restitution order was justified where the court found that defendant committed a single continuous assault on the victim and that the offense included both the act of pushing the victim against the wall and the act of stepping on her chest. Miller v. State, 312 P.3d 1112 (Alaska Ct. App. 2013).

Defendant's argument that he was prejudiced by the State's late filing of a restitution request was rejected where even assuming that defendant spent the money in detrimental reliance on the State's failure to file its restitution request by the deadline, he failed to establish that the remedy would have been a reduction in the total restitution owed given that the State's delay was short, the amount of money that defendant spent was relatively small compared to the size of the restitution judgment, the type of restitution ultimately ordered, compensation for medical bills, was readily ascertainable given the injuries the victim suffered from the shooting. Keng Her v. State, — P.3d — (Alaska Ct. App. July 24, 2019) (memorandum decision).

Defendant's attorney expressly told the court that defendant had not disputed the amounts that the Board had paid to doctors for the victim's medical care, and that no testimony on this point was necessary. As a result, any infirmity in failing to submit the question of restitution to a jury was harmless beyond a reasonable doubt in defendant's case. Keng Her v. State, — P.3d — (Alaska Ct. App. July 24, 2019) (memorandum decision).

Restitution order held invalid. —

Where after defendant pleaded guilty to sexual abuse of a minor, portion of a restitution order that compensated the victim’s mother for future lost wages and benefits after she resigned from her job to care for the victim was vacated because these losses were too speculative and attenuated from defendant’s conduct to be made part of restitution. Grubb v. State, — P.3d — (Alaska Ct. App. Feb. 25, 2022).

Meaning of “victim.” —

Trial judge erred in requiring defendant to pay, as part of his sentence for manslaughter, airline fare for decedent’s friends and relatives to attend decedent’s funeral when these friends and relatives did not fit within the definition of victim. Ned v. State, 119 P.3d 438 (Alaska Ct. App. 2005).

Duty of court to make inquiry. —

This section requires the trial courts to make thorough inquiries into the defendant’s ability to pay restitution. Lawrence v. State, 764 P.2d 318 (Alaska Ct. App. 1988).

Penal effect. —

Provisions of this section and AS 12.55.051 demonstrate that, even though restitution orders may further the aim of compensating the victim, these orders also have penal characteristics that cannot be ignored. Ortiz v. State, 173 P.3d 430 (Alaska Ct. App. 2007).

Fruits of the crime. —

Where the trial court finds, based on evidence, that the defendant has possession of, or continuing control over, the fruits of the crime, a recoupment order may properly be entered; however, such an order may not rest purely upon speculation. Kramer v. State, 735 P.2d 754 (Alaska Ct. App. 1987).

Improper assignment of assets. —

Trial court erred in ordering assignment to victim of all defendant’s assets as restitution without first inventorying and valuing them. Brezenoff v. State, 658 P.2d 1359 (Alaska Ct. App. 1983).

Award based on actual loss to victim. —

Where a defendant is charged with a lesser offense but the evidence establishes that he committed a greater offense, a restitutionary award based on the actual loss to the victim is appropriate, even though the loss exceeds the maximum property-value figure which defines the lesser offense. Fee v. State, 656 P.2d 1202 (Alaska Ct. App. 1982).

Insurance company as a victim. —

The plain language of this section and the stated legislative policy to have courts construe subsection (a) broadly support the finding that an insurance company which suffered a loss because of defendant’s conduct was a “victim” entitled to receive restitution. Lonis v. State, 998 P.2d 441 (Alaska Ct. App. 2000).

Restitution awarded to state for drug buy money. —

Where the statutes that govern awards of restitution as part of a sentence authorize the court to order restitution “to the victim or other person injured by the offense,” the court has the authority to award restitution for drug buy money to the state, both as a condition of probation and as part of a sentence. Haynes v. State, 15 P.3d 1088 (Alaska Ct. App. 2001).

Standing. —

In a case in which the State, through its Medicaid program, paid for the medical services that defendant’s daughter required as a result of the mother’s criminal conduct, the government of Alaska was a victim or other person injured by defendant’s offense within the meaning of the restitution statute, and the mother had no standing to complain that the sentencing court ordered her to pay the restitution directly to the State, rather than ordering her to pay the restitution to medical care providers, who would then have to turn the money over to the State. Maillelle v. State, 276 P.3d 476 (Alaska Ct. App. 2012).

Enforcement of restitution under AS 12.55.051 . —

AS 12.55.051 (a) prescribes a specific method for dealing with enforcement of court orders requiring the payment of fines or restitution, regardless of whether such orders are directly imposed as part of the original sentence, under this section, or indirectly imposed as a condition of probation, under AS 12.55.100 ; AS 12.55.051 expressly provides that imprisonment for failure to pay court-ordered restitution is permissible only if the failure to pay was intentional or the result of bad faith. Lominac v. Municipality of Anchorage, 658 P.2d 792 (Alaska Ct. App. 1983).

Conversion of juvenile restitution order. —

Superior courts do not have the authority to convert the unpaid restitution of a juvenile offender into a civil judgment. R.I. v. State, 894 P.2d 683 (Alaska Ct. App. 1995).

Victim’s moving expenses. —

Expense of shooting victim’s move to his parents’ home to recuperate from injuries was attributable to defendant’s crime, and, therefore, was reimbursable under this section. Riley v. State, 60 P.3d 204 (Alaska Ct. App. 2002).

Establishing anticipated future expenses. —

Where the court determines that an award of restitution should be made for anticipated future expenses, the court must at least require that these expenses be firmly established. Lawrence v. State, 764 P.2d 318 (Alaska Ct. App. 1988).

A restitution order for payment of future counseling expenses that was made in the absence of evidence firmly establishing the need for and the amount of such expenses did not comply with the requirements of this section. Peratrovich v. State, 903 P.2d 1071 (Alaska Ct. App. 1995).

Civil damages. —

Restitution and civil damages are totally independent and an order of restitution under this section does not limit any civil liability of the defendant arising from the defendant’s conduct; thus a restitutionary award has no effect on the victim’s ability to recover damages in a civil action. Kramer v. State, 735 P.2d 754 (Alaska Ct. App. 1987).

Quoted in

Whittlesey v. State, 626 P.2d 1066 (Alaska 1980); W.S. v. State, 174 P.3d 256 (Alaska Ct. App. 2008).

Stated in

Dorris v. State, 656 P.2d 578 (Alaska Ct. App. 1982); State v. Anthony, 810 P.2d 155 (Alaska 1991).

Cited in

White v. State, 773 P.2d 211 (Alaska Ct. App. 1989); J.C.W. v. State, 880 P.2d 1067 (Alaska Ct. App. 1994); Grubb v. State, — P.3d — (Alaska Ct. App. Feb. 25, 2022).

Collateral references. —

Measure and elements of restitution to which victim is entitled under state criminal statute. 15 ALR5th 391.

Persons or entities entitled to restitution as “victim” under state criminal restitution statute. 92 ALR5th 35.

Sec. 12.55.050. Increased punishment for persons convicted of more than one felony. [Repealed, § 21 ch 166 SLA 1978. For sentences of imprisonment for felonies, see AS 12.55.125.]

Sec. 12.55.051. Enforcement of fines and restitution.

  1. If the defendant defaults in the payment of a fine or any installment or of restitution or any installment, the court may order the defendant to show cause why the defendant should not be sentenced to imprisonment for nonpayment and, if the payment was made a condition of the defendant’s probation, may revoke the probation of the defendant. In a contempt or probation revocation proceeding brought as a result of failure to pay a fine or restitution, it is an affirmative defense that the defendant was unable to pay despite having made continuing good faith efforts to pay the fine or restitution. If the court finds that the defendant was unable to pay despite having made continuing good faith efforts, the defendant may not be imprisoned solely because of the inability to pay. If the court does not find that the default was attributable to the defendant’s inability to pay despite having made continuing good faith efforts to pay the fine or restitution, the court may order the defendant imprisoned until the order of the court is satisfied. A term of imprisonment imposed under this section may not exceed one day for each $50 of the unpaid portion of the fine or restitution or one year, whichever is shorter. Credit shall be given toward satisfaction of the order of the court for every day a person is incarcerated for nonpayment of a fine or restitution.
  2. When a fine or restitution is imposed on an organization, the person authorized to make disbursements from the assets of the organization shall pay the fine or restitution from those assets.  A person required to pay a fine or restitution under this subsection who intentionally refuses or fails to make a good faith effort to pay is punishable under (a) of this section.
  3. A defendant who has been sentenced to pay a fine or restitution may request a hearing regarding the defendant’s ability to pay the fine or restitution at any time that the defendant is required to pay all or a portion of the fine or restitution. The court may deny the request if it has previously considered the defendant’s ability to pay and the defendant’s request does not allege changed circumstances. If, at a hearing under this subsection, the defendant proves by a preponderance of the evidence that the defendant will be unable through good faith efforts to satisfy the order requiring payment of the fine or restitution, the court shall modify the order so that the defendant can pay the fine or restitution through good faith efforts. The court may reduce the fine ordered, change the payment schedule, or otherwise modify the order. The court may not reduce an order of restitution but may change the payment schedule.
  4. The state may enforce payment of a fine against a defendant under AS 09.35 as if the order were a civil judgment enforceable by execution. This subsection does not limit the authority of the court to enforce fines.
  5. The Department of Law is authorized to collect restitution on behalf of the recipient unless
    1. the recipient elects as provided in (f) of this section to enforce the order of restitution without the assistance of the Department of Law; or
    2. the order requires restitution to be made in a form other than payment of a specific dollar amount.
  6. The court shall forward a copy of an order of restitution to the Department of Law and the office of victims’ rights when the judgment is entered. Along with the copy of the order, the court shall provide the name, date of birth, social security number, and current address of the recipient of the restitution and the defendant, to the extent that the court has that information in its possession. Upon receipt of the order and other information from the court, the Department of Law shall send a notice to the recipient regarding the recipient’s rights under this section, including the right to elect to enforce the order of restitution without the assistance of the Department of Law and of the possibility of, and procedure for, receiving payment from the restorative justice account. The information provided to the Department of Law and the office of victims’ rights under this subsection is confidential and is not open to inspection as a public record under AS 40.25.110 . The Department of Law, the office of victims’ rights, or agents for the Department of Law or office of victims’ rights may not disclose the information except as necessary to collect on the restitution.
  7. The Department of Law may not begin collection procedures on the order of restitution until the recipient has been given notice and has been given 90days after receipt of notice to elect to collect the restitution without the assistance of the Department of Law. If the Department of Law receives a response to the notice before the 90-day period, the Department of Law may begin collection on the restitution. A recipient may inform the Department of Law at a later time of the recipient’s election to collect the restitution without the assistance of the Department of Law; upon receipt of that information, the Department of Law may no longer proceed with collection efforts on behalf of the recipient. A recipient who has elected under this section to collect restitution without the assistance of the Department of Law may not later request the services of that department to collect the restitution.
  8. If the Department of Law or its agents proceed to collect restitution on behalf of a recipient under (g) of this section, the actions of the Department of Law or an agent of the Department of Law on behalf of the recipient do not create an attorney-client relationship between the Department of Law and the recipient. The Department of Law or its agents may not settle a judgment for restitution without the consent of the recipient of the restitution.
  9. An action for damages may not be brought against the state or any of its agents, officers, or employees based on an action or omission under this section.
  10. The Department of Law may enter into contracts on behalf of the state to carry out the collection procedures of this section. The Department of Law may adopt regulations necessary to carry out the collection procedures of this section, including the reimbursement of attorney fees and costs in appropriate cases.

History. (§ 12 ch 166 SLA 1978; am §§ 3, 4 ch 75 SLA 1988; am §§ 5, 6 ch 71 SLA 1992; am §§ 11, 12 ch 92 SLA 2001; am § 5 ch 17 SLA 2004; am § 73 ch 36 SLA 2016; am §§ 2, 3 ch 21 SLA 2018; am § 67 ch 4 FSSLA 2019)

Cross references. —

Fines — AS 12.55.035

Restitution — AS 12.55.045

Definition of “Organization” — AS 11.81.900(b)

Original Code Provision — AS 12.55.010 .

Cross references. —

For provision relating to the applicability of the 2016 amendments to subsection (a), see sec. 185(g), ch. 36, SLA 2016, in the 2016 Temporary and Special Acts.

Effect of amendments. —

The 2004 amendment, effective April 22, 2004, in subsection (c), deleted “or restitution” following “fine” in the next-to-last sentence and added the last sentence.

The 2016 amendment, effective January 1, 2017, in (a), at the end of the first sentence, inserted “subject to the limits set out in AS 12.55.110 ”, at the end of the fourth sentence, substituted “subject to the limits set out in AS 12.55.110 ” for “until the order of the court is satisfied”.

The 2018 amendment, effective January 1, 2019, in (f), inserted “and the office of victims' rights” following “Department of Law” in the first sentence, added “and of the possibility of, and procedure for, receiving payment from the restorative justice account” at the end of the third sentence, rewrote the last sentence, which read, “The Department of Law or its agents may not disclose the information except as necessary to collect on the restitution”; in (g), in the first sentence, substituted “has been given 90 days” for “has been given 30 days” following “given notice and”, added the second sentence.

The 2019 amendment, effective July 9, 2019, in (a), deleted “subject to the limits set out in AS 12.55.110 ” at the end of the first sentence, and substituted “imprisoned until the order of the court is satisfied” for “imprisoned subject to the limits set out in AS 12.55.110 ” at the end of the fourth sentence.

Editor's notes. —

Section 142(b), ch. 4, FSSLA 2019, provides that the 2019 amendment to (a) of this section applies “to sentences imposed on or after July 9, 2019, for conduct occurring on or after July 9, 2019.”

Opinions of attorney general. —

A prisoner incarcerated for failure to pay a fine should not receive credit for good time during the period of incarceration. October 27, 1986 Op. Att’y Gen.

Notes to Decisions

Generally. —

Subsection (a) of this section prescribes a specific method for dealing with enforcement of court orders requiring the payment of fines or restitution, regardless of whether such orders are directly imposed as part of the original sentence, under AS 12.55.045 , or indirectly imposed as a condition of probation, under AS 12.55.100 ; this section expressly provides that imprisonment for failure to pay court-ordered restitution is permissible only if the failure to pay was intentional or the result of bad faith. Lominac v. Municipality of Anchorage, 658 P.2d 792 (Alaska Ct. App. 1983).

Legislative mandate of AS 12.55.045(a) is not replaced. —

Opportunity provided by this section for the court to later modify a restitution order does not replace the legislative mandate of AS 12.55.045(a) . Karr v. State, 686 P.2d 1192 (Alaska 1984).

Refusal to pay a fine is like a contempt of the court, not an “offense against the state” within the meaning of AS 33.20.010 , which provides for the computation of “good time” for prisoners. Murphy v. City of Wrangell, 763 P.2d 229 (Alaska 1988).

Enforcement of restitution obligation not limited to probation period. —

Defendant argued that his restitution obligation ended when his term of probation ended; however, there was nothing in the 1994 restitution statute, former AS 12.55.051(d) , that limited the enforcement of restitution to a term of probation if restitution was ordered as an independent component of the judgment. (Decided under former version of section.) Lapp v. State, 220 P.3d 534 (Alaska Ct. App. 2009).

Penal effect. —

Provisions of AS 12.55.045 and this section demonstrate that, even though restitution orders may further the aim of compensating the victim, these orders also have penal characteristics that cannot be ignored. Ortiz v. State, 173 P.3d 430 (Alaska Ct. App. 2007).

Applied in

Scudero v. State, 496 P.3d 381 (Alaska 2021).

Cited in

Karr v. State, 660 P.2d 450 (Alaska Ct. App. 1983); Thompson v. State, 64 P.3d 132 (Alaska Ct. App. 2003).

Sec. 12.55.055. Community work.

  1. The court may order a defendant convicted of an offense to perform community work as a condition of probation, a suspended sentence, suspended imposition of sentence, or suspended entry of judgment, or in addition to any fine or restitution ordered. If the defendant is sentenced to imprisonment, the court may recommend to the Department of Corrections that the defendant perform community work.
  2. Community work includes work on projects designed to reduce or eliminate environmental damage, protect the public health, or improve public lands, forests, parks, roads, highways, facilities, or education.  Community work may not confer a private benefit on a person except as may be incidental to the public benefit.
  3. The court may offer a defendant convicted of an offense the option of performing community work in lieu of a fine, surcharge, or portion of a fine or surcharge if the court finds the defendant is unable to pay the fine. The value of community work in lieu of a fine is the state’s minimum wage for each hour.
  4. The court may offer a defendant convicted of an offense the option of performing community work in lieu of a sentence of imprisonment. Substitution of community work shall be at a rate of eight hours for each day of imprisonment. A court may not offer substitution of community work for any mandatory minimum period of imprisonment or for any period within the presumptive range of imprisonment for the offense.
  5. Medical benefits for an individual injured while performing community work at the direction of the state shall be assumed by the state to the extent not covered by collateral sources. When the state pays medical benefits under this subsection, a claim for medical expenses by the injured individual against a third party is subrogated to the state.
  6. [Repealed, § 11 ch 71 SLA 1996.]
  7. The court may not
    1. offer a defendant convicted of an offense the option of serving jail time in lieu of performing uncompleted community work previously ordered by the court; or
    2. convert uncompleted community work hours into a sentence of imprisonment.
  8. If a court orders community work as part of the defendant’s sentence under this section, the court shall provide notice to the defendant at sentencing and include as a provision of the judgment that if the defendant fails to provide proof of community work within 20 days after the date set by the court, the court shall convert those community work hours to a fine equal to the number of uncompleted work hours multiplied by the state’s minimum hourly wage and issue a judgment against the defendant for that amount.

History. (§ 12 ch 166 SLA 1978; am E.O. No. 55, § 8 (1984); am §§ 1, 2 ch 104 SLA 1984; am § 4 ch 53 SLA 1991; am § 3 ch 119 SLA 1994; am § 11 ch 71 SLA 1996; am § 5 ch 2 SLA 2005; am §§ 74 — 76 ch 36 SLA 2016)

Cross references. —

Original Code Provision — None.

TD: VI, 59-60.

Cross references. —

For provision relating to the applicability of the 2016 amendments to this section, see sec. 185(f), ch. 36, SLA 2016, in the 2016 Temporary and Special Acts. For the effect of the 2016 amendments to this section on Rule 32, Alaska Rules of Criminal Procedure, see sec. 180(b), ch. 36, SLA 2016 in the 2016 Temporary and Special Acts.

Effect of amendments. —

The 2005 amendment, effective March 23, 2005, in subsection (d) substituted “for any period within the presumptive range of imprisonment for the offense” for “for any period of a presumptive term of imprisonment.”

The 2016 amendment, effective July 12, 2016, in (a), substituted “suspended imposition of sentence, or suspended entry of judgment,” for “or suspended imposition of sentence”; in (c), substituted “the state’s minimum wage for each hour” for “$3 per hour”; added (g) and (h).

Notes to Decisions

Sentence of “community labor” is criminal penalty. Booth v. State, 903 P.2d 1079 (Alaska Ct. App. 1995).

Community work replacing jail time altogether. —

Community work cannot properly be relied on to replace jail time altogether when the circumstances surrounding an offender’s conviction for a class B felony, and the consequent need to emphasize community condemnation, would require the imposition of a nonprobationary term. In such cases, reliance by the sentencing court on community work to the exclusion of incarceration would unduly depreciate the seriousness of the offense and underemphasize the community’s condemnation of the offender’s misconduct. State v. Jackson, 776 P.2d 320 (Alaska Ct. App. 1989).

Sentence requiring 1,000 hours of community work, while suspending the entire term of three years’ incarceration imposed upon a 27 year-old gym teacher convicted of sexually abusing a 14 year-old female student, was disapproved, where the sentence unduly depreciated the significance of his misconduct and inadequately served the sentencing goal of community condemnation. State v. Jackson, 776 P.2d 320 (Alaska Ct. App. 1989).

Allowable sentence. —

Upon conviction of defendant for negligent discharge of oil under AS 46.03.740 , the trial court had authority to impose both a fine and imprisonment and could impose 1000 hours of community work service in lieu thereof. Hazelwood v. State, 962 P.2d 196 (Alaska Ct. App. 1998).

District court erred in requiring defendant's uncompleted community work service hours to convert to jail time because the conversion provision of the plea agreement failed to define a material term of the agreement, namely, what conversion rate should apply. Swartz v. Municipality of Anchorage, 436 P.3d 1104 (Alaska Ct. App. 2019).

Quoted in

State v. Walker, 283 P.3d 668 (Alaska Ct. App. 2012).

Stated in

State v. Brueggeman, 24 P.3d 583 (Alaska Ct. App. 2001).

Cited in

State v. Hernandez, 877 P.2d 1309 (Alaska Ct. App. 1994); State v. Korkow, 314 P.3d 560 (Alaska 2013).

Collateral references. —

Downward departure from United States Sentencing Guidelines (U.S.S.G. §§ 1A1.1 et seq.) based on aberrant behavior. 164 A.L.R. Fed. 61.

Secs. 12.55.060 — 12.55.075. Prior convictions; sentencing reports; imposition of sentence. [Repealed, § 21 ch 166 SLA 1978.]

Sec. 12.55.078. Suspending entry of judgment.

  1. Except as provided in (f) of this section, if a person is found guilty or pleads guilty to a crime, the court may, with the consent of the defendant and the prosecution and without imposing or entering a judgment of guilt, defer further proceedings and place the person on probation. The period of probation may not exceed the applicable terms set out in AS 12.55.090(c) . The court may not impose a sentence of imprisonment under this subsection.
  2. The court shall impose conditions of probation for a person on probation as provided in (a) of this section, which may include that the person
    1. abide by all local, state, and federal laws;
    2. not leave the state without prior consent of the court;
    3. pay restitution as ordered by the court; and
    4. obey any other conditions of probation set by the court.
  3. At any time during the probationary term of the person released on probation, a probation officer may, without warrant or other process, rearrest the person so placed in the officer’s care and bring the person before the court, or the court may, in its discretion, issue a warrant for the rearrest of the person. The court may revoke and terminate the probation if the court finds that the person placed on probation is
    1. violating the conditions of probation;
    2. engaging in criminal practices; or
    3. violating an order of the court to participate in or comply with the treatment plan of a rehabilitation program under AS 12.55.015(a)(10) .
  4. If the court finds that the person has successfully completed probation, the court shall, at the end of the probationary period set by the court, or at any time after the expiration of one year from the date the original probation was imposed, discharge the person and dismiss the proceedings against the person. A person who is discharged under this subsection is not convicted of a crime.
  5. If the court finds that the person has violated the conditions of probation ordered by the court, the court may revoke and terminate the person’s probation, enter judgment on the person’s previous plea or finding of guilt, and pronounce sentence at any time within the maximum probation period authorized by this section.
  6. The court may not suspend the imposition or entry of judgment and may not defer prosecution under this section of a person who
    1. is charged with a violation of AS 11.41.100 — 11.41.220 , 11.41.260 — 11.41.320 , 11.41.360 — 11.41.370 , 11.41.410 — 11.41.530 , AS 11.46.400 , AS 11.61.125 — 11.61.128 , or AS 11.66.110 — 11.66.135 ;
    2. uses a firearm in the commission of the offense for which the person is charged;
    3. has previously been granted a suspension of judgment under this section or a similar statute in another jurisdiction, unless the court enters written findings that by clear and convincing evidence the person’s prospects for rehabilitation are high and suspending judgment under this section adequately protects the victim of the offense, if any, and the community;
    4. is charged with a violation of AS 11.41.230 , 11.41.250 , or a felony and the person has one or more prior convictions for a misdemeanor violation of AS 11.41 or for a felony or for a violation of a law in this or another jurisdiction having similar elements to an offense defined as a misdemeanor in AS 11.41 or as a felony in this state; for the purposes of this paragraph, a person shall be considered to have a prior conviction even if
      1. the charges were dismissed under this section;
      2. the conviction has been set aside under AS 12.55.085 ; or
      3. the charge or conviction was dismissed or set aside under an equivalent provision of the laws of another jurisdiction; or
    5. is charged with a crime involving domestic violence, as defined in AS 18.66.990 .

History. (§ 77 ch 36 SLA 2016; am §§ 11 — 13 ch 13 SLA 2017)

Cross references. —

For provision relating to the applicability of the 2016 amendments to this section, see sec. 185(h), ch. 36, SLA 2016, in the 2016 Temporary and Special Acts.For the effect of the 2016 amendments to this section on Rule 43, Alaska Rules of Criminal Procedure, see sec. 180(c), ch. 36, SLA 2016 in the 2016 Temporary and Special Acts.

For provision relating to applicability of the 2017 amendments to this section, see sec. 29, ch. 13, SLA 2017, in the 2017 Temporary and Special Acts.

Effect of amendments. —

The 2017 amendment, effective June 20, 2017, in (a), added the last sentence; in (f)(1) and (4), substituted “is charged with” for “is convicted of” at the beginning, in (f)(2), substituted “charged” for “convicted” at the end, in (f)(5), substituted “is charged with” for “has been convicted of” at the beginning.

Effective dates. —

Section 188, ch. 36, SLA 2016 makes this section effective July 1, 2016.

Sec. 12.55.080. Suspension of sentence and probation.

Upon entering a judgment of conviction of a crime, or at any time within 60 days from the date of entry of that judgment of conviction, a court, when satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby, may suspend the imposition or execution or balance of the sentence or a portion thereof, and place the defendant on probation for a period and upon the terms and conditions as the court considers best.

History. (§ 8.08 ch 34 SLA 1962; am § 24 ch 43 SLA 1964; am § 8 ch 68 SLA 1965)

Cross references. —

For modification of sentences, see AS 12.55.088 .

Notes to Decisions

Analysis

I.General Consideration

The power to suspend sentence is not inherent in the judicial branch of government. Pete v. State, 379 P.2d 625 (Alaska 1963).

Such power must be conferred by the legislature. —

The power to suspend sentences exists only when conferred upon the judiciary by the legislature. Pete v. State, 379 P.2d 625 (Alaska 1963).

While courts do not have the inherent power to suspend execution of a sentence, the legislature has given this power to the trial courts. Curtis v. State, 831 P.2d 359 (Alaska Ct. App. 1992).

And statute will govern. —

When a statute of general application grants sentencing courts the power to suspend all or part of a sentence, that statute will govern unless the legislature specifically provides otherwise. Curtis v. State, 831 P.2d 359 (Alaska Ct. App. 1992).

Parallels 18 U.S.C. § 3651. —

Alaska’s probation statutes, this section, AS 12.55.090 and AS 12.55.100 closely parallel the federal statute, former 18 U.S.C. § 3651, which empowered federal district courts to grant probation. Brown v. State, 559 P.2d 107 (Alaska 1977); Tiedeman v. State, 576 P.2d 114 (Alaska 1978); Gonzales v. State, 608 P.2d 23 (Alaska 1980).

This section and AS 12.55.090 construed in pari materia. —

Since both essentially identical sections were enacted together in § 1, ch. 195, SLA 1955, this section and AS 12.55.090 must be construed with reference to each other as in pari materia. Jackson v. State, 541 P.2d 23 (Alaska 1975).

This section and AS 12.55.085(a) now apply to Title 17. Stonefield v. State, 635 P.2d 494 (Alaska Ct. App. 1981).

Probation as adjunct to suspension of portion of fine. —

Sentencing court had authority under this section to suspend a portion of defendant’s fine and place him on probation, and nothing in the second sentence of AS 12.55.090(a) limited the court’s authority to order unsuspended incarceration, a partially suspended fine, and a period of probation. Putnam v. State, 930 P.2d 1290 (Alaska Ct. App. 1996).

State law prohibits city from enacting ordinance providing for mandatory minimum sentence. City of Kodiak v. Jackson, 584 P.2d 1130 (Alaska 1978).

Mandatory minimum sentences created by city ordinances are invalid when in irreconcilable conflict with state law. Wright v. Municipality of Anchorage, 590 P.2d 425 (Alaska 1979).

Municipal enactments consistent with state laws. —

Because municipalities are generally authorized to enact traffic laws consistent with state motor vehicle statutes, a municipality does not violate the sentencing provisions of this section and AS 12.55.085 if it follows the lead of the state legislature and enacts mandatory jail sentences and mandatory fines and forfeitures of vehicles for the offenses of driving while under the influence and breath-test refusal. McCormick v. Municipality of Anchorage, 999 P.2d 155 (Alaska Ct. App. 2000).

With suspended sentence probation is mandatory. —

Under this section whenever a sentencing judge suspends a sentence of imprisonment, the judge is required to place the defendant on probation; while the initial decision whether to suspend a sentence of imprisonment is a discretionary one, once all or part of a sentence is suspended, the statute makes probation mandatory. Figueroa v. State, 689 P.2d 512 (Alaska Ct. App. 1984).

No review of own sentence after 60 days. —

There is no authority which would sanction the expansion of the superior court’s jurisdiction to pass sentence into a realm of review and modification which is statutorily vested in either the supreme court or the executive branch of government. Therefore, the superior court lacks jurisdiction to review its own sentence, after it has entered a judgment on the matter, more than 60 days after it has imposed sentence. Davenport v. State, 543 P.2d 1204 (Alaska 1975).

Court has no power to order probation more than 60 days after sentence is imposed. Shagloak v. State, 582 P.2d 1034 (Alaska 1978), vacated, 597 P.2d 142 (Alaska 1979).

However, recommendation regarding probation does not contravene prohibition. Shagloak v. State, 582 P.2d 1034 (Alaska 1978), vacated, 597 P.2d 142 (Alaska 1979).

Different limitations of probation period. —

Under this section, a court may suspend the execution of all or a portion of a sentence and place the defendant on probation “for a period and upon the terms and conditions as the court considers best.” That period of probation, however, is specifically limited by AS 12.55.090(c) to a maximum of 5 years [now (c)(2) — 10 years]. This differs from probation granted after the court suspends the imposition of any sentence under AS 12.55.085(a) . Tiedeman v. State, 576 P.2d 114 (Alaska 1978); Elstad v. State, 599 P.2d 137 (Alaska 1979).

Where the court actually imposed sentence and suspended the execution of a portion thereof, the only statutory limitation on the term of probation is that contained in AS 12.55.090(c) . Tiedeman v. State, 576 P.2d 114 (Alaska 1978).

Where probation is granted after the court suspends the imposition of any sentence, the legislature has specifically limited the period of probation to a term not to exceed the maximum sentence which could be imposed for the particular offense. Tiedeman v. State, 576 P.2d 114 (Alaska 1978).

The five-year limitation contained in AS 12.55.090(c) [now (c)(2) — 10 years] applies only to the period of probation to be served after the imposition of a sentence and suspension of all or a portion thereof pursuant to this section. Thus, the superior court is not bound to credit the period already served under its original order suspending imposition of sentence pursuant to AS 12.55.085(a) , when considering the maximum sentence or period of probation it can impose under AS 12.55.085(c) upon violation of the original probation conditions. Rice v. State, 603 P.2d 913 (Alaska 1979).

Probationer cannot claim bail under probation statutes, this section and AS 12.55.110 , since they fail to mention bail. Martin v. State, 517 P.2d 1389 (Alaska 1974).

Applied in

Hoffman v. State, 404 P.2d 644 (Alaska 1965); Speas v. State, 511 P.2d 130 (Alaska 1973); Call v. State, 511 P.2d 135 (Alaska 1973); White v. State, 523 P.2d 428 (Alaska 1974); Jones v. State, 548 P.2d 958 (Alaska 1976); Andrews v. State, 552 P.2d 150 (Alaska 1976); Thomas v. State, 566 P.2d 630 (Alaska 1977); Honeycutt v. State, 583 P.2d 805 (Alaska 1978); Deal v. State, 587 P.2d 740 (Alaska 1978); Gilbert v. State, 598 P.2d 87 (Alaska 1979); Loola v. State, 608 P.2d 36 (Alaska 1980); Druck v. State, 616 P.2d 15 (Alaska 1980); Edwin v. State, 762 P.2d 499 (Alaska Ct. App. 1988); Christensen v. State, 844 P.2d 557 (Alaska Ct. App. 1993); State Dep't of Corr. v. Lundy, 188 P.3d 692 (Alaska Ct. App. 2008); Eberhardt v. State, 275 P.3d 560 (Alaska Ct. App. 2012).

Quoted in

Hofhines v. State, 511 P.2d 1292 (Alaska 1973); Charles v. State, 606 P.2d 390 (Alaska 1980); State v. Staael, 807 P.2d 513 (Alaska Ct. App. 1991); Chinuhuk v. State, 472 P.3d 511 (Alaska 2020).

Stated in

Wylie v. State, 797 P.2d 651 (Alaska Ct. App. 1990); State v. Falealo Manuele Pulusila, 467 P.3d 211 (Alaska 2020); State v. Meyers, 479 P.3d 840 (Alaska Ct. App. 2020).

Cited in

Wacek v. State, 530 P.2d 751 (Alaska 1975); Taylor v. State, 564 P.2d 1219 (Alaska 1977); Szeratics v. State, 572 P.2d 63 (Alaska 1977); Rice v. State, 589 P.2d 419 (Alaska 1979); Gilbert v. State, 598 P.2d 87 (Alaska 1979); Lock v. State, 609 P.2d 539 (Alaska 1980); Nielsen v. State, 627 P.2d 1077 (Alaska 1981); Morris v. State, 630 P.2d 13 (Alaska 1981); Miller v. State, 629 P.2d 546 (Alaska Ct. App. 1981); Lacquement v. State, 644 P.2d 856 (Alaska Ct. App. 1982); Burt v. State, 823 P.2d 14 (Alaska Ct. App. 1991).

II.Amendment of Sentence

Severity of original punishment may not be increased. —

A court does not have the power to amend a sentence in a manner which would increase the severity of the punishment originally imposed. Chase v. State, 479 P.2d 337 (Alaska 1971).

There is no authority under Alaska law which permits a court, when probation is revoked, to impose a fixed sentence, require the defendant to serve that sentence, and then place the defendant on an additional period of probation following service of the sentence. Franzen v. State, 573 P.2d 55 (Alaska 1978).

Increase in minimum period of incarceration. —

An increase in the minimum period of incarceration required before becoming eligible for parole is an increase in the sentence. Nelson v. State, 617 P.2d 502 (Alaska 1981).

A probation revocation order which increased the minimum period that a defendant must spend in jail violated his double jeopardy rights as well as the command of AS 33.05.070(b) which states that a court, upon revocation of probation, may order the defendant to serve the sentence originally imposed, or a lesser sentence, but not a greater one. Nelson v. State, 617 P.2d 502 (Alaska 1981).

Amended sentence replacing initial term of imprisonment with employment as fire fighter, so that each day spent working would be considered the equivalent of a day spent in jail, would have been well within the power accorded to a sentencing magistrate under Alaska law. Chase v. State, 479 P.2d 337 (Alaska 1971).

Amended sentence which merely defers imprisonment while the defendant is in the custody of a person named in the amended sentence, would be unlawful and void under the rule that a court does not have the power to amend a sentence in a manner which would increase the severity of the punishment originally imposed. Chase v. State, 479 P.2d 337 (Alaska 1971).

Judge’s modification of sentence not violative of double jeopardy provision. —

Judge’s oversight in not imposing suspended time in conjunction with the two-year probation was an obvious error and modification of the sentence, moments after imposition, to include suspended time, did not violate constitutional prohibition of double jeopardy. Dentler v. State, 661 P.2d 1098 (Alaska Ct. App. 1983).

Correction of oral sentence permissible. —

Where an oral sentence, as originally pronounced, suspended two years of imprisonment without providing for any period of probation whatsoever, the oral sentence was obviously incomplete when first pronounced and, therefore, not meaningfully imposed; correction of the original sentence was permissible under the circumstances. Figueroa v. State, 689 P.2d 512 (Alaska Ct. App. 1984).

III.Conditions of Probation

This section provides for imposition of conditions of probation. Snyder v. State, 496 P.2d 62 (Alaska 1972).

Judicial supervision of probation held proper. —

Nothing in this section prohibits a trial judge from imposing on a juvenile defendant who has violated AS 04.16.050 a requirement for defendant to report back to the judge every other week, to provide updates on the status of the probation. Jackson v. State, 127 P.3d 835 (Alaska Ct. App. 2006).

Fines. —

Sentencing court may impose a fine as a condition of probation upon a defendant’s conviction of a crime which is not directly punishable by a fine. Brown v. State, 559 P.2d 107 (Alaska 1977).

Given the specific authorization emanating from AS 12.55.100(a)(1) which permits the trial court to impose a fine as a condition of probation, together with the need for flexibility on the part of the sentencing court in fashioning appropriate conditions of probation, where probation is warranted, a rational harmonization and construction of AS 12.55.090(a) and AS 12.55.100(a)(1) leads to the conclusion that a sentencing court is empowered to make payment of a fine a condition of probation, even in the circumstance where the crime is only punishable by imprisonment, or by imprisonment or fine. Brown v. State, 559 P.2d 107 (Alaska 1977).

Authority to impose term of imprisonment as condition of probation prior to enactment of AS 12.55.086 . —

See Boyne v. State, 586 P.2d 1250 (Alaska 1978).

Imposition of jail time as condition of probation. —

When it was not imposed in accordance with AS 12.55.086(a) , the requirement of jail time as a special condition of probation was illegal, and the sentence must, therefore, be vacated and the case remanded for resentencing. Whittlesey v. State, 626 P.2d 1066 (Alaska 1980).

Condition of probation vacated. —

A probation condition that prohibited a defendant from part of the Anchorage downtown area, the city’s “high crime district,” effectively prohibited the defendant from maintaining his residence and employment and was vacated because there was no clear nexus between the area and the defendant’s misconduct; the condition was unnecessarily severe and restrictive, encompassing an area of 45 blocks; and the condition was not reasonably related to the defendant’s rehabilitation. Jones v. State, 727 P.2d 6 (Alaska Ct. App. 1986).

Record was insufficient to support imposition of a special probation condition that required defendant to attend and complete sex offender treatment where there was no evidence at sentencing that defendant had sexually assaulted his girlfriend. The only mention of sexual assault had been made by the victim at the time of the offense and she later recanted her statements on that point. Frankson v. State, — P.3d — (Alaska Ct. App. Aug. 22, 2012) (memorandum decision).

Review of conditions of probation. —

Conditions of probation in a case involving third degree assault were appropriate to the extent that they dealt with searches relating to drugs and alcohol because a trial judge found that defendant had a substance abuse problem; however, a broad condition of probation allowing for searches for other contraband was not warranted by the findings. Lambert v. State, 172 P.3d 838 (Alaska Ct. App. 2007).

IV.Revocation of Probation

Period during which suspended sentence may be revoked. —

When the Alaska legislators provided that a court “may suspend the imposition or execution . . . of the sentence . . . and place the defendant on probation . . .” the period during which a suspended sentence may be revoked is subject to the same restriction as the period of probation under AS 12.55.090 . Jackson v. State, 541 P.2d 23 (Alaska 1975).

Summary hearings upon revocation of suspended sentence have been upheld. State v. Devoe, 560 P.2d 12 (Alaska 1977).

What is required in such hearings is the exercise of conscientious judgment, and not arbitrary action; that the discretion of the court has not been abused; and that the facts revealed at the hearing satisfy the court that the modification or revocation of the sentence, or a part thereof, will serve the ends of justice. State v. Devoe, 560 P.2d 12 (Alaska 1977).

Trial judge who imposes the sentence has broad discretionary powers to revoke probation. Snyder v. State, 496 P.2d 62 (Alaska 1972).

The trial judge who imposed the sentence has certain broad discretionary powers to revoke probation. The probationer may not complain if he has been given ample opportunity to appear before the court imposing the sentence, he has been permitted to combat the accusation or charges against him, and there has been no abuse of discretion on the part of the court. State v. Devoe, 560 P.2d 12 (Alaska 1977).

Authority of judge.—

Regardless of defendant's probationary status during his delayed-remand period, the sentencing judge had the authority to revoke his probation and impose some or all of his suspended time based on his new convictions. Debeaulieau v. State, — P.3d — (Alaska Ct. App. Aug. 24, 2016).

Independent determination of good cause required. —

The requirement of an independent determination of good cause beyond mere proof of a probation violation for revocation of probation applies to cases involving suspended impositions of sentence under this section and AS 12.55.085(a) as well as to cases involving suspended executions of sentence under this section. Rich v. State, 640 P.2d 159 (Alaska Ct. App. 1982).

Conviction of crime is not prerequisite to finding a violation of probation and revoking that probation. Snyder v. State, 496 P.2d 62 (Alaska 1972).

It is not an abuse of the court’s discretion to revoke probation solely for the commission of a crime in the absence of formal charges and conviction. Snyder v. State, 496 P.2d 62 (Alaska 1972).

The probationer may not complain if he has been given ample opportunity to appear before the court imposing the sentence, he has been permitted to combat the accusation or charges against him, and there has been no abuse of discretion on the part of the court. Snyder v. State, 496 P.2d 62 (Alaska 1972).

Where the grounds for the revocation of the sentence is based upon the violation of conditions of the probation which amount, in themselves, to a crime, it is not necessary before a hearing on the revocation of the suspended sentence may be held that the probationer must be tried and convicted of the crime alleged. State v. Devoe, 560 P.2d 12 (Alaska 1977).

Probation can be revoked on basis of conviction which is on appeal and, therefore, not yet final. Alexander v. State, 578 P.2d 591 (Alaska 1978).

A conviction, with the attendant constitutional safeguards, constitutes sufficient “good cause” to find that conditions of probation have been violated and that probation should be revoked. Alexander v. State, 578 P.2d 591 (Alaska 1978).

Collateral references. —

Appealability of order suspending imposition or execution of sentence. 51 ALR4th 939.

Sec. 12.55.085. Suspending imposition of sentence.

  1. Except as provided in (f) of this section, if it appears that there are circumstances in mitigation of the punishment, or that the ends of justice will be served, the court may, in its discretion, suspend the imposition of sentence and may direct that the suspension continue for a period of time, not exceeding the maximum term of sentence that may be imposed or a period of one year, whichever is greater, and upon the terms and conditions that the court determines, and shall place the person on probation, under the charge and supervision of the probation officer of the court during the suspension.
  2. At any time during the probationary term of the person released on probation, a probation officer may, without warrant or other process, rearrest the person so placed in the officer’s care and bring the person before the court, or the court may, in its discretion, issue a warrant for the rearrest of the person.  The court may revoke and terminate the probation if the interests of justice require, and if the court, in its judgment, has reason to believe that the person placed upon probation is
    1. violating the conditions of probation;
    2. engaging in criminal practices; or
    3. violating an order of the court to participate in or comply with the treatment plan of a rehabilitation program under  AS 12.55.015(a)(10) .
  3. Upon the revocation and termination of the probation, the court may pronounce sentence at any time within the maximum probation period authorized by this section, subject to the limitation specified in  AS 12.55.086(c) .
  4. The court may at any time during the period of probation revoke or modify its order of suspension of imposition of sentence.  It may at any time, when the ends of justice will be served, and when the good conduct and reform of the person held on probation warrant it, terminate the period of probation and discharge the person held.  If the court has not revoked the order of probation and pronounced sentence, the defendant shall, at the end of the term of probation, be discharged by the court.
  5. Upon the discharge by the court without imposition of sentence, the court may set aside the conviction and issue to the person a certificate to that effect.
  6. The court may not suspend the imposition of sentence of a person who
    1. is convicted of a violation of  AS 11.41.100 — 11.41.220 , 11.41.260 — 11.41.320 , 11.41.360 — 11.41.370 , 11.41.410 — 11.41.530 ,  AS 11.46.400 ,  AS 11.61.125 — 11.61.128 , or  AS 11.66.110 — 11.66.135 ;
    2. uses a firearm in the commission of the offense for which the person is convicted; or
    3. is convicted of a violation of  AS 11.41.230 — 11.41.250 or a felony and the person has one or more prior convictions for a misdemeanor violation of  AS 11.41 or for a felony or for a violation of a law in this or another jurisdiction having similar elements to an offense defined as a misdemeanor in  AS 11.41 or as a felony in this state; for the purposes of this paragraph, a person shall be considered to have a prior conviction even if that conviction has been set aside under (e) of this section or under the equivalent provision of the laws of another jurisdiction.

History. (§ 1 ch 50 SLA 1965; am § 2 ch 32 SLA 1979; am §§ 1, 2 ch 36 SLA 1988; am § 2 ch 188 SLA 1990; am § 1 ch 196 SLA 1990; am § 7 ch 40 SLA 1993; am §§ 1, 2 ch 96 SLA 1994; am § 1 ch 55 SLA 1996; am § 13 ch 18 SLA 2010; am § 20 ch 43 SLA 2013)

Cross references. —

Original Code Provisions — Same.

Cross references. —

For restrictions on suspending imposition of sentence, see AS 04.16.200(d) , AS 12.55.125(f) , (g), and ( l ), 12.55.135(e) and (i), AS 16.30.010(c) , AS 28.33.150(b) , 28.35.030(b) and (n), and 28.35.032 (g) and (p).

Effect of amendments. —

The 2010 amendment, effective July 1, 2010, in (f), in the introductory language, added “11.41.360 — 11.41.370 ” and “or AS 11.61.125 — 11.61.128 ”, and in (f)(3) deleted “substantially” preceding “similar elements to an offense”.

The 2013 amendment, effective July 1, 2013, at the end of (f)(1), added “, or AS 11.66.110 — 11.66.135 ” and made a related change.

Editor’s notes. —

Section 2, ch. 55, SLA 1996 provides that the amendments to subsection (f) made by § 1, ch. 55, SLA 1996 apply “to offenses committed on or after September 4, 1996,” except that references “to prior convictions refer to convictions occurring before, on, or after September 4, 1996”.

Section 21(a), ch. 18, SLA 2010, provides that the 2010 amendment of (f) of this section applies to offenses committed on or after July 1, 2010.

Under sec. 46(a), ch. 43, SLA 2013, the 2013 changes to (f) of this section apply to offenses committed on or after July 1, 2013.

Legislative history reports. —

For governor’s transmittal letter for ch. 18, SLA 2010 (Senate Bill 222), relating to the amendment of (f) of this section, see 2010 Senate Journal 1237 — 1239.

Notes to Decisions

Analysis

I.General Consideration

AS 12.55.080 and subsection (a) now apply to Title 17. Stonefield v. State, 635 P.2d 494 (Alaska Ct. App. 1981).

Application of paragraph (f)(1). —

Because the rule of lenity must prevail where legislative intent is ambiguous, and because it could not be said with certainty that the legislature intended to bar courts from imposing a suspended sentence for convictions of conspiracy, the appellate court ruled that this section did not preclude a court from granting a suspended sentence to persons convicted of conspiracy to commit one of the listed crimes. George v. State, 988 P.2d 1116 (Alaska Ct. App. 1999).

Application of paragraph (f)(2). —

Defendant’s claim that paragraph (f)(2) should be interpreted as applying only to crimes against people, not all crimes, was held not persuasive. Orr-Hickey v. State, 973 P.2d 612 (Alaska Ct. App. 1999).

Disposition should be limited. —

A suspended imposition of sentence is primarily meant to be a one-time opportunity for particularly deserving first-offenders. It is a disposition ill-suited for repeated use with a persistent offender. State v. Huletz, 838 P.2d 1257 (Alaska Ct. App. 1992).

State law prohibits city from enacting ordinance providing for mandatory minimum sentence. City of Kodiak v. Jackson, 584 P.2d 1130 (Alaska 1978).

Mandatory minimum sentences created by city ordinances are invalid when in irreconcilable conflict with state law. Wright v. Municipality of Anchorage, 590 P.2d 425 (Alaska 1979).

Municipal enactments consistent with state laws. —

Because municipalities are generally authorized to enact traffic laws consistent with state motor vehicle statutes, a municipality does not violate the sentencing provisions of AS 12.55.080 and this section if it follows the lead of the state legislature and enacts mandatory jail sentences and mandatory fines for the offenses of driving while under the influence and breath-test refusal. McCormick v. Municipality of Anchorage, 999 P.2d 155 (Alaska Ct. App. 2000).

Different limitations of probation period. —

Under AS 12.55.080 , a court may suspend the execution of all or a portion of a sentence and place the defendant on probation “for a period and upon the terms and conditions as the court considers best.” That period of probation, however, is specifically limited by AS 12.55.090(c) . This differs from probation granted after the court suspends the imposition of any sentence under subsection (a) of this section. Tiedeman v. State, 576 P.2d 114 (Alaska 1978).

Where probation is granted after the court suspends the imposition of any sentence, the legislature has specifically limited the period of probation to a term not to exceed the maximum sentence which could be imposed for the particular offense. Tiedeman v. State, 576 P.2d 114 (Alaska 1978).

Where the court actually imposed sentence and suspended the execution of a portion thereof, the only statutory limitation on the term of probation is that contained in AS 12.55.090(c) . Tiedeman v. State, 576 P.2d 114 (Alaska 1978).

Granting credit toward sentence. —

This section merely defines the period in which sentencing may be imposed after it has been deferred; it in no sense precludes the granting of credit towards that sentence. Lock v. State, 609 P.2d 539 (Alaska 1980).

Upon revocation of probation, one is entitled to credit against his sentence on the original offense for time spent, as a condition of probation, in a rehabilitation program which imposes substantial restrictions on one’s freedom of movement and behavior. Lock v. State, 609 P.2d 539 (Alaska 1980).

The limitation contained in AS 12.55.090(c) applies only to the period of probation to be served after the imposition of a sentence and suspension of all or a portion thereof pursuant to AS 12.55.080 . Therefore, in calculating the period of probation allowable under AS 12.55.090(c) , the court was not bound to consider the period of probation already served by defendant under its original order suspending the imposition of sentence pursuant to subsection (a). Elstad v. State, 599 P.2d 137 (Alaska 1979); Rice v. State, 603 P.2d 913 (Alaska 1979).

Period of suspension must begin when order entered. —

The trial court was not clearly mistaken in imposing a sentence of six years’ imprisonment for a forgery count, with three years suspended, and in suspending imposition of sentence for a count of uttering a check with insufficient funds for a stated period of five years the period of suspension to run consecutively to the sentence for forgery, except to the extent that the trial court appeared to have suspended the imposition of sentence for the uttering count for a period of time one year in excess of that permitted by this section. Cochran v. State, 586 P.2d 175 (Alaska 1978).

Since there was no logical way that the trial court could cause the period of suspension to begin several years in the future, i.e., at the end of the six-year term for forgery, and the period of suspension and probationary term had to begin when the trial court’s order was entered, the supreme court held that what the judgment meant was that the imposition of sentence on the charge of uttering a check with insufficient funds was suspended, and defendant placed on probation, from the date of its entry until five years after the defendant’s six-year term of imprisonment expired. Cochran v. State, 586 P.2d 175 (Alaska 1978).

Discretion of sentencing court. —

Whether or not a sentencing court should impose a suspended imposition of sentence in a given case is, by subsection (a), left to the discretion of the sentencing court. Nattrass v. State, 554 P.2d 399 (Alaska 1976).

Subsection (a) of this section reposes discretion in the trial court to suspend imposition of the sentence and place the defendant on probation. Mullins v. State, 573 P.2d 860 (Alaska 1978).

The state legislature has conferred broad discretionary powers on the sentencing court to establish conditions of probation when imposition of sentence is to be deferred. Sprague v. State, 590 P.2d 410 (Alaska 1979).

When sentencing alternative should be considered. —

Generally, in the circumstances of youthful first offenders, who have committed nonviolent crimes, serious consideration should be given by Alaska’s trial courts to the sentencing alternative offered by subsection (a) of this section. Nattrass v. State, 554 P.2d 399 (Alaska 1976); Wharton v. State, 590 P.2d 427 (Alaska 1979); Troyer v. State, 614 P.2d 313 (Alaska 1980); Burrell v. State, 626 P.2d 1087 (Alaska Ct. App. 1981).

When suspended sentence prohibited. —

The prohibition against the granting of a suspended imposition of sentence applies to persons convicted of an attempt to commit one of the sexual offenses defined in the criminal code. Mack v. State, 900 P.2d 1202 (Alaska Ct. App. 1995).

Suspended sentence requirements for minors. —

Because the sentencing judge declared that he would not have suspended the imposition of defendant’s sentence even if he had the authority to do so, and because the record supported the judge’s decision, defendant’s contention that the statutory limitation on suspended impositions of sentence was unconstitutional when applied to minors was moot. Jelks v. State, — P.3d — (Alaska Ct. App. May 2, 2012) (memorandum decision).

Superior court did not abuse discretion in failing to impose suspended imposition of sentence. —

See Nattrass v. State, 554 P.2d 399 (Alaska 1976).

Where at the time of sentencing for the crime of embezzlement by an employee of property worth more than $100, defendant was 22 years old, had been working several years and had spent two semesters in college, and, other than minor traffic violations, he had no previous criminal record, the trial court was not clearly mistaken in failing to order a suspended imposition of sentence, instead of actually imposing a sentence of three years and four months, with the entire period suspended upon the condition that he enter a twelve-month period of public service. Mullins v. State, 573 P.2d 860 (Alaska 1978).

It was not an abuse of discretion to deny defendant's request for a suspended imposition of sentence upon defendant's conviction for fourth-degree assault for striking and injuring defendant's wife because defendant (1) was a mature offender, (2) had previously engaged in similar conduct, (3) disabled family vehicles to prevent his wife's escape, (4) was a threat despite a restraining order with which he found it difficult to comply, and (5) refused to take responsibility. Parson v. State, 404 P.3d 227 (Alaska Ct. App. 2017) (memorandum decision).

In a third-degree criminal mischief case in which defendant broke into a church and caused significant damage to church property and to various items of religious significance, the superior court's decision to impose a conviction of record and to deny defendant's request for a suspended imposition of sentence was not clearly mistaken based on the seriousness of the crime and the extraordinary damage it caused. Garcia v. State, — P.3d — (Alaska Ct. App. Jan. 9, 2019) (memorandum decision).

Appellate jurisdiction. —

Alaska Court of Appeals had jurisdiction to hear defendant's appeal of the denial of a suspended imposition of sentence (SIS) because the Court's jurisdiction to review non-term-of-imprisonment sentence appeals regardless of the length of a term of imprisonment included SIS denials, as the opportunity to set a conviction aside upon successfully completing probation made an SIS a unique disposition in which the Court was more likely to recognize error. Parson v. State, 404 P.3d 227 (Alaska Ct. App. 2017).

Alaska’s trial judges totally barred from engaging in either charge or sentencing bargaining. —

See State v. Buckalew, 561 P.2d 289 (Alaska 1977).

Sentence modification. —

Where the defendant detrimentally relied on the statement of an assistant district attorney that a plea agreement would not affect the renewal of his hunting license, he was to be provided with the opportunity to request that the sentencing court modify his sentencing conditions, notwithstanding any statute of limitations otherwise imposed on such modification. Boyd v. Department of Commerce & Econ. Dev., Div. of Occupational Licensing, 977 P.2d 113 (Alaska 1999).

Applied in

Speas v. State, 511 P.2d 130 (Alaska 1973); Call v. State, 511 P.2d 135 (Alaska 1973); White v. State, 523 P.2d 428 (Alaska 1974); Andrews v. State, 552 P.2d 150 (Alaska 1976); Franzen v. State, 573 P.2d 55 (Alaska 1978); Wharton v. State, 590 P.2d 427 (Alaska 1979); Anderson v. State, 621 P.2d 1345 (Alaska 1981); Lowry v. State, 655 P.2d 780 (Alaska Ct. App. 1982); Davis v. State, 706 P.2d 1198 (Alaska Ct. App. 1985); Owings v. State, 771 P.2d 455 (Alaska Ct. App. 1989); Christensen v. State, 844 P.2d 557 (Alaska Ct. App. 1993); State v. Hernandez, 877 P.2d 1309 (Alaska Ct. App. 1994); Eberhardt v. State, 275 P.3d 560 (Alaska Ct. App. 2012).

Quoted in

Fresneda v. State, 458 P.2d 134 (Alaska 1969); Edinger v. State, 598 P.2d 943 (Alaska 1979); Mangold v. State, 613 P.2d 272 (Alaska 1980); Benboe v. State, 738 P.2d 356 (Alaska Ct. App. 1987); Gwalthney v. State, 964 P.2d 1285 (Alaska Ct. App. 1998).

Cited in

Barrett v. State, 546 P.2d 161 (Alaska 1976); Thomas v. State, 566 P.2d 630 (Alaska 1977); Gilbert v. State, 598 P.2d 87 (Alaska 1979); Schmid v. State, 615 P.2d 565 (Alaska 1980); M.O.W v. State, 645 P.2d 1229 (Alaska Ct. App. 1982); Baker v. State, 655 P.2d 1324 (Alaska Ct. App. 1983); Dodd v. State, 686 P.2d 737 (Alaska Ct. App. 1984); Luepke v. State, 765 P.2d 988 (Alaska Ct. App. 1988); State v. Staael, 807 P.2d 513 (Alaska Ct. App. 1991); Maves v. State, 479 P.3d 399 (Alaska 2021).

Stated in

State v. Falealo Manuele Pulusila, 467 P.3d 211 (Alaska 2020); State v. Meyers, 479 P.3d 840 (Alaska Ct. App. 2020).

II.Conditions of Probation

Authority to impose period of incarceration as condition of probation prior to enactment of AS 12.55.086 . —

See Boyne v. State, 586 P.2d 1250 (Alaska 1978); Sprague v. State, 590 P.2d 410 (Alaska 1979).

Imposition of jail time as condition of probation. —

Imposition of jail time as a special condition of probation is not authorized under the Alaska statutes governing probation generally. Alaska law does, however, permit the imposition of jail time as a special condition of probation when the imposition of sentence is suspended under this section, as provided by AS 12.55.086(a) . Whittlesey v. State, 626 P.2d 1066 (Alaska 1980).

When it was not imposed in accordance with AS 12.55.086(a) , the requirement of jail time as a special condition of probation was illegal, and the sentence must, therefore, be vacated and the case remanded for resentencing. Whittlesey v. State, 626 P.2d 1066 (Alaska 1980).

III.Revocation of Probation

Subsection (b) provides for the revocation of probation for the violation of conditions imposed or engaging in criminal practices. Snyder v. State, 496 P.2d 62 (Alaska 1972).

In order to revoke probation, the state must prove a violation of a specific condition of probation. Holton v. State, 602 P.2d 1228 (Alaska 1979).

Anticipatory revocation. —

It was no error to revoke defendant's probation based on the commission of a new offense because, whether or not probation had commenced, or whether defendant had notice of commencement, or if the probationary term were stayed, a trial court had the authority to anticipatorily revoke probation when defendant committed new criminal offenses. Linden v. Municipality of Anchorage, — P.3d — (Alaska Ct. App. Sept. 25, 2019) (memorandum decision).

This section provides an independent basis for the court’s terminating probation at any point during the period of the suspended imposition of sentence if the probationer engages in criminal practices. Burrell v. State, 626 P.2d 1087 (Alaska Ct. App. 1981).

Revocation of probation before the probationary term begins does not impermissibly extend the term in violation of AS 12.55.090(c) . Enriquez v. State, 781 P.2d 578 (Alaska Ct. App. 1989).

When the accused has engaged in “criminal practices,” the sentencing court has the authority to revoke probation, even when the probationary term has not yet commenced. Enriquez v. State, 781 P.2d 578 (Alaska Ct. App. 1989).

Probation can be revoked on the basis of a conviction which is on appeal and, therefore, not yet final. Alexander v. State, 578 P.2d 591 (Alaska 1978).

Prior notice of charges required. —

Constitutional due process does require that a probationer accused of violating a condition of his probation receive prior notice of the charges against him and that he be given an opportunity to meet and refute the charges. Burrell v. State, 626 P.2d 1087 (Alaska Ct. App. 1981).

As well as independent determination of good cause. —

The requirement of an independent determination of good cause beyond mere proof of a probation violation for revocation of probation applies to cases involving suspended impositions of sentence under AS 12.55.080 and subsection (a) of this section, as well as to cases involving suspended executions of sentence under AS 12.55.080 . Rich v. State, 640 P.2d 159 (Alaska Ct. App. 1982).

State’s burden in seeking probation revocation is to establish a probation violation by a preponderance of the evidence. Burrell v. State, 626 P.2d 1087 (Alaska Ct. App. 1981).

Disposition on probation revocation. —

The disposition when probation is revoked should be based on consideration of all relevant matters, including the probationer’s original crime, his intervening conduct; and the violations of probation. Nix v. State, 624 P.2d 825 (Alaska Ct. App. 1981).

IV.Setting Conviction Aside

When set-aside orders may be entered. —

Set-aside orders may be entered only in cases where a sentence has never formally been imposed against the defendant. Richey v. State, 717 P.2d 407 (Alaska Ct. App. 1986); Champion v. State, 908 P.2d 454 (Alaska Ct. App. 1995).

Where the judge had already rescinded defendant’s suspended imposition of sentence and had formally imposed sentence and defendant was never discharged from probation under subsection (d), the judge had no authority to set aside his conviction under subsection (e). Richey v. State, 717 P.2d 407 (Alaska Ct. App. 1986).

Granting set-aside as matter of right. —

No affirmative showing or finding of rehabilitation need be made before a set-aside is granted; rather, a set-aside should be granted as a matter of right unless some specific reason for denial is established. Wickham v. State, 770 P.2d 757 (Alaska Ct. App. 1989).

Notice of refusal to set aside conviction. —

Before a sentencing court may refuse to set aside a conviction under subsection (e), the defendant must be given notice that there is reason to believe a set-aside should not be granted, with a precise statement of the reason or reasons, and must be afforded an opportunity for a hearing on the set-aside issue. Mekiana v. State, 707 P.2d 918 (Alaska Ct. App. 1985), rev'd, 726 P.2d 189 (Alaska 1986).

Explanation by court. —

By enacting the set-aside language of subsection (e), the legislature clearly intended to provide probationers who received a suspended imposition of sentence with the prospect of a clean slate and the promise of a new beginning upon successful completion of probation; a sentencing court cannot thwart this legislative goal — or, for that matter, hinder appellate review — by denying such relief without explanation. Mekiana v. State, 707 P.2d 918 (Alaska Ct. App. 1985), rev'd, 726 P.2d 189 (Alaska 1986).

Correct remedy where defendant discharged from probation and denied set aside without prior notice and hearing was not an automatic set-aside but a delayed hearing on the set aside issue. State v. Mekiana, 726 P.2d 189 (Alaska 1986).

Effect of setting aside conviction on registration requirement. —

Applying the Alaska Sex Offender Registration Act, AS 12.63.010 et seq., to a person whose conviction was set aside under this section, before the Act became specifically applicable to convictions that were set aside unconstitutionally interfered with the individual’s liberty interests and was not justified by a compelling governmental interest. Doe v. Dep't of Public Safety, 92 P.3d 398 (Alaska 2004).

Effect on professional certification of setting aside conviction. —

Nursing board, in denying an application for certification as a nurse aide, did not err in considering the applicant’s previous felony forgery conviction, notwithstanding that the conviction had been set aside; setting aside an individual’s conviction does not expunge the conviction from the individual’s criminal record, and the applicant remained a person who was “convicted” of a criminal offense within the meaning of AS 08.68.334 (2). State v. Platt, 169 P.3d 595 (Alaska 2007).

Belated set-aside hearing comporting with due process. —

A belated set-aside hearing will not offend due process as long as the trial court (1) considers only those facts existing at the time the probationer was discharged and (2) explains on the record its reasons for denying a set aside. In other words, the court must decide the set-aside question based upon an evaluation of the defendant’s conduct and situation as of the date of discharge from probation. State v. Mekiana, 726 P.2d 189 (Alaska 1986).

Belated set-aside hearing related back to date defendant was discharged from probation, where the defendant completed probation on a suspended imposition of sentence and had the conviction set aside in a belated set-aside hearing. Hansen v. State, 824 P.2d 1384 (Alaska Ct. App. 1992).

When expungement authorized. —

The inherent authority of courts to expunge criminal records did not extend to a defendant who received a suspended sentence and had his conviction set aside after he completed probation, but who never established his factual innocence nor challenged the conviction or the underlying arrest; nor is there authority to expunge a charge which was dismissed because the state obtained evidence in violation of a warrant, since neither the validity of the substantive information nor fundamental fairness was implicated. Journey v. State, 850 P.2d 663 (Alaska Ct. App. 1993), aff'd, 895 P.2d 955 (Alaska 1995).

Expunction not part of set aside. —

Expunction of a defendant’s criminal record is not authorized under the set-aside provisions of subsection (e). The district court lacked statutory authority to order the criminal record expunged upon “discharge by the court without imposition of sentence” and the subsequent setting aside of his conviction. Journey v. State, 895 P.2d 955 (Alaska 1995).

Set-aside conviction not to be used for impeachment. —

The set-aside provisions of this section “require a substantial showing of rehabilitation,” within the meaning of Alaska Rule of Evidence 609 (d)(2). Accordingly, a prior conviction may not be relied on for impeachment purposes after it has been set aside pursuant to this section. Wickham v. State, 844 P.2d 1140 (Alaska Ct. App. 1993).

Set-aside order properly denied. —

Trial court properly denied defendant’s motion to set aside his prior convictions because, although defendant’s three-year probationary term had passed, defendant had made no effort to contact the Department of Corrections or to fulfill his obligations; therefore, defendant did not successfully complete his probation. Hanson v. State, 210 P.3d 1240 (Alaska Ct. App. 2009).

Erroneous set-aside order. —

When defendant appealed a conviction, staying defendant's probation, but a trial court erroneously believed defendant continued on probation during the appeal, and, as a result, issued an erroneous order discharging defendant from probation and setting aside defendant's conviction, double jeopardy did not bar the court from correcting the court's mistake because jeopardy did not attach to the court's plainly erroneous discharge and set-aside order. Starkey v. State, 382 P.3d 1209 (Alaska Ct. App. 2016).

Collateral references. —

Propriety of considering acts because of which probation was revoked in imposing sentence for original offense after revocation of probation. 65 A.L.R.3d 1100.

Judicial expunction of criminal record of convicted adult in absence of authorizing statute, 68 ALR6th 1.

Judicial expunction of criminal record of convicted adult under statute — general principles, and expunction of criminal records under statutes providing for such relief where criminal proceeding is terminated in favor of defendant, upon completion of probation, upon suspended sentence, and where expungement relief predicated upon type, and number, of offenses, 69 ALR6th 1.

Judicial expunction of criminal record of convicted adult under statute — expunction under statutes addressing “first offenders” and “innocent persons,” where conviction was for minor drug or other offense, where indictment has not been presented against accused or accused has been released from custody, and where court considered impact of nolle prosequi, partial dismissal, pardon, rehabilitation, and lesser-included offenses, 70 ALR6th 1.

Sec. 12.55.086. Imprisonment as a condition of suspended imposition of sentence.

  1. When the imposition of sentence is suspended under AS 12.55.085 , the court may require, as a special condition of probation, that the defendant serve a definite term of continuous or periodic imprisonment, not to exceed the maximum term of imprisonment that could have been imposed. The court may recommend that the defendant serve all or part of the term in a correctional restitution center.
  2. A defendant imprisoned under this section is entitled to a deduction from the term of imprisonment for good conduct under AS 33.20.010 .  Unless otherwise specified in the order of suspension of imposition of sentence, a defendant imprisoned under this section is eligible for parole if the term of imprisonment exceeds one year and is eligible for any work furlough, rehabilitation furlough, or similar program available to other state prisoners.
  3. If probation is revoked and the defendant is sentenced to imprisonment, the defendant shall receive credit for time served under this section.  Deductions for good conduct under AS 33.20.010 do not constitute “time served.”

History. (§ 1 ch 32 SLA 1979; am § 4 ch 72 SLA 1985)

Administrative Code. —

For eligibility for discretionary parole, see 22 AAC 20, art. 1.

Notes to Decisions

For legislative history of this section, see Zurfluh v. State, 620 P.2d 690 (Alaska 1980).

Retroactive application. —

This section may be applied retrospectively to the 153-day period between the decision in State v. Boyne , 586 P.2d 1250 (Alaska 1978) and the effective date of this section. Zurfluh v. State, 620 P.2d 690 (Alaska 1980).

Logic used by court in Zurfluh v. State, 620 P.2d 690 (Alaska 1980), to make this section retroactive applies with equal force to cases in which sentencings occurred prior to the decision in Boyne v. State, 586 P.2d 1250 (Alaska 1978), and cases in which sentencing took place after Boyne was decided, but before this section took effect. Whittemore v. State, 650 P.2d 411 (Alaska Ct. App. 1982).

This section has no application to a children’s proceeding. M.O.W v. State, 645 P.2d 1229 (Alaska Ct. App. 1982).

When jail time may be imposed as condition of probation. —

Imposition of jail time as a special condition of probation is not authorized under the Alaska statutes governing probation generally. Alaska law does, however, permit the imposition of jail time as a special condition of probation when the imposition of sentence is suspended under AS 12.55.085 , as provided by subsection (a) of this section. Whittlesey v. State, 626 P.2d 1066 (Alaska 1980).

When it was not imposed in accordance with subsection (a) of this section, the requirement of jail time as a special condition of probation was illegal, and the sentence must, therefore, be vacated and the case remanded for resentencing. Whittlesey v. State, 626 P.2d 1066 (Alaska 1980).

120-day incarceration requirement for possession of marijuana for sale. —

Where the superior court suspended the imposition of sentence for possession of marijuana for purpose of sale and placed defendant on probation for a period of two years but required, as one of the conditions of his probation, that defendant serve 120 days of incarceration, the supreme court held that the incarceration requirement did not amount to an excessive sentence although recently developed sentencing guidelines suggested a sentence of no more than 30 days for a marijuana sale involving the same quantity of the drug, for a first-time felony offender, since the sale of drugs on school premises, as occurred in this case, is particularly objectionable. Anderson v. State, 621 P.2d 1345 (Alaska 1981).

Sentence of six months’ incarceration as a condition of receiving a suspended imposition of sentence, upon conviction of one count of selling intoxicating beverages without a license in a local option area, was not clearly mistaken, where defendant had set up a commercial enterprise, although of short duration, and sold a pint of whiskey to a man who murdered a woman shortly after buying the whiskey. Wassillie v. State, 790 P.2d 1385 (Alaska Ct. App. 1990).

Credit against sentence. —

Upon revocation of probation, one is entitled to credit against his sentence on the original offense for time spent, as a condition of probation, in a rehabilitation program which imposes substantial restrictions on one’s freedom of movement and behavior. Lock v. State, 609 P.2d 539 (Alaska 1980).

Applied in

State v. Shetters, 246 P.3d 332 (Alaska Ct. App. 2010).

Quoted in

Mangold v. State, 613 P.2d 272 (Alaska 1980).

Stated in

State v. Brueggeman, 24 P.3d 583 (Alaska Ct. App. 2001); State v. Falealo Manuele Pulusila, 467 P.3d 211 (Alaska 2020).

Cited in

Schmid v. State, 615 P.2d 565 (Alaska 1980); State v. First Nat'l Bank, 660 P.2d 406 (Alaska 1982); State v. Hernandez, 877 P.2d 1309 (Alaska Ct. App. 1994).

Collateral references. —

Right of defendant sentenced after revocation of probation to credit for jail time served as condition of probation. 99 ALR3d 781.

Sec. 12.55.088. Modification of sentence.

  1. The court may modify or reduce a sentence by entering a written order under a motion made within 180 days of the original sentencing.
  2. The sentencing court may not be required to entertain a second or successive motion for similar relief brought under (a) of this section on behalf of the same prisoner.
  3. A sentence may not be reduced or modified so as to result in a term of imprisonment that is less than the minimum sentence or lower than the presumptive range required by law for the original sentence.
  4. A victim has the right to comment in writing to the court on a motion to modify or reduce a sentence filed by the person who perpetrated the offense against the victim, and has the right to give sworn testimony or make an unsworn oral presentation at a hearing held in connection with the motion. If there are numerous victims, the court may limit the number of victims who may give sworn testimony or make an unsworn oral presentation during the hearing.
  5. If a motion is filed to modify or reduce a sentence by a defendant who perpetrated a crime against a person or arson in the first degree, the court shall, if feasible, send a copy of the motion to the Department of Corrections sufficiently in advance of any scheduled hearing or briefing deadline to enable the department to notify the victim of that crime. If that victim has earlier requested to be notified, the Department of Corrections shall send the victim a copy of the motion and inform the person of that person’s rights under this section, the deadline for receipt of written comments, the hearing date, and the court’s address.
  6. The court shall provide copies of the victim’s written comments to the prosecuting attorney, the person filing the motion to reduce or modify a sentence, and that person’s attorney.
  7. In deciding whether to modify or reduce a sentence, the court shall consider the victim’s comments, testimony, or unsworn oral presentation, when relevant, and any response by the prosecuting attorney and the person filing the motion.
  8. If a victim desires notice under this section, the victim shall maintain a current, valid mailing address on file with the commissioner of corrections.  The commissioner shall send the notice to the victim’s last known address.  The victim’s address may not be disclosed to the offender or to the offender’s attorney.

History. (§ 12 ch 166 SLA 1978; am § 27 ch 143 SLA 1982; am § 5 ch 59 SLA 1989; am §§ 7 — 9 ch 57 SLA 1991; am § 6 ch 79 SLA 1995; am § 6 ch 2 SLA 2005)

Cross references. —

Definition of “victim” — AS 12.55.185

Designation of Representative — AS 12.55.180

Criminal Rule 35

Cross references. —

For court rule on modification, see Rule 35(b), Alaska Rule of Criminal Procedure. For procedures when more than one person desires notice under this section, see AS 12.55.180 .

Effect of amendments. —

The 2005 amendment, effective March 23, 2005, made stylistic changes in subsection (c).

Notes to Decisions

Applied in

State v. Felix, 50 P.3d 807 (Alaska Ct. App. 2002).

Quoted in

Stoneking v. State, 39 P.3d 522 (Alaska Ct. App. 2002).

Cited in

Fermoyle v. State, 638 P.2d 1320 (Alaska Ct. App. 1982); Nell v. State, 642 P.2d 1361 (Alaska Ct. App. 1982); State v. Price, 715 P.2d 1183 (Alaska Ct. App. 1986).

Collateral references. —

Power of state court, during same term, to increase severity of lawful sentence — modern cases. 26 ALR4th 906.

Sec. 12.55.090. Granting of probation.

  1. Probation may be granted whether the offense under AS 11 or AS 16 or the crime is punishable by fine or imprisonment or both. If an offense under AS 11 or AS 16 or a crime is punishable by both fine and imprisonment, the court may impose a fine and place the defendant on probation as to imprisonment. Probation may be limited to one or more counts or indictments, but, in the absence of express limitation, shall extend to the entire sentence and judgment.
  2. Except as otherwise provided in (f) of this section, the court may revoke or modify any condition of probation, change the period of probation, or terminate probation and discharge the defendant from probation.
  3. The period of probation, together with any extension, may not exceed
    1. 25 years for a felony sex offense; or
    2. 10 years for any other offense.
  4. [Repealed, § 11 ch 68 SLA 1965.]
  5. [Repealed, § 11 ch 68 SLA 1965.]
  6. Unless the defendant and the prosecuting authority agree at the probation revocation proceeding or other proceeding related to a probation violation, the person qualifies for a reduction under AS 33.05.020(h) , or a probation officer recommends to the court that probation be terminated and the defendant be discharged from probation under (g) of this section or AS 33.05.040 , the court may not reduce the specific period of probation or the specific term of suspended incarceration except by the amount of incarceration imposed for a probation violation, if
    1. the sentence was imposed in accordance with a plea agreement under Rule 11, Alaska Rules of Criminal Procedure; and
    2. the agreement required a specific period of probation or a specific term of suspended incarceration.
  7. At the discretion of the probation officer, a probation officer may recommend to the court that probation be terminated and a defendant be discharged from probation if the defendant
    1. has completed at least
      1. two years on probation if the person was convicted of a class A or class B felony that is not a crime under (4) of this subsection; or
      2. 18 months on probation if the person was convicted of a crime that is not a crime
        1. under (A) of this paragraph; or
        2. under (4) of this subsection;
    2. has completed all treatment programs required as a condition of probation;
    3. is currently in compliance with all conditions of probation for all of the cases for which the person is on probation; and
    4. has not been convicted of an unclassified felony offense, a sexual felony as defined in AS 12.55.185 , or a crime involving domestic violence as defined in AS 18.66.990 .
  8. Before a court may terminate probation and discharge the defendant before the period of probation for the offense has been completed under (g) of this section, the court shall allow victims to comment in writing to the court or allow a victim to give sworn testimony or make an unsworn oral presentation at a hearing held to determine whether to reduce the period of probation or terminate probation and discharge the defendant.
  9. If a probation officer recommends to the court that probation be terminated and a defendant be discharged from probation under (g) of this section, and if the victim has earlier requested to be notified, the Department of Corrections shall send the victim notice of the recommendation under (g) of this section and inform the victim of the victim’s rights under this section, the deadline for receipt of written comments, the hearing date, and the court’s address.
  10. If the victim submits written comments directly to the court and the parties do not otherwise have the victim statements, the court shall distribute the statements to the parties.
  11. In deciding whether to terminate probation and discharge the defendant from probation under (g) of this section, the court shall consider the victim’s comments, testimony, or unsworn oral presentation, when relevant, and any response by the prosecuting attorney and defendant.
  12. If a victim desires notice under this section, the victim shall maintain a current, valid mailing address on file with the commissioner of corrections. The commissioner shall send the notice to the victim’s last known address. The victim’s address may not be disclosed to the defendant or the defendant’s attorney.
  13. The court shall discharge the defendant from probation upon completion of the period of probation. The period of probation is considered to be completed when the combination of time served and credits earned under AS 33.05.020 is equal to the probation period imposed, or after the probationer has been discharged from probation under this section.
  14. In this section, “sex offense” has the meaning given in AS 12.63.100 .

History. (§ 8.09 ch 34 SLA 1962; am § 25 ch 43 SLA 1964; am § 11 ch 68 SLA 1965; am § 1 ch 57 SLA 1994; am § 22 ch 24 SLA 2007; am § 22 ch 75 SLA 2008; am §§ 9, 10 ch 70 SLA 2012; am §§ 78 — 81 ch 36 SLA 2016; am § 14 ch 13 SLA 2017; am § 30 ch 1 4SSLA 2017; am §§ 68, 69 ch 4 FSSLA 2019)

Cross references. —

For provision relating to the applicability of the 2016 amendments to this section, see sec. 185(i) and (k), ch. 36, SLA 2016, in the 2016 Temporary and Special Acts.

For provision relating to applicability of the 2017 amendments to subsection (c), see sec. 29, ch. 13, SLA 2017, in the 2017 Temporary and Special Acts.

For provision relating to applicability of the 2017 amendment to subsection (g), see sec. 75(c), ch. 1, 4SSLA 2017, in the 2017 Temporary and Special Acts.

Effect of amendments. —

The 2012 amendment, effective July 1, 2012, inserted “Except as otherwise provided in (f) of this section,” in (b), and added (f).

The 2016 amendment, effective July 12, 2016, in (c)(1), substituted “15 years” for “25 years”, in (c)(2) substituted “an unclassified felony under AS 11” for “any other offense”; added (c)(3)-(6); the 2016 amendment, effective January 1, 2017, in (b), deleted “or may” preceding “change the period”; added “, or terminate probation and discharge the defendant from probation” at the end; in (f), inserted “related to a probation violation, the person qualifies for a reduction under AS 33.05.020(h) , or a probation officer recommends to the court that probation be terminated and the defendant be discharged from probation under (g) of this section or AS 33.05.040 ” preceding “the court may not”; added subsections (g) — (n).

The first 2017 amendment, effective June 20, 2017, in (c)(2), inserted “not listed in (1) of this subsection” at the end.

The second 2017 amendment, effective November 27, 2017, in (g)(1)(B), substituted “18 months on probation” for “one year on probation”.

The 2019 amendment, effective July 9, 2019, rewrote (c), which read, “(c) The period of probation, together with any extension, may not exceed

“(1) 15 years for a felony sex offense;

“(2) 10 years for an unclassified felony under AS 11 not listed in (1) of this subsection;

“(3) five years for a felony offense not listed in (1) or (2) of this subsection;

“(4) three years for a misdemeanor offense

“(A) under AS 11.41;

“(B) that is a crime involving domestic violence; or

“(C) that is a sex offense, as that term is defined in AS 12.63.100 ;

“(5) two years for a misdemeanor offense under AS 28.35.030 or 28.35.032 , if the person has previously been convicted of an offense under AS 28.35.030 or 28.35.032 , or a similar law or ordinance of this or another jurisdiction; or

“(6) one year for an offense not listed in (1) — (5) of this subsection.”; in (g), substituted “At the discretion of the probation officer, a probation officer may recommend” for “A probation officer shall recommend” at the beginning of the introductory paragraph, substituted “(4) of this subsection” for “(5) of this subsection” in (g)(1)(A) and (g)(1)(B)(ii), deleted (g)(3), which read, “has not been found in violation of conditions of probation by the court for the period specified in (1) of this subsection;” and redesignated the following paragraphs accordingly.

Editor’s notes. —

Section 17, ch. 70, SLA 2012 provides that the 2012 amendment to subsection (b) and subsection (f) apply “to offenses occurring on or after July 1, 2012.”

Section 142(d), ch. 4, FSSLA 2019, provides that the 2019 amendments to (c) and (g) of this section apply “to probation ordered on or after July 9, 2019, for conduct occurring on or after July 9, 2019.”

Notes to Decisions

Analysis

I.General Consideration

Parallels former 18 U.S.C. § 3651. —

Alaska’s probation statutes, this section, AS 12.55.080 , and AS 12.55.100 closely parallel the former federal statute, former 18 U.S.C. § 3651, which empowered federal district courts to grant probation. Brown v. State, 559 P.2d 107 (Alaska 1977); Tiedeman v. State, 576 P.2d 114 (Alaska 1978); Gonzales v. State, 608 P.2d 23 (Alaska 1980).

This section and AS 12.55.080 construed in pari materia. —

Since both essentially identical sections were enacted together in § 1, ch. 195, SLA 1955, AS 12.55.080 and this section must be construed with reference to each other as in pari materia. Jackson v. State, 541 P.2d 23 (Alaska 1975).

Revocation of probation. —

When a probation officer alleged that a probationer was in possession of certain prohibited items after the probationer was found in a truck with those items, because the appropriate mens rea requirement for possession of items prohibited by a condition of probation was a negligence standard, not an actual knowledge standard, the State of Alaska had to prove that the probationer knew or should have known that he was in possession of items prohibited by a condition of probation. The superior court on remand was to make this determination. State v. Falealo Manuele Pulusila, 467 P.3d 211 (Alaska 2020).

Procedure for revocation of probation. —

Court of Appeals of the State of Alaska did not apply the proper two-stage probation revocation hearing process because the court should have made a finding of fact regarding whether the probationer violated a condition of probation, and, if the probationer did violate a condition of probation, the court then should have determined the proper disposition given the violation. The probationer's mental state at the time of the violation as well as at the time of the revocation hearing and a good cause determination were part of the second stage. State v. Falealo Manuele Pulusila, 467 P.3d 211 (Alaska 2020).

Right to reject probation. —

Question of the proper interpretation of AS 12.55.090(f) had to be certified to the Alaska Supreme Court because no majority of the appellate court could agree on whether defendant had the statutory right to reject probation after committing a felony while on probation. Ray v. State, 452 P.3d 688 (Alaska Ct. App. 2019).

Second sentence of subsection (a) construed. —

An appropriate construction of the segment of this statute which provides “if a crime is punishable by both fine and imprisonment the court may impose a fine and place the defendant on probation as to imprisonment” is that it authorizes the trial court to impose a fine as a separate punishment in addition to probation where the penalty provision of the violated criminal statute provides for both fine and imprisonment. Any fine meted out as a sanction by the trial court in such circumstances would be subject to the fine limitation prescribed under the penalty section of the statute involved. Brown v. State, 559 P.2d 107 (Alaska 1977).

Sex offender registration. —

Sentencing judges may not impose sex offender registration as a condition of probation, since the legislature has not expressly authorized sentencing courts to exercise this power. Whitehead v. State, 985 P.2d 1019 (Alaska Ct. App. 1999).

Fine as condition of probation. —

Sentencing court may impose a fine as condition of probation upon a defendant’s conviction of a crime which is not directly punishable by a fine. Brown v. State, 559 P.2d 107 (Alaska 1977).

Given the specific authorization emanating from AS 12.55.100(a)(1) which permits the trial court to impose a fine as a condition of probation, together with the need for flexibility on the part of the sentencing court in fashioning appropriate conditions of probation, where probation is warranted, a rational harmonization and construction of subsection (a) of this section and AS 12.55.100(a)(1) leads to the conclusion that a sentencing court is empowered to make payment of a fine a condition of probation even in the circumstance where the crime is only punishable by imprisonment, or by imprisonment or fine. Brown v. State, 559 P.2d 107 (Alaska 1977).

The distinction is inherent in Alaska’s statutes that the power to impose a fine as a condition of probation and the power to impose a fine as punishment in addition to probation are separate powers, controlled respectively by AS 12.55.100(a)(1) and subsection (a) of this section. Brown v. State, 559 P.2d 107 (Alaska 1977).

Probation as adjunct to suspension of portion of fine. —

Sentencing court had authority under AS 12.55.080 to suspend a portion of defendant’s fine and place him on probation, and nothing in the second sentence of subsection (a) limited the court’s authority to order unsuspended incarceration, a partially suspended fine, and a period of probation. Putnam v. State, 930 P.2d 1290 (Alaska Ct. App. 1996).

Revised version of statute inapplicable.

Revised version of the statute did not directly apply to defendant's case because he was sentenced prior to the effective date of the revised statute; thus, defendant was subject to sentencing under the prior version of the statute, which permitted imposition of a probationary term of up to ten years. Jonas v. State, — P.3d — (Alaska Ct. App. Aug. 8, 2018).

Imposition of probation conditions without prior notice. —

Alaska Department of Corrections did not propose six of the general conditions of probation that were imposed in the trial court’s written judgment after oral conditions had been announced; imposition of those conditions without prior notice to defendant, and without giving defendant an opportunity to be heard violated defendant’s due process rights. Marunich v. State, 151 P.3d 510 (Alaska Ct. App. 2006).

Authority to impose term of imprisonment as condition of probation prior to enactment of AS 12.55.086 . —

See Boyne v. State, 586 P.2d 1250 (Alaska 1978).

Authority to suspend imposition of sentence. —

District court erred in suspending imposition of sentence when sentencing defendant for an infraction because a court was not statutorily authorized to impose probation for a noncriminal offense under Title 28 and defendant was convicted of negligent driving, an infraction, in violation of a Title 28 offense. State v. Meyers, 479 P.3d 840 (Alaska Ct. App. 2020).

Modification. —

Modification of the defendant’s probation was proper although court wrongly revoked the probation, because the State proved that there were significant changed circumstances warranting more stringent conditions to be imposed. Edwards v. State, 34 P.3d 962 (Alaska Ct. App. 2001).

No credit during pendency of revocation petition. —

Where the court determines that an alleged violation was in fact committed, there is no justification for allowing the probationer to claim credit for time served on probation during the period between the filing of the petition and its ultimate adjudication. Herrin v. State, 93 P.3d 477 (Alaska Ct. App. 2004).

Trial court exceeded its authority in placing defendant on probation for period of 14 years. —

See Jackson v. State, 541 P.2d 23 (Alaska 1975).

Judicial supervision of probation held proper. —

Nothing in this section prohibits a trial judge from imposing on a juvenile defendant, who has violated AS 04.16.050 , a requirement for defendant to report back to the judge every other week to provide updates on the status of the probation. Jackson v. State, 127 P.3d 835 (Alaska Ct. App. 2006).

Tolling of probation term. —

Where defendant’s probation was revoked, the sentencing judge had no discretion on the question of whether defendant’s term of probation should have been tolled during the pendency of the petition to revoke probation. Herrin v. State, 93 P.3d 477 (Alaska Ct. App. 2004).

Good cause for revocation. —

Where the record establishes that, after two separate stints on probation, one probation revocation action, and a substantial period of counseling, the defendant has persisted in the same pattern of criminal misconduct that led to his original convictions, the sentencing court properly found good cause to revoke probation. Kriner v. State, 798 P.2d 359 (Alaska Ct. App. 1990).

Sentence on revocation of probation. —

It is not unreasonable to impose a sentence on revocation of probation consecutively to a sentence imposed for crimes committed while on probation. Hernandez v. State, 691 P.2d 287 (Alaska Ct. App. 1984).

Extension of probation term. —

Total length of the defendant’s term of probation must be extended by the amount of time that the petition to revoke was pending. Herrin v. State, 93 P.3d 477 (Alaska Ct. App. 2004).

Not waived. —

After defendants requested that a probation term be terminated and that they simply be sentenced to an active prison term, sentencing judges did not err in imposing less than the full term that was previously suspended after considering Chaney sentencing criteria in AS 12.55.005 ; a plea bargain did not require defendants to give up the right to reject further probation. State v. Henry, 240 P.3d 846 (Alaska Ct. App. 2010).

Extension of probation not permitted. —

Trial court was precluded from extending defendant's probation beyond its original 3-year term because when the legislature revised AS 12.55.090(c) , it expressly stated that the revised statute applied to probation ordered on or after the effective date for offenses committed before, on, or after the effective date, and when the district court extended defendant's probation term from 3 to 5 years, it was ordering an additional period of probation which was not authorized under the revised statute. Johnson v. State, 477 P.3d 665 (Alaska Ct. App. 2020).

Applied in

Lowry v. State, 655 P.2d 780 (Alaska Ct. App. 1982); State v. Korkow, 314 P.3d 560 (Alaska 2013).

Quoted in

Gilbert v. State, 598 P.2d 87 (Alaska 1979); Lock v. State, 609 P.2d 539 (Alaska 1980); State v. Staael, 807 P.2d 513 (Alaska Ct. App. 1991); Chinuhuk v. State, 472 P.3d 511 (Alaska 2020); Crowley v. State, — P.3d — (Alaska Ct. App. Apr. 10, 2019).

Stated in

Hill v. State, 22 P.3d 24 (Alaska Ct. App. 2001).

Cited in

Hood v. Smedley, 498 P.2d 120 (Alaska 1972); Honeycutt v. State, 583 P.2d 805 (Alaska 1978); Gilbert v. State, 598 P.2d 87 (Alaska 1979); Nielsen v. State, 627 P.2d 1077 (Alaska 1981); Rollefson v. Municipality of Anchorage, 782 P.2d 305 (Alaska Ct. App. 1989); Wylie v. State, 797 P.2d 651 (Alaska Ct. App. 1990); Burt v. State, 823 P.2d 14 (Alaska Ct. App. 1991); State v. Hernandez, 877 P.2d 1309 (Alaska Ct. App. 1994); Bobby v. State, 950 P.2d 135 (Alaska Ct. App. 1997); Reyes v. State, 978 P.2d 635 (Alaska Ct. App. 1999).

II.Five-Year Limitation

Editor’s notes. —

Many of the cases cited in the notes below were decided before the maximum probation period in subsection (a) was changed from 5 years to 10 years in 1994 and then from 10 years to the present limits in 2007.

Intent of subsection (c). —

Subsection (c) of this section was intended to protect a convicted defendant from the uncertainties resulting from a long period of probation. Gonzales v. State, 608 P.2d 23 (Alaska 1980).

The plain meaning of the statute precludes even combined probation in excess of its stated limits. Gonzales v. State, 608 P.2d 23 (Alaska 1980).

Different limitations of probation period. —

Under AS 12.55.080 , a court may suspend the execution of all or a portion of a sentence and place the defendant on probation “for a period and upon the terms and conditions as the court considers best.” That period of probation, however, is specifically limited by subsection (c) of this section. This differs from probation granted after the court suspends the imposition of any sentence under AS 12.55.085(a) . Tiedeman v. State, 576 P.2d 114 (Alaska 1978).

Where the court actually imposed sentence and suspended the execution of a portion thereof, the only statutory limitation on the term of probation is that contained in subsection (c) of this section. Tiedeman v. State, 576 P.2d 114 (Alaska 1978).

Where probation is granted after the court suspends the imposition of any sentence, the legislature has specifically limited the period of probation to a term not to exceed the maximum sentence which could be imposed for the particular offense. Tiedeman v. State, 576 P.2d 114 (Alaska 1978).

The limitation contained in subsection (c) applies only to the period of probation to be served after the imposition of a sentence and suspension of all or a portion thereof pursuant to AS 12.55.080 . Elstad v. State, 599 P.2d 137 (Alaska 1979).

When probation period begins. —

Where the judgment clearly stated that the defendant’s probation was to expire five years after the defendant was released from incarceration, the only possible interpretation of this language was that the defendant’s probation was to expire five years after he was released from prison on parole. Tarbell v. State, 860 P.2d 1290 (Alaska Ct. App. 1993).

Tolling of period. —

The time limit for probation under subsection (c) of this section is suspended when a probationer terminates supervision by leaving the state without permission or by severing contacts with supervising authorities. O'Shea v. State, 683 P.2d 286 (Alaska Ct. App. 1984).

The running of probation is tolled by the filing of a petition to revoke probation. Gage v. State, 702 P.2d 646 (Alaska Ct. App. 1985).

Revocation of probation before the probationary term begins does not impermissibly extend the term in violation of subsection (c). Enriquez v. State, 781 P.2d 578 (Alaska Ct. App. 1989).

Period during which suspended sentence may be revoked. —

When the Alaska legislators provided in AS 12.55.080 that a court “may suspend the imposition or execution . . . of the sentence . . . and place the defendant on probation . . .” the period during which a suspended sentence may be revoked is subject to the same restriction as the period of probation. Jackson v. State, 541 P.2d 23 (Alaska 1975).

Revocation for offense discovered after probationary period has run. —

Where a defendant is convicted of an offense and placed on probation for two years and commits a further offense within the two-year period which is not discovered by the division of corrections until after the two-year period runs, the trial court may revoke probation so long as the petition to revoke probation was filed within the maximum probation period authorized by statute. Galaktionoff v. State, 733 P.2d 628 (Alaska Ct. App. 1987).

Period of probation already served. —

In calculating the period of probation allowable under subsection (c), the court was not bound to consider the period of probation already served by defendant under its original order suspending the imposition of sentence pursuant to AS 12.55.085(a) . Elstad v. State, 599 P.2d 137 (Alaska 1979).

The limitation contained in subsection (c) applies only to the period of probation to be served after the imposition of a sentence and suspension of all or a portion thereof pursuant to AS 12.55.080 . Thus, the superior court is not bound to credit the period already served under its original order suspending imposition of sentence pursuant to AS 12.55.085(a) , when considering the maximum sentence or period of probation it can impose under AS 12.55.085(c) upon violation of the original probation conditions. Rice v. State, 603 P.2d 913 (Alaska 1979).

Where a petition to revoke probation formally charging a probationer with committing a violation is filed and the court subsequently determines that the alleged violation was in fact committed, there can be no legitimate justification for allowing the probationer to claim credit for time served on probation during the period between the filing of the petition and its ultimate adjudication. Gage v. State, 702 P.2d 646 (Alaska Ct. App. 1985).

Trial court could revoke defendant's probation after defendant's period of probation expired for not completing sex offender treatment because the rule that a sentencing court had authority to retrospectively revoke a defendant's probation any time within the maximum statutory probation period applied to non-criminal probation violations. Shaw v. State, — P.3d — (Alaska Ct. App. May 9, 2018) (memorandum decision).

Galaktionoff v. State, 733 P.2d 628 (1987), authorizing a trial court to retroactively revoke probation at any time during a maximum probationary period, applies to non-criminal violations of probation. Shaw v. State, — P.3d — (Alaska Ct. App. May 9, 2018) (memorandum decision).

Collateral references. —

State court’s power to place defendant on probation without imposition of sentence. 56 ALR3d 932.

Sec. 12.55.100. Conditions of probation.

  1. While on probation and among the conditions of probation, the defendant
    1. shall be required to obey all state, federal, and local laws or ordinances, and any court orders applicable to the probationer; and
    2. may be required
      1. to pay a fine in one or several sums;
      2. to make restitution or reparation to aggrieved parties for actual damages or loss caused by the crime for which conviction was had, including compensation to a victim that is a nonprofit organization for the value of labor or goods provided by volunteers if the labor or goods were necessary to alleviate or mitigate the effects of the defendant’s crime; when determining the amount of actual damages or loss under this subparagraph, the court shall value property as the market value of the property at the time and place of the crime or, if the market value cannot reasonably be ascertained, the cost of the replacement of the property within a reasonable time after the crime;
      3. to provide for the support of any persons for whose support the defendant is legally responsible;
      4. to perform community work in accordance with AS 12.55.055 ;
      5. to participate in or comply with the treatment plan of an inpatient or outpatient rehabilitation program specified by either the court or the defendant’s probation officer that is related to the defendant’s offense or to the defendant’s rehabilitation;
      6. to satisfy the screening, evaluation, referral, and program requirements of an agency authorized by the court to make referrals for rehabilitative treatment or to provide rehabilitative treatment;
      7. to comply with a program established under AS 47.38.020 ; and
      8. to comply with the sanctions imposed by the defendant’s probation officer under AS 33.05.020(g) .
  2. The defendant’s liability for a fine or other punishment imposed as to which probation is granted shall be fully discharged by the fulfillment of the terms and conditions of probation.
  3. A program of inpatient treatment may be required by the authorized agency under (a)(2)(F) of this section only if authorized in the judgment, and may not exceed the maximum term of inpatient treatment specified in the judgment. A person who has been referred for inpatient treatment may make a written request to the sentencing court asking the court to review the referral. The request for review shall be made within seven days after the agency’s referral, and shall specifically set out the grounds on which the request for review is based. The court may order a hearing on the request for review.
  4. If the court orders probation for a defendant convicted of an offense requiring the state to collect a blood sample, oral sample, or both, from the defendant for the deoxyribonucleic acid identification registration system under AS 44.41.035 , the court shall order the defendant, as a condition of probation, to submit to the collection of
    1. the sample or samples when requested by a health care professional acting on behalf of the state to provide the sample or samples; or
    2. an oral sample when requested by a juvenile or adult correctional, probation, or parole officer, or a peace officer.
  5. In addition to other conditions imposed on the defendant, while on probation and as a condition of probation
    1. for a sex offense, as described in AS 12.63.100 , the defendant
      1. shall be required to submit to regular periodic polygraph examinations;
      2. may be required to provide each electronic mail address, instant messaging address, and other Internet communication identifier that the defendant uses to the defendant’s probation officer; the probation officer shall forward those addresses and identifiers to the Alaska state troopers and to the local law enforcement agency;
    2. if the defendant was convicted of a violation of AS 11.41.434 — 11.41.455 , AS 11.61.125 — 11.61.128 , or a similar offense in another jurisdiction, the defendant may be required to refrain from
      1. using or creating an Internet site;
      2. communicating with children under 16 years of age;
      3. possessing or using a computer; or
      4. residing within 500 feet of school grounds; in this subparagraph, “school grounds” has the meaning given in AS 11.71.900 .
  6. While on probation and as a special condition of probation for an offense where the aggravating factor provided in AS 12.55.155(c)(29) has been proven or admitted, the court shall require that the defendant submit to electronic monitoring. Electronic monitoring under this subsection must provide for monitoring of the defendant’s location and movements by Global Positioning System technology. The court shall require a defendant serving a period of probation with electronic monitoring as provided under this subsection to pay all or a portion of the costs of the electronic monitoring, but only if the defendant has sufficient financial resources to pay the costs or a portion of the costs. A defendant subject to electronic monitoring under this subsection is not entitled to a credit for time served in a correctional facility while the defendant is on probation. In this subsection, “correctional facility” has the meaning given in AS 33.30.901 .

History. (§ 8.10 ch 34 SLA 1962; am § 13 ch 166 SLA 1978; am § 3 ch 104 SLA 1984; am § 13 ch 138 SLA 1986; am § 1 ch 26 SLA 1989; am §§ 3, 4 ch 188 SLA 1990; am § 6 ch 95 SLA 1998; am § 3 ch 44 SLA 2000; am § 2 ch 26 SLA 2003; am § 3 ch 14 SLA 2006; am § 1 ch 27 SLA 2007; am § 14 ch 18 SLA 2010; am § 17 ch 20 SLA 2011; am § 24 ch 83 SLA 2014; am § 4 ch 17 SLA 2015; am §§ 82, 83 ch 36 SLA 2016)

Cross references. —

For the applicability provision relating to the 2015 amendment to paragraph (a)(2) of this section, see sec. 5, ch. 17, SLA 2015.

For provision relating to the applicability of the 2016 amendments to this section, see sec. 185(j), ch. 36, SLA 2016, in the 2016 Temporary and Special Acts.

Effect of amendments. —

The 2003 amendment, effective August 26, 2003, in paragraph (a)(2) added the language beginning “, including” to the end of the paragraph.

The 2006 amendment, effective July 1, 2007, added subsection (e).

The 2007 amendment, effective September 23, 2007, added subsection (f).

The 2010 amendment, effective July 1, 2010, rewrote subsection (e).

The 2011 amendment, effective July 1, 2011, in (e), added (2)(D) and made a related change.

The 2014 amendment, effective July 17, 2014, added (a)(7), and made related changes.

The 2015 amendment, effective August 9, 2015, in (a)(2) added “when determining the amount of actual damages or loss under this paragraph, the court shall value property as the market value of the property at the time and place of the crime or, if the market value cannot reasonably be ascertained, the cost of the replacement of the property within a reasonable time after the crime;”.

The 2016 amendment, effective January 1, 2017, in (a), added the (a)(1) and (2) designations, and made related changes, in (a)(2)(B), substituted “subparagraph” for “paragraph”; redesignated (a)(3) — (7) as (a)(2)(C) — (G); added (a)(2)(H); in (c), substituted “(a)(2)(F)” for “(a)(6)” in the first sentence, and made stylistic changes.

Editor’s notes. —

Section 15, ch. 95, SLA 1998 provides that the 1998 enactment of subsection (d) applies “to offenses committed before, on, or after September 10, 1998.”

Section 21(a), ch. 18, SLA 2010, provides that the 2010 reenactment of (e) of this section applies to offenses committed on or after July 1, 2010.

The delayed repeal of (f) of this section by § 3, ch. 27, SLA 2007, which was to take effect December 31, 2012, was repealed by § 4, ch. 65, SLA 2012.

Although the 2014 amendments were to have taken effect July 1, 2014 under Sec. 42, ch. 83, SLA 2014, the Governor did not sign the bill until July 16, 2014, and so the actual effective date of the 2014 amendments was July 17, 2014 under AS 01.10.070(d) .

Under sec. 36(a), ch. 83, SLA 2014, subsection (a) as amended by sec. 24, ch. 83, SLA 2014, applies to offenses occurring on or after July 17, 2014.

Legislative history reports. —

For governor’s transmittal letter for ch. 18, SLA 2010 (Senate Bill 222), relating to the repeal and reenactment of (e) of this section, see 2010 Senate Journal 1237 — 1239.

Notes to Decisions

Analysis

I.General Consideration

Construction. —

Neither the plain language nor the legislative history of this section suggest room for a legal presumption limiting a sentencing court’s power to restrict discretionary parole eligibility beyond one-third of the prisoner’s actual term, nor does it suggest sentencing courts are to limit this power out of deference to the parole board. State v. Korkow, 314 P.3d 560 (Alaska 2013).

Making flawed probation condition more onerous. —

Where the sentencing court failed to specify, pursuant to subsection (c), the maximum length of time that the defendant was to spend in residential treatment for her alcohol problem as a condition of her probation, the judge’s subsequent order setting the maximum length of residential treatment at 90 days constituted an increase in the defendant’s sentence violating the constitutional prohibition against double jeopardy. An illegal sentence should not be increased unless absolutely necessary to correct the illegality. In this case the illegality should have been corrected by striking the flawed portion of the probation order, i.e., the requirement of residential treatment. Christensen v. State, 844 P.2d 557 (Alaska Ct. App. 1993).

A court may modify probation to the defendant’s detriment without violating the double jeopardy clause when the applicable statutes authorize the modification, as they do when the court finds that the defendant has violated probation; but, once sentence is meaningfully imposed, a sentencing court does not have the power to alter probation to the defendant’s detriment simply because the court comes to believe that a longer probationary term or more onerous conditions of probation would be better. Reyes v. State, 978 P.2d 635 (Alaska Ct. App. 1999).

Parallels former 18 U.S.C. § 3651. —

Alaska’s probation statutes, this section, AS 12.55.080 , and AS 12.55.090 closely parallel the former federal statute, 18 U.S.C. § 3651, which empowered federal district courts to grant probation. Brown v. State, 559 P.2d 107 (Alaska 1977); Gonzales v. State, 608 P.2d 23 (Alaska 1980).

Construction of section. —

This section must be construed in accordance with the principle of statutory construction expressio unius est exclusio alterius, specifically that in a statutory scheme the exclusion of absent remedies is to be inferred from the inclusion of specified remedies. Sprague v. State, 590 P.2d 410 (Alaska 1979).

Punitive damages payable to victim simply are not authorized by this section. Sprague v. State, 590 P.2d 410 (Alaska 1979).

Domestic violence programming. —

Trial court erred in overruling defendant's objection to the domestic violence programming requirement for probation because, while defendant's crime fit the broad statutory definition of "domestic violence," defendant had no record of violence against a domestic partner, he had a separate probation condition that required him to complete sex offender treatment, and there was nothing in his record to show that he was in need of separate mental health treatment, let alone residential mental health treatment Hernandez v. State, — P.3d — (Alaska Ct. App. Apr. 7, 2021) (memorandum decision).

Restriction from certain area as a condition of probation was held reasonable. See Oyoghok v. Municipality of Anchorage, 641 P.2d 1267 (Alaska Ct. App. 1982).

Community work service. —

Upon conviction of defendant for negligent discharge of oil under AS 46.03.740 , the trial court had authority to impose both a fine and imprisonment and could impose 1000 hours of community work service in lieu thereof. Hazelwood v. State, 962 P.2d 196 (Alaska Ct. App. 1998).

Inpatient treatment.. —

Where defendant shot and killed his two-year-old son at the home of his ex-girlfriend, the probation condition providing for inpatient and/or residential treatment up to 2 years did not constitute an abuse of discretion as defendant had repeatedly engaged in extreme and violent conduct while intoxicated; he and his co-defendant terrorized the community while he was intoxicated; in the month prior to the events in the current case, he spoke about wanting to kill his ex-girlfriend and her new boyfriend; he acknowledged that he was very drunk when he shot his son in the head; and, after the events in the current case, defendant's father told the troopers that defendant woke him, attacked him with a nail, and confessed to killing his son. Moses v. Alaska, — P.3d — (Alaska Ct. App. July 28, 2021) (memorandum decision).

Sex offender treatment. —

Under subsection (a)(5), sentencing court had authority to order probationer to participate in sex offender treatment with a therapist that was not on the department of corrections’ approved list of therapy providers over the department’s objection. State Dep't of Corr. v. Lundy, 188 P.3d 692 (Alaska Ct. App. 2008).

Condition of probation that required defendant to actively participate in Alaska Department of Corrections-approved treatment as directed by the probation office was not illegal on the basis that it failed to set a maximum term for required residential treatment because the condition did not authorize residential treatment. Rosario v. State, — P.3d — (Alaska Ct. App. Feb. 3, 2021) (memorandum decision).

Condition of probation that required defendant to actively participate in Alaska Department of Corrections-approved treatment as directed by the probation office was not obviously vague or overbroad and was, therefore, not plainly erroneous because defendant's probation officer could not require defendant to participate in a treatment program unless the program was related to his offense or to his rehabilitation. Rosario v. State, — P.3d — (Alaska Ct. App. Feb. 3, 2021) (memorandum decision).

Authority to impose term of imprisonment as condition of probation prior to enactment of AS 12.55.086 . —

See Boyne v. State, 586 P.2d 1250 (Alaska 1978).

Imposition of jail time as condition of probation. —

Imposition of jail time as a special condition of probation is not authorized under Alaska statutes governing probation generally. Alaska law does, however, permit the imposition of jail time as a special condition of probation when the imposition of sentence is suspended under AS 12.55.085 , as provided by AS 12.55.086(a) . Whittlesey v. State, 626 P.2d 1066 (Alaska 1980).

Adding new conditions. —

Superior court erred in revoking defendant's probation and adding new conditions of probation because the superior court never reached the factual merits of the defense attorney's contention that defendant was terminated from a sex offender treatment program without good reason—the director of the program discharged defendant from the program for reasons that were either demonstrably wrong or, at best, were supported only by vague and unspecific assertions that defendant had failed to "engage"—failed to offer any plausible basis for rejecting defendant's request that he be allowed to socialize with his romantic partner and the mother of his children, and illegally increased defendant's sentence by ordering him to enroll in domestic violence treatment even though his case apparently presented no issue of violence. Silas v. State, 425 P.3d 197 (Alaska Ct. App. 2018).

Amendment of judgment to seize blood and oral DNA sample from defendant. —

Trial court neglected to impose as a condition of probation at defendant’s sentencing hearing that a blood and oral sample be seized from defendant’s body for DNA purposes; however, under subsection (d) of this section, defendant’s sentence was illegal without that condition and the trial court was authorized under Alaska Rule of Criminal Procedure 35(a) to amend the judgment to include that mandated condition of probation. Marunich v. State, 151 P.3d 510 (Alaska Ct. App. 2006).

Prohibition of internet use held proper. —

After defendant was convicted of unlawful exploitation of a minor, the trial court did not err in imposing a probation condition that prohibited him from opening an internet account or accessing the internet from another person’s account without the written permission of his probation officer; defendant had created an online profile of a 16-year-old boy and contacted the victim and her friends prior to the offense. Diorec v. State, 295 P.3d 409 (Alaska Ct. App. 2013).

Enforcement of court orders requiring payment of fines or restitution. —

AS 12.55.051 (a) prescribes a specific method for dealing with enforcement of court orders requiring the payment of fines or restitution, regardless of whether such orders are directly imposed as part of the original sentence, under AS 12.55.045 , or indirectly imposed as a condition of probation, under this section; AS 12.55.051 expressly provides that imprisonment for failure to pay court-ordered restitution is permissible only if the failure to pay was intentional or the result of bad faith. Lominac v. Municipality of Anchorage, 658 P.2d 792 (Alaska Ct. App. 1983).

Applied in

Schwing v. State, 633 P.2d 311 (Alaska Ct. App. 1981).

Quoted in

Hood v. Smedley, 498 P.2d 120 (Alaska 1972); Thibedeau v. State, 617 P.2d 759 (Alaska 1980); Haynes v. State, 15 P.3d 1088 (Alaska Ct. App. 2001).

Cited in

Leuch v. State, 633 P.2d 1006 (Alaska 1981); Golden Valley Elec. Ass'n v. Revel, 719 P.2d 263 (Alaska 1986); White v. State, 773 P.2d 211 (Alaska Ct. App. 1989); Burt v. State, 823 P.2d 14 (Alaska Ct. App. 1991); Jackson v. State, 127 P.3d 835 (Alaska Ct. App. 2006); State v. Falealo Manuele Pulusila, 467 P.3d 211 (Alaska 2020); Marrera v. State, — P.3d — (Alaska Ct. App. May 22, 2019); Grubb v. State, — P.3d — (Alaska Ct. App. Feb. 25, 2022).

Stated in

State v. Meyers, 479 P.3d 840 (Alaska Ct. App. 2020); Galindo v. State, 481 P.3d 686 (Alaska Ct. App. 2021).

II.Fines

“Fine” does not refer exclusively to punishment. —

The term “fine,” as employed in paragraph (a)(1) of this section, cannot be read as having exclusive reference to punishment as that term is used in AS 12.55.090(a) . Brown v. State, 559 P.2d 107 (Alaska 1977).

Authority to impose fine. —

Sentencing court may impose a fine as a condition of probation upon a defendant’s conviction of a crime which is not directly punishable by a fine. Brown v. State, 559 P.2d 107 (Alaska 1977).

Given the specific authorization emanating from paragraph (a)(1) of this section which permits the trial court to impose a fine as a condition of probation, together with the need for flexibility on the part of the sentencing court in fashioning appropriate conditions of probation, where probation is warranted, a rational harmonization and construction of AS 12.55.090(a) and paragraph (a)(1) of this section leads to the conclusion that a sentencing court is empowered to make payment of a fine a condition of probation even in the circumstance where the crime is only punishable by imprisonment, or by imprisonment or fine. Brown v. State, 559 P.2d 107 (Alaska 1977).

The distinction is inherent in Alaska’s statutes that the power to impose a fine as a condition of probation and the power to impose a fine as punishment in addition to probation are separate powers, controlled respectively by paragraph (a)(1) of this section and AS 12.55.090(a) . Brown v. State, 559 P.2d 107 (Alaska 1977).

Since this section specifically authorizes fines as conditions of probation, and since the defendant’s own counsel and the assistant district attorney acknowledged at a sentencing hearing their understanding that a payment constituted a fine, these facts, coupled with the fact that the supreme court has treated such payments as “fines,” regardless of the particular language used by the sentencing court, led to the conclusion that the defendant’s payment constituted a fine. Boyd v. Department of Commerce & Econ. Dev., Div. of Occupational Licensing, 977 P.2d 113 (Alaska 1999).

License renewals. —

Where an assistant district attorney erroneously informed the defendant that a payment was not a fine under AS 08.54.605 , referring to AS 12.55.035 rather than this section, his statement was not technically inconsistent with the licensing commission’s rejection of the defendant’s license renewal application. Boyd v. Department of Commerce & Econ. Dev., Div. of Occupational Licensing, 977 P.2d 113 (Alaska 1999).

Limitation on authority. —

The existence of an express legislative limitation on the permissible amount of a fine effectively conflicts with the apparent open ended authority provided for under paragraph (a)(1), and in keeping with accepted principles of statutory construction, this conflict must be resolved in favor of the more specific of the two statutes. Stone v. State, 690 P.2d 22 (Alaska Ct. App. 1984).

The $5,000 maximum fine provided for in former AS 17.10.010 constituted an implied limitation on the court’s authority to impose a fine as a condition of probation under paragraph (a)(1). Stone v. State, 690 P.2d 22 (Alaska Ct. App. 1984).

III.Restitution

Restitution order violative of double jeopardy. —

A trial judge who imposed restitution as a special condition of probation under this section and not as an independent portion of the defendant’s sentence under AS 12.55.045 , could not terminate the defendant’s probation and order her to serve the unserved time remaining on her original sentence while at the same time enforcing the restitution order without violating the constitutional protection against double jeopardy. If the judge wished to order the defendant to pay restitution independent of her conditions of probation, this had to be done at the time she originally imposed sentence. Kelly v. State, 842 P.2d 612 (Alaska Ct. App. 1992).

Where restitution was not imposed as a condition of defendant’s probation at original sentencing, Alaska law does not authorize the judge to go back and add this condition to probation at subsequent resentencing following vacation of original sentence. Reyes v. State, 978 P.2d 635 (Alaska Ct. App. 1999).

Restitution for concealing stolen property. —

Court was not authorized to require restitution for items beyond those as to which defendants were actually convicted for concealing under AS 11.46.190 . Nelson v. State, 628 P.2d 884 (Alaska 1981).

Restitution imposed for separate dismissed charge. —

It is permissible in sentencing a defendant on one charge to impose restitution for a separate dismissed charge if there are specific findings that (1) the amount of loss suffered by an identifiable aggrieved party is certain; (2) the defendant admits that, and there is no factual question as to whether, the defendant caused or was responsible for the aggrieved party’s loss; and (3) the defendant consents, freely and voluntarily, to make full restitution. Kimbrell v. State, 666 P.2d 454 (Alaska Ct. App. 1983).

Fact that burglary victim had received insurance payment did not mean that victim thus suffered no “loss” justifying restitution order under paragraph (a)(2) of this section, since collateral source rule prevents defendant from benefiting from victim’s insurance. Dorris v. State, 656 P.2d 578 (Alaska Ct. App. 1982).

Payment of interest. —

Since the purpose of the restitution statute is to make the victim whole, trial court did not err in requiring defendant to pay interest in a reasonable amount of the amount awarded. Dorris v. State, 656 P.2d 578 (Alaska Ct. App. 1982).

Restitution based on actual loss to victim. —

Where a defendant is charged with a lesser offense but the evidence establishes that he committed a greater offense, a restitutionary award based on the actual loss to the victim is appropriate, even though the loss exceeds the maximum property-value figure which defines the lesser offense. Fee v. State, 656 P.2d 1202 (Alaska Ct. App. 1982).

Injury cured by volunteer efforts. —

The legislature did not provide a sentencing court with the power to order restitution to a victim who was injured but who did not sustain actual damages or loss because the injury was cured by volunteer efforts. (But see 2003 amendment of subsection (a)(2).)Demers v. State, 42 P.3d 1 (Alaska Ct. App. 2002).

Restitution for jewelry taken. —

A condition of probation imposed in connection with defendant’s conviction for petty larceny, requiring her to pay $200.00 restitution to the owners of jewelry that she had taken, was not improper. Hagberg v. State, 606 P.2d 385 (Alaska 1980).

Superior court could properly require minor to pay restitution for jewelry which was taken during a burglary which he admitted and for which the court adjudicated him a delinquent, where he did not contest the fact that his participation in the burglary made him legally accountable as an accomplice of the theft of the jewelry. J.M. v. State, 786 P.2d 923 (Alaska Ct. App. 1990).

Money wrongfully obtained from state by defendant in course of drug transactions represented “actual damages or loss” to the state and restitution was allowed. Gonzales v. State, 608 P.2d 23 (Alaska 1980).

Aggrieved party. —

Since it was uncontested that recipient of restitution was driver of car with which defendant collided, defendant’s conviction of the manslaughter of recipient’s passenger necessarily encompassed, both as a matter of fact and of law, the injuries directly caused to recipient and to his party, and recipient was, therefore, an aggrieved party under paragraph (a)(2) of this section. Pena v. State, 664 P.2d 169 (Alaska Ct. App. 1983), rev'd, 684 P.2d 864 (Alaska 1984).

Conversion of juvenile restitution order. —

Superior courts do not have the authority to convert the unpaid restitution of a juvenile offender into a civil judgment. R.I. v. State, 894 P.2d 683 (Alaska Ct. App. 1995).

Collateral references. —

Propriety of conditioning probation or suspended sentence on defendant’s refraining from political activity, protest or the like. 45 ALR3d 1022.

Ability to pay as necessary condition in conditioning probation or suspended sentence upon reparation or restitution. 73 ALR3d 1240.

Propriety of condition of probation which requires defendant convicted of crime of violence to make reparation to injured victim. 79 ALR3d 976.

Propriety of condition of probation upon defendant’s posting of bond guaranteeing compliance with terms of probation. 79 ALR3d 1068.

Validity of requirement that, as a condition of probation, defendant submit to warrantless searches. 79 ALR3d 1083.

Criminal liability for wrongfully obtaining unemployment benefits. 80 ALR3d 1280.

Propriety of conditioning probation on defendant’s remaining childless or having no additional children during probationary period. 94 ALR3d 1218.

Propriety of conditioning probation on defendant’s not associating with particular person. 99 ALR3d 967.

Criminal liability under state laws in connection with application for, or receipt of, public welfare payments. 22 ALR4th 534.

Propriety of conditioning probation on defendant’s not entering specified geographical area. 28 ALR4th 725.

Persons or entities entitled to restitution as “victim” under state criminal restitution statute. 92 ALR5th 35.

Validity of requirement that, as condition of probation, defendant submit to warrantless searches. 99 ALR5th 557.

Sec. 12.55.101. Additional conditions of probation for domestic violence crimes.

  1. Before granting probation to a person convicted of a crime involving domestic violence, the court shall consider the safety and protection of the victim and any member of the victim’s family. If a person convicted of a crime involving domestic violence is placed on probation, the court may order the conditions authorized in AS 12.55.100 and AS 18.66.100(c)(1) — (7) and (11), and may
    1. require the defendant to participate in and complete to the satisfaction of the court one or more programs for the rehabilitation of perpetrators of domestic violence that meet the standards set by, and that are approved by, the Department of Corrections under AS 44.28.020(b) , if the program is available in the community where the defendant resides; the court may not order a defendant to participate in or complete a program for the rehabilitation of perpetrators of domestic violence that does not meet the standards set, and that is not approved, by the Department of Corrections under AS 44.28.020(b) ;
    2. require the defendant to refrain from the consumption of alcohol; and
    3. impose any other condition necessary to protect the victim and any members of the victim’s family, or to rehabilitate the defendant.
  2. If the defendant is not in custody, the defendant shall pay the costs of an evaluation or a program of rehabilitation ordered under (a)(1) — (3) of this section. If the defendant is in custody, the responsibility for costs shall be as provided in AS 33.30.028 .

History. (§ 13 ch 64 SLA 1996; am § 7 ch 86 SLA 1998)

Notes to Decisions

Victim is without standing regarding selection of rehabilitation program. —

Although the crime victim claimed that her husband’s sentence for assaulting her was illegal because he was ordered to participate in a batterer’s intervention program that was not approved by the Alaska Department of Corrections as required by this section and AS 44.28.020 , neither Alaska Const. art. I, § 24 nor the Victims’ Rights Act, AS 12.61.010 , gives crime victims the right to intervene in the litigation of a criminal case. Cooper v. Dist. Court, 133 P.3d 692 (Alaska Ct. App. 2006).

Cited in

Jackson v. State, 127 P.3d 835 (Alaska Ct. App. 2006); Weinberger v. Weinmeister, 268 P.3d 305 (Alaska 2012).

Sec. 12.55.102. Alcohol-related offenses.

  1. The court may order as a condition of probation or generally as part of a sentence that a defendant convicted of an offense involving the use, consumption, or possession of an alcoholic beverage may not operate a motor vehicle during the period of probation unless the vehicle is equipped with a properly functioning, monitored, and maintained ignition interlock device. A condition of probation or sentence imposed under this subsection takes effect after any period of license revocation imposed under AS 28.15.165(d) or 28.15.181(c) .
  2. The court, in imposing probation or a condition of a sentence under (a) of this section, may allow the defendant limited privileges to drive a motor vehicle without an ignition interlock device if the court determines that the defendant is required as a condition of employment to drive a motor vehicle owned or leased by the defendant’s employer and that the defendant’s driving will not create substantial danger. If the court imposes probation described by this subsection, the court shall require the defendant to notify the defendant’s employer of the probation, and shall require that the defendant, while driving the employer’s vehicle, carry a letter from the employer authorizing the defendant to drive that vehicle.
  3. A court imposing a condition of probation under this section shall require the surrender of the driver’s license and shall issue to the defendant a certificate valid for the duration of the probation or a copy of the defendant’s judgment of conviction. The defendant shall pay all costs associated with fulfilling the condition of probation, including installation, repair, and monitoring of an ignition interlock device.
  4. The court may include the cost of the ignition interlock device as a part of the fine required to be imposed against the defendant under AS 28.35.030(b) or (n) or 28.35.032(g) or (p).
  5. In this section,
    1. “ignition interlock device” means equipment designed to prevent a motor vehicle from being operated by a person who has consumed an alcoholic beverage, and that has been certified by the commissioner of corrections under AS 33.05.020 .
    2. [Repealed, § 12 ch 85 SLA 2010.]

History. (§ 3 ch 57 SLA 1989; am § 2 ch 80 SLA 1995; am § 1 ch 126 SLA 2004; am § 12 ch 85 SLA 2010)

Revisor’s notes. —

In 1995, in subsection (d), “28.35.032(g) or (p)” was substituted for “28.35.032(g) or (q)” to reflect the 1995 relettering of AS 28.35.032 (q). In 2006, in (e)(2) of this section, “AS 28.90.990 ” was substituted for “AS 28.40.100 ” to reflect the 2006 renumbering of AS 28.40.100 .

Effect of amendments. —

The 2004 amendment, effective January 1, 2005, in subsection (a), inserted “or generally as part of a sentence” in the first sentence and “or sentence” in the second sentence; in subsection (b), inserted “or a condition of a sentence” in the first sentence; and, in subsection (e), inserted the paragraph (1) designation and added paragraph (2).

The 2010 amendment, effective September 14, 2010, repealed (e)(2).

Editor’s notes. —

Section 13, ch. 80, SLA 1995 provides that the amendment to subsection (d) made by § 2, ch. 80, SLA 1995 applies “to offenses that are committed on or after September 13, 1995, except that references to previous convictions include convictions occurring before, on, or after September 13, 1995.”

Sec. 12.55.105. Probation fee. [Repealed, § 4 ch 26 SLA 1989.]

Sec. 12.55.110. Notice and grounds for revocation of suspension.

  1. When sentence has been suspended, it may not be revoked except for good cause shown.  In all proceedings for the revocation of a suspended sentence, the defendant is entitled to reasonable notice and the right to be represented by counsel.
  2. Good cause justifying the revocation of a suspended sentence is established if the defendant has violated an order of the court to participate in or comply with the treatment plan of a rehabilitation program under AS 12.55.015(a)(10) .
  3. [Repealed, § 138 ch 4 FSSLA 2019.]
  4. [Repealed, § 138 ch 4 FSSLA 2019.]
  5. [Repealed, § 138 ch 4 FSSLA 2019.]
  6. [Repealed, § 138 ch 4 FSSLA 2019.]
  7. [Repealed, § 138 ch 4 FSSLA 2019.]
  8. [Repealed, § 138 ch 4 FSSLA 2019.]

History. (§ 8.11 ch 34 SLA 1962; am § 5 ch 188 SLA 1990; am § 84 ch 36 SLA 2016; am § 138 ch 4 FSSLA 2019)

Cross references. —

Avoidance of Ignition Interlock Device — AS 11.76.140

Original Code Provision — AS 12.55.105 .

Cross references. —

For provision relating to the applicability of the 2016 amendments to this section, see sec. 185(k)(4), ch. 36, SLA 2016, in the 2016 Temporary and Special Acts.

Effect of amendments. —

The 2016 amendment, effective January 1, 2017, added (c) - (h).

The 2019 amendment, effective July 1, 2019, repealed (c) — (h).

Notes to Decisions

Constitutionality. —

This section would be repugnant to the equal protection clause of both the federal and Alaska constitutions if it were construed as embodying an intended dichotomy between indigent probationers and those who could afford counsel. Alex v. State, 484 P.2d 677 (Alaska 1971).

Section applies to probation revocations. —

In light of the provisions of AS 12.55.080 , it is apparent that this section is applicable to probation revocations. Hoffman v. State, 404 P.2d 644 (Alaska 1965).

This section governs revocation of probation proceedings. Martin v. State, 517 P.2d 1389 (Alaska 1974).

The supreme court has explicitly applied the “good cause” requirement of this section to probation revocations. Alexander v. State, 578 P.2d 591 (Alaska 1978).

And it grants indigent probationer right to court-appointed counsel in a probation revocation proceeding. Reeves v. State, 411 P.2d 212 (Alaska 1966).

An indigent has a right to be represented by counsel at a probation revocation proceeding. Alex v. State, 484 P.2d 677 (Alaska 1971).

Probation revocation is not technically criminal appeal. Alex v. State, 484 P.2d 677 (Alaska 1971).

Parole revocation hearing is not criminal proceeding. Trumbly v. State, 515 P.2d 707 (Alaska 1973); Holton v. State, 602 P.2d 1228 (Alaska 1979).

Focus of hearing should be to determine whether the probationer violated one or more of the conditions of his probation and an appropriate disposition, in the event it is determined that petitioner violated his probation. Trumbly v. State, 515 P.2d 707 (Alaska 1973); Holton v. State, 602 P.2d 1228 (Alaska 1979).

Authority. —

When the court revokes a defendant's probation for a fourth or subsequent technical violation, AS 12.55.110(d) does not limit the sentencing court's authority even when the State's petition to revoke probation contains an additional allegation of absconding. Thus, the superior court erred in ruling that its sentencing authority was limited to the 30 days specified in AS 12.55.110(d) as the upper sentencing limit for an act of absconding. State v. Simile, 440 P.3d 306 (Alaska Ct. App. 2019).

When formal notice unnecessary. —

If the petitioner were to be charged only with a violation of his probation or the commission of an act which would be a violation of the conditions under which his sentence was suspended, he should then be given notice of a hearing to be held to determine the truth or falsity of the alleged violation of the conditions of his suspended sentence and be given an opportunity to procure counsel to represent him. However, where the defendant pleads guilty to an offense which, of itself, violates the conditions under which his sentence was suspended, and he was given an opportunity to have counsel, it would be absurd to hold that the petitioner was entitled to have a formal notice served upon him in connection therewith. Hulse v. Potter, 17 Alaska 353 (D. Alaska 1957).

Hearing on revocation may be summary. —

Summary hearings upon the revocation of a suspended sentence have been upheld. What is required in such hearings is the exercise of conscientious judgment, and not arbitrary action; that the discretion of the court has not been abused; and that the facts revealed at the hearing satisfy the court that the modification or revocation of the sentence, or a part thereof, will serve the ends of justice. United States v. Feller, 156 F. Supp. 107, 17 Alaska 417 (D. Alaska 1957).

Conformity to reasonable and lawful conditions of probation is prerequisite to continuation of probationary status. State v. Devoe, 560 P.2d 12 (Alaska 1977).

When revocation should follow violation of probation condition. —

Revocation should follow violation of a condition of probation when that violation indicates that the corrective aims of probation cannot be achieved. Trumbly v. State, 515 P.2d 707 (Alaska 1973); Holton v. State, 602 P.2d 1228 (Alaska 1979).

The requirement that probation revocation follow after a showing of “good cause” requires the trial judge to find that continuation of probationary status would be at odds with the need to protect society and society’s interest in the probationer’s rehabilitation. Trumbly v. State, 515 P.2d 707 (Alaska 1973); Alexander v. State, 578 P.2d 591 (Alaska 1978); Holton v. State, 602 P.2d 1228 (Alaska 1979).

In order to revoke probation, the state must prove a violation of a specific condition of probation. Holton v. State, 602 P.2d 1228 (Alaska 1979).

Probation can be revoked only for good cause. State v. Devoe, 560 P.2d 12 (Alaska 1977).

What is “good cause”. —

“Good cause” necessary for revocation of probation may be simply violation of the terms and conditions of probation. Andrews v. State, 552 P.2d 150 (Alaska 1976).

Revocation of defendant's probation for good cause was appropriate because he failed to attend a polygraph appointment with a probation officer. Defendant had notice of the appointment and the obligation to attend the appointment, he had a pattern of noncompliance with and resistance to the rehabilitative aspects of probation, and his failure to commit to his responsibilities as a sex offender on probation and failure to actively engage in the rehabilitative process made defendant dangerous to the community. Charles v. State, 436 P.3d 1084 (Alaska Ct. App. 2018).

Where defendant was serving probation for sexual abuse of a minor, the trial court found good cause to revoke his probation because he was discharged from the sex offender treatment program and his treatment provider testified that defendant demonstrated a lack of accountability by denying that the incident had occurred. Defendant’s probation officer also testified about his various probation violations, including multiple incidents of phone sex and possession of pornographic materials, which were specifically prohibited by his conditions of supervision. Lafavour v. State, — P.3d — (Alaska Ct. App. Oct. 13, 2021).

Failure to follow procedure. —

Court of Appeals of the State of Alaska did not apply the proper two-stage probation revocation hearing process; the court should have made a finding of fact regarding whether the probationer violated a condition of probation, and, if the probationer did violate a condition of probation, the court then should have determined the proper disposition given the violation. The probationer's mental state at the time of the violation as well as at the time of the revocation hearing and a good cause determination were part of the second stage. State v. Falealo Manuele Pulusila, 467 P.3d 211 (Alaska 2020).

Conviction, with attendant constitutional safeguards, constitutes sufficient “good cause” to find that conditions of probation have been violated and that probation should be revoked. Alexander v. State, 578 P.2d 591 (Alaska 1978).

Forgery incident was sufficient “good cause” for the court to revoke the earlier suspended sentence for burglary not in a dwelling. Wozniak v. State, 584 P.2d 1147 (Alaska 1978).

Where condition of defendant’s probation was that he obey municipal, state and federal law, and defendant’s interaction with a minor led to a misdemeanor complaint against him for contributing to the delinquency of a minor, and the evidence showed that defendant did tend to cause and contribute and encourage the delinquency of the complaining witness, defendant violated a condition of his probation and could have his probation revoked. Holton v. State, 602 P.2d 1228 (Alaska 1979).

Where as condition of his probation defendant was ordered “not to consume any intoxicating beverages,” one episode of drunkenness was sufficient to satisfy the “good cause” requirement of this section. Nielsen v. State, 627 P.2d 1077 (Alaska 1981).

Reversed conviction not basis for revocation. —

When a second conviction which served as the sole basis for revocation of probation was reversed, the revocation of probation must also be reversed. Oksoktaruk v. State, 619 P.2d 480 (Alaska 1980).

Where defendant’s probation on a prior armed robbery offense was revoked based solely upon the record of his subsequent robbery conviction when his subsequent conviction is reversed then his probation revocation must also be reversed. McBeth v. State, 652 P.2d 120 (Alaska Ct. App. 1982).

Nolo contendere plea. —

In a proceeding for revocation of probation, a nolo contendere plea to a criminal charge is evidence only of the commission of a crime which may be controverted by evidence of innocence for the trial court to consider and enter appropriate findings. State v. Ruby, 650 P.2d 412 (Alaska Ct. App. 1982).

Right to counsel. —

Lower court did not advise defendant of the benefits of counsel and the risks of self-representation, and further failed to make any determination that defendant was competent to represent himself, plus the lower court placed the burden on him to affirmatively assert the right to counsel; although defendant was earlier allowed to represent himself in an appeal of his underlying assault conviction, his waiver of his right in one case did not relieve the court of the duty to conduct the inquiry in a different case, and thus the revocation was reversed. Nicoli v. State, — P.3d — (Alaska Ct. App. Feb. 25, 2015) (memorandum decision).

Burden of proof. —

The state has the burden of proving the elements in a decision to revoke probation by a preponderance of evidence. Holton v. State, 602 P.2d 1228 (Alaska 1979).

Discretion of trial judge. —

The trial judge who imposed the sentence has certainly broad discretionary powers to revoke probation. Trumbly v. State, 515 P.2d 707 (Alaska 1973).

Denial of motion for continuance of hearing. —

The trial court did not abuse its discretion in denying defendant’s motion for a continuance of his probation revocation hearing where the purpose of the request was to allow defendant’s attorney additional time to prepare for the revocation hearing by obtaining an additional psychiatric evaluation of his client. Nielsen v. State, 627 P.2d 1077 (Alaska 1981).

Probationer cannot claim bail under probation statutes, this section and AS 12.55.080 , since they fail to mention bail. Martin v. State, 517 P.2d 1389 (Alaska 1974).

Revocation improper. —

District court erred by finding that petitioner “contacted” the victim in violation of a condition of his release where petitioner’s act of negotiating a check the victim wrote him three years earlier did not constitute “contact” in violation of condition of release; while the victim mentioned the check during her victim impact statement, her awareness of the check’s existence did not transform petitioner’s act into communication directed at her. Pastos v. State, 194 P.3d 387 (Alaska 2008).

Superior court erred in ruling that defendant's conditions of probation made him strictly liable for the presence of the explosive device, the ammunition, and the methamphetmine pipe in the truck that he borrowed because a reasonable person in defendant's circumstances would not interpret his probation conditions as authorizing the superior court to revoke his probation and send him to prison if he borrowed or rented a car and, unbeknownst to him, someone else had left a weapon or drugs in the car; and defendant's conditions of probation prohibited him from knowingly possessing the listed prohibited items; thus, because there was no proof that he knew that the items were in the truck, the superior court had no basis to revoke his probation. Pulusila v. State, 425 P.3d 175 (Alaska Ct. App. 2018), rev'd, 467 P.3d 211 (Alaska 2020).

Sentence imposed. —

Defendant's sentence was not excessive when the superior court revoked defendant's probation and imposed six years of the suspended sentence following defendant's failure to report to his probation officer and failure to register as a sex offender because of the seriousness of defendant's original second-degree murder offense, defendant's repeated failures to comply with the conditions of defendant's probation—including defendant's failure to participate in treatment and the continuing danger defendant posed to the public as a result. Jimmy v. State, — P.3d — (Alaska Ct. App. May 15, 2019).

Quoted in

Nichols v. State, 425 P.2d 247 (Alaska 1967); Sprague v. State, 590 P.2d 410 (Alaska 1979); Benboe v. State, 738 P.2d 356 (Alaska Ct. App. 1987).

Collateral references. —

Insanity as defense to revocation of probation. 56 ALR4th 1178.

Sec. 12.55.115. Fixing eligibility for discretionary parole at sentencing.

The court may, as part of a sentence of imprisonment, further restrict the eligibility of a prisoner for discretionary parole for a term greater than that required under AS 33.16.090 and 33.16.100 .

History. (§ 1 ch 88 SLA 1985; am § 85 ch 36 SLA 2016; am § 31 ch 1 4SSLA 2017)

Cross references. —

Eligibility for discretionary parole — AS 33.16.090

Granting of discretionary parole — AS 33.16.100

Cross references. —

For provision relating to the applicability of the 2016 amendments to this section, see sec. 185(d)(3), ch. 36, SLA 2016, in the 2016 Temporary and Special Acts.

Administrative Code. —

For eligibility for discretionary parole, see 22 AAC 20, art. 1.

Effect of amendments. —

The 2016 amendment, effective January 1, 2017, inserted “or administrative” preceding “parole” and substituted “AS 33.16.089 , 33.16.090 ,” for “AS 33.16.090 ”.

The 2017 amendment, effective November 27, 2017, deleted “or administrative” following “discretionary” and substituted “AS 33.16.090 ” for “AS 33.16.089 , 33.16.090 ”.

Notes to Decisions

Presumption that questions of discretionary release are better left to parole board is rebuttable. —

Because the legislature has affirmatively given sentencing judges the power to restrict or deny parole eligibility, the presumption that the parole eligibility of defendants sentenced to lengthy prison terms should normally be evaluated after the defendant has established an institutional history and not at sentencing must remain rebuttable. Accordingly, the trial court did not err in restricting the defendant’s parole through the entire 99-year term he was given for commiting first degree murder where the record established that he had minimal potential for rehabilitation. Colgan v. State, 838 P.2d 276 (Alaska Ct. App. 1992).

Twenty-year parole restriction, applied to entire period of twenty-year sentence, was clearly mistaken, where such an implied distrust of the parole board’s ability to do its job was unwarranted, in the absence of express findings, supported by specific evidence, establishing a need to restrict parole eligibility. Newell v. State, 771 P.2d 873 (Alaska Ct. App. 1989).

Imposition of a 40-year restriction improper. —

Imposition of a 40-year restriction on defendant’s eligibility for discretionary parole after he was convicted of extreme-indifference second-degree murder was improper under this section because he would have normally been eligible for discretionary parole after serving one-third of his 70-year term, and superior court did not explain why the normal parole restriction was inadequate to protect the public or ensure defendant’s rehabilitation. Hinson v. State, 199 P.3d 1166 (Alaska Ct. App. 2008).

Fifty year parole restriction improper. —

Trial court’s order that defendant’s eligibility for discretionary parole be restricted until he had served at least 50 years of his sentence was reversed as excessive because defendant was ineligible for parole for 33 years, when he would be 67 years old. The trial court’s decision to additionally restrict defendant’s eligibility for discretionary parole was based on predictions that defendant would be dangerous to the public and might constitute a danger to his then middle-aged children and their children which was a speculative possibility at best. Korkow v. State, 258 P.3d 932 (Alaska Ct. App. 2011), rev'd, 314 P.3d 560 (Alaska 2013).

Twenty year parole restriction upheld. —

Superior court’s restriction on defendant’s parole eligibility was not clearly mistaken because his plea agreement left the terms of the sentence to the court, he did not seek to rescind the agreement on the basis that the restriction was outside its scope, and the superior court considered the statutory factors as they related to defendant’s dangerousness, community condemnation, general and specific deterrence, and that, without the restriction, the sentence would be too lenient. Dixiano v. State, — P.3d — (Alaska Ct. App. Feb. 5, 2014) (memorandum decision).

Judge must set forth reasons for restriction with particularity. —

When a sentencing judge restricts parole eligibility, the judge must specifically address the issue of parole restriction, setting forth with particularity his or her reasons for concluding that the parole eligibility prescribed by AS 33.16.090 and AS 33.16.100 is insufficient to protect the public and insure the defendant’s reformation. Stern v. State, 827 P.2d 442 (Alaska Ct. App. 1992).

It was necessary to remand defendant’s case to the trial court so that it could reconsider whether defendant’s eligibility for parole should be restricted. Even though the trial judge made various direct and indirect statements regarding the decision to restrict defendant’s parole eligibility, it was not clear that the statements satisifed requirements of Alaska law. Bates v. State, 258 P.3d 851 (Alaska Ct. App. 2011).

Sentence upheld. —

Denial of parole eligibility for defendant, who received a 99-year sentence after being convicted of murder, was not clearly mistaken, where the record showed him to be a racist, a man full of anger, a man with a severe alcohol problem, and a man with a proclivity for assaulting people with firearms, and showed that he had just been released on felony probation a few days before the murder. Stern v. State, 827 P.2d 442 (Alaska Ct. App. 1992).

Defendant’s history of prior assaultive conduct, particularly his sexually assaultive conduct, which escalated to the offense for which he was being sentenced, supported that sentence which required him to spend the rest of his life in prison without any possibility of parole. Alexander v. State, 838 P.2d 269 (Alaska Ct. App. 1992).

Defendant’s discretionary parole eligibility was properly restricted until he served 50 years of imprisonment where the trial court decided that defendant should be incarcerated until he was no longer physically able to hurt people. Defendant had 10 prior convictions, including two felonies and two assaults. Nichols v. State, — P.3d — (Alaska Ct. App. Nov. 19, 2008) (memorandum decision).

Where defendant was convicted of second-degree murder and kidnapping, the trial court’s decision to restrict defendant’s eligibility to apply for discretionary parole until he had served 30 years of his sentence was not clearly mistaken where the trial court found there was a need to protect the public, where the defendant’s prior offenses, though misdemeanors, were numerous and serious, where defendant was a cocaine dealer, and where defendant had committed fourteen infractions while in jail awaiting trial. Page v. State, — P.3d — (Alaska Ct. App. Sept. 22, 2010) (memorandum decision).

Superior court properly concluded that defendant was not eligible for discretionary parole because he was in his mid-forties when he committed the murder for which he was on trial, committed a number of serious assaultive crimes since he was a teenager, and showed little prospect of rehabilitation. Adams v. State, 390 P.3d 1194 (Alaska Ct. App. 2017), cert. denied, — U.S. —, 138 S. Ct. 2610, 201 L. Ed. 2d 1011 (U.S. 2018).

Sentencing court's restriction on defendant's eligibility for discretionary parole was upheld because the sentencing court specifically explained that it had chosen to restrict defendant's discretionary parole because of the need for isolation and community condemnation, and its reasons for doing so, namely, the violent and callous circumstances of the current offense, defendant's past and continued assaultive behavior, and his past failures on supervision, were supported by substantial evidence in the record. Shaw v. State, — P.3d — (Alaska Ct. App. May 5, 2021) (memorandum decision).

Applied in

Monroe v. State, 847 P.2d 84 (Alaska Ct. App. 1993).

Cited in

Charles v. State, 780 P.2d 377 (Alaska Ct. App. 1989); Weitz v. State, 794 P.2d 952 (Alaska Ct. App. 1990); State v. Malloy, 46 P.3d 949 (Alaska 2002); Malloy v. State, 153 P.3d 1003 (Alaska Ct. App. 2007); Thomas v. State, 413 P.3d 1207 (Alaska Ct. App. 2018).

Sec. 12.55.120. Appeal of sentence.

  1. A sentence of imprisonment lawfully imposed by the superior court for a term or for aggregate terms exceeding two years of unsuspended incarceration for a felony offense or exceeding 120 days for a misdemeanor offense may be appealed to the court of appeals by the defendant on the ground that the sentence is excessive, unless the sentence was imposed in accordance with a plea agreement under the applicable Alaska Rules of Criminal Procedure and that agreement provided for imposition of a specific sentence or a sentence equal to or less than a specified maximum sentence. If the superior court imposed a sentence in accordance with a plea agreement that provided for a minimum sentence, the defendant may appeal only that portion of the sentence that exceeds the minimum sentence provided for in the plea agreement and that exceeds two years of unsuspended incarceration for a felony offense or 120 days of unsuspended incarceration for a misdemeanor offense. By appealing a sentence under this section, the defendant waives the right to plead that by a revision of the sentence resulting from the appeal the defendant has been twice placed in jeopardy for the same offense.
  2. A sentence of imprisonment lawfully imposed by the superior court may be appealed to the court of appeals by the state on the ground that the sentence is too lenient; however, when a sentence is appealed by the state and the defendant has not appealed the sentence, the court is not authorized to increase the sentence but may express its approval or disapproval of the sentence and its reasons in a written opinion.
  3. A sentence appeal under this section does not confer or enlarge the right to bail pending appeal. When the defendant, in the prosecution of a regular appeal, urges excessiveness of the sentence as an additional ground for appeal, the defendant’s right to bail pending appeal is governed by the relevant statutes and the rules of the court.
  4. A sentence of imprisonment lawfully imposed by the district court for a term or for aggregate terms exceeding 120 days of unsuspended incarceration may be appealed to the superior court by the defendant on the ground that the sentence is excessive, unless the sentence was imposed in accordance with a plea agreement under the applicable Alaska Rules of Criminal Procedure and that agreement provided for imposition of a specific sentence or a sentence equal to or less than a specified maximum sentence. If the district court imposed a sentence in accordance with a plea agreement that provided for a minimum sentence, the defendant may appeal only that portion of the sentence that exceeds the minimum sentence provided for in the plea agreement and that exceeds 120 days of unsuspended incarceration. By appealing a sentence under this section, the defendant waives the right to plead that by a revision of the sentence resulting from the appeal the defendant has been twice placed in jeopardy for the same offense. A sentence of imprisonment lawfully imposed by the district court may be appealed to the superior court by the state on the ground that the sentence is too lenient; however, when a sentence is appealed by the state, the court may not increase the sentence but may express its approval or disapproval of the sentence and its reasons in a written opinion.
  5. A sentence within an applicable presumptive range set out in AS 12.55.125 or a consecutive or partially consecutive sentence imposed in accordance with the minimum sentences set out in AS 12.55.127 may not be appealed to the court of appeals under this section or AS 22.07.020 on the ground that the sentence is excessive. However, the sentence may be reviewed by an appellate court on the ground that it is excessive through a petition filed under rules adopted by the supreme court.
  6. The victim of the crime for which a defendant has been convicted and sentenced may file a petition for review in an appellate court of a sentence that is below the sentencing range for the crime.

History. (§ 4 ch 117 SLA 1969; am §§ 29 — 31 ch 12 SLA 1980; am §§ 7, 8 ch 79 SLA 1995; am § 7 ch 2 SLA 2005; am § 4 ch 65 SLA 2005)

Revisor’s notes. —

Subsection (f) was enacted as (e); relettered in 2005.

Effect of amendments. —

The first 2005 amendment, effective March 23, 2005, added subsection (e).

The second 2005 amendment, effective July 14, 2005, added subsection (e) [now (f)].

Notes to Decisions

Analysis

I.General Consideration

Editor’s notes. —

Many of the cases cited below refer to the supreme court, which prior to 1980 was the court hearing sentence appeals. In 1980, this section was amended to provide for sentence review by the court of appeals rather than the supreme court.

Constitutionality. —

Retroactive application of the sentence appeal restrictions added by the 1995 amendment of this section does not violate the ex post facto clauses of the federal and state constitutions. Amin v. State, 939 P.2d 413 (Alaska Ct. App. 1997).

The provision limiting the right of sentence appeal of a defendant sentenced to less than two years to serve does not affect the inherent authority of the judiciary to review sentences nor violate equal protection or due process under the constitution. Rozkydal v. State, 938 P.2d 1091 (Alaska Ct. App. 1997).

Plaintiff’s claims for damages against governmental defendants for failing to challenge the constitutionality of 1995 legislation that modified jurisdiction regarding excessive sentence appeals were precluded by collateral estoppel. A ruling that plaintiff was not injured by the 1995 legislation barred plaintiff from further lawsuits based on harm arising from the alleged unconstitutionality of the legislation. Latham v. Palin, 251 P.3d 341 (Alaska), cert. denied, 565 U.S. 885, 132 S. Ct. 257, 181 L. Ed. 2d 150 (U.S. 2011).

Legislative awareness of deficiencies in sentencing practices. —

The sentence appeal statute manifests the legislature’s awareness of existing deficiencies in sentencing practices throughout Alaska’s entire court system and the compelling necessity of developing appropriate sentencing criteria. State v. Chaney, 477 P.2d 441 (Alaska 1970).

The primary goal of a sentence appeal statute is an attempt to implement Alaska’s constitutional mandate that “Penal administration shall be based on the principle of reformation and upon the need for protecting the public.” State v. Chaney, 477 P.2d 441 (Alaska 1970); Perrin v. State, 543 P.2d 413 (Alaska 1975).

Trial court authority to set bail for convicted defendant appealing only sentence. —

The only statute relevant to the question of whether a trial court has the authority to admit to bail a convicted defendant who is appealing his sentence, but not his conviction, is subsection (c) of this section, which neither grants nor denies the right to bail pending appeal; thus, there exists no basis for concluding that the legislature intended to limit the inherent authority of the court. State v. Dobrova, 694 P.2d 157 (Alaska 1985).

Appellate jurisdiction in appeal of composite sentence. —

Because the propriety of defendant’s composite sentence had to be assessed in light of the totality of his conduct and background, the appellate court concluded that it should not review defendant’s misdemeanor sentence when it had no jurisdiction to review the accompanying felony sentence. Richards v. State, 249 P.3d 303 (Alaska Ct. App. 2011).

Defendant’s composite sentence was within the applicable presumptive range for a third felony offender convicted of a class C felony; AS 12.55.120(e) prohibits a defendant from challenging his sentence as excessive if the sentence was within an applicable presumptive range set out in AS 12.55.125 , and as such, the appellate court could not review defendant’s misdemeanor sentence when it had no jurisdiction to review his accompanying felony sentence. Beattie v. State, 258 P.3d 888 (Alaska Ct. App. 2011).

Authority of court. —

Under AS 12.55.165 , the appellate court had no authority to declare that defendant’s case should be referred to a three-judge panel on the ground that even a sentence of forty-five years to serve was clearly mistaken; the appellate court had no authority to declare that such a sentence was not clearly mistaken, and that the trial judge therefore committed no error when he failed to refer defendant’s case to the three-judge panel. Shinault v. State, 258 P.3d 848 (Alaska Ct. App. 2011).

Applied in

State v. Armantrout, 483 P.2d 696 (Alaska 1971); Wikstrom v. State, 603 P.2d 908 (Alaska 1979); Helmer v. State, 608 P.2d 38 (Alaska 1980); State v. Karnos, 696 P.2d 685 (Alaska Ct. App. 1985); State v. Huletz, 838 P.2d 1257 (Alaska Ct. App. 1992); State v. Hernandez, 877 P.2d 1309 (Alaska Ct. App. 1994); Hillman v. Municipality of Anchorage, 941 P.2d 211 (Alaska Ct. App. 1997); Knipe v. State, 305 P.3d 359 (Alaska Ct. App. 2013).

Quoted in

Whitton v. State, 479 P.2d 302 (Alaska 1970); State v. Devoe, 560 P.2d 12 (Alaska 1977); State v. LaPorte, 672 P.2d 466 (Alaska Ct. App. 1983); Heavyrunner v. State, 172 P.3d 819 (Alaska Ct. App. 2007); Chinuhuk v. State, 472 P.3d 511 (Alaska 2020).

Stated in

State v. Doe, 647 P.2d 1107 (Alaska Ct. App. 1982); State v. Monk, 886 P.2d 1315 (Alaska Ct. App. 1994); State v. Buza, 886 P.2d 1318 (Alaska Ct. App. 1994); Johnson v. State, 421 P.3d 134 (Alaska Ct. App. 2018).

Cited in

Holloway v. State, 535 P.2d 467 (Alaska 1975); State v. Carlson, 560 P.2d 26 (Alaska 1977); Abraham v. State, 585 P.2d 526 (Alaska 1978); Langton v. State, 662 P.2d 954 (Alaska Ct. App. 1983); State v. Coats, 669 P.2d 1329 (Alaska Ct. App. 1983); Dobrova v. State, 674 P.2d 834 (Alaska Ct. App. 1984); State v. Jackson, 776 P.2d 320 (Alaska Ct. App. 1989); Wylie v. State, 797 P.2d 651 (Alaska Ct. App. 1990); Williams v. State, 928 P.2d 600 (Alaska Ct. App. 1996); United States v. Stevens, 29 F. Supp. 2d 592 (D. Alaska 1998); Brockway v. State, 37 P.3d 427 (Alaska Ct. App. 2001); Simon v. State, 121 P.3d 815 (Alaska Ct. App. 2005); Coffman v. State, 172 P.3d 804 (Alaska Ct. App. 2007); State v. Henry, 240 P.3d 846 (Alaska Ct. App. 2010); Stone v. State, 255 P.3d 979 (Alaska 2011); Johnson v. State, 334 P.3d 701 (Alaska Ct. App. 2014); Oviok v. State, — P.3d — (Alaska Ct. App. Oct. 14, 2020).

II.Sentencing
A.Generally

Trial courts are admonished to avoid unnecessarily derogatory language in sentencing. Hunter v. State, 590 P.2d 888 (Alaska 1979), limited, Nelson v. State, 628 P.2d 884 (Alaska 1981).

Sentencing is not exact science, and disparities will occur. Padie v. State, 594 P.2d 50 (Alaska 1979).

Sentencing is judicial function. State v. Chaney, 477 P.2d 441 (Alaska 1970).

The determination of the relative importance to be assigned to the sentencing goals in any particular case must be made by the trial judge. Nygren v. State, 616 P.2d 20 (Alaska 1980).

The primary responsibility for ordering the priorities among the various sentencing purposes lies with the sentencing judge. Kanipe v. State, 620 P.2d 678 (Alaska 1980).

The primary responsibility for sentencing must remain with the trial judge. Nicholas v. State, 477 P.2d 447 (Alaska 1970); Hughes v. State, 513 P.2d 1115 (Alaska 1973); Cleary v. State, 548 P.2d 952 (Alaska 1976); Layland v. State, 549 P.2d 1182 (Alaska 1976); Coleman v. State, 553 P.2d 40 (Alaska 1976); Davis v. State, 577 P.2d 690 (Alaska 1978); Rice v. State, 589 P.2d 419 (Alaska 1979); Ripley v. State, 590 P.2d 48 (Alaska 1979).

Determination of the relative importance of the varied sentencing purposes, and the fashioning of a sentence to accommodate those goals, rests in the first instance with the trial judge. Holmes v. State, 604 P.2d 248 (Alaska 1979).

Role of sentencing court is to impose a sentence that appropriately reflects the varied purposes of criminal sanctions. Stumbaugh v. State, 599 P.2d 166 (Alaska 1979).

To make a reasoned sentence decision, the sentencing judge must determine the priority and relationship of the objectives of penal administration in any particular case. Nicholas v. State, 477 P.2d 447 (Alaska 1970); Benefield v. State, 559 P.2d 91 (Alaska 1977); Bragg v. State, 560 P.2d 391 (Alaska 1977); Parks v. State, 571 P.2d 1003 (Alaska 1977); Griffith v. State, 578 P.2d 578 (Alaska 1978); Johnson v. State, 580 P.2d 700 (Alaska 1978); Alpiak v. State, 581 P.2d 664 (Alaska 1978); Shagloak v. State, 582 P.2d 1034 (Alaska 1978), vacated, 597 P.2d 142 (Alaska 1979); Hansen v. State, 582 P.2d 1041 (Alaska 1978); Ahwinona v. State, 598 P.2d 73 (Alaska 1979); Stumbaugh v. State, 599 P.2d 166 (Alaska 1979); Wightman v. State, 606 P.2d 797 (Alaska 1980); Shelton v. State, 611 P.2d 24 (Alaska 1980).

Under State v. Chaney , 477 P.2d 441 (Alaska 1970), rehabilitation of the defendant must be considered in imposing sentence. Nevertheless, the sentencing court retains broad discretion in sentencing. Part of that function is the determination of the priority and relationship of the Chaney sentencing criteria in each individual case. Padie v. State, 594 P.2d 50 (Alaska 1979).

To determine the appropriate type and degree of sanction to be applied, the sentencing authority must decide which aim is primarily to be implemented and the relative weight to be assigned to secondary aims. State v. Chaney, 477 P.2d 441 (Alaska 1970).

The determination of the exact period of time that a convicted defendant should serve is basically a sociological problem to be resolved by a careful weighing of the principle of reformation and the need for protecting the public. State v. Chaney, 477 P.2d 441 (Alaska 1970).

Sentencing must be based on facts of particular offense involved and the history of the individual defendant. Creer v. State, 600 P.2d 1095 (Alaska 1979); Kagak v. State, 624 P.2d 818 (Alaska 1981).

While statistical information relating to the mean, median, and mode sentences may be of some assistance in determining whether a sentence is excessive or too lenient, sentencing depends on the peculiar facts and circumstances involving the particular offense and the particular offender. Walls v. State, 598 P.2d 949 (Alaska 1979).

Importance of thorough explanation for sentence imposed by trial judge. —

See Andrews v. State, 552 P.2d 150 (Alaska 1976).

Generally a judge should specify the manner in which deportation of defendant plays a role in the imposition of sentence. Dale v. State, 626 P.2d 1062 (Alaska 1980).

Trial court need not recite goals of sentencing, as long as it is clear that it has considered those goals. Evans v. State, 574 P.2d 24 (Alaska 1978); Alpiak v. State, 581 P.2d 664 (Alaska 1978); Chappell v. State, 592 P.2d 1218 (Alaska 1979); Padie v. State, 594 P.2d 50 (Alaska 1979).

With reference to a sentence appeal, a trial judge need only demonstrate consideration of sentencing goals. State v. Chaney, 477 P.2d 441 (Alaska 1970).

Preferred procedure is for sentencing court to discuss each criterion in order to impress upon the defendant the considerations that went into the shaping of his sentence and to better facilitate the court’s evaluation of the sentence’s correctness on appeal, but the supreme court has not held that the trial court is required to do so. Alpiak v. State, 581 P.2d 664 (Alaska 1978).

Formal finding not required. —

Where the combined effect of the consecutive sentences for the two counts of second degree murder did not exceed the maximum sentence permitted for one count of second degree murder, it was unnecessary for the sentencing judge to make a formal finding that confinement for the combined term was necessary to protect the public. Mills v. State, 592 P.2d 1247 (Alaska 1979).

Appellate court not authorized to increase sentence. —

When the state appeals a sentence as too lenient and the defendant does not appeal the sentence as excessive, an appellate court is not authorized to increase the sentence, but may only express its approval or disapproval of the sentence and its reasons for doing so. State v. Brueggeman, 24 P.3d 583 (Alaska Ct. App. 2001).

B.Sentencing Goals

Touchstones of penal administration. —

Under Alaska’s constitution, the principles of reformation and necessity of protecting the public constitute the touchstones of penal administration. Multiple goals encompassed within these broad constitutional standards include rehabilitation of the offender into a noncriminal member of society, isolation of the offender from society to prevent criminal conduct during the period of confinement, deterrence of the offender himself after his release from confinement or other penological treatment, as well as deterrence of other members of the community who might possess tendencies toward criminal conduct similar to that of the offender, and community condemnation of the individual offender, or, in other words, reaffirmation of societal norms for the purpose of maintaining respect for the norms themselves. State v. Chaney, 477 P.2d 441 (Alaska 1970); Perrin v. State, 543 P.2d 413 (Alaska 1975); Cleary v. State, 548 P.2d 952 (Alaska 1976); Deveroux v. State, 548 P.2d 1296 (Alaska 1976); Layland v. State, 549 P.2d 1182 (Alaska 1976); Andrews v. State, 552 P.2d 150 (Alaska 1976); Schuster v. State, 553 P.2d 925 (Alaska 1976); Godwin v. State, 554 P.2d 453 (Alaska 1976); Benefield v. State, 559 P.2d 91 (Alaska 1977); Bragg v. State, 560 P.2d 391 (Alaska 1977); Salazar v. State, 562 P.2d 694 (Alaska 1977); Nukapigak v. State, 562 P.2d 697 (Alaska 1977); Walton v. State, 568 P.2d 981 (Alaska 1977); Huff v. State, 568 P.2d 1014 (Alaska 1977); Bordewick v. State, 569 P.2d 184 (Alaska 1977); Clark v. State, 574 P.2d 1261 (Alaska 1978); Davis v. State, 577 P.2d 690 (Alaska 1978); Smothers v. State, 579 P.2d 1062 (Alaska 1978); Christie v. State, 580 P.2d 310 (Alaska 1978); Sumabat v. State, 580 P.2d 323 (Alaska 1978); Hansen v. State, 582 P.2d 1041 (Alaska 1978); Abraham v. State, 585 P.2d 526 (Alaska 1978); Wharton v. State, 590 P.2d 427 (Alaska 1979); Chappell v. State, 592 P.2d 1218 (Alaska 1979); Stumbaugh v. State, 599 P.2d 166 (Alaska 1979); Stobaugh v. State, 614 P.2d 767 (Alaska 1980); Nygren v. State, 616 P.2d 20 (Alaska 1980); Kelly v. State, 622 P.2d 432 (Alaska 1981); Hintz v. State, 627 P.2d 207 (Alaska 1981).

The judiciary of Alaska and that section of the executive branch which administers the penal system (i.e., the division of corrections and the Department of Health and Social Services), are constrained by the Alaska Constitution to base penal administration “on the principle of reformation and upon the need for protecting the public.” Bordewick v. State, 569 P.2d 184 (Alaska 1977); Ripley v. State, 590 P.2d 48 (Alaska 1979).

The twin goals of sentencing are reformation of the offender and protection of the public. Both should be considered equally and punishment should not be emphasized to the exclusion of rehabilitation potential. Good v. State, 590 P.2d 420 (Alaska 1979).

In State v. Chaney , 477 P.2d 441 (Alaska 1970), the supreme court has identified four sentencing goals: Rehabilitation of the offender, isolation of the offender from society, deterrence of the offender after his release and of others disposed to commit similar acts, and community condemnation of the offender because of his acts. Post v. State, 580 P.2d 304 (Alaska 1978); State v. Tucker, 581 P.2d 223 (Alaska 1978); Shagloak v. State, 582 P.2d 1034 (Alaska 1978), vacated, 597 P.2d 142 (Alaska 1979); Rice v. State, 589 P.2d 419 (Alaska 1979); Brookins v. State, 600 P.2d 12 (Alaska 1979); Deal v. State, 626 P.2d 1073 (Alaska 1980).

Appropriate goals of sentencing are deterrence of the offender and of other members of the community who might possess similar criminal tendencies and reaffirmation of societal norms. State v. Abraham, 566 P.2d 267 (Alaska 1977).

Deterrence of borderline criminals is an essential purpose of sentencing. Zurfluh v. State, 620 P.2d 690 (Alaska 1980).

Important goals of sentencing to be considered are isolation of the offender from society to prevent criminal conduct, future deterrence of the offender himself, deterrence of other members of the community, and community condemnation of the individual offender, or in other words, reaffirmation of societal norms for the purpose of maintaining respect for the norms themselves. Brandon v. State, 581 P.2d 1116 (Alaska 1978).

When sentencing an individual for a crime such as arson committed with intent to defraud, which is a calculated act, the objectives of deterring others and reaffirming community condemnation deserve special consideration. Putnam v. State, 629 P.2d 35 (Alaska 1980).

In regard to the purposes of sentencing, one of the goals to be achieved is rehabilitation of the convicted offender into a noncriminal member of society. Collins v. State, 574 P.2d 1278 (Alaska 1978).

Sentencing goals include rehabilitation and the protection of society, and the sentencing court can reflect the community’s condemnation of certain crimes in imposing sentence. Griffith v. State, 578 P.2d 578 (Alaska 1978).

The possibility of rehabilitation must be considered in every case. However, it need not be given the highest priority as a sentencing goal in all cases. The Alaska Constitution places equal emphasis upon protection of the public. Nelson v. State, 619 P.2d 480 (Alaska Ct. App. 1980).

In any case involving loss of life, and particularly in an offense involving driving while under the influence of alcohol, major considerations are the goals of deterrence of our members of the community and community condemnation of the offender and the offense so as to reaffirm societal norms and to maintain respect for those norms. Rosendahl v. State, 591 P.2d 538 (Alaska 1979).

The goal of rehabilitation is a touchstone of penal administration and is mandated by Alaska Const., art. I, § 12. Shagloak v. State, 582 P.2d 1034 (Alaska 1978), vacated, 597 P.2d 142 (Alaska 1979).

The twin goals of penal administration in Alaska, reformation of the offender and the need to protect the public, would be best served by a sentence that accommodates treatment as well as protects society and reaffirms the societal norms. Hansen v. State, 582 P.2d 1041 (Alaska 1978).

The supreme court has repeatedly required the sentencing judge to consider, on the record, various goals or objectives to be achieved in sentencing, including among other factors, the reformation or rehabilitation of the offender. Abraham v. State, 585 P.2d 526 (Alaska 1978).

The goal of rehabilitation should be a primary consideration in fashioning a sentence where psychiatric problems, rather than a general criminal intent, lie at the root of criminal behavior. Ferreira v. State, 602 P.2d 803 (Alaska 1979).

Chaney factors are not talismanic, and their ritual incantation is not necessary before a sentence will be valid. (See State v. Chaney, 477 P.2d 441 (Alaska 1978))Smith v. State, 691 P.2d 293 (Alaska Ct. App. 1984).

Sentencing court is not required to give priority to rehabilitation in imposing sentence, but, rather, it may determine which among the various sentencing goals should be emphasized. Smith v. State, 691 P.2d 293 (Alaska Ct. App. 1984).

Judge’s balancing of factors of rehabilitation, isolation and deterrence must also include an awareness that, in sentencing, he is reflecting community beliefs that certain norms are viable and will be upheld by the courts. Smothers v. State, 579 P.2d 1062 (Alaska 1978); Mallott v. State, 608 P.2d 737 (Alaska 1980).

The fourth State v. Chaney , 477 P.2d 441, 1970 Alas. LEXIS 170 (Alaska 1970), the reaffirmation of societal norms, is not a disguise for retribution. Smothers v. State, 579 P.2d 1062 (Alaska 1978).

The support of community expectations that existing norms will be enforced and that delicts will be punished is separate from retribution. Smothers v. State, 579 P.2d 1062 (Alaska 1978); Kelly v. State, 622 P.2d 432 (Alaska 1981).

Use of retribution as goal of sentencing is inconsistent with mandate of Alaska Const., art. I, § 12, that penal administration shall be based on the principle of reformation and upon the need for protecting the public, and was not adopted as one of the four goals in State v. Chaney, 477 P.2d 441 (Alaska 1970); Smothers v. State, 579 P.2d 1062 (Alaska 1978).

Although trial court equated reaffirmation of societal norms with “vengeance” and “punishment” and indicated that people who commit crimes with guns are “going to get burned,” this hyperbole was stated within the broader content of mentioning rehabilitation, protection of society and deterrence. Christie v. State, 580 P.2d 310 (Alaska 1978).

Consideration of community condemnation in imposing severer sentence. —

Community condemnation of the offender, in other words, reaffirmation of societal norms, is one of the sentencing goals set forth in State v. Chaney, 477 P.2d 441 (Alaska 1970). If an offense is one which society does not strongly condemn, that factor should not be considered as a reason for imposing a severer sentence. Snyder v. State, 585 P.2d 229 (Alaska 1978).

C.Factors for Consideration

Determination of appropriate sentence involves the judicious balancing of many, and ofttimes, competing, factors of which primacy cannot be ascribed to any particular factor. State v. Chaney, 477 P.2d 441 (Alaska 1970); Walton v. State, 568 P.2d 981 (Alaska 1977); Brandon v. State, 581 P.2d 1116 (Alaska 1978); Ripley v. State, 590 P.2d 48 (Alaska 1979); Kelly v. State, 622 P.2d 432 (Alaska 1981).

Sufficient grounds for imposing sentence. —

Deterrence of criminal conduct and reaffirmation of societal norms may of themselves be sufficient grounds for imposing an appropriate sentence. Robertson v. State, 606 P.2d 393 (Alaska 1980).

In sentencing, Alaska judges must consider both the possibility of the defendant’s reformation and the need for protection of the public. Egelak v. State, 438 P.2d 712 (Alaska 1968).

Appellate court held that a composite sentence of 20 years, which consisted of consecutive sentences for 12 crimes committed within a two-month period, was not excessive because defendant had a lengthy history of convictions and unavailing attempts to supervise and rehabilitate and because the record supported a judge’s determination that the defendant was a dangerous and impulsive offender who could not be reformed or deterred. Smith v. State, 187 P.3d 511 (Alaska Ct. App. 2008).

Some range of sentencing alternatives must be provided to allow adjustment for the special facts of each crime as well as the record and character of each convicted individual. Nicholas v. State, 477 P.2d 447 (Alaska 1970).

But abuse of discretion must be guarded against. —

As long as the judiciary is vested with a discretionary range of sentences, there must be some guard against a possible abuse of such discretion, just as there is appellate supervision over every other exercise of judicial discretion. State v. Chaney, 477 P.2d 441 (Alaska 1970).

Judicial recommendation to parole board. —

Where the trial court’s written judgment did not legally restrict defendant’s parole, did not specifically provide that defendant would be eligible for parole after serving the mandatory minimum period of time required by statute, and took into consideration defendant’s prior favorable record, but considered his prospects for rehabilitation to be guarded because of the serious nature of the offense and defendant’s failure to accept full responsibility for the crime, and also emphasized the need to deter similar offenses, such reasons were sufficient to justify the recommendation. Dunkin v. State, 818 P.2d 1159 (Alaska Ct. App. 1991).

Sentencing judge may take into account his belief that defendant committed perjury at trial. —

This is to be distinguished from the rule that a sentence may not be augmented because a defendant refuses to confess or invokes his privilege against self-incrimination. Fox v. State, 569 P.2d 1335 (Alaska 1977); Campbell v. State, 594 P.2d 65 (Alaska 1979).

A sentencing judge may take into account his belief that the defendant committed perjury at his trial, but the judge may do so only to the extent that the alleged perjury is used by him as indicia to determine the defendant’s potential for rehabilitation; thus it is improper to enhance the sentence as punishment for the alleged perjury. Pyrdol v. State, 617 P.2d 513 (Alaska 1980); Coleman v. State, 621 P.2d 869 (Alaska 1980), cert. denied, 454 U.S. 1090, 102 S. Ct. 653, 70 L. Ed. 2d 628 (U.S. 1981).

While a sentencing judge may take into account his belief that the defendant committed perjury at trial, the sentence which is imposed must be for the underlying offense, not for perjury. To automatically enhance a sentence as a sanction because of the judge’s belief that perjury was committed is improper. However, alleged perjury might be used as an indication of a defendant’s potential for rehabilitation, and because the dividing line between permissible and impermissible sentencing. Strachan v. State, 615 P.2d 611 (Alaska 1980).

Offender’s willingness to accept criminal responsibility can and should be taken into account by the sentencing court. Campbell v. State, 594 P.2d 65 (Alaska 1979).

While concealment of crime is legitimate consideration in sentencing, it should not preclude consideration of a defendant’s rehabilitation subsequent to the time the crime was committed. Padie v. State, 594 P.2d 50 (Alaska 1979).

It is appropriate to take into consideration potential injury to victim in arriving at a proper sentence. Cleary v. State, 548 P.2d 952 (Alaska 1976); Cleary v. State, 564 P.2d 374 (Alaska 1977).

Sentencing judge may consider verified instances of past antisocial behavior. —

While a bare accusation or the mere fact of an arrest is not sufficient to support a conclusion that a defendant has previously engaged in criminal conduct, the sentencing judge should be entitled to consider verified instances of past antisocial behavior, even though the defendant was not convicted or even charged with the same. Nukapigak v. State, 562 P.2d 697 (Alaska 1977).

A sentencing court may properly consider uncharged offenses or police contacts where they are verified by supporting data or information and the defendant is given the opportunity to deny the allegations and offer rebuttal evidence. Pascoe v. State, 628 P.2d 547 (Alaska 1980).

Information which has been verified may be used in the sentencing process. Szeratics v. State, 572 P.2d 63 (Alaska 1977).

State v. Galaktionoff, 486 P.2d 919 (Alaska 1971), is not intended to restrict the trial court from using verified information concerning additional crimes where the defendant is informed of the information and given an opportunity to explain or admit it. Szeratics v. State, 572 P.2d 63 (Alaska 1977).

A sentencing court may use verified information concerning additional crimes where the defendant is informed of the information and given an opportunity to explain or admit it. In re J. H. B., 578 P.2d 146 (Alaska 1978).

The trial court is allowed to consider verified information concerning additional crimes which have not resulted in convictions. The defendant must be given the opportunity to explain or admit the information. Hunter v. State, 590 P.2d 888 (Alaska 1979), limited, Nelson v. State, 628 P.2d 884 (Alaska 1981).

But not unverified police contacts. —

The supreme court, which was the reviewing court prior to 1980 amendments, has often voiced its disapproval of the consideration of unverified police “contacts” in determining the appropriate sentence, and it has directed that the trial court at sentencing state on the record that it is not relying on such police contacts contained in presentence reports. Hunter v. State, 590 P.2d 888 (Alaska 1979), limited, Nelson v. State, 628 P.2d 884 (Alaska 1981).

Supreme court has declined to adopt absolute rule prohibiting the use of second-hand information in presentence reports. Nukapigak v. State, 576 P.2d 982 (Alaska 1978).

Use of psychiatric evaluations. —

The sentencing court must weigh psychiatric evaluations against the multifaceted objectives of penal administration in arriving at an appropriate sentence. Padie v. State, 594 P.2d 50 (Alaska 1979).

Psychiatric evaluations are not always indispensable. Walton v. State, 568 P.2d 981 (Alaska 1977); Brown v. State, 578 P.2d 982 (Alaska 1978).

In view of defendant’s age, the nature of his present and past transgressions, and his personality and character, there was no need for psychological evaluation as a prerequisite to imposing sentence. Horton v. State, 570 P.2d 482 (Alaska 1977); Good v. State, 590 P.2d 420 (Alaska 1979).

When the sentencing judge is aware of, and properly considers the defendant’s psychological background and needs, the supreme court will not remand the case for additional psychological evaluation. Good v. State, 590 P.2d 420 (Alaska 1979).

Psychiatric evaluation should be current. —

In sentencing young offenders, the sentencing judge should have the benefit of a current psychiatric evaluation before finding rehabilitation inappropriate. Griffith v. State, 578 P.2d 578 (Alaska 1978).

Generally, a sentencing judge should have a benefit of a reasonably current psychiatric evaluation before sentencing a young offender to a lengthy term of imprisonment; but that is not to say that such an evaluation is indispensable or necessary. Campbell v. State, 594 P.2d 65 (Alaska 1979).

Although the most recent of the psychiatric evaluations which the court had before it was two years old at the time of sentencing, in view of the nature of the offense (burglary not in a dwelling) and the reports available to the judge, it was not error to have requested an additional examination. Campbell v. State, 594 P.2d 65 (Alaska 1979).

While it is preferable to have current psychiatric evaluation prior to sentencing, it is acceptable if the trial court considers the report at a subsequent hearing upon defendant’s motion to reduce his sentence. Griffith v. State, 578 P.2d 578 (Alaska 1978).

Consideration of insanity acquittal. —

In sentencing, it is appropriate to consider an insanity acquittal as it bears on the chances of a recurrence, the threat to society posed by the offender, and the prospects for reformation. Nevertheless, although it would not be proper to ignore an insanity acquittal altogether simply because it does not demonstrate a criminal state of mind, it would be inappropriate to view such an incident as equivalent to a guilty verdict, since the offender’s mental state is significantly different. Ferreira v. State, 602 P.2d 803 (Alaska 1979).

Particularly difficult type of offender. —

While it is true that maximum sentences should usually be imposed only upon the “worst type of offender,” a court need not find that a person falls into that category in order to treat him as a particularly difficult type of offender. Zurfluh v. State, 620 P.2d 690 (Alaska 1980).

The worst offender characterization may be based on the particular manner of committing the offense, the background of the offender, or both. However, the general guidelines concerning worst offenders do not preclude the sentencing judge from considering a variety of factors which can make a defendant a “particularly difficult type of offender.” Tuckfield v. State, 621 P.2d 1350 (Alaska 1981).

Sentencing alternative for youthful first offenders charged with nonviolent crimes. —

See Nattrass v. State, 554 P.2d 399 (Alaska 1976); Wharton v. State, 590 P.2d 427 (Alaska 1979); Troyer v. State, 614 P.2d 313 (Alaska 1980).

Correct approach for judge to take when considering effect of possibility of parole on length of sentence is for the sentencing judge to impose an appropriate term of incarceration, considering State v. Chaney, 477 P.2d 441 (Alaska 1970), criteria, on the assumption that the entire term may be served; then the court may, in its discretion, designate a parole eligibility period greater than the statutory minimum and should articulate on the record its reasons for doing so. Jackson v. State, 616 P.2d 23 (Alaska 1980).

It was improper to fashion a sentence on the assumption that the offender will be paroled on a particular date. Neal v. State, 628 P.2d 19 (Alaska 1981).

Because court must base sentence in each case on specific offense and the individual offender before it, the use of abstract concepts such as the inherent danger of the defendant’s weapon is a matter essentially irrelevant to the sentencing process, and, for the same reason, comparison with sentences imposed in other cases is not determinative. Wire v. State, 621 P.2d 18 (Alaska Ct. App. 1980).

D.Specific Offenses

Crimes involving physical harm to another are generally held to be particularly serious, meriting extended sentences. Buchanan v. State, 554 P.2d 1153 (Alaska 1976).

Violent crimes involving physical injury to innocent people are to be regarded as most serious offenses and are not to be treated lightly. Creed v. State, 573 P.2d 1379 (Alaska 1978); Bryant v. State, 623 P.2d 310 (Alaska 1981).

Homicide, being a most serious crime, normally calls for the imposition of significant sanctions. State v. Abraham, 566 P.2d 267 (Alaska 1977).

Assault with dangerous weapon. —

When this offense has been committed under aggravated circumstances, the supreme court has sustained sentences calling for a substantial period of incarceration. Dawson v. State, 557 P.2d 142 (Alaska 1976).

The supreme court has repeatedly held that assault with a dangerous weapon is among the most serious crimes. Walton v. State, 568 P.2d 981 (Alaska 1977).

An assault with a dangerous weapon is a serious crime. State v. Afcan, 583 P.2d 849 (Alaska 1978).

Crimes of rape and sodomy are certainly particularly serious. Bordewick v. State, 569 P.2d 184 (Alaska 1977).

The supreme court has affirmed sentences ranging from eight to twenty years in forcible rape cases. Bordewick v. State, 569 P.2d 184 (Alaska 1977).

Forcible rape ranks among the most serious of crimes. State v. Wassilie, 578 P.2d 971 (Alaska 1978).

Robbery. —

The supreme court considers robbery to be among the most serious crimes. Cleary v. State, 548 P.2d 952 (Alaska 1976).

Robbery is a very serious crime, and the supreme court has affirmed heavy sentences in such cases, particularly where a weapon was used. Griffith v. State, 578 P.2d 578 (Alaska 1978).

Armed robbery and burglary within occupied dwelling are among the most serious crimes because of the potential for physical injury. Good v. State, 590 P.2d 420 (Alaska 1979).

Burglary in a dwelling is a serious offense for which the legislature has authorized severe penalties. Smothers v. State, 579 P.2d 1062 (Alaska 1978).

Drug offenses. —

The supreme court has recommended that judges consider four categories of drug offenses when making sentencing determinations. These four classes are arranged in descending order of gravity: (1) Smuggling or sale of large quantities of narcotics or possession of large quantities for sale; (2) smuggling or sale of small quantities of narcotics or possession of small quantities for sale; (3) possession of narcotics without intent to sell and (4) marijuana offenses. Salazar v. State, 562 P.2d 694 (Alaska 1977); Huff v. State, 568 P.2d 1014 (Alaska 1977); Johnson v. State, 577 P.2d 230 (Alaska 1978); Davis v. State, 577 P.2d 690 (Alaska 1978); Moreau v. State, 588 P.2d 275 (Alaska 1978); Wharton v. State, 590 P.2d 427 (Alaska 1979); Elliott v. State, 590 P.2d 881 (Alaska 1979); Sanders v. State, 602 P.2d 1252 (Alaska 1979); Strachan v. State, 615 P.2d 611 (Alaska 1980).

Large scale operations where sales of drugs are made in substantial amounts would call for more severe punishment than sales of small or moderate amounts of drugs. The latter, in turn, is generally punishable by greater penalties than the instances where one possesses narcotics for his own use and without intent to sell. Huff v. State, 568 P.2d 1014 (Alaska 1977).

Ranking the seriousness of drug offenses does not create, de facto, a descending order of maximum sentences within each class. The size of the sale and the drug involved must be considered with other factors; and, other things being equal, the gravity of a drug offense should affect sentence length. Strachan v. State, 615 P.2d 611 (Alaska 1980).

The sentencing court is not required to classify a drug offender solely on the basis of the facts underlying the particular offense leading to his conviction. Mangold v. State, 613 P.2d 272 (Alaska 1980).

A determination of what degree of punishment should be given for a drug offense depends on the gravity of the offense. Huff v. State, 568 P.2d 1014 (Alaska 1977).

As long as the legislature acts within constitutional bounds, it is not the function of the supreme court to determine whether the state’s response to the use of narcotic drugs is best suited to solving the societal problems created by the illness of addiction. Roman v. State, 570 P.2d 1235 (Alaska 1977).

Given defendant’s admission that, in addition to the sale for which he was convicted, he later sold police officers a quarter pound of cocaine for approximately $8,000, the superior court was entitled to classify him as coming within the most serious category of drug offenders. Mangold v. State, 613 P.2d 272 (Alaska 1980).

An examination of sentences imposed on drug offenders in Alaska reveals that 10 years is quite a severe sentence for any type of drug offense. Salazar v. State, 562 P.2d 694 (Alaska 1977); Huff v. State, 568 P.2d 1014 (Alaska 1977).

Although anyone convicted of unlawful sale of a drug may be subjected to a jail sentence, the supreme court does not agree that it’s necessary that jail time be imposed upon people who sell cocaine. Such a statement is overbroad and fails to give adequate consideration to the specific characteristics of individual offenders and offenses. Elliott v. State, 590 P.2d 881 (Alaska 1979).

As to sentencing where defendant suffered from an addiction to heroin and arranged sales solely to satisfy his craving for the drug, see Huff v. State, 568 P.2d 1014 (Alaska 1977).

Escape. —

The goals for sentencing would be largely frustrated if no real or effective additional sanction or detriment flowed from the conviction for escape. Walton v. State, 568 P.2d 981 (Alaska 1977).

E.Maximum Sentences

Maximum sentences generally. —

Maximum sentences should not be imposed without some foundation for characterizing a defendant as the worst type of offender. Galaktionoff v. State, 486 P.2d 919 (Alaska 1971); State v. Wortham, 537 P.2d 1117 (Alaska 1975); Tommy v. State, 551 P.2d 179 (Alaska 1976); Noble v. State, 552 P.2d 142 (Alaska 1976); Fox v. State, 569 P.2d 1335 (Alaska 1977); Clark v. State, 574 P.2d 1261 (Alaska 1978); Sielak v. State, 581 P.2d 226 (Alaska 1978); One v. State, 592 P.2d 1193 (Alaska 1979); Saganna v. State, 594 P.2d 69 (Alaska 1979); Ahwinona v. State, 598 P.2d 73 (Alaska 1979); Bell v. State, 598 P.2d 908 (Alaska 1979); Holden v. State, 602 P.2d 452 (Alaska 1979), transferred, 190 P.3d 725 (Alaska Ct. App. 2008); Ferguson v. State, 606 P.2d 382 (Alaska 1980); Wightman v. State, 606 P.2d 797 (Alaska 1980); Lock v. State, 609 P.2d 539 (Alaska 1980).

In sentencing, it should be remembered that the maximum sentence for a particular offense expresses a legislative judgment about how the worst offender within a class designated by the legislature should be treated. Galaktionoff v. State, 486 P.2d 919 (Alaska 1971); Sielak v. State, 581 P.2d 226 (Alaska 1978); Tuckfield v. State, 621 P.2d 1350 (Alaska 1981).

A maximum prison sentence should not be imposed unless the defendant being sentenced fits into a class which the supreme court has characterized as “the worst type of offender.” Bordewick v. State, 569 P.2d 184 (Alaska 1977); Ferguson v. State, 590 P.2d 43 (Alaska 1979); Cooper v. State, 595 P.2d 648 (Alaska 1979).

Under Alaska law the maximum sentence is meted out only to those characterized as “the worst possible offenders.” United States v. Lincoln, 581 F.2d 200 (9th Cir. Alaska 1978).

Maximum prison terms ought not to exceed five years except for cases involving particularly serious crimes. State v. Trunnel, 549 P.2d 550 (Alaska 1976); Salazar v. State, 562 P.2d 694 (Alaska 1977); Bordewick v. State, 569 P.2d 184 (Alaska 1977); Hansen v. State, 582 P.2d 1041 (Alaska 1978); Strachan v. State, 615 P.2d 611 (Alaska 1980).

The supreme court has adopted the American Bar Association’s view that, except for cases involving particularly serious offenses, dangerous offenders and professional criminals, maximum prison terms ought not exceed five years. Huff v. State, 568 P.2d 1014 (Alaska 1977); Black v. State, 569 P.2d 804 (Alaska 1977); Clark v. State, 574 P.2d 1261 (Alaska 1978).

The supreme court has not hesitated to approve sentences in excess of five years for violent crimes where the defendant could be classified the worst type of offender. State v. Afcan, 583 P.2d 849 (Alaska 1978).

Relevant category is “worst offender” within the group of those persons committing the offense in question. Wilson v. State, 582 P.2d 154 (Alaska 1978); Hintz v. State, 627 P.2d 207 (Alaska 1981).

The fact that a serious offense has been committed does not, per se, place the defendant in the category of the worst offender for that crime; rather, the relevant category is worst offender within the group of those persons committing the offense in question, and that characterization may be based on the particular manner of committing the offense, the background of the offender, or both. Moore v. State, 597 P.2d 975 (Alaska 1979).

Worst type of offender categorization has not been limited to crimes of violence. Morris v. State, 592 P.2d 1244 (Alaska 1979).

Factors in supporting imposition of maximum term. —

Some of the factors which the supreme court has looked to in order to support a characterization of defendant as the worst type of offender — and the imposition of a maximum term — have been prior criminal convictions, age, military records, employment history, drug or alcohol addiction, presentence report evaluations and recommendations and behavior which has been considered to demonstrate an antisocial nature or dangerous propensities which pose a clear risk to the public. State v. Wortham, 537 P.2d 1117 (Alaska 1975); Bordewick v. State, 569 P.2d 184 (Alaska 1977); Clark v. State, 574 P.2d 1261 (Alaska 1978); United States v. Lincoln, 581 F.2d 200 (9th Cir. Alaska 1978); Wilson v. State, 582 P.2d 154 (Alaska 1978); Hansen v. State, 582 P.2d 1041 (Alaska 1978); Morris v. State, 592 P.2d 1244 (Alaska 1979); Bell v. State, 598 P.2d 908 (Alaska 1979); Walls v. State, 598 P.2d 949 (Alaska 1979); Holden v. State, 602 P.2d 452 (Alaska 1979), transferred, 190 P.3d 725 (Alaska Ct. App. 2008); Ferguson v. State, 606 P.2d 382 (Alaska 1980); Wightman v. State, 606 P.2d 797 (Alaska 1980); Lock v. State, 609 P.2d 539 (Alaska 1980); Tuckfield v. State, 621 P.2d 1350 (Alaska 1981); Kelly v. State, 622 P.2d 432 (Alaska 1981); Hintz v. State, 627 P.2d 207 (Alaska 1981).

Two of the factors to be considered in characterizing a defendant as a “worst type of offender” are (1) prior criminal convictions and (2) behavior which has been considered to demonstrate an antisocial nature or dangerous propensities which pose a clear risk to the public. Tommy v. State, 551 P.2d 179 (Alaska 1976).

Some of the factors relied upon to support a characterization as the worst type of offender include prior criminal convictions, age, employment history, alcohol addiction, presentence report evaluations and behavior which has been considered to demonstrate an antisocial nature or dangerous propensities which pose a clear risk to the public. Noble v. State, 552 P.2d 142 (Alaska 1976); Sielak v. State, 581 P.2d 226 (Alaska 1978).

In most cases, worst offender characterization will involve factors intrinsic and extrinsic to the particular offense. However, a person may be characterized as a worst offender based solely on elements intrinsic to the particular crime for which the defendant is being sentenced, or based solely on elements extrinsic to the particular crime. Saganna v. State, 594 P.2d 69 (Alaska 1979).

Lack of prior criminal record does not mean that a defendant may not be characterized as the worst type of offender. Wilson v. State, 582 P.2d 154 (Alaska 1978).

There is no requirement that sentencing judge utter phrase “worst offender.” Jacinth v. State, 593 P.2d 263 (Alaska 1979).

Although the trial judge does not expressly find a defendant to be the worst type of offender, where the record provides ample support for such a classification, this lapse is harmless. Walls v. State, 598 P.2d 949 (Alaska 1979).

Finding not prerequisite to imposing life sentence for first-degree murder. —

A finding that defendant is the worst type of offender within the category of persons committing first-degree murder is not a prerequisite to the imposition of a life sentence for such offense. Vail v. State, 599 P.2d 1371 (Alaska 1979).

Where superior court suspended portion of maximum term, this was not a maximum sentence and it did not need to be demonstrated that defendant was the worst type of offender. Wertz v. State, 611 P.2d 8 (Alaska 1980).

III.Right to Appeal

Defendants’ right to appeal expanded. —

Although the legislature conferred on convicted defendants a limited right of appeal of sentences, in the exercise of the supreme court’s inherent and statutory jurisdiction to entertain appeals, the court has expanded that right by means of Rules of Appellate Procedure. Wharton v. State, 590 P.2d 427 (Alaska 1979) (See now Rule of Appellate Procedure 215).

Sentence for less than two years. —

Defendant’s appeal was dismissed where he did not receive a sentence of more than 2 years to serve, because in 1995, the legislature limited felony offenders’ right of sentence appeal by amending subsection (a) to state that felony offenders could appeal their sentences only if they received a term, or aggregate terms, exceeding two years of unsuspended incarceration. Hunt v. State, 18 P.3d 69 (Alaska Ct. App. 2001).

Defendant sentenced to less than two years to serve has no right to appeal the sentence, but is entitled to petition the supreme court for review of the sentence under Appellate Rule 215. Rozkydal v. State, 938 P.2d 1091 (Alaska Ct. App. 1997).

Because defendant's sentence did not exceed two years of imprisonment, she did not have the right to appeal her sentence as excessive to the Court of Appeals of Alaska, and the Court of Appeals did not have jurisdiction to consider her excessive sentence claim. Defendant was required instead to petition the Alaska Supreme Court for discretionary sentence review. Steele v. State, — P.3d — (Alaska Ct. App. Dec. 30, 2020) (memorandum decision).

Appeal of misdemeanor sentence. —

Defendant may appeal a misdemeanor sentence to the court of appeals if the aggregate unsuspended terms imposed on all counts exceed 120 days. Peters v. State, 943 P.2d 418 (Alaska Ct. App. 1997).

Defendant foreclosed from challenging presentence report. —

Having elected not to challenge the contents or use of the presentence report at the time of sentencing, defendant was foreclosed from doing so on appeal. Cochran v. State, 586 P.2d 175 (Alaska 1978).

Appeal of probation condition. —

Where defendant was ordered to serve a 30-day sentence and 10 years probation for two counts of cruelty to animals, she had a right to appeal her sentence to the Court of Appeals of Alaska. This section does not limit the jurisdiction of the Court of Appeals because defendant was challenging a probation condition and not the term of her imprisonment; the probation condition prohibiting her from possessing animals was upheld as reasonably related to her rehabilitation. Allen v. Municipality of Anchorage, 168 P.3d 890 (Alaska Ct. App. 2007).

Appeal of probation length. —

Appellate court had jurisdiction to hear an argument that a 5-year term of probation was excessive in a criminal contempt case because the bar against excessive sentence appeals involving misdemeanor sentences of less than 120 days did not apply to non-term-of imprisonment sentence appeals. The probationary term was not excessive because it did not unduly restrict defendant's liberty; the sentencing judge concluded that the term was necessary to change defendant's attitudes that led to his refusal to pay child support, to deter others from similar conduct, and to affirm community values. Maguire v. State, 390 P.3d 1175 (Alaska Ct. App. 2017).

Action by court-appointed counsel. —

Upon defendant’s demand after lawful sentence pursuant to a plea agreement, appointed counsel was required to file a petition for discretionary review when this section precluded an appeal of right to the court of appeals. Stone v. State, 255 P.3d 979 (Alaska 2011).

Errors during sentencing process. —

Defendant’s assertions that the sentencing court erred in construing and applying mitigating factors were assertions of legal error committed during the sentencing process and were appealable regardless of the length of defendant’s sentence. Ison v. State, 941 P.2d 195 (Alaska Ct. App. 1997).

No right to appeal. —

Where the defendant received only eight days to serve, he had no right to appeal his sentence, and the appellate court had no jurisdiction to consider his claim that the sentence was excessive, although the defendant was entitled to seek discretionary review from the state Supreme Court. Jacko v. State, 981 P.2d 1075 (Alaska Ct. App. 1999).

Jurisdiction to review. —

Because defendant was a third felony offender and faced a presumptive sentencing range of six to 10 years and was sentenced to 10 years, which was within the statutory range, the appellate court had no jurisdiction to decide the sentence appeal. Woods v. State, — P.3d — (Alaska Ct. App. Aug. 31, 2011) (memorandum decision).

Since defendant’s composite sentence of 40 years was within the presumptive range established for attempted first-degree sexual assault under AS 12.55.125(i)(2)(E) , pursuant to AS 12.55.120(e) , the appellate court did not have jurisdiction to review defendant’s excessive sentence claim. Moore v. State, 262 P.3d 217 (Alaska Ct. App. 2011).

Where his sentence was within the presumptive range, defendant did not have a right to appeal to the Alaska Court of Appeals. His appeal could go only to the Alaska Supreme Court. Molina v. State, — P.3d — (Alaska Ct. App. July 25, 2012) (memorandum decision).

Appellate court had no jurisdiction to entertain defendant's claim that his term of probation was excessive because he did not have the right to appeal his sentence as defendant bargained for the precise sentence of imprisonment that he received; however, defendant was entitled to pursue his claim that his term of probation was unreasonably long, but he had to do that by petitioning the supreme court to review his sentence. Keeling v. State, — P.3d — (Alaska Ct. App. Jan. 27, 2016) (memorandum decision).

Defendant's excessive sentence argument was transferred to the Alaska Supreme Court because, while the Court of Appeals had no jurisdiction to consider the claim as to a sentence imposed pursuant to a plea agreement, defendant could petition the Supreme Court for discretionary sentence review. Lynott v. State, — P.3d — (Alaska Ct. App. Nov. 20, 2019) (memorandum decision).

Victim is without standing regarding selection of rehabilitation program. —

Crime victims are not parties to the criminal prosecution of the perpetrator; nor did the legislature intend to have crime victims file appeals whenever they are dissatisfied with a judge’s weighing of their interests. Subsection (f) gives crime victims the right to seek review of one particular type of sentencing decision concerning a felony sentence which, because of the mitigating factors listed in AS 12.55.125(d) , has been reduced below the presumptive range for that crime. Cooper v. Dist. Court, 133 P.3d 692 (Alaska Ct. App. 2006).

When defendant did not appeal sentence imposed on one count on conviction of several counts, any increase in the sentence imposed on that count would violate the double jeopardy provisions of the state and federal constitutions. Loola v. State, 608 P.2d 36 (Alaska 1980).

Defendant waived right to contend sentence excessive. —

Nattrass v. State, 554 P.2d 399 (Alaska 1976).

When state entitled to appeal. —

In examining AS 22.05.010 and subsection (b) of this section, it is evident that the state has the right to appeal a sentence only if they contend that the sentence imposed was too lenient. State v. Gibson, 543 P.2d 406 (Alaska 1975), overruled, State v. Dunlop, 721 P.2d 604 (Alaska 1986), overruled, State v. Alyeska Pipeline Serv. Co., 723 P.2d 76 (Alaska 1986).

The state may appeal a sentence when it is modified by the superior court. State v. Trunnel, 549 P.2d 550 (Alaska 1976).

IV.Scope of Review

Alaska decisions reveal two kinds of sentence review cases. When the issue is whether the sentence was excessive, the supreme court defers to the sentencing court’s discretion and will disapprove a sentence only if it is “clearly mistaken.” When the issue is whether the sentencing court was acting under an incorrect legal assumption, the supreme court reviews for error. Campbell v. State, 594 P.2d 65 (Alaska 1979).

Sole authority to review sentences. —

The legislature’s specific grant of authority to the supreme court to review sentences under this section suggests that the legislature intended that court to have the sole authority to review sentences. Johnson v. State, 607 P.2d 944 (Alaska 1980).

Supreme court’s role in reviewing sentences imposed by the trial courts is to insure that sentences effectuate the purposes of the Alaska Constitution. Ripley v. State, 590 P.2d 48 (Alaska 1979).

Applicability of Chaney standard. —

The standard set out in State v. Chaney, 477 P.2d 441 (Alaska 1970), that, in reviewing criminal sentences, the supreme court will make its own examination of the record and will modify the sentence only if it is convinced that the sentencing court was clearly mistaken in imposing the sanction it did, is also applicable in cases in which subsection (b) precludes sentence modification, restricting the court to expression of approval or disapproval. State v. Wortham, 537 P.2d 1117 (Alaska 1975).

Scope of review generally. —

Concerning the supreme court’s scope of review in sentence appeals, the court has said that it will make its own examination of the record and will modify the sentence if it is convinced that the sentencing court was clearly mistaken in imposing the sanction it did. State v. Chaney, 477 P.2d 441 (Alaska 1970); Nicholas v. State, 477 P.2d 447 (Alaska 1970); Waters v. State, 483 P.2d 199 (Alaska 1971); Galaktionoff v. State, 486 P.2d 919 (Alaska 1971); Hughes v. State, 513 P.2d 1115 (Alaska 1973); Nukapigak v. State, 562 P.2d 697 (Alaska 1977); State v. Abraham, 566 P.2d 267 (Alaska 1977); Walton v. State, 568 P.2d 981 (Alaska 1977); Ripley v. State, 590 P.2d 48 (Alaska 1979); Jacinth v. State, 593 P.2d 263 (Alaska 1979); Stobaugh v. State, 614 P.2d 767 (Alaska 1980); Nielsen v. State, 623 P.2d 304 (Alaska 1981).

It is the duty of the supreme court to examine the proceedings below to review, for excessiveness or leniency, the sentence imposed by the trial court, in light of the nature of the crime, the defendant’s character, and the need for protecting the public. It is also obliged to consider the manner in which the sentence was imposed, including the sufficiency and accuracy of the information upon which it was based. State v. Chaney, 477 P.2d 441 (Alaska 1970); Nukapigak v. State, 562 P.2d 697 (Alaska 1977); Ferguson v. State, 590 P.2d 43 (Alaska 1979); Ripley v. State, 590 P.2d 48 (Alaska 1979).

In determining whether any particular sentence is excessive or too lenient, the supreme court will consider the proceedings below in light of the nature of the crime, the defendant’s character and the need for protecting the public. State v. Wortham, 537 P.2d 1117 (Alaska 1975); Noble v. State, 552 P.2d 142 (Alaska 1976); State v. Abraham, 566 P.2d 267 (Alaska 1977); Walton v. State, 568 P.2d 981 (Alaska 1977); Fox v. State, 569 P.2d 1335 (Alaska 1977); State v. Tucker, 581 P.2d 223 (Alaska 1978); Shagloak v. State, 582 P.2d 1034 (Alaska 1978), vacated, 597 P.2d 142 (Alaska 1979); Hansen v. State, 582 P.2d 1041 (Alaska 1978); State v. Afcan, 583 P.2d 849 (Alaska 1978); Vail v. State, 599 P.2d 1371 (Alaska 1979); Kanipe v. State, 620 P.2d 678 (Alaska 1980).

The scope of appellate review requires that the supreme court make its own examination of the record, focusing on the nature of the crime, the defendant’s character and the need for protecting the public. Perrin v. State, 543 P.2d 413 (Alaska 1975); Cleary v. State, 548 P.2d 952 (Alaska 1976); Layland v. State, 549 P.2d 1182 (Alaska 1976); Thurlkill v. State, 551 P.2d 541 (Alaska 1976); Andrews v. State, 552 P.2d 150 (Alaska 1976); Schuster v. State, 553 P.2d 925 (Alaska 1976); Marks v. State, 557 P.2d 1136 (Alaska 1976); Benefield v. State, 559 P.2d 91 (Alaska 1977); Gilligan v. State, 560 P.2d 17 (Alaska 1977); Bordewick v. State, 569 P.2d 184 (Alaska 1977); Davis v. State, 577 P.2d 690 (Alaska 1978); Rice v. State, 589 P.2d 419 (Alaska 1979); Stumbaugh v. State, 599 P.2d 166 (Alaska 1979).

In determining whether a sentence is excessive, the supreme court must make an independent examination of the record. Noble v. State, 552 P.2d 142 (Alaska 1976).

Comparison with other sentences is not determinative of the merits of a particular sentence appeal. Creer v. State, 600 P.2d 1095 (Alaska 1979); Strachan v. State, 615 P.2d 611 (Alaska 1980); Kagak v. State, 624 P.2d 818 (Alaska 1981).

In reviewing a criminal sentence, part of the court’s obligation is to consider the sufficiency and accuracy of the information upon which the sentence is based. Walton v. State, 568 P.2d 981 (Alaska 1977); Franzen v. State, 573 P.2d 55 (Alaska 1978); Edinger v. State, 598 P.2d 943 (Alaska 1979).

The scope of appellate review requires that the supreme court make its own examination of the record. Such an independent examination of the justice of a particular sentence is necessary in order for the review process to function effectively. Hansen v. State, 582 P.2d 1041 (Alaska 1978).

Respect for the discretion of the trial judge should not prevent the reviewing court from making its own inquiry into the justice of the sentence before it. Having made that inquiry, the reviewing court should not “tinker” with the sentence. However, an independent examination of the justice of the particular sentence is necessary in order for the review process to properly function. State v. Chaney, 477 P.2d 441 (Alaska 1970).

Distorted criteria could result if review were limited exclusively to claims of excessive harshness. State v. Chaney, 477 P.2d 441 (Alaska 1970).

Standard of review concerning exercise of sentencing discretion by trial judge requires of necessity a broad view, for it is not the purpose of appellate review to enforce uniformity or to chill initiative on the part of the trial judge in attempting to arrive at a proper sentence. Nicholas v. State, 477 P.2d 447 (Alaska 1970).

Sentence review by the supreme court must be carried out with a view to effectuate the purposes of the sentence appeal act, as well as the goals of sentence review in general. State v. Chaney, 477 P.2d 441 (Alaska 1970).

Sentence review must be carried out with a view to effectuate the purposes of the Alaska Constitution and the sentence review statute. Cleary v. State, 548 P.2d 952 (Alaska 1976); Marks v. State, 557 P.2d 1136 (Alaska 1976); Benefield v. State, 559 P.2d 91 (Alaska 1977); Bragg v. State, 560 P.2d 391 (Alaska 1977).

The standard of review on a sentencing appeal is to determine whether the trial court’s imposition of sentence was “clearly mistaken.” Perrin v. State, 543 P.2d 413 (Alaska 1975); Cleary v. State, 548 P.2d 952 (Alaska 1976); State v. Trunnel, 549 P.2d 550 (Alaska 1976); Layland v. State, 549 P.2d 1182 (Alaska 1976); Thurlkill v. State, 551 P.2d 541 (Alaska 1976); Andrews v. State, 552 P.2d 150 (Alaska 1976); Schuster v. State, 553 P.2d 925 (Alaska 1976); Godwin v. State, 554 P.2d 453 (Alaska 1976); Marks v. State, 557 P.2d 1136 (Alaska 1976); Benefield v. State, 559 P.2d 91 (Alaska 1977); Gilligan v. State, 560 P.2d 17 (Alaska 1977); Bragg v. State, 560 P.2d 391 (Alaska 1977); Sandvik v. State, 564 P.2d 20 (Alaska 1977); Bibler v. State, 568 P.2d 9 (Alaska 1977); Bordewick v. State, 569 P.2d 184 (Alaska 1977); Clark v. State, 574 P.2d 1261 (Alaska 1978); Collins v. State, 574 P.2d 1278 (Alaska 1978); Davis v. State, 577 P.2d 690 (Alaska 1978); Middleton v. State, 577 P.2d 1050 (Alaska 1978); Alexander v. State, 578 P.2d 591 (Alaska 1978); Alpiak v. State, 581 P.2d 664 (Alaska 1978); Rice v. State, 589 P.2d 419 (Alaska 1979); Ferguson v. State, 590 P.2d 43 (Alaska 1979); Wharton v. State, 590 P.2d 427 (Alaska 1979); One v. State, 592 P.2d 1193 (Alaska 1979); LaBarbera v. State, 598 P.2d 947 (Alaska 1979); State v. Lupro, 630 P.2d 18 (Alaska Ct. App. 1981).

A sentence will be modified only when the supreme court is convinced that the sentencing court was clearly mistaken in imposing the sanction it did. Noble v. State, 552 P.2d 142 (Alaska 1976); Salazar v. State, 562 P.2d 694 (Alaska 1977); Hoover v. State, 568 P.2d 404 (Alaska 1977); Walton v. State, 568 P.2d 981 (Alaska 1977); Menard v. State, 578 P.2d 966 (Alaska 1978); Bendle v. State, 583 P.2d 840 (Alaska 1978); Bell v. State, 598 P.2d 908 (Alaska 1979); Edinger v. State, 598 P.2d 943 (Alaska 1979); Stumbaugh v. State, 599 P.2d 166 (Alaska 1979); Williams v. State, 600 P.2d 741 (Alaska 1979); Williams v. State, 600 P.2d 1092 (Alaska 1979); Mallott v. State, 608 P.2d 737 (Alaska 1980); Deal v. State, 626 P.2d 1073 (Alaska 1980); Putnam v. State, 629 P.2d 35 (Alaska 1980).

Upon review of a sentence lawfully imposed, supreme court is limited to determining whether the sentencing court was clearly mistaken in imposing a particular sentence. Chappell v. State, 592 P.2d 1218 (Alaska 1979).

A judge has a wide range of discretion in sentencing, and the supreme court shall not find a sentence to be illegal if there is a reasonable and valid basis for its imposition. Hagberg v. State, 606 P.2d 385 (Alaska 1980).

Review on appeal by state. —

When a sentence is appealed by the state, the court will express its disapproval of the sentence when its independent examination of the record indicates that the trial court was clearly mistaken in imposing the sentence. State v. Tucker, 581 P.2d 223 (Alaska 1978); Shagloak v. State, 582 P.2d 1034 (Alaska 1978), vacated, 597 P.2d 142 (Alaska 1979).

When a sentence is appealed by the state, the supreme court will express its disapproval of the sentence when its independent examination of the record indicates that the lower court was clearly mistaken in imposing the sentence. When a sentence is appealed by a defendant, the supreme court will modify or vacate the sentence and remand for resentencing under the same circumstances. State v. Afcan, 583 P.2d 849 (Alaska 1978).

When an appeal is brought by the state on grounds that the sentence imposed was too lenient, the court of appeals has authority only to express approval or disapproval of the sentence, and no actual increase of the sentence is permissible. State v. Price, 740 P.2d 476 (Alaska Ct. App. 1987).

“Clearly mistaken” test not applicable to Cr. R. 35(a) motion. —

The “clearly mistaken” test establishing a standard for the supreme court’s appellate review of sentences appealed to it under this section as excessive or too lenient has no application to a Alaska Rule of Criminal Procedure 35(a) motion to reduce or modify a sentence. Thomas v. State, 592 P.2d 1248 (Alaska 1979).

Some of the objectives of sentence review are: (1) To correct the sentence which is excessive in length, having regard to the nature of the offense, the character of the offender, and the protection of the public interest; (2) to facilitate the rehabilitation of the offender by affording him an opportunity to assert grievances he may have regarding his sentence; (3) to promote respect for law by correcting abuses of the sentencing power and by increasing the fairness of the sentencing process; and (4) to promote the development and application of criteria for sentencing which are both rational and just. State v. Chaney, 477 P.2d 441 (Alaska 1970); Perrin v. State, 543 P.2d 413 (Alaska 1975); Thurlkill v. State, 551 P.2d 541 (Alaska 1976); Andrews v. State, 552 P.2d 150 (Alaska 1976); Marks v. State, 557 P.2d 1136 (Alaska 1976); Benefield v. State, 559 P.2d 91 (Alaska 1977); Mutschler v. State, 560 P.2d 377 (Alaska 1977).

One of the objectives of sentence review is to correct the sentence which is excessive in length, having regard to the nature of the offense, the character of the offender and the protection of the public interest. Layland v. State, 549 P.2d 1182 (Alaska 1976).

One of the objectives of sentence review under this section is to express disapproval of the sentence which is too lenient, having regard to the nature of the offense, the character of the offender, and protection of the public. State v. Chaney, 477 P.2d 441 (Alaska 1970).

Achievement of such objectives. —

The objectives of sentence review will be achieved only if the sentence that is initially fixed is based on the conscientious effort of the trial judge to arrive at the sentence which best suits the case at hand. Nicholas v. State, 477 P.2d 447 (Alaska 1970); Hughes v. State, 513 P.2d 1115 (Alaska 1973); Perrin v. State, 543 P.2d 413 (Alaska 1975).

There is possibility of harm from very act of review itself in that all judges may attempt to arrive at a happy medium rather than attempting, through the personal initiative, experience, and training peculiar to trial judges, to formulate a program best suited to the individual in view of his background and the nature of the crime. Nicholas v. State, 477 P.2d 447 (Alaska 1970).

The fair approach in reviewing sentences is to treat the case as presenting only the crime of which the defendant has been convicted. Other offenses, for which guilt has not been established, should not be considered. Absent a conviction, an indictment is absolutely no evidence of guilty conduct. Galaktionoff v. State, 486 P.2d 919 (Alaska 1971).

That accused was probably guilty of more serious offenses than the one charged is not a proper consideration in the review of sentences. Galaktionoff v. State, 486 P.2d 919 (Alaska 1971).

Nature of offense is relevant factor in sentencing. —

Throughout the supreme court’s review of sentences, the degree of physical or psychological violence involved in the offense has been an important factor. Kelly v. State, 622 P.2d 432 (Alaska 1981).

In attempting to eliminate consideration of the nature of the offense from its consideration of relevant factors at sentencing, the superior court was clearly mistaken and the sentences in the case had to be reversed. Kelly v. State, 622 P.2d 432 (Alaska 1981).

Affirmation of sentences disregarding rehabilitation as alternative. —

In light of the importance of rehabilitation in the sentencing process, the court will affirm sentences which disregard rehabilitation as an alternative only where sufficiently articulated reasons are given for that decision or where these reasons appear clear on the face of the sentencing proceedings. Shagloak v. State, 582 P.2d 1034 (Alaska 1978), vacated, 597 P.2d 142 (Alaska 1979).

While rehabilitation is certainly one of the primary goals of sentencing, a court is not required to fashion a sentence to provide for rehabilitation if it finds that the potential for rehabilitation is nonexistent within the time constraints of the penalty for a particular offense. Bell v. State, 598 P.2d 908 (Alaska 1979).

Where the circumstances justify the sentencing court’s de-emphasis of the goal of rehabilitation because that possibility is minimal or outweighed by other factors, the supreme court will not find an abuse of discretion on the sentencing court’s part if it then imposes a sentence which is designed to advance other appropriate sentencing objectives. Shelton v. State, 611 P.2d 24 (Alaska 1980).

Where the sentencing judge concluded that the goal of rehabilitation and that of protection of the public from dangerous offenders were in conflict after reviewing a rape defendant’s record, psychiatric reports, and available rehabilitative programs, and given the seriousness of the crimes of which the defendant was convicted and his demonstrated extreme tendency towards recidivism, it was not an abuse of discretion that the trial court de-emphasized the goal of rehabilitation in relation to the other factors to be considered in sentencing. Coleman v. State, 621 P.2d 869 (Alaska 1980), cert. denied, 454 U.S. 1090, 102 S. Ct. 653, 70 L. Ed. 2d 628 (U.S. 1981).

The judge is not required to give priority to rehabilitation when the facts of the case support different results. Neakok v. State, 653 P.2d 658 (Alaska Ct. App. 1982).

Superior court accorded goal of rehabilitation sufficient weight. —

Collins v. State, 574 P.2d 1278 (Alaska 1978).

In view of defendant’s prior record and rehabilitation failures and in view of the dangerous nature of defendant’s acts, the supreme court was unable to say that improper weight was given to the goal of rehabilitation in sentencing defendant. Pike v. State, 570 P.2d 1066 (Alaska 1977).

Where, in its sentencing remarks, the superior court discussed the need to deter future misconduct on the part of defendant after his return to society, the need to deter others inclined to drive while drinking, and the necessity for a sentence that would reflect society’s strong condemnation of those individuals who take innocent lives by driving while intoxicated, but it is also plainly recognized that it was required to consider the question of the defendant’s rehabilitation, noting only that that was “not the sole matter” to be considered, the court clearly considered the criteria established in State v. Chaney, 477 P.2d 441 (Alaska 1970).Bishop v. State, 573 P.2d 856 (Alaska 1978).

Recidivism may properly be recognized as a significant factor in assessing a sentence. Shelton v. State, 611 P.2d 24 (Alaska 1980).

Recidivism demonstrated by the proximity in time of a defendant’s crimes to each other, or to his release from prior incarceration, is a significant factor in assessing a sentence. Coleman v. State, 621 P.2d 869 (Alaska 1980), cert. denied, 454 U.S. 1090, 102 S. Ct. 653, 70 L. Ed. 2d 628 (U.S. 1981).

Supreme court does not require that trial court accord each goal equal weight. —

Varying weight may be given to the goals based on the circumstances surrounding the crime and the information elicited in the presentence report and sentencing hearing. State v. Tucker, 581 P.2d 223 (Alaska 1978).

Sentencing procedure disapproved by reviewing court. —

The supreme court has disapproved of a sentencing procedure which, in essence, accused the defendant of perpetrating unspecified crimes and sentenced him, at least partially, on the basis of these assumptions. In re J. H. B., 578 P.2d 146 (Alaska 1978).

Review of presumptively imposed sentences. —

Because of the structured and comprehensive approach toward sentencing adopted by the Revised Criminal Code, when dealing with presumptively imposed sentences under AS 12.55.125 and 12.55.155 , the court of appeals will often be required to use not only the “clearly mistaken” standard adopted in McClain v. State, 519 P.2d 811 (Alaska 1974), but also the well established standards that normally apply to appellate review of a trial court’s factual determinations and legal conclusions. Juneby v. State, 641 P.2d 823 (Alaska Ct. App. 1982), modified, 665 P.2d 30 (Alaska Ct. App. 1983).

In a sentence appeal involving the presumptive sentencing provisions of AS 12.55.125 and 12.55.155 , the scope of review will necessarily entail more than the simple application of the “clearly mistaken” standard and the criteria of State v. Chaney, 477 P.2d 441 (Alaska 1970). This is because the procedures established by the presumptive sentencing statutes will normally require the consideration of issues other than the ultimate question of whether the sentence imposed was excessive or too lenient. Juneby v. State, 641 P.2d 823 (Alaska Ct. App. 1982), modified, 665 P.2d 30 (Alaska Ct. App. 1983).

Review of reimposition of sentence. —

In reviewing a reimposition of a full term sentence, previously suspended, the state supreme court will assess the propriety of the reimposition as it presently appears in light of all the information in the current record. Shearer v. State, 619 P.2d 726 (Alaska 1980).

When a sentence is imposed following probation revocation, the sentencing judge must consider the same criteria as those considered initially upon conviction of the underlying offense. Kanipe v. State, 620 P.2d 678 (Alaska 1980).

Imposition of jail time is not necessarily called for simply because the express terms of probation have been violated. Kanipe v. State, 620 P.2d 678 (Alaska 1980).

It is not the purpose of appellate review to enforce uniformity in the sense that all defendants committing the same crime should receive like sentences. Perrin v. State, 543 P.2d 413 (Alaska 1975).

It is not the purpose of appellate review to enforce uniformity in sentencing. Padie v. State, 594 P.2d 50 (Alaska 1979).

Reasonable disparities in sentencing are necessary. —

While unjustifiable disparities in the sentencing of criminal offenders may be a serious problem to many observers of the criminal process, the key word is “unjustifiable,” for reasonable disparity is necessary to achieve the purposes of sentencing. Nicholas v. State, 477 P.2d 447 (Alaska 1970); Perrin v. State, 543 P.2d 413 (Alaska 1975).

But same background and same offense should merit like punishment. —

Although sentencing is an individualized process and uniformity is not a goal of sentencing review, if two persons of identical background commit the same offense, they should receive like punishment. Salazar v. State, 562 P.2d 694 (Alaska 1977); Padie v. State, 594 P.2d 50 (Alaska 1979). See Ferguson v. State, 606 P.2d 382 (Alaska 1980).

While theoretically two defendants with identical backgrounds should receive like sentences, there are too many factors entering into sentencing to produce such a mechanical result. Nevertheless, disparity in sentencing should be minimized to the extent possible where like offenders are charged with similar crimes. Strachan v. State, 615 P.2d 611 (Alaska 1980).

Supreme court will consider whether disparity in sentencing is so irrational as to be “unjustifiable.” Padie v. State, 594 P.2d 50 (Alaska 1979).

Supreme court abhors any inequality in sentencing based on racial differences. Hunter v. State, 590 P.2d 888 (Alaska 1979), limited, Nelson v. State, 628 P.2d 884 (Alaska 1981).

Standard which is required to establish claim of racial bias in sentencing is an indication that the defendant’s sentence was probably higher than that which would have been imposed upon a defendant of a different race with a like criminal history who committed a similar offense. Coleman v. State, 621 P.2d 869 (Alaska 1980), cert. denied, 454 U.S. 1090, 102 S. Ct. 653, 70 L. Ed. 2d 628 (U.S. 1981).

Supreme court was unable to consider claim of racial bias in sentencing where defense counsel merely cited a study by the Alaska Judicial Council, that blacks convicted of burglary, larceny, and receiving stolen property tend to receive significantly higher sentences than persons of other races, without giving any indication that defendant’s sentence was probably higher than that which would have been imposed upon a defendant of a different race with a like criminal history who committed a similar offense. Campbell v. State, 594 P.2d 65 (Alaska 1979); Bell v. State, 598 P.2d 908 (Alaska 1979); Preston v. State, 615 P.2d 594 (Alaska 1980).

Total sentence to be considered. —

In determining whether a given sentence is excessive or overly lenient, the supreme court will consider the total sentence entered including any period of suspension or deferred imposition. Andrews v. State, 552 P.2d 150 (Alaska 1976); Nattrass v. State, 554 P.2d 399 (Alaska 1976); Zurfluh v. State, 620 P.2d 690 (Alaska 1980); Pascoe v. State, 628 P.2d 547 (Alaska 1980).

For sentence review purposes, the supreme court must consider the entire sentence imposed without regard to possible parole date. Hansen v. State, 582 P.2d 1041 (Alaska 1978).

Although generally the supreme court would not assess the combined length of two separately imposed consecutive sentences, when both sentences had been separately appealed to that court, it was appropriate to consider the overall length of the combined sentences in one appeal. Neal v. State, 628 P.2d 19 (Alaska 1981).

While suspension of a portion of the term eliminates the requirement of a worse offender analysis, the entire length of the sentence must be assessed without the regard to the suspension to determine whether it is excessive. Ferreira v. State, 602 P.2d 803 (Alaska 1979).

As well as manner in which sentence imposed. —

In carrying out its authority to review criminal sentences, the supreme court is also obliged to consider the manner in which the sentence was imposed. State v. Abraham, 566 P.2d 267 (Alaska 1977).

This section requires the reviewing court to consider the manner in which the sentence was imposed, including the sufficiency and accuracy of the information upon which it was based. Schmid v. State, 615 P.2d 565 (Alaska 1980).

Trial court reliance on impermissible factors. —

Supreme court reviewed a sentence where defendant’s sole contention was that the superior court erred in considering certain information appearing in his presentence report and made no direct claim that the sentence was excessive. Franzen v. State, 573 P.2d 55 (Alaska 1978).

Although excessiveness is the only statutory ground for a sentence appeal by the defendant, the reviewing court has previously considered whether the trial court relied on impermissible factors. Schmid v. State, 615 P.2d 565 (Alaska 1980).

Supreme court had jurisdiction, under subsection (a), to determine whether the superior court’s sentence to defendant convicted of burglary not in a dwelling of three years’ imprisonment with all but six months suspended upon conditions of probation was excessive. Nattrass v. State, 554 P.2d 399 (Alaska 1976).

Placement in drug rehabilitation program. —

The supreme court has rejected the notion that a drug addict must be placed in a drug rehabilitation program rather than be incarcerated. Johnson v. State, 580 P.2d 700 (Alaska 1978).

The supreme court will not automatically reverse a sentence because a drug addict is not placed in a drug rehabilitation program. Daniels v. State, 584 P.2d 47 (Alaska 1978); Good v. State, 590 P.2d 420 (Alaska 1979).

A sentence will not be reversed simply because an offender is incarcerated rather than placed in a rehabilitative facility. Holmes v. State, 604 P.2d 248 (Alaska 1979).

Although sentences imposed on defendant, a heroin addict, were not excessive, the case was remanded with directions to enter an amended judgment which included a recommendation to the division of corrections that defendant receive treatment for his drug addition as the division of corrections may find advisable. Good v. State, 590 P.2d 420 (Alaska 1979).

Imposition of sentence of imprisonment following probation revocation was a “sentence of imprisonment lawfully imposed” within the meaning of former statutes providing for sentence review; and the supreme court could review that portion of a sentence of imprisonment, originally suspended, that was later imposed when probation had been revoked. Gilligan v. State, 560 P.2d 17 (Alaska 1977); Shearer v. State, 619 P.2d 726 (Alaska 1980).

Imposition of maximum sentence held improper. —

Where the trial court imposed the maximum sentence not as a result of an application of the State v. Chaney, 477 P.2d 411 (Alaska 1970), criteria, but as an effort to coerce defendant into a rehabilitative program, that was an improper use of sentencing. Szeratics v. State, 572 P.2d 63 (Alaska 1977).

Factors applied where sentences approach maximum. —

The factors used for worst offender classification are also to be applied in reviewing sentences which approach the maximum for the particular offense. Kraus v. State, 604 P.2d 12 (Alaska 1979).

Improper method for obtaining sentence review. —

An application for post-conviction relief or habeas corpus is not a proper vehicle for obtaining sentence review pursuant to this section. Lemon v. State, 654 P.2d 277 (Alaska Ct. App. 1982).

There is no authority which would sanction expansion of superior court’s jurisdiction to pass sentence into realm of review and modification which is statutorily vested in either the supreme court or the executive branch of government. Therefore, the superior court lacks jurisdiction to review its own sentence, after it has entered a judgment on the matter, more than 60 days after it has imposed sentence. Davenport v. State, 543 P.2d 1204 (Alaska 1975); Szeratics v. State, 572 P.2d 63 (Alaska 1977).

Or which permits additional probation following service of sentence. —

There is no authority under Alaska law which permits a court, when probation is revoked, to impose a fixed sentence, require the defendant to serve that sentence, and then place the defendant on an additional period of probation following service of the sentence. Franzen v. State, 573 P.2d 55 (Alaska 1978).

Sentence imposed affirmed. —

See Nicholas v. State, 477 P.2d 447 (Alaska 1970); Deveroux v. State, 548 P.2d 1296 (Alaska 1976); State v. Trunnel, 549 P.2d 550 (Alaska 1976); Layland v. State, 549 P.2d 1182 (Alaska 1976); Thurlkill v. State, 551 P.2d 541 (Alaska 1976); Noble v. State, 552 P.2d 142 (Alaska 1976); Coleman v. State, 553 P.2d 40 (Alaska 1976); Wolfe v. State, 553 P.2d 472 (Alaska 1976); Horton v. State, 553 P.2d 484 (Alaska 1976); Schuster v. State, 553 P.2d 925 (Alaska 1976); Godwin v. State, 554 P.2d 453 (Alaska 1976); Buchanan v. State, 554 P.2d 1153 (Alaska 1976); Dawson v. State, 557 P.2d 142 (Alaska 1976); Marks v. State, 557 P.2d 1136 (Alaska 1976); Benefield v. State, 559 P.2d 91 (Alaska 1977); Gilligan v. State, 560 P.2d 17 (Alaska 1977); Mutschler v. State, 560 P.2d 377 (Alaska 1977); Bragg v. State, 560 P.2d 391 (Alaska 1977); Nukapigak v. State, 562 P.2d 697 (Alaska 1977); Sandvik v. State, 564 P.2d 20 (Alaska 1977); Aceveda v. State, 571 P.2d 1013 (Alaska 1977); Peter v. State, 572 P.2d 1179 (Alaska 1978); Mullins v. State, 573 P.2d 860 (Alaska 1978); Weltin v. State, 574 P.2d 816 (Alaska 1978); Alex v. State, 576 P.2d 113 (Alaska 1978); Menard v. State, 578 P.2d 966 (Alaska 1978); Brown v. State, 578 P.2d 982 (Alaska 1978); Smothers v. State, 579 P.2d 1062 (Alaska 1978); Post v. State, 580 P.2d 304 (Alaska 1978); Klenke v. State, 581 P.2d 1119 (Alaska 1978); Honeycutt v. State, 583 P.2d 805 (Alaska 1978); Bendle v. State, 583 P.2d 840 (Alaska 1978); State v. Afcan, 583 P.2d 849 (Alaska 1978); Daniels v. State, 584 P.2d 47 (Alaska 1978); Ferguson v. State, 590 P.2d 43 (Alaska 1979); One v. State, 592 P.2d 1193 (Alaska 1979); Dayton v. State, 598 P.2d 67 (Alaska 1979); Stone v. State, 598 P.2d 72 (Alaska 1979); Edinger v. State, 598 P.2d 943 (Alaska 1979); Larson v. State, 598 P.2d 946 (Alaska 1979); LaBarbera v. State, 598 P.2d 947 (Alaska 1979); Elstad v. State, 599 P.2d 137 (Alaska 1979); Charles v. State, 606 P.2d 390 (Alaska 1980); Pyrdol v. State, 617 P.2d 513 (Alaska 1980); Nelson v. State, 619 P.2d 480 (Alaska Ct. App. 1980); Shearer v. State, 619 P.2d 726 (Alaska 1980); Coleman v. State, 621 P.2d 869 (Alaska 1980), cert. denied, 454 U.S. 1090, 102 S. Ct. 653, 70 L. Ed. 2d 628 (U.S. 1981); Bryant v. State, 623 P.2d 310 (Alaska 1981); Hoover v. State, 641 P.2d 1263 (Alaska Ct. App. 1982); Davidson v. State, 642 P.2d 1383 (Alaska Ct. App. 1982); Parker v. State, 714 P.2d 802 (Alaska Ct. App. 1986); State v. Price, 740 P.2d 476 (Alaska Ct. App. 1987); State v. Capjohn, 779 P.2d 1255 (Alaska Ct. App. 1989); State v. Clark, 782 P.2d 308 (Alaska Ct. App. 1989).

Sentence too lenient. —

See State v. Chaney, 477 P.2d 441 (Alaska 1970); State v. Wortham, 537 P.2d 1117 (Alaska 1975); Cleary v. State, 548 P.2d 952 (Alaska 1976); State v. Lancaster, 550 P.2d 1257 (Alaska 1976); Salazar v. State, 562 P.2d 694 (Alaska 1977); Cleary v. State, 564 P.2d 374 (Alaska 1977); Amidon v. State, 565 P.2d 1248 (Alaska 1977); State v. Abraham, 566 P.2d 267 (Alaska 1977); Black v. State, 569 P.2d 804 (Alaska 1977); State v. Wassilie, 578 P.2d 971 (Alaska 1978); Sumabat v. State, 580 P.2d 323 (Alaska 1978); Hansen v. State, 582 P.2d 1041 (Alaska 1978); Kanipe v. State, 620 P.2d 678 (Alaska 1980); Hintz v. State, 627 P.2d 207 (Alaska 1981); Putnam v. State, 629 P.2d 35 (Alaska 1980); State v. Brinkley, 681 P.2d 351 (Alaska Ct. App. 1984); State v. Hooper, 750 P.2d 840 (Alaska Ct. App. 1988).

Inclusion of improper reference to unverified police contacts did not require remand for resentencing before different judge. —

Parks v. State, 571 P.2d 1003 (Alaska 1977).

Reference to unverified police contacts in a presentence report does not require a remand for resentencing where the record indicates that the sentencing judge was not unduly or improperly influenced by reference to the unverified police contacts. Pascoe v. State, 628 P.2d 547 (Alaska 1980).

Case remanded for resentencing. —

See Neal v. State, 628 P.2d 19 (Alaska 1981).

Case remanded for sentence review. —

Although a sentence of 15 years’ imprisonment, with eligibility for parole at the discretion of the parole board, upon conviction of manslaughter was not excessive, since the trial court had sentenced defendant as if his conviction had been obtained within one year of the crime and, therefore, substantially ignored his subsequent history of steady employment, his meritorious service in the army, and his lack of involvement in any criminal activity other than a few traffic offenses in the 12 years since the commission of the crime, the case was remanded for the purpose of permitting the trial court to review the sentence it imposed, in light of all available information concerning defendant without excluding the time period commencing one year from the time of the killing until the present. Padie v. State, 594 P.2d 50 (Alaska 1979).

Sec. 12.55.125. Sentences of imprisonment for felonies.

  1. A defendant convicted of murder in the first degree or murder of an unborn child under AS 11.41.150(a)(1) shall be sentenced to a definite term of imprisonment of at least 30 years but not more than 99 years. A defendant convicted of murder in the first degree shall be sentenced to a mandatory term of imprisonment of 99 years when
    1. the defendant is convicted of the murder of a uniformed or otherwise clearly identified peace officer, firefighter, or correctional employee who was engaged in the performance of official duties at the time of the murder;
    2. the defendant has been previously convicted of
      1. murder in the first degree under AS 11.41.100 or former AS 11.15.010 or 11.15.020;
      2. murder in the second degree under AS 11.41.110 or former AS 11.15.030; or
      3. homicide under the laws of another jurisdiction when the offense of which the defendant was convicted contains elements similar to first degree murder under AS 11.41.100 or second degree murder under AS 11.41.110 ;
    3. the defendant subjected the murder victim to substantial physical torture;
    4. the defendant is convicted of the murder of and personally caused the death of a person, other than a participant, during a robbery; or
    5. the defendant is a peace officer who used the officer’s authority as a peace officer to facilitate the murder.
  2. A defendant convicted of attempted murder in the first degree, solicitation to commit murder in the first degree, conspiracy to commit murder in the first degree, kidnapping, or misconduct involving a controlled substance in the first degree shall be sentenced to a definite term of imprisonment of at least five years but not more than 99 years. A defendant convicted of murder in the second degree or murder of an unborn child under AS 11.41.150(a)(2) — (4) shall be sentenced to a definite term of imprisonment of at least 15 years but not more than 99 years. A defendant convicted of murder in the second degree shall be sentenced to a definite term of imprisonment of at least 20 years but not more than 99 years when the defendant is convicted of the murder of a child under 16 years of age and the court finds by clear and convincing evidence that the defendant (1) was a natural parent, a stepparent, an adoptive parent, a legal guardian, or a person occupying a position of authority in relation to the child; or (2) caused the death of the child by committing a crime against a person under AS 11.41.200 — 11.41.530 . In this subsection, “legal guardian” and “position of authority” have the meanings given in AS 11.41.470 .
  3. Except as provided in (i) of this section, a defendant convicted of a class A felony may be sentenced to a definite term of imprisonment of not more than 20 years, and shall be sentenced to a definite term within the following presumptive ranges, subject to adjustment as provided in AS 12.55.155 — 12.55.175 :
    1. if the offense is a first felony conviction and does not involve circumstances described in (2) of this subsection, four to seven years;
    2. if the offense is a first felony conviction
      1. and the defendant possessed a firearm, used a dangerous instrument, or caused serious physical injury or death during the commission of the offense, or knowingly directed the conduct constituting the offense at a uniformed or otherwise clearly identified peace officer, firefighter, correctional employee, emergency medical technician, paramedic, ambulance attendant, or other emergency responder who was engaged in the performance of official duties at the time of the offense, seven to 11 years;
      2. and the conviction is for manufacturing related to methamphetamine under AS 11.71.021(a)(2)(A) or (B), seven to 11 years if
        1. the manufacturing occurred in a building with reckless disregard that the building was used as a permanent or temporary home or place of lodging for one or more children under 18 years of age or the building was a place frequented by children; or
        2. in the course of manufacturing or in preparation for manufacturing, the defendant obtained the assistance of one or more children under 18 years of age or one or more children were present;
    3. if the offense is a second felony conviction, 10 to 14 years;
    4. if the offense is a third felony conviction and the defendant is not subject to sentencing under (l) of this section, 15 to 20 years.
  4. Except as provided in (i) of this section, a defendant convicted of a class B felony may be sentenced to a definite term of imprisonment of not more than 10 years, and shall be sentenced to a definite term within the following presumptive ranges, subject to adjustment as provided in AS 12.55.155 — 12.55.175 :
    1. if the offense is a first felony conviction and does not involve circumstances described in (2) of this subsection, one to three years; a defendant sentenced under this paragraph may, if the court finds it appropriate, be granted a suspended imposition of sentence under AS 12.55.085 if, as a condition of probation under AS 12.55.086 , the defendant is required to serve an active term of imprisonment within the range specified in this paragraph, unless the court finds that a mitigation factor under AS 12.55.155 applies;
    2. if the offense is a first felony conviction,
      1. the defendant violated AS 11.41.130 , and the victim was a child under 16 years of age, two to four years;
      2. two to four years if the conviction is for attempt, solicitation, or conspiracy to manufacture related to methamphetamine under AS 11.31 and AS 11.71.021(a)(2)(A) or (B), and
        1. the attempted manufacturing occurred, or the solicited or conspired offense was to have occurred, in a building with reckless disregard that the building was used as a permanent or temporary home or place of lodging for one or more children under 18 years of age or the building was a place frequented by children; or
        2. in the course of an attempt to manufacture, the defendant obtained the assistance of one or more children under 18 years of age or one or more children were present;
    3. if the offense is a second felony conviction, three to seven years;
    4. if the offense is a third felony conviction, six to 10 years.
  5. Except as provided in (i) of this section, a defendant convicted of a class C felony may be sentenced to a definite term of imprisonment of not more than five years, and shall be sentenced to a definite term within the following presumptive ranges, subject to adjustment as provided in AS 12.55.155 — 12.55.175 :
    1. if the offense is a first felony conviction and does not involve circumstances described in (4) of this subsection, zero to two years; a defendant sentenced under this paragraph may, if the court finds it appropriate, be granted a suspended imposition of sentence under AS 12.55.085 , and the court may, as a condition of probation under AS 12.55.086 , require the defendant to serve an active term of imprisonment within the range specified in this paragraph;
    2. if the offense is a second felony conviction, two to four years;
    3. if the offense is a third felony conviction, three to five years;
    4. if the offense is a first felony conviction, and the defendant violated AS 08.54.720(a)(15) , one to two years.
  6. If a defendant is sentenced under (a) or (b) of this section,
    1. imprisonment for the prescribed minimum or mandatory term may not be suspended under AS 12.55.080 ;
    2. imposition of sentence may not be suspended under AS 12.55.085 ;
    3. imprisonment for the prescribed minimum or mandatory term may not be reduced, except as provided in (j) of this section.
  7. If a defendant is sentenced under (c), (d), (e), or (i) of this section, except to the extent permitted under AS 12.55.155 — 12.55.175 ,
    1. imprisonment may not be suspended under AS 12.55.080 below the low end of the presumptive range;
    2. and except as provided in (d)(1) or (e)(1) of this section, imposition of sentence may not be suspended under AS 12.55.085 ;
    3. terms of imprisonment may not be otherwise reduced.
  8. Nothing in this section or AS 12.55.135 limits the discretion of the sentencing judge except as specifically provided. Nothing in (a) of this section limits the court’s discretion to impose a sentence of 99 years imprisonment, or to limit parole eligibility, for a person convicted of murder in the first or second degree in circumstances other than those enumerated in (a).
  9. A defendant convicted of
    1. sexual assault in the first degree, sexual abuse of a minor in the first degree, unlawful exploitation of a minor under AS 11.41.455(c)(2) , or sex trafficking in the first degree under AS 11.66.110(a)(2) may be sentenced to a definite term of imprisonment of not more than 99 years and shall be sentenced to a definite term within the following presumptive ranges, subject to adjustment as provided in AS 12.55.155 — 12.55.175 :
      1. if the offense is a first felony conviction, the offense does not involve circumstances described in (B) of this paragraph, and the victim was
        1. less than 13 years of age, 25 to 35 years;
        2. 13 years of age or older, 20 to 30 years;
      2. if the offense is a first felony conviction and the defendant possessed a firearm, used a dangerous instrument, or caused serious physical injury during the commission of the offense, 25 to 35 years;
      3. if the offense is a second felony conviction and does not involve circumstances described in (D) of this paragraph, 30 to 40 years;
      4. if the offense is a second felony conviction and the defendant has a prior conviction for a sexual felony, 35 to 45 years;
      5. if the offense is a third felony conviction and the defendant is not subject to sentencing under (F) of this paragraph or (l) of this section, 40 to 60 years;
      6. if the offense is a third felony conviction, the defendant is not subject to sentencing under (l) of this section, and the defendant has two prior convictions for sexual felonies, 99 years;
    2. unlawful exploitation of a minor under AS 11.41.455(c)(1) , enticement of a minor under AS 11.41.452(e) , or attempt, conspiracy, or solicitation to commit sexual assault in the first degree, sexual abuse of a minor in the first degree, or sex trafficking in the first degree under AS 11.66.110(a)(2) may be sentenced to a definite term of imprisonment of not more than 99 years and shall be sentenced to a definite term within the following presumptive ranges, subject to adjustment as provided in AS 12.55.155 — 12.55.175 :
      1. if the offense is a first felony conviction, the offense does not involve circumstances described in (B) of this paragraph, and the victim was
        1. under 13 years of age, 20 to 30 years;
        2. 13 years of age or older, 15 to 30 years;
      2. if the offense is a first felony conviction and the defendant possessed a firearm, used a dangerous instrument, or caused serious physical injury during the commission of the offense, 25 to 35 years;
      3. if the offense is a second felony conviction and does not involve circumstances described in (D) of this paragraph, 25 to 35 years;
      4. if the offense is a second felony conviction and the defendant has a prior conviction for a sexual felony, 30 to 40 years;
      5. if the offense is a third felony conviction, the offense does not involve circumstances described in (F) of this paragraph, and the defendant is not subject to sentencing under (l) of this section, 35 to 50 years;
      6. if the offense is a third felony conviction, the defendant is not subject to sentencing under (l) of this section, and the defendant has two prior convictions for sexual felonies, 99 years;
    3. sexual assault in the second degree, sexual abuse of a minor in the second degree, enticement of a minor under AS 11.41.452(d) , indecent exposure in the first degree under AS 11.41.458(b)(2) , or distribution of child pornography under AS 11.61.125(e)(2) may be sentenced to a definite term of imprisonment of not more than 99 years and shall be sentenced to a definite term within the following presumptive ranges, subject to adjustment as provided in AS 12.55.155 — 12.55.175:
      1. if the offense is a first felony conviction, five to 15 years;
      2. if the offense is a second felony conviction and does not involve circumstances described in (C) of this paragraph, 10 to 25 years;
      3. if the offense is a second felony conviction and the defendant has a prior conviction for a sexual felony, 15 to 30 years;
      4. if the offense is a third felony conviction and does not involve circumstances described in (E) of this paragraph, 20 to 35 years;
      5. if the offense is a third felony conviction and the defendant has two prior convictions for sexual felonies, 99 years;
    4. sexual assault in the third degree, sexual abuse of a minor in the third degree under AS 11.41.438(c) , incest, indecent exposure in the first degree under AS 11.41.458(b)(1) , indecent viewing or production of a picture under AS 11.61.123(f)(1) or (2), possession of child pornography, distribution of child pornography under AS 11.61.125(e)(1) , or attempt, conspiracy, or solicitation to commit sexual assault in the second degree, sexual abuse of a minor in the second degree, unlawful exploitation of a minor, or distribution of child pornography, may be sentenced to a definite term of imprisonment of not more than 99 years and shall be sentenced to a definite term within the following presumptive ranges, subject to adjustment as provided in AS 12.55.155 — 12.55.175:
      1. if the offense is a first felony conviction and does not involve the circumstances described in (B) or (C) of this paragraph, two to 12 years;
      2. if the offense is a first felony conviction under AS 11.61.125(e)(1) and does not involve circumstances described in (C) of this paragraph, four to 12 years;
      3. if the offense is a first felony conviction under AS 11.61.125(e)(1), and the defendant hosted, created, or helped host or create a mechanism for multi-party sharing or distribution of child pornography, or received a financial benefit or had a financial interest in a child pornography sharing or distribution mechanism, six to 14 years;
      4. if the offense is a second felony conviction and does not involve circumstances described in (E) of this paragraph, eight to 15 years;
      5. if the offense is a second felony conviction and the defendant has a prior conviction for a sexual felony, 12 to 20 years;
      6. if the offense is a third felony conviction and does not involve circumstances described in (G) of this paragraph, 15 to 25 years;
      7. if the offense is a third felony conviction and the defendant has two prior convictions for sexual felonies, 99 years.
  10. A defendant sentenced to a (1) mandatory term of imprisonment of 99 years under (a) of this section may apply once for a modification or reduction of sentence under the Alaska Rules of Criminal Procedure after serving one-half of the mandatory term without consideration of good time earned under AS 33.20.010 , or (2) definite term of imprisonment under (l) of this section may apply once for a modification or reduction of sentence under the Alaska Rules of Criminal Procedure after serving one-half of the definite term. A defendant may not file and a court may not entertain more than one motion for modification or reduction of a sentence subject to this subsection, regardless of whether or not the court granted or denied a previous motion.
  11. [Repealed, § 32 ch 2 SLA 2005.]
  12. Notwithstanding any other provision of law, a defendant convicted of an unclassified or class A felony offense, and not subject to a mandatory 99-year sentence under (a) of this section, shall be sentenced to a definite term of imprisonment of 99 years when the defendant has been previously convicted of two or more most serious felonies. If a defendant is sentenced to a definite term under this subsection,
    1. imprisonment for the prescribed definite term may not be suspended under AS 12.55.080 ;
    2. imposition of sentence may not be suspended under AS 12.55.085 ;
    3. imprisonment for the prescribed definite term may not be reduced, except as provided in (j) of this section.
  13. Notwithstanding (a)(4) and (f) of this section, if a court finds that imposition of a mandatory term of imprisonment of 99 years on a defendant subject to sentencing under (a)(4) of this section would be manifestly unjust, the court may sentence the defendant to a definite term of imprisonment otherwise permissible under (a) of this section.
  14. In imposing a sentence within a presumptive range under (c), (d), (e), or (i) of this section, the total term, made up of the active term of imprisonment plus any suspended term of imprisonment, must fall within the presumptive range, and the active term of imprisonment may not fall below the lower end of the presumptive range.
  15. [Repealed, §  179 ch. 36 SLA 2016.]
  16. If the state seeks either (1) the imposition of a sentence under (a) of this section that would preclude the defendant from being awarded a good time deduction under AS 33.20.010(a) based on a fact other than a prior conviction; or (2) to establish a fact that would increase the presumptive sentencing range under (c)(2), (d)(2), (e)(4), (i)(1)(A) or (B), or (i)(2)(A) or (B) of this section, the factual question required to be decided shall be presented to a trial jury and proven beyond a reasonable doubt under procedures set by the court, unless the defendant waives trial by jury and either stipulates to the existence of the fact or consents to have the fact proven to the court sitting without a jury. Written notice of the intent to establish a fact under this subsection must be served on the defendant and filed with the court as provided for notice under AS 12.55.155(f)(2) .
  17. Other than for convictions subject to a mandatory 99-year sentence, the court shall impose, in addition to an active term of imprisonment imposed under (i) of this section, a minimum period of (1) suspended imprisonment of five years and a minimum period of probation supervision of 15 years for conviction of an unclassified felony, (2) suspended imprisonment of three years and a minimum period of probation supervision of 10 years for conviction of a class A or class B felony, or (3) suspended imprisonment of two years and a minimum period of probation supervision of five years for conviction of a class C felony. The period of probation is in addition to any sentence received under (i) of this section and may not be suspended or reduced. Upon a defendant’s release from confinement in a correctional facility, the defendant is subject to the probation requirement under this subsection and shall submit and comply with the terms and requirements of the probation.

History. (§ 12 ch 166 SLA 1978; am § 18 ch 45 SLA 1982; am §§ 28 — 30 ch 143 SLA 1982; am § 8 ch 78 SLA 1983; am §§ 1 — 3 ch 92 SLA 1983; am § 5 ch 59 SLA 1988; am § 4 ch 37 SLA 1989; am §§ 23 — 25 ch 79 SLA 1992; am § 5 ch 3 SLA 1994; am §§ 1, 2, 6 ch 6 SLA 1996; am §§ 3 — 7 ch 7 SLA 1996; am § 8 ch 30 SLA 1996; am § 4 ch 33 SLA 1996; am §§ 9 — 11 ch 54 SLA 1999; am § 1 ch 65 SLA 1999; am §§ 1, 2 ch 49 SLA 2000; am § 4 ch 60 SLA 2002; am §§ 1 — 5 ch 90 SLA 2003; am § 5 ch 99 SLA 2004; am §§ 8 — 13, 32 ch 2 SLA 2005; am §§ 4 — 7 ch 14 SLA 2006; am §§ 14, 15 ch 53 SLA 2006; am §§ 8, 9 ch 73 SLA 2006; am § 2 ch 8 SLA 2007; am § 23 ch 24 SLA 2007; am § 9 ch 41 SLA 2009; am § 18 ch 20 SLA 2011; am § 20 ch 1 TSSLA 2012; am §§ 11, 12 ch 70 SLA 2012; am §§ 86 — 90, 179 ch 36 SLA 2016; am §§ 32 — 34 ch 1 4SSLA 2017; am §§ 70 — 74 ch 4 FSSLA 2019)

Cross references. —

Definition of “firearm,” “serious physical injury,” “first felony conviction,” “second felony conviction,” “third felony conviction” — AS 12.55.185

Classification of offenses — AS 11.81.250

Prior convictions — AS 12.55.145

Factors in aggravation and mitigation — AS 12.55.155

Extraordinary circumstances — AS 12.55.165

Three-judge sentencing panel — AS 12.55.175

Granting of parole — AS 33.15.080

Persons eligible for parole — AS 33.15.180

Computation of good time — AS 33.20.010

Original Code Provision — AS 12.55.040 ; AS 12.55.050 .

Revisor's notes. —

In 2016, paragraphs (c)(2) and (d)(2) were rewritten to give effect to the 2016 amendments and repeals in those paragraphs.

Cross references. —

For classification of felonies and misdemeanors, see AS 11.81.250 ; for authorized fines, see AS 12.55.035 ; for reduction of sentence for good behavior, see AS 33.20.010 . For effect of subsection (p) on Rule 32.1, Alaska Rules of Criminal Procedure, see § 16, ch. 70, SLA 2012.

For provision relating to the applicability of the 2016 amendments to this section, see secs. 185(a)(32) and (33), (u)(1) — (3), and (v), ch. 36, SLA 2016, in the 2016 Temporary and Special Acts.

For provision relating to applicability of the 2017 amendment to subsections (c) and (e) and enactment of (q) see sec. 75(b)(2) — (4), ch. 1, 4SSLA 2017, in the 2017 Temporary and Special Acts.

For a statement of legislative intent regarding the 2019 amendment to (i) of this section, see § 1, ch. 4, FSSLA 2019, in the 2019 Temporary and Special Acts.

Administrative Code. —

For eligibility for discretionary parole, see 22 AAC 20, art. 1.

Effect of amendments. —

The 2009 amendment, effective June 21, 2009, in (b), substituted “adoptive” for “adopted” following “(1) was a natural parent, a stepparent, an”.

The 2011 amendment, effective July 1, 2011, in (i)(2), added “unlawful exploitation of a minor under AS 11.41.455(c)(2) , online enticement of a minor under AS 11.41.452(e) , or” at the beginning of the paragraph; in (i)(3) added “online enticement of a minor under AS 11.41.452(d) ” following “minor in the second degree,” “under AS 11.41.455(c)(1) ” following “unlawful exploitation of a minor,” and “under AS 11.61.125(e)(2) ” following “distribution of child pornography”; and in (i)(4) added “distribution of child pornography under AS 11.61.125(e)(1) ” following “possession of child pornography”.

The first 2012 amendment, effective July 1, 2012, deleted “The court finds by clear and convincing evidence that” in (a)(3) and (a)(5); added (p).

The second 2012 amendment, effective July 1, 2012, in (i), substituted “sex trafficking” for “promoting prostitution” twice.

The 2016 amendment, effective July 12, 2016, in the introductory language of (a), substituted “30 years” for “20 years”; in (b), in the second sentence, substituted “15 years” for “10 years”; in (c)(1), substituted “three to six years” for “five to eight years”, in (c)(2)(A), substituted “five to nine years” for “seven to eleven years”, in (c)(3), substituted “eight to 12 years for “10 to 14 years”, repealed (c)(2)(BZ), in (c)(4), substituted “13 to 20 years” for “15 to 20 years”; in (d)(1), substituted “zero to two years” for “one to three years” and deleted “if, as a condition of probation under AS 12.55.086 , the defendant is required to serve an active term of imprisonment within the range specified in this paragraph, unless the court finds that a mitigation factor under AS 12.55.155 applies”, at the end; in (d)(2)(A), designated a portion of (A) as (i) and added (d)(2)(A)(ii), repealed (d)(2)(B), in (d)(3), substituted “two to five years” for “four to seven years”, in (d)(4), substituted “four to 10 years” for “six to 10 years”; in (e)(1), inserted “probation, with a suspended term of imprisonment of” preceding “zero”; substituted “18 months” for “two years”; deleted “, and the court may, as a condition of probation under AS 12.55.086 , require the defendant to serve an active term of imprisonment within the range specified in this paragraph” following “AS 12.55.085 ”, in (e)(2), substituted “one to three years” for “two to four years”, in (e)(3), substituted “two to five years” for “three to five years”; in (e)(4), designated a portion of (4) as (A); added (e)(4)(B) - (D); repealed (o); and made related changes.

The 2017 amendment, effective November 27, 2017, in (c), inserted “five to nine years;” at the end of (c)(2)(A), substituted “seven to 11 years” for “five to nine years” at the end of (c)(2)(B) and made related changes; in the introductory language in (e)(1), substituted “zero to two years” for “probation, with a suspended term of imprisonment of zero to 18 months” following “(4) of this subsection,” and inserted “, and the court may, as a condition of probation under AS 12.55.086 , require the defendant to serve an active term of imprisonment within the range specified in this paragraph;” at the end; in (e)(2), substituted “one to four years” for “one to three years”; rewrote (e)(4); added (q).

The 2019 amendment, effective July 9, 2019, in (c), substituted “four to seven years” for “three to six years” in (1), rewrote (2), which read, “(2) if the offense is a first felony conviction and the defendant

“(A) possessed a firearm, used a dangerous instrument, or caused serious physical injury or death during the commission of the offense, five to nine years; or

“(B) knowingly directed the conduct constituting the offense at a uniformed or otherwise clearly identified peace officer, firefighter, correctional employee, emergency medical technician, paramedic, ambulance attendant, or other emergency responder who was engaged in the performance of official duties at the time of the offense, seven to 11 years;” substituted “10 to 14 years” for “eight to 12 years” in (3), and substituted “15 to 20 years” for “13 to 20 years” in (4); in (d), rewrote (1) and (2), which read, “(1) if the offense is a first felony conviction and does not involve circumstances described in (2) of this subsection, zero to two years; a defendant sentenced under this paragraph may, if the court finds it appropriate, be granted a suspended imposition of sentence under AS 12.55.085 ;

“(2) if the offense is a first felony conviction, the defendant violated AS 11.41.130 , and the victim was

“(A) a child under 16 years of age, two to four years; or

“(B) was 16 years of age or older, one to three years;”, substituted “three to seven years” for “two to five years” in (3) and “six to 10 years” for “four to 10 years” in (4); in (e), substituted “two to four years” for “one to four years” in (2) and “three to five years” for “two to five years” in (4); in (i), inserted “unlawful exploitation of a minor under AS 11.41.455(c)(2) ,” in (1), substituted “AS 11.41.455(c)(1) , enticement” for “AS 11.41.455(c)(2) , online enticement” in the introductory paragraph of (2), substituted “second degree, enticement of a minor under AS 11.41.452(d) , indecent exposure in the first degree under AS 11.41.458(b)(2) ” for “second degree, online enticement of a minor under AS 11.41.452(d) , unlawful exploitation of a minor under AS 11.41.455(c)(1) ” in the introductory paragraph of (3), rewrote (4), which read, “(4) sexual assault in the third degree, incest, indecent exposure in the first degree, possession of child pornography, distribution of child pornography under AS 11.61.125(e)(1) , or attempt, conspiracy, or solicitation to commit sexual assault in the second degree, sexual abuse of a minor in the second degree, unlawful exploitation of a minor, or distribution of child pornography, may be sentenced to a definite term of imprisonment of not more than 99 years and shall be sentenced to a definite term within the following presumptive ranges, subject to adjustment as provided in AS 12.55.155 — 12.55.175 :

“(A) if the offense is a first felony conviction, two to 12 years;

“(B) if the offense is a second felony conviction and does not involve circumstances described in (C) of this paragraph, eight to 15 years;

“(C) if the offense is a second felony conviction and the defendant has a prior conviction for a sexual felony, 12 to 20 years;

“(D) if the offense is a third felony conviction and does not involve circumstances described in (E) of this paragraph, 15 to 25 years;

“(E) if the offense is a third felony conviction and the defendant has two prior convictions for sexual felonies, 99 years.”; in (q), added “and may not be suspended or reduced” at the end of the second sentence, and added the third sentence.

Editor's notes. —

Subsection (b) was amended by § 9, ch. 54, SLA 1999, with an effective date of June 5, 1999, and was further amended by § 1, ch. 65, SLA 1999, with a later effective date of September 20, 1999. Thus, on and after June 5 and before September 20, 1999, subsection (b) read as follows: “A defendant convicted of murder in the second degree, attempted murder in the first degree, solicitation to commit murder in the first degree, conspiracy to commit murder in the first degree, kidnapping, or misconduct involving a controlled substance in the first degree shall be sentenced to a definite term of imprisonment of at least five years but not more than 99 years. A defendant convicted of murder in the second degree shall be sentenced to a definite term of imprisonment of at least 20 years but not more than 99 years when the defendant is convicted of the murder of a child under 16 years of age and the court finds by clear and convincing evidence that the defendant (1) was a natural parent, a stepparent, an adopted parent, a legal guardian, or a person occupying a position of authority in relation to the child; or (2) caused the death of the child by committing a crime against a person under AS 11.41.200 —11.41.530. In this subsection, “legal guardian” and “position of authority” have the meanings given in AS 11.41.470 .”

Section 12(a), ch. 90, SLA 2003 provides that the provisions of §§ 1 — 5, ch. 90, SLA 2003 amending this section apply “to sentencings for offenses committed on or after September 11, 2003,” and that “[a]ll references to prior or previous convictions in [that section] apply to convictions occurring before, on, or after September 1, 2003.”

Section 33, ch. 2, SLA 2005, provides that the 2005 amendment of (c)-(e), (g), and (i) of this section, the enactment of (n) of this section, and the repeal of (k) of this section apply “to offenses committed on or after March 23, 2005,” and, in addition, provides that references to prior offenses or convictions in those subsections “include offenses committed before, on, or after March 23, 2005.” See § 33, ch. 2, SLA 2005, in the 2005 Temporary and Special Acts.

Section 13, ch. 14, SLA 2006, provides that the 2006 amendments of (i), (j) and ( l ) of this section and the 2006 enactment of (o) of this section apply “to offenses committed on or after April 28, 2006,” and that references to prior offenses or convictions in (i) and ( l ) of this section, as those subsections are amended by ch. 14, SLA 2006, “include offenses committed before, on or after April 28, 2006.”

Section 22, ch. 53, SLA 2006, provides that the 2006 amendments of (c)(2) and (d)(2) of this section apply “to offenses committed on or after June 3, 2006.”

Section 3, ch. 8, SLA 2007, provides that the 2007 addition of (a)(5) of this section applies “to offenses committed on or after July 26, 2007.”

Section 36(d), ch. 24, SLA 2007, provides that the 2007 amendment of (i)(1) and (i)(2) of this section apply “to offenses committed on or after July 1, 2007.”

Section 17, ch. 70, SLA 2012 provides that the 2012 amendment to subsection (a) applies “to proceedings occurring on or after July 1, 2012 for offenses occurring before, on, or after July 1, 2012” and that subsection (p) applies “to sentencing proceedings occurring on or after July 1, 2012 for offenses occurring before, on, or after July 1, 2012.”

Section 27(a), ch. 1, TSSLA 2012, provides that the 2012 amendments to subsection (i) apply to offenses committed before, on, or after July 1, 2012.

Section 142(b), ch. 4, FSSLA 2019, provides that the 2019 amendments to (c) – (e), (i), and (q) of this section apply “to sentences imposed on or after July 9, 2019, for conduct occurring on or after July 9, 2019.”

Legislative history reports. —

For the governor's transmittal letter concerning ch. 1, TSSLA 2012 (HB 359), see 2012 House Journal 1666 - 1668.

Notes to Decisions

I.General Consideration

Constitutionality of 1982 amendment. —

Chapter 143, SLA 1982, which amended this section, did not violate the Alaska Const., art. II, § 13 or Alaska Const., art. II, § 14. Galbraith v. State, 693 P.2d 880 (Alaska Ct. App. 1985).

Construction. —

Even when a defendant has received two or more consecutive mandatory 99-year sentences for the crime of first-degree murder, the defendant is eligible to apply for a modification or reduction of their composite sentence after the defendant has served 49 1/2 chronological years of their sentence. Kangas v. State, 463 P.3d 189 (Alaska Ct. App. 2020).

Sufficiency. —

Evidence was sufficient for court to find that defendant possessed a gun during the commission of the sexual assault as the victim provided credible testimony to that fact, and the sentencing court properly relied on the gun possession only to apply a higher presumptive range under AS 12.55.125(i)(1)(B) . Bullock v. State, — P.3d — (Alaska Ct. App. Dec. 29, 2021).

Accuracy of fact finding. —

Blakely’s beyond a reasonable doubt standard did not have to be applied to whether there was a finding of the aggravators listed in AS 12.55.155(c)(13) and former 12.55.125(d)(1) . The clear and convincing standard that was used did not seriously diminish the accuracy of the fact-finding when defendants were sentenced. State v. Smart, 202 P.3d 1130 (Alaska 2009).

Remand for resentencing. —

Remand for resentencing was required because the panel sentenced defendant under the general provisions of AS 12.55.175(b) and (c), and this error made a difference with respect to defendant's sentences for his second-degree sexual assault convictions since the applicable presumptive range for those four counts was 5 to 15 years; thus, under AS 12.55.175(b) (e) defendant's minimum active term of imprisonment for each count was 2.5 years, but the panel only gave him 1 year on each conviction. Holt v. State, — P.3d — (Alaska Ct. App. Apr. 3, 2019) (memorandum decision).

Defendant was entitled to resentencing because (1) a trial court's exercise of discretionary resentencing authority, when the case was remanded to determine whether the court had sentenced defendant with a correct understanding of consecutive sentencing laws, triggered reduced sentencing provisions enacted after the resentencing hearing but before a decision was issued, and (2) the composite sentence exceeded that authorized by the new provisions. Grim v. State, — P.3d — (Alaska Ct. App. Aug. 14, 2019) (memorandum decision).

Applied in

Faulkenberry v. State, 649 P.2d 951 (Alaska Ct. App. 1982); State v. Jensen, 650 P.2d 422 (Alaska Ct. App. 1982); Connors v. State, 652 P.2d 110 (Alaska Ct. App. 1982); Williams v. State, 652 P.2d 478 (Alaska Ct. App. 1982); Qualle v. State, 652 P.2d 481 (Alaska Ct. App. 1982); Sears v. State, 653 P.2d 349 (Alaska Ct. App. 1982); Hartley v. State, 653 P.2d 1052 (Alaska Ct. App. 1982); Griffith v. State, 653 P.2d 1057 (Alaska Ct. App. 1982); State v. Lamebull, 653 P.2d 1060 (Alaska Ct. App. 1982); Dunn v. State, 653 P.2d 1071 (Alaska Ct. App. 1982); Nix v. State, 653 P.2d 1093 (Alaska Ct. App. 1982); Weston v. State, 656 P.2d 1186 (Alaska Ct. App. 1982); Erhart v. State, 656 P.2d 1199 (Alaska Ct. App. 1982); Baker v. State, 655 P.2d 1324 (Alaska Ct. App. 1983); Reynolds v. State, 664 P.2d 621 (Alaska Ct. App. 1983); Woods v. State, 667 P.2d 184 (Alaska 1983); Contreras v. State, 675 P.2d 654 (Alaska Ct. App. 1984); Griffith v. State, 675 P.2d 662 (Alaska Ct. App. 1984); Maldonado v. State, 676 P.2d 1093 (Alaska Ct. App. 1984); Walsh v. State, 677 P.2d 912 (Alaska Ct. App. 1984); Huitt v. State, 678 P.2d 415 (Alaska Ct. App. 1984); Dodd v. State, 686 P.2d 737 (Alaska Ct. App. 1984); Harvey v. State, 691 P.2d 1061 (Alaska Ct. App. 1984); Lausterer v. State, 693 P.2d 887 (Alaska Ct. App. 1985); Benboe v. State, 698 P.2d 1230 (Alaska Ct. App. 1985); Hart v. State, 702 P.2d 651 (Alaska Ct. App. 1985); S.B. v. State, 706 P.2d 695 (Alaska Ct. App. 1985); Hancock v. State, 706 P.2d 1164 (Alaska Ct. App. 1985); Davis v. State, 706 P.2d 1198 (Alaska Ct. App. 1985); Blakesley v. State, 715 P.2d 269 (Alaska Ct. App. 1986); Ecklund v. State, 730 P.2d 161 (Alaska Ct. App. 1986); Totemoff v. State, 739 P.2d 769 (Alaska Ct. App. 1987); Allen v. State, 759 P.2d 541 (Alaska Ct. App. 1988); Palmer v. State, 770 P.2d 296 (Alaska Ct. App. 1989); Massey v. State, 771 P.2d 448 (Alaska Ct. App. 1989); Geer v. State, 778 P.2d 599 (Alaska Ct. App. 1989); Fagan v. State, 779 P.2d 1258 (Alaska Ct. App. 1989); Charles v. State, 780 P.2d 377 (Alaska Ct. App. 1989); Hayes v. State, 785 P.2d 33 (Alaska Ct. App. 1990); Machado v. State, 797 P.2d 677 (Alaska Ct. App. 1990); McGahan v. State, 807 P.2d 506 (Alaska Ct. App. 1991); Noblit v. State, 808 P.2d 280 (Alaska Ct. App. 1991); Looney v. State, 826 P.2d 775 (Alaska Ct. App. 1992); Marker v. State, 829 P.2d 1191 (Alaska Ct. App. 1992); Wesolic v. State, 837 P.2d 130 (Alaska Ct. App. 1992); Curl v. State, 843 P.2d 1244 (Alaska Ct. App. 1992); Knight v. State, 855 P.2d 1347 (Alaska Ct. App. 1993); Nelson v. State, 874 P.2d 298 (Alaska Ct. App. 1994); Simpson v. State, 877 P.2d 1319 (Alaska Ct. App. 1994); Hampel v. State, 911 P.2d 517 (Alaska Ct. App. 1996); Adams v. State, 927 P.2d 751 (Alaska Ct. App. 1996); Russell v. State, 934 P.2d 1335 (Alaska Ct. App. 1997); Morgan v. State, 943 P.2d 1208 (Alaska Ct. App. 1997); Jacobs v. State, 953 P.2d 527 (Alaska Ct. App. 1998); Morrison v. State, 7 P.3d 955 (Alaska Ct. App. 2000); Harmon v. State, 11 P.3d 393 (Alaska Ct. App. 2000); Brown v. State, 12 P.3d 201 (Alaska Ct. App. 2000); Murray v. State, 12 P.3d 784 (Alaska Ct. App. 2000); Haynes v. State, 15 P.3d 1088 (Alaska Ct. App. 2001); Hunt v. State, 18 P.3d 69 (Alaska Ct. App. 2001); Baker v. State, 22 P.3d 493 (Alaska Ct. App. 2001); Cook v. State, 36 P.3d 710 (Alaska Ct. App. 2001); Lacey v. State, 54 P.3d 304 (Alaska Ct. App. 2002); Dandova v. State, 72 P.3d 325 (Alaska Ct. App. 2003); Smith v. State, 83 P.3d 12 (Alaska Ct. App. 2004); Powell v. State, 88 P.3d 532 (Alaska Ct. App. 2004); Ritter v. State, 97 P.3d 73 (Alaska Ct. App. 2004); Simon v. State, 121 P.3d 815 (Alaska Ct. App. 2005); Billum v. State, 151 P.3d 507 (Alaska Ct. App. 2006); Sweezey v. State, 167 P.3d 79 (Alaska Ct. App. 2007); Starkweather v. State, 244 P.3d 522 (Alaska Ct. App. 2010); Tickett v. State, 334 P.3d 708 (Alaska Ct. App. 2014); 2018 Alas. App. LEXIS 21.

Quoted in

Sundberg v. State, 636 P.2d 619 (Alaska Ct. App. 1981); State v. Frazier, 698 P.2d 1212 (Alaska Ct. App. 1985); Yu v. State, 706 P.2d 348 (Alaska Ct. App. 1985); Merry v. State, 752 P.2d 475 (Alaska Ct. App. 1988); Smith v. State, 28 P.3d 323 (Alaska Ct. App. 2001); State v. Tofelogo, 444 P.3d 151 (Alaska 2019); Ahvakana v. State, 475 P.3d 1118 (Alaska Ct. App. 2020).

Stated in

Wertz v. State, 611 P.2d 8 (Alaska 1980); Ramil v. State, 619 P.2d 722 (Alaska 1980); Kanipe v. State, 620 P.2d 678 (Alaska 1980); Whittlesey v. State, 626 P.2d 1066 (Alaska 1980); Tuckfield v. State, 621 P.2d 1350 (Alaska 1981); Leuch v. State, 633 P.2d 1006 (Alaska 1981); Born v. State, 633 P.2d 1021 (Alaska Ct. App. 1981); Clark v. State, 645 P.2d 1236 (Alaska Ct. App. 1982); Kimbrell v. State, 647 P.2d 618 (Alaska Ct. App. 1982); Boyles v. State, 647 P.2d 1113 (Alaska Ct. App. 1982); Nicholson v. State, 656 P.2d 1209 (Alaska Ct. App. 1982); Dexter v. State, 672 P.2d 144 (Alaska Ct. App. 1983); Gibbs v. State, 676 P.2d 606 (Alaska Ct. App. 1984); Higgs v. State, 676 P.2d 610 (Alaska Ct. App. 1984); Bush v. State, 678 P.2d 423 (Alaska Ct. App. 1984); Atkinson v. State, 699 P.2d 881 (Alaska Ct. App. 1985); James v. State, 739 P.2d 1314 (Alaska Ct. App. 1987); Tulowetzke v. State, Dep't of Pub. Safety, 743 P.2d 368 (Alaska 1987); Monroe v. State, 752 P.2d 1017 (Alaska Ct. App. 1988); Pitka v. State, 19 P.3d 604 (Alaska Ct. App. 2001); Phelps v. State, 236 P.3d 381 (Alaska Ct. App. 2010); Joseph v. State, 315 P.3d 678 (Alaska Ct. App. 2013); Bochkovsky v. State, 356 P.3d 302 (Alaska Ct. App. 2015); Smith v. State, 426 P.3d 1162 (Alaska Ct. App. 2018); State v. Meyers, 479 P.3d 840 (Alaska Ct. App. 2020).

Cited in

Winslow v. State, 685 P.2d 1273 (Alaska Ct. App. 1984); Shaisnikoff v. State, 690 P.2d 25 (Alaska Ct. App. 1984); Hernandez v. State, 691 P.2d 287 (Alaska Ct. App. 1984); Carlson v. State, 696 P.2d 178 (Alaska Ct. App. 1985); Stuart v. State, 698 P.2d 1218 (Alaska Ct. App. 1985); Marin v. State, 699 P.2d 886 (Alaska Ct. App. 1985); Jennings v. State, 713 P.2d 1222 (Alaska Ct. App. 1986); Richey v. State, 717 P.2d 407 (Alaska Ct. App. 1986); Staats v. State, 717 P.2d 413 (Alaska Ct. App. 1986); Rhodes v. State, 717 P.2d 422 (Alaska Ct. App. 1986); Kuvaas v. State, 717 P.2d 855 (Alaska Ct. App. 1986); Adams v. State, 718 P.2d 164 (Alaska Ct. App. 1986); Sanders v. State, 718 P.2d 167 (Alaska Ct. App. 1986); Breese v. Smith, 501 P.2d 159 (Alaska 1972); State v. Frazier, 719 P.2d 261 (Alaska 1986); Whitlow v. State, 719 P.2d 267 (Alaska Ct. App. 1986); Gibson v. State, 719 P.2d 687 (Alaska Ct. App. 1986); Komakhuk v. State, 719 P.2d 1045 (Alaska Ct. App. 1986); Dymenstein v. State, 720 P.2d 42 (Alaska Ct. App. 1986); State v. Richards, 720 P.2d 47 (Alaska Ct. App. 1986); Clifton v. State, 728 P.2d 649 (Alaska Ct. App. 1986); Abdulbaqui v. State, 728 P.2d 1211 (Alaska Ct. App. 1986); Ewell v. State, 730 P.2d 164 (Alaska Ct. App. 1986); Walker v. Endell, 850 F.2d 470 (9th Cir. Alaska 1987); Krasovich v. State, 731 P.2d 598 (Alaska Ct. App. 1987); Folsom v. State, 734 P.2d 1015 (Alaska Ct. App. 1987); McReynolds v. State, 739 P.2d 175 (Alaska Ct. App. 1987); Degler v. State, 741 P.2d 659 (Alaska Ct. App. 1987); Williams v. State, 743 P.2d 397 (Alaska Ct. App. 1987); Nashoalook v. State, 744 P.2d 420 (Alaska Ct. App. 1987); Smith v. State, 745 P.2d 1375 (Alaska Ct. App. 1987); Bond v. State, 747 P.2d 546 (Alaska Ct. App. 1987); Kirby v. State, 748 P.2d 757 (Alaska Ct. App. 1987); Upton v. State, 749 P.2d 386 (Alaska Ct. App. 1988); Agwiak v. State, 750 P.2d 846 (Alaska Ct. App. 1988); Shetters v. State, 751 P.2d 31 (Alaska Ct. App. 1988); Merry v. State, 752 P.2d 472 (Alaska Ct. App. 1988); Russell v. State, 752 P.2d 1022 (Alaska Ct. App. 1988); McCombs v. State, 754 P.2d 1129 (Alaska Ct. App. 1988); James v. State, 754 P.2d 1336 (Alaska Ct. App. 1988); Stewart v. State, 756 P.2d 900 (Alaska Ct. App. 1988); Ciervo v. State, 756 P.2d 907 (Alaska Ct. App. 1988); Pittenger v. State, 757 P.2d 77 (Alaska Ct. App. 1988); State v. Ambrose, 758 P.2d 639 (Alaska Ct. App. 1988); Clifton v. State, 758 P.2d 1279 (Alaska Ct. App. 1988); Robison v. State, 763 P.2d 1357 (Alaska Ct. App. 1988); Cannizzaro v. State, 765 P.2d 110 (Alaska Ct. App. 1988); Kankanton v. State, 765 P.2d 101 (Alaska Ct. App. 1988); Luepke v. State, 765 P.2d 988 (Alaska Ct. App. 1988); Hilburn v. State, 765 P.2d 1382 (Alaska Ct. App. 1988); Mitchell v. State, 767 P.2d 203 (Alaska Ct. App. 1989); Contreras v. State, 767 P.2d 1169 (Alaska Ct. App. 1989); DeGross v. State, 768 P.2d 134 (Alaska Ct. App. 1989); Hamilton v. State, 771 P.2d 1358 (Alaska Ct. App. 1989); Barrett v. State, 772 P.2d 559 (Alaska Ct. App. 1989); White v. State, 773 P.2d 211 (Alaska Ct. App. 1989); State v. Jackson, 776 P.2d 320 (Alaska Ct. App. 1989); Bumpus v. State, 776 P.2d 329 (Alaska Ct. App. 1989); State v. Capjohn, 779 P.2d 1255 (Alaska Ct. App. 1989); Wassillie v. State, 790 P.2d 1385 (Alaska Ct. App. 1990); Lepley v. State, 807 P.2d 1095 (Alaska Ct. App. 1991); Collins v. State, 816 P.2d 1383 (Alaska Ct. App. 1991); Bossie v. State, 835 P.2d 1257 (Alaska Ct. App. 1992); Beauvois v. State, 837 P.2d 1118 (Alaska Ct. App. 1992); Sam v. State, 842 P.2d 596 (Alaska Ct. App. 1992); Boerma v. State, 843 P.2d 1246 (Alaska Ct. App. 1992); Bland v. State, 846 P.2d 815 (Alaska Ct. App. 1993); Kolkman v. State, 857 P.2d 1202 (Alaska Ct. App. 1993); Hurn v. State, 872 P.2d 189 (Alaska Ct. App. 1994); Ross v. State, 877 P.2d 777 (Alaska Ct. App. 1994); Haire v. State, 877 P.2d 1302 (Alaska Ct. App. 1994); Howarth v. State, Public Defender Agency, 925 P.2d 1330 (Alaska 1996); Marino v. State, 934 P.2d 1321 (Alaska Ct. App. 1997); Rozkydal v. State, 938 P.2d 1091 (Alaska Ct. App. 1997); Landon v. State, 941 P.2d 186 (Alaska Ct. App. 1997); Peters v. State, 943 P.2d 418 (Alaska Ct. App. 1997); Andrews v. State, 967 P.2d 1016 (Alaska Ct. App. 1998); Martin v. State, 973 P.2d 1151 (Alaska Ct. App. 1999); Collins v. State, 977 P.2d 741 (Alaska Ct. App. 1999); Hurd v. State, 22 P.3d 12 (Alaska Ct. App. 2001); Buckwalter v. State, 23 P.3d 81 (Alaska Ct. App. 2001); State v. Malloy, 46 P.3d 949 (Alaska 2002); Butts v. State, 53 P.3d 609 (Alaska Ct. App. 2002); Allen v. State, 56 P.3d 683 (Alaska Ct. App. 2002); Beaudoin v. State, 57 P.3d 703 (Alaska Ct. App. 2002); Hamilton v. State, 59 P.3d 760 (Alaska Ct. App. 2002); Riley v. State, 60 P.3d 204 (Alaska Ct. App. 2002); Coles v. State, 64 P.3d 149 (Alaska Ct. App. 2003); Phillips v. State, 70 P.3d 1128 (Alaska Ct. App. 2003); Timothy v. State, 90 P.3d 177 (Alaska Ct. App. 2004); Doe v. Dep't of Public Safety, 92 P.3d 398 (Alaska 2004); Casciola v. F. S. Air Serv., 120 P.3d 1059 (Alaska 2005); State v. Kalmakoff, 122 P.3d 224 (Alaska Ct. App. 2005); Snelling v. State, 123 P.3d 1096 (Alaska Ct. App. 2005); Jones v. State, 65 P.3d 903 (Alaska Ct. App. 2003); Walsh v. State, 134 P.3d 366 (Alaska Ct. App. 2006); State v. Herrmann, 140 P.3d 895 (Alaska Ct. App. 2006); State v. Dague, 143 P.3d 988 (Alaska Ct. App. 2006); Netling v. State, 145 P.3d 609 (Alaska Ct. App. 2006); Smart v. State, 146 P.3d 15 (Alaska Ct. App. 2006); Blodgett v. Blodgett (In re Estate of Blodgett), 147 P.3d 702 (Alaska 2006); Lamb v. Anderson, 147 P.3d 736 (Alaska 2006); Zemljich v. Municipality of Anchorage, 151 P.3d 471 (Alaska Ct. App. 2006); Labrake v. State, 152 P.3d 474 (Alaska Ct. App. 2007); MacDonald v. Riggs, 166 P.3d 12 (Alaska 2007); Mooney v. State, 167 P.3d 81 (Alaska Ct. App. 2007); Harapat v. State, 174 P.3d 249 (Alaska Ct. App. 2007); Smith v. State, 187 P.3d 511 (Alaska Ct. App. 2008); Felber v. State, 243 P.3d 1007 (Alaska Ct. App. 2010); Bates v. State, 258 P.3d 851 (Alaska Ct. App. 2011); Luckart v. State, 270 P.3d 816 (Alaska Ct. App. 2012); Pocock v. State, 270 P.3d 823 (Alaska Ct. App. 2012); Daniels v. State, 339 P.3d 1027 (Alaska Ct. App. 2014); Beasley v. State, 364 P.3d 1130 (Alaska Ct. App. 2015); Dorsey v. State, 480 P.3d 1211 (Alaska Ct. App. 2021); Smith v. State, — P.3d — (Alaska Ct. App. Sept. 2, 2020); Steele v. State, — P.3d — (Alaska Ct. App. Dec. 30, 2020); Olmstead v. State, 477 P.3d 656 (Alaska Ct. App. 2020); Galindo v. State, 481 P.3d 686 (Alaska Ct. App. 2021); Tofelogo v. State, — P.3d — (Alaska Ct. App. Nov. 20, 2019); Marrera v. State, — P.3d — (Alaska Ct. App. May 22, 2019); Oviok v. State, — P.3d — (Alaska Ct. App. Oct. 14, 2020); Christian v. State, — P.3d — (Alaska Ct. App. Aug. 19, 2020); Samel v. State, — P.3d — (Alaska Ct. App. Jan. 26, 2022).

II.Sentencing
A.In General

Legislative prerogative. —

It is within the legislature’s prerogative to determine appropriate sentences, and the availability of parole either at the direction of an agency in the executive branch or at the direction of a judicial officer is not necessary to make presumptive or minimum sentences constitutional. Fowler v. State, 766 P.2d 588 (Alaska Ct. App. 1988).

Legislative intent. —

An underlying assumption about the presumptive sentencing ranges in this section is that the legislature intended for these presumptive ranges to quantify, in the absence of evidence to the contrary, the sentences that should be imposed on defendants who have committed a typical offense within the statutory definition of a crime, and who have typical prospects for rehabilitation. A further assumption is that a defendant’s criminal history is adequately reflected by the defendant’s status as a first, second, or third felony offender. Collins v. State, 287 P.3d 791 (Alaska Ct. App. 2012).

Sentencing is individualized process. —

While it is desirable for similarly situated defendants to receive similar treatment, as a practical matter, sentencing is an individualized process and a certain amount of disparity will result from the exercise of judicial discretion. Smith v. State, 739 P.2d 1306 (Alaska Ct. App. 1987).

Given defendant’s two underlying felony offenses, his lengthy list of other offenses, and his repeated failures to cope with his alcohol problem during his felony probation, the judge was not clearly mistaken when he imposed half of defendant’s remaining suspended time — 3 years, 5 months — out of a potential 6 years, 10 months. Custer v. State, 88 P.3d 545 (Alaska Ct. App. 2004).

Although the offense for which defendant was convicted was not as serious as some of his prior offenses, the existence of multiple aggravating factors and his status as a three-time felon justified the sentence imposed by the trial court. Mooney v. State, 105 P.3d 149 (Alaska Ct. App. 2005).

Where defendant was convicted of murder in the second degree, his sentence of 85 years was not excessive even though his co-defendants received lighter sentences; the sentencing judge found that defendant was the primary actor, he acted with deliberate cruelty, tortured the victim, and had an extensive prior criminal record. His co-defendants did not have a similar criminal history, and received leniency for agreeing to accept responsibility and to testify. Haube v. State, — P.3d — (Alaska Ct. App. July 21, 2010) (memorandum decision).

Determination of applicable sentencing standard. —

When appellant was convicted of second degree murder, his trial counsel was not ineffective for failing to object to the sentence as an unwarranted departure from the benchmark and for not objecting to the sentencing court’s findings. Because second degree murder was a charge that carried a sentencing range of up to ninety-nine years under former AS 11.41.110(b) , 12.55.125(b) (1996), the sentencing judge was not required to find any aggravating factors to impose a maximum sentence for this crime. Lindeman v. State, 244 P.3d 1151 (Alaska Ct. App. 2011).

ABA Standards' recommended 10-year benchmark. —

Except in cases of unclassified felonies, the appellate courts of Alaska have consistently followed the ABA Standards’ recommended 10-year benchmark for all but serious offenses committed by particularly dangerous offenders, and only in rare cases would a sentence in excess of 10 years be justified by any sentencing goal other than the need to isolate the defendant in order to protect the community. Williams v. State, 759 P.2d 575 (Alaska Ct. App. 1988).

Where the sentence is more than twice the maximum sentence for the most serious offense committed, and the composite sentence exceeds ten years of imprisonment, the sentence is improper under the ABA Standards unless the offender is particularly dangerous. Neff v. State, 799 P.2d 782 (Alaska Ct. App. 1990).

The facts of defendant’s current offense, his lengthy criminal record, and his previous attempt to kidnap and rape another woman all supported the judge’s conclusion that defendant’s case was unusually aggravated and that defendant should receive a sentence significantly above the 20- to 30-year benchmark ranges. Wardlow v. State, 2 P.3d 1238 (Alaska Ct. App. 2000).

Authority of sentencing panel.—

Three-judge panel which determined defendant's sentence misunderstood the panel's authority because the panel did, in fact, have the power to expand defendant's eligibility for discretionary parole. Therefore, remand was appropriate so that the panel could reconsider defendant's request for expanded parole eligibility. Balallo v. State, — P.3d — (Alaska Ct. App. Sept. 6, 2017), transferred, — P.3d — (Alaska 2018) (memorandum decision).

Victim is without standing regarding selection of rehabilitation program. —

Legislature enacted AS 12.55.120(f) , which gives crime victims the right to seek appellate review of just one particular type of sentencing decision consisting of review of any felony sentence which, because of the mitigating factors listed in this section, has been reduced below the presumptive range for that crime. Cooper v. Dist. Court, 133 P.3d 692 (Alaska Ct. App. 2006).

First felony offenders. —

In cases involving first felony offenders convicted of class A felonies, sentences exceeding ten years in prison can be justified only when case-specific evidence establishes an actual need to isolate the defendant for the protection of the community for the full period in question. Castle v. State, 767 P.2d 219 (Alaska Ct. App. 1989).

Given the status of defendants as first felony offenders and their apparent amenability to rehabilitation, the record would not support a conclusion that their isolation for more than ten years was necessary. Castle v. State, 767 P.2d 219 (Alaska Ct. App. 1989).

Maximum terms of imprisonment. —

A sentencing judge must find that a defendant is a “worst offender” before the judge is authorized to sentence the defendant to the maximum term of imprisonment, and a “worst offender” finding can be based either on the circumstances surrounding the defendant’s present offense, or on the defendant’s criminal history, or both. Foley v. State, 9 P.3d 1038 (Alaska Ct. App. 2000).

Defendant was not entitled to relief from a sentence exceeding the statutory range for defendant's crime because, if the issue were reviewable despite defendant's failure to raise the issue in the trial court, despite the trial court's failure to explicitly find aggravating factors at sentencing, (1) the sentence was agreed upon, (2) the State's proposed judgment form stated the parties stipulated to such factors and the court found them, and (3) the record contained insufficient information to address the issue on appeal. Jenkins v. State, — P.3d — (Alaska Ct. App. June 10, 2020) (memorandum decision).

Failure to suspend or make concurrent. —

Where defendant was convicted of one class A felony of attempted first-degree sexual assault and two class B felonies of second-degree sexual assault, the trial court erred by not imposing a suspended sentence or any period of probation and a partially consecutive sentence for each crime sexual offense charged. Moore v. State, 262 P.3d 217 (Alaska Ct. App. 2011).

There was no requirement that the defendant’s sentence for misconduct involving a controlled substance should run concurrently with an unrelated sentence, although serving the sentences consecutively resulted in a total time to be served in excess of the guidelines for each offense individually. Cavitt v. State, — P.3d — (Alaska Ct. App. Nov. 9, 2011) (memorandum decision).

Sentencing of “worst offender.” —

A “worst offender” designation, standing alone, permits imposition of the maximum term for the single most serious offense. The designation does not, however, automatically permit consecutive sentences exceeding the maximum for the single most serious crime. In order to impose such a sentence, the court must actually find, as a matter of fact, that the defendant will continue to pose a danger to the community during the extended term and that his continued isolation is actually necessary. Such a finding does not necessarily justify pyramiding consecutive maximum sentences; rather, such a finding permits only an incrementally more severe sentence based on the actual need for protection of the public under the totality of the circumstances of the prosecution’s case. Hancock v. State, 741 P.2d 1210 (Alaska Ct. App. 1987).

Sentence of 169 years without possibility of parole was not clearly mistaken, where the circumstances surrounding defendant’s offenses of murder, robbery and assault plainly justified a worst offender finding and defendant had four times been convicted of felony offenses and had served substantial prior time in prison and on parole. Weitz v. State, 794 P.2d 952 (Alaska Ct. App. 1990).

Because the record supported the finding that the defendant’s crime was among the worst second-degree murders, a sentence exceeding the benchmark standard was appropriate. In addition to finding the defendant’s crime to be among the worst second-degree murders, the judge also found that the defendant had been involved in numerous other crimes and was among the worst class of offenders. Hence, the judge could exceed the benchmark standard. Cheely v. State, 861 P.2d 1168 (Alaska Ct. App. 1993).

A finding of “worst offender” need not be based on the facts of the defendant’s present offense. A defendant can be classified as a “worst offender” based either on the circumstances surrounding the present offense, or on criminal history, or both. White v. State, 969 P.2d 646 (Alaska Ct. App. 1998).

Where defendant had previously been convicted of four sexual offenses involving children and there was evidence of numerous other child sexual assaults for which he had not been charged, the trial court properly sentenced defendant as a third felony offender and a worst offender to the maximum sentence of 30 years upon his conviction for first-degree sexual abuse of a minor. (see 2003 amendment)Fitzgerald v. State, 42 P.3d 1143 (Alaska Ct. App. 2002).

Where, inter alia, defendants knew that their victim (their 2-month-old baby) was particularly vulnerable, the victim was a member of their household, and defendants’ conduct was among the most serious within the definition of the offense, and because the evidence showed that the baby’s injuries had been life-threatening, sentence of six years to serve was not excessive. Willis v. State, 57 P.3d 688 (Alaska Ct. App. 2002).

Where offender had an extensive criminal history and repeated failed rehabilitation attempts, applying the five-year worst offender sentence to his most recent charges of driving a boat under the influence and refusal of breath test was reasonable. Anderson v. State, — P.3d — (Alaska Ct. App. Apr. 10, 2013) (memorandum decision).

Escalating acts of domestic violence. —

Sentences for assault and drug offenses were not excessive under AS 12.55.125 and AS 12.55.155 because, among other things, the superior court concluded that defendant had engaged in escalating acts of domestic violence. As to the drug offenses, there was signifcant evidence that defendant was involved with drugs for the last 30 years, and circumstantial evidence was presented that defendant was a drug dealer. Vickers v. State, — P.3d — (Alaska Ct. App. Sept. 24, 2008) (memorandum decision).

Sentence held not excessive. —

Defendant’s sentence of six years’ imprisonment with three years suspended was lawful in the absence of aggravating factors because the “time to serve” component of the sentence was less than four years; defendant could have received a sentence of up to ten years’ imprisonment with six years suspended, four years to serve Byford v. State, 352 P.3d 898 (Alaska Ct. App. 2015).

Defendant's composite sentence was not clearly mistaken because the judge merged defendant's convictions for reckless driving and felony eluding and sentenced defendant to serve consecutive sentences for felony eluding, misdemeanor driving under the influence (DUI), and driving with a revoked license (DWLR). Defendant had over thirty prior convictions, including DUI, reckless driving, and DWLR. The judge did not consider rehabilitation because defendant had violated conditions of probation numerous times. Downs v. State, — P.3d — (Alaska Ct. App. Aug. 1, 2018).

Defendant's sentence of five years to serve with no suspended time was appropriate when defendant was convicted of third-degree assault under a recidivist theory for assaulting his ex-paramour because his prior history included repeated assaults and defendant was on probation for another felony and because his conduct in this case was not least serious conduct constituting the offense. Although defendant also argued that the sentence was excessive, the sentence imposed was not clearly mistaken. Shedlosky v. State, 472 P.3d 1094 (Alaska Ct. App. 2020).

Sentence in excess of most serious offense. —

A sentence in excess of the maximum sentence for the most serious of several offenses should be given only where the court finds that such a sentence is necessary to protect the public, or where it has some other substantial reason for imposing this kind of sentence. Heacock v. State, 762 P.2d 503 (Alaska Ct. App. 1988).

Defendant’s sentence with seven years time to serve was excessive where the judge should not have imposed a sentence of actual time to serve that exceeded five years of imprisonment, because that was the maximum sentence for criminally negligent homicide at the time of defendant’s offense, and there was no basis to conclude that it was necessary to incarcerate defendant for a period of time longer than five years in order to protect the public. Fine v. State, 22 P.3d 20 (Alaska Ct. App. 2001).

Sentencing for comparable crimes as point of reference. —

It is appropriate for the court to consider drunken driving manslaughter cases as a point of reference for determining an appropriate sentence for an offender convicted of second-degree murder for comparable conduct. Ratliff v. State, 798 P.2d 1288 (Alaska Ct. App. 1990).

In a case where defendant was convicted of second-degree sexual assault, second-degree assault, and manufacturing alcohol in a local option area, given defendant’s status as a third felony offender, his lengthy history of assaults and sexual assaults, his failure to be deterred by previous prison sentences, and his apparently inexplicable decision to inflict severe injuries on the victim, the trial judge was not clearly mistaken when he imposed a sentence that exceeded the normal 10-year ceiling. Cleveland v. State, 91 P.3d 965 (Alaska Ct. App. 2004).

Determination of whether a person is a prior offender under theft statute. —

Language in AS 11.46.130(a)(6) should be interpreted as codifying the rule set forth in Carlson for identifying habitual offenders under Alaska’s former criminal code, the same rule that is codified in this section for identifying those repeat defendants who are subject to increased penalties. Wooley v. State, 221 P.3d 12 (Alaska Ct. App. 2009).

Imposition of sentence under both AS 11.41.500 and this section does not violate prohibition against double jeopardy; the enhanced presumptive terms operate independently of the elements of the underlying offenses. Abdulbaqui v. State, 728 P.2d 1211 (Alaska Ct. App. 1986).

Withdrawal of plea. —

Defendant could not withdraw his plea where he understood that there was a dispute as to whether he should be sentenced as a second or third felony offender; he did not misunderstand the plea agreement or his potential sentence as a third felony offender. Hashemian v. State, — P.3d — (Alaska Ct. App. Feb. 22, 2012) (memorandum decision).

Youth counselors at McLaughlin Youth center are not “correctional officers” within the meaning of AS 18.65.290 (2) [now AS 18.65.290 (3)], but the term “correctional officer” (now “correctional employee”) used in paragraph (c)(2) of this section encompasses the youth counselors at McLaughlin. Wilson v. State, 967 P.2d 98 (Alaska Ct. App. 1998).

Procedures when aggravating factors present. —

When a statute provides a greater maximum penalty for a crime based on specified aggravating factors, Alaska’s guarantees of due process and of trial by jury requires treatment of the statute as creating separate offenses, and treatment of the aggravating factors as elements of the aggravated form of the offense. The defendant will not be subject to the greater maximum penalty unless the charging document specifies the pertinent aggravating factors and the state proves these aggravating factors beyond a reasonable doubt at the defendant’s trial. If the alleged crime is a felony, then Alaska’s guarantee of grand jury indictment also requires the state to establish the pertinent aggravating factors at grand jury. Malloy v. State, 1 P.3d 1266 (Alaska Ct. App. 2000).

Aggravating and mitigating factors. —

Even though the aggravating and mitigating factors in AS 12.55.155 did not apply to first-degree murder, it was proper for the parties to use these factors as points of reference at the defendant’s sentencing. Sakeagak v. State, 952 P.2d 278 (Alaska Ct. App. 1998).

Defendant’s 25-year sentence with 10 years suspended, or 15 years to serve, for over one dozen drug offenses, the most serious of which was the unclassified felony of first-degree controlled substance misconduct, engaging in a continuing criminal enterprise, was proper because defendant imported large volumes of cocaine into Alaska over a lengthy period of time, but he had no significant criminal history and the judge found that defendant had a good potential for rehabilitation. Washington v. State, — P.3d — (Alaska Ct. App. May 25, 2011) (memorandum decision).

It was not an abuse of discretion to deny defendant a second sentencing continuance to pursue claims of post-traumatic stress disorder (PTSD) or traumatic brain injury (TBI) because the statutory mitigator for combat-related PTSD or TBI precluded consideration of these conditions as a non-statutory mitigator, defendant was allowed to present these claims and received the minimum statutory sentence. Dunn v. State, — P.3d — (Alaska Ct. App. Nov. 20, 2019) (memorandum decision).

Youthful defendant factor properly rejected. —

Superior court did not err in rejecting defendant's proposed mitigating factor, AS 12.55.155(d)(4) , where even if he qualified as a youthful defendant for purposes, he failed to present sufficient evidence that he was substantially influenced by or under particular pressure from another to participate in the robbery. Smith v. State, 426 P.3d 1162 (Alaska Ct. App. 2018).

Inconsistent rulings on least serious mitigator. —

A sentencing judge could not reject the mitigator in AS 12.55.155(d)(9) and still rule in defendant’s favor on the mitigator in AS 12.55.155(d)(12) . Hamilton v. State, — P.3d — (Alaska Ct. App. Sept. 5, 2012) (memorandum decision).

Stipulation as to aggravating or mitigating factor. —

The trial court cannot merely accept a stipulation to an aggravating or mitigating factor, but must independently review the record to ensure that there is a factual basis for the proposed aggravator or mitigator. Connolly v. State, 758 P.2d 633 (Alaska Ct. App. 1988).

In a case where defendant agreed to plead no contest to attempted first-degree sexual abuse of a minor and received a sentence of 12 years’ imprisonment with seven years suspended, for an effective five-year sentence, to establish the sentencing range defendant stipulated to two aggravating factors; defendant knew the victim of his offense was particularly vulnerable and his prior criminal history included a delinquency adjudication for felony conduct. Malutin v. State, 198 P.3d 1177 (Alaska Ct. App. 2009).

Decision to exceed the benchmark sentencing range was warranted based on the aggravating factors found in AS 12.55.155(c)(18) ; the offense was committed upon defendant’s mother at home and was committed in the presence of defendant’s 8-year-old brother. Israel v. State, 258 P.3d 893 (Alaska Ct. App. 2011) (memorandum decision).

Limited use of both suspended jail time and probation is permitted under AS 12.55.155 . Lacquement v. State, 644 P.2d 856 (Alaska Ct. App. 1982). See also Friedberg v. State, 663 P.2d 558 (Alaska Ct. App. 1983).

Ceiling applies to active prison sentence, not to suspended time. —

This section does not set a ceiling on a defendant’s total sentence of imprisonment, but only on the “time to serve” component of that sentence; it does not limit a sentencing judge’s authority to impose suspended jail time on top of the defendant’s “time to serve.” State v. Gibbs, 105 P.3d 145 (Alaska Ct. App. 2005).

Twenty-year parole restriction, applied to entire period of twenty-year sentence, was clearly mistaken, where such an implied distrust of the parole board’s ability to do its job was unwarranted, in the absence of express findings, supported by specific evidence, establishing a need to restrict parole eligibility. Newell v. State, 771 P.2d 873 (Alaska Ct. App. 1989).

Imposition of sentence upon revocation for violation of probation. —

Where a convicted criminal’s original sentence on his first felony offenses was four years of imprisonment for possession of cocaine for purposes of sale and a suspended imposition of sentence for a period of five years for possession of marijuana for purposes of sale, and the criminal had served his four-year sentence for possession of cocaine for purposes of sale, the judge should only have been able to sentence the criminal to an additional two years of imprisonment on revocation for a violation of his probation. Bayne v. State, 799 P.2d 1347 (Alaska Ct. App. 1990).

Suspended sentence not error. —

Defendant did not contest a negotiated sentence for kidnapping and second-degree assault; however, defendant did contest a 27-year suspended sentence as excessive. The trial court did not clearly err in imposing the sentence where the court’s aim in imposing the suspended term was to make sure that if defendant got out of prison, the state would have a chance to reincarcerate him. Heavyrunner v. State, 172 P.3d 819 (Alaska Ct. App. 2007).

Superior court properly imposed a composite sentence of 55 years to serve and an additional 10 years suspended for second-degree sexual abuse of a minor and attempted second-degree sexual abuse of a minor because the counts included 15 different acts with 11 different victims over a period of nearly five years, the absence of the “most serious” aggravator meant only that defendant's conduct fell within the broad middle range of conduct, the court was required to impose at least some portion of the sentences consecutively and to suspend at least two to three years of defendant's sentence, and the court thoroughly analyzed the required criteria and concluded a lesser sentence would be insufficient to meet the goals of sentencing. Kashatok v. State, — P.3d — (Alaska Ct. App. Aug. 9, 2017) (memorandum decision).

Standards governing imposition of previously suspended sentence. —

Where the trial court did not discuss the State v. Chaney, 477 P.2d 441 (Alaska 1970), criteria or apply them, where the court did not consider sentences typically imposed upon burglary offenders with records comparable to the defendants nor did it consider sentences imposed upon those whose conduct on probation was similar to the subsequent criminal behavior, the case must be remanded for resentencing. Crouse v. State, 736 P.2d 783 (Alaska Ct. App. 1987).

Minimum sentence may not be adjusted for statutory mitigating factors. State v. Price, 715 P.2d 1183 (Alaska Ct. App. 1986).

Probationary sentences. —

Although a probationary sentence may properly be used when a first offender is convicted of a class C felony involving sexual abuse of a child, such a sentence will be appropriate only if mitigating circumstances exist and the offender is a promising candidate for rehabilitation through probationary supervision. State v. Coats, 669 P.2d 1329 (Alaska Ct. App. 1983).

Under former law where statutory mitigating factors warrant a sentence of 90 days to three years, extraordinary circumstances might justify a sentence of straight probation. State v. Brinkley, 681 P.2d 351 (Alaska Ct. App. 1984).

Probationary sentence improper under Jackson guidelines. —

Where defendant committed a string of felonies over the course of a year and repeatedly perjured himself in order to defeat the paternity case against him, and even assuming that defendant was an offender with exceptional potential for rehabilitation, his probationary sentence was still improper under the State v. Jackson, 776 P.2d 320 (Alaska Ct. App. 1989), guidelines, because to support a probationary sentence entailing less than 90 days to serve, both the offender and the offense must be significantly mitigated and defendant’s offense was not significantly mitigated. State v. Brueggeman, 24 P.3d 583 (Alaska Ct. App. 2001).

Placement of offenders. —

It is within the sentencing judge’s authority to make a recommendation to the commissioner regarding the appropriate placement of the offender. Under former AS 33.30.100 , the commissioner had the power to effectuate such a recommendation by placing the offender in the appropriate facility, and although the commissioner is not bound by the sentencing court’s recommendation, a demonstrated failure to provide an appropriate rehabilitation program or to further the purposes of the sentence may justify judicial intervention. Nell v. State, 642 P.2d 1361 (Alaska Ct. App. 1982).

“Clearly mistaken” test for court review. —

The “clearly mistaken” test implies a permissible range of reasonable sentences which a reviewing court, after an independent review of the record, will not modify. This “range of reasonableness” should be determined not by imposition of an artificial ceiling which limits a large class of offenses to the lower end of the sentencing spectrum, but, rather, by an examination of the particular facts of the individual case in light of the total range of sentences authorized by the legislature for the particular offense. State v. Wentz, 805 P.2d 962 (Alaska 1991).

Composite sentence for multiple driving felonies held proper. —

In a case in which defendant was convicted of felony driving under the influence, felony eluding a police officer, and driving while his license was suspended, defendant’s composite sentence of eight years’ imprisonment with three and one-half years suspended, or four and one-half years to serve, was not clearly mistaken. Based on defendant’s misconduct on pretrial release, the judge could reasonably conclude that defendant would perform much better in a custodial setting than he would on supervised probation. Chilligan v. State, — P.3d — (Alaska Ct. App. Jan. 25, 2012) (memorandum decision).

Arbitrary sentencing not necessarily excessive. —

A benchmark sentence of 20 to 25 years set in an arbitrary manner and without a supporting rationale was not necessarily excessive where the crime provided for a sentence of five to 99 years and the facts supported the sentence. State v. McPherson, 855 P.2d 420 (Alaska 1993).

Lenient sentence unjustified. —

The sentencing court did not find defendant’s prospects for rehabilitation particularly favorable, or that her conduct was in any respect less serious than normal for a class B felony, or that insubstantial harm resulted, yet the total sentence received was palpably more lenient than the norm for similarly situated offenders. In the absence of actual conflict amoung the goals, emphasizing a single sentencing goal can never be justified to the exclusion of others. Thus, defendant’s lenient sentence unduly depreciated the seriousness of her criminal misconduct. State v. Hernandez, 877 P.2d 1309 (Alaska Ct. App. 1994).

For cases construing former AS 12.55.050 , imposing increased punishment for persons convicted of more than one felony, see Bowie v. State, 494 P.2d 800 (Alaska 1972); State v. Carlson, 560 P.2d 26 (Alaska 1977); Davis v. State, 566 P.2d 640 (Alaska 1977); Johnson v. State, 580 P.2d 700 (Alaska 1978); Gonzales v. State, 593 P.2d 257 (Alaska 1979); Coleman v. State, 621 P.2d 869 (Alaska 1980), cert. denied, 454 U.S. 1090, 102 S. Ct. 653, 70 L. Ed. 2d 628 (U.S. 1981); Sheakley v. State, 644 P.2d 864 (Alaska Ct. App. 1982).

B.Specific Crimes

Editor's notes. —

Most of the notes below refer to sentences imposed under earlier versions of this section. Please note the year of the case in the citation following each note and the amendatory acts listed in the historical citation following the text of the section.

Murder. —

Where two defendants were convicted of first-degree murder and one of second-degree murder for the same crime, the sentencing judge was entitled to make his own evaluation of the evidence in deciding how culpable was the behavior of the one convicted of second-degree murder. Where the record before the jury sufficed to support the conclusion that the defendant convicted of second-degree murder was as guilty of premeditated murder as were the other defendants, the maximum term of 99 years received by each of the defendants, though certainly severe, was justified by the extreme nature of their crime. Ridgley v. State, 739 P.2d 1299 (Alaska Ct. App. 1987).

Where defendant, convicted of first-degree murder, was sentenced to the mandatory minimum term of imprisonment of 99 years imposed by a judge, not a jury, the sentence was not unconstitutional because the offense involved subjecting the victim to substantial physical torture. Malloy v. State, 153 P.3d 1003 (Alaska Ct. App. 2007).

Combination of the automatic waiver statute and the adult sentencing statute was consistent with evolving standards of decency and this scheme bore a fair and substantial relationship to the legitimate purposes of punishment; the sentencing judge gave the minor defendant’s rehabilitative prospects careful scrutiny and appropriate weight and the resulting sentence for first-degree murder was not clearly mistaken. Gray v. State, 267 P.3d 667 (Alaska Ct. App. 2011).

Sentencing judge's imposition of a partially consecutive composite sentence of 80 years' imprisonment, with another 20 years suspended, when defendant was convicted of first-degree murder for killing his spouse and second-degree murder for killing his infant child was not clearly mistaken. The judge considered defendant's military service and potential for rehabilitation, community condemnation, and the fact that, if and when defendant got out of prison, he would be under active supervision for the rest of his life. Lynch v. State, — P.3d — (Alaska Ct. App. May 10, 2017) (memorandum decision).

Defendant was properly sentenced to 20 to 99 years' imprisonment for murdering his wife because the sentencing judge's findings were supported by the record, and his weighing of the sentencing criteria was not clearly mistaken; the sentencing judge concluded that defendant did not shoot his wife in the throes of a post-traumatic stress reaction and that the murder was an egregious instance of domestic violence. Lopez v. State, — P.3d — (Alaska Ct. App. Aug. 8, 2018) (memorandum decision).

Aggravated first-degree murder. —

Because the statute’s mandatory sentence falls within the range otherwise authorized for first-degree murder, paragraph (a)(3) does not define a new, aggravated class of first-degree murder, but simply imposes a permissible limit on the court’s usual sentencing discretion. State v. Malloy, 46 P.3d 949 (Alaska 2002).

Establishing first-degree murder and aggravated first-degree murder. —

Subsection (a) establishes a separate maximum penalty for certain offenders convicted of first-degree murder which forces a construction of the statute that creates two separate offenses of normal first-degree murder and aggravated first-degree murder, and makes the circumstances listed in (a)(1)-(3) additional elements necessary to prove aggravated first-degree murder. Malloy v. State, 1 P.3d 1266 (Alaska Ct. App. 2000).

Elements of aggravated first-degree murder. —

AS 11.41.100(a) and subsection (a) of this section jointly create two offenses, first-degree murder and aggravated first-degree murder, and the factors specified in paragraphs (a)(1)-(3) are elements of aggravated first-degree murder. Malloy v. State, 1 P.3d 1266 (Alaska Ct. App. 2000).

Murder and related offenses. —

Where burglary and theft offenses were property crimes integrally related with the murder for which defendants were convicted, and they were part of a single criminal episode involving the same victim, the sentencing record did not establish any actual need for consecutive sentences in excess of 99 years, given the youthfulness of the defendants (19, 16, and 17 years), their lack of any prior adult convictions, and their lack of prior involvement in any crime of violence. Under the 99-year sentences for murder alone, the defendants would not become eligible for parole consideration until they had completed serving one-third of their terms — 33 years of imprisonment, and even then, they would be entitled to release on discretionary parole only if it appeared, based on all available information, that they would conform their behavior to the requirements of the law and that they would not pose a danger to the community. Ridgley v. State, 739 P.2d 1299 (Alaska Ct. App. 1987).

Sentence for first-degree murder not clearly mistaken. —

See Green v. State, 761 P.2d 726 (Alaska Ct. App. 1988).

Sentence of 30 years for act of second-degree murder was not clearly mistaken. Hurn v. State, 872 P.2d 189 (Alaska Ct. App. 1994).

In a second-degree murder case, defendant’s 30 year sentence was not excessive where the trial court noted that the murder was not just a simple assault with a deadly result, it was closer to murder in the first degree, and although defendant’s accomplice was the primary perpetrator, defendant aided and abetted the accomplice. David v. State, 123 P.3d 1099 (Alaska Ct. App. 2005).

Murder and attempted murder. —

Consecutive sentences for first degree murder and attempted murder were remanded because judge had failed to find that a sentence of that length was necessary to protect the public. Nelson v. State, 874 P.2d 298 (Alaska Ct. App. 1994).

Murder, domestic violence, and obstruction of justice. —

Trial judge was not clearly mistaken when he sentenced defendant to serve 75 years in prison where the crime was one of domestic violence, defendant had a history of repeated assaultive conduct, and defendant engaged in a significant and protracted effort to conceal the murder and to avoid apprehension. Noyakuk v. State, 127 P.3d 856 (Alaska Ct. App. 2006).

Attempted murder. —

Determining whether a defendant’s sentence is clearly mistaken requires resolving whether the totality of the circumstances peculiar to defendant’s case places his sentence within a permissible range of reasonable sentences which a reviewing court, after an independent review of the record, will not modify. In considering an attempted murder sentence, as the gap between attempt and completion narrows, the justification for disparate treatment of an offender convicted of attempted murder, on the one hand, and an offender convicted of the completed crime, on the other, diminishes commensurately; as the crimes grow similar, so should the sentences. Defendant’s sentence was not clearly mistaken. Rudden v. State, 881 P.2d 328 (Alaska Ct. App. 1994).

In an attempted murder case, defendant’s sentence of 70 years’ imprisonment with 20 years suspended was within the permissible range of reasonable sentences. Blevins v. State, — P.3d — (Alaska Ct. App. Mar. 27, 2013) (memorandum decision).

Second-degree murder sentence beyond benchmark. —

Trial judge did not err in sentencing defendant to 40 years for second-degree murder under AS 11.41.110(a)(2) and subsection (b) of this section, because Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and the Sixth Amendment did not require a jury to decide whether defendant’s sentence should exceed the Page v. State, 657 P.2d 850 (Alaska Ct. App. 1983), benchmark range, and defendant’s prior history under AS 12.55.005 , and repeated perjury were sufficient reasons to exceed the range. Carlson v. State, 128 P.3d 197 (Alaska Ct. App.), cert. denied, 549 U.S. 966, 127 S. Ct. 415, 166 L. Ed. 2d 294 (U.S. 2006).

Inmate’s claim that even though the Page v. State, 657 P.2d 850 (Alaska Ct. App. 1983), sentencing rule was only a benchmark a defendant being sentenced for second-degree murder was entitled to a jury trial on any fact that the sentencing judge relied on when deciding to impose a sentence of imprisonment above the 20- to 30-year benchmark range was properly rejected on postconviction review where the court had previously rejected the same argument in a prior case. Allen v. State, 153 P.3d 1019 (Alaska Ct. App. 2007).

Motion to correct an illegal sentence for second-degree murder was denied because Apprendi does not require that aggravating circumstances be proven beyond a reasonable doubt since those circumstances would not increase the sentencing range provided in this section. Woodard v. State, — P.3d — (Alaska Ct. App. May 2, 2012) (memorandum decision).

In a case in which defendant was sentenced to 60 years' imprisonment for second-degree murder, he was not entitled to a sentence in the benchmark range of 20 to 30 years for a typical first felony offender convicted of a typical second-degree murder because he was not a first felony offender; and the superior court found that he had an extensive criminal history, he had demonstrably poor prospects for rehabilitation, he was dangerous and unpredictable, and a lengthy term of incarceration was necessary to protect the public. Nayokpuk v. State, — P.3d — (Alaska Ct. App. Apr. 10, 2019) (memorandum decision).

Murder and tampering with evidence. —

Trial court should not have imposed a five-year sentence for tampering with physical evidence consecutively to a 99-year sentence for murder, where the record would not support the conclusion that defendant must be incarcerated for the remainder of his life without any possibility of parole. Thompson v. State, 768 P.2d 127 (Alaska Ct. App. 1989).

Criminally negligent homicide. —

Nine year sentence for criminally negligent homicide was not excessive because defendant’s conduct was significantly more serious than a typical criminally negligent homicide, past rehabilitation attempts were unsuccessful and future prospects were poor, and defendant posed an ongoing danger to public safety, requiring defendant’s isolation. West v. State, — P.3d — (Alaska Ct. App. July 29, 2015) (memorandum decision).

Criminally negligent homicide and failure to render assistance. —

Judge should not have sentenced defendant convicted of criminally negligent homicide and failure to render assistance after an injury accident to a sentence of imprisonment greater than four years, as he was only 19 years of age and had no prior criminal record; and a sentence of four years is double the presumptive sentence for a second-felony offender convicted of a class C felony, such as negligent homicide, and is equal to the presumptive sentence for a second-felony offender convicted of a class B felony, to which failure to render assistance is analogous. Smith v. State, 739 P.2d 1306 (Alaska Ct. App. 1987).

Manslaughter sentence held reasonable. —

In a case in which defendant was convicted of manslaughter, the trial judge was not clearly mistaken in imposing a sentence of 16 years with 5 years suspended. Defendant’s initial assault on the victim was severe, and even after defendant was separated from the victim, defendant returned to assault the victim again. Dickson v. State, — P.3d — (Alaska Ct. App. Aug. 5, 2009) (memorandum decision).

Assault and manslaughter. —

It was unjust to impose on defendant a seven-year presumptive term for his assault conviction when the presumptive term for his manslaughter conviction, a more serious offense, was only five years, and the two crimes stemmed from precisely the same conduct. New v. State, 714 P.2d 378 (Alaska Ct. App. 1986).

Composite sentence of twenty-one and one-half years with five years suspended for first degree assault and manslaughter was not clearly mistaken given defendant’s background and the severity of his crimes. The trial judge could properly take into account the fact that defendant’s crimes involved three separate victims. Geisinger v. State, — P.3d — (Alaska Ct. App. Dec. 22, 2010) (memorandum decision).

Assault. —

Sentence of a maximum 20-year period of imprisonment without eligibility for parole given a first-felony offender convicted of one count of assault in the first degree, AS 11.41.200(a)(1) , for a continuous course of assault upon an elderly woman living in the defendant’s home as the housekeeper was held excessive; that sentencing decision was reversed and remanded for resentencing to a term not to exceed 15 years with five years suspended. Pruett v. State, 742 P.2d 257 (Alaska Ct. App. 1987).

Trial court was not clearly mistaken when it suspended three years of defendant’s fifteen-year sentence for first-degree assault, where the victim was defendant’s deaf and mute wife, who was severely beaten and suffered permanent brain damage, and defendant had a substantial record of alcohol-related misdemeanor offenses, including numerous instances of disorderly conduct and property damage. State v. Wentz, 805 P.2d 962 (Alaska 1991).

For a first felony offender convicted of third-degree assault, a sentence of five years with one year suspended (four years to serve), which exceeded the three-year presumptive term for a third felony offender, was not excessive based upon aggravating factors in the facts of the case, and by defendant’s history of repeated serious violence against the same victim. Pickard v. State, 965 P.2d 755 (Alaska Ct. App. 1998).

A sentence of five years and and nine months with three years suspended, for multiple convictions, the most serious of which was assault in the third degree, was not excessive where the presentence report emphasized that the defendant had a history of assaults on active duty police officers and where the sentencing judge stated that the defendant’s behavior of totally losing control of himself and engaging in dangerous and assaultive behavior was a consistent pattern and that he was a “dangerous person” for whom rehabilitation was very guarded. Lonis v. State, 998 P.2d 441 (Alaska Ct. App. 2000).

In a first degree assault case, the presumptive range of 7 to 11 years was appropriate because the higher sentencing range in this section applies even if the factor that triggered the higher sentencing range, use of a dangerous weapon, is also an element of the underlying offense of first degree assault. Flemens v. State, — P.3d — (Alaska Ct. App. Nov. 24, 2010) (memorandum decision).

Defendant's sentence on a first-degree assault conviction was affirmed as it did not violate double jeopardy to be sentenced based on the use of a firearm after being convicted of first-degree robbery based on the use of a firearm. Goldstein v. State, — P.3d — (Alaska Ct. App. Jan. 17, 2018) (memorandum decision).

Superior court properly declined to suspend a portion of defendant's sentence and impose probation because defendant had previously been convicted of a felony, the presumptive range for his felony assault conviction was 10 to 14 years, and no mitigating factors applied. St. Clair v. State, — P.3d — (Alaska Ct. App. May 19, 2021) (memorandum decision).

Sexual assault. —

Sentence of 20 years’ imprisonment for first-degree sexual assault of two-year-old child was excessive and case was remanded for resentencing not to exceed 10 years. (see 2003 amendment)Langton v. State, 662 P.2d 954 (Alaska Ct. App. 1983).

Suspended five-year sentence for first-degree sexual assault of defendant’s four-year-old son was disapproved as too lenient, with a 90-day to three-year sentence suggested. Langton v. State, 662 P.2d 954 (Alaska Ct. App. 1983).

Unsuspended twenty-year term for three counts of first-degree sexual assault, imposed under AS 11.41.410 as it read before the 1982 amendment to the section and AS 12.55.125(c) , on a first offender with a lengthy history of sexually assaultive conduct committed against his stepdaughters was clearly mistaken. The sentencing record did not justify the assumption that the defendant was destined to fail at rehabilitation that appeared to have been central in the decision on sentencing. There was no indication that the defendant ever resorted to violence or threats of violence, no physical injury resulted from the assaults, and the emotional and psychological injuries suffered by the victims were probably somewhat less than usual in such cases; the fact that the assaultive conduct was repeated over an extended period of time, while a significant aggravating factor, did not justify treating the defendant as a worst offender and imposing a maximum sentence. (see 2003 amendment) Polly v. State, 706 P.2d 700 (Alaska Ct. App. 1985).

Sentence of 20 years with 12 years suspended for first-degree sexual assault, where the defendant was subject to an eight-year presumptive term was vacated and the case was remanded for resentencing where there was essentially only a single aggravator properly applicable, not three; where the sentencing court failed to state what weights it attached to the aggravators; and where the amount of suspended time was excessive. The superior court was directed to impose a sentencing not exceeding 12 years with four suspended. (see 2003 amendment) Braaten v. State, 705 P.2d 1311 (Alaska Ct. App. 1985).

Review of cases which address sexual assaults involving both adult and child victims supports a sentencing range for aggravated offenses of 10 to 15 years, and use of Atkinson and Depp as benchmarks for determining the kind of conduct warranting a sentence within that range. These benchmarks are applicable to all aggravated cases because of: (1) multiple victims; (2) multiple assaults on a single victim; or, (3) serious injuries to one or more victims. State v. Andrews, 707 P.2d 900 (Alaska Ct. App. 1985), aff’d (see 2003 amendment), 723 P.2d 85 (Alaska 1986).

It was not manifestly unjust to impose a five-year presumptive term upon defendant’s conviction of attempted sexual assault of a minor, and he was not automatically entitled as a matter of law, to have his case referred to a three-judge panel for sentencing. (see 2003 amendment)Aveoganna v. State, 757 P.2d 75 (Alaska Ct. App. 1988).

Presumptive sentence for sexual assault, imposed in the absence of aggravating or mitigating factors and without any basis for referral to a three-judge panel, was not subject to modification thereafter pursuant to Alaska Rule of Criminal Procedure 35(b). Gabrieloff v. State, 758 P.2d 128 (Alaska Ct. App. 1988).

In defendant’s sexual assault case, consecutive 15-year sentences were proper because the trial court found that defendant had a “profound antisocial nature,” and that he was a “particularly violent and dangerous” offender; the sexual assaults were “reprehensible and destructive” to both the victim and the community, and defendant was a worst offender with no likelihood of rehabilitation. Douglas v. State, 151 P.3d 495 (Alaska Ct. App. 2006).

Trial court did not err in denying defendant’s request to refer his case to a three-judge sentencing panel where defendant refused to accept responsibility for the sexual assault and he had not proven the non-statutory mitigating factor of exceptional prospects for rehabilitation. Defendant’s conduct did not differ significantly from a typical offender. Manrique v. State, 177 P.3d 1188 (Alaska Ct. App. 2008).

Trial court's decision declining to refer defendant's case to the three-judge sentencing panel was not clearly mistaken as the trial court found that defendant's rehabilitative prospects were guarded at best, given his 17 prior misdemeanors and his mature age of 45 years; and the judge still imposed a sentence near the bottom of the 5- to 15-year presumptive range for second-degree sexual assault of an incapacitated woman. Creson v. State, — P.3d — (Alaska Ct. App. June 1, 2016) (memorandum decision).

In a case in which defendant pleaded guilty to sexual assault in the third degree pursuant to a plea agreement and agreed that the "most serious offense" aggravator applied to his case, the appellate court concluded that defendant's sentence of 40 years in prison with 10 years suspended was not clearly mistaken. Baker v. State, — P.3d — (Alaska Ct. App. Aug. 22, 2018).

Trial court did not err in denying defendant's request for referral to the three-judge panel because defendant failed to establish that it was manifestly unjust to sentence him within the applicable 4- to 30-year sentencing range; defendant had a criminal history, and the sentencing judge expressed concern about the impact of alcohol consumption on his conduct, given that the victims testified that defendant was intoxicated when he assaulted them. Galaktianoff v. State, — P.3d — (Alaska Ct. App. Feb. 27, 2019), reaff'd, — P.3d — (Alaska Ct. App. 2019) (memorandum decision).

Where the statewide three-judge sentencing panel found that it would not be manifestly unjust to sentence defendant within the presumptive range for third-degree sexual assault (engaging in sexual contact with an incapacitated person), the three-judge panel did not err in rejecting defendant's claim of manifest injustice because defendant did not focus on the specific circumstances of his prior offenses or argue how those circumstances differentiated him from the typical offender with prior felony convictions for property offenses; and defendant largely overlooked his remaining criminal history, which included a string of misdemeanors and probation violations following his release from prison, and a fourth-degree assault conviction. Kignak v. State, — P.3d — (Alaska Ct. App. Oct. 16, 2019) (memorandum decision).

In a case in which defendant was convicted of sexual assault in the second degree (sexual penetration with an incapacitated person), defendant’s 15-year sentence with 6 years suspended was not excessive as the superior court found three statutory aggravating factors, which authorized the superior court to impose a sentence of up to 99 years; and all three aggravators were related to defendant’s prior criminal history and included nine misdemeanor charges - including attempted sexual abuse of a minor in the third degree for engaging in sexual conduct with a 15-year-old while she was asleep, and assault in the fourth degree for an incident that arose after he tried to force himself onto a woman in a restroom. Fawcett v. State, — P.3d — (Alaska Ct. App. Dec. 8, 2021).

Sexual assault and sexual abuse of minor. —

Total sentence of 38 years imposed against a first offender for sexual assault and sexual abuse of a minor was remanded for resentencing not to exceed 25 years with five years suspended, where there was prolonged abuse of the victims but no physical violence had been used to coerce the victims to participate in the sexual abuse. (see 2003 amendment) Howell v. State, 758 P.2d 103 (Alaska Ct. App. 1988).

Defendant committed multiple instances of sexual abuse, his acts of sexual abuse involved two victims, and he was also being sentenced for possessing quantities of child pornography. His overall conduct was aggravated for sentencing purposes, and his composite sentence of 14 years to serve was well within benchmark limits. Carr v. State, — P.3d — (Alaska Ct. App. Oct. 3, 2012) (memorandum decision).

Sexual abuse of minor. —

A sentence of 20 years with five years suspended for a first felony offender for sexual abuse of a minor in the first degree was clearly mistaken, where the offense did not involve multiple acts with multiple victims or a prior felony record. (see 2003 amendment) Zackar v. State, 761 P.2d 1015 (Alaska Ct. App. 1988).

Composite term of sixty years upon conviction of two counts of sexual abuse of a minor in the first degree was clearly mistaken, and the case was remanded for imposition of a total sentence not to exceed sixty years with ten years suspended, where the sentencing court’s reliance upon the seriousness of defendant’s prior murder conviction placed inordinate and disproportionate weight on a single aggravating factor. (see 2003 amendment) Murray v. State, 770 P.2d 1131 (Alaska Ct. App. 1989).

Evidence that, besides acts of sexual abuse, defendant had engaged in significant acts of violence both toward strangers and toward members of his own households, had already served a substantial prison sentence for a felony theft conviction, had persistently resisted both rehabilitative programs and probation supervision, and that his criminal behavior had escalated in seriousness over the past 15 years, placed his case among the most aggravated category of sexual abuse and sexual abuse offenders, and supported the court’s conclusion that defendant posed a substantial degree of danger to society and that, in order to protect society, the court needed to sentence defendant to a term of imprisonment exceeding the 30-year maximum for any single count of first-degree sexual abuse. Mullin v. State, 886 P.2d 1323 (Alaska Ct. App. 1994).

Sentence of ten years with four years suspended was not clearly mistaken where defendant was a second felony offender, both the current and past felonies involved sexual misconduct, the conviction involved a pattern of sexual abuse that occurred on a monthly basis over a period of three years, and the court found three aggravating factors and no mitigating factors. (see 2003 amendment) Wassillie v. State, 911 P.2d 1071 (Alaska Ct. App. 1996).

Composite sentence of 37 years, with 19 years to serve, on 10 counts of child abuse involving three very young children over a period of many months, was authorized; defendant stipulated that he knew the victims were vulnerable due to their extreme youth, five and seven years old. Anderson v. State, 289 P.3d 1 (Alaska Ct. App. 2012), reaff'd, 337 P.3d 534 (Alaska Ct. App. 2014).

Superior court properly sentenced defendant to 30 years to serve for first-degree sexual abuse of his minor stepdaughter because he had a criminal history—he had physically and sexually abused his biological sister—he was not eligible for good time deductions where he was sentenced for an unclassified sexual felony, and he was not eligible for discretionary parole. Evans v. State, — P.3d — (Alaska Ct. App. Aug. 23, 2017) (memorandum decision).

Superior court properly found that defendant was covered by the statutory provision that imposed a non-waivable mandatory term of probation on all defendants convicted of a sexual felony, because defendant failed to establish plain error with respect to his ex post facto claim inasmuch as the record reasonably supported the conclusion that defendant pleaded guilty to having committed 13 months of ongoing sexual abuse of a minor from January 2006 through January 2007 and was sentenced for criminal conduct that he committed after the statute went into effect. Sanders v. State, — P.3d — (Alaska Ct. App. Aug. 1, 2018).

Sentence was not clearly mistaken when defendant was sentenced following a plea of guilty to a consolidated count of second-degree sexual abuse of a minor, encompassing multiple acts of completed sexual penetration, because defendant's conduct was among the most serious conduct included in the definition of second-degree sexual abuse of a minor, the victim was very young, defendant had a position of trust and authority over the victim, and defendant engaged in a pattern of grooming behavior over a period of time. Colocho v. State, — P.3d — (Alaska Ct. App. Aug. 19, 2020) (memorandum decision).

Because the superior court found one or more aggravators, it was authorized to impose a sentence of up to 99 years for defendant's attempted second-degree sexual abuse of a minor conviction; the superior court found two aggravating factors, that the conduct constituting the offense was among the most serious conduct included in the definition of the offense and that defendant, having been convicted of a specified sexual felony, was ten or more years older than the victim. Rosario v. State, — P.3d — (Alaska Ct. App. Feb. 3, 2021) (memorandum decision).

Sentence imposed for attempted second-degree sexual abuse of a minor was not clearly mistaken because defendant stipulated to conduct that constituted a completed offense; the superior court, therefore, concluded that defendant's offense was very serious in comparison to other crimes of attempted sexual abuse. Rosario v. State, — P.3d — (Alaska Ct. App. Feb. 3, 2021) (memorandum decision).

Sexual assault on patient by doctor. —

In a case involving first-degree sexual assault and other offenses, a composite term of 19 years in prison was not excessive where the trial judge gave reasons for exceeding the presumptive range for the most serious offense; the reasons included defendant’s many convictions, his abuse of his patients’ trust, and the misuse of his medical privileges to satisfy his personal wants. Grandstaff v. State, 171 P.3d 1176 (Alaska Ct. App. 2007).

Possession of child pornography. —

Ten years of probation was not clearly mistaken where the sentencing court found that defendant was addicted to child pornography and that he needed substantial professional help; the lengthy period of probation was necessary to ensure his rehabilitation and to protect the public. Smith v. State, 349 P.3d 1087 (Alaska Ct. App. 2015).

Given defendant’s criminal history, including five or more class A misdemeanor convictions, and his risk of reoffending, the composite sentence imposed - 14 years with 7 years suspended (7 years to serve) for each count of possessing child pornography, with all sentences to run concurrently - was not excessive or clearly mistaken. Williams v. State, — P.3d — (Alaska Ct. App. Mar. 2, 2022).

Kidnapping. —

Defendant’s sentence of 50 years in prison for the violent kidnapping, sexual assault, and assault on his estranged wife was not excessive. As a second felony offender, he faced a minimum of 30 years to serve for the sexual assault; under AS 12.55.125(b) , he faced a mandatory minimum sentence of 5 years in prison for the kidnapping. Torrence v. State, — P.3d — (Alaska Ct. App. Mar. 27, 2013) (memorandum decision).

First-degree robbery. —

Use of an inoperable pellet gun created little actual risk from the use of the dangerous instrument and would support a finding that the conduct was among the least serious within the definition of first-degree robbery. Lewandowski v. State, 18 P.3d 1220 (Alaska Ct. App. 2001), overruled in part, Michael v. State, 115 P.3d 517 (Alaska 2005).

Second-degree robbery. —

Upon conviction of second-degree robbery, where the defendant was a third-felony offender, eligible for a presumptive term of six years imprisonment, and two aggravating factors were found, i.e., the victim sustained physical injury and the defendant was on felony probation when he committed the crime, the court did not err in sentencing the defendant to serve an additional three years beyond a composite term of six years and 10 months to which he had been sentenced in two unrelated cases. Baker v. State, 905 P.2d 479 (Alaska Ct. App. 1995).

Defendant pled guilty to second-degree robbery after having used a toy gun to rob a bank in order to be arrested so he could obtain medical treatment. Nevertheless, his use of the toy gun was traumatic to the bank teller, who did not know it was a toy, and the defendant’s past record and history of mental illness made it safer for the community to have him confined. Montoya v. State, — P.3d — (Alaska Ct. App. Feb. 13, 2013) (memorandum decision).

Use of firearm in robbery. —

Although the use of the firearm in a robbery results both in the defendant’s having committed a more serious offense and the defendant’s facing a more serious sentence, the defendant has still only been punished once for that crime; sentencing a defendant for robbery in the first degree under the provisions of paragraph (c)(2) does not violate the double jeopardy provisions of Alaska Const., Art. I, § 9. Richardson v. State, 706 P.2d 1188 (Alaska Ct. App. 1985).

Burglary and theft. —

A composite sentence of five years with two years suspended, imposed upon a first felony offender upon conviction of two counts of burglary in the second degree, one count of theft in the second degree, and one count of theft in the third degree, was not excessive, where defendant’s conviction of two separate burglaries and related thefts, and his admission of two additional burglaries and related thefts, justified a greater sentence than would a conviction of an isolated burglary and theft. Comegys v. State, 747 P.2d 554 (Alaska Ct. App. 1987).

Burglary. —

A sentence of seven years, with four years suspended, for first-degree burglary was excessive, where defendant was a relatively youthful offender with an otherwise clean record, family ties and support in the community, and a fairly stable employment record. (see 2003 amendment)West v. State, 727 P.2d 1 (Alaska 1986).

Burglary and attempted escape. —

Defendant’s 23-year composite sentence arising from a burglary and attempted escape after arrest was not an abuse of discretion where the sentence was in the range of reasonable sentences based upon defendant’s criminal history and the seriousness of the current offenses. Griffin v. State, 9 P.3d 301 (Alaska Ct. App. 2000).

Theft. —

Where a first felony offender embezzled almost four times the jurisdictional amount for first degree theft, the imposition of a relatively modest term of incarceration would not have conflicted with or impeded the court’s goal of assuring the defendant’s rehabilitation, and might have contributed to fulfilling the sentencing goals of general deterrence and community condemnation; a sentence including a fine and community service, with a term of imprisonment suspended, was disapproved. State v. Buza, 886 P.2d 1318 (Alaska Ct. App. 1994).

Interference with official proceedings. —

Trial court could properly conclude that the facts of the case and defendant’s background required it to sentence him to a term of eight years’ imprisonment with four years suspended for the interference with official proceedings conviction. Sentence was not excessive where defendant, a first-felony offender, had a record of assaultive behavior, where the offense was aggravated, where alcohol was involved, and where the court was concerned for the safety of the community. Bailey v. State, — P.3d — (Alaska Ct. App. Sept. 30, 2009) (memorandum decision).

Tampering with evidence. —

In a case in which defendant's son shot and killed two state troopers, and defendant was prosecuted for altering evidence in an effort to make it look as if his son had acted in defense of defendant, defendant's sentence of 8 years to serve was not clearly mistaken for his two evidence tampering convictions involving manipulating and re-positioning the state troopers' service pistols because the trial judge concluded that defendant had an ingrained pattern of assaultive and disorderly behavior, as well as belligerence toward the police; that defendant's potential for rehabilitation was nearly nil; and that a long period of incarceration was needed to keep the public, and public safety officers, safe from harm. Kangas v. State, — P.3d — (Alaska Ct. App. June 13, 2018) (memorandum decision).

Medicare fraud and exchange of prescription drugs for sex. —

Where defendant prescribed medications for patients in exchange for sexual favors and fraudulently used Medicaid funds for prescriptions and office visits, a composite 3-year sentence with 1 year suspended for three counts of second-degree theft was not excessive. Grandstaff v. State, 171 P.3d 1176 (Alaska Ct. App. 2007).

Property crime. —

An extensive misdemeanor record, covering a period of two years and highlighted by four shoplifting convictions, and multiple probation revocations, does not constitute the kind of exceptional case that would warrant a sentence for a first felony offender convicted of a property crime that exceeds the presumptive term for a second felony offender. Tate v. State, 711 P.2d 536 (Alaska Ct. App. 1985).

Scheme to defraud. —

Defendant’s sentence for scheme to defraud was not excessive because his active term of imprisonment, three years, was one year less than the four-year presumptive term provided for second felony offenders, and and it was well within the sentencing range for a first felony offender convicted of a class B felony. Byford v. State, 352 P.3d 898 (Alaska Ct. App. 2015).

Fraudulently obtaining fund checks. —

Imposition of two three-year concurrent sentences with one year suspended for forging fraudulent permanent fund applications and fraudulently obtaining fund checks was affirmed where the trial judge found that the crimes were easy to commit, difficult to detect and generated a substantial income; if the defendant had been subject to presumptive sentencing, the defendant’s multiple acts of theft, which extended over a substantial period of time and required numerous separate intents to steal, coupled with generally fraudulent behavior, might have warranted referral of the case to a three-judge sentencing panel for consideration of a more severe sentence; and the defendant’s consistent pattern of deceptive behavior in dealing with former employers and with state probation officer strongly militated against her potential for rehabilitation. Hads v. State, 727 P.2d 11 (Alaska Ct. App. 1986).

Second-degree forgery. —

Three-year unsuspended sentence for first-felony offender for seven counts of second-degree forgery was justified considering the offense and the defendant’s past criminal record, but the imposition of 12 years of suspended time was clearly mistaken; the total sentence should not have exceeded five years with two years suspended. (see 2003 amendment)Mathison v. State, 687 P.2d 930 (Alaska Ct. App. 1984).

Escape. —

Defendant’s sentence of six years of imprisonment, for escape in violation of AS 11.56.310(a) , was not excessive under Alaska Const. art. I, § 12; except for the finding that defendant was not guilty by reason of insanity, defendant’s prior criminal conduct would have qualified defendant as a third-felony offender facing a presumptive sentence of six years. Alto v. State, 64 P.3d 141 (Alaska Ct. App. 2003).

Misconduct involving controlled substance. —

A composite sentence of eight years, with four years suspended, upon conviction of four counts of misconduct involving a controlled substance in the third degree, was excessive where, although defendant had dealt in large quantities of cocaine, he was still entitled to be sentenced as a first felony offender. (see 2003 amendment)Lewis v. State, 769 P.2d 450 (Alaska Ct. App. 1989).

Where the evidence showed that the one ounce sale was consistent with a lower-level wholesale transaction, the sale was not an isolated transaction, the stolen handgun and the large amounts of cash discovered by the police upon the defendant’s arrest lent support to the conclusion that his involvement in cocaine trafficking was neither casual nor at the lowest levels of the trade, and the sentence for a mid-level trafficker was proper. Vasques-Villegas v. State, 798 P.2d 362 (Alaska Ct. App. 1990).

Sentence of 20 years imprisonment for sale of cocaine to a minor was excessive, where the offense involved the sale of approximately two grams of cocaine to an undercover agent who appeared relatively mature and who was within a month of his 19th birthday. (see 2003 amendment)McPherson v. State, 800 P.2d 928 (Alaska Ct. App. 1990), rev'd, 855 P.2d 420 (Alaska 1993).

Consecutive sentences totaling seven years were not excessive where defendant was convicted of two offenses — misconduct involving a controlled substance in the third degree and in the fourth degree — and defendant had a long criminal history involving drug trafficking. Johnson v. State, 919 P.2d 767 (Alaska Ct. App. 1996).

Defendant’s composite sentence of 19 years’ imprisonment with 8 years suspended was not clearly mistaken, given the fact that defendant faced a 10-year presumptive term of imprisonment for the drug offense; the defendant actually delivered LSD to a minor and was being sentenced for the two other felonies, exploitation of a minor and possession of child pornography. Parker v. State, 151 P.3d 478 (Alaska Ct. App. 2006).

Because defendant had an extensive prior record, he had poor prospects for rehabilitation and he needed to be removed from society. The offense of misconduct involving a controlled substance in the first degree under AS 11.71.010(a)(3) is one of the most serious in Alaska, thus it was not error to impose a composite sentence of 40 years with 10 years suspended. Williams v. State, — P.3d — (Alaska Ct. App. Jan. 11, 2012) (memorandum decision).

A defendant who was convicted of possession of a firearm during the commission of a drug offense was entitled to have his sentence for misconduct involving a controlled substance vacated because that included a weapons enhancement. The presence of the firearm could not be used twice in determining the sentence. McDonald v. State, — P.3d — (Alaska Ct. App. Apr. 22, 2015).

No right to jury trial on certain fact questions triggering higher mandatory sentence. —

In trial for second-degree murder, defendant had no Sixth Amendment right to a jury trial on issues of fact about the victim’s age and defendant’s position of authority in relation to the deceased child within the meaning of AS 11.41.470 (5), because subsection (b) of this section applied those issues of fact that increase the mandatory minimum term of imprisonment for a crime rather than the maximum term of imprisonment; the factual issues that trigger the higher mandatory minimum sentence for second-degree murder are not elements of the offense. Edwards v. State, 158 P.3d 847 (Alaska Ct. App. 2007).

Sentence upheld. —

Austin v. State, 627 P.2d 657 (Alaska Ct. App. 1981) (criminal mischief); Hoover v. State, 641 P.2d 1263 (Alaska Ct. App. 1982) (sexual molestation); Nukapigak v. State, 645 P.2d 215 (Alaska Ct. App. 1982), aff'd, 663 P.2d 943 (Alaska 1983) (first-degree murder); Ecker v. State, 656 P.2d 577 (Alaska Ct. App. 1982) (first-degree murder); Page v. State, 657 P.2d 850 (Alaska Ct. App. 1983) (second-degree murder); Hodges v. State, 660 P.2d 1203 (Alaska Ct. App. 1983) (first-degree sexual assault); Langton v. State, 662 P.2d 954 (Alaska Ct. App. 1983) (first-degree sexual assault); Montes v. State, 669 P.2d 961 (Alaska Ct. App. 1983); Jimmy v. State, 689 P.2d 504 (Alaska Ct. App. 1984); Azzarella v. State, 703 P.2d 1182 (Alaska Ct. App. 1985); Brandenburg v. State, 705 P.2d 1331 (Alaska Ct. App. 1985); Yerk v. State, 706 P.2d 341 (Alaska Ct. App. 1985); Gant v. State, 712 P.2d 906 (Alaska Ct. App. 1986); Lewis v. State, 731 P.2d 68 (Alaska Ct. App. 1987); Soper v. State, 731 P.2d 587 (Alaska Ct. App. 1987); Edwards v. State, 733 P.2d 1063 (Alaska Ct. App. 1987); Schnecker v. State, 739 P.2d 1310 (Alaska Ct. App. 1987); Jackson v. State, 750 P.2d 821 (Alaska Ct. App.), cert. denied, 488 U.S. 828, 109 S. Ct. 80, 102 L. Ed. 2d 56 (U.S. 1988); Denbo v. State, 756 P.2d 916 (Alaska Ct. App. 1988); Goodman v. State, 756 P.2d 918 (Alaska Ct. App. 1988); Horton v. State, 758 P.2d 628 (Alaska Ct. App. 1988); Juelson v. State, 758 P.2d 1294 (Alaska Ct. App. 1988); Jansen v. State, 764 P.2d 308 (Alaska Ct. App. 1988); Hale v. State, 764 P.2d 313 (Alaska Ct. App. 1988); Barney v. State, 786 P.2d 925 (Alaska Ct. App. 1990); Leavitt v. State, 806 P.2d 342 (Alaska Ct. App. 1991); Wiley v. State, 822 P.2d 940 (Alaska Ct. App. 1991); Erickson v. State, 824 P.2d 725 (Alaska Ct. App. 1991); Perotti v. State, 843 P.2d 649 (Alaska Ct. App. 1992).

Sentence of ten years with four years suspended, in the case of a first offender convicted of six counts of sexual abuse of a minor in the second degree, was affirmed, where defendant was the victim’s music teacher and his abuse of the student-teacher relationship made it an exceptionally aggravated case. Osterback v. State, 789 P.2d 1037 (Alaska Ct. App. 1990).

Three-year sentence for failure to appear was not clearly mistaken, where defendant had been convicted of three or more prior felonies and the sentencing judge was entitled to take into account defendant’s long history of alcohol abuse and record of offenses in concluding that his prospects for rehabilitation were guarded. Hayes v. State, 790 P.2d 713 (Alaska Ct. App. 1990).

Composite sentence of 40 years of imprisonment for solicitation of murder in the first degree, attempted murder in the first degree, and assault in the first degree was not clearly mistaken. Marzak v. State, 796 P.2d 1374 (Alaska Ct. App. 1990).

A sentence of 50 years’ imprisonment for second-degree murder was upheld. See Norris v. State, 857 P.2d 349 (Alaska Ct. App. 1993).

Composite sentence of 25 years’ imprisonment, with six years suspended for conviction of one count of manslaughter and five counts of first-degree assault was not clearly mistaken where defendant killed one person and seriously injured four others in two separate incidents while driving a snow machine in an intoxicated condition. Ting v. Municipality of Anchorage, 929 P.2d 673 (Alaska Ct. App. 1997).

Where trial court found that a murder victim’s age was under 16 years and that defendant was in a position of authority over the victim, the trial court had no discretion under subsection (b) of this section to sentence defendant to less than 20 years imprisonment; thus, as a matter of law, defendant’s sentence of 20 years imprisonment was not “excessive” for purposes of sentence review. Edwards v. State, 158 P.3d 847 (Alaska Ct. App. 2007).

Despite defendant’s good record and considerable prospects for rehabilitation, the seriousness behind defendant’s actions in shooting and killing an unarmed, fleeing youth who had attempted to remove his commercial balloon-advertisement warranted the imposition of the five-year term for manslaughter. Lowe v. State, 866 P.2d 1320 (Alaska Ct. App. 1994).

Superior court properly sentenced defendant to a composite sentence of seven years of active imprisonment with an additional three years suspended for second-degree sexual abuse of a minor because the sentence was within the applicable presumptive range of five to 15 years and, while he had normal prospects for rehabilitation, three-judge panel focused on the “egregious” nature of defendant's use of a vibrator and pressuring the victim to recant. Campbell v. State, — P.3d — (Alaska Ct. App. Mar. 8, 2017) (memorandum decision).

Because the trial court found a statutory mitigator, it was authorized to reduce the 8-year presumptive term to as low as 4 years, even without referring defendant's case to the three-judge panel. Galaktianoff v. State, — P.3d — (Alaska Ct. App. Feb. 27, 2019), reaff'd, — P.3d — (Alaska Ct. App. 2019) (memorandum decision).

Trial court properly sentenced defendant to serve 99 years for attempted second-degree sexual abuse of a minor because a statute that enhanced a sentence for a currently committed crime, based on prior offenses that occurred before the passage of the statute, was not an ex post facto law. Simmonds v. State, — P.3d — (Alaska Ct. App. Mar. 13, 2019).

Denial of appellant’s motion to correct what he claimed were illegal sentences was proper because he was sentenced under the post-2005 sentencing law, and thus his facial challenge to Alaska’s sentencing scheme failed. Moreover, both of appellant’s sentences were proper since they did not exceed the presumptive range for his offenses, and the judge was thus authorized to impose the sentences in each case without the need to find aggravating factors. Thompson v. State, — P.3d — (Alaska Ct. App. Oct. 13, 2021).

Explanation not required. —

Contrary to the inmate's alternative argument, the sentencing court was not required to explain on the record why it was following the law and sentencing the inmate to a sentence within the presumptive range. Wyatt v. State, — P.3d — (Alaska Ct. App. Apr. 14, 2021).

Composite sentence not reviewable. —

Defendant’s composite sentence was within the applicable presumptive range for a third felony offender convicted of a class C felony; AS 12.55.120(e) prohibits a defendant from challenging his sentence as excessive if the sentence was within an applicable presumptive range set out in AS 12.55.125 , and as such, the appellate court could not review defendant’s misdemeanor sentence when it had no jurisdiction to review his accompanying felony sentence. Beattie v. State, 258 P.3d 888 (Alaska Ct. App. 2011).

Sentence not upheld. —

See Lawrence v. State, 764 P.2d 318 (Alaska Ct. App. 1988).

In order to insure that the law will be carried out and that judicial negligence will not result in disparate and unequal sentencing, the sentence imposed upon defendant was held illegal. State v. Price, 715 P.2d 1183 (Alaska Ct. App. 1986).

Total sentence of fifty years, imposed after convictions of two counts of first-degree robbery and two counts of third-degree assault, was clearly mistaken, where defendant was a youthful offender who had never before demonstrated a proclivity toward comparable acts of aggravated violence and the court’s decision to base defendant’s sentence on the assumption that he was incorrigible was unjustified. (see 2003 amendment)DeGross v. State, 816 P.2d 212 (Alaska Ct. App. 1991).

Although the defendant had a history of increasingly serious criminal misconduct and had persisted in offending despite a prior misdemeanor conviction in Florida and his current felony conviction, given the absence of significant past deterrent or rehabilitative efforts, and in light of a finding that the defendant may have been amenable to treatment for the psychological problems underlying his criminal behavior, the record did not support the sentencing court’s finding that the defendant could neither be rehabilitated nor deterred. The court’s imposition of a maximum sentence of 10 years based on this finding was, therefore, clearly mistaken. Keyser v. State, 856 P.2d 1170 (Alaska Ct. App. 1993).

Defendant faced a presumptive sentencing range of three to five years' imprisonment for felony eluding and felony driving under the influence convictions, and a term of 30 days to one year for the driving while license revoked conviction, and his composite sentence of 7 1/2 years to serve was not clearly mistaken; the trial court found that his conduct, engaging in a high-speed vehicle chase while high on drugs, showed a complete disregard for the safety of others, plus defendant committed the offenses while on probation, with his driver's license revoked, and after serving significant periods of imprisonment. Debeaulieau v. State, — P.3d — (Alaska Ct. App. Aug. 24, 2016) (memorandum decision).

III.Presumptive Sentencing
A.In General

Constitutionality of presumptive sentencing provisions. —

The presumptive sentencing provisions contained in AS 12.55.125 — 12.55.175 are not an unconstitutional violation of the separation of powers doctrine, Alaska Const., art. I, § 12, or of Alaska Const., art. IV, § 1 as a legislative infringement on the power of the judiciary to sentence on the basis of the particular facts of the case and the nature of a particular offender because although the presumptive sentencing statutes do limit the discretion of a judge in imposing a sentence, they do not foreclose sentences of less than the presumptive sentence or the possibility of placing a person on probation. Nell v. State, 642 P.2d 1361 (Alaska Ct. App. 1982).

The 20-year minimum sentence for first-degree murder does not constitute cruel and unusual punishment in violation of § 12, art. I, of the state constitution, and U.S. Const., amend. 8, nor does it deprive defendant of substantive due process and the equal protection of the laws in violation of U.S. Const., amend. 14 and of the comparable provisions in the Alaska Constitution. Martin v. State, 664 P.2d 612 (Alaska Ct. App. 1983), cert. denied, 465 U.S. 1007, 104 S. Ct. 1001, 79 L. Ed. 2d 234 (U.S. 1984).

More specific statute takes precedence. —

Normally, there is no mandatory minimum sentence for class C felonies, but the legislature has created mandatory minimum sentences for felony DWI; because a more specific sentencing statute, such as AS 28.35.030(n)(1) , takes precedence over the general sentencing statute in subsection (e) of this section, defendant was subject to the mandatory minimum sentence specified in AS 28.35.030(n)(1) . Clark v. State, 8 P.3d 1149 (Alaska Ct. App. 2000).

Determination of whether a person is a second, third, or subsequent felony offender for purposes of applying the presumptive sentencing provisions of this section is governed by the provisions of AS 12.55.145 and 12.55.185 (6), (7) and (8). Juneby v. State, 641 P.2d 823 (Alaska Ct. App. 1982), modified, 665 P.2d 30 (Alaska Ct. App. 1983).

Purpose of presumptive sentencing. —

The presumptive sentencing framework contained in this section is directed at a more fundamental goal than simple sentence enhancement and its application to a second or subsequent felony offender was viewed by the legislature as a means of achieving long-term uniformity and predictability in the sentencing of repeat offenders. Fry v. State, 655 P.2d 789 (Alaska Ct. App. 1983).

Reflection of legislative intent. —

The presumptive sentencing provisions contained in this section and AS 12.55.155 reflect the legislature’s intent to assure predictability and uniformity in sentencing by the use of fixed and relatively inflexible sentences, statutorily prescribed, for persons convicted of second or subsequent felony offenses. Juneby v. State, 641 P.2d 823 (Alaska Ct. App. 1982), modified, 665 P.2d 30 (Alaska Ct. App. 1983).

The legislature clearly intended that anyone who used a dangerous instrument — any kind of weapon — should be liable for the aggravated offense of robbery in the first degree; beyond that, it intended that offenders who used firearms — a particularly dangerous subcategory of dangerous instrument — should further be subject to an enhanced presumptive term. Burks v. State, 706 P.2d 1190 (Alaska Ct. App. 1985).

Subsection (b) of this section requires the same level of proof by clear and convincing evidence on both issues of fact — child’s age and position of authority in relation to the child — that trigger the higher mandatory minimum term of imprisonment for second-degree murder; the Alaska legislature’s failure to specify a burden of proof on the issue of a victim’s age appears to stem from faulty drafting rather than intentional policy. Edwards v. State, 158 P.3d 847 (Alaska Ct. App. 2007).

The presumptive sentencing structure is mandatory, and it must be followed when it applies. Kelly v. State, 663 P.2d 967 (Alaska Ct. App. 1983).

The presumptive term for a first-felony offender convicted of a class A felony is seven years. Therefore, the judge was required to impose the seven-year presumptive sentence unless he found aggravating or mitigating factors. (see 2005 amendment)Hastings v. State, 736 P.2d 1157 (Alaska Ct. App. 1987).

Because the three-judge panel concluded that, even after considering the non-statutory mitigating factor that defendant had extraordinary potential for rehabilitation, the presumptive term of seven years for manslaughter was not manifestly unjust; the panel applied the correct test in declining to accept jurisdiction. Garner v. State, 266 P.3d 1045 (Alaska Ct. App. 2011).

Jurisdiction to review. —

Because defendant was a third felony offender, faced a presumptive sentencing range of six to 10 years and was sentenced to 10 years, which was within the statutory range, the appellate court had no jurisdiction to decide the sentence appeal. Woods v. State, — P.3d — (Alaska Ct. App. Aug. 31, 2011) (memorandum decision).

Because defendant’s composite time to serve was less than the 30-year ceiling of the presumptive range that applied to his most serious offense, he had no right to appeal his sentence on the ground of excessiveness, and the court lacked jurisdiction to adjudicate his claim that the sentence was excessive. Reandeau v. State, 265 P.3d 1045 (Alaska Ct. App. 2011).

Presumptive terms set out in this section were intended as appropriate for imposition in most cases, without significant upward or downward adjustment. Juneby v. State, 641 P.2d 823 (Alaska Ct. App. 1982), modified, 665 P.2d 30 (Alaska Ct. App. 1983).

Second-degree murder terms not presumptive. —

Amendment needed for written judgment which provided that defendant’s term of imprisonment be all or partially presumptive, and that defendant was ineligible for parole, except as provided in AS 33.16.090 ; sentences for second-degree murder are not presumptive terms and defendant’s eligibility for parole is governed by AS 33.16.100 . Gustafson v. State, 854 P.2d 751 (Alaska Ct. App. 1993).

Prior conviction which is necessary element of present offense. —

Subsection (e) of this section, when read in conjunction with AS 12.55.145 and AS 12.55.185 , makes no exception for cases in which the prior conviction relied upon for application of presumptive sentencing is also a necessary element of the present offense. Fry v. State, 655 P.2d 789 (Alaska Ct. App. 1983).

AS 12.55.155(e) does not purport to deal with limitations on the applicability of presumptive sentencing under this section and does not preclude the use of a prior conviction to invoke presumptive sentencing under this section when that prior conviction is a necessary element of the present offense. Fry v. State, 655 P.2d 789 (Alaska Ct. App. 1983).

Applicability.—

Defendant's 11-year sentence for first degree robbery was proper; the trial court's decision to emphasize sentencing goals other than rehabilitation and ascribe little weight to the mitigating factor under AS 12.55.155(d)(11) was not clearly mistaken, as he had a significant criminal history and was a danger to the public, and contrary to his claim, he was subject to the presumptive range established by the 2016 legislature, not the 2005 legislature. Sekulich v. State, — P.3d — (Alaska Ct. App. Sept. 26, 2018) (memorandum decision).

In prosecution for escape in the second degree, it was not error to sentence appellant as a second felony offender and to impose a presumptive sentence on ground that evidence of his confinement on prior felony offenses was used to prove an element of escape charge, i.e., that appellant, at time of escape, was in “a correctional facility while under official detention.” Bell v. State, 658 P.2d 787 (Alaska Ct. App. 1983).

Use of the same conviction to prove a prior conviction under AS 11.61.200(a)(1) as well as to trigger application of presumptive sentencing is not improper. Gilbreath v. State, 668 P.2d 1354 (Alaska Ct. App. 1983).

Where AS 12.55.145(a)(1) prohibited consideration of prior convictions for purposes of rendering defendant a second offender or third offender under this section, and where defendant was not otherwise subject to a presumptive sentence under this section, the prior criminal acts may nevertheless be considered as constituting an “exceptional case” justifying imposition of sentence in excess of the presumptive sentence for a second offender. Koganaluk v. State, 655 P.2d 339 (Alaska Ct. App. 1982).

Prior out-of-state felony convictions. —

Because the elements of two Oregon criminal offenses for second-degree robbery and first-degree burglary were similar to the elements of Alaska felonies, they were considered to be “prior felony convictions” for purposes of presumptive sentencing under this section. State v. Delagarza, 8 P.3d 362 (Alaska Ct. App. 2000).

Even if a prior felony conviction is too remote in time to be considered in determining whether a defendant is subject to the presumptive sentencing statutes, the conviction can still be considered for sentencing purposes; and substantial weight can be given to that conviction if the present circumstances indicate that the prior conviction is still relevant. Maal v. State, 670 P.2d 708 (Alaska Ct. App. 1983).

Failure to prove prior convictions. —

When a party has had insufficient time to comply with the notice requirements relating to proof of prior convictions or aggravating and mitigating factors, the appropriate remedy should normally be a continuance of the sentencing proceedings; and failure to consider prior crimes for presumptive sentencing purposes can be condoned only in those cases where the state, after exercising due diligence, is unable to meet the statutory requirements for proof of a prior conviction. Kelly v. State, 663 P.2d 967 (Alaska Ct. App. 1983).

Prior delinquency adjudication as aggravating factor. —

Defendant’s Sixth Amendment right to a jury at sentencing was not infringed when the trial court was allowed to consider defendant’s prior adjudication as a delinquent as an aggravating factor under AS 12.55.155 . Greist v. State, 121 P.3d 811 (Alaska Ct. App. 2005).

Periods of suspended sentence not considered. —

A first offender should normally receive a more favorable sentence than the presumptive term for a second offender, but the supreme court, in applying this rule, focuses on the period of actual incarceration, excluding suspended periods of imprisonment, so where defendant received only one year of unsuspended imprisonment, since the presumptive sentence for a second felony offender convicted of assault in the third degree is two years, his sentence did not violate the rule. (see 2005 amendment)Lee v. State, 760 P.2d 1039 (Alaska Ct. App. 1988).

Imposition of additional time which is suspended. —

The trial court lacks authority to impose additional time for a first offender whose applicable presumptive term is five years, in the absence of any aggravating factors, even if the additional time is suspended. Connolly v. State, 758 P.2d 633 (Alaska Ct. App. 1988).

One conviction must precede next. —

Under the plain terms of AS 12.55.145 and AS 12.55.185 , one conviction must precede the next before presumptive sentencing can apply. State v. Rastopsoff, 659 P.2d 630 (Alaska Ct. App. 1983).

Where defendant’s three separate criminal episodes occurred in close proximity and his convictions were entered after all of the offenses had been committed, he cannot be deemed to be a second felony offender under this section and AS 12.55.185 . State v. Rastopsoff, 659 P.2d 630 (Alaska Ct. App. 1983), departing from the holding in State v. Carlson, 560 P.2d 26 (Alaska 1977) only to the extent that Carlson specifically required the conviction for one offense to be entered prior to commission of the next offense before both could be separately considered as prior convictions in any subsequent case.

First felony offenders. —

When sentencing a first felony offender in a normal case, prior law did require a sentencing judge to find statutory aggravating factors or extraordinary circumstances before imposing an unsuspended term of imprisonment exceeding the presumptive term for a second felony offender; however, those provisions did not constrain a sentencing judge to impose less than the presumptive term for a third felony offender when the judge found that the state had proven that a statutory aggravating factor or factors applied. Beasley v. State, 56 P.3d 1082 (Alaska Ct. App. 2002).

Conviction being appealed. —

A conviction with the attendant constitutional safeguards is sufficient for purposes of presumptive sentencing, even though on appeal. Wright v. State, 656 P.2d 1226 (Alaska Ct. App. 1983).

Where total sentence received by first offender exceeds presumptive sentence for second offender but period of actual imprisonment is substantially less, such sentence meets requirement of Austin v. State , 627 P.2d 657 (Alaska Ct. App. 1981), of a substantially more favorable sentence for first offender; where, however, actual period of imprisonment equals or exceeds presumptive term for second offender, aggravating factors or extraordinary circumstances are required to justify additional time, even if it is suspended. Brezenoff v. State, 658 P.2d 1359 (Alaska Ct. App. 1983).

In prosecution for burglary and attempted sexual assault, where defendant had long record of misdemeanor offenses consisting of approximately 32 convictions in the last nine years, including three convictions for assault, numerous convictions for disorderly conduct, and numerous theft-related offenses, the case was an exceptional one where a first felony offender could be given a sentence in excess of presumptive sentence for second offender, but did not justify imposition of consecutive sentences totalling in excess of 10 years. Hansen v. State, 657 P.2d 862 (Alaska Ct. App. 1983).

Adjustment of presumptive sentence. —

Where a manslaughter and a first-degree assault originate from identical reckless conduct, the original legislative intent clearly establishes that it is the presumptive sentence for assault rather than the presumptive sentence for manslaughter that should be adjusted. New v. State, 714 P.2d 378 (Alaska Ct. App. 1986).

Modification of presumptive term. —

The presumptive term imposed by this section are subject to modification because of aggravating or mitigating factors, as well as possible referral to a three-judge panel, like all other presumptive sentences. Edwin v. State, 762 P.2d 499 (Alaska Ct. App. 1988).

Court properly applied the presumptive sentence because the mandatory minimum sentences were intended for the least serious offenses within the statutory definition and defendant should receive a more severe sentence than the mandatory minimum unless he affirmatively convinces the sentencing judge that his conduct was uncommonly mitigated. Soundara v. State, 107 P.3d 290 (Alaska Ct. App. 2005).

Where defendant served one year of his three-year term of imprisonment on an attempted second-degree sexual abuse conviction, revocation of his probation and imposition of the remaining two years imprisonment was proper, as his conduct on probation provided reasonable basis for sentencing judge to be pessimistic about defendant’s prospects for rehabilitation. Oyoumick v. State, 185 P.3d 771 (Alaska Ct. App. 2008).

Deviation from presumptive sentences. —

In sentencing proceedings involving allegations of aggravating and mitigating circumstances, the provisions of AS 12.55.155(f) require the party seeking to establish a factor to bear a dual burden of proving to the court, by clear and convincing evidence, the existence of the alleged factor and that the factor warrants deviation from the statutorily prescribed presumptive sentence. Juneby v. State, 641 P.2d 823 (Alaska Ct. App. 1982), modified, 665 P.2d 30 (Alaska Ct. App. 1983).

Where a criminal defendant was convicted of two counts of misconduct involving a controlled substance in the fourth degree, a class C felony punishable by a maximum sentence of five years, for which the legislature had established a presumptive sentence of two years for a second-felony offender and three years for a third-felony offender, and the trial judge properly found that the case was aggravated, particularly since the defendant was on felony probation at the time that he committed the new offenses, and his prior conviction was for a more serious class of felony offense, the judge could not properly impose a sentence greater than five years, the maximum sentence for a class C felony. (see 2005 amendment)Bayne v. State, 799 P.2d 1347 (Alaska Ct. App. 1990).

Motion to correct sentence was properly denied because any Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), right to jury trial error was rendered harmless by the trial court’s finding of an aggravator under AS 12.55.155(c)(20) , based on defendant’s stipulation because the underlying facts were not in dispute, that he was on felony parole at time of his felony driving under the influence offense under AS 28.35.030(n) so that an agreed-upon five-year sentence could be lawfully imposed under subsection (e) of this section and AS 12.55.145(a)(1)(B) . (see 2005 amendment)Woodbury v. State, 151 P.3d 528 (Alaska Ct. App. 2007).

Defendant’s sentence of 3 years’ imprisonment for second-degree sexual abuse of a minor was not manifestly unjust because defendant was subject to a presumptive sentencing range of 5 to 15 years’ imprisonment, and the judge exercised authority to impose a sentence below the presumptive range. Miller v. State, — P.3d — (Alaska Ct. App. Apr. 24, 2013) (memorandum decision).

In a case in which defendant was convicted of first-degree burglary and in which defendant, who was a first felony offender, faced a presumptive sentencing range of 1 to 3 years' imprisonment for the crime, the sentencing judge erred in imposing a sentence of 4 years' imprisonment with 2 years suspended as it was above the presumptive range; and the sentence was unlawful as the judge found no aggravating factors. Pfister v. State, 425 P.3d 183 (Alaska Ct. App. 2018).

In a case in which defendant was convicted of conspiracy to commit first-degree robbery and in which defendant, who was a first felony offender, faced a presumptive range of 1 to 3 years' imprisonment for the crime, the sentencing judge erred in imposing a sentence of 4 years' imprisonment with 2 years suspended as it was above the presumptive range; and the sentence was unlawful because the judge found no aggravating factors. Pfister v. State, 425 P.3d 183 (Alaska Ct. App. 2018).

Increased sentences for repeat felons held presumptively constitutional. —

When defendant was convicted of first-degree sexual abuse of a minor, a 99-year presumptive term of imprisonment was prescribed because he had two prior convictions for attempted second-degree sexual abuse of a minor. The appellate court rejected defendant’s constitutional attack on the 99-year sentence because increased penalties for repeat felony offenders are presumptively constitutional. Sikeo v. State, 258 P.3d 906 (Alaska Ct. App. 2011).

Because defendant was convicted of second-degree sexual abuse of a minor and because he had one prior sexual felony, he was subject to a presumptive sentencing range of 15 to 30 years’ imprisonment; defendant’s prior felony of attempted first-degree sexual assault was of a more serious class than his current offense and constituted an aggravating factor. Accordingly, any term of imprisonment up to the statutory maximum of 99 years was authorized. Reandeau v. State, 265 P.3d 1045 (Alaska Ct. App. 2011).

“Worst offender” sentencing. —

Worst offender finding was proper because defendant had multiple prior criminal convictions, including second-degree sexual assault, attempted sexual abuse of a minor, assault, failure to register as a sex offender, and several probation revocations; also, as a juvenile, defendant committed sexual assault and second-degree burglary. Leopold v. State, 278 P.3d 286 (Alaska Ct. App. 2012).

Parole restriction made part of defendant’s sentence was not clearly mistaken because the sentencing court considered the relevant factors in fashioning its overall sentence and entered specific findings that the restriction was necessary to protect defendant’s children and society at large for an extended period of time and was appropriate due to the severity of the case and defendant’s lack of remorse and concern; the sentence was within the broad permissible range of reasonable sentences. State v. Korkow, 314 P.3d 560 (Alaska 2013).

Right to jury trial under Blakely. —

Defendant’s double jeopardy right, U.S. Const. amend. VI, was not violated when a jury trial was ordered on the disputed factual issue of whether defendant personally carried a firearm during a robbery; defendant’s Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), right to a jury trial applied to the sentence enhancement factors of (c)(2). West v. State, 223 P.3d 634 (Alaska Ct. App. 2010).

Sentence was illegal where trial judge gave less than presumptive sentence without finding any mitigating factors. State v. LaPorte, 672 P.2d 466 (Alaska Ct. App. 1983).

Defendant’s sentence was not excessive, AS 12.55.125 , as the trial judge articulated substantial reasons for imposing a sentence at the top of the presumptive range. Tolen v. State, — P.3d — (Alaska Ct. App. Jan. 11, 2012) (memorandum decision).

Nature of crime charged is factor. —

In order to determine the realistic impact that proof of an aggravating or mitigating circumstance should have on adjustment of a presumptive sentence in any given case, it is essential to consider not only the specific conduct constituting the aggravating or mitigating factor, but also the nature of the crime charged. Juneby v. State, 641 P.2d 823 (Alaska Ct. App. 1982), modified, 665 P.2d 30 (Alaska Ct. App. 1983).

Possession of firearm. —

Where an accomplice furnishes a firearm to his principal in order to aid and abet a sexual assault, the trial court may properly find that the accomplice possessed a firearm for purposes of the enhanced presumptive term. Bowell v. State, 728 P.2d 1220 (Alaska Ct. App. 1986), overruled, Echols v. State, 818 P.2d 691 (Alaska Ct. App. 1991), overruled in part, Walstad v. State, 818 P.2d 695 (Alaska Ct. App. 1991).

Use of a dangerous instrument. —

Threatening victim’s wife with a knife to take property from victim was use of a dangerous instrument during the commission of a robbery, requiring imposition of a 7-year sentence under subsection (c). (see 2005 amendment)McGrew v. State, 872 P.2d 625 (Alaska Ct. App. 1994).

Conduct knowingly directed at peace officer. —

By requiring that the defendant’s conduct be “knowingly directed,” former subsection (e)(3) [now see paragraph (c)(2)(A)] clearly contemplated a conscious aiming or guiding of the prohibited conduct at an officer. DeHart v. State, 781 P.2d 989 (Alaska Ct. App. 1989).

The question of whether the defendant’s conduct was “knowingly directed” at a police officer presents a factual issue to be independently determined by the sentencing court, based on the specific circumstances of each case; the state bears the burden of proving the issue beyond a reasonable doubt. DeHart v. State, 781 P.2d 989 (Alaska Ct. App. 1989).

Sentences for first-degree sexual assault (class A felony) under former law should roughly fall into three categories: (1) the most mitigated, 90 days to three years; (2) typical conduct, three years to six years; and (3) aggravated conduct, six years to 20 years. (see 2005 amendment)State v. Brinkley, 681 P.2d 351 (Alaska Ct. App. 1984).

Controlled substance. —

Presumptive sentencing does not apply to first-degree misconduct involving a controlled substance. Krack v. State, 973 P.2d 100 (Alaska Ct. App. 1999).

Finding required for consecutive sentence exceeding presumptive term for single count. —

An affirmative finding by the sentencing court that confinement of the defendant for the aggregate period of a consecutive sentence is necessary to protect the public is required in all cases where imposition of consecutive presumptive terms would result in an aggregate sentence that exceeds the presumptive term for a single count. Lacquement v. State, 644 P.2d 856 (Alaska Ct. App. 1982). See also Friedberg v. State, 663 P.2d 558 (Alaska Ct. App. 1983).

Finding required for imposing composite sentence greater than maximum. —

Where defendant’s prior convictions made him subject to three-year presumptive terms on convictions of burglary and theft and he was found to be a worst offender, in imposing a composite sentence greater than the maximum five-year term for his most serious offense, the trial court was required to find that the sentence was necessary to protect the public. Sivertsen v. State, 963 P.2d 1069 (Alaska Ct. App. 1998).

Finding required for imposing composite sentence greater than presumptive term. —

When defendant was subject to a presumptive term of 30 years of imprisonment as a third-felony offender, the trial judge imposed concurrent sentences of 40 years of imprisonment for each count of sexual assault plus six years for a revoked suspended sentence for a composite sentence of 46 years of imprisonment. Defendant’s sentence was not excessive given his extensive criminal record and the fact that he was on felony probation when he committed the sexual assaults. Olrun v. State, — P.3d — (Alaska Ct. App. Jan. 27, 2010) (memorandum decision).

State sentence consecutive to federal sentence. —

When a state sentence is imposed consecutively to a federal term of imprisonment, the combined length of incarceration must be considered in determining whether the sentence imposed by the state court is excessive. Williams v. State, 759 P.2d 575 (Alaska Ct. App. 1988).

Sentence upheld. —

The sentencing court was not clearly mistaken in imposing a composite presumptive sentence which, if entirely consecutive sentences were applied with no aggravating factors, was approximately half of the maximum sentence he could have received for convictions of multiple counts of first degree sexual assault, one count of first degree robbery and one count of second degree assault, where the evidence of the defendant’s horrific crimes supported a finding that he displayed an ingrained compulsive criminal pattern in his behaviors. State v. Hodari, 996 P.2d 1230 (Alaska 2000).

Where defendant was convicted for third-degree criminal mischief for damaging a truck owned by his mother’s lover, the trial court properly sentenced him to 2 1/2 years’ imprisonment; defendant was on felony probation at the time he committed the truck-damaging offense, justifying an increase in his sentence of 6 months. McGee v. State, 162 P.3d 1251 (Alaska 2007).

Sentence that exceeded the presumptive term was not unconstitutional where defendant conceded the existence of two aggravating factors. Paige v. State, 115 P.3d 1244 (Alaska Ct. App. 2005).

Defendant’s two-year presumptive sentence for fourth-degree controlled substance misconduct was proper where defendant failed to present any mitigating factors and failed to ask that the matter be reviewed by a three-judge panel. Garhart v. State, 147 P.3d 746 (Alaska Ct. App. 2006).

When defendant was resentenced following convictions for sexual assault, robbery, and assault, 95-year composite sentence was not excessive because superior court was required to impose presumptive term for each count. Hunter v. State, 182 P.3d 1146 (Alaska Ct. App. 2008).

Based upon defendant’s extensive criminal history and his conduct in driving after drinking with a three-year-old girl and a five-year-old girl in his back seat without securing their safety belts, in driving in such a manner as to lose control of the car which resulted in the death of one of the girls, and in trying to convince the girls’ mother to tell the police that she had been driving at the time of the accident, trial court was within its discretion to conclude that it was necessary to impose a composite sentence greater than the maximum sentence for a class A felony to protect the public. Tice v. State, 199 P.3d 1175 (Alaska Ct. App. 2008).

Defendant’s sentence of 45 years’ imprisonment for kidnapping and assault was not excessive because she received a sentence near the minimum for the offenses; the trial judge determined that defendant would fail if she was again released on probation, and the judge felt strongly about the need to protect the public from future retaliation. Cleveland v. State, 258 P.3d 878 (Alaska Ct. App. 2011).

Sentencing court was not clearly mistaken in refusing to send the case of defendant convicted of first-degree sexual abuse of a minor to the statewide three-judge sentencing panel because it focused on the severity of the injury to a very young child and defendant’s failure to produce a sex offender assessment or any other evaluation of his rehabilitation potential. The court carefully considered the factors of defendant’s low cognitive functioning, childhood history of neglect and sexual abuse, lack of criminal history, and youth. Knipe v. State, 305 P.3d 359 (Alaska Ct. App. 2013).

In a second-degree sexual assault case, a three-judge panel was not clearly mistaken in finding that a 99-year presumptive term applied, even though the panel’s analysis was initially flawed due to a misreading of Moore v. State, 262 P.3d 217 (Alaska App. 2011). Defendant’s age, military service, and post-traumatic stress disorder were considered, and the panel ultimately concluded that, in light of defendant’s criminal history, lack of remorse, and repeated failures at rehabilitation, these factors did not make him atypical among repeat sexual offenders, and he was therefore not entitled to a sentence below the presumptive term. Kobuk v. State, — P.3d — (Alaska Ct. App. Apr. 8, 2015) (memorandum decision).

In a case involving two counts of first-degree sexual abuse of a minor, a composite term of 37 years’ imprisonment with 5 years suspended was not error; defendant’s argument that the sentence was improper since presumptive sentencing ranges for sexual felonies used to be substantially lower was rejected. Because a 25- to 35-year presumptive range applied to defendant’s 2007 offense, his proposed mitigating factors were rejected, and the superior court had the duty to impose at least 2 years of the other sentence consecutively, the effective minimum sentence was 27 years’ imprisonment; reasons were given as to why defendant should have received a more severe sentence. Alvarenga v. State, — P.3d — (Alaska Ct. App. May 6, 2015) (memorandum decision).

Standard of review. —

In a sexual assault case, defendant was released from custody as the appellate court should have applied the de novo standard of review to the trial court’s rejection of defendant’s proposed mitigating factors under this section, and fundamental fairness required that he be treated as if he had already completed serving the unsuspended portion of his sentence; the correct standard of review of a superior court’s application of statutory aggravating and mitigating factors to a given set of facts is de novo review. Michael v. State, 115 P.3d 517 (Alaska 2005).

Jurisdiction to review. —

Since defendant’s composite sentence of 40 years was within the presumptive range established for attempted first-degree sexual assault, the appellate court did not have jurisdiction to review defendant’s excessive sentence claim. Moore v. State, 262 P.3d 217 (Alaska Ct. App. 2011).

Justified departure from Austin rule. —

Where defendant, between the time of his initial sentencing and his probation revocation sentencing, was convicted of first-degree burglary, disorderly conduct, two incidents of driving while intoxicated, and driving while license revoked, such facts justified departure from the Austin v. State, 627 P.2d 657 (Alaska Ct. App. 1981), rule that a first felony offender should receive a more favorable sentence than a presumptive sentence for a second offender. Witt v. State, 725 P.2d 723 (Alaska Ct. App. 1986).

Constitutional implications of correction of illegal sentence. —

Correction of an illegal sentence does not implicate the double jeopardy clauses of the state and federal constitutions or deny the beneficiary of an illegal sentence substantive or procedural due process. State v. Price, 715 P.2d 1183 (Alaska Ct. App. 1986).

Decision to increase presumptive sentence upheld. —

The sentencing court did not err in increasing, pursuant to AS 12.55.155 , the defendant’s presumptive term of imprisonment due to aggravating factors. Given that the plea agreement authorized the court to broaden its consideration from the specific criminal act for which the defendant was convicted to the totality of the defendant’s criminal misconduct when issuing a sentence, and because the defendant’s acts were closely related in time and circumstances, the court’s decision to find that the defendant knew that the offense involved more than one victim was permissible as a matter of law. Mills v. State, 839 P.2d 417 (Alaska Ct. App. 1992).

“Presumptive” term and parole. —

Judge’s decision to label defendant’s term of imprisonment “presumptive” had no effect on his eligibility for discretionary parole, where parole eligibility was set by statute. Reyes v. State, 978 P.2d 635 (Alaska Ct. App. 1999).

There is no direct relationship between a defendant’s receiving a “presumptive” sentence and a defendant’s eligibility, or lack of eligibility, for discretionary parole; under subsection (b), the fact that a defendant has received one or more presumptive sentences is just one of the factors that must be assessed when determining whether, or when, the defendant will become eligible to apply for discretionary parole. Luckart v. State, 314 P.3d 1226 (Alaska Ct. App. 2013).

B.First Offenders

Editor's note. —

Most of the notes under this heading were based on former subsection (k) which stated that, generally, first felony offenders must be sentenced to less than the presumptive term for a second-felony offender. Subsection (k) was repealed in 2005, at which time subsections (c), (d), (e), (g), and (i) were amended. The cases interpreting former subsection (k) should be helpful in understanding the rewritten subsections (c), (d), (e), (g), and (i).

Constitutionality of former subsection (k)(2). —

Former subsection (k)(2) [repealed 2005], interpreted to mean that, when a judge was sentencing a first felony offender for a class B or a class C felony, the defendant’s time to serve (i.e., the unsuspended portion of the defendant’s term of imprisonment) could equal, but could not exceed, the presumptive term that would apply to a second felony offender convicted of the same crime, did not violate the due process rights of first felony offenders. Dayton v. State, 120 P.3d 1073 (Alaska Ct. App. 2005).

Austin rule superseded by former subsection (k)(2). —

Former subsection (k)(2) [repealed 2005] superseded the rule articulated in Austin v. State, 627 P.2d 657, 657-58 (Alaska Ct. App. 1981) and Brezenoff v. State, 658 P.2d 1359, 1362 (Alaska Ct. App. 1983), concerning sentencing of certain first felony offenders, even though wording of the statute differed slightly from the rule as stated in those opinions. Dayton v. State, 120 P.3d 1073 (Alaska Ct. App. 2005).

Normally first offender should receive more favorable sentence than the presumptive sentence for a second offender. Austin v. State, 627 P.2d 657 (Alaska Ct. App. 1981).

First-felony offenders must be sentenced to less than the presumptive term for a second-felony offender, except in exceptional cases. Smith v. State, 739 P.2d 1306 (Alaska Ct. App. 1987).

Where defendant was convicted of perjury, a class B felony, as a first offender, in the absence of aggravating factors, he should receive a sentence substantially more favorable than the four-year presumptive sentence for a second-felony offender, and a sentence of three years with two and one-half years suspended clearly satisfies this requirement. Esmailka v. State, 740 P.2d 466 (Alaska Ct. App. 1987).

A superior court should normally sentence a first felony offender to a lesser sentence than the presumptive term that would apply if the offense was a second felony, and that sentencing limit should be exceeded only when the state proves one or more of the aggravating factors listed in AS 12.55.155(c) or extraordinary circumstances as defined in AS 12.55.165 . Harris v. State, 980 P.2d 482 (Alaska Ct. App. 1999).

Trial court did not impose an excessive sentence for a first offender following defendant’s conviction for numerous counts of assault stemming from two separate incidents because the trial court found that defendant repeatedly used his airplane to try to frighten other guides and hunters away from his camps and intentionally used his airplane to make the victims fear that he was going to hit them. The judge noted that defendant had done this even though a client was in the back seat of his airplane and concluded that defendant’s actions could easily have caused a fatal accident; it was also significant that defendant committed the assaults on two separate occasions on different groups of hunters. Lamb v. State, — P.3d — (Alaska Ct. App. Jan. 14, 2009) (memorandum decision).

A first felony offender faced a presumptive sentencing range of five to 15 years for his convictions on 10 counts of sexual abuse of a minor in the second degree. Since defendant’s conduct involved clear exploitation of a 13-year-old and was not mitigated based on the argument of least serious offenses for the type of conduct, defendant’s composite sentence of five years and nine months to serve, with an additional three years suspended, was not excessive. Lincecum v. State, — P.3d — (Alaska Ct. App. Sept. 12, 2012), (memorandum opinion).

Focus on goals other than rehabilitation proper. —

Given that defendant had previously assaulted his ex-wife, and the crime, i.e., setting fire to her car while it was parked at her apartment complex, was aimed at her, the sentencing court appropriately focused on the goals of isolation and deterrence, rather than rehabilitation. Williams v. State, — P.3d — (Alaska Ct. App. Mar. 18, 2015).

Election to impose consecutive term. —

Where judge understood that he had discretion to impose first felony offender’s sentences either consecutively or concurrently and explained his decision to impose consecutive terms, the decision established good cause. Jerrel v. State, 851 P.2d 1365 (Alaska Ct. App. 1993), cert. denied, 510 U.S. 1100, 114 S. Ct. 942, 127 L. Ed. 2d 232 (U.S. 1994), overruled in part, David v. State, 372 P.3d 265 (Alaska Ct. App. 2016).

Partially consecutive sentences were affirmed where a criminal mischief conviction was based solely on the property damage when defendant set fire to his ex-wife’s car, while the arson conviction was focused on the danger to human life that defendant had created. Williams v. State, — P.3d — (Alaska Ct. App. Mar. 18, 2015).

Sentence for first-time offender in excess of presumptive sentence for second or third offenders. —

Usually a sentence for a first felony offender which is in excess of the presumptive sentence for a second felony offender must be justified either by specific aggravating factors under the criminal code, or else by aggravating factors which would qualify as extraordinary circumstances under AS 12.55.165 and would justify a repeat offender receiving an enhanced sentence by a three judge panel. Neakok v. State, 653 P.2d 658 (Alaska Ct. App. 1982).

Imposition of a sentence for first-time Class A felony offenders in excess of the presumptive sentence for second offenders is permissible only in exceptional circumstances, which may be determined by consideration of the aggravating factors specified in AS 12.55.155 or consideration of any additional, unspecified aggravating factors that would constitute extraordinary circumstances under AS 12.55.165 . Peetook v. State, 655 P.2d 1308 (Alaska Ct. App. 1982); Flink v. State, 683 P.2d 725 (Alaska Ct. App. 1984).

If a suspended portion of a sentence for a first felony offender is later imposed, thus causing the period of incarceration to exceed the presumptive sentence for a second felony offender, the first offender would be entitled to bring a sentence appeal upon the imposition of the suspended portion of the sentence. Tazruk v. State, 655 P.2d 788 (Alaska Ct. App. 1982).

In evaluating whether a partially suspended sentence for a first felony offender is in excess of the presumptive sentence which a second felony offender would receive, the reviewing court should consider only that portion of the sentence which imposes a period of incarceration. Tazruk v. State, 655 P.2d 788 (Alaska Ct. App. 1982).

A first felony offender’s prior record of misdemeanor convictions, even if extensive, does not qualify as an extraordinary circumstance warranting imposition of a term exceeding the second offender presumptive. Reynolds v. State, 736 P.2d 1154 (Alaska Ct. App. 1987).

Where the defendant, a first felony offender, was convicted of one count of theft in the second degree and three counts of forgery in the second degree, she should not have received a total sentence, including consecutive increments, more severe than the presumptive term established for a third felony offender, where there was nothing in the record to suggest that a composite sentence of imprisonment, including all consecutive increments, greater than this presumptive term was needed to deter the defendant. Young v. State, 762 P.2d 497 (Alaska Ct. App. 1988).

Sentence of five years with three years suspended for a class C felony for defendant who was a first offender was improper absent prior notice and a finding of a substantial aggravating factor or extraordinary circumstances warranting harsher treatment than defendant would have been subject to as a second felony offender. Sorenson v. State, 938 P.2d 1084 (Alaska Ct. App. 1997).

Sentence of first offender to presumptive term for second offender upheld. —

Sentence for a first-time offender of the presumptive term for third-degree assault was proper under former subsection (k)(2) [repealed 2005], because, even without proof of any aggravating factors, the judge was authorized to impose sentence under which defendant’s time to serve could equal, but not exceed, the presumptive term that would apply to a second felony offender convicted of the same crime. Dayton v. State, 120 P.3d 1073 (Alaska Ct. App. 2005).

Effect of Blakely on sentence of less than presumptive term. —

Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), holding that, if the defendant is denied the right to demand a jury trial on aggravating factors, then the sentencing judge cannot exceed the prescribed statutory sentencing ceiling, did not affect sentencing under former subsection (k)(2) of this section [repealed 2005] if the defendant received less time to serve than the presumptive term specified for second felony offenders convicted of the same crime. Dayton v. State, 120 P.3d 1073 (Alaska Ct. App. 2005).

Court of appeals was unable to determine if a first offender’s sentence was too lenient for two class B felonies, because, due to his misunderstanding of Blakely, the trial judge did not make the necessary factual findings to resolve the state’s assertion that defendant had engaged in ongoing commercial sales of small amounts of cocaine. Tsen v. State, 176 P.3d 1 (Alaska Ct. App. 2008).

Impact of statutory aggravator on sentencing and probation revocation. —

Having found a statutory aggravator, a sentencing judge must weigh that factor in light of the sentencing criteria codified in AS 12.55.005 to determine whether the presence of the aggravator shows a defendant to be an atypically serious offender or shows his crime to be more serious than a typical instance of the charged crime. This same rule applies at probation revocation sentencings under the pre-March 2005 sentencing law of paragraph (k)(2) of this section. Thus, when defendant was originally sentenced under the former version of paragraph (k)(2) for second-degree robbery, Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), was inapplicable in defendant’s probation revocation hearing because the revocation of probation and the imposition of the remaining suspended imprisonment did not involve any potential increase in defendant’s sentence. Surrells v. State, 151 P.3d 483 (Alaska Ct. App. 2006).

Justification not to suspend. —

One-year unsuspended portion of composite sentence for first felony offender was justified where defendant’s separate acts of perjury were not particularly mitigated, since they exposed an officer to potential harm and defendant’s motivation might have been characterized as vindictiveness or spite. Jerrel v. State, 851 P.2d 1365 (Alaska Ct. App. 1993), cert. denied, 510 U.S. 1100, 114 S. Ct. 942, 127 L. Ed. 2d 232 (U.S. 1994), overruled in part, David v. State, 372 P.3d 265 (Alaska Ct. App. 2016).

Standard for finding exception to Austin rule. —

The clear and convincing evidence standard should be applied to finding an exception to the rule in Austin v. State, 627 P.2d 657 (Alaska Ct. App. 1981), which held that first felony offenders convicted of offenses for which no presumptive term is specified should normally receive more favorable sentences than the presumptive term for second felony offenders convicted of like crimes. Buoy v. State, 818 P.2d 1165 (Alaska Ct. App. 1991).

When conduct amounting to a probation violation is the sole basis for a finding of extraordinary circumstances, the conduct should be established by clear and convincing evidence (not merely a preponderance of the evidence) before an exceptional sentence under Austin v. State, 627 P.2d 657 (Alaska Ct. App. 1981) (i.e., a sentence for a first offender which is greater than the presumptive sentence for a second offender) is imposed. Andrew v. State, 835 P.2d 1251 (Alaska Ct. App. 1992).

The “clear and convincing evidence” standard did not apply to the court’s sentence of a first offender above the Austin v. State, 627 P.2d 657 (Alaska Ct. App. 1981) ceiling; the standard governs a sentencing judge’s findings regarding aggravating and mitigating factors under AS 12.55.155 and AS 12.55.165 , but does not apply to the judge’s exercise of sentencing discretion under the facts of the case. Reese v. State, 930 P.2d 1295 (Alaska Ct. App. 1996).

Notice of sentence above Austin ceiling. —

Even though a defendant is entitled to advance notice when the sentencing judge believes that a sentence above the normal Austin limit should be imposed, where, in negotiations leading to a plea bargain, defendant rejected a predetermined sentence, bargained for an open sentence, and stipulated to the existence of an aggravator, he was on notice that his sentence could exceed the Austin v. State, 627 P.2d 657 (Alaska Ct. App. 1981) ceiling. Reese v. State, 930 P.2d 1295 (Alaska Ct. App. 1996).

Exception to Austin rule proper. —

The defendant’s longstanding history of sexually assaultive conduct, his psychological problems, his past failure to make any realistic effort toward rehabilitation, the potentially life-threatening nature of the defendant’s physical attack on his current victim, and the fact that the defendant’s ensuing acts, in effect, amounted to attempted rape and kidnapping, qualified the defendant’s crimes for treatment as extraordinarily aggravated first offense class B felonies. Carroll v. State, 859 P.2d 718 (Alaska Ct. App. 1993).

Use of circumstance established by preponderance of evidence. —

In probation violation cases, because the defendant’s poor potential for rehabilitation, and not the probation violation itself, was the circumstance justifying an Austin v. State, 627 P.2d 657 (Alaska Ct. App. 1981) rule exception, it was the former, not the latter, that had to be established by clear and convincing evidence. Hence, even when established by a mere preponderance of evidence, a probation violation could be factored together with other evidence concerning the defendant’s rehabilitative potential. Andrew v. State, 835 P.2d 1251 (Alaska Ct. App. 1992).

Sentence in accord with Austin rule. —

Where defendant was a first-felony offender convicted of a class B felony, sexual abuse of a minor, and, had the defendant been subject to presumptive sentencing, the circumstances would have been sufficiently extraordinary to warrant a substantial increase in the applicable presumptive term, the case qualified as an exceptional one under Austin v. State, 627 P.2d 657 (Alaska Ct. App. 1981); and the imposition of a sentence in excess of the four-year presumptive term for second offenders did not violate the Austin rule. Skrepich v. State, 740 P.2d 950 (Alaska Ct. App. 1987).

First felony offender’s sentence of four years imprisonment, with three years suspended, was substantially more lenient than the two-year presumptive term that would have been applicable to a second felony offender and, therefore, did not violate the Austin v. State, 627 P.2d 657 (Alaska Ct. App. 1981) rule. Long v. State, 772 P.2d 1099 (Alaska Ct. App. 1989).

Sentence of defendant with no prior criminal convictions to consecutive terms of four years with one year suspended and one year with six months suspended for two second-degree assaults and to a concurrent term of one year with nine months suspended for a third-degree assault, a composite term of five years with one and one-half years suspended was more favorable than the corresponding second offense presumptive term for the individual offenses and was not excessive. Splain v. State, 924 P.2d 435 (Alaska Ct. App. 1996).

Imposition of sentence after revocation of probation. —

Sentencing judge could re-sentence a first felony offender after revoking probation even if defendant’s sentence exceeded the presumptive sentence for a second felony offender. When the superior court revoked defendant’s probation and imposed suspended imprisonment above the limit originally set, the superior court’s action did not trigger defendant’s right to a jury trial because, when the sentencing court suspended a portion of defendant’s term of imprisonment and placed defendant on probation, it was understood that, if defendant violated the probation conditions, the sentencing court had the authority to order defendant to serve the previously suspended jail time. Powell v. State, — P.3d — (Alaska Ct. App. July 23, 2008) (memorandum decision).

Imposition of sentence after revocation of probation. —

Following the revocation of defendant’s probation, a judge imposed the remainder of defendant’s previously suspended sentence, five years and four months of imprisonment. Although defendant was a first time felony offender, the judge’s findings were supported by the record and supported the sentence he imposed. Osborne v. State, — P.3d — (Alaska Ct. App. Apr. 11, 2012) (memorandum decision); Murray v. State, 344 P.3d 835 (Alaska Ct. App. 2015).

Collateral references. —

Use of prior military conviction to establish repeat offender status. 11 ALR5th 218.

Pardoned or expunged conviction as “prior offense” under state statute or regulation enhancing punishment for subsequent conviction. 97 ALR5th 293.

Sec. 12.55.127. Consecutive and concurrent terms of imprisonment.

  1. If a defendant is required to serve a term of imprisonment under a separate judgment, a term of imprisonment imposed in a later judgment, amended judgment, or probation revocation shall be consecutive.
  2. Except as provided in (c) of this section, if a defendant is being sentenced for two or more crimes in a single judgment, terms of imprisonment may be concurrent or partially concurrent.
  3. If the defendant is being sentenced for
    1. escape, the term of imprisonment shall be consecutive to the term for the underlying crime;
    2. two or more crimes under AS 11.41, a consecutive term of imprisonment shall be imposed for at least
      1. the mandatory minimum term under AS 12.55.125(a) for each additional crime that is murder in the first degree;
      2. the mandatory minimum term for each additional crime that is an unclassified felony governed by AS 12.55.125(b) ;
      3. the presumptive term specified in AS 12.55.125(c) or the active term of imprisonment, whichever is less, for each additional crime that is
        1. manslaughter; or
        2. kidnapping that is a class A felony;
      4. two years or the active term of imprisonment, whichever is less, for each additional crime that is criminally negligent homicide;
      5. one-fourth of the presumptive term under AS 12.55.125(c) or (i) for each additional crime that is sexual assault in the first degree under AS 11.41.410 or sexual abuse of a minor in the first degree under AS 11.41.434 , or an attempt, solicitation, or conspiracy to commit those offenses; and
      6. some additional term of imprisonment for each additional crime, or each additional attempt or solicitation to commit the offense, under AS 11.41.200 — 11.41.250 , 11.41.420 — 11.41.432 , 11.41.436 — 11.41.458 , or 11.41.500 — 11.41.520 .
  4. If the defendant is being sentenced for two or more crimes of distribution of child pornography under AS 11.61.125 , possession of child pornography under AS 11.61.127 , or distribution of indecent material to minors under AS 11.61.128 , a consecutive term of imprisonment shall be imposed for some additional term of imprisonment for each additional crime or each additional attempt or solicitation to commit the offense.
  5. In this section,
    1. “active term of imprisonment” means the total term of imprisonment imposed for a crime, minus suspended imprisonment;
    2. “additional crime” means a crime that is not the primary crime;
    3. “presumptive term” means the middle of the applicable presumptive range set out in AS 12.55.125 ;
    4. “primary crime” means the crime
      1. for which the sentencing court imposes the longest active term of imprisonment; or
      2. that is designated by the sentencing court as the primary crime when no single crime has the longest active term of imprisonment.

History. (§ 3 ch 125 SLA 2004; am § 14 ch 2 SLA 2005; am § 21 ch 43 SLA 2013)

Revisor’s notes. —

In (d) (now (e)) of this section, paragraph (3) was enacted as paragraph (4) and renumbered in 2005, at which time former paragraph (d)(3) was renumbered as paragraph (d)(4).

Subsection (d) was enacted as (e) and relettered in 2013, at which time section (d) was relettered as (e).

Cross references. —

For governor’s transmittal letter for ch. 43, SLA 2013 (SB 22), see 2013 Senate Journal 38 — 39.

Effect of amendments. —

The 2013 amendment, effective July 1, 2013, added (e) (now (d)).

Editor’s notes. —

Under sec. 46(a), ch. 43, SLA 2013, subsection (e), enacted in sec. 21, ch. 43, SLA 2013, applies to offenses committed on or after July 1, 2013.

Notes to Decisions

Analysis

I.General Consideration

Annotator’s notes. —

A number of the cases cited in the notes below were decided under the former consecutive and concurrent sentencing provisions of AS 12.55.025(e) and (g), now codified in this section.

Concurrent sentence presumed. —

Under former law, when a sentencing judge did not specify whether a defendant’s sentences were concurrent or consecutive, the sentences would be deemed concurrent. Paige v. State, 115 P.3d 1244 (Alaska Ct. App. 2005).

Concurrent sentence required. —

Where defendant was convicted of one class A felony of attempted first-degree sexual assault under AS 11.41.410(b) and 11.31.100(d)(2) and two class B felonies of second-degree sexual assault under AS 11.41.420(b) , pursuant to AS 12.55.125(o) and 12.55.127(c) , the trial court erred by not imposing a suspended sentence or any period of probation, and a partially consecutive sentence for each offense charged. Moore v. State, 262 P.3d 217 (Alaska Ct. App. 2011).

Composite sentence held proper. —

Defendant was convicted of 13 felonies, which were alleged in two indictments; defendant argued that a 21-year composite term sentence was excessive. However, several aggravating factors applied such that the imposition of the composite term was not clearly mistaken. Haws v. State, — P.3d — (Alaska Ct. App. Dec. 24, 2008) (memorandum decision).

A composite sentence of seven years of active imprisonment with an additional three years suspended for second-degree sexual abuse of a minor was proper because the sentence was within the applicable presumptive range of five to 15 years and, while defendant had normal prospects for rehabilitation, a three-judge panel focused on the “egregious” nature of his use of a vibrator and pressuring the victim to recant. Campbell v. State, — P.3d — (Alaska Ct. App. Mar. 8, 2017) (memorandum decision).

For cases construing former AS 12.55.075, relating to imposition of sentences, see Perrin v. State, 543 P.2d 413 (Alaska 1975); Andrews v. State, 552 P.2d 150 (Alaska 1976); Rust v. State, 582 P.2d 134 (Alaska 1978); Morgan v. State, 582 P.2d 1030 (Alaska 1978).

Defendant could appeal a 20-year composite sentence, which was imposed for 12 convictions committed in a two-month period, because trial court could have imposed concurrent sentences under the consecutive sentencing rule in AS 12.55.127(a) Smith v. State, 187 P.3d 511 (Alaska Ct. App. 2008).

Applied in

Jackson v. State, 347 P.3d 126 (Alaska Ct. App. 2015); Anderson v. State, 444 P.3d 239 (Alaska Ct. App. 2019).

Cited in

Jeter v. State, 393 P.3d 438 (Alaska Ct. App. 2017); Nicklie v. State, 402 P.3d 424 (Alaska Ct. App. 2017); Medina v. State, 418 P.3d 861 (Alaska Ct. App. 2018).

II.Consecutive Sentences

Consecutive sentences were authorized by statute. State v. Pete, 420 P.2d 338 (Alaska 1966); Lanier v. State, 486 P.2d 981 (Alaska 1971).

A plain reading of former AS 11.05.050 revealed that it was a grant of authority, or jurisdiction, affirmatively empowering sentencing courts to impose consecutive sentences. Tritt v. State, 625 P.2d 882 (Alaska Ct. App. 1981).

Constitutionality of consecutive sentences. —

Consecutive sentences did not constitute cruel and unusual punishment forbidden by the state and federal constitutions. Davis v. State, 566 P.2d 640 (Alaska 1977).

The contention that consecutive sentences constitute double jeopardy has no support in case law. Thomas v. State, 566 P.2d 630 (Alaska 1977).

Consecutive sentences for separate offenses do not violate the constitutional prohibition against double jeopardy. Davis v. State, 566 P.2d 640 (Alaska 1977).

Preference for consecutive sentences under prior statutes. —

See State v. Andrews, 707 P.2d 900 (Alaska Ct. App. 1985); Jones v. State, 744 P.2d 410 (Alaska Ct. App. 1987); Contreras v. State, 767 P.2d 1169 (Alaska Ct. App. 1989), disapproved, State v. Bumpus, 820 P.2d 298 (Alaska 1991).

Alaska formerly had no statutory limitation on imposition of consecutive sentences. Mutschler v. State, 560 P.2d 377 (Alaska 1977).

Former consecutive sentences statute did not contain limitations on the court’s power to impose consecutive sentences. Thomas v. State, 566 P.2d 630 (Alaska 1977).

Proper sentence. —

Where a consecutive sentence was imposed but the total sentence did not exceed the sentence which could be imposed on one count, a consecutive sentence was not improper. Karr v. State, 660 P.2d 450 (Alaska Ct. App. 1983), aff'd in part and rev'd in part, 686 P.2d 1192 (Alaska 1984).

Sentencing judge's imposition of a partially consecutive, composite sentence of 80 years' imprisonment, with another 20 years suspended, when defendant was convicted of first-degree murder for killing defendant's spouse and second-degree murder for killing defendant's infant child was not clearly mistaken as the judge considered defendant's military service, defendant's rehabilitation, community condemnation, and the fact that, if and when defendant got out of prison, defendant would be under active supervision for the rest of defendant's life. Lynch v. State, — P.3d — (Alaska Ct. App. May 10, 2017) (memorandum decision).

Factual finding that increased penalty. —

Apprendi v. New Jersey, 530 U.S. 466 (2000) (which held that any factual finding that increases the penalty for a crime beyond the statutory maximum provided for the offense must be submitted to a jury and proved beyond a reasonable doubt) did not apply to a decision to impose concurrent or consecutive sentences. Wright v. State, 46 P.3d 395 (Alaska Ct. App. 2002).

See Marrone v. State, 458 P.2d 736 (Alaska 1969), cert. denied, 397 U.S. 967, 90 S. Ct. 1005, 25 L. Ed. 2d 260 (U.S. 1970).

Trial court was clearly mistaken in imposing state sentences for drug law violations consecutively to defendant’s eight-year federal term; the state sentence should have been imposed concurrently to the federal sentence, where defendant should not have been sentenced to more than eight years’ imprisonment had all his offenses been state offenses. McCombs v. State, 754 P.2d 1129 (Alaska Ct. App. 1988).

Sentences should have been limited to one term of imprisonment where two offenses were part of one transaction. —

Where two offenses were really part of one general transaction involving the unlawful sale of liquor, the judgment of conviction should be modified so as to limit defendant’s sentences to one term of imprisonment. State v. Pete, 420 P.2d 338 (Alaska 1966).

Consecutive sentences were authorized whenever the defendant was convicted of multiple offenses. Thomas v. State, 566 P.2d 630 (Alaska 1977).

Under the language of former AS 11.05.050, when multiple convictions occurred, each sentencing judge was specifically vested with authority to impose a sentence consecutive to any sentence imposed, or to be imposed, on the other convictions. Tritt v. State, 625 P.2d 882 (Alaska Ct. App. 1981).

When consecutive sentences were mandatory. —

The provisions former AS 12.55.025(e) made imposition of a consecutive term mandatory only where a judgment of conviction was already entered before the commission of the offense for which sentence is being imposed. Williams v. State, 759 P.2d 575 (Alaska Ct. App. 1988).

Former AS 12.55.025(e) and (g) did not require the trial court to impose consecutive sentences. James v. State, 739 P.2d 1314 (Alaska Ct. App. 1987).

Superior court properly imposed a composite sentence of 55 years to serve and an additional 10 years suspended for second-degree sexual abuse of a minor and attempted second-degree sexual abuse of a minor because the counts included 15 different acts with 11 different victims over a period of nearly five years, the absence of the “most serious” aggravator meant only that defendant's conduct fell within the broad middle range of conduct, the court was required to impose at least some portion of the sentences consecutively and to suspend at least two to three years of defendant's sentence, and the court thoroughly analyzed the required criteria and concluded a lesser sentence would be insufficient to meet the goals of sentencing. Kashatok v. State, — P.3d — (Alaska Ct. App. Aug. 9, 2017) (memorandum decision).

Consecutive sentences from separate judges. —

Nothing in the statutory language of former AS 11.05.050, either express or implied, indicated that the decision of one judge not to impose a consecutive sentence on one of several convictions deprived another judge, sentencing for a separate conviction, from availing himself of the option to sentence consecutively. Tritt v. State, 625 P.2d 882 (Alaska Ct. App. 1981).

Even though judge who sentenced defendant for the robbery conviction intended that the robbery sentence be concurrent with whatever sentence defendant might receive upon revocation of probation for damaging an aircraft, the sentencing court on the robbery charge had no authority to restrict the lawful sentencing options of the judge who later sentenced defendant upon revocation of his probation for damaging an aircraft to a sentence consecutive to the robbery sentence. Tritt v. State, 625 P.2d 882 (Alaska Ct. App. 1981).

Imposition of consecutive sentences for nonduplicative counts with separate intents was not prohibited under Alaska statutes and rules. Mutschler v. State, 560 P.2d 377 (Alaska 1977).

Consecutive sentences could formerly be imposed when separate offenses with separate intents were committed during a brief time interval in the course of one general transaction. Thomas v. State, 566 P.2d 630 (Alaska 1977); Cooper v. State, 595 P.2d 648 (Alaska 1979).

Where the crimes were unrelated offenses, imposition of consecutive sentences was appropriate. Preston v. State, 583 P.2d 787 (Alaska 1978).

Consecutive sentences not required. —

Because a consecutive sentence was only required when defendant was sentenced for a crime that defendant committed after the issuance of a judgment against defendant for an earlier crime, and defendant committed the weapons misconduct before the judgment was issued against him for the drug convictions, the court was not required to impose consecutive sentences for the weapons misconduct offense under this statute. Irvine v. State, — P.3d — (Alaska Ct. App. Aug. 5, 2020) (memorandum decision).

Similar transactions and common activity were no defense to separate convictions. —

The imposition of consecutive sentences does not amount to a constitutional violation where the transactions were “similar” and the activity was “common.” Lanier v. State, 486 P.2d 981 (Alaska 1971).

Where defendant employs the same modus operandi for each of his crimes, this does not furnish him a defense to separate convictions for each crime. Lanier v. State, 486 P.2d 981 (Alaska 1971).

Effect on sentence of defendant convicted of multiple crimes. —

By authorizing consecutive sentences, the statute, in effect, gave the trial court the power to sentence a defendant convicted of multiple crimes to a term of imprisonment longer than the statutory maximum for any one of them. A concomitant of this authority was the power to fix a minimum term of imprisonment for parole eligibility purposes, based on the entire term of imprisonment. Thomas v. State, 566 P.2d 630 (Alaska 1977).

Consecutive sentences were not illegal although their cumulative impact exceeds the statutory maximum for any one of the separate offenses. Preston v. State, 583 P.2d 787 (Alaska 1978).

Trial court judges could impose consecutive sentences in excess of the maximum penalty for the most serious offense, or which were greater than the presumptive sentence for the most serious offense; however, the court of appeals would review the sentence to assure that the record reflected substantial reasons for the imposition of such a sentence. Clifton v. State, 758 P.2d 1279 (Alaska Ct. App. 1988).

Presumptive sentences. —

To the extent a sentencing judge had the authority to impose a presumptive sentence concurrently to another sentence, he also had the authority to impose that presumptive sentence consecutively or partially consecutively and to suspend all or any portion of that presumptive sentence, but the defendant was required to serve a term of imprisonment which was at least as long as the greatest single presumptive sentence applicable. Griffith v. State, 675 P.2d 662 (Alaska Ct. App. 1984).

Escape while incarcerated. —

The use of consecutive sentences is particularly appropriate in cases where one escapes while incarcerated on another charge. Walton v. State, 568 P.2d 981 (Alaska 1977).

Crimes committed after imprisonment on former offense. —

Trial judges were required by statute to impose consecutive sentences on individuals convicted for crimes which are committed after they had been imprisoned on a former offense. Sanders v. State, 718 P.2d 167 (Alaska Ct. App. 1986).

With the exception of the consecutive sentencing mandated by AS 12.55.127(c) , subsections (a) and (b) were meant to carry forward the pre-existing rule that consecutive sentences are required in only one category of cases: instances where a defendant is sentenced for a crime that the defendant committed after judgement was issued against the defendant for an earlier crime; in those instances, the sentence for the new crime must be consecutive to the defendant’s sentence for the earlier crime. Smith v. State, 187 P.3d 511 (Alaska Ct. App. 2008).

Finding required for imposition. —

Imposition of a consecutive sentence required affirmative action of the sentencing court; a consecutive sentence was authorized only after a finding that confinement for such term was necessary in order to protect the public from further criminal conduct by the defendant. Cleary v. State, 548 P.2d 952 (Alaska 1976).

Formal finding held unnecessary. —

Where the combined effect of the consecutive sentences for the two counts of second degree murder did not exceed the maximum sentence permitted for one count of second degree murder, it was unnecessary for the sentencing judge to make a formal finding that confinement for the combined term was necessary to protect the public. Mills v. State, 592 P.2d 1247 (Alaska 1979).

Three counts of murder in first degree. —

Given the heinous nature of defendant’s crimes and a record which was devoid of hope for his rehabilitation, imposition of three consecutive 99-year sentences upon conviction of three counts of murder in the first degree was not clearly mistaken. Nukapigak v. State, 645 P.2d 215 (Alaska Ct. App. 1982), aff'd, 663 P.2d 943 (Alaska 1983).

Kiting checks. —

Where defendant is convicted of kiting checks, consecutive sentences were inappropriate, since a kiting scheme is a single episode, although involving multiple offenses. Law v. State, 624 P.2d 284 (Alaska 1981).

Consecutive sentences upheld. —

Where defendant was convicted of two crimes of robbery, since consecutive sentences were permitted by statute for such conduct, there was no error in the imposition of consecutive sentences. Davenport v. State, 543 P.2d 1204 (Alaska 1975).

Reasoning that defendant’s offense was so serious that consecutive sentences were necessary to reflect the crime’s seriousness is sufficient to support the imposition of consecutive sentences, in light of the legislative preference for consecutive sentences expressed in former AS 12.55.025(e) . Jones v. State, 744 P.2d 410 (Alaska Ct. App. 1987).

Imposition of consecutive sentences for two counts of assault with a dangerous weapon, where the cumulative effect was of a six-year sentence with three years suspended, was not clearly mistaken since the aggregate sentence was not excessive. Mutschler v. State, 560 P.2d 377 (Alaska 1977).

Consecutive sentences were not precluded for narcotic sales which were made to two different individuals, although one of them may have set up both sales, approximately two months apart. Thomas v. State, 566 P.2d 630 (Alaska 1977).

Where defendant was convicted for the third time of a narcotics violation, it was entirely proper for the sentencing court to impose a consecutive term in order to provide an additional sanction for the subsequent offense. Daniels v. State, 584 P.2d 47 (Alaska 1978).

In view of the seriousness of the crimes and of the trial court’s deliberate consideration of the requirements for passing sentence set forth in State v. Chaney, 477 P.2d 441 (Alaska 1970), the sentencing judge was not clearly mistaken in imposing consecutive sentences of 10 years on a count of second degree arson and a count of manslaughter. Jacinth v. State, 593 P.2d 263 (Alaska 1979).

The societal interests violated by the crimes of rape and assault with a dangerous weapon were sufficiently distinct, even where the offenses were intertwined in a single episode of violence toward another person, to justify separate sentences, and where it was after the victim had pulled up her clothes and thought her assailant was through with her that he stopped her from leaving and submitted her to fear of grave bodily injury apart from the violation of her personal dignity associated with the rape, the imposed consecutive sentences were not clearly mistaken. Coleman v. State, 621 P.2d 869 (Alaska 1980), cert. denied, 454 U.S. 1090, 102 S. Ct. 653, 70 L. Ed. 2d 628 (U.S. 1981).

Although defendant’s offenses were closely intertwined, his thefts from retail businesses and his misrepresentations to a pawn shops violated sufficiently distinct social norms to warrant a consecutive sentence. Buckwalter v. State, 23 P.3d 81 (Alaska Ct. App. 2001).

Upon revocation of probation, imposition of a term of imprisonment consecutive to another term for an intervening offense does not impermissibly enlarge or enhance the scope of the sentence which was originally suspended. Tritt v. State, 625 P.2d 882 (Alaska Ct. App. 1981).

Where a defendant’s probation on a conviction for burglary in the first degree, AS 11.46.300 , was revoked because of his conviction of bank robbery in federal district court, a sentence of four years with two years suspended, consecutive to his federal robbery sentence, was not excessive. Dodd v. State, 686 P.2d 737 (Alaska Ct. App. 1984).

A sentence imposed on a new offense must be consecutive to a sentence that is reimposed upon a revocation of probation. Betzner v. State, 768 P.2d 1150 (Alaska Ct. App. 1989).

Twenty-five year term of imprisonment for first-degree sexual assault was the minimum term of imprisonment that the judge could impose for that crime, and imposition of a 15-year term of imprisonment for kidnapping was unremarkable, given the fact that the sentencing range for that offense was five to 99 years. Imposing the terms of imprisonment consecutively, for a composite sentence of 40 years to serve, was not clearly mistaken. Scholes v. State, 274 P.3d 496 (Alaska Ct. App. 2012).

In a case involving two counts of first-degree sexual abuse of a minor, a composite term of 37 years’ imprisonment with 5 years suspended was not error; defendant’s argument that the sentence was improper since presumptive sentencing ranges for sexual felonies used to be substantially lower was rejected. Because a 25- to 35-year presumptive range applied to defendant’s 2007 offense, his proposed mitigating factors were rejected, and the superior court had the duty to impose at least 2 years of the other sentence consecutively, the effective minimum sentence was 27 years’ imprisonment; reasons were given as to why defendant should have received a more severe sentence. Alvarenga v. State, — P.3d — (Alaska Ct. App. May 6, 2015) (memorandum decision).

Post-conviction relief applicant did not state a prima facie case for relief based on a denial of the right to effective assistance of counsel because he could not have successfully challenged the imposition of parole time consecutive to a first-degree robbery sentence, even if he had assistance of counsel. Osborne v. State, — P.3d — (Alaska Ct. App. Apr. 15, 2015) (memorandum decision).

Sentence not upheld.

In a case in which defendant was convicted of six controlled substance misconduct offenses, the minimum sentence defendant faced for all of the offenses was 15 years as the court was not required to run any of the sentences on the drug convictions consecutively; thus, because the appellate court was unable to discern from the record why the court ran defendant's sentences on the class A and class B felony convictions completely consecutively, particularly given the court's recognition that a 26-year sentence was exponentially greater than any sentence defendant had been ordered to serve previously, the court was to consider defendant's composite sentence on remand. Irvine v. State, — P.3d — (Alaska Ct. App. Aug. 5, 2020) (memorandum decision).

Sentence vacated. —

Trial court should not have imposed a five-year sentence for tampering with physical evidence consecutively to a 99-year sentence for murder, where the record would not support the conclusion that defendant must be incarcerated for the remainder of his life without any possibility of parole. Thompson v. State, 768 P.2d 127 (Alaska Ct. App. 1989).

Consecutive sentences were not required for defendant's convictions for possessing child pornography because AS 12.55.127(d) was not in effect when defendant committed the crimes, so consecutive sentences would be an ex post facto violation. Williams v. State, 418 P.3d 870 (Alaska Ct. App. 2018), reaff'd, 440 P.3d 399 (Alaska Ct. App. 2019).

Credit where consecutive sentences imposed. —

When consecutive sentences were imposed for two or more offenses, periods of presentence incarceration were credited only against the aggregate of all terms imposed; an offender who received consecutive sentences was entitled to credit against only the first sentence imposed, while an offender sentenced to concurrent terms in effect received credit against each sentence. Endell v. Johnson, 738 P.2d 769 (Alaska Ct. App. 1987).

Where, at the time defendant was sentenced he had spent 266 days in jail and his sentence in the case was to run consecutively to his sentence from a previous felony, his 266 days in jail could be applied against only one of these sentences. Smith v. State, 892 P.2d 202 (Alaska Ct. App. 1995).

New federal crime.—

Although defendant argued that the superior court violated his rights under the double jeopardy clause when the trial court amended his probation revocation sentence to make it consecutive to his federal sentence, the appellate court concluded the superior court's interpretation of AS 12.55.127(a) was correct. The trial court properly concluded that defendant's probation revocation sentence had to be consecutive to the sentence he received for his new federal crime. Grant v. State, 379 P.3d 993 (Alaska Ct. App. 2016).

Defendant's argument that the rule of mandatory consecutive sentencing codified in AS 12.55.127(a) does not apply when a defendant's new crime is a violation of federal law was rejected. Grant v. State, 379 P.3d 993 (Alaska Ct. App. 2016).

Construction.—

Rule of mandatory consecutive sentencing that is currently codified in AS 12.55.127(a) was intended to ensure that defendants receive some measure of additional punishment when they commit new crimes after being sentenced for earlier crimes. Grant v. State, 379 P.3d 993 (Alaska Ct. App. 2016).

Defendant's partially consecutive sentences had to be reconsidered because fully concurrent sentences were statutorily permitted except under two conditions which did not apply. Her v. State, — P.3d — (Alaska Ct. App. Sept. 19, 2018) (memorandum decision).

III.Concurrent Sentences

When concurrent sentences authorized under former statute. —

See State v. Andrews, 723 P.2d 85 (Alaska 1986).

Where defendant’s various check forgery cases violated similar societal interests, he could receive concurrent sentences. Winfree v. State, 683 P.2d 284 (Alaska Ct. App. 1984).

Correction of judgment unlawfully imposing concurrent sentences. —

See Joseph v. State, 712 P.2d 904 (Alaska Ct. App. 1986).

Sentence was remanded for consideration of alternatives to correct the illegality of concurrent sentences without increasing the total time to serve, where the trial court had erred in imposing a one-year sentence on a probation revocation concurrently to the other sentences. Napayonak v. State, 793 P.2d 1059 (Alaska Ct. App. 1990).

Sec. 12.55.135. Sentences of imprisonment for misdemeanors.

  1. A defendant convicted of a class A misdemeanor may be sentenced to a definite term of imprisonment of not more than one year.
  2. A defendant convicted of a class B misdemeanor may be sentenced to a definite term of imprisonment of not more than 90 days unless otherwise specified in the provision of law defining the offense.
  3. A defendant convicted of assault in the fourth degree that is a crime involving domestic violence committed in violation of the provisions of an order issued or filed under AS 12.30.027 or AS 18.66.100 — 18.66.180 and not subject to sentencing under (g) of this section shall be sentenced to a minimum term of imprisonment of 20 days.
  4. A defendant convicted of assault in the fourth degree or harassment in the first degree who knowingly directed the conduct constituting the offense at
    1. a uniformed or otherwise clearly identified peace officer, firefighter, correctional employee, emergency medical technician, paramedic, ambulance attendant, or other emergency responder or medical professional who was engaged in the performance of official duties at the time of the assault or harassment shall be sentenced to a minimum term of imprisonment of
      1. 60 days if the defendant violated AS 11.41.230(a)(1) or (2) or AS 11.61.118 ;
      2. 30 days if the defendant violated AS 11.41.230(a)(3) ;
    2. a person who was on school grounds during school hours or during a school function or a school-sponsored event, on a school bus, at a school-sponsored event, or in the administrative offices of a school district, if students are educated at that office, shall be sentenced to a minimum term of imprisonment of 60 days if the defendant violated AS 11.41.230(a)(1) or (2); in this paragraph,
      1. “school bus” has the meaning given in AS 11.71.900 ;
      2. “school district” has the meaning given in AS 47.07.063 ;
      3. “school grounds” has the meaning given in AS 11.71.900 .
  5. If a defendant is sentenced under (c), (d), or (h) of this section,
    1. execution of sentence may not be suspended and probation or parole may not be granted until the minimum term of imprisonment has been served;
    2. imposition of a sentence may not be suspended except upon condition that the defendant be imprisoned for no less than the minimum term of imprisonment provided in the section; and
    3. the minimum term of imprisonment may not otherwise be reduced.
  6. A defendant convicted of vehicle theft in the second degree in violation of AS 11.46.365(a)(1) shall be sentenced to a definite term of imprisonment of at least 72 hours but not more than one year.
  7. A defendant convicted of assault in the fourth degree that is a crime involving domestic violence shall be sentenced to a minimum term of imprisonment of
    1. 30 days if the defendant has been previously convicted of a crime against a person or a crime involving domestic violence;
    2. 60 days if the defendant has been previously convicted two or more times of a crime against a person or a crime involving domestic violence, or a combination of those crimes.
  8. A defendant convicted of failure to register as a sex offender or child kidnapper in the second degree under AS 11.56.840 shall be sentenced to a minimum term of imprisonment of 35 days.
  9. If a defendant is sentenced under (g) of this section,
    1. execution of sentence may not be suspended and probation or parole may not be granted until the minimum term of imprisonment has been served;
    2. imposition of sentence may not be suspended;
    3. the minimum term of imprisonment may not otherwise be reduced.
  10. [Repealed, §  179 ch. 36 SLA 2016.]
  11. In this section,
    1. “crime against a person” means a crime under AS 11.41, or a crime in this or another jurisdiction having elements similar to those of a crime under AS 11.41;
    2. “crime involving domestic violence” has the meaning given in AS 18.66.990 ;
    3. “medical professional” means a person who is an advanced practice registered nurse, anesthesiologist, chiropractor, dental hygienist, dentist, health aide, nurse, nurse aide, mental health counselor, osteopath, physician, physician assistant, psychiatrist, psychological associate, psychologist, radiologist, surgeon, or x-ray technician, or who holds a substantially similar position.
  12. [Repealed, § 138 ch 4 FSSLA 2019.]
  13. [Repealed, § 138 ch 4 FSSLA 2019.]
  14. [Repealed, § 138 ch 4 FSSLA 2019.]
  15. [Repealed, § 138 ch 4 FSSLA 2019.]
  16. [Repealed, § 138 ch 4 FSSLA 2019.]

History. (§ 12 ch 166 SLA 1978; am § 2 ch 139 SLA 1980; am § 22 ch 59 SLA 1982; am § 13 ch 61 SLA 1982; am § 31 ch 143 SLA 1982; am §§ 4, 5 ch 92 SLA 1983; am §§ 5, 6 ch 53 SLA 1991; am § 3 ch 6 SLA 1996; am § 14 ch 64 SLA 1996; am §§ 5, 6 ch 71 SLA 1996; am §§ 8, 9 ch 86 SLA 1998; am §§ 3, 4 ch 106 SLA 1998; am § 16 ch 53 SLA 2006; am § 1 ch 86 SLA 2006; am §§ 4, 5 ch 87 SLA 2006; am § 27 ch 33 SLA 2016; am §§ 91 — 93, 179 ch 36 SLA 2016; am §§ 35 — 37 ch 1 4SSLA 2017; am §§ 75, 76, 138 ch 4 FSSLA 2019)

Cross references. —

Definition of “misdemeanors,” “violation” — AS 11.81.900(b)

Classification of offenses — AS 11.81.250

Domestic violence injunctions — AS 25.35.010 , 25.35.020

Arrest authority — AS 12.25.030

Original Code Provision — None.

TD: VI, 79-81.

Revisor's notes. —

Subsection (h) was enacted as (g). Relettered in 1998, at which time the cross-reference in subsection (e) was conformed.

Subsections (i) and former (j) [now (k)] were enacted as (h) and (i), respectively. Relettered in 1998.

Subsection (k) [former (j)] was relettered in 2006.

In 2016, the terms in paragraph (k)(3) were reorganized to maintain alphabetical order.

Cross references. —

For provision relating to the applicability of the 2016 amendments to this section, see sec. 185(u)(4) - (6), ch. 36, SLA 2016, in the 2016 Temporary and Special Acts.

For the effect of the 2016 amendments to this section on Rule 32.1, Alaska Rules of Criminal Procedure, see sec. 180(d), ch. 36, SLA 2016 in the 2016 Temporary and Special Acts.

For provision relating to applicability of the 2017 amendment to subsections (a), (b), and (l), see sec. 75(b)(5) — (7), ch. 1, 4SSLA 2017, in the 2017 Temporary and Special Acts.

Effect of amendments. —

The first 2006 amendment, effective June 3, 2006, added subsection (k) [now (j)].

The second 2006 amendment, effective October 4, 2006, added paragraph (d)(2) and made related changes.

The third 2006 amendment, effective October 4, 2006, inserted “or harassment in the first degree,” “or medical professional,” and “or harassment” in the introductory language of subsection (d), inserted “or AS 11.61.118 ” in paragraph (d)(1), and added paragraph (j)(3) [now (k)(3)].

The first 2016 amendment, effective July 7, 2016, in (k)(3), substituted “advanced practice registered nurse” for “nurse practitioner”.

The second 2016 amendment, effective July 12, 2016 in (a), designated a portion of (a) as (1), added “, if the” at the end of the paragraph, added (a)(1)(A) - (D) and (a)(2); in (b), designated a portion of (a) as (1), in (a)(1), substituted “10 days” for “90 days”, added “or in this section” at the end, added (a)(2); repealed (j); added ( l ) - (p).

The 2017 amendment, effective November 27, 2017, added (a)(1)(E)(iv), and made related changes; added (b)(3) and made related changes; in ( l )(1) at the beginning, substituted “more than 15 days of active imprisonment” for “more than five days of suspended imprisonment” and deleted “or more” following “been convicted two”, and made a related change; in ( l )(2), substituted “a sentence of more than 10 days of active imprisonment and a term of probation of more than six months if the person has previously” for “a sentence of active or suspended imprisonment if the person has not been previously convicted, or has previously”, and made related changes; added ( l )(3).

The 2019 amendment, effective July 9, 2019, rewrote (a) and (b), which read, “(a) A defendant convicted of a class A misdemeanor may be sentenced to a definite term of imprisonment of not more than

“(1) one year, if the

“(A) conviction is for a crime with a mandatory minimum term of 30 days or more of active imprisonment;

“(B) trier of fact finds the aggravating factor that the conduct constituting the offense was among the most serious conduct included in the definition of the offense;

“(C) defendant has past criminal convictions for conduct violative of criminal laws, punishable as felonies or misdemeanors, similar in nature to the offense for which the defendant is being sentenced;

“(D) conviction is for an assault in the fourth degree under AS 11.41.230 ; or

“(E) conviction is for a violation of

“(i) AS 11.41.427 ;

“(ii) AS 11.41.440 ;

“(iii) AS 11.41.460 , if the indecent exposure is before a person under 16 years of age;

“(iv) AS 11.61.116(c)(2) ; or

“(v) AS 11.61.118(a)(2) ; or

“(2) 30 days.

“(b) A defendant convicted of a class B misdemeanor may be sentenced to a definite term of imprisonment of not more than

“(1) 10 days unless otherwise specified in the provision of law defining the offense or in this section;

“(2) 90 days if the conviction is for a violation of

“(A) AS 11.61.116(c)(1) and the person is 21 years of age or older; or

“(B) AS 11.61.120(a)(6) and the person is 21 years of age or older; or

“(3) five days if the conviction is for a violation of AS 11.56.757 .”; and repealed ( l ), (m), (n), (o) and (p).

Editor's notes. —

Section 22(c), ch. 86, SLA 1998 provides that with respect to the 1998 enactment of subsections (g), (i), and former (j), “[r]eferences to previous convictions in this Act apply to all convictions occurring before, on, or after June 13, 1998.”

Section 142(b), ch. 4, FSSLA 2019, provides that the 2019 amendments to (a) and (b) of this section apply “to sentences imposed on or after July 9, 2019, for conduct occurring on or after July 9, 2019.”

Notes to Decisions

Constitutionality of presumptive sentencing provisions. —

The presumptive sentencing provisions contained in AS 12.55.125 — 12.55.175 are not an unconstitutional violation of the separation of powers doctrine, Alaska Const., art. I, § 12, or of Alaska Const., art. IV, § 1 as a legislative infringement on the power of the judiciary to sentence on the basis of the particular facts of the case and the nature of a particular offender because although the presumptive sentencing statutes do limit the discretion of a judge in imposing a sentence, they do not foreclose sentences of less than the presumptive sentence or the possibility of placing a person on probation. Nell v. State, 642 P.2d 1361 (Alaska Ct. App. 1982).

Construction.—

AS 12.55.135(a)(1)(C), which declares that the maximum penalty for a class A misdemeanor is one year's imprisonment, was intended to apply to defendants who have one or more prior convictions for conduct violative of criminal laws similar in nature to the offense for which the defendant is being sentenced. Municipality of Anchorage v. Brooks, 397 P.3d 346 (Alaska Ct. App. 2017).

Thirty-day sentencing ceiling applied to sentencing for reckless driving under both AS 28.35.400(a) and non-classified Anchorage, Alaska, Mun. Code § 09.28.010(A) because the legislature could not have intended to create the sentencing discrepancy that would exist if the ceiling applied to the more serious offense of driving under the influence but not reckless driving, even though the municipal offense was not a class A misdemeanor, as the municipality did not prove a factor in AS 12.55.135(a)(1). Municipality of Anchorage v. Beezley, 435 P.3d 978 (Alaska Ct. App. 2018).

Applicability. —

Defendant's sentence for two counts of child neglect under Anchorage, Alaska, Mun. Code 08.05.020.H.1 was not illegal because the statute did not control his sentence; the fact that the penalties for offenses designated “class A misdemeanors” under the Anchorage Municipal Code could be inconsistent with the penalties for some offenses designated as “class A misdemeanors” under state law did not, by itself, render the municipal penalties unlawful. Penetac v. Municipality of Anchorage, 436 P.3d 1089 (Alaska Ct. App. 2019).

Statute did not control defendant's sentence as a matter of municipal law because defendant's interpretation of Anchorage, Alaska, Mun. Code 08.05.020.E would render the other subsections of that provision meaningless. Penetac v. Municipality of Anchorage, 436 P.3d 1089 (Alaska Ct. App. 2019).

Maximum sentence for joyriding justified. —

The district court judge was not clearly mistaken in characterizing a defendant as a worst offender, and in imposing the maximum sentence of one year for third-degree criminal mischief (joyriding). Despite the limited period of time in which the defendant committed the offenses, the defendant’s record, coupled with the especially serious nature of the particular joyriding offenses, i.e., that it was committed in order to perpetrate a felony, justifies the sentence imposed. Plant v. State, 724 P.2d 536 (Alaska Ct. App. 1986).

Sentence upheld. —

Composite sentence of 24 months with six months suspended for refusal to submit to a chemical breath test and for driving with a suspended operator’s license was affirmed where the defendant had five prior driving while intoxicated convictions and at least four prior driving with suspended license convictions and was on probation for a prior driving while intoxicated and driving with suspended license conviction. Witt v. State, 692 P.2d 976 (Alaska Ct. App. 1984).

Trial court did not impose an excessive sentence for a first offender following defendant’s conviction for numerous counts of assault stemming from two separate incidents because the trial court found that defendant repeatedly used his airplane to try to frighten other guides and hunters away from his camps and intentionally used his airplane to make the victims fear that he was going to hit them. The judge noted that defendant had done this even though a client was in the back seat of his airplane and concluded that defendant’s actions could easily have caused a fatal accident; it was also significant that defendant committed the assaults on two separate occasions on different groups of hunters. Lamb v. State, — P.3d — (Alaska Ct. App. Jan. 14, 2009) (memorandum decision).

Defendant’s composite sentence of six months in prison for criminal mischief was not improperly imposed for the primary purpose of rehabilitation due to defendant’s mental health issues; rather, the trial court based its decision on defendant’s prior criminal history and the serious and offensive nature of the instant crime, which included spray-painting swastikas and offensive messages on several businesses. Grierson v. State, — P.3d — (Alaska Ct. App. Sept. 30, 2009) (memorandum decision).

Maximum one-year sentence imposed for importing alcohol into a dry village did not violate defendant’s due process rights because he had a lengthy history of misdemeanor convictions and was specifically advised that a maximum term could be imposed. Egoak v. State, — P.3d — (Alaska Ct. App. July 27, 2011) (memorandum decision).

Repeat sex offender who was caught outside a Boys and Girls Club near a public library, in possession of a knife and a thumb drive containing child pornography, had not registered as required by AS 11.56.840 . Under the circumstances, a sentence near the one-year maximum allowed for the offense was proper. Stokes v. State, — P.3d — (Alaska Ct. App. May 22, 2013) (memorandum decision).

Sufficient evidence supported defendant’s conviction for driving while defendant’s license was revoked because defendant’s arguments to the contrary required construing the evidence in the light most favorable to defendant, which is not the standard for reviewing sufficiency of the evidence. Lewis v. State, 356 P.3d 795 (Alaska Ct. App. 2015).

Deviation from Neal-Mutschler rule. —

Based on evidence showing multiple acts of aggravated indecent exposure to a minor, and failure to appear for over 15 years, conviction on four misdemeanor counts was proper. While defendant’s composite sentence could not exceed one year under the Neal-Mutschler rule, the sentencing court was permitted to impose a composite sentence of one and a half years based upon a consideration of the factors set forth in AS 12.55.005 ; defendant’s offenses were among the most serious, his failure to appear prolonged the criminal prosecution, and he caused the victim to suffer emotional problems. Phelps v. State, 236 P.3d 381 (Alaska Ct. App. 2010).

Consecutive sentencing by district court permissible under former law. —

See State v. Pete, 420 P.2d 338 (Alaska 1966) (Decided under former AS 11.05.010 )

Sentence disapproved. —

Trial court’s sentencing decision was clearly mistaken where the sentence fell near the bottom of the authorized range of sentences for fourth-degree assault and the evidence concerning defendant’s background and personal characteristics provided little basis for characterizing his case as particularly mitigated, including two prior misdemeanor convictions. State v. Huletz, 838 P.2d 1257 (Alaska Ct. App. 1992).

District court's decision that defendant was not covered by AS 12.55.135(a)(1)(C), and that his maximum sentence was 30 days' imprisonment was subject to reversal. Defendant, who had one conviction for operating a motor vehicle under the influence, failed to show that AS 12.55.135(a)(1)(C), which declares that the maximum penalty for a class A misdemeanor is one year's imprisonment, should be interpreted at odds with the normal rule of statutory construction words in the plural number include the singular. Municipality of Anchorage v. Brooks, 397 P.3d 346 (Alaska Ct. App. 2017).

Reconsideration of sentence. —

As pending legislation was relevant to defendant's sentence for violating the conditions of his bail release, and the issue was directly raised, the trial court was required to address this in its sentencing analysis; the trial court was directed to reconsider defendant's sentence in light of the current classification of his offense as a class B misdemeanor, with a maximum penalty of five days' imprisonment. Colegrove v. State, — P.3d — (Alaska Ct. App. Nov. 21, 2018) (memorandum decision).

Applied in

Ostrosky v. State, 725 P.2d 1087 (Alaska 1986); Purcella v. State, 765 P.2d 114 (Alaska Ct. App. 1988); Hazelwood v. State, 962 P.2d 196 (Alaska Ct. App. 1998); State v. ACLU of Alaska, 204 P.3d 364 (Alaska 2009).

Quoted in

Miller v. State, 312 P.3d 1112 (Alaska Ct. App. 2013).

Stated in

Doe v. Dep't of Public Safety, 92 P.3d 398 (Alaska 2004); Vickers v. State, 175 P.3d 1280 (Alaska Ct. App. 2008).

Cited in

Law v. State, 624 P.2d 284 (Alaska 1981); Kelly v. State, 663 P.2d 967 (Alaska Ct. App. 1983); State v. Waalkes, 749 P.2d 1360 (Alaska Ct. App. 1988); Smith v. State, 756 P.2d 913 (Alaska Ct. App. 1988); Stewart v. State, 763 P.2d 515 (Alaska Ct. App. 1988); Sorenson v. State, 938 P.2d 1084 (Alaska Ct. App. 1997); Doe v. State, 189 P.3d 999 (Alaska 2008); Felber v. State, 243 P.3d 1007 (Alaska Ct. App. 2010); In re Ivy, 374 P.3d 374 (Alaska 2016); Roberts v. State, 394 P.3d 639 (Alaska Ct. App. 2017).

Collateral references. —

Pardoned or expunged conviction as “prior offense” under state statute or regulation enhancing punishment for subsequent conviction. 97 ALR5th 293.

Sec. 12.55.137. Penalties for gang activities punishable as misdemeanors.

  1. If a person commits an offense that would be a class B misdemeanor and the person committed the offense for the benefit of, at the direction of, or in association with a criminal street gang, the offense is a class A misdemeanor.
  2. If a person commits an offense that would be a class A misdemeanor and the person committed the offense for the benefit of, at the direction of, or in association with a criminal street gang, the offense is a class C felony.

History. (§ 8 ch 60 SLA 1996)

Sec. 12.55.139. Penalties for criminal nonsupport and aiding nonpayment of child support.

  1. In addition to other penalties imposed for the offense of criminal nonsupport under AS 11.51.120 , the court may suspend, restrict, or revoke, for the period during which the arrearage continues to exist, a recreational license as defined in AS 09.50.020(c) , if the defendant is a natural person.
  2. In addition to other penalties imposed for the offense of aiding the nonpayment of child support in the first degree under AS 11.51.121 and for the offense of aiding the nonpayment of child support in the second degree under AS 11.51.122 , the court may suspend, restrict, or revoke, for a period not to exceed one year, a recreational license as defined in AS 09.50.020(c) , if the defendant is a natural person.

History. (§ 5 ch 132 SLA 1998; am §§ 9, 10 ch 108 SLA 2004)

Effect of amendments. —

The 2004 amendment, effective July 1, 2004, substituted “for the period during which the arrearage continues to exist” for “for a period not to exceed six months” in subsection (a), and added subsection (b).

Sec. 12.55.140. Sentences for violations. [Repealed, § 23 ch 59 SLA 1982.]

Sec. 12.55.145. Prior convictions.

  1. For purposes of considering prior convictions in imposing sentence under
    1. AS 12.55.125(c) , (d), or (e),
      1. a prior conviction may not be considered if a period of 10 or more years has elapsed between the date of the defendant’s unconditional discharge on the immediately preceding offense and commission of the present offense unless the prior conviction was for an unclassified or class A felony;
      2. a conviction in this or another jurisdiction of an offense having elements similar to those of a felony defined as such under Alaska law at the time the offense was committed is considered a prior felony conviction;
      3. two or more convictions arising out of a single, continuous criminal episode during which there was no substantial change in the nature of the criminal objective are considered a single conviction unless the defendant was sentenced to consecutive sentences for the crimes; offenses committed while attempting to escape or avoid detection or apprehension after the commission of another offense are not part of the same criminal episode or objective;
    2. AS 12.55.125(l) ,
      1. a conviction in this or another jurisdiction of an offense having elements similar to those of a most serious felony is considered a prior most serious felony conviction;
      2. commission of and conviction for offenses relied on as prior most serious felony offenses must occur in the following order: conviction for the first offense must occur before commission of the second offense, and conviction for the second offense must occur before commission of the offense for which the defendant is being sentenced;
    3. AS 12.55.135(g) ,
      1. a prior conviction may not be considered if a period of five or more years has elapsed between the date of the defendant’s unconditional discharge on the immediately preceding offense and commission of the present offense unless the prior conviction was for an unclassified or class A felony;
      2. a conviction in this or another jurisdiction of an offense having elements similar to those of a crime against a person or a crime involving domestic violence is considered a prior conviction;
      3. two or more convictions arising out of a single, continuous criminal episode during which there was no substantial change in the nature of the criminal objective are considered a single conviction unless the defendant was sentenced to consecutive sentences for the crimes; offenses committed while attempting to escape or avoid detection or apprehension after the commission of another offense are not part of the same criminal episode or objective;
    4. AS 12.55.125(i) ,
      1. a conviction in this or another jurisdiction of an offense having elements similar to those of a sexual felony is a prior conviction for a sexual felony;
      2. a felony conviction in another jurisdiction making it a crime to commit any lewd and lascivious act on a child under the age of 16 years, with the intent of arousing, appealing to, or gratifying the sexual desires of the defendant or the victim is a prior conviction for a sexual felony;
      3. two or more convictions arising out of a single, continuous criminal episode during which there was no substantial change in the nature of the criminal objective are considered a single conviction unless the defendant was sentenced to consecutive sentences for the crimes; offenses committed while attempting to escape or avoid detection or apprehension after the commission of another offense are not part of the same criminal episode or objective;
      4. a conviction in this or another jurisdiction of an offense having elements similar to those of a felony defined as such under Alaska law at the time the offense was committed is considered a prior felony conviction.
  2. When sentence is imposed under this chapter, prior convictions not expressly admitted by the defendant must be proved by authenticated copies of court records served on the defendant or the defendant’s counsel at least 20 days before the date set for imposition of sentence.
  3. The defendant shall file with the court and serve on the prosecuting attorney notice of denial, consisting of a concise statement of the grounds relied upon and that may be supported by affidavit or other documentary evidence, no later than 10 days before the date set for the imposition of sentence if the defendant
    1. denies
      1. the authenticity of a prior judgment of conviction;
      2. that the defendant is the person named in the judgment;
      3. that the elements of a prior offense committed in this or another jurisdiction are similar to those of a
        1. felony defined as such under Alaska law;
        2. most serious felony, defined as such under Alaska law;
        3. crime against a person or a crime involving domestic violence;
      4. that a prior conviction occurred within the period specified in (a)(1)(A) or (3)(A) of this section; or
      5. that a previous conviction occurred in the order required under (a)(2)(B) of this section; or
    2. alleges that two or more purportedly separate prior convictions should be considered a single conviction under (a)(1)(C) or (3)(C) of this section.
  4. Matters alleged in a notice of denial shall be heard by the court sitting without a jury. If the defendant introduces substantial evidence that the defendant is not the person named in a prior judgment of conviction, that the judgment is not authentic, that the conviction did not occur within the period specified in (a)(1)(A) or (3)(A) of this section, that a conviction should not be considered a prior felony conviction under (a)(1)(B) of this section, a prior most serious felony conviction under (a)(2)(A) of this section, or a prior crime against a person or a crime involving domestic violence conviction under (a)(3)(B) of this section, or that a previous conviction did not occur in the order required under (a)(2)(B) of this section, then the burden is on the state to prove the contrary beyond a reasonable doubt. The burden of proof that two or more convictions should be considered a single conviction under (a)(1)(C) or (3)(C) of this section is on the defendant by clear and convincing evidence.
  5. The authenticated judgments of courts of record of the United States, the District of Columbia, or of any state, territory, or political subdivision of the United States are prima facie evidence of conviction.
  6. Under this section, a prior conviction has occurred when a defendant has entered a plea of guilty, guilty but mentally ill, or nolo contendere, or when a verdict of guilty or guilty but mentally ill has been returned by a jury or by the court.
  7. In this section,
    1. “crime against a person” has the meaning given in AS 12.55.135 ;
    2. “crime involving domestic violence” has the meaning given in AS 18.66.990 .

History. (§ 12 ch 166 SLA 1978; am §§ 32 — 34 ch 143 SLA 1982; am §§ 8 — 11 ch 7 SLA 1996; am §§ 10 — 13 ch 86 SLA 1998; am § 6 ch 90 SLA 2003; am § 15 ch 2 SLA 2005; am § 38 ch 1 4SSLA 2017; am § 77 ch 4 FSSLA 2019)

Cross references. —

Definition of “unconditional discharge” — AS 12.55.185

Sentences of imprisonment for felonies — AS 12.55.125

Escape — AS 11.56.300 — 11.56.330

Original Code Provision — None.

Revisor's notes. —

Section 35, ch. 143, SLA 1982 enacted a subsection (f) which was renumbered in 1982 as AS 12.55.147 .

The reference to “AS 12.55.135(j) ” in paragraph (g)(1) was substituted for “AS 12.55.135(i) ” in 1998 to reflect the 1998 relettering of that subsection.

The reference to “AS 12.55.135 ” in paragraph (g)(1) was substituted for “AS 12.55.135(j) ” in 2006 to reflect the relettering in that section.

Cross references. —

For effect of convictions prior to January 1, 1980 (effective date of ch. 166, SLA 1978), see § 23, ch. 166, SLA 1978, in the Temporary and Special Acts; section 19, ch. 7, SLA 1996 provides that references in that Act, which amended subsections (a), (c), and (d) and added subsection (f), to prior or previous convictions apply “to all convictions occurring before, on, or after June 27, 1996”.

For provision relating to applicability of the 2017 amendment to subsection (a), see sec. 75(b)(8), ch. 1, 4SSLA 2017, in the 2017 Temporary and Special Acts.

For a statement of legislative intent regarding the 2019 amendment to (a) of this section, see § 1, ch. 4, FSSLA 2019, in the 2019 Temporary and Special Acts.

Effect of amendments. —

The 2019 amendment, effective July 9, 2019, in (a)(4)(B), substituted “act on a child” for “act upon a child,” added (a)(4)(D), and deleted (a)(5), which read, “(5) AS 12.55.135(a) ,

“(A) a prior conviction may not be considered if a period of five or more years has elapsed between the date of the defendant’s unconditional discharge on the immediately preceding offense and commission of the present offense unless the prior conviction was for an unclassified or class A felony;

“(B) a conviction in this or another jurisdiction of an offense having elements similar to those of a felony or misdemeanor defined as such under Alaska law at the time the offense was committed is considered a prior conviction;

“(C) two or more convictions arising out of a single, continuous criminal episode during which there was no substantial change in the nature of the criminal objective are considered a single conviction unless the defendant was sentenced to consecutive sentences for the crimes; offenses committed while attempting to escape or avoid detection or apprehension after the commission of another offense are not part of the same criminal episode or objective.”

Editor's notes. —

Section 142(b), ch. 4, FSSLA 2019, provides that the 2019 amendment to (a) of this section applies “to sentences imposed on or after July 9, 2019, for conduct occurring on or after July 9, 2019.”

Notes to Decisions

Applicability. —

Section applied in defining what a “prior felony conviction” is for purposes of AS 12.55.155(c)(15) . Mancini v. State, 841 P.2d 184 (Alaska Ct. App. 1992).

Section held constitutional. —

This section was not unconstitutional and did not deny the defendant his right to trial by jury when it allowed the judge to determine whether a defendant has been convicted of one or more felonies; the provisions did not create a crime, nor were they an element of the crimes for which the defendant was convicted, but were matters of sentencing, traditionally a question for the court. Huitt v. State, 678 P.2d 415 (Alaska Ct. App. 1984).

Interpretation of paragraph (a)(3) to require that, when an offender is simultaneously convicted of multiple felonies arising out of separate criminal episodes and, thereafter, commits a new felony, each prior felony must count as a prior conviction for presumptive sentencing purposes does not violate equal protection under the Alaska Constitution. Anderson v. State, 904 P.2d 433 (Alaska Ct. App. 1995).

Ex post facto violation. —

When the legislature enacts new, more severe penalties for a crime, the ex post facto clauses of the U.S. and Alaska Constitutions prohibit the courts from applying these new penalties to defendants who committed their offenses before the new penalties were enacted. The trial court could not apply 2006 sentencing provisions when it sentenced defendant for his 2001 offenses against one of the victims. Kuku v. State, — P.3d — (Alaska Ct. App. Oct. 2, 2013) (memorandum decision).

Determination of whether a person is a second, third, or subsequent felony offender for purposes of applying the presumptive sentencing provisions of AS 12.55.125 is governed by the provisions of this section and AS 12.55.185 . Juneby v. State, 641 P.2d 823 (Alaska Ct. App. 1982), modified, 665 P.2d 30 (Alaska Ct. App. 1983).

Trial court’s finding, that the ten-year period for determining consideration of a prior felony is inapplicable where there is an unclassified felony of first-degree sexual assault, may have been in error; and it was this finding which raised the defendant to the category of a three-time felony offender. Mooney v. State, 167 P.3d 81 (Alaska Ct. App. 2007).

Section applied in defining what “felony charge or conviction” is for purposes of AS 12.55.155(c)(20) . See Kuvaas v. State, 696 P.2d 684 (Alaska Ct. App. 1985).

Defendant was a third felony offender for sentencing purposes because the legislature unambiguously intended to depart from the rule that a date of sentencing was a date of conviction, so defendant's prior conviction for which defendant had not yet been sentenced counted as a prior felony for sentencing purposes. Elia v. State, — P.3d — (Alaska Ct. App. June 29, 2016) (memorandum decision).

Presumptive sentencing statutes as aid in interpreting AS 28.15.181(c) . —

See Tulowetzke v. State, Dep't of Pub. Safety, 743 P.2d 368 (Alaska 1987).

Paragraph (a)(1) construed. —

Where a defendant has spent seven years between the date of his unconditional discharge on his most recent prior felony without committing another felony, he is not subject to presumptive sentencing, but where less than seven years separates his unconditional discharge on a prior felony from the commission of his current offense then all prior felony offenses, however remote, may be considered for purposes of presumptive sentencing. Griffith v. State, 653 P.2d 1057 (Alaska Ct. App. 1982).

The court of appeals rejected defendant’s contention that paragraph (a)(1) of this section should be interpreted so that once there is any break of seven years between discharge from supervision after one felony conviction and commission of a new offense, offenses occurring prior to the seven-year break may no longer be considered for purposes of presumptive sentencing. Griffith v. State, 653 P.2d 1057 (Alaska Ct. App. 1982).

With paragraph (a)(1), the legislature explicitly designated the date of the commission of the subsequent offense as the operative date for the calculation of prior convictions. Hiler v. Municipality of Anchorage, 781 P.2d 24 (Alaska Ct. App. 1989).

Use of prior criminal acts in sentencing in excess of presumptive sentence. —

Where paragraph (a)(1) prohibited consideration of prior convictions for purposes of rendering defendant a second offender or third offender under AS 12.55.125 , and where defendant was not otherwise subject to a presumptive sentence under AS 12.55.125 , the prior criminal acts may nevertheless be considered as constituting an “exceptional case” justifying imposition of sentence in excess of the presumptive sentence for a second offender. Koganaluk v. State, 655 P.2d 339 (Alaska Ct. App. 1982).

Even if a prior felony conviction is too remote in time to be considered in determining whether a defendant is subject to the presumptive sentencing statutes, the conviction can still be considered for sentencing purposes; and substantial weight can be given to that conviction if the present circumstances indicate that the prior conviction is still relevant. Maal v. State, 670 P.2d 708 (Alaska Ct. App. 1983).

Although the offense for which defendant was convicted was not as serious as some of his prior offenses, the existence of multiple aggravating factors and his status as a three-time felon justified the sentence imposed by the trial court. Mooney v. State, 105 P.3d 149 (Alaska Ct. App. 2005).

It was error to sentence defendant as a third felony offender for a sexual felony because (1) defendant's prior felonies were not sexual felonies, and (2) defendant was released from supervision for defendant's most recent prior felony ten or more years before defendant's current crime. Williams v. State, 418 P.3d 870 (Alaska Ct. App. 2018), reaff'd, 440 P.3d 399 (Alaska Ct. App. 2019).

Right to jury trial on application of certain statutory aggravators to enhance sentence. —

In considering defendant’s right to a jury trial regarding imposition of enhanced sentence based on aggravating factors set forth in AS 12.55.155(c)(7) and (c)(20), so long as the fact of the prior felony conviction was not disputed, it was purely a question of law whether a defendant’s prior felony was a more serious class of offense than the defendant’s current felony, and a sentencing judge could lawfully make this determination, so the defendant had no right to a jury trial on the application of aggravator (c)(7). Snelling v. State, 123 P.3d 1096 (Alaska Ct. App. 2005).

Motion to correct sentence was properly denied because any Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), right to jury trial error was rendered harmless by the trial court’s finding of an aggravator under AS 12.55.155(c)(20) , based on defendant’s stipulation, because the underlying facts were not in dispute, that he was on felony parole at time of his felony driving under the influence offense under AS 28.35.030(n) . Woodbury v. State, 151 P.3d 528 (Alaska Ct. App. 2007).

Effect of 1982 amendment to paragraph (a)(2). —

The 1982 amendments, which substituted “similar” for “substantially identical” in (a)(2) and amended the section to focus on past rather than current law, constituted a change rather than clarification of existing law. Wasson v. State, 652 P.2d 117 (Alaska Ct. App. 1982).

Two prior convictions out of same criminal episode. —

Superior court committed legal error when it found that defendant had three prior felonies for purposes of presumptive sentencing, where two prior convictions, for burglary and theft committed during a single criminal episode, should have been deemed a single prior conviction for sentencing purposes under subparagraph (a)(1)(C). Andrews v. State, 967 P.2d 1016 (Alaska Ct. App. 1998).

Sentence of five years imprisonment with two years suspended imposed on defendant, convicted of fourth-degree controlled substance misconduct, was remanded in part because superior court failed to consider whether defendant’s prior felony convictions for first-degree robbery and first-degree assault had to be treated as one felony; record showed that both the state and defendant’s counsel believed that defendant should have been sentenced as a second felony offender, however superior court decided that defendant should be sentenced as a third felony offender without seeking the input of the parties and without addressing the issue of whether there was a substantial change in the nature of the criminal objective during the events that led to defendant’s prior felony convictions. Hoekzema v. State, 193 P.3d 765 (Alaska Ct. App. 2008).

Comparison of former and current statutes. —

It was the elements of the offense as established in the statute under which the defendant was convicted which had to be compared with the current Alaska statute in determining whether the two offenses had substantially identical elements. Walsh v. State, 677 P.2d 912 (Alaska Ct. App. 1984).

Prior conviction under former law. —

Under paragraph (a)(2) of this section, a criminal conviction entered under prior Alaska law or under the law of another jurisdiction may be deemed to be a prior felony conviction for presumptive sentencing purposes only if the offense for which the prior conviction was entered had elements substantially identical to those of a felony under current Alaska law. Lee v. State, 673 P.2d 892 (Alaska Ct. App. 1983); Garroutte v. State, 683 P.2d 262 (Alaska Ct. App. 1984).

The trial court erred in using a violation in former grand larceny statute as a prior felony to enhance defendant’s sentence for burglary in the first degree since under the criminal code in effect since January 1, 1980, the prior offense would be a misdemeanor. Wasson v. State, 652 P.2d 117 (Alaska Ct. App. 1982).

Since the elements of the receiving and concealing statute under which defendant was convicted in 1972 did not require proof of value, that offense differed substantially from current law and did not qualify as a prior felony conviction. Garroutte v. State, 683 P.2d 262 (Alaska Ct. App. 1984).

Prior conviction out of state. —

Felony conviction in Missouri was a prior conviction under subsection (a)(2) where defendant at age 17 was treated as an adult even though defendant would have been treated as a juvenile under Alaska law. McManners v. State, 650 P.2d 414 (Alaska Ct. App. 1982).

Paragraph (a)(2) of this section has consistently been interpreted to apply to the statute establishing the elements of the offense for which the defendant was previously convicted, which was an Oregon statute that is a class C felony in Oregon as it is in Alaska. Thus, it was not error to consider the previous conviction a felony even though the defendant was sentenced under an Oregon statute providing for the reduction of certain felonies to misdemeanors. Wells v. State, 687 P.2d 346 (Alaska Ct. App. 1984) (decided prior to the 1982 amendment).

A 1983 Oklahoma conviction for a felony escape while on work release from a Department of Corrections treatment facility was a prior conviction for purposes of presumptive sentencing, for the Oklahoma escape statute had elements “substantially similar” to AS 11.56.310 , a class B felony. Martin v. State, 704 P.2d 1341 (Alaska Ct. App. 1985).

The legislature intended to treat convictions under prior codes and convictions under the codes of sister states identically, allowing their use as prior convictions only where their elements were substantially identical (now “similar”) to the elements of crimes established in the current code. Wasson v. State, 652 P.2d 117 (Alaska Ct. App. 1982).

Conviction in New York for larceny was not a prior conviction for presumptive sentencing purposes where the New York statute involved theft of $50 — $500 and the current Alaska law required theft from $500 — $25,000. Walsh v. State, 677 P.2d 912 (Alaska Ct. App. 1984).

Defendant’s Oregon convictions for “unauthorized use of a vehicle” did not constitute a prior felony for presumptive sentencing purposes under this section, because the Oregon and Alaska offenses did not have similar elements, in view of the fact that the Oregon statute did not require the state to prove a prior offense while the Alaska statute did have such a requirement. Harlow v. State, 820 P.2d 307 (Alaska Ct. App. 1991).

Insofar as paragraph (a)(2) addresses out-of-state adjudications, it sets forth two prerequisites to the finding of a prior felony conviction for presumptive sentencing purposes: first, there must be “a conviction in . . . another jurisdiction”; and, second, that conviction must involve “an offense having elements similar to those of a felony defined as such under Alaska law”, and the out-of-state law must govern the first prerequisite. Mancini v. State, 904 P.2d 430 (Alaska Ct. App. 1995).

Where, even though he was sentenced as a youthful adult offender, defendant’s California conviction of burglary was regarded as a criminal conviction by that state, and the burglary involved “elements similar to those of a felony defined as such under Alaska law”, the prerequisites to the finding of a felony conviction under paragraph (a)(2) were met. Mancini v. State, 904 P.2d 430 (Alaska Ct. App. 1995).

The elements of the California statute under which the defendant was convicted for lewd or lascivious acts upon a child were not sufficiently similar to the Alaska offense of attempted sexual abuse of a minor in the first degree to qualify as a prior felony for presumptive sentencing purposes. Scroggins v. State, 951 P.2d 442 (Alaska Ct. App. 1998).

Because the elements of two Oregon criminal offenses for second-degree robbery and first-degree burglary were similar to the elements of Alaska felonies, they were considered to be “prior felony convictions” for purposes of presumptive sentencing under AS 12.55.125 . State v. Delagarza, 8 P.3d 362 (Alaska Ct. App. 2000).

Court, in sentencing defendant in defendant’s robbery case, did not err by failing to merge defendant’s foreign convictions, as the convictions for burglary and assault did not qualify as a single conviction. Butts v. State, 53 P.3d 609 (Alaska Ct. App. 2002).

Regardless of whether another’s state’s definition of felony driving while intoxicated (DWI) is sufficiently “similar” to Alaska’s definition to qualify as a prior felony conviction under subparagraph (a)(1)(B) of this section, Alaska’s longstanding policy that a defendant’s status as a repeat offender hinges on the date of the defendant’s prior conviction obliges a court to refuse to recognize a felony DWI conviction from another state if, given the dates of the defendant’s out-of-state offenses and resulting convictions, the defendant could not have been convicted of felony DWI if he had accumulated the same criminal history in Alaska; because Arkansas law focused on the dates of the conduct that led to prior convictions, defendant’s Arkansas conviction could not be deemed a prior felony conviction for presumptive sentencing purposes under the definition contained in subparagraph (a)(1)(B) of this section. Smith v. State, 83 P.3d 12 (Alaska Ct. App. 2004).

Defendant’s burglary convictions in Illinois were not prior felony convictions in Alaska because the Illinois definition of burglary was not sufficiently similar to Alaska’s definition of burglary to meet the test set forth in subsection (a)(1)(B); defendant’s Illinois convictions for burglary and attempted burglary did not qualify as “prior felony convictions” for presumptive sentencing purposes. Timothy v. State, 90 P.3d 177 (Alaska Ct. App. 2004).

In sentencing defendant as a third felony offender, the trial court did not commit error when it relied on Louisiana Department of Public Safety and Corrections documents to establish defendant’s prior convictions. Johnson v. State, — P.3d — (Alaska Ct. App. Apr. 18, 2012) (memorandum decision).

Trial court did not err by ruling that defendant’s drug possession conviction from Oregon was a “felony” for purposes of AS 12.55.155(c)(7) because if possession of a Schedule I controlled substance could be punished by imprisonment for one year or more under Alaska law, the equivalent Oregon offense was a “felony” for presumptive sentencing purposes even though individual defendants might receive sentences of less than one year. Jacobson v. State, — P.3d — (Alaska Ct. App. Sept. 12, 2012) (memorandum decision).

Superior court properly sentenced defendant as a second felony offender where the gravamen of both the Colorado and the Alaska offenses, Colo. Rev. Stat. § 18-18-415 and AS 12.55.145(a)(1)(B) , was the use of deception, fraud, or forgery to obtain controlled substances, and the fact that the Colorado statute also spoke of direct introduction of a controlled substance into a person's body did not make the Colorado statute dissimilar to Alaska's corresponding statute. Grim v. State, — P.3d — (Alaska Ct. App. Feb. 3, 2016) (memorandum decision).

Superior court properly sentenced defendant as a second felony offender because a felony driving under the influence conviction from Montana was a "prior felony conviction"; the elements of felony DUI as defined under Montana law are sufficiently similar to the elements of felony DUI as defined in Alaska, even though, in Montana, a defendant has no right to demand a jury trial on the question of their prior convictions. Brown v. State, 425 P.3d 216 (Alaska Ct. App. 2018) (memorandum decision).

Fact that, in Alaska, a defendant's prior convictions are normally not litigated to the jury, even though felony driving under the influence (DUI) defendants have a right to jury trial on this element, suggests that the legislature did not intend subsection (a)(1)(B) to exclude felony DUI convictions from Montana and other states where a defendant's prior convictions are, by law, litigated to the sentencing judge. Brown v. State, 425 P.3d 216 (Alaska Ct. App. 2018).

Classification of out-of-state offense irrelevant. —

If the elements of a defendant’s out-of-state offense are similar to the elements of an Alaska felony, it does not matter whether the other state classifies the defendant’s crime as a felony or a misdemeanor, but the court must look to Alaska’s classification of the defendant’s offense to determine how the defendant’s prior conviction will be treated in Alaska sentencing proceedings. Borja v. State, 886 P.2d 1311 (Alaska Ct. App. 1994).

All prior felony convictions counted unless exempted. —

Read together, subparagraph (a)(1)(A) of this section and the definitions in AS 12.55.185 establish a framework in which all prior felony convictions are counted toward establishment of a defendant’s status as a second or third felony offender, unless one or more of the convictions is expressly exempted by subparagraph (a)(1)(A). Gilley v. State, 955 P.2d 927 (Alaska Ct. App. 1998).

Subparagraph (a)(1)(A) of this section did not provide the trial court with discretion to ignore one of a defendant’s two prior felony convictions and sentence him as a second felony offender. Gilley v. State, 955 P.2d 927 (Alaska Ct. App. 1998).

Defendant’s sentence was illegal because he was sentenced as a second felony offender, but defendant had been convicted of four felonies, and the most recent prior felony conviction occurred less than ten years before the current conviction, so the trial court had no discretion not to consider all of defendant’s prior felony convictions. Defendant should have been sentenced as a third felony offender. Russell v. State, — P.3d — (Alaska Ct. App. Jan. 15, 2014) (memorandum decision).

Presumptive sentence convictions must be consecutive. —

Under the plain terms of paragraph (a)(3) and AS 12.55.185 , one conviction must precede the next before presumptive sentencing can apply. State v. Rastopsoff, 659 P.2d 630 (Alaska Ct. App. 1983).

Where defendant’s three separate criminal episodes occurred in close proximity and his convictions were entered after all of the offenses had been committed, he cannot be deemed to be a second felony offender under AS 12.55.125 and AS 12.55.185 . State v. Rastopsoff, 659 P.2d 630 (Alaska Ct. App. 1983).

Sexual felony sentencing. —

When a court sentences a defendant for a sexual felony, the court must know both the number of a defendant's prior felonies and the number of a defendant's prior sexual felonies, so the rules contained in AS 12.55.145(a)(4) are intended to supplement, rather than replace, the rules contained in AS 12.55.145(a)(1) , as AS 12.55.145(a)(1) provides the baseline rules for counting the number of a defendant's qualifying prior felony convictions, and AS 12.55.145(a)(4) provides the rules for counting the special sub-category of "sexual felonies." Williams v. State, 418 P.3d 870 (Alaska Ct. App. 2018), reaff'd, 440 P.3d 399 (Alaska Ct. App. 2019).

Prior convictions not same criminal episode. —

Given the passage of time and the lack of connection between the two offenses, defendant could not establish that his convictions should have merged into a single conviction for purposes of presumptive sentencing. Haynes v. State, 15 P.3d 1088 (Alaska Ct. App. 2001).

Defendant's prior acts of sexual abuse were not part of a single, continuous criminal episode because defendant's sexual offenses not only involved two different victims, but also occurred on two different days, and involved two different acts of abuse, sexual penetration and sexual contact. Henry v. State, — P.3d — (Alaska Ct. App. Nov. 18, 2020) (memorandum decision).

Forgery of two checks on same day involved two separate criminal episodes and convictions based on those episodes were not convictions arising out of a single, continuous criminal episode to be treated as a single conviction for purposes of considering prior convictions in imposing sentence. Linn v. State, 658 P.2d 150 (Alaska Ct. App. 1983).

Burglaries of three different residences owned by three separate victims are separate offenses. Lacquement v. State, 644 P.2d 856 (Alaska Ct. App. 1982).

Unlawful claim of employment benefits. —

Where defendant was convicted of theft arising out of unlawful claim of unemployment benefits for two years, trial court properly sentenced defendant as a second offender because the series of thefts met the monetary requirement for felony theft long before the 10-year period expired. McDole v. State, 121 P.3d 166 (Alaska Ct. App. 2005).

Sufficient evidence of prior conviction. —

An authenticated copy of a foreign docket abstract constituted sufficient evidence of a prior conviction. Gant v. State, 712 P.2d 906 (Alaska Ct. App. 1986).

Failure to prove prior convictions. —

When a party has had insufficient time to comply with the notice requirements relating to proof of prior convictions or aggravating and mitigating factors, the appropriate remedy should normally be a continuance of the sentencing proceedings; failure to consider prior crimes for presumptive sentencing purposes can be condoned only in those cases where the state, after exercising due diligence, is unable to meet the statutory requirements for proof of a prior conviction. Kelly v. State, 663 P.2d 967 (Alaska Ct. App. 1983).

When a mandatory minimum sentence is prescribed for a repeat offender, it would be inappropriate for the court to sentence the defendant as a first offender merely because the state has failed to obtain proof of the prior conviction in time for sentencing. The normal recourse under such circumstance is a continuance. Stewart v. State, 763 P.2d 515 (Alaska Ct. App. 1988).

New sentencing hearing not required on remand. —

Although the judge improperly sentenced defendant to a presumptive four-year term and a remand for imposition of a nonpresumptive sentence was necessary, a new sentencing hearing would not be required upon remand since remand for such hearing would merely result in reimposition of a nonpresumptive four-year terms. Garroutte v. State, 683 P.2d 262 (Alaska Ct. App. 1984).

Sentence upheld. —

In a case involving sexual assault of a minor, a trial judge did not err by sentencing defendant to an active term of imprisonment beyond the presumptive term for first felony offenders; the judge focused specifically on the need for community condemnation and isolation. The judge did not view defendant's drinking as mitigating her conduct, finding instead that she had “very guarded” prospects for rehabilitation given her significant substance abuse history and past failures at treatment; the judge also focused on the long-term nature of the sexual abuse and the “untold harm” it had caused, and would continue to cause, defendant's son. Trout v. State, 377 P.3d 296 (Alaska Ct. App. 2016).

Applied in

Bloomstrand v. State, 656 P.2d 584 (Alaska Ct. App. 1982); Fry v. State, 655 P.2d 789 (Alaska Ct. App. 1983); Huf v. State, 675 P.2d 268 (Alaska Ct. App. 1984); Maldonado v. State, 676 P.2d 1093 (Alaska Ct. App. 1984); Jacobs v. State, 953 P.2d 527 (Alaska Ct. App. 1998); Eberhardt v. State, 275 P.3d 560 (Alaska Ct. App. 2012).

Quoted in

Wright v. State, 656 P.2d 1226 (Alaska Ct. App. 1983); Morgan v. State, 661 P.2d 1102 (Alaska Ct. App. 1983); Sawyer v. State, 663 P.2d 230 (Alaska Ct. App. 1983); Ortberg v. State, 751 P.2d 1368 (Alaska Ct. App. 1988); McCombs v. State, 754 P.2d 1129 (Alaska Ct. App. 1988).

Stated in

Foley v. State, 9 P.3d 1038 (Alaska Ct. App. 2000).

Cited in

Koteles v. State, 660 P.2d 1199 (Alaska Ct. App. 1983); McCombs v. State, 754 P.2d 1129 (Alaska Ct. App. 1988); Hale v. State, 764 P.2d 313 (Alaska Ct. App. 1988); Wiley v. State, 822 P.2d 940 (Alaska Ct. App. 1991); Dawson v. State, 977 P.2d 121 (Alaska Ct. App. 1999); Brockway v. State, 37 P.3d 427 (Alaska Ct. App. 2001); Doe v. Dep't of Public Safety, 92 P.3d 398 (Alaska 2004); Brodigan v. State, 95 P.3d 940 (Alaska Ct. App. 2004); Netling v. State, 145 P.3d 609 (Alaska Ct. App. 2006).

Collateral references. —

Chronological or procedural sequence of former convictions as affecting enhancement of penalty for subsequent offense under habitual criminal statute. 24 ALR4th 1247.

Pardoned or expunged conviction as “prior offense” under state statute or regulation enhancing punishment for subsequent conviction. 97 ALR5th 293.

Sec. 12.55.147. Fingerprints at time of sentencing.

When a defendant is convicted of a felony by a court of this state, the defendant’s fingerprints shall be placed on the judgment of conviction in open court, on the record, at the time of sentencing. The defendant and the person administering the fingerprinting shall sign their names under the fingerprints.

History. (§ 35 ch 143 SLA 1982)

Cross references. —

Original Code Provision — None.

Revisor’s notes. —

Enacted as AS 12.55.145(f) . Renumbered in 1982.

Sec. 12.55.148. Judgment for sex offenses or child kidnappings.

  1. When a defendant is convicted of a sex offense or child kidnapping by a court of this state, the written judgment must set out the requirements of AS 12.63.010 and, if it can be determined by the court, whether that conviction will require the offender or kidnapper to register for life or a lesser period under AS 12.63.
  2. In this section, “sex offense” and “child kidnapping” have the meanings given in AS 12.63.100 .

History. (§ 3 ch 41 SLA 1994; am § 5 ch 106 SLA 1998)

Notes to Decisions

Constitutionality. —

The statutory design of the Registration Act, ch. 41, SLA 1994, which requires “sex offenders” to register with police authorities, displays a purpose to regulate present circumstances, not to punish prior conduct. Smith v. Doe, 538 U.S. 84, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (U.S. 2003).

Sec. 12.55.151. Court may not reduce or mitigate punishment based on victim’s failure to appear or testify.

Notwithstanding another provision of law, when sentencing a defendant, a court may not mitigate or reduce the punishment of the defendant based on, or otherwise consider as a mitigating factor or reason to impose a lesser punishment, the failure of the crime victim to appear or testify.

History. (§ 13 ch 92 SLA 2001)

Sec. 12.55.155. Factors in aggravation and mitigation.

  1. Except as provided in (e) of this section, if a defendant is convicted of an offense and is subject to sentencing under AS 12.55.125(c) , (d), (e), or (i) and
    1. the low end of the presumptive range is four years or less, the court may impose any sentence below the presumptive range for factors in mitigation or may increase the active term of imprisonment up to the maximum term of imprisonment for factors in aggravation;
    2. the low end of the presumptive range is more than four years, the court may impose a sentence below the presumptive range as long as the active term of imprisonment is not less than 50 percent of the low end of the presumptive range for factors in mitigation or may increase the active term of imprisonment up to the maximum term of imprisonment for factors in aggravation.
  2. Sentences under this section that are outside of the presumptive ranges set out in AS 12.55.125 shall be based on the totality of the aggravating and mitigating factors set out in (c) and (d) of this section.
  3. The following factors shall be considered by the sentencing court if proven in accordance with this section, and may allow imposition of a sentence above the presumptive range set out in AS 12.55.125 :
    1. a person, other than an accomplice, sustained physical injury as a direct result of the defendant’s conduct;
    2. the defendant’s conduct during the commission of the offense manifested deliberate cruelty to another person;
    3. the defendant was the leader of a group of three or more persons who participated in the offense;
    4. the defendant employed a dangerous instrument in furtherance of the offense;
    5. the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, disability, ill health, homelessness, consumption of alcohol or drugs, or extreme youth or was for any other reason substantially incapable of exercising normal physical or mental powers of resistance;
    6. the defendant’s conduct created a risk of imminent physical injury to three or more persons, other than accomplices;
    7. a prior felony conviction considered for the purpose of invoking a presumptive range under this chapter was of a more serious class of offense than the present offense;
    8. the defendant’s prior criminal history includes conduct involving aggravated assaultive behavior, repeated instances of assaultive behavior, repeated instances of cruelty to animals proscribed under AS 11.61.140(a)(1) and (3) — (5), or a combination of assaultive behavior and cruelty to animals proscribed under AS 11.61.140(a)(1) and (3) — (5); in this paragraph, “aggravated assaultive behavior” means assault that is a felony under AS 11.41, or a similar provision in another jurisdiction;
    9. the defendant knew that the offense involved more than one victim;
    10. the conduct constituting the offense was among the most serious conduct included in the definition of the offense;
    11. the defendant committed the offense under an agreement that the defendant either pay or be paid for the commission of the offense, and the pecuniary incentive was beyond that inherent in the offense itself;
    12. the defendant was on release under AS 12.30 for another felony charge or conviction or for a misdemeanor charge or conviction having assault as a necessary element;
    13. the defendant knowingly directed the conduct constituting the offense at an active officer of the court or at an active or former judicial officer, prosecuting attorney, law enforcement officer, correctional employee, firefighter, emergency medical technician, paramedic, ambulance attendant, or other emergency responder during or because of the exercise of official duties;
    14. the defendant was a member of an organized group of five or more persons, and the offense was committed to further the criminal objectives of the group;
    15. the defendant has three or more prior felony convictions;
    16. the defendant’s criminal conduct was designed to obtain substantial pecuniary gain and the risk of prosecution and punishment for the conduct is slight;
    17. the offense was one of a continuing series of criminal offenses committed in furtherance of illegal business activities from which the defendant derives a major portion of the defendant’s income;
    18. the offense was a felony
      1. specified in AS 11.41 and was committed against a spouse, a former spouse, or a member of the social unit made up of those living together in the same dwelling as the defendant;
      2. specified in AS 11.41.410 — 11.41.458 and the defendant has engaged in the same or other conduct prohibited by a provision of AS 11.41.410 — 11.41.460 involving the same or another victim;
      3. specified in AS 11.41 that is a crime involving domestic violence and was committed in the physical presence or hearing of a child under 16 years of age who was, at the time of the offense, living within the residence of the victim, the residence of the perpetrator, or the residence where the crime involving domestic violence occurred;
      4. specified in AS 11.41 and was committed against a person with whom the defendant has a dating relationship or with whom the defendant has engaged in a sexual relationship; or
      5. specified in AS 11.41.434 — 11.41.458 or AS 11.61.128 and the defendant was 10 or more years older than the victim;
    19. the defendant’s prior criminal history includes an adjudication as a delinquent for conduct that would have been a felony if committed by an adult;
    20. the defendant was on furlough under AS 33.30 or on parole or probation for another felony charge or conviction that would be considered a prior felony conviction under AS 12.55.145(a)(1)(B) ;
    21. the defendant has a criminal history of repeated instances of conduct violative of criminal laws, whether punishable as felonies or misdemeanors, similar in nature to the offense for which the defendant is being sentenced under this section;
    22. the defendant knowingly directed the conduct constituting the offense at a victim because of that person’s race, sex, color, creed, physical or mental disability, ancestry, or national origin;
    23. the defendant is convicted of an offense specified in AS 11.71 and
      1. the offense involved the delivery of a controlled substance under circumstances manifesting an intent to distribute the substance as part of a commercial enterprise; or
      2. at the time of the conduct resulting in the conviction, the defendant was caring for or assisting in the care of a child under 10 years of age;
    24. the defendant is convicted of an offense specified in AS 11.71 and the offense involved the transportation of controlled substances into the state;
    25. the defendant is convicted of an offense specified in AS 11.71 and the offense involved large quantities of a controlled substance;
    26. the defendant is convicted of an offense specified in AS 11.71 and the offense involved the distribution of a controlled substance that had been adulterated with a toxic substance;
    27. the defendant, being 18 years of age or older,
      1. is legally accountable under AS 11.16.110 (2) for the conduct of a person who, at the time the offense was committed, was under 18 years of age and at least three years younger than the defendant; or
      2. is aided or abetted in planning or committing the offense by a person who, at the time the offense was committed, was under 18 years of age and at least three years younger than the defendant;
    28. the victim of the offense is a person who provided testimony or evidence related to a prior offense committed by the defendant;
    29. the defendant committed the offense for the benefit of, at the direction of, or in association with a criminal street gang;
    30. the defendant is convicted of an offense specified in AS 11.41.410 — 11.41.455 , and the defendant knowingly supplied alcohol or a controlled substance to the victim in furtherance of the offense with the intent to make the victim incapacitated; in this paragraph, “incapacitated” has the meaning given in AS 11.41.470 ;
    31. the defendant’s prior criminal history includes convictions for five or more crimes in this or another jurisdiction that are class A misdemeanors under the law of this state, or having elements similar to a class A misdemeanor; two or more convictions arising out of a single continuous episode are considered a single conviction; however, an offense is not a part of a continuous episode if committed while attempting to escape or resist arrest or if it is an assault on a uniformed or otherwise clearly identified peace officer or correctional employee; notice and denial of convictions are governed by AS 12.55.145(b) — (d);
    32. the offense is a violation of AS 11.41 or AS 11.46.400 and the offense occurred on school grounds, on a school bus, at a school-sponsored event, or in the administrative offices of a school district if students are educated at that office; in this paragraph,
      1. “school bus” has the meaning given in AS 11.71.900 ;
      2. “school district” has the meaning given in AS 47.07.063 ;
      3. “school grounds” has the meaning given in AS 11.71.900 ;
    33. the offense was a felony specified in AS 11.41.410 — 11.41.455 , the defendant had been previously diagnosed as having or having tested positive for HIV or AIDS, and the offense either (A) involved penetration, or (B) exposed the victim to a risk or a fear that the offense could result in the transmission of HIV or AIDS; in this paragraph, “HIV” and “AIDS” have the meanings given in AS 18.15.310 ;
    34. the defendant committed the offense on, or to affect persons or property on, the premises of a recognized shelter or facility providing services to victims of domestic violence or sexual assault;
    35. the defendant knowingly directed the conduct constituting the offense at a victim because that person was 65 years of age or older;
    36. the defendant committed the offense at a health care facility and knowingly directed the conduct constituting the offense at a medical professional during or because of the medical professional’s exercise of professional duties; in this paragraph,
      1. “health care facility” has the meaning given in AS 18.07.111 ;
      2. “medical professional” has the meaning given in AS 12.55.135(k) ;
    37. the defendant knowingly caused the victim to become unconscious by means of a dangerous instrument; in this paragraph, “dangerous instrument” has the meaning given in AS 11.81.900(b)(15)(B) .
  4. The following factors shall be considered by the sentencing court if proven in accordance with this section, and may allow imposition of a sentence below the presumptive range set out in AS 12.55.125 :
    1. the offense was principally accomplished by another person, and the defendant manifested extreme caution or sincere concern for the safety or well-being of the victim;
    2. the defendant, although an accomplice, played only a minor role in the commission of the offense;
    3. the defendant committed the offense under some degree of duress, coercion, threat, or compulsion insufficient to constitute a complete defense, but that significantly affected the defendant’s conduct;
    4. the conduct of a youthful defendant was substantially influenced by another person more mature than the defendant;
    5. the conduct of an aged defendant was substantially a product of physical or mental infirmities resulting from the defendant’s age;
    6. in a conviction for assault under AS 11.41.200 — 11.41.220 , the defendant acted with serious provocation from the victim;
    7. except in the case of a crime defined by AS 11.41.410 — 11.41.470 , the victim provoked the crime to a significant degree;
    8. before the defendant knew that the criminal conduct had been discovered, the defendant fully compensated or made a good faith effort to fully compensate the victim of the defendant’s criminal conduct for any damage or injury sustained;
    9. the conduct constituting the offense was among the least serious conduct included in the definition of the offense;
    10. the defendant was motivated to commit the offense solely by an overwhelming compulsion to provide for emergency necessities for the defendant’s immediate family;
    11. after commission of the offense for which the defendant is being sentenced, the defendant assisted authorities to detect, apprehend, or prosecute other persons who committed an offense;
    12. the facts surrounding the commission of the offense and any previous offenses by the defendant establish that the harm caused by the defendant’s conduct is consistently minor and inconsistent with the imposition of a substantial period of imprisonment;
    13. the defendant is convicted of an offense specified in AS 11.71 and the offense involved small quantities of a controlled substance;
    14. the defendant is convicted of an offense specified in AS 11.71 and the offense involved the distribution of a controlled substance, other than a schedule IA controlled substance, to a personal acquaintance who is 19 years of age or older for no profit;
    15. the defendant is convicted of an offense specified in AS 11.71 and the offense involved the possession of a small amount of a controlled substance for personal use in the defendant’s home;
    16. in a conviction for assault or attempted assault or for homicide or attempted homicide, the defendant acted in response to domestic violence perpetrated by the victim against the defendant and the domestic violence consisted of aggravated or repeated instances of assaultive behavior;
    17. except in the case of an offense defined by AS 11.41 or AS 11.46.400 , the defendant has been convicted of a class B or C felony, and, at the time of sentencing, has successfully completed a court-ordered treatment program as defined in AS 28.35.028 that was begun after the offense was committed;
    18. except in the case of an offense defined under AS 11.41 or AS 11.46.400 or a defendant who has previously been convicted of a felony, the defendant committed the offense while suffering from a mental disease or defect as defined in AS 12.47.130 that was insufficient to constitute a complete defense but that significantly affected the defendant’s conduct;
    19. the defendant is convicted of an offense under AS 11.71, and the defendant sought medical assistance for another person who was experiencing a drug overdose contemporaneously with the commission of the offense;
    20. except in the case of an offense defined under AS 11.41 or AS 11.46.400, the defendant committed the offense while suffering from a condition diagnosed
      1. as a fetal alcohol spectrum disorder, the fetal alcohol spectrum disorder substantially impaired the defendant’s judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life, and the fetal alcohol spectrum disorder, though insufficient to constitute a complete defense, significantly affected the defendant’s conduct; in this subparagraph, “fetal alcohol spectrum disorder” means a condition of impaired brain function in the range of permanent birth defects caused by maternal consumption of alcohol during pregnancy; or
      2. as combat-related post-traumatic stress disorder or combat-related traumatic brain injury, the combat-related post-traumatic stress disorder or combat-related traumatic brain injury substantially impaired the defendant’s judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life, and the combat-related post-traumatic stress disorder or combat-related traumatic brain injury, though insufficient to constitute a complete defense, significantly affected the defendant’s conduct; in this subparagraph, “combat-related post-traumatic stress disorder or combat-related traumatic brain injury” means post-traumatic stress disorder or traumatic brain injury resulting from combat with an enemy of the United States in the line of duty while on active duty as a member of the armed forces of the United States; nothing in this subparagraph is intended to limit the application of (18) of this subsection;
    21. the defendant, as a condition of release ordered by the court, successfully completed an alcohol and substance abuse monitoring program established under AS 47.38.020 .
  5. If a factor in aggravation is a necessary element of the present offense, or requires the imposition of a sentence within the presumptive range under AS 12.55.125(c)(2) , that factor may not be used to impose a sentence above the high end of the presumptive range. If a factor in mitigation is raised at trial as a defense reducing the offense charged to a lesser included offense, that factor may not be used to impose a sentence below the low end of the presumptive range.
  6. If the state seeks to establish a factor in aggravation at sentencing
    1. under (c)(7), (8), (12), (15), (18)(B), (19), (20), (21), or (31) of this section, or if the defendant seeks to establish a factor in mitigation at sentencing, written notice must be served on the opposing party and filed with the court not later than 10 days before the date set for imposition of sentence; the factors in aggravation listed in this paragraph and factors in mitigation must be established by clear and convincing evidence before the court sitting without a jury; all findings must be set out with specificity;
    2. other than one listed in (1) of this subsection, the factor shall be presented to a trial jury under procedures set by the court, unless the defendant waives trial by jury, stipulates to the existence of the factor, or consents to have the factor proven under procedures set out in (1) of this subsection; a factor in aggravation presented to a jury is established if proved beyond a reasonable doubt; written notice of the intent to establish a factor in aggravation must be served on the defendant and filed with the court
      1. 20 days before trial, or at another time specified by the court;
      2. within 48 hours, or at a time specified by the court, if the court instructs the jury about the option to return a verdict for a lesser included offense; or
      3. five days before entering a plea that results in a finding of guilt, or at another time specified by the court.
  7. Voluntary alcohol or other drug intoxication or chronic alcoholism or other drug addiction may not be considered an aggravating or mitigating factor.
  8. If one of the aggravating factors in (c) of this section is established as provided in (f)(1) and (2) of this section, the court may increase the term of imprisonment up to the maximum term of imprisonment. Any additional aggravating factor may then be established by clear and convincing evidence by the court sitting without a jury, including an aggravating factor that the jury has found not to have been established beyond a reasonable doubt.
  9. In this section, “serious provocation” has the meaning given in AS 11.41.115(f) .

History. (§ 12 ch 166 SLA 1978; am §§ 39 — 41 ch 102 SLA 1980; am §§ 19, 20 ch 45 SLA 1982; am §§ 36, 38, 39, 42 ch 143 SLA 1982; am §§ 6, 7 ch 92 SLA 1983; am § 19 ch 37 SLA 1986; am § 4 ch 69 SLA 1987; am § 1 ch 83 SLA 1987; am § 7 ch 66 SLA 1988; am § 1 ch 10 SLA 1990; am § 13 ch 21 SLA 1991; am § 5 ch 64 SLA 1991; am § 26 ch 79 SLA 1992; am § 1 ch 55 SLA 1995; am § 4 ch 6 SLA 1996; am § 12 ch 7 SLA 1996; am § 9 ch 30 SLA 1996; am § 9 ch 60 SLA 1996; am § 14 ch 81 SLA 1998; am § 7 ch 99 SLA 1998; am § 1 ch 67 SLA 2000; am § 2 ch 23 SLA 2002; am § 7 ch 90 SLA 2003; am §§ 16 — 21 ch 2 SLA 2005; am §§ 2, 3 ch 66 SLA 2005; am § 1 ch 56 SLA 2006; am § 2 ch 88 SLA 2006; am § 1 ch 44 SLA 2007; am § 1 ch 58 SLA 2008; am §§ 23, 24 ch 75 SLA 2008; am § 1 ch 88 SLA 2008; am §§ 15, 16 ch 18 SLA 2010; am § 19 ch 19 SLA 2010; am § 5 ch 79 SLA 2010; am § 1 ch 54 SLA 2012; am § 13 ch 70 SLA 2012; am § 5 ch 71 SLA 2012; am § 2 ch 56 SLA 2014; am § 25 ch 83 SLA 2014; am § 4 ch 20 SLA 2015; am § 17 ch 22 SLA 2018; am § 8 ch 11 SLA 2019)

Cross references. —

Sentences of imprisonment for felonies — AS 12.55.125

Extraordinary circumstances — AS 12.55.165

Three-judge sentencing panel — AS 12.55.175

Definition of “physical injury,” “dangerous instrument” —AS 11.81.900(b)

Intoxication as a defense — AS 11.81.630

Revisor's notes. —

Paragraphs (23)-(26) of subsection (c) were enacted as (19)-(22). Renumbered in 1982.

Paragraph (c)(32) was enacted as (c)(31); renumbered in 2005.

In 2007, (d)(8) of this section was renumbered as (d)(9) and (d)(9) was renumbered as (d)(8).

Subsection (h) was enacted as (i), and relettered in 2012.

Cross references. —

For considerations in imposing sentence, see AS 12.55.005 and note to AS 12.55.120 .

For effect of subsection (h) on Rule 32.1, Alaska Rules of Civil Procedure, see § 16, ch. 70, SLA 2012 in the 2012 Temporary and Special Acts.

For provision relating to applicability of (c)(36), see sec. 30(c), ch. 22, SLA 2018, in the 2018 Temporary and Special Acts.

Effect of amendments. —

The first 2010 amendment, effective July 1, 2010, in (c)(5), added “consumption of alcohol or drugs,” following “ill health, homelessness,”, in (c)(18), added (D) and (E), and made a stylistic change.

The second 2010 amendment, effective July 1, 2010, in (c)(12), substituted “AS 12.30” for “AS 12.30.020 or 12.30.040 ”.

The third 2010 amendment, effective September 13, 2010, in (c)(8), added “, repeated instances of cruelty to animals proscribed under AS 11.61.140(a)(1) and (3) — (5), or a combination of assaultive behavior and cruelty to animals proscribed under AS 11.61.140(a)(1) and (3) — (5)” following “repeated instances of assaultive behavior”, and made related changes.

The first 2012 amendment, effective September 19, 2012, added (d)(20), and made a related stylistic change.

The second 2012 amendment, effective July 1, 2012, added (i) [now (h)].

The third 2012 amendment, effective July 1, 2012, added (c)(35).

The first 2014 amendment, effective July 1, 2014, in (c)(31), substituted “an assault on a uniformed or otherwise clearly identified peace officer or correctional employee” for “an assault upon a uniformed or otherwise clearly identified peace officer”.

The second 2014 amendment, effective July 17, 2014, added (d)(20)(B), and made related changes.

The 2015 amendment, effective August 12, 2015, added (d)(21).

The 2018 amendment, effective September 12, 2018, added (c)(36), and made a related change.

The 2019 amendment, effective October 17, 2019, added (c)(37), and made a related change.

Editor's notes. —

Section 21(a), ch. 18, SLA 2010, provides that the 2010 amendment of paragraph (c)(5) and the enactment of subparagraphs (c)(18)(D) and (E) of this section apply to offenses committed on or after July 1, 2010.

Sec. 6, ch. 79, SLA 2010, provides that the changes to the aggravating factors under (c)(8) of this section made by sec. 5, ch. 79, SLA 2010, “apply to offenses occurring on or after September 13, 2010.”

In 2011, in subdivision (f)(2), “waives trial” was substituted for “waives trail” to correct a manifest error in ch. 2, SLA 2005.

Section 49, ch. 71, SLA 2012 provides that paragraph (c)(35) applies “to offenses committed on or after July 1, 2012.”

Although the 2014 amendments were to have taken effect July 1, 2014 under Sec. 42, ch. 83, SLA 2014, the Governor did not sign the bill until July 16, 2014, and so the actual effective date of the 2014 amendments was July 17, 2014 under AS 01.10.070(d) .

Under sec. 5, ch. 56, SLA 2014, the changes to subsection (c) made in sec. 2, ch. 56, SLA 2014 apply “to offenses committed on or after July 1, 2014.”

Paragraph (d)(20), as amended by sec. 25, ch. 83, SLA 2014, applies “to prosecutions occurring on or after July 17, 2014 for offenses occurring before, on, or after July 17, 2014.”

Under sec. 5(b), ch. 20, SLA 2015, paragraph (d)(21) “applies to a sentence imposed on or after August 12, 2015 for an offense committed before, on, or after August 12, 2015.”

Section 11, ch. 11, SLA 2019, provides that the 2019 amendment to (c) of this section applies “to offenses committed on or after October 17, 2019.”

Legislative history reports. —

For report on ch. 102, SLA 1980 (HCS CSSB 511), see 1980 Senate Journal Supplement, No. 44, May 29, 1980 or 1980 House Journal Supplement, No. 79, May 29, 1980.

For House letter of intent on ch. 66, SLA 1988 (CSHB 237 (Jud)), which amended this section, see 1988 House Journal 2330 — 2337.

For governor’s transmittal letter for ch. 66, SLA 2005 (HB 88), relating to offenses occurring at schools, see 2005 House Journal 105 — 106.

For governor’s transmittal letter for ch. 18, SLA 2010 (Senate Bill 222), relating to the amendments of (c)(5) and (18) of this section, see 2010 Senate Journal 1237 — 1239.

Notes to Decisions

Analysis

I.General Consideration

Constitutionality of presumptive sentencing provisions. —

The presumptive sentencing provisions contained in AS 12.55.125 — 12.55.175 are not an unconstitutional violation of the separation of powers doctrine, Alaska Const., art. I, § 12, or of Alaska Const., art. IV, § 1 as a legislative infringement on the power of the judiciary to sentence on the basis of the particular facts of the case and the nature of a particular offender because although the presumptive sentencing statutes do limit the discretion of a judge in imposing a sentence, they do not foreclose sentences of less than the presumptive sentence or the possibility of placing a person on probation. Nell v. State, 642 P.2d 1361 (Alaska Ct. App. 1982).

The overall constitutionality of Alaska’s pre-March 2005 presumptive sentencing law, former subsection (f), was sound because constitutionally-flawed procedures could be replaced by jury trial procedures that conformed to the requirements of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and the severability clause of AS 01.10.030 without destroying the essential functioning and purpose of Alaska’s presumptive sentencing scheme. The Alaska legislature has retained the basic framework of presumptive sentencing, including the same scheme of aggravating factors and mitigating factors, but with the proviso that many of these aggravating factors are to be litigated to a jury and proved beyond a reasonable doubt under current subsection (f). State v. Moreno, 151 P.3d 480 (Alaska Ct. App. 2006).

Legislative intent reflected. —

The presumptive sentencing provisions contained in AS 12.55.125 and this section reflect the legislature’s intent to assure predictability and uniformity in sentencing by the use of fixed and relatively inflexible sentences, statutorily prescribed, for persons convicted of second or subsequent felony offenses. Juneby v. State, 641 P.2d 823 (Alaska Ct. App. 1982), modified, 665 P.2d 30 (Alaska Ct. App. 1983).

Waiver of jury trial without notice of aggravator. —

Defendant had no notice of the proposed statutory aggravator until after he had waived his right to a jury trial and the bench trial had already commenced; thus, his waiver could not reasonably be interpreted as including a knowing and voluntary waiver of his right to a jury trial on the statutory aggravator. Hedrick v. State, 474 P.3d 4 (Alaska Ct. App. 2020).

Improperly presumed waiver of jury trial on aggravator not harmless. —

Although the defense attorney conceded the brutality of the assaults, she argued why the assaults should nevertheless not be found to be most serious; because a jury might have resolved those factual questions differently than the judge and might have reached a different conclusion regarding the existence of the aggravator, the error in considering defendant's jury trial waiver as a waiver of his right to a jury trial on the statutory aggravator was not harmless. Hedrick v. State, 474 P.3d 4 (Alaska Ct. App. 2020).

Sentencing generally. —

It is not fundamentally unfair for the trial court to sentence for a lesser offense based upon an assumption, supported by verified facts, that the defendant committed a higher offense. Schnecker v. State, 739 P.2d 1310 (Alaska Ct. App. 1987).

Sixth Amendment right to jury trial recognized in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), should be applied retroactively, which means that a court should grant relief to a defendant whose sentence was imposed in violation of Blakely if the defendant’s conviction was already final when Blakely was issued (June 24, 2004); also, under Blakely, a defendant has a right to demand that aggravators under this section be proven beyond a reasonable doubt. Smart v. State, 146 P.3d 15 (Alaska Ct. App. 2006), rev'd, 202 P.3d 1130 (Alaska 2009).

Out-of-state convictions held not prior felonies. —

Defendant’s burglary convictions in Illinois were not prior felony convictions in Alaska because the Illinois definition of burglary was not sufficiently similar to Alaska’s definition of burglary to meet the test set forth in AS 12.55.145(a)(1)(B) , and attempted burglary did not qualify as “prior felony conviction” for presumptive sentencing purposes; those convictions could not be used to determine the applicable presumptive term of imprisonment or to establish aggravator under subsection (c)(15). Timothy v. State, 90 P.3d 177 (Alaska Ct. App. 2004).

Notice of aggravating or mitigating factors. —

The state has no discretion to suppress evidence of past convictions or aggravating or mitigating factors, and the trial court has the power sua sponte to alert the parties to possible aggravating and mitigating factors present in the record, so long as the parties are given an opportunity to marshal the relevant evidence, pro and con, and make their arguments accordingly. Brown v. State, 12 P.3d 201 (Alaska Ct. App. 2000).

Application of nonstatutory mitigating factor. —

Trial court erred by failing to refer defendant’s case to a three-judge sentencing panel where the trial court found the non-statutory mitigating factor of extraordinary potential for rehabilitation, and no statutory mitigators were proved. The question that the trial court should have asked was whether, because of the non-statutory mitigator, it was manifestly unjust to fail to make some adjustment to the otherwise allowable sentence. Harapat v. State, 174 P.3d 249 (Alaska Ct. App. 2007).

More favorable sentence for first-time offender. —

The trial court erred when it failed to comply with the sentencing guidelines of Austin v. State, 627 P.2d 657 (Alaska Ct. App. 1981), according to which a first offender should receive a more favorable, and not merely equivalent, sentence than the presumptive sentence for a second offender in a nonexceptional case. Where a nonexceptional defendant’s unsuspended term in conjunction with his suspended time was more severe than the presumptive term for a second offender, the case was remanded for resentencing. Lewis v. State, 845 P.2d 447 (Alaska Ct. App. 1993).

Standard for finding exception to Austin rule. —

The clear and convincing evidence standard should be applied to finding an exception to the rule in Austin v. State, 627 P.2d 657 (Alaska Ct. App. 1981), which held that first felony offenders convicted of offenses for which no presumptive term is specified should normally receive more favorable sentences than the presumptive term for second felony offenders convicted of like crimes. Buoy v. State, 818 P.2d 1165 (Alaska Ct. App. 1991).

The “clear and convincing evidence” standard did not apply to the court’s sentence of a first offender above the Austin ceiling; the standard governs a sentencing judge’s findings regarding aggravating and mitigating factors under AS 12.55.155 and AS 12.55.165 , but does not apply to the judge’s exercise of sentencing discretion under the facts of the case. Reese v. State, 930 P.2d 1295 (Alaska Ct. App. 1996).

Timeliness for Austin claim. —

A criminal defendant may not raise Austin sentencing guideline violations originally on appeal and the superior court’s granting of an affirmative request by a first felony offender who broke probation for the imposition of his original full suspended term instead of any further probationary disposition will stand, subject to plain error review only. Bland v. State, 846 P.2d 815 (Alaska Ct. App. 1993).

Notice of sentence above Austin ceiling. —

Even though a defendant is entitled to advance notice when the sentencing judge believes that a sentence above the normal Austin limit should be imposed, where, in negotiations leading to a plea bargain, defendant rejected a predetermined sentence, bargained for an open sentence, and stipulated to the existence of an aggravator, he was on notice that his sentence could exceed the Austin ceiling. Reese v. State, 930 P.2d 1295 (Alaska Ct. App. 1996).

Comparison of purposes of AS 12.55.125 and this section. —

The purpose of applying presumptive sentencing to a second or subsequent felony offender under AS 12.55.125 cannot properly be equated with the purpose served by the provisions of this section, relating to enhancement of presumptive sentences upon proof of specified aggravating factors. Fry v. State, 655 P.2d 789 (Alaska Ct. App. 1983).

Scope of sentencing discretion for first offenders. —

Under the pre-March 2005 version of Alaska’s sentencing law, the formal rules governing presumptive sentencing cases, found in AS 12.55.155 through AS 12.55.175 , did not apply to the sentencing of first felony offenders convicted of class B or class C felonies, nor to the revocation of their probation. Surrells v. State, 151 P.3d 483 (Alaska Ct. App. 2006).

Maximum sentence. —

The purposes of sentence review are better served by the interpretation that a defendant receives a “maximum sentence” if he or she is sentenced to the maximum term of imprisonment, whether or not the sentencing judge restricts or denies parole eligibility. Capwell v. State, 823 P.2d 1250 (Alaska Ct. App. 1991).

“Presumptive” term and parole. —

Judge’s decision to label defendant’s term of imprisonment “presumptive” had no effect on his eligibility for discretionary parole, where parole eligibility was set by statute. Reyes v. State, 978 P.2d 635 (Alaska Ct. App. 1999).

Limited use of both suspended jail time and probation is permitted under this section. Lacquement v. State, 644 P.2d 856 (Alaska Ct. App. 1982). See also Friedberg v. State, 663 P.2d 558 (Alaska Ct. App. 1983).

Consecutive sentences. —

There was a “preference” for consecutive rather than concurrent sentences where the defendant’s crimes included first degree sexual assault and first degree robbery. State v. Hodari, 996 P.2d 1230 (Alaska 2000).

Sentences for sexual assaults. —

Review of cases which address sexual assaults involving both adult and child victims supports a sentencing range for aggravated offenses of 10 to 15 years, and use of Atkinson v. State, 699 P.2d 881 (Alaska Ct. App. 1985), and Depp v. State, 686 P.2d 712 (Alaska Ct. App. 1984), as benchmarks for determining the kind of conduct warranting a sentence within that range. These benchmarks are applicable to all aggravated cases because of: (1) multiple victims; (2) multiple assaults on a single victim; or, (3) serious injuries to one or more victims. State v. Andrews, 707 P.2d 900 (Alaska Ct. App. 1985).

In a case in which defendant was sentenced to 90 years' imprisonment with 20 years suspended after defendant pleaded guilty to two consolidated counts of first-degree sexual assault for sexually assaulting four different women and attempting to sexually assault a fifth woman, the record amply supported the sentencing court's findings that defendant's victims were particularly vulnerable. Lee v. State, — P.3d — (Alaska Ct. App. Jan. 23, 2019).

Sentence upheld. —

In a case in which defendant pled guilty to sexual assault in the third degree pursuant to a plea agreement, and agreed that the "most serious offense" aggravator applied to his case, the appellate court concluded that defendant's sentence of 40 years in prison with 10 years suspended was not clearly mistaken. Baker v. State, — P.3d — (Alaska Ct. App. Aug. 22, 2018).

See Montes v. State, 669 P.2d 961 (Alaska Ct. App. 1983); Leavitt v. State, 806 P.2d 342 (Alaska Ct. App. 1991).

Where defendant received a ten-year presumptive sentence for attempted first-degree murder as a second felony offender and appealed on the ground that the trial court gave insufficient consideration to former paragraph (d)(8) of this section, the mitigating factor that his prior felony of burglary was a less serious crime than the present offense, the court of appeals held that the trial judge’s decision to give the mitigator little weight because he stressed general deterrence and affirmation of community norms was appropriate and the sentence was not clearly mistaken. Staael v. State, 697 P.2d 1050 (Alaska Ct. App. 1985).

Sentence of eight-year presumptive term for first-degree sexual abuse of a minor and concurrent sentences of three years for two counts of second-degree sexual abuse of a minor to run concurrently with the eight-year term were upheld. The defendant’s continued efforts to justify his conduct as “sex education” and his only limited acceptance and understanding of the grave risks of psychological damage to children that his conduct presented led the court of appeals to conclude the trial judge was not clearly erroneous in concluding that the mitigating factor of conduct among the least serious in the definition of the offense was not established by clear and convincing evidence. S.B. v. State, 706 P.2d 695 (Alaska Ct. App. 1985).

Where a trial judge found, based upon substantial evidence in the form of defendant’s past proven criminal record, that defendant would remain a danger to the community for the remainder of his life, a sentence of 97 years with 32 years suspended was not clearly mistaken. Contreras v. State, 767 P.2d 1169 (Alaska Ct. App. 1989), disapproved, State v. Bumpus, 820 P.2d 298 (Alaska 1991).

Imposition of an aggravated presumptive term of ten years for nonalcohol-related vehicular manslaughter and a consecutive suspended four-year sentence for assault in the second degree was not clearly mistaken, where defendant’s callousness and irresponsibility were evidenced by his conduct in eluding police officers, racing down a highway, and running red lights before colliding with another vehicle. Barney v. State, 786 P.2d 925 (Alaska Ct. App. 1990).

Sentence of ten years with four years suspended, in the case of a first offender convicted of six counts of sexual abuse of a minor in the second degree, was affirmed, where defendant was the victim’s music teacher and his abuse of the student-teacher relationship made it an exceptionally aggravated case. Osterback v. State, 789 P.2d 1037 (Alaska Ct. App. 1990).

Three-year sentence for failure to appear was not clearly mistaken, where defendant had been convicted of three or more prior felonies and the sentencing judge was entitled to take into account defendant’s long history of alcohol abuse and record of offenses in concluding that his prospects for rehabilitation were guarded. Hayes v. State, 790 P.2d 713 (Alaska Ct. App. 1990).

In prosecution for second degree sexual abuse of a minor, aggravating factors under this section justified a sentence exceeding the 6-year presumptive term: 1. defendant had known that his victim was particularly incapable of resistance due to her intoxication; 2. defendant had previously been convicted of sexually abusing a minor, the same crime for which he was now being sentenced; and 3. defendant had been on probation from this prior felony when he committed the present offense. Steve v. State, 875 P.2d 110 (Alaska Ct. App. 1994).

A substantial term of imprisonment was warranted where trial court found that defendant had a lengthy history of sexually abusing children, that defendant’s prior, uncharged sexual abuse was even more serious than his present offense, and that defendant was adamantly unwilling to acknowledge that he had committed any wrongdoing; nine years’ imprisonment with three years suspended was not clearly mistaken. Turpin v. State, 890 P.2d 1128 (Alaska Ct. App. 1995).

Trial court specifically addressed defendant’s prospects for rehabilitation and found them problematic where, on the one hand, defendant confessed to the police before the abuse came to the attention of the authorities in any other fashion and, on the other hand, following this confession (and before his indictment), defendant again sexually abused his stepdaughter; although court concluded that, on the whole, defendant’s prospects for rehabilitation were good, court found that, under all the circumstances, defendant’s offense was “moderately aggravated” and that defendant should serve a considerate term of imprisonment, accompanied by a lengthy suspended term, nine years imprisonment with six years suspended. Nagasiak v. State, 890 P.2d 1134 (Alaska Ct. App. 1995).

A composite sentence of six years to serve, with an additional three years suspended, for second-degree sexual abuse of a minor and fourth-degree misconduct involving possession of cocaine was affirmed where the defendant conceded the aggravating factor that his conduct was among the most serious within the definition of second-degree sexual abuse of a minor because he sexually penetrated the victim both vaginally and anally and she suffered physical injury to her genitals and rectum. Reese v. State, 930 P.2d 1295 (Alaska Ct. App. 1996).

For a first felony offender convicted of third-degree assault, a sentence of five years with one year suspended (four years to serve), which exceeded the three-year presumptive term for a third felony offender, was not excessive based upon aggravating factors in the facts of the case and upon defendant’s history of repeated serious violence against the same victim. Pickard v. State, 965 P.2d 755 (Alaska Ct. App. 1998).

Maximum term of five years imprisonment was upheld for felony driving while intoxicated, where supported by finding that defendant’s criminal history included repeated instances of assault and finding that defendant was “worst offender” for sentencing purposes. White v. State, 969 P.2d 646 (Alaska Ct. App. 1998).

Based on defendant’s exceptionally aggravated offense, his recidivism, his lack of remorse, and his failure to take responsibility for his crimes, including extensive perjury at the sentencing hearing, sentencing judge could properly conclude that defendant’s prospects for rehabilitation were poor, and, given his status as a second felony offender, a sentence of seven years for third-degree controlled substance misconduct was not clearly mistaken. Martin v. State, 973 P.2d 1151 (Alaska Ct. App. 1999).

The sentencing court was not clearly mistaken in imposing a composite presumptive sentence which, if entirely consecutive sentences were applied with no aggravating factors, was approximately half of the maximum sentence he could have received for convictions of multiple counts of first degree sexual assault, one count of first degree robbery and one count of second degree assault, where the evidence of the defendant’s horrific crimes supported a finding that he displayed an ingrained compulsive criminal pattern in his behaviors. State v. Hodari, 996 P.2d 1230 (Alaska 2000).

Where defendant had previously been convicted of four sexual offenses involving children and there was evidence of numerous other child sexual assaults for which he had not been charged, the trial court properly found the state had proved five of the aggravating factors under subsection (c) and sentenced defendant as a third felony offender and a worst offender to the maximum sentence of 30 years upon his conviction for first-degree sexual abuse of a minor. Fitzgerald v. State, 42 P.3d 1143 (Alaska Ct. App. 2002).

Court did not err in sentencing defendant on defendant’s robbery conviction where a presentence report established an aggravating factor by clear and convincing evidence, and defendant did not prove that there were any mitigating factors. Butts v. State, 53 P.3d 609 (Alaska Ct. App. 2002).

Based on defendant’s aggravators, the trial court judge was authorized to impose a sentence of up to 20 years’ imprisonment on each of defendant’s first-degree assault convictions; because defendant did not prove any mitigating factors, the 15-year presumptive term was, in essence, the minimum sentence that the trial judge might impose for the two felonies, and the record supported the conclusions that defendant posed a great danger to the public safety and had poor prospects for rehabilitation, such that his 26-year sentence was proper. Powell v. State, 88 P.3d 532 (Alaska Ct. App. 2004).

Ruling in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), did not affect the validity of defendant’s sentence, nor of any other sentence imposed on a first felony offender under AS 12.55.125 , so long as the unsuspended portion of the defendant’s term of imprisonment did not exceed the presumptive term that would have applied to a second felony offender convicted of the same offense. State v. Gibbs, 105 P.3d 145 (Alaska Ct. App. 2005).

Where defendant was convicted of attempted first-degree sexual assault, attempted second-degree sexual assault, and burglary, for a composite sentence of 12 years with 4 years suspended, 8 years to serve, the sentence was not excessive; aggravating factors under paragraphs (c)(5) and (c)(8) of this section were properly applied, because defendant knew the victim was vulnerable and defendant had a criminal history of assaultive behavior; a jury trial was not required on the aggravating factors. Moore v. State, 123 P.3d 1081 (Alaska Ct. App. 2005).

Defendant’s sentence was upheld, considered in light of Blakley v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and two aggravators: (1) Under subsection (c)(7), that defendant’s federal felony was a more serious class of felony than his current offense, and (2) under subsection (c)(20), that defendant was on probation from that prior federal felony when he committed the offense in the instant case. With respect to aggravator (c)(7), under Alaska law, robbery in any form was a more serious class of felony than possession of cocaine without intent to distribute. As to aggravator (c)(20) (regarding defendant being on felony probation), while it was unclear whether the trial court actually relied on that factor, because it was undisputed that defendant was a felony probationer when he committed his current offense, any error in the trial court’s having failed to give him a jury trial on that issue was harmless. Snelling v. State, 123 P.3d 1096 (Alaska Ct. App. 2005).

Sentencing court was authorized to sentence defendant to to any term of prison between presumptive sentence and maximum term for sexual assault where defendant stipulated to three aggravating factors in the plea agreement. Simon v. State, 121 P.3d 815 (Alaska Ct. App. 2005).

Trial court did not violate defendant rights under Blakley v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), where five of the seven factors that the trial court used to aggravate defendant’s sentence were compliant with Blakely, including two prior felony convictions and the fact that the victim was vulnerable and incapacitated. Cleveland v. State, 143 P.3d 977 (Alaska Ct. App. 2006).

Defendant’s two-year presumptive sentence for fourth-degree controlled substance misconduct was proper where defendant failed to present any mitigating factors and failed to ask that the matter be reviewed by a three-judge panel. Garhart v. State, 147 P.3d 746 (Alaska Ct. App. 2006).

In a case where defendant agreed to plead no contest to attempted first-degree sexual abuse of a minor in exchange for a sentence of 12 years’ imprisonment with seven years suspended, he stipulated to the following two aggravating factors under earlier requirements of AS 12.55.155(c)(5) , (19): He knew the victim of his offense was particularly vulnerable and his prior criminal history included a delinquency adjudication for felony conduct; sentencing court was not required to obtain defendant’s explicit waiver of the right to jury trial before accepting the defense attorney’s concession of the aggravating factors, and therefore the sentence was not illegal under Blakely. Malutin v. State, 198 P.3d 1177 (Alaska Ct. App. 2009).

Defendant failed to prove the consistently minor mitigator, AS 12.55.155(d)(12) , where he did not explain, inter alia, the nature and extent of his drug sales, why he possessed a stolen handgun, whether his customers habitually committed theft to finance their habits, or whether he had ever assaulted a customer during a drug deal gone bad. Miller v. State, — P.3d — (Alaska Ct. App. Mar. 7, 2018) (memorandum decision).

Superior court properly rejected the proposed AS 12.55.155(d)(9) mitigator where defendant had provided no testimony as to his motive for absconding from bail supervision, the circumstances surrounding the removal of the electronic monitor, or his activities during the six days he was at liberty. Roberts v. State, — P.3d — (Alaska Ct. App. Mar. 7, 2018) (memorandum decision).

Defendant failed to prove the small quantities mitigator, AS 12.55.155(d)(13) , where he would have realized a substantial sum of money had he successfully sold his 10+ grams of heroin, and although a detective testified that he might be selling to finance his own consumption, defendant had not testified how much he would have personally consumed. Miller v. State, — P.3d — (Alaska Ct. App. Mar. 7, 2018) (memorandum decision).

Sentence not upheld. —

Where a defendant was sentenced to consecutive sentences of 10 years for burglary in the first degree, 20 years for robbery in the first degree and 10 years for assault in the second degree made consecutive to a previously imposed eight-year sentence for shooting with intent to wound, the case was remanded for resentencing of the defendant as a second-felony offender with a total sentence, including the unserved portion of the previous sentence, not to exceed 40 years. Larson v. State, 688 P.2d 592 (Alaska Ct. App. 1984).

A sentence of twenty-four years with four years suspended, upon conviction of three counts of sexual abuse of a minor in the first degree, was clearly mistaken, where the trial court did not address the ten- to fifteen-year benchmark established in prior decisions concerning aggravated cases of sexual assault, and nothing in the record established that a sentence in excess of fifteen years was necessary to protect the public. Mosier v. State, 747 P.2d 548 (Alaska Ct. App. 1987).

Imposition of consecutive terms totaling 23 years of unsuspended imprisonment was clearly mistaken, where, although defendant was convicted for multiple burglaries, the record failed to support the inference that he was incapable of being deterred or rehabilitated, or that the protection of the community required his isolation for a period of 23 years. Bumpus v. State, 776 P.2d 329 (Alaska Ct. App. 1989), aff'd in part and rev'd in part, 820 P.2d 298 (Alaska 1991).

Case was remanded for resentencing on convictions of failing to stop, render aid, and contact authorities, where the trial court aggravated a first felony offender’s sentence on the basis of aggravating factors without giving advance notice and the court’s findings included a finding of physical injury, which appeared to be an element of the offenses. Wylie v. State, 797 P.2d 651 (Alaska Ct. App. 1990).

Sentence of 20 years imprisonment for sale of cocaine to a minor was excessive, where the offense involved the sale of approximately two grams of cocaine to an undercover agent who appeared relatively mature and who was within a month of his 19th birthday. McPherson v. State, 800 P.2d 928 (Alaska Ct. App. 1990), rev'd, 855 P.2d 420 (Alaska 1993).

Sentence of five years with three years suspended for class C felony for defendant who was a first offender was improper absent prior notice and a finding of a substantial aggravating factor or extraordinary circumstances warranting harsher treatment than defendant would have been subject to as a second felony offender. Sorenson v. State, 938 P.2d 1084 (Alaska Ct. App. 1997).

Facts of second-degree murder conviction held to be within mainstream of unintended, extremely reckless homicides defined by AS 11.41.110(a)(2) did not support sentence of 55 years. Brown v. State, 973 P.2d 1158 (Alaska Ct. App. 1999).

Defendant receiving a reduced presumptive term sentence was not eligible for discretionary parole under the parole board regulations; the trial court had no power to grant parole eligibility when imposing a mitigated presumptive term sentence, and the sentencing court erred when it designated the defendant’s sentence as non-presumptive. State v. Cofey, 36 P.3d 733 (Alaska Ct. App. 2001).

Where trial court imposed a sentence greater than the presumptive, defendant’s right to an impartial jury was violated; however, even though an aggravator should have been submitted to the jury, the error was held to have been harmless. Walsh v. State, 134 P.3d 366 (Alaska Ct. App. 2006).

In a case in which defendant was convicted of six controlled substance misconduct offenses, the minimum sentence defendant faced for all of the offenses was 15 years as the court was not required to run any of the sentences on the drug convictions consecutively; thus, because the appellate court was unable to discern from the record why the court ran defendant's sentences on the class A and class B felony convictions completely consecutively, particularly given the court's recognition that a 26-year sentence was exponentially greater than any sentence defendant had been ordered to serve previously, the court was to consider defendant's composite sentence on remand. Irvine v. State, — P.3d — (Alaska Ct. App. Aug. 5, 2020) (memorandum decision).

No right to jury for sentencing. —

Trial court did not err in failing to inform defendant of his right to a jury at sentencing because the aggravating factors used by the trial court were defendant’s prior convictions, which did not have to be submitted to a jury. Cano v. State, — P.3d — (Alaska Ct. App. Oct. 7, 2009) (memorandum decision).

Incarceration required. —

In a prosecution for theft in the second degree, given defendants’ exemplary backgrounds, and the fact that they were convicted of class C felonies, the court was not required to impose the equivalent of at least 90 days in jail, however, the court was required to sentence defendants to some period of incarceration in order to emphasize the criminal nature of their acts; a sentence which does not require some period of incarceration would send the message that white-collar criminals who commit major theft offenses are able to avoid incarceration. State v. Sykes, 891 P.2d 232 (Alaska Ct. App. 1995).

Applied in

Kimbrell v. State, 647 P.2d 618 (Alaska Ct. App. 1982); Sears v. State, 653 P.2d 349 (Alaska Ct. App. 1982); Seymore v. State, 655 P.2d 786 (Alaska Ct. App. 1982); Erhart v. State, 656 P.2d 1199 (Alaska Ct. App. 1982); Goulden v. State, 656 P.2d 1218 (Alaska Ct. App. 1983); Hansen v. State, 657 P.2d 862 (Alaska Ct. App. 1983); Reynolds v. State, 664 P.2d 621 (Alaska Ct. App. 1983); Hasslen v. State, 667 P.2d 732 (Alaska Ct. App. 1983); State v. Coats, 669 P.2d 1329 (Alaska Ct. App. 1983); Shaw v. State, 673 P.2d 781 (Alaska Ct. App. 1983); Lee v. State, 673 P.2d 892 (Alaska Ct. App. 1983); Contreras v. State, 675 P.2d 654 (Alaska Ct. App. 1984); Walsh v. State, 677 P.2d 912 (Alaska Ct. App. 1984); Depp v. State, 686 P.2d 712 (Alaska Ct. App. 1984); Wells v. State, 687 P.2d 346 (Alaska Ct. App. 1984); Travelstead v. State, 689 P.2d 494 (Alaska Ct. App. 1984); Gregory v. State, 689 P.2d 508 (Alaska Ct. App. 1984); Wortham v. State, 689 P.2d 1133 (Alaska Ct. App. 1984); Carlson v. State, 696 P.2d 178 (Alaska Ct. App. 1985); Benboe v. State, 698 P.2d 1230 (Alaska Ct. App. 1985); Hart v. State, 702 P.2d 651 (Alaska Ct. App. 1985); Thomas v. State, 710 P.2d 1017 (Alaska Ct. App. 1985); Resek v. State, 715 P.2d 1188 (Alaska Ct. App. 1986); Dymenstein v. State, 720 P.2d 42 (Alaska Ct. App. 1986); Ecklund v. State, 730 P.2d 161 (Alaska Ct. App. 1986); Parks v. State, 731 P.2d 597 (Alaska Ct. App. 1987); Smith v. State, 745 P.2d 1375 (Alaska Ct. App. 1987); Covington v. State, 747 P.2d 550 (Alaska Ct. App. 1987); Upton v. State, 749 P.2d 386 (Alaska Ct. App. 1988); Ciervo v. State, 756 P.2d 907 (Alaska Ct. App. 1988); Robison v. State, 763 P.2d 1357 (Alaska Ct. App. 1988); Hale v. State, 764 P.2d 313 (Alaska Ct. App. 1988); Holtzheimer v. State, 766 P.2d 1177 (Alaska Ct. App. 1989); Palmer v. State, 770 P.2d 296 (Alaska Ct. App. 1989); Massey v. State, 771 P.2d 448 (Alaska Ct. App. 1989); Barrett v. State, 772 P.2d 559 (Alaska Ct. App. 1989); Charles v. State, 780 P.2d 377 (Alaska Ct. App. 1989); Schuenemann v. State, 781 P.2d 1005 (Alaska Ct. App. 1989); Hayes v. State, 785 P.2d 33 (Alaska Ct. App. 1990); Harris v. State, 790 P.2d 1379 (Alaska Ct. App. 1990); Simpson v. State, 796 P.2d 840 (Alaska Ct. App. 1990); Newsom v. State, 199 P.3d 1181 (Alaska Ct. App. 2009); Marzak v. State, 796 P.2d 1374 (Alaska Ct. App. 1990); McGahan v. State, 807 P.2d 506 (Alaska Ct. App. 1991); Lepley v. State, 807 P.2d 1095 (Alaska Ct. App. 1991); DeGross v. State, 816 P.2d 212 (Alaska Ct. App. 1991); Kosbruk v. State, 820 P.2d 1082 (Alaska Ct. App. 1991); Looney v. State, 826 P.2d 775 (Alaska Ct. App. 1992); Marker v. State, 829 P.2d 1191 (Alaska Ct. App. 1992); Beauvois v. State, 837 P.2d 1118 (Alaska Ct. App. 1992); Curl v. State, 843 P.2d 1244 (Alaska Ct. App. 1992); Norris v. State, 857 P.2d 349 (Alaska Ct. App. 1993); State v. Hernandez, 877 P.2d 1309 (Alaska Ct. App. 1994); Smith v. State, 892 P.2d 202 (Alaska Ct. App. 1995); Williams v. State, 928 P.2d 600 (Alaska Ct. App. 1996); Morgan v. State, 943 P.2d 1208 (Alaska Ct. App. 1997); Clark v. State, 8 P.3d 1149 (Alaska Ct. App. 2000); Griffin v. State, 9 P.3d 301 (Alaska Ct. App. 2000); Harmon v. State, 11 P.3d 393 (Alaska Ct. App. 2000); Schumacher v. State, 11 P.3d 397 (Alaska Ct. App. 2000); Haynes v. State, 15 P.3d 1088 (Alaska Ct. App. 2001); Carlson v. State, 128 P.3d 197 (Alaska Ct. App. 2006); Y. J. v. State, 130 P.3d 954 (Alaska Ct. App. 2006); Billum v. State, 151 P.3d 507 (Alaska Ct. App. 2006); Tice v. State, 199 P.3d 1175 (Alaska Ct. App. 2008); Collins v. State, 287 P.3d 791 (Alaska Ct. App. 2012); Silas v. State, — P.3d — (Alaska Ct. App. June 9, 2021).

Quoted in

Lausterer v. State, 693 P.2d 887 (Alaska Ct. App. 1985); Marin v. State, 699 P.2d 886 (Alaska Ct. App. 1985); Hancock v. State, 706 P.2d 1164 (Alaska Ct. App. 1985); Doe v. Dep't of Public Safety, 92 P.3d 398 (Alaska 2004).

Stated in

Tuckfield v. State, 621 P.2d 1350 (Alaska 1981); Born v. State, 633 P.2d 1021 (Alaska Ct. App. 1981); Linn v. State, 658 P.2d 150 (Alaska Ct. App. 1983); State v. Rastopsoff, 659 P.2d 630 (Alaska Ct. App. 1983); State v. Brinkley, 681 P.2d 351 (Alaska Ct. App. 1984); Bynum v. State, 708 P.2d 1293 (Alaska Ct. App. 1985); Thomas v. State, 710 P.2d 1017 (Alaska Ct. App. 1985); Tulowetzke v. State, Dep't of Pub. Safety, 743 P.2d 368 (Alaska 1987); Ortberg v. State, 751 P.2d 1368 (Alaska Ct. App. 1988); Stewart v. State, 756 P.2d 900 (Alaska Ct. App. 1988); Hunt v. State, 18 P.3d 69 (Alaska Ct. App. 2001); Cook v. State, 36 P.3d 710 (Alaska Ct. App. 2001); State v. Platt, 169 P.3d 595 (Alaska 2007); Phelps v. State, 236 P.3d 381 (Alaska Ct. App. 2010); Luckart v. State, 314 P.3d 1226 (Alaska Ct. App. 2013); Kashatok v. State, — P.3d — (Alaska Ct. App. Aug. 9, 2017); Ray v. State, 452 P.3d 688 (Alaska Ct. App. 2019); Ray v. State, 452 P.3d 688 (Alaska Ct. App. 2019).

Cited in

Whittlesey v. State, 626 P.2d 1066 (Alaska 1980); Law v. State, 624 P.2d 284 (Alaska 1981); Tritt v. State, 625 P.2d 882 (Alaska Ct. App. 1981); Leuch v. State, 633 P.2d 1006 (Alaska 1981); Neakok v. State, 653 P.2d 658 (Alaska Ct. App. 1982); Karr v. State, 660 P.2d 450 (Alaska Ct. App. 1983); Howard v. State, 664 P.2d 603 (Alaska Ct. App. 1983); Martin v. State, 664 P.2d 612 (Alaska Ct. App. 1983); Maal v. State, 670 P.2d 708 (Alaska Ct. App. 1983); Heathcock v. State, 670 P.2d 1155 (Alaska Ct. App. 1983); Lloyd v. State, 672 P.2d 152 (Alaska Ct. App. 1983); Cordes v. State, 676 P.2d 611 (Alaska Ct. App. 1984); Shaw v. State, 677 P.2d 259 (Alaska Ct. App. 1984); Flink v. State, 683 P.2d 725 (Alaska Ct. App. 1984); Atkinson v. State, 699 P.2d 881 (Alaska Ct. App. 1985); Richey v. State, 717 P.2d 407 (Alaska Ct. App. 1986); Kuvaas v. State, 717 P.2d 855 (Alaska Ct. App. 1986); Whitlow v. State, 719 P.2d 267 (Alaska Ct. App. 1986); Gibson v. State, 719 P.2d 687 (Alaska Ct. App. 1986); Ewell v. State, 730 P.2d 164 (Alaska Ct. App. 1986); State v. Krieger, 731 P.2d 592 (Alaska Ct. App. 1987); Folsom v. State, 734 P.2d 1015 (Alaska Ct. App. 1987); Sweetin v. State, 744 P.2d 424 (Alaska Ct. App. 1987); Bond v. State, 747 P.2d 546 (Alaska Ct. App. 1987); Comegys v. State, 747 P.2d 554 (Alaska Ct. App. 1987); Kirby v. State, 748 P.2d 757 (Alaska Ct. App. 1987); Winther v. State, 749 P.2d 1356 (Alaska Ct. App. 1988); Monroe v. State, 752 P.2d 1017 (Alaska Ct. App. 1988); Howell v. State, 758 P.2d 103 (Alaska Ct. App. 1988); Gabrieloff v. State, 758 P.2d 128 (Alaska Ct. App. 1988); Jansen v. State, 764 P.2d 308 (Alaska Ct. App. 1988); Lawrence v. State, 764 P.2d 318 (Alaska Ct. App. 1988); Luepke v. State, 765 P.2d 988 (Alaska Ct. App. 1988); Fowler v. State, 766 P.2d 588 (Alaska Ct. App. 1988); Newell v. State, 771 P.2d 873 (Alaska Ct. App. 1989); Hamilton v. State, 771 P.2d 1358 (Alaska Ct. App. 1989); DeHart v. State, 781 P.2d 989 (Alaska Ct. App. 1989); Weitz v. State, 794 P.2d 952 (Alaska Ct. App. 1990); George v. State, 836 P.2d 960 (Alaska Ct. App. 1992); Miller v. State, 866 P.2d 130 (Alaska Ct. App. 1994); Haire v. State, 877 P.2d 1302 (Alaska Ct. App. 1994); Howarth v. State, Public Defender Agency, 925 P.2d 1330 (Alaska 1996); Cockerham v. State, 933 P.2d 537 (Alaska 1997); Rozkydal v. State, 938 P.2d 1091 (Alaska Ct. App. 1997); Peters v. State, 943 P.2d 418 (Alaska Ct. App. 1997); Morrison v. State, 7 P.3d 955 (Alaska Ct. App. 2000); Foley v. State, 9 P.3d 1038 (Alaska Ct. App. 2000); Brockway v. State, 37 P.3d 427 (Alaska Ct. App. 2001); Waters v. State, 64 P.3d 169 (Alaska Ct. App. 2003); Jones v. State, 65 P.3d 903 (Alaska Ct. App. 2003); Tazruk v. State, 67 P.3d 687 (Alaska Ct. App. 2003); Paige v. State, 115 P.3d 1244 (Alaska Ct. App. 2005); Labrake v. State, 152 P.3d 474 (Alaska Ct. App. 2007); Garland v. State, 172 P.3d 827 (Alaska Ct. App. 2007); Oyoumick v. State, 185 P.3d 771 (Alaska Ct. App. 2008); Luckart v. State, 270 P.3d 816 (Alaska Ct. App. 2012); Diorec v. State, 295 P.3d 409 (Alaska Ct. App. 2013); State v. Korkow, 314 P.3d 560 (Alaska 2013); Murray v. State, 344 P.3d 835 (Alaska Ct. App. 2015); Byford v. State, 352 P.3d 898 (Alaska Ct. App. 2015); Ghosh v. State, 400 P.3d 147 (Alaska Ct. App. 2017); Thomas v. State, 413 P.3d 1207 (Alaska Ct. App. 2018); Olmstead v. State, 477 P.3d 656 (Alaska Ct. App. 2020); Dalton v. State, 477 P.3d 650 (Alaska Ct. App. 2020).

II.Adjustment of Presumptive Sentences Generally

Term subject to modification. —

The presumptive one-year term imposed by AS 12.55.125 is subject to modification because of aggravating or mitigating factors, as well as possible referral to a three-judge panel like all other presumptive sentences. Edwin v. State, 762 P.2d 499 (Alaska Ct. App. 1988).

Two-step process. —

The adjustment of a presumptive sentence for aggravating or mitigating factors essentially involves a two-step process: The first step, an evidentiary one, is comprised of establishing existence of specially alleged factors, and each alleged factor must be proved by clear and convincing evidence with the proponent of the factor bearing the burden of proof. The second step involves a judgmental element, rather than an evidentiary one, and requires an evaluation by the court of factors that have been established, and a determination of the extent to which the factors will justify an upward or downward adjustment of the applicable presumptive term. Juneby v. State, 665 P.2d 30 (Alaska Ct. App. 1983).

Adjustment on basis of nonstatutory mitigating factor. —

When a case involving a presumptive term in excess of four years is referred to the three-judge panel on the sole basis of a nonstatutory mitigating factor, imposition by the panel of a sentence below 50% of the presumptive term will normally be deemed inappropriate and clearly mistaken, unless the panel expressly concludes that such a sentence is required to avoid manifest injustice, although the panel has jurisdiction to impose a sentence of less than 50% of the presumptive sentence. State v. Price, 740 P.2d 476 (Alaska Ct. App. 1987) (decided under former law).

Even though aggravator factor applied to defendant who pled guilty to sexual abuse of a minor, the trial court was not precluded by AS 12.55.165 from referring the case to a three-judge panel based on defendant’s favorable post-offense conduct, and the panel could mitigate defendant’s presumptive term based on this nonstatutory factor. State v. McKinney, 946 P.2d 456 (Alaska Ct. App. 1997).

Preemption by federal law. —

Federal law does not prohibit the three-judge sentencing panel from considering the harsh collateral consequences of deportation and, if manifest injustice would otherwise result, from imposing a sentence below the presumptive range based on that consideration. State v. Silvera, 309 P.3d 1277 (Alaska Ct. App. 2013).

Consequences of deportation. —

A three-judge sentencing panel has the statutory authority to impose a sentence below the presumptive range based on the harsh collateral consequences of deportation. If the three-judge panel was precluded from considering this factor as a matter of law, there is a substantial risk that unduly harsh sentences would be imposed on non-citizens in particular cases, defeating the legislature’s goal of uniformity in sentencing. State v. Silvera, 309 P.3d 1277 (Alaska Ct. App. 2013).

Adjustment necessary to protect public from offender. —

A court may sentence an offender to imprisonment for a term greater than the maximum sentence for the offender’s most serious offense if the sentencing judge makes a finding that the sentence is necessary to protect the public. A finding that the defendant is a serious threat to society and a worst possible offender is sufficient. Wheeler v. State, 863 P.2d 858 (Alaska Ct. App. 1993).

Jury trial on aggravator not double jeopardy. —

In a manslaughter case, the double jeopardy clause did not prohibit a second jury trial to address the aggravator under paragraph (c)(5) of this section, as such a trial was not a second prosecution. Further, the aggravating factor was not an element of defendant’s crime for purposes of Alaska Const. art. I, § 8, requiring a jury trial under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (U.S. 2004).State v. Dague, 143 P.3d 988 (Alaska Ct. App. 2006).

Adjustment is judicial function. —

The task of determining the amount by which a presumptive sentence should be increased upon proof of an aggravating factor is not an evidentiary one for which the state is responsible, but a judicial one for which the court is responsible. Juneby v. State, 665 P.2d 30 (Alaska Ct. App. 1983).

Sentencing powers of three-judge panel are not subject to restriction under paragraph (a)(2). State v. Price, 730 P.2d 159 (Alaska Ct. App. 1986).

Deviation from presumptive sentence not automatic. —

It is apparent from the language contained at the beginning of subsections (c) and (d) of this section that increases or decreases of presumptive terms should not be the automatic consequence when aggravating or mitigating factors are proved. Juneby v. State, 641 P.2d 823 (Alaska Ct. App. 1982), modified, 665 P.2d 30 (Alaska Ct. App. 1983).

Court properly applied the seven-year presumptive sentence because the mandatory minimum sentences were intended for the least serious offenses within the statutory definition and defendant should receive a more severe sentence than the five-year mandatory minimum unless he affirmatively convinces the sentencing judge that his conduct was uncommonly mitigated. Soundara v. State, 107 P.3d 290 (Alaska Ct. App. 2005).

First felony offense. —

A superior court should normally sentence a first felony offender to a lesser sentence than the presumptive term that would apply if the offense was a second felony, and that sentencing limit should be exceeded only when the state proves one or more of the aggravating factors listed in subsection (c) of this section or extraordinary circumstances as defined in AS 12.55.165 . Harris v. State, 980 P.2d 482 (Alaska Ct. App. 1999).

Nature of crime charged. —

In order to determine the realistic impact that proof of an aggravating or mitigating circumstance should have on adjustment of a presumptive sentence in any given case, it is essential to consider not only the specific conduct constituting the aggravating or mitigating factor, but also the nature of the crime charged. Juneby v. State, 641 P.2d 823 (Alaska Ct. App. 1982), modified, 665 P.2d 30 (Alaska Ct. App. 1983).

Application of Chaney criteria. —

When the presumptive sentencing provisions of AS 12.55.125 and this section apply, the criteria of State v. Chaney, 477 P.2d 441 (Alaska 1970), are no longer of primary importance in determining the sentence. Juneby v. State, 641 P.2d 823 (Alaska Ct. App. 1982), modified, 665 P.2d 30 (Alaska Ct. App. 1983).

When applied to the adjustment of a presumptive sentence, the State v. Chaney, 477 P.2d 441 (Alaska 1970), analysis, as stated in AS 12.55.005 , should not be broadened into a consideration of all circumstances of the offense, as if the sentence were being imposed anew, without regard for the presumptive term. Instead, consideration of the Chaney criteria should focus specifically on the aggravating and mitigating conduct in the particular case. The presumptive term should remain as the starting point of the analysis, and the Chaney criteria should be employed for the limited purpose of determining the extent to which the totality of the aggravating and mitigating factors will justify deviation from the presumptive term. Juneby v. State, 641 P.2d 823 (Alaska Ct. App. 1982), modified, 665 P.2d 30 (Alaska Ct. App. 1983).

When a defendant violates probation, the court must apply the State v. Chaney, 477 P.2d 441 (Alaska 1970), criteria, emphasizing the original offense, the offender, and the defendant’s intervening conduct. The fact that the probationer violated probation or broke an agreement, standing alone, cannot be given primary consideration. Betzner v. State, 768 P.2d 1150 (Alaska Ct. App. 1989).

Extent of physical injury. —

In order to justify a substantial increase in the presumptive term the prosecution must bear the burden of making a clear and convincing showing that the injuries were unusual in nature or uncharacteristically severe. Juneby v. State, 641 P.2d 823 (Alaska Ct. App. 1982), modified, 665 P.2d 30 (Alaska Ct. App. 1983).

Progressively greater increases in the presumptive term will be justified as injuries inflicted increase in severity; more substantial increases should be reserved for the most severe category of injuries which are those included within the definition of “serious physical injury” under the provisions of AS 11.81.900 . Juneby v. State, 641 P.2d 823 (Alaska Ct. App. 1982), modified, 665 P.2d 30 (Alaska Ct. App. 1983).

Evidence introduced at trial may be considered. —

A trial court, in conducting a hearing pursuant to Alaska Rule of Criminal Procedure 32 to determine whether mitigating and aggravating factors have been established, may consider evidence previously introduced at trial that resulted in conviction for which sentencing is being imposed. Wolf v. State, 647 P.2d 609 (Alaska Ct. App. 1982).

Belief that defendant committed perjury at trial. —

A sentencing judge may take into account his belief that the defendant committed perjury at his trial, but the judge may do so only to the extent that the alleged perjury is used by him as indicia to determine the defendant’s potential for rehabilitation; thus, it is improper to enhance the sentence as punishment for the alleged perjury. Pyrdol v. State, 617 P.2d 513 (Alaska 1980); Coleman v. State, 621 P.2d 869 (Alaska 1980), cert. denied, 454 U.S. 1090, 102 S. Ct. 653, 70 L. Ed. 2d 628 (U.S. 1981).

State without discretion to suppress factors. —

Although the state has discretion whether or not to institute a prosecution, the state has no discretion to suppress evidence of past convictions or aggravating or mitigating factors. Hartley v. State, 653 P.2d 1052 (Alaska Ct. App. 1982).

Suspension of erroneously increased sentence immaterial. —

Where the court did not find aggravating circumstances, increasing of the presumptive sentence was error even though the increased sentence was suspended. McManners v. State, 650 P.2d 414 (Alaska Ct. App. 1982).

Increased sentence upheld. —

See Langton v. State, 662 P.2d 954 (Alaska Ct. App. 1983); Willard v. State, 662 P.2d 971 (Alaska Ct. App. 1983); Roberts v. State, 680 P.2d 503 (Alaska Ct. App. 1984).

Where a defendant was a first-felony offender for presumptive sentencing purposes but he had been convicted of several serious misdemeanors, and incestuous conduct with his daughter had gone on for several years and involved full intercourse, a sentence of five years with two years suspended was not excessive though his sentence exceeded two years, the presumptive sentence for a second-felony offender convicted of a class C felony, because the case could be termed exceptional. Theodore v. State, 692 P.2d 987 (Alaska Ct. App. 1985).

Upon conviction of second-degree robbery, where the defendant was a third-felony offender, eligible for a presumptive term of six years imprisonment, and two aggravating factors were found, i.e., the victim sustained physical injury and the defendant was on felony probation when he committed the crime, the court did not err in sentencing the defendant to serve an additional three years beyond a composite term of six years and 10 months to which he had been sentenced in two unrelated cases. Baker v. State, 905 P.2d 479 (Alaska Ct. App. 1995).

Although the offense for which defendant was convicted was not as serious as some of his prior offenses, the existence of multiple aggravating factors and his status as a three-time felon justified the sentence imposed by the trial court. Mooney v. State, 105 P.3d 149 (Alaska Ct. App. 2005).

Defendant’s sentence was not excessive where the trial judge articulated substantial reasons for imposing a sentence at the top of the presumptive range. Tolen v. State, — P.3d — (Alaska Ct. App. Jan. 11, 2012) (memorandum decision).

Defendant’s sentence, outside the applicable presumptive range, was not excessive in light of defendant’s criminal history, including 30 prior convictions, eight of them for assault, and his lack of remorse. Nicoli v. State, — P.3d — (Alaska Ct. App. Aug. 12, 2015) (memorandum decision).

Because the trial court found a statutory mitigator, it was authorized to reduce the 8-year presumptive term to as low as 4 years, even without referring defendant's case to the three-judge panel. Galaktianoff v. State, — P.3d — (Alaska Ct. App. Feb. 27, 2019), reaff'd, — P.3d — (Alaska Ct. App. 2019).

“Clearly mistaken” test for court review. —

The “clearly mistaken” test implies a permissible range of reasonable sentences which a reviewing court, after an independent review of the record, will not modify. This “range of reasonableness” should be determined not by imposition of an artificial ceiling which limits a large class of offenses to the lower end of the sentencing spectrum, but, rather, by an examination of the particular facts of the individual case in light of the total range of sentences authorized by the legislature for the particular offense. State v. Wentz, 805 P.2d 962 (Alaska 1991).

Standard of review. —

In a sexual assault case, defendant was released from custody where the appellate court should have applied the de novo standard of review to the trial court’s rejection of defendant’s proposed mitigating factors. Michael v. State, 115 P.3d 517 (Alaska 2005).

Rigidly defining length of sentence. —

It is no longer appropriate for courts to rigidly define the length of sentence that can be justified by any particular criterion, provided that the sentence is ultimately within the range allowed by the legislature. State v. Bumpus, 820 P.2d 298 (Alaska 1991).

III.Aggravating and Mitigating Factors
A.Aggravating Factors Generally

In general. —

Defendant failed to establish that she played only a minor role the offense where the trial judge found that she had been an active participant in the victim’s abuse; the victim had been tortured, and defendant actively participated by burning her with a crack pipe and putting a sock in her mouth. Shinault v. State, 258 P.3d 848 (Alaska Ct. App. 2011).

Application of factors. —

Aggravating factors are intended to be criteria for assessing whether a defendant’s conduct and background makes his offense more serious than a typical offense committed by a typical first, second, or third felony offender. Ashenfelter v. State, 988 P.2d 120 (Alaska Ct. App. 1999).

Sentence was not excessive where defendant, a first-felony offender, had a record of assaultive behavior, where the offense was aggravated, where alcohol was involved, and where the court was concerned for the safety of the community. Bailey v. State, — P.3d — (Alaska Ct. App. Sept. 30, 2009) (memorandum decision).

Sentence in an assault case which included a five-year period of probation was proper. Defendant was convicted of hitting, biting and attempting to strangle the victim, had a history of misdemeanor offenses and of prior violence toward women. Tracey v. State, — P.3d — (Alaska Ct. App. Dec. 26, 2013) (memorandum decision).

Sentence imposed upon defendant for attempted medical assistance fraud, was within the permissible range of sentences that a reasonable judge would impose under the circumstances and was, therefore, not clearly mistaken; the sentencing judge took into account defendant's lack of criminal history, her prospects for rehabilitation, and her remorse, but concluded that they were outweighed by the other sentencing criteria. Francisco v. State, — P.3d — (Alaska Ct. App. Nov. 16, 2016) (memorandum decision).

Superior court did not err in considering two statutory aggravators because defendant conceded to both aggravators at sentencing. Johnson v. State, — P.3d — (Alaska Ct. App. Apr. 19, 2017), modified, — P.3d — (Alaska Ct. App. 2017).

Defendant's four-year sentence for second-degree robbery was not excessive, even though his codefendant was sentenced to two-and-a-half years, because the trial court found two aggravating factors that applied based on defendant's criminal history and defendant's more severe sentence was justified by his more blameworthy role in the robbery. The evidence showed that defendant knocked the victim to the ground and then stomped and kicked him, breaking his ribs and his codefendant simply stood by and watched the assault and then he helped carry away the victim's groceries and beer. Sheakley v. State, — P.3d — (Alaska Ct. App. Feb. 5, 2020).

Because the superior court found one or more aggravators, it was authorized to impose a sentence of up to 99 years for defendant's attempted second-degree sexual abuse of a minor conviction; the superior court found two aggravating factors, that the conduct constituting the offense was among the most serious conduct included in the definition of the offense and that defendant, having been convicted of a specified sexual felony, was ten or more years older than the victim. Rosario v. State, — P.3d — (Alaska Ct. App. Feb. 3, 2021) (memorandum decision).

Superior court did not err when it used the clear and convincing standard when deciding whether the State of Alaska established the particularly vulnerable victim aggravator, under AS 12.55.155(c)(5) , because defendant agreed pursuant to a plea agreement for manslaughter that two aggravating factors—use of a dangerous instrument and most serious conduct—applied. Additionally, once any aggravator was established, the superior court was allowed to increase the term of imprisonment up to the maximum term. Degenstein v. State, — P.3d — (Alaska Ct. App. July 31, 2019).

To the extent defendant challenged the finding of the aggravator for conduct that was among the most serious included within the definition of the offense, that issue was moot because the superior court found additional aggravating factors as to his murder and assault convictions. Fischer v. State, — P.3d — (Alaska Ct. App. Mar. 16, 2022).

Use of “same conduct.” —

Court erred in finding the aggravating factor that defendant had engaged in the same conduct with the same victim because defendant was sentenced on consolidated charges that encompassed his entire sexual misconduct with the victim; the court could not separately use the same conduct included in those charges to find the aggravating factor. Turney v. State, — P.3d — (Alaska Ct. App. Sept. 11, 2013) (memorandum decision).

“Direct result” construed. —

Normal meaning of the words “direct” and “result” used in paragraph (c)(1) of this section imply that the defendant’s conduct must, at a minimum, be a “proximate cause” of the victim’s physical injury before the victim’s injury could be said to be a “direct result” of the defendant’s conduct. Whitesides v. State, 88 P.3d 147 (Alaska Ct. App. 2004).

Legislature intends the “direct result” aggravator of paragraph (c)(1) of this section to codify a more stringent test than merely “proximate cause” or “substantial factor.” Whitesides v. State, 88 P.3d 147 (Alaska Ct. App. 2004).

Elements of crime may not form aggravators. —

Where the state had to prove culpable mental states as an element of its case, the existence of those mental states could not serve as an aggravating factor. Ashenfelter v. State, 988 P.2d 120 (Alaska Ct. App. 1999).

Where defendant was convicted for engaging in conduct constituting a scheme to defraud five or more persons, because that offense required a finding that defendant intended to defraud five or more persons, it could not be used as the aggravator that defendant knew more than one victim was involved. Buckwalter v. State, 23 P.3d 81 (Alaska Ct. App. 2001).

Findings not required in probation revocation. —

When revoking a first felony offender’s probation, a judge does not have to make a formal finding of aggravating factors or extraordinary circumstances under the procedures specified in AS 12.55.155 through 12.55.175 : at probation revocation proceedings, the sentencing court does not have to find aggravating factors or extraordinary circumstances by clear and convincing evidence, as opposed to the preponderance of the evidence standard that normally applies at probation revocation hearings. Surrells v. State, 151 P.3d 483 (Alaska Ct. App. 2006).

Effect of no contest plea. —

Despite his no contest plea, the defendant retained the right to contest the elements that distinguished his offense from the higher degrees of the offense that the state, in the sentencing hearing, tried to prove in order to establish an aggravating factor. Ashenfelter v. State, 988 P.2d 120 (Alaska Ct. App. 1999).

Prior delinquency adjudication as aggravating factor. —

Defendant’s Sixth Amendment right to a jury at sentencing was not infringed when the trial court was allowed to consider defendant’s prior adjudication as a delinquent as an aggravating factor under this section. Greist v. State, 121 P.3d 811 (Alaska Ct. App. 2005).

Aggravator in subsection (c)(8) was applied properly. Although AS 47.12.180(a) bars the use of a juvenile adjudication as a prior criminal conviction, defendant’s juvenile assault convictions could be used to establish behavior. Moore v. State, 174 P.3d 770 (Alaska Ct. App. 2008).

Adjustment not necessary to protect public from offender. —

Defendant’s sentence with seven years time to serve was excessive where the judge should not have imposed a sentence of actual time to serve that exceeded five years of imprisonment, because that was the maximum sentence for criminally negligent homicide at the time of defendant’s offense, and there was no basis to conclude that it was necessary to incarcerate defendant for a period of time longer than five years in order to protect the public. Fine v. State, 22 P.3d 20 (Alaska Ct. App. 2001).

Factors not enumerated in subsection (c). —

Superior court erred in taking into consideration aggravating factors which were not enumerated in subsection (c) of this section at the time of sentencing. Woods v. State, 667 P.2d 184 (Alaska 1983).

Probationary reluctance not aggravating factor. —

An offender’s declared reluctance to be placed under probationary supervision is not one of the aggravating factors included in this section. Bland v. State, 846 P.2d 815 (Alaska Ct. App. 1993).

Victim's physical injuries. —

Since the victim’s physical injury is not a necessary element of the crime of sexual assault in the first degree, the superior court properly considered the victim’s physical injuries as an aggravating factor in sentencing the defendant. Woods v. State, 667 P.2d 184 (Alaska 1983).

A sentencing judge could properly consider that a defendant’s use of a dangerous instrument against his victim was exceptionally brutal and involved deliberate cruelty, could consider the extraordinary level of both physical and sexual violence involved in defendant’s assault (violence that led to profound and lasting injuries, which went well beyond what might be considered typical even in cases of serious physical injury), and could properly consider the protracted and repeated nature of defendant’s assaultive conduct (a consideration wholly independent of his use of a dangerous instrument and his infliction of serious physical injury). Wiley v. State, 822 P.2d 940 (Alaska Ct. App. 1991).

Not all acts that physically contribute to a result are deemed significant for purposes of assessing criminal responsibility; paragraph (c)(1) of this section applies only to cases in which a person suffered physical injury as a direct result of the defendant’s conduct. Whitesides v. State, 88 P.3d 147 (Alaska Ct. App. 2004).

Aggravating factor improperly applied. —

Defendant’s sentence for second-degree weapons misconduct was improper because it exceeded the upper end of the applicable presumptive range and the aggravating factor relied on by the trial court did not apply to that charge but to a separate offense occurring on a different date. Pedersen v. State, — P.3d — (Alaska Ct. App. Sept. 10, 2014).

Substantial physical torture of murder victim. —

Where defendant, convicted of first-degree murder, was sentenced to the mandatory minimum term of imprisonment of 99 years imposed by a judge, not a jury, the sentence was not unconstitutional because the offense involved subjecting the victim to substantial physical torture. Malloy v. State, 153 P.3d 1003 (Alaska Ct. App. 2007).

Gratuitous violence. —

Where defendant was visiting with an elderly man and woman when he, without warning, attacked them, beat the man severely, leaving him with permanent brain damage, and raped and beat the woman, the evidence supported the finding of deliberate cruelty sufficient to support the (c)(2) aggravator because the evidence showed gratuitous violence. Although there was no evidence that the woman resisted, defendant beat her severely, and a doctor testified that the male victim’s wounds were so severe that they could have proven fatal. Whitman v. State, — P.3d — (Alaska Ct. App. July 9, 2008) (memorandum decision).

Applicability of paragraph (c)(1). —

Paragraph (c)(1) of this section could not be relied upon to enhance defendant’s sentence for second-degree robbery where defendant was separately convicted and sentenced for assault on a security officer that occurred as part of the same incident. Ward v. State, 120 P.3d 204 (Alaska Ct. App. 2005).

Assault on family member witnessed by child. —

Decision to exceed the benchmark sentencing range was warranted based on the aggravating factors found in AS 12.55.155(c)(18) ; the offense was committed upon defendant’s mother at home and was committed in the presence of defendant’s 8-year-old brother. Israel v. State, 258 P.3d 893 (Alaska Ct. App. 2011) (memorandum decision).

Composite sentence of 72 months with 32 months suspended was valid where the defendant had a history of domestic violence and, in this case, he committed an aggravated assault against his domestic partner, as well as an assault on her child, who had just witnessed him strangling her mother. Packard v. State, — P.3d — (Alaska Ct. App. May 21, 2014) (memorandum decision).

Injury from ingesting drugs not “direct result” of drug sale. —

Defendant convicted for the sale of heroin was not subject to aggravator of paragraph (c)(1) of this section merely because the purchaser died of a drug overdose; the drug purchaser’s physical injury from ingesting drugs was not a “direct result” of the sale of drugs. Whitesides v. State, 88 P.3d 147 (Alaska Ct. App. 2004).

Commission of heinous offenses while on parole. —

The sentencing judge could have properly concluded that defendant was a person from whom society may never be safe if released from custody, where defendant committed heinous offenses within a few weeks of being paroled; and, when not incarcerated, defendant repeatedly committed crimes and violated probation and parole conditions, and his offenses continually increased in severity. Marcy v. State, 823 P.2d 660 (Alaska Ct. App. 1991).

Manner in which crime committed. —

In evaluating a defendant as a worst offender for the purpose of imposing a maximum sentence, the manner in which the crime was committed, as well as the defendant’s character and background, is significant. Napayonak v. State, 793 P.2d 1059 (Alaska Ct. App. 1990).

Defendant’s conduct manifested deliberate cruelty where defendant whipped the victim intermittently with speaker wire, beat her with a knife handle and the butt of a handgun, and pointed a gun between her eyes and threatened to shoot her. Soundara v. State, 107 P.3d 290 (Alaska Ct. App. 2005).

Extraordinarily aggravated first offense. —

The defendant’s longstanding history of sexually assaultive conduct, his psychological problems, his past failure to make any realistic effort toward rehabilitation, the potentially life-threatening nature of the defendant’s physical attack on his current victim, and the fact that the defendant’s ensuing acts, in effect, amounted to attempted rape and kidnapping, qualified the defendant’s crimes for treatment as extraordinarily aggravated first offense class B felonies. Carroll v. State, 859 P.2d 718 (Alaska Ct. App. 1993).

Renter’s abuse of his landlord’s trust is a proper factor to take into account when judging the seriousness of the renter’s subsequent burglary. Wesolic v. State, 837 P.2d 130 (Alaska Ct. App. 1992).

Pecuniary gain. —

In a conviction for importation of alcoholic beverages into a local option community, the trial court did not rely on improper considerations in formulating defendant’s sentence because the felony aggravator that defendant’s criminal conduct was designed to obtain substantial pecuniary gain where the risk of prosecution and punishment for the conduct was slight did not apply to her case; the judge made it very clear that he was not inferring that defendant was going to resell the alcohol she imported; the judge explained that the primary focus of defendant’s sentence was deterrence; and the judge’s comments focused on the relatively large quantity of alcohol involved and the negative consequences of alcohol importation to a dry community. Olson v. State, 364 P.3d 454 (Alaska Ct. App. 2015).

Escalating acts of domestic violence. —

Sentences for assault and drug offenses were not excessive under AS 12.55.125 and AS 12.55.155 because, among other things, the superior court concluded that defendant had engaged in escalating acts of domestic violence. As to the drug offenses, there was signifcant evidence that defendant was involved with drugs for the last 30 years, and circumstantial evidence was presented that defendant was a drug dealer. Vickers v. State, — P.3d — (Alaska Ct. App. Sept. 24, 2008) (memorandum decision).

“Deliberate cruelty,” as used in paragraph (c)(2) of this section, must be restricted to instances in which pain, whether physical, psychological, or emotional, is inflicted gratuitously or as an end in itself. Conversely, when the infliction of pain or injury is merely a direct means to accomplish the crime charged, the test for establishing the aggravating factor of deliberate cruelty will not be met. Juneby v. State, 641 P.2d 823 (Alaska Ct. App. 1982), modified, 665 P.2d 30 (Alaska Ct. App. 1983).

“Deliberate cruelty” is conduct which involves gratuitously inflicted torture or violence. Jones v. State, 765 P.2d 107 (Alaska Ct. App. 1988).

Finding that defendant convicted of second-degree murder acted with “deliberate cruelty” was not clearly mistaken. Komakhuk v. State, 719 P.2d 1045 (Alaska Ct. App. 1986).

“Deliberate cruelty”, as referred to in paragraph (c)(2), is conduct which involves gratuitously inflicted torture or violence. However, when the relevant conduct is merely a direct means to accomplish the crime charged, the conduct may not also be included as a separate aggravating factor. Machado v. State, 797 P.2d 677 (Alaska Ct. App. 1990).

The trial court’s findings that defendant had tortured the victim for his sexual gratification and had gratuitously inflicted pain upon her when he had sexually assaulted and murdered her clearly supported the aggravating factor that defendant acted with “deliberate cruelty.” Harmon v. State, 908 P.2d 434 (Alaska Ct. App. 1995), overruled, State v. Coon, 974 P.2d 386 (Alaska 1999).

State proved deliberate cruelty where defendant gratuitously inflicted pain on his 15-year-old victim, over and above what was ancillary to his commission of rape; he raped her repeatedly in multiple orifices and inserted a bottle as well, knowing he was causing her significant pain. Scholes v. State, 274 P.3d 496 (Alaska Ct. App. 2012).

Sentence for terroristic bombing. —

Sentence of four years, with one year suspended, for terroristic bombing was excessive, where the aggravating factors of “deliberate cruelty” and prior repeated instances of assaultive behavior were not supported by the record. Allen v. State, 759 P.2d 541 (Alaska Ct. App. 1988).

Applicability of paragraphs (c)(2) and (c)(10). —

Defendant’s actions in forcing a female taxi cab driver to drive to an isolated area, robbing the victim at gunpoint, and severely beating the victim to the extent that the victim was almost killed and required extensive surgery, justified the trial court’s finding that the offenses of robbery in the first degree and assault in the first degree had been committed with “deliberate cruelty” and constituted “the most serious conduct” included in the definition of those offenses, within the meaning of paragraphs (c)(2) and (c)(10). Wright v. State, 46 P.3d 395 (Alaska Ct. App. 2002).

Applicability of paragraph (c)(4). —

Mere possession of a dangerous instrument does not satisfy the requirements of (c)(4). Abdulbaqui v. State, 728 P.2d 1211 (Alaska Ct. App. 1986).

Judge improperly imposed an aggravating factor under paragraph (c)(4) of this section to add an additional suspended sentence onto the presumptive sentence because the use of a motor vehicle (dangerous instrument used in committing an offense) was a necessary element that the state had failed to adequately brief. Ned v. State, 119 P.3d 438 (Alaska Ct. App. 2005).

Vulnerability of victim. —

Trial judge did not err in finding aggravating factor (c)(5) applicable, even though the victim was nineteen years old at the time of the assault, since the assault for which the defendant was convicted culminated a long history of sexual and physical abuse that began when the victim was a young child and was particularly vulnerable to his assaultive conduct; through his prolonged pattern of abuse, the defendant rendered his victim incapable of exercising the type of resistance that could be expected from a typical nineteen-year-old. Williams v. State, 859 P.2d 720 (Alaska Ct. App. 1993).

In sentencing upon a conviction for sexual abuse of a minor in the second degree, the trial court properly found that the victim was particularly vulnerable because she was asleep when defendant molested her. Wassillie v. State, 911 P.2d 1071 (Alaska Ct. App. 1996).

The aggravating factor based on the defendant’s intoxication was not a bar to consideration of the victim’s intoxication as making her particularly vulnerable to assault. Sakeagak v. State, 952 P.2d 278 (Alaska Ct. App. 1998).

The trial court could properly conclude that defendant’s conduct was aggravated under subsection (c)(5) because defendant knew or reasonably should have known that the massage therapy clients with which he engaged in improper sexual contact were particularly vulnerable or incapable of resistance. Ritter v. State, 97 P.3d 73 (Alaska Ct. App. 2004).

Even if it were assumed that the victim’s heightened psychological or emotional vulnerability on June 27, 2002 was the result of defendant’s previous sexual assault on her on June 26, 2002, the trial court did not err when it considered the aggravator set forth in subsection (c)(5) when formulating defendant’s sentence for the June 27th sexual assault. Douglas v. State, 215 P.3d 357 (Alaska Ct. App. 2009).

Composite sentence of 37 years with 19 years to serve, on 10 counts of child abuse involving three very young children over a period of many months, was authorized; defendant stipulated that he knew the victims were vulnerable due to their extreme youth, five and seven years old. Anderson v. State, 289 P.3d 1 (Alaska Ct. App. 2012), reaff'd, 337 P.3d 534 (Alaska Ct. App. 2014).

Failure to submit aggravator to jury. —

Trial court erred in finding aggravating factor AS 12.55.155(c)(5) (particularly vulnerable victim) without submitting this issue to a jury, and without requiring the State to prove this factor beyond a reasonable doubt. Although the State argued that the judge’s error was harmless because the defendant received a mitigated sentence, the appellate court did not know what weight, if any, the judge gave to this aggravator. Kuku v. State, — P.3d — (Alaska Ct. App. Oct. 2, 2013) (memorandum decision).

Defendant waived his right to a jury determination on a statutory aggravator because defendant ratified his plea agreement with awareness of the waiver of his right to a jury trial. Johnson v. State, — P.3d — (Alaska Ct. App. Apr. 19, 2017), modified, — P.3d — (Alaska Ct. App. 2017).

Construction of (c)(4) and (c)(6). —

In a manslaughter prosecution, two aggravating factors were found where defendant shot and killed an unarmed, fleeing youth and additionally shot at unoccupied hotel rooms in the background. The imposition of the presumptive five-year term was warranted where no mitigating factors were found. Lowe v. State, 866 P.2d 1320 (Alaska Ct. App. 1994).

Trial court erred in concluding that aggravator in paragraph (c)(5) had been established where the finding of vulnerability was based solely upon an environmental factor, that the victim was in her own apartment where she had a right to be protected. Braaten v. State, 705 P.2d 1311 (Alaska Ct. App. 1985).

Applicability of paragraph (c)(6). —

Where the evidence indicated that, during the course of a robbery, one of the robbers was armed with a stun gun and also shoved one of the bystanders out of the way, the trial judge properly concluded that there was an imminent risk of injury created in accordance with paragraph (c)(6). Miller v. State, 866 P.2d 130 (Alaska Ct. App. 1994).

Defendant's composite sentence of 32 years for two counts of second-degree murder based on vehicular homicide was remanded to the trial court for reconsideration because the trial court erred by concluding that at 20- to 30-year benchmark sentencing range applied to first felony offenders convicted of second-degree murder arising from a vehicular homicide, as the Page benchmark range applied only to second-degree murders that arose from intentional assaults. The trial court also erred by concluding that defendant's sentence should be increased because his conduct endangered three or more people and it relied on an improper interpretation of community condemnation that incorporated raw emotion and notions of retribution. Graham v. State, 440 P.3d 309 (Alaska Ct. App. 2019).

Felonies committed under prior law. —

When applying the aggravator in paragraph (c)(7) to felonies committed under prior law, the court of appeals looks to the offense defined by current law that is the nearest equivalent to the defendant’s prior felony. Capwell v. State, 823 P.2d 1250 (Alaska Ct. App. 1991).

“Criminal history.” —

While it appears that the legislature wanted the aggravating factor in paragraph (c)(8) broadened to include sufficiently verified prior criminal behavior other than convictions, there is no indication that the legislature intended to further broaden the aggravating factor to include a single prior incident of aggravated assaultive behavior. Nashoalook v. State, 744 P.2d 420 (Alaska Ct. App. 1987).

The term “criminal history” in paragraph (c)(21) does not connote or denote past criminal convictions, but merely past conduct violative of criminal laws. Fagan v. State, 779 P.2d 1258 (Alaska Ct. App. 1989).

The term “criminal history” includes incidents that were not prosecuted or that otherwise did not result in convictions. Russell v. State, 934 P.2d 1335 (Alaska Ct. App. 1997).

Trial court did not err in finding the aggravating factor, under paragraph (c)(8), that defendant’s prior criminal history included conduct involving aggravated or repeated instances of assaultive behavior; a finding of such a prior criminal history did not require proof that defendant was prosecuted or convicted, and, thus, it was immaterial that defendant had been found not guilty by reason of insanity of murder. Alto v. State, 64 P.3d 141 (Alaska Ct. App. 2003).

Where it was proven that defendant committed the charged offenses over a relatively short period of time, had a criminal history that spanned 30 years and included 9 prior felonies, and demonstrated an inability to comply with the conditions of parole, the sentence imposed did not constitute cruel and unusual punishment.. Hernandez v. State, — P.3d — (Alaska Ct. App. Aug. 8, 2012), dismissed, — P.3d — (Alaska Ct. App. 2019) (memorandum decision).

Superior court properly sentenced defendant to 30 years to serve for first-degree sexual abuse of his minor stepdaughter because he had a criminal history—he had physically and sexually abused his biological sister—he was not eligible for good time deductions where he was sentenced for an unclassified sexual felony, and he was not eligible for discretionary parole. Evans v. State, — P.3d — (Alaska Ct. App. Aug. 23, 2017) (memorandum decision).

Defendant's sentence of five years with two and a half years suspended was not clearly mistaken because his conduct of assaulting the victim was elevated to a felony based on his two prior convictions for fourth-degree assault; defendant had over ninety prior misdemeanor and minor offense convictions and multiple probation violations. Jonas v. State, — P.3d — (Alaska Ct. App. Aug. 8, 2018) (memorandum decision).

Worst offender finding was supported by evidence that defendant was 47 years old, had 21 prior convictions, including multiple assault convictions, and the murder was premeditated and intentional. Fischer v. State, — P.3d — (Alaska Ct. App. Mar. 16, 2022).

In a case in which defendant was convicted of sexual assault in the second degree (sexual penetration with an incapacitated person), defendant’s 15-year sentence with 6 years suspended was not excessive as the superior court found three statutory aggravating factors, which authorized the superior court to impose a sentence of up to 99 years; and all three aggravators were related to defendant’s prior criminal history and included nine misdemeanor charges - including attempted sexual abuse of a minor in the third degree for engaging in sexual conduct with a 15-year-old while she was asleep, and assault in the fourth degree for an incident that arose after he tried to force himself onto a woman in a restroom. Fawcett v. State, — P.3d — (Alaska Ct. App. Dec. 8, 2021).

Aggravators under paragraphs (c)(8) and (21) properly applied. —

While some provisions of the pre-2005 sentencing law did not comply with the right to jury trial under the Sixth Amendment as interpreted in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), the flaws did not affect defendant’s sentencing, where the state could use defendant’s undisputed prior convictions to prove aggravators paragraphs (c)(8) and (21) of this section without submitting them to a jury. State v. Herrmann, 140 P.3d 895 (Alaska Ct. App. 2006).

Aggravators based on prior convictions upheld. —

Trial court committed no plain error under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), by deciding the aggravator under paragraph (c)(8) without submitting the issue to the jury because it was based on the fact that defendant had several prior convictions for assault, sexual assault, or robbery. Nor did the trial court err by deciding the aggravator under subparagraph (c)(18)(B) without submitting it to a jury because it was based solely on defendant’s 1993 conviction of second-degree sexual assault. Active v. State, 153 P.3d 355 (Alaska Ct. App. 2007).

Trial court did not err by finding that the State had proved the aggravating factor AS 12.55.155(c)(21) where only two of his prior four convictions were necessary elements of the underlying offense, AS 28.35.030(n) , and thus, the trial court properly relied on the two remaining convictions to find the proposed aggravating factor. Smith v. State, — P.3d — (Alaska Ct. App. Aug. 19, 2020) (memorandum decision).

Aggravator improperly applied where prior juvenile offense was a misdemeanor. —

In a case where defendant agreed to plead no contest to attempted first-degree sexual abuse of a minor in exchange for a sentence of 12 years’ imprisonment with seven years suspended, he stipulated to two aggravating factors, one of which was misapplied in this case because defendant’s prior juvenile offense of fourth-degree sexual abuse of a minor as defined in AS 11.41.440(a)(1) was a misdemeanor and not a felony; however, defendant was not entitled to rescission of his plea bargain under Alaska R. Crim. P. 11(h) because the other stipulation was sufficient to establish superior court’s authority to impose the negotiated sentence. Malutin v. State, 198 P.3d 1177 (Alaska Ct. App. 2009).

Failure to submit aggravator to jury not plain error. —

Even though the trial court should have submitted the aggravator of subparagraph (c)(18)(A) to the jury, there was no plain error where defendant never claimed that there was any reasonable possibility that a jury would have decided the aggravator in his favor. Active v. State, 153 P.3d 355 (Alaska Ct. App. 2007).

Inordinate weight given to seriousness of prior conviction. —

Composite term of sixty years upon conviction of two counts of sexual abuse of a minor in the first degree was clearly mistaken, and the case was remanded for imposition of a total sentence not to exceed sixty years with ten years suspended, where the sentencing court’s reliance upon the seriousness of defendant’s prior murder conviction placed inordinate and disproportionate weight on a single aggravating factor. Murray v. State, 770 P.2d 1131 (Alaska Ct. App. 1989).

Prior assaultive conduct considered. —

Trial court, in imposing sentence upon a conviction for sexual assault in the first degree, did not err in considering the assaultive conduct which occurred during defendant’s prior felony (burglary) in determining that the state established the aggravating factor set forth in paragraph (c)(8). Kankanton v. State, 765 P.2d 101 (Alaska Ct. App. 1988).

Defendant's sentence of five years to serve with no suspended time was appropriate when defendant was convicted of third-degree assault under a recidivist theory for assaulting defendant's ex-paramour because defendant's prior history included repeated instances of assaultive behavior and defendant was on probation for another felony and because conduct in this case was not least serious conduct constituting the offense. Although defendant also argued that the sentence was excessive, the sentence imposed was not clearly mistaken. Shedlosky v. State, 472 P.3d 1094 (Alaska Ct. App. 2020).

Quantity and type of prior convictions considered. —

Petitioner’s sentence was not illegal under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), where it was uncontested that he had a prior conviction for a class B felony offense, four prior convictions for assault, three or more prior felony convictions, and several prior felony convictions for possession and sale of illegal drugs. State v. Avery, 130 P.3d 959 (Alaska Ct. App. 2006).

Paragraph (c)(9) construed. —

The sentencing court did not err in increasing, pursuant to paragraph (c)(9), the defendant’s presumptive term of imprisonment due to aggravating factors. Given that the plea agreement authorized the court to broaden its consideration from the specific criminal act for which the defendant was convicted to the totality of the defendant’s criminal misconduct, and because the defendant’s acts were closely related in time and circumstances, the court’s decision to find that the defendant knew that the offense involved more than one victim was permissible as a matter of law. Mills v. State, 839 P.2d 417 (Alaska Ct. App. 1992).

Applicability of paragraph (c)(10). —

Where defendant had 21.1 grams of cocaine in his vest pocket and had told the pre-sentence investigator that he used cocaine mostly on weekends, when he might consume up to a gram, given defendant’s self-declared rate of consumption and the fact that the amount in his vest pocket represented a 21-week supply, the judge fairly concluded that defendant would not carry such a large amount unless he intended to sell it and properly found that aggravator (c)(10) applied. Pitka v. State, 19 P.3d 604 (Alaska Ct. App. 2001).

Superior court did not create a new non-statutory aggravator because based on the inexplicable randomness of defendant's violent outburst, the superior court concluded that one of the aggravators applied to defendant's case: that defendant's conduct was among the most serious conduct included in the definition of the offense. Johnson v. State, — P.3d — (Alaska Ct. App. Apr. 19, 2017), modified, — P.3d — (Alaska Ct. App. 2017).

Superior court did not commit clear error in rejecting defendant's trial testimony that he was merely defending himself or in finding that the injuries defendant inflicted were serious because defendant's crime, assault, was among the most serious conduct included in the definition of his offense. Johnson v. State, — P.3d — (Alaska Ct. App. Apr. 19, 2017), modified, — P.3d — (Alaska Ct. App. 2017).

“Most serious conduct included.” —

The legislative history of paragraph (c)(10) of this section makes it clear that the drafters of this provision intended that the determination of whether an offender’s conduct “was among the most serious conduct included in the definition of the offense” was to be based on an assessment of the specific facts of each case, viewed in relation to the most serious potential conduct constituting the offense charged. Juneby v. State, 641 P.2d 823 (Alaska Ct. App. 1982), modified, 665 P.2d 30 (Alaska Ct. App. 1983).

In order to find an aggravating factor under paragraph (c)(10) of this section, it is not necessary to establish that there are no other cases involving more serious conduct; it is sufficient if the offense falls within the general class of the most serious offenses. Peetook v. State, 655 P.2d 1308 (Alaska Ct. App. 1982).

Since a finding of “most serious conduct” under paragraph (c)(10) of this section would be based partly on other specified aggravating factors, this factor should properly be viewed as subsuming the aggravating factors on which it is based. Peetook v. State, 655 P.2d 1308 (Alaska Ct. App. 1982).

Paragraph (c)(10) stresses conduct involved in specific offense under consideration rather than personal characteristics of offender and requires comparison of conduct constituting crime in question with other conduct which would satisfy elements of the offense. Brezenoff v. State, 658 P.2d 1359 (Alaska Ct. App. 1983).

Defendant’s repeated acts over a five-year period of sexual molestation of 12-year-old adopted daughter and resultant psychological damage to child could be considered as being “among the most serious conduct” under paragraph (c)(10) and, thus, may justify a sentence equal to one that could have been imposed on an offender who used a firearm or caused serious physical injury to an older victim as a result of a single isolated assault. Ecker v. State, 656 P.2d 577 (Alaska Ct. App. 1982).

While no violence was involved, trial court properly found that appellant’s embezzlement of $140,000 from her employer over a one-year period was among the most serious conduct prescribed by the statute and served to distinguish it from prior cases in which substantial sentences for embezzlement were disapproved. Brezenoff v. State, 658 P.2d 1359 (Alaska Ct. App. 1983).

The court could properly consider the amount of damage caused to a commercial building, the value of the tractor-trailer the defendant took after entering the building, and the fact of its use and abandonment as circumstances constituting the “most serious conduct” for burglary in the second degree. Martin v. State, 704 P.2d 1341 (Alaska Ct. App. 1985).

Trial court’s finding that defendant’s perjury “was among the most serious conduct included in the definition of the offense”, as referred to in paragraph (c)(10), was not clearly erroneous, where his false testimony at a search warrant hearing concerned the events surrounding a car bombing for which he was subsequently prosecuted and convicted. Machado v. State, 797 P.2d 677 (Alaska Ct. App. 1990).

Trial court’s finding that defendant’s offense was among the “most serious” within the definition of second-degree sexual abuse of a minor was justified based on the victim’s statements that, shortly before defendant abused her, he aided another man in raping her. Evan v. State, 899 P.2d 926 (Alaska Ct. App. 1995).

In sentencing the defendant for the crimes of manslaughter and first-degree assault, the court properly found that her conduct was among the most serious within the definition of manslaughter (aggravator (c)(10)), based on the fact that the conviction encompassed three homicides and on the fact that her culpable mental state approached the culpability of second-degree murder. Pusich v. State, 907 P.2d 29 (Alaska Ct. App. 1995).

Sentencing court could properly conclude that defendant’s physical and sexual assaults on victim were related to earlier delivery of cocaine to her, and aggravated the controlled substance misconduct offense under paragraph (c)(10). Martin v. State, 973 P.2d 1151 (Alaska Ct. App. 1999).

In a driving while intoxicated case, court properly found that defendant’s conduct was most serious conduct where defendant had a high blood alcohol level, was also under the influence of cocaine, and drove on the sidewalk, risking injury to many people. Baker v. State, 110 P.3d 996 (Alaska Ct. App. 2005).

Defendant’s composite sentence of 19 years’ imprisonment with 8 years suspended was not clearly mistaken given the fact that defendant conceded one aggravating factor relating to that drug offense, the aggravator under paragraph (c)(10), that his conduct was among the most serious; as a factual matter, he actually delivered LSD to a minor. Parker v. State, 151 P.3d 478 (Alaska Ct. App. 2006).

Evidence that, besides acts of sexual abuse, defendant had engaged in significant acts of violence both toward strangers and toward members of his own households, had already served a substantial prison sentence for a felony theft conviction, had persistently resisted both rehabilitative programs and probation supervision, and that his criminal behavior had escalated in seriousness over the past 15 years, placed his case among the most aggravated category of sexual abuse and sexual abuse offenders and supported the court’s conclusion that defendant posed a substantial degree of danger to society and that, in order to protect society, the court needed to sentence defendant to a term of imprisonment exceeding the 30-year maximum for any single count of first-degree sexual abuse. Mullin v. State, 886 P.2d 1323 (Alaska Ct. App. 1994).

Although defendant challenged the jury's finding that his first-degree sexual abuse conviction was among the most serious within the definition of that offense, that claim was moot because the three-judge sentencing panel did not impose an aggravated sentence, and it explicitly stated that it did not give any weight to that aggravating factor in sentencing defendant. Cox v. State, — P.3d — (Alaska Ct. App. June 1, 2016) (memorandum decision).

Trial court properly sentenced defendant to 10 years to serve and 10 years of probation for attempted second-degree sexual abuse of a minor with “most serious” aggravator because he seized a seven-year-old child, pulled him into a carport, covered his mouth, kissed him, and touched his penis and buttocks; although he immediately confessed his actions to the police, the record showed that the trial court carefully considered and found defendant's prospects for rehabilitation to be “very guarded” and found him to “as clear and present a danger as he had seen, and the record documented multiple acts of assault and continued engagement in sexually inappropriate behavior within institutionalized settings. Konovalov v. State, — P.3d — (Alaska Ct. App. Aug. 2, 2017) (memorandum decision).

Sentencing judge did not err in finding that defendant's acts of manipulating and re-positioning the two pistols of the state troopers that his son shot were among the most serious within the definition of evidence tampering because the acts of tampering were designed to make it appear as if the two troopers had drawn their weapons to make a misdemeanor arrest of an unarmed man, and, thus, portraying the two troopers as overly aggressive, if not unlawfully aggressive; and defendant's actions had a potential to create a negative perception of law enforcement officers in rural communities where troopers implicitly depended on community support and, to a certain extent, community protection when they were engaged in their duties. Kangas v. State, — P.3d — (Alaska Ct. App. June 13, 2018) (memorandum decision).

In a third-degree criminal mischief case in which defendant broke into a church and caused significant damage to church property and to various items of religious significance, the superior court's decision to impose a conviction of record and to deny defendant's request for a suspended imposition of sentence was not clearly mistaken based on the seriousness of the crime and the extraordinary damage it caused. Garcia v. State, — P.3d — (Alaska Ct. App. Jan. 9, 2019) (memorandum decision).

In a third-degree criminal mischief case in which defendant broke into a church and caused significant damage to church property and to various items of religious significance, the superior court did not err in finding that defendant's conduct was among the most serious included in the definition of third-degree criminal mischief, and in concluding that the mitigating factors were greatly outweighed by the nature of defendant's destructive acts, the monetary damage to the church, and the larger impact of those acts on the local church community and the faithful worldwide. Garcia v. State, — P.3d — (Alaska Ct. App. Jan. 9, 2019) (memorandum decision).

Sentence was not clearly mistaken when defendant was sentenced following a plea of guilty to a consolidated count of second-degree sexual abuse of a minor, encompassing multiple acts of completed sexual penetration, because defendant's conduct was among the most serious conduct included in the definition of second-degree sexual abuse of a minor, the victim was very young, defendant had a position of trust and authority over the victim, and defendant engaged in a pattern of grooming behavior over a period of time. Colocho v. State, — P.3d — (Alaska Ct. App. Aug. 19, 2020) (memorandum decision).

Jury’s finding that defendant’s conduct was among the most serious included within the definition of third-degree sexual assault was reversed because at the guilt phase, the jury appeared to have found that the evidence was insufficient to establish that defendant intended to penetrate the victim. Walunga v. State, — P.3d — (Alaska Ct. App. Dec. 8, 2021).

Blakely violation harmless where sentence could be imposed without aggravator. —

Although a sentencing court imposed defendant’s sentence for first-degree assault using the aggravating factor of paragraph (c)(10) of this section, for conduct among the most serious within the definition of first-degree assault, in violation of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), the error was harmless where the sentencing court could have imposed the same 10 year with 5 years suspended sentence without relying on an aggravating factor. Billum v. State, 151 P.3d 507 (Alaska Ct. App. 2006).

Crime involving multiple victims and discrete episodes. —

Composite sentence of 20 years’ imprisonment for 12 crimes convicted within a two-month period was supported by the record and by trial judge’s findings of aggravating factors AS 12.55.155(c)(12) , (c)(19), and (c)(21); crimes involved many different victims and comprised discrete criminal episodes, constituting a good reason to impose a composite term that exceeded the 10-year presumptive term. Smith v. State, 187 P.3d 511 (Alaska Ct. App. 2008).

Paragraph (c)(13) reflects at least two distinct legislative interests: There is a public interest in having the duties of public safety officers carried out efficiently and free from hindrance, and there is a separate interest in avoiding the additional possibility of public danger generated whenever a safety officer is challenged or hindered in the execution of his duties. Gilbreath v. State, 668 P.2d 1354 (Alaska Ct. App. 1983).

Paragraph (c)(13) construed. —

Nothing in the legislative history supports the suggestion that paragraph (c)(13) is to be applied only when the offense for which the defendant is being sentenced is itself susceptible to the characterization of being “directed at” someone; rather this paragraph plainly states only that the conduct constituting the offense must be directed at a public safety officer. Gilbreath v. State, 668 P.2d 1354 (Alaska Ct. App. 1983).

Finding of an aggravating factor, that defendant’s assault was knowingly directed at a law enforcement officer, was not clearly erroneous. Smith v. State, 682 P.2d 1125 (Alaska Ct. App. 1984).

“Prior felony conviction”. —

The definition of a “prior felony conviction” set forth in AS 12.55.145(a)(2) must govern the use of this phrase in paragraph (c)(15) of this section. Where no more than two of defendant’s prior convictions qualified as prior felony convictions under this definition, it was error to find aggravating factor (c)(15) applicable, necessitating remand for resentencing without reliance on aggravating factor (c)(15). Mancini v. State, 841 P.2d 184 (Alaska Ct. App. 1992).

Because defendant conceded existence of prior convictions at his original sentencing, trial court judge could find aggravator factor under paragraph (c)(15) without submitting issue to a jury. Baker v. State, 182 P.3d 655 (Alaska Ct. App. 2008).

Because the elements of two Oregon criminal offenses for second-degree robbery and first-degree burglary were similar to the elements of Alaska felonies, they were considered to be “prior felony convictions” for purposes of presumptive sentencing under this section. State v. Delagarza, 8 P.3d 362 (Alaska Ct. App. 2000).

Applicability of paragraph (c)(16). —

The aggravator pertaining to the low risk of prosecution is intended to be applied to “white-collar” crimes, generally defined as involving embezzlement, forgery, or fraud, and it did not apply in sentencing for conviction of growing marijuana for sale. Landon v. State, 941 P.2d 186 (Alaska Ct. App. 1997).

Applicability of paragraph (c)(17). —

Evidence as to defendant’s marijuana growing operation did not establish that he was engaged in a continuing series of criminal offenses, and the fact that he was represented by publicly-funded counsel did not constitute clear and convincing evidence of his participation in a continuing criminal enterprise, or that he derived a major portion of his income therefrom. Landon v. State, 941 P.2d 186 (Alaska Ct. App. 1997).

Offense need not occur in the home. —

Although factor (c)(18) does require the victim to live in the same dwelling as the defendant, it does not require the offense to occur in the home; nor does the aggravating factor expressly require either the defendant’s or the victim’s physical presence in the home at any particular time in relation to the time of the offense, provided both are shown to be “living together” there. What constitutes “living together” is not defined. The purpose of the residency requirement, however, is to circumscribe the relevant scope of the “social unit” whose “members” are included in factor (c)(18). Williams v. State, 859 P.2d 720 (Alaska Ct. App. 1993).

Even if the defendant and the victim are not physically residing in the same dwelling at the time of an offense, factor (c)(18) will continue to apply if both regard the same dwelling as their primary domicile, and if their physical absence therefrom is temporary. Here, the evidence before the sentencing court established that the victim, who grew up in the defendant’s home, was temporarily away from the home while attending college. The record supported the conclusion that both defendant and his victim retained their domicile in the family home and remained members of the same social unit for purposes of factor (c)(18). Williams v. State, 859 P.2d 720 (Alaska Ct. App. 1993).

Legislative intent of subparagraph (c)(18)(A). —

By enacting the aggravating factor in subparagraph (c)(18)(A), the legislature has declared that felony assaults against spouses and former spouses are to be considered atypically serious, all else being equal; this provision, along with AS 12.45.120 (5), by which the victims of misdemeanor domestic assaults can no longer reconcile with their attackers and then demand dismissal of criminal charges, embodies concern over the alarming frequency and devastating consequences of domestic violence. Pickard v. State, 965 P.2d 755 (Alaska Ct. App. 1998).

Living situation covered by (c)(18). —

Paragraph (c)(18) covers a living situation such as that where three men are living together in the house one of them owns. Komakhuk v. State, 719 P.2d 1045 (Alaska Ct. App. 1986).

Applicability of paragraph (c)(18). —

That defendant’s minor sexual abuse victims were members of the social unit comprised of those living together in the same dwelling as the defendant serves to aggravate the offense slightly; but this aggravating factor, standing alone, would not justify imposing a sentence on a first-felony offender equal to the presumptive term for a second-felony offender; it certainly would not justify a more severe sentence than a second-felony offender would receive. Olp v. State, 738 P.2d 1117 (Alaska Ct. App. 1987) (decided prior to 1988 amendment).

It was no reversible error to find AS 12.55.155(c)(5) and AS 12.55.155(c)(18)(B) aggravating factors because, (1) as to the latter factor, defendant's claim it did not apply to consolidated counts encompassing all defendant's acts did not apply to the facts, as this factor was based on abuse of a child not named in a consolidated count, and (2) any error in finding the former factor was harmless, given other factors properly found. Cancel v. State, — P.3d — (Alaska Ct. App. July 25, 2018) (memorandum decision).

Applicability of paragraph (c)(19). —

Sentencing of defendant was legal under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), because court was authorized to rely on adjudication of defendant as a delinquent juvenile for conduct which would have been a felony if committed by an adult, an aggravating factor under paragraph (c)(19) of this section which fell within Blakely’s exception for prior convictions. Greist v. State, — P.3d — (Alaska Ct. App. Sept. 2, 2005), op. withdrawn, — P.3d — (Alaska Ct. App. 2005), sub. op., 121 P.3d 811 (Alaska Ct. App. 2005).

Errors in applying paragraph (c)(20). —

The sentencing judge erred in applying paragraph (c)(20) as an aggravating factor where the defendant was on probation for offenses that were felonies in Oregon but were not felonies under Alaska law; AS 12.55.145 applies in defining what a “felony charge or conviction” is for purposes of paragraph (c)(20). Kuvaas v. State, 696 P.2d 684 (Alaska Ct. App. 1985).

Probation or parole aggravator conceded by attorney. —

It was not plain error for the judge to rely on the defense attorney’s concession of the paragraph (c)(20) aggravator, being on felony probation or parole, rather than addressing defendant, since (1) reasonable judges could differ as to what the law required in this situation, and (2) there was no reasonable possibility that, if the aggravator had been submitted to a jury, the jury would have found in defendant’s favor on this issue. Cooper v. State, 153 P.3d 371 (Alaska Ct. App. 2007).

Motion to correct sentence was properly denied because any Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), right to jury trial error was harmless by the trial court’s finding of an aggravator under paragraph (c)(20) of this section, based on defendant’s stipulation, because the underlying facts were not in dispute; the defendant was on felony parole at time of his felony driving under the influence offense, so an agreed-upon five-year sentence could be lawfully imposed. Woodbury v. State, 151 P.3d 528 (Alaska Ct. App. 2007).

Aggravators under (c)(21) properly considered. —

Although aggravator under subsection (c)(21) may be proven by evidence of uncharged criminal conduct, the state relied solely on defendant’s six prior convictions for driving under the influence, and when a defendant’s maximum sentence hinged on the defendant’s prior convictions, and the defendant did not dispute those prior convictions, sentencing judge could rely on the prior convictions without submitting them to a jury. Tyler v. State, 133 P.3d 686 (Alaska Ct. App. 2006).

“Criminal history.” —

A defendant’s “criminal history” includes acts that could have been charged as crimes, regardless of whether the defendant was ever prosecuted and convicted for those acts. Turpin v. State, 890 P.2d 1128 (Alaska Ct. App. 1995).

The legislature intended the term “criminal history” to include acts committed by a juvenile. Andrews v. State, 967 P.2d 1016 (Alaska Ct. App. 1998).

Sentencing judge under Alaska’s pre-2005 presumptive sentencing laws could have properly relied on a defendant’s prior convictions as a basis for finding aggravator paragraph (c)(21) of this section, at least when he did not dispute the fact of those convictions, where the state relied simply on the convictions themselves and the legal elements of those crimes, rather than attempting to introduce evidence of the particular facts underlying those prior convictions. Grohs v. State, 118 P.3d 1080 (Alaska Ct. App. 2005).

“Similar in nature.” —

Where defendant never disputed the fact that he had seven prior convictions for assault and one prior conviction for resisting arrest, there was no reasonable possibility that a jury would find in his favor on the question of whether he had the prior convictions or whether the convictions constituted instances of assaultive behavior under paragraph (c)(8) or instances of criminal behavior “similar in nature” to the assault for which he was being sentenced under paragraph (c)(21). Lockuk v. State, 153 P.3d 1012 (Alaska Ct. App. 2007).

Incidents of misconduct “similar in nature”. —

Incidents of misconduct may fairly be said to be “similar in nature” if they involve the same type of crime. The statutory requirement of similarity is satisfied when a defendant who currently stands convicted of theft is shown to have been formerly convicted of other thefts. No additional factual showing is needed. Kelley v. State, 785 P.2d 567 (Alaska Ct. App. 1990).

Re-sentencing was required where the trial court erred in finding an aggravating factor under subsection (c)(21) for repeated sexual assaults; the trial judge incorrectly relied on defendant’s assaults on the four women named in the indictment. Ritter v. State, 97 P.3d 73 (Alaska Ct. App. 2004).

Defendant’s drug possession conviction from Oregon was a “felony” for purposes of subsection (c)(7) because if possession of a Schedule I controlled substance could be punished by imprisonment for one year or more under Alaska law, the equivalent Oregon offense was a “felony” for presumptive sentencing purposes. Under Alaska law possession of a Schedule I controlled substance constituted the offense of fourth-degree controlled substance misconduct, a class C felony that could be punished by up to five years’ imprisonment. Jacobson v. State, — P.3d — (Alaska Ct. App. Sept. 12, 2012) (memorandum decision).

“Small” or “large” quantity of controlled substance factual question. —

A “small quantity” is a quantity that is uncharacteristically small in comparison to the broad middle ground covered by a typical drug case. Conversely, a “large quantit[y]” (paragraph (c)(25)) is one at the other extreme of the norm for the offense. What constitutes a “large” or “small” quantity for purposes of paragraphs (c)(25) and (d)(13) should not be treated as an abstract question of law. The question must instead be resolved by the sentencing court as a factual matter, based on the totality of the evidence in the case and on the court’s discretion, as informed by the totality of its experience. Knight v. State, 855 P.2d 1347 (Alaska Ct. App. 1993).

Finding of aggravating factors deemed moot. —

Although it was reasonable to conclude that the victim experienced pain when she was strangled, there was little evidence in the record that defendant inflicted that pain as an end in itself or gratuitously as opposed to inflicting the pain as a consequence of his conduct in committing extreme-indifference second-degree murder; however, second-degree murder is an unclassified felony to which presumptive sentencing does not apply, and aggravating factors apply only by analogy, and therefore the issue of whether trial court properly found aggravating factors was moot. Hinson v. State, 199 P.3d 1166 (Alaska Ct. App. 2008).

Factors considered though not applicable to underlying crime. —

Even though the aggravating and mitigating factors in subsections (c) and (d) did not apply to first-degree murder, it was proper for the parties to use these factors as points of reference at the defendant’s sentencing. Sakeagak v. State, 952 P.2d 278 (Alaska Ct. App. 1998).

Appeal of stipulation. —

Defendant could not contest a trial court's acceptance of his stipulation to an aggravating factor because (1) counsel's statement gave the court a valid basis for accepting the stipulation, and (2) defendant could not attack his own plea agreement in a piecemeal fashion. Shepersky v. State, — P.3d — (Alaska Ct. App. Dec. 18, 2019) (memorandum decision).

B.Mitigating Factors Generally

Mitigating factors must be established by clear and convincing evidence, and the trial court’s rejection of a mitigating factor will be affirmed unless clearly erroneous. Degler v. State, 741 P.2d 659 (Alaska Ct. App. 1987).

Where the defendant did not show clearly and convincingly that his conduct was among the least serious encompassed within the definition of first-degree sexual abuse of a minor, the trial judge did not err in rejecting the mitigator. Beltz v. State, 980 P.2d 474 (Alaska Ct. App. 1999).

Determining mitigating factors. —

Defendant’s claim that the harm caused by his prior and current offenses was consistently minor and inconsistent with the imposition of a substantial period of imprisonment required a two-pronged determination: first, the court must determine on a case-by-case basis that the defendant’s present and prior crimes are consistently minor; second, the court must find that the past and present crimes, taken as a whole, are inconsistent with a substantial term of imprisonment. Defendant, who bore the burden of proof by clear and convincing evidence, failed to show adequate mitigating circumstances. Jordan v. State, 895 P.2d 994 (Alaska Ct. App. 1995), overruled in part, Joseph v. State, 315 P.3d 678 (Alaska Ct. App. 2013).

To the extent that Jordan v. State, 895 P.2d 994 (Alaska App. 1995) held that defendant must prove the mitigator that defendant’s conduct was among the least serious within the definition of the offense in order to show that the harm caused by defendant’s conduct was minor and inconsistent with a substantial term of imprisonment, it was overruled. Joseph v. State, 315 P.3d 678 (Alaska Ct. App. 2013).

Mitigator may be outweighed by the existence of other factors. Machado v. State, 797 P.2d 677 (Alaska Ct. App. 1990).

Nonstatutory mitigating factor of potential for rehabilitation rejected. —

Superior court could not have found a nonstatutory mitigating factor based on defendant’s potential for rehabilitation because defendant had three prior felony convictions, which constituted an aggravating sentencing factor. Moto v. State, — P.3d — (Alaska Ct. App. Oct. 20, 2010) (memorandum decision).

Trial court should not propose nonstatutory mitigating factor to three-judge panel where legislature specifically rejected that factor for inclusion in subsection (d). Where the legislature has expressly addressed a consideration, such as the relationship between a defendant’s past conduct and his present offense, and imposed limitations on the trial court’s power to consider that relationship in mitigation of sentence, the trial court should not propose the same mitigating factor to the three-judge panel without complying with the limitations; to do so is to suggest a common-law development inconsistent with legislation. Totemoff v. State, 739 P.2d 769 (Alaska Ct. App. 1987).

Applicability of (d)(2) and (d)(9). —

Sentencing court did not err in denying the defendant’s request for consideration of (d)(2) and (d)(9) where the record supported the inference that the defendant acted as a lookout for a robbery. Abdulbaqui v. State, 728 P.2d 1211 (Alaska Ct. App. 1986).

Defendant convicted as principal not minor role player. —

The mitigating factor specified in subsection (d)(2) of this section, that “the defendant, although an accomplice, played only a minor role in the commission of the offense,” is inapplicable to defendants convicted as principals. McReynolds v. State, 739 P.2d 175 (Alaska Ct. App. 1987).

Legislative intent in (d)(3). —

Legislature intended mitigating factor provided in paragraph (d)(3) of this section to be interpreted more broadly than the defense of duress. The defense of duress and the related defense of necessity have been narrowly defined at common law to excuse criminal behavior only in very limited circumstances. Bell v. State, 658 P.2d 787 (Alaska Ct. App. 1983).

This section provides an alleviation of the code’s treatment of imperfect defenses; evidence that defendant in good faith subjectively believed facts which, if true, would have established a defense justifying his conduct, but which the judge or jury concludes would have been unreasonable under circumstances, may warrant mitigation of presumptive sentence. Bell v. State, 658 P.2d 787 (Alaska Ct. App. 1983).

Duress, coercion, threat, or compulsion. —

Appellant failed to establish the sentencing mitigation factor in paragraph (d)(3) because he failed to show that his life was threatened or that he escaped from prison under duress, threat, or compulsion that was sufficiently extraordinary in nature that it approached being a defense to the crime. Lacey v. State, 54 P.3d 304 (Alaska Ct. App. 2002).

Trial judge was justified in giving the “duress” mitigating factor little weight because defendant was aware that he had a serious mental illness that engendered hallucinations, but nevertheless put himself in a situation of high stress — working as a crew member on a commercial fishing vessel, with its attendant hard work and lengthy sleep deprivation — when he did not have the medication to treat his mental illness, and defendant must have been aware that he was placing his boat mates at risk. Flemens v. State, — P.3d — (Alaska Ct. App. Nov. 24, 2010) (memorandum decision).

Defendant’s allegation that he fled the police officers who approached him based on duress due to unknown armed men being present in his driveway, was rejected because he did not offer any evidence that his conduct was not the result of impulsiveness or situational stress, or that a similarly situated reasonable person would have believed his conduct was justified. Mund v. State, — P.3d — (Alaska Ct. App. Feb. 6, 2013) (memorandum decision).

When defendant was convicted of first degree misconduct involving weapons, it was not error to reject defendant’s proposed duress mitigating factor. The defendant did not show any circumstances which required him to fire a shot into a truck, while there was substantial evidence to support a finding that defendant pursued his attacker and engaged in a “gun battle.” Hutton v. State, 305 P.3d 364 (Alaska Ct. App. 2013), rev'd, 350 P.3d 793 (Alaska 2015).

Superior court properly rejected the sentence mitigator of duress, given that defendant presented no admissible evidence that his escape bore any relationship to the impending deaths of his mother and sister, and his allocution could not serve as evidence because it was not testimony offered under oath. Baker v. State, — P.3d — (Alaska Ct. App. Dec. 21, 2016) (memorandum decision).

Acting under compulsion. —

In order for a defendant to establish the mitigating factor that he acted under compulsion, the compulsion must be of a sufficiently extraordinary nature that it approaches being a defense to the crime; a trial judge could properly conclude that to the extent a stepfather convicted of having sexual relations with his stepdaughter over five years acted under compulsion, it was the sort of compulsion which would be ordinary and expected in the commission of this kind of offense. Bynum v. State, 708 P.2d 1293 (Alaska Ct. App. 1985).

Defendant had to show that he was subjected to compulsive circumstances so extraordinary in nature and so significant that these circumstances came close to justifying his offense of kidnapping and raping his ex-wife; defendant failed to make this showing. Herring v. State, — P.3d — (Alaska Ct. App. May 8, 2013) (memorandum decision).

Conduct influenced by serious marital problem was not action under duress or compulsion of a sufficiently extraordinary nature to approach being a defense. Nashoalook v. State, 744 P.2d 420 (Alaska Ct. App. 1987).

Imperfect defense test under (d)(3) met. —

Where state thought enough of appellant inmate’s concern over family matters to give him an eight-hour pass, and where appellant allegedly panicked and left correctional facility a few hours before his pass was scheduled to commence, under such circumstances, it could be found that appellant’s criminal conduct — anticipating pass by a few hours — balanced against harm he subjectively believed would occur — permanent separation from his children — met the test of an “imperfect” defense under paragraph (d)(3) so as to reduce presumptive sentence. Bell v. State, 658 P.2d 787 (Alaska Ct. App. 1983).

Imperfect defense test not met. —

In prosecution for escape in the second degree, defendant’s evidence of homosexual advances toward him, by another inmate, and of his concerns about family matters failed to establish mitigating factor as would justify reduction of his sentence under paragraph (d)(3). Whitmore v. State, 657 P.2d 859 (Alaska Ct. App. 1983).

Where defendant offered to show that he had attempted to obtain money through robbery because he was desperate for money to attend an out-of-state custody hearing, it was held that the judge was not clearly erroneous in rejecting this mitigator. Degler v. State, 741 P.2d 659 (Alaska Ct. App. 1987).

Sentencing court did not err when it found the mitigator in AS 12.55.155(d)(3) did not apply because the court weighed the evidence and found that defendant had not shown he committed the crimes because of his use of spice (synthetic marijuana). Bullock v. State, — P.3d — (Alaska Ct. App. Dec. 29, 2021).

Consideration of mental state and mental illness. —

A trial court, in imposing a presumptive sentence, may consider the interplay between the defendant’s mental state and any mental illness he may have in determining whether the defendant has proved by clear and convincing evidence the requirements of paragraph (d)(3). Hart v. State, 702 P.2d 651 (Alaska Ct. App. 1985).

Although the defendant’s persistent mental health issues could act as a mitigating factor on sentencing, the sentence handed down for second-degree robbery was within the permissible range of sentences for that offense, and the nature of the defendant’s mental health issues made him a potential risk to the community. Montoya v. State, — P.3d — (Alaska Ct. App. Feb. 13, 2013) (memorandum decision).

Although offender’s mental illness is factor that the judge can properly take into account to decide the extent to which his offense was mitigated, an offender whose crime is the product of a mental illness should not automatically be entitled to a more mitigated sentence than would have been appropriate had no mental illness existed. Washington v. State, 828 P.2d 172 (Alaska Ct. App. 1992).

Applicability of (d)(5). —

Defendant’s criminal conduct was not caused by physical or mental infirmities where defendant’s physical infirmities did not contribute to his drinking and driving; rather, he decided to drink and drive despite his physical infirmities. Conway v. State, — P.3d — (Alaska Ct. App. Sept. 19, 2012) (memorandum decision).

Provocation as mitigating factor. —

Because the trial judge rejected mitigator (d)(6) on the ground that the victim’s provocation was not directed at, or intended to influence, defendant, the judge did not resolve disputed facts as to what type of provocation occurred and did not consider whether that provocation, if any, established the (d)(6) mitigator in other respects; the case was remanded for reconsideration of this question. Silvera v. State, 244 P.3d 1138 (Alaska Ct. App. 2010).

The provocation mitigator in AS 12.55.155(d)(6) was properly rejected when sentencing defendant for the kidnapping and sexual assault on his estranged wife. Although he might have suspected that she had engaged in sexual relations with another man, he knew only that she was in the man’s apartment late at night. Torrence v. State, — P.3d — (Alaska Ct. App. Mar. 27, 2013) (memorandum decision).

In a first-degree assault, the superior court did not err in rejecting the proposed mitigating factor for serious provocation because, although there was a possibility that the victim said or did something that led defendant to believe that the victim had confessed to molesting defendant's daughter, defendant's interpretation of the victim's conduct or statements was not reasonable as it was fueled by defendant's intoxication and his long-held but unsubstantiated suspicions. Johnson v. State, — P.3d — (Alaska Ct. App. Oct. 21, 2020) (memorandum decision).

Applicability of (d)(7). —

Sentencing courts should apply the statutory language of paragraph (d)(7) on a case-by-case basis, guided by the plain and ordinary meaning of its terms, rather than applying a restrictive interpretation of the mitigating factor of provocation. Roark v. State, 758 P.2d 644 (Alaska Ct. App. 1988).

Trial court did not err in rejecting as a matter of law defendant’s contention that “provocation” may be found for purposes of paragraph (d)(7) whenever the victim’s conduct significantly contributes, in a causal sense, to the commission of a crime. Roark v. State, 758 P.2d 644 (Alaska Ct. App. 1988).

Least serious conduct mitigation argument rejected. —

Defendant was found guilty of dragging an intoxicated woman into a wooded area, where he raped her, despite her protests and attempts to escape. Nothing in the fact pattern warranted a mitigation finding under (d)(9) of this section. Abrell v. State, — P.3d — (Alaska Ct. App. Oct. 5, 2011) (memorandum decision).

A first felony offender faced a presumptive sentencing range of five to 15 years his convictions on 10 counts of sexual abuse of a minor in the second degree. Since defendant’s conduct involved clear exploitation of a 13-year-old and was not mitigated based on the argument of least serious offenses for the type of conduct, defendant’s composite sentence of five years and nine months to serve, with an additional three years suspended, was not excessive. Lincecum v. State, — P.3d — (Alaska Ct. App. Sept. 12, 2012) (memorandum decision).

Cocaine possession offense was properly found not to be among the least serious conduct included in the offense for purposes of mitigation, even though defendant only possessed a small quantity of drugs (a separate mitigating factor) and had raised a question concerning the ultimate ownership of the drugs. Richardson v. State, — P.3d — (Alaska Ct. App. Feb. 20, 2013) (memorandum decision).

In sentencing defendant to 20 years to serve for the offense of sexual assault, the trial court did not err in rejecting the mitigator in (d)(9); the sentencing judge explained why defendant’s sexual assault was not among the least serious, even if the victim had submitted to the sexual penetration before he beat her up, in the ultimately vain hope of avoiding that beating. Bernhardt v. State, — P.3d — (Alaska Ct. App. Feb. 6, 2013) (memorandum decision).

In an attempted first-degree sexual assault case, the least serious conduct mitigating factor did not apply because defendant dragged a stranger into the grass, lay on top of her, restrained her arms, covered her mouth when she screamed, attempted to kiss her, and inflicted serious physical injuries on her. Nyako v. State, — P.3d — (Alaska Ct. App. Nov. 6, 2013) (memorandum decision).

Mitigation factor in AS 12.55.155(d)(9) did not apply to defendant’s second-degree theft convictions because a stolen credit card’s quick recovery did not mitigate defendant’s conduct, defendant’s thefts were complete as soon as defendant obtained the property, AS 11.46.100 (1), 11.46.990 (12)(A), and the value of stolen property was not merely marginally higher than the statute’s lower limit. McCourt v. State, — P.3d — (Alaska Ct. App. Mar. 5, 2014) (memorandum decision).

It was no error to reject defendant’s proposed AS 12.55.155(d)(9) mitigator as to first-degree burglary because defendant committed the crime in early morning hours while the victim’s family slept nearby, and defendant was a group member, increasing the crime’s dangerousness. McCourt v. State, — P.3d — (Alaska Ct. App. Mar. 5, 2014) (memorandum decision).

In a theft case, there was no error in failing to find that defendant’s conduct was among the least serious within the definition of second-degree theft because, even though the value was at the low end of the range, an argument that the items taken were necessities was belied by defendant’s statement to a store security officer. Simon v. State, 349 P.3d 191 (Alaska Ct. App. 2015).

Robbery that defendant committed was not among the least serious included in the definition of the offense where, even if defendant had proved at sentencing a codefendant’s pistol was unloaded, the potential for injury to the victim arguably decreases, but the fear the victims experienced would not have been mitigated without knowing that the pistol was unloaded. June v. State, — P.3d — (Alaska Ct. App. Mar. 18, 2015) (memorandum decision).

In a criminally negligent homicide sentencing, a “least serious” conduct mitigator was properly rejected because the trial court’s finding that defendant’s offense was more serious than the typical criminally negligent homicide was well-supported by the record. West v. State, — P.3d — (Alaska Ct. App. July 29, 2015) (memorandum decision).

In a third-degree assault case, a trial court did not err by rejecting defendant’s request for the least serious mitigator because his conduct of placing the victims in fear of imminent serious physical injury with his truck fell within the mainstream conduct covered by third-degree assault. Akelkok v. State, — P.3d — (Alaska Ct. App. July 8, 2015) (memorandum decision).

Defendant's proposed mitigating factor that defendant's conduct was among the least serious included in the definition of second-degree sexual assault, based on how defendant committed the crime, was properly rejected because each statutory method of committing the crime was equally serious for sentencing purposes, and defendant's conduct was not among the least serious. Custer v. State, — P.3d — (Alaska Ct. App. Sept. 21, 2016) (memorandum decision).

Sentencing judge did not err in rejecting the mitigator that defendant's conduct was among the least serious within the definition of the offense because third-degree assault only required proof that defendant placed one person in fear of imminent serious physical injury, but defendant threatened to shoot several troopers; he engaged in a six-hour stand-off with the troopers; and he twice fired his rifle out the door of the house. Cook v. State, — P.3d — (Alaska Ct. App. Mar. 29, 2017) (memorandum decision).

Trial judge properly rejected the least-serious mitigator where the brevity of the period between the victim's discovery of the theft and the bicycle's recovery did not render the theft less serious because the victim's recovery of his property was fortuitous and due solely to his own quick action. Yarra v. State, — P.3d — (Alaska Ct. App. Aug. 16, 2017) (memorandum decision).

Defendant's sentence was not excessive because three aggravators were shown: a history of aggravated assaultive behavior, a history of repeated criminal conduct similar to defendant's crime, and a criminal history including convictions for five or more class A misdemeanors, and a proposed mitigator that defendant's conduct was among the least serious within the definition of second-degree sexual assault was properly rejected. Inga v. State, 440 P.3d 345 (Alaska Ct. App. 2019).

Defendant who did not immediately terminate a sexual assault upon the victim regaining capacity and communicating a lack of consent was not entitled to a least serious conduct mitigator. Dunn v. State, — P.3d — (Alaska Ct. App. Nov. 20, 2019) (memorandum decision).

Remand was required because the court did not employ the proper analysis when evaluating whether defendant's conduct was among the least serious conduct included in the definition of the offense. Dorsey v. State, 480 P.3d 1211 (Alaska Ct. App. 2021).

Superior court properly convicted defendant of third- and fourth-degree misconduct involving weapons for residing in a dwelling that contained a concealable firearm and possessing a firearm while impaired by a controlled substance because, inter alia, his attorney essentially invited the error of which defendant complained since defendant's mother's out-of-court statements and trial testimony would have been admissible as prior inconsistent statements and were corroborated by defendant's own statements in his 911 call about having "protection" and being "armed," defendant's sentence was not excessive, and the court properly rejected his proposed mitigator. Vars v. State, — P.3d — (Alaska Ct. App. June 30, 2021) (memorandum decision).

Superior court did not err when it denied defendant’s proposed mitigator that his conduct was among the least serious conduct included within the definition of second-degree sexual assault as it found that the 18-year-old victim, who had been drinking alcohol and blacked out, awoke to find the 34-year-old defendant penetrating her from behind, without her consent and concluded that there was nothing mitigating about his conduct. Fawcett v. State, — P.3d — (Alaska Ct. App. Dec. 8, 2021).

Error in rejecting “least serious” mitigator. —

Trial court erred in analyzing defendant's proposed mitigating factor because, although the age of the child and her presence in defendant's home could be appropriately considered part of the surrounding circumstances, the court failed to recognize that the underlying conduct qualified as “among the least serious conduct” where there was only a single act of penetration that was slight and of brief duration. Voyles v. State, — P.3d — (Alaska Ct. App. June 21, 2017) (memorandum decision).

Applicability of (d)(9). —

Mitigating factor in (d)(9) of this section, that the offense was one of the least serious included in the offense, applies to the offense of possession of a concealable firearm by a felon. State v. LaPorte, 672 P.2d 466 (Alaska Ct. App. 1983).

Pointing an unloaded functioning .44 caliber replica cap-and-ball pistol at another person and pulling the trigger three times is not among the “least serious” offenses within the definition of third-degree assault. Weston v. State, 656 P.2d 1186 (Alaska Ct. App. 1982), rev'd, 682 P.2d 1119 (Alaska 1984).

For purposes of establishing the mitigating factor specified in paragraph (d)(9), reckless conduct is not per se less serious than knowing or intentional conduct. Adams v. State, 718 P.2d 164 (Alaska Ct. App. 1986).

Where the defendant argued the mitigator of “least serious conduct” should apply, but he had pointed a loaded gun at the victim, the potential harm created by his conduct was not lessened because he received no property; therefore, the judge was not clearly erroneous in rejecting this mitigator. Degler v. State, 741 P.2d 659 (Alaska Ct. App. 1987).

The mitigating factor in (d)(9) where “the conduct constituting the offense was among the least serious conduct included in the definition of the offense” compares the defendant’s conduct in committing the offense with the conduct of others committing the same offense. It does not compare classes of offenses. Aveoganna v. State, 757 P.2d 75 (Alaska Ct. App. 1988).

Paragraph (d)(9) would almost never be appropriate for consideration in a case of sexual abuse where the victim is a 10-year-old child. Johnson v. State, 762 P.2d 493 (Alaska Ct. App. 1988).

Defendant’s argument that his conduct was among the least serious within the definition of first-degree burglary, based on the fact that he was a friend of the victim, was properly rejected by the trial court because defendant violated the trust of the victim and his expectations of privacy and security. Champion v. State, 908 P.2d 454 (Alaska Ct. App. 1995).

In sentencing for felony driving while intoxicated, defendant failed to prove mitigating factor (d)(9) where, in his description of his conduct, he failed to mention that he was driving with a suspended license and that he physically resisted officers when he was arrested. Ison v. State, 941 P.2d 195 (Alaska Ct. App. 1997).

Use of an inoperable pellet gun created little actual risk from the use of the dangerous instrument and would support a finding that the conduct was among the least serious within the definition of first-degree robbery. Lewandowski v. State, 18 P.3d 1220 (Alaska Ct. App. 2001), overruled in part, Michael v. State, 115 P.3d 517 (Alaska 2005).

Because the manufacture of methamphetamine constitutes a separate, higher degree of offense than the manufacture of other Schedule IIA controlled substances, it would be error to reject paragraph (d)(9) simply on the basis that methamphetamine is among the most dangerous drugs or because the manufacture of methamphetamine is among the most serious social problems; rejection of defendant’s (d)(9) mitigating factor was erroneous where he was convicted of manufacturing methamphetamine, because production of a small amount could have qualified as among the “least serious.” Netling v. State, 145 P.3d 609 (Alaska Ct. App. 2006).

In a case involving first-degree sexual assault and other offenses, the least serious conduct mitigator did not apply based on the actual medical needs of the women for whom defendant prescribed medication in exchange for sexual favors; the drugs were prescribed in order to control the patients and obtain sexual favors, and there was no medical purpose for the prescription or delivery of the controlled substances. Grandstaff v. State, 171 P.3d 1176 (Alaska Ct. App. 2007).

The trial court correctly rejected defendant’s (d)(9) proposed mitigator of least serious offense in relation to his failure to verify his address as required. The trial court could properly consider defendant’s history of similar violations, both prosecuted and unprosecuted, when deciding whether defendant had proved his proposed mitigator. Reandeau v. State, 265 P.3d 1045 (Alaska Ct. App. 2011).

Defendant was properly convicted of attempted second- and third-degree theft because the facts did not establish a statutory mitigator where he lied to a teller that the issuing bank assured him that the account held sufficient funds to cover the check, he presented no evidence as to the circumstances under which he received the check, whether he was the one who filled it out, why the particular amount was chosen, and whether he had access to the other stolen checks. Soellner v. State, — P.3d — (Alaska Ct. App. Aug. 20, 2014) (memorandum decision).

Defendant was properly convicted of second- and fourth-degree assault, second-degree failure to stop at the direction of a peace officer, and misdemeanor driving under the influence because, while the superior court should have merged his two convictions for second-degree assault, defendant's attack on his ex-girlfriend and her new boyfriend was unprovoked and left the boyfriend permanently disfigured, defendant failed a sobriety test, and the sentencing judge properly rejected the proposed mitigator where defendant's conduct was within the “heartland” of the definition of the offenses, his prospects for rehabilitation were “guarded,” and he had no remorse Lewis v. State, — P.3d — (Alaska Ct. App. Aug. 31, 2016) (memorandum decision).

Based on defendant's status as a stepfather, the judge rejected the proposed mitigator under AS 12.55.155(d)(9) , despite the fact that the sexual contact with defendant's stepdaughter was brief; even if the judge had found the mitigator based on the brevity of the offense, there was no realistic possibility that she would have imposed a lesser sentence, and thus any error in the judge's rejection of the mitigator did not prejudice defendant at his sentencing for third-degree sexual assault. Thiele v. State, — P.3d — (Alaska Ct. App. Nov. 21, 2018) (memorandum decision).

Applicability of paragraph (d)(9). —

Superior court did not err in rejecting defendant’s proposed statutory mitigating factor under AS 12.55.155(d)(9) that his conduct was among the least serious included in the definition of the offense of first-degree sexual abuse of a minor. Dilts v. State, — P.3d — (Alaska Ct. App. Mar. 25, 2015) (memorandum decision).

Inconsistent rulings on least serious mitigator in (d)(9) and (d)(12). —

There was an inconsistency in a superior court’s rulings on defendant’s proposed mitigating factors during the sentencing proceedings for his perjury conviction because, under case law, the sentencing judge could not reject mitigator AS 12.55.155(d)(9) and still rule in defendant’s favor on mitigator AS 12.55.155(d)(12) . If a defendant failed to prove mitigator AS 12.55.155(d)(9) , the defendant necessarily had also failed to prove mitigator AS 12.55.155(d)(12) . Hamilton v. State, — P.3d — (Alaska Ct. App. Sept. 5, 2012) (memorandum decision).

Paragraph (d)(10) unavailable after identification and arrest. —

Where defendant revealed the location of the money he stole only after he was identified as the burglar and was arrested, mitigator (d)(10) was unavailable to him. Green v. State, 857 P.2d 1197 (Alaska Ct. App. 1993).

Cooperation not recognized unless properly motivated. —

Where the defendant’s cooperation with the police was motivated, not by remorse or desire to do the right thing, but by the prospect of having his charges dropped, it did not demonstrate uncommonly good potential for rehabilitation. Green v. State, 857 P.2d 1197 (Alaska Ct. App. 1993).

Use of knife rather than firearm held not mitigating. —

Defendant contended that his robbery sentence should have been mitigated under this section. Nevertheless, the trial court properly rejected defendant’s argument that robberies committed with knives were inherently among the least dangerous; moreover, the trial court noted that defendant was aggressive toward a store clerk during the robbery. Moore v. State, 218 P.3d 303 (Alaska Ct. App. 2009).

Merger of mitigating factors. —

Where the defendant is a first felony offender, the mitigating factor that the conduct is among the least serious within the definition of the offense tends to merge with the mitigating factor that the harm caused by the defendant’s conduct is consistently minor and inconsistent with imposition of a substantial period of imprisonment. Allen v. State, 769 P.2d 457 (Alaska Ct. App. 1989).

No error in rejecting proposed mitigating factor. —

Trial judge did not err in rejecting the defendant’s argument that his conduct was among the least serious within the definition of first-degree robbery, where the robberies appeared to have been well planned, were executed in a manner calculated to render the victims relatively helpless and under circumstances that tended to minimize the possibility of a report by the victims to the police; where the defendant clearly created the impression that he had a firearm that he was prepared to use; where the defendant inflicted physical injury upon one victim; and where a substantial amount of cash was taken. Davis v. State, 706 P.2d 1198 (Alaska Ct. App. 1985).

When considering whether or not the conduct of one convicted of issuing a bad check was among the least serious within the definition of the offense, the monetary value of the bad check was by no means the only relevant factor; the planned and professional manner in which he committed the offense also reflected on its seriousness. The sentencing judge did not abuse his discretion in rejecting the proposed mitigating factor. Gant v. State, 712 P.2d 906 (Alaska Ct. App. 1986).

In a second degree sexual assault prosecution, there was no error in trial court’s rejection of two mitigating factors proposed by defendant: that his conduct was among the least serious included in the definition of the offense, and that the harm caused by his criminal conduct was consistently minor and did not warrant the imposition of a substantial period of incarceration; defendant’s sentence of an adjusted presumptive term of seven years with two years suspended and three years’ probation was not clearly mistaken. Jackson v. State, 890 P.2d 587 (Alaska Ct. App. 1995).

Where defendant was convicted for third-degree criminal mischief for damaging a truck owned by his mother’s lover, the trial court properly sentenced him to 2 1/2 years’ imprisonment; trial court did not err in rejecting four different mitigating factors defendant proposed because defendant’s destruction of the truck was not in response to the owner’s threat, the facts did not justify a finding of provocation, and defendant’s conduct was not among the least serious within the definition of the offense. McGee v. State, 162 P.3d 1251 (Alaska 2007).

Trial court properly rejected defendant’s proposed mitigating factor, possession of only a small amount of cocaine, for lack of evidence. Probation and suspended sentence imposed by the court was at the minimum end of the applicable sentencing range, so rejection of the mitigating factor, whether correct or not, had no effect. Sweezey v. State, 167 P.3d 79 (Alaska Ct. App. 2007).

Trial judge properly rejected a defendant’s mitigating factors under AS 12.55.155(d)(9) , (d)(13), (d)(14), to a 10-year presumptive term for second-degree misconduct involving a controlled substance in violation of AS 11.71.020(a)(1) because the mitigating factors were not supported by clear and convincing evidence. Marshall v. State, 198 P.3d 567 (Alaska Ct. App. 2008).

In a first-degree assault case, the sentencing judge found that the witnesses who testified that defendant swung first were credible, found that defendant brought the knife to the park, and found that the victim’s injuries were permanent and serious, and rejected the mitigating factors in this section. Delgreco v. State, — P.3d — (Alaska Ct. App. Oct. 26, 2011) (memorandum decision).

Judge’s comments in defendant’s felony driving under the influence case were read as indicating, consistent with applicable case law, that the consistently minor harm mitigator would apply only in unusual driving under the influence cases; defendant failed to establish both proposed mitigators of minor harm, as he was intoxicated and actively drinking while driving, which endangered both defendant and his passenger. Greenway v. State, — P.3d — (Alaska Ct. App. Dec. 30, 2015) (memorandum decision).

In a case involving two counts of first-degree sexual abuse of a minor, a composite term of 37 years’ imprisonment with 5 years suspended was proper; defendant’s argument that the sentence was excessive because presumptive sentencing ranges for sexual felonies used to be substantially lower was rejected. Because a 25- to 35-year presumptive range applied to defendant’s 2007 offense, his proposed mitigating factors were rejected, and the superior court had the duty to impose at least 2 years of the other sentence consecutively, the effective minimum sentence was 27 years’ imprisonment; reasons were given as to why defendant should have received a more severe sentence. Alvarenga v. State, — P.3d — (Alaska Ct. App. May 6, 2015) (memorandum decision).

Defendant’s conduct was not among the least serious included in the definition of driving while under the influence where he chose to drive his four wheeler while under the influence, late at night, on a public highway, and without his eyeglasses, despite the fact that he was legally blind in one eye and partly blind in the other. Conway v. State, — P.3d — (Alaska Ct. App. Sept. 19, 2012) (memorandum decision).

Defendant did not prove mitigators under AS 12.55.155(d)(3) , for imperfect self-defense, AS 12.55.155(d)(6) , for provocation as to assault charges, or AS 12.55.155(d)(7) , for provocation as to non-assault charges, by clear and convincing evidence because (1) police had no duty to collect an allegedly supporting surveillance tape, and (2) witnesses contradicted defendant's claim of being assaulted. Cook v. State, — P.3d — (Alaska Ct. App. Nov. 9, 2016) (memorandum decision).

Sentencing judge did not err in rejecting the serious provocation mitigator based on defendant's assault on his girlfriend because the assault was disproportionate to the provocation that she had been unfaithful as he beat her with a metal pipe, he pushed her down a staircase, and he restrained her by tying her hands and gagging her; and one hour was more than enough time for defendant to cool down and desist from the assault. Cook v. State, — P.3d — (Alaska Ct. App. Mar. 29, 2017) (memorandum decision).

Superior court properly rejected defendant's proposed mitigators because it found that defendant's version of events lacked credibility and, instead, the superior court credited the victims' testimony. Johnson v. State, — P.3d — (Alaska Ct. App. Apr. 19, 2017), modified, — P.3d — (Alaska Ct. App. 2017).

Trial judge did not err when he ruled on defendant's proposed mitigators, based on the existing evidentiary record because even though defendant was clearly aware of the potential importance of the previously excluded evidence, he declined to offer it, or any other evidence, in support of his proposed mitigators. Johnson v. State, — P.3d — (Alaska Ct. App. Oct. 30, 2017) (memorandum decision).

“Least serious” mitigator rejected. —

Defendant’s sentence was not excessive given his extensive criminal record and the fact that he was on felony probation when he committed the sexual assaults. His argument for mitigation, claiming that his actions were among the least serious for the offense of which he was convicted, was rejected because of his victimization of a person of limited mental capacity. Olrun v. State, — P.3d — (Alaska Ct. App. Jan. 27, 2010) (memorandum decision).

Mitigator of lack of injury rejected. —

In rejecting mitigators proposed by defendant in his felony driving while under the influence trial, the judge correctly rejected the notion that, just because defendant’s current and prior driving under the influence offenses did not result in injury, the offenses qualified as causing consistently minor harm; the offense of driving under the influence does not require proof that anyone was physically harmed, and if an intoxicated driver inflicts injury on another person, that is a separate offense. Greenway v. State, — P.3d — (Alaska Ct. App. Dec. 30, 2015) (memorandum decision).

“Least serious” mitigator rejected in sentencing for child pornography. —

At defendant’s sentencing, “least serious” mitigator was properly rejected, where each pornographic photograph and video found in defendant’s briefcase could support a separate violation of AS 11.61.127 : furthermore, where a no contest plea resulted from a plea bargain, the underlying course of conduct comprising multiple potential offenses, not all of which were charged, could weigh against the “least serious” mitigator; additional information from defendant’s presentence report might have led to further charges: his briefcase contained semi-nude photos of other underage girls, and he allegedly gave two of the girls marijuana and alcohol, in addition to the LSD for which he was convicted. State v. Parker, 147 P.3d 690 (Alaska 2006).

“Least serious” finding not error. —

In robbery prosecution, finding the “least serious” mitigating factor was not error given the fact that the weapon used was inoperable; the apparent lack of planning of the robbery on defendant’s part; the age of the defendant; and his lack of a prior record. State v. Richards, 720 P.2d 47 (Alaska Ct. App. 1986).

Where the judge found that defendant’s conduct was among the least serious conduct within the definition of the offense, sentence of 3 years’ imprisonment for second-degree sexual abuse of a minor was not manifestly unjust. Defendant was subject to a presumptive sentencing range of 5 to 15 years’ imprisonment, and the judge exercised authority to impose a sentence below the presumptive range Miller v. State, — P.3d — (Alaska Ct. App. Apr. 24, 2013) (memorandum decision).

Applicability of (d)(10). —

Paragraph (d)(11) [now (d)(10)] contemplates necessities such as food or water; it does not include the desire to attend a future court proceeding, such as an out-of-state custody hearing. Degler v. State, 741 P.2d 659 (Alaska Ct. App. 1987).

Applicability of (d)(11). —

Trial court properly declined to reduce defendant’s sentence, where his “assistance” in a police investigation also attempted to divert attention from his own role in a car bombing and, thus, in fact hampered and hindered authorities. Machado v. State, 797 P.2d 677 (Alaska Ct. App. 1990).

Applicability of (d)(12). —

Paragraph (d)(13) [now (d)(12)] requires that the trial court look not only at the defendant’s past conduct but also at the relationship between that past conduct and his present offense. Totemoff v. State, 739 P.2d 769 (Alaska Ct. App. 1987).

When a defendant proposes mitigator (d)(13) [now (d)(12)], the sentencing court can take into account not only the physical injury and harm to property inflicted by the defendant, but also the relative seriousness of the defendant’s conduct and the risk of harm posed by the defendant’s conduct. Ison v. State, 941 P.2d 195 (Alaska Ct. App. 1997).

It was not error to reject the sentencing mitigator for consistently minor harm because defendant was a repeat weapons offender who was undeterred by a prior prison term. Smith v. State, — P.3d — (Alaska Ct. App. Aug. 31, 2016) (memorandum decision).

Applicability of (d)(13). —

A trial judge was clearly erroneous in rejecting the mitigating factor that an offense involved small quantities of a controlled substance where the defendant sold one-half gram of heroin on one occasion and one-quarter gram on another occasion and was in possession of two to four similar packets. Solitaire v. State, 709 P.2d 1334 (Alaska Ct. App. 1985).

Judge was authorized to consider amount of drugs involved in sentencing for first-degree misconduct involving a controlled substance, although the small quantities mitigating factor had not been proven by clear and convincing evidence. Krack v. State, 973 P.2d 100 (Alaska Ct. App. 1999).

Contention that recipient may have consumed only one-half gram of cocaine from the one-gram slip delivered by the defendant was insufficient to support mitigating factor (d)(14) [now (d)(13)], that defendant’s delivery of cocaine involved only a small amount. Martin v. State, 973 P.2d 1151 (Alaska Ct. App. 1999).

Because the quantity of cocaine that defendant possessed was typical of the quantity in many other cases before the judge, he concluded that defendant had not shown that he possessed an uncharacteristically small quantity of cocaine for purposes of mitigator (d)(14) [now (d)(13)]. Dollison v. State, 5 P.3d 244 (Alaska Ct. App. 2000).

Where defendant possessed .05 grams of cocaine with a commercial value of ten dollars, indicative of an amount that would be consumed in a single use, the factors in Knight v. State, 855 P.2d 1347 (Alaska Ct. App. 1993), establish that defendant’s case involved a “small quantity” of cocaine for purposes of mitigator (d)(14) [now (d)(13)]. Dollison v. State, 5 P.3d 244 (Alaska Ct. App. 2000).

Superior court did not err when it found that defendant, convicted of attempting to possess cocaine with intent to distribute it, was not eligible for mitigation where, although authorities found only trace amounts of cocaine in defendant’s possession, court properly considered the fact that defendant possessed two scales with cocaine residue on them, a substantial quantity of cutting agents, and 31 small baggies. Whiting v. State, 191 P.3d 1016 (Alaska Ct. App. 2008).

Superior court erred in finding that defendant, convicted of fourth-degree controlled substance misconduct, was not eligible for application of the mitigating factor permitted by mitigator paragraph (d)(13), i.e. that his offense involved only small quantities of drugs; defendant possessed only a few grams more than the 28.35 grams he had to possess to make his conduct a felony, and the 31 grams he possessed made him eligible for application of mitigator paragraph (d)(13). Hoekzema v. State, 193 P.3d 765 (Alaska Ct. App. 2008).

Trial court did not correctly apply the (d)(13) mitigator related to small quantities of a controlled substance where the defendant sold only 0.12 grams of heroin valued at $150. Alaska law does not specify what constitutes a “small quantity” under this provision, but the appellate court looked to similar federal law, which provides that quantities under 5 grams merit the least severe sentencing. Pocock v. State, 270 P.3d 823 (Alaska Ct. App.), amended, — P.3d — (Alaska Ct. App. 2012).

“Small quantity” mitigating factor was rejected where a suspicious package was properly subjected to a dog sniff, had a handwritten label, next-day delivery, payment in cash, and a police officer determined that the recipient of the package was apparently fictitious after checking two different data bases; “any amount” of a controlled substance was sufficient, and while the package originally contained 129 pills, which was more than an individual would possess for personal use, and defendant failed to prove that he intended to sell only a small quantity of pills. Bochkovsky v. State, 356 P.3d 302 (Alaska Ct. App. 2015).

Applicability of (d)(15). —

Trial court did not err by rejecting a mitigating factor relating to the harm caused under paragraph (d)(13) of this section, where defendant was convicted of manufacturing methamphetamine, since this crime was sufficiently serious to justify substantial imprisonment, even though it involved no injury; the Alaska legislature views methamphetamine as a particularly dangerous drug, and the manufacture of such was a serious offense. Netling v. State, 145 P.3d 609 (Alaska Ct. App. 2006).

Superior court erred when it found that defendant, convicted of fourth-degree controlled substance misconduct, was not eligible for reduction of his sentence pursuant to factor (d)(15) because two oxycodone pills authorities seized were found in a car defendant was driving, and not in his home; fact that the drugs were found in a car did not mean that defendant did not possess the drugs for personal use in his home. Whiting v. State, 191 P.3d 1016 (Alaska Ct. App. 2008).

Applicability of (d)(20). —

Defendant failed to establish any nexus between his diagnosis of fetal alcohol syndrome and his sexual abuse of his seven-year-old niece, nor any specific compulsion that rose to the level required to constitute a mitigator. Nickoli v. State, — P.3d — (Alaska Ct. App. Dec. 10, 2014) (memorandum decision).

Superior court erred in concluding that defendant's sexual assault in Kuwait could not be considered combat-related for purposes of AS 12.55.155(d)(20)(B) where it found that he had been sexually assaulted while stationed at a military base in Kuwait, Kuwait was part of a combat zone at that time, and the sexual assault led to his downloading of child pornography. Brown v. State, 404 P.3d 191 (Alaska Ct. App. 2017).

It was not an abuse of discretion to deny defendant a second sentencing continuance to pursue claims of post-traumatic stress disorder (PTSD) or traumatic brain injury (TBI); because the statutory mitigator for combat-related PTSD or TBI precluded consideration of these conditions as a non-statutory mitigator, defendant was allowed to present these claims, and received the minimum statutory sentence. Dunn v. State, — P.3d — (Alaska Ct. App. Nov. 20, 2019) (memorandum decision).

Superior court properly sentence defendant because the court found defendant's fetal alcohol spectrum disorder mitigator and was statutorily authorized to downwardly depart from the low end of the presumptive range and impose a sentence that did not include any time to serve, proof of additional mitigating factors would not have enlarged the range of sentences available to the trial court, defendant did not have the right to appeal his sentence as excessive since it did not exceed two years, the superior court engaged in an individualized sentencing process that did not violate defendant's right to due process, and defendant would have to petition the Alaska Supreme Court for discretionary sentence review. Oviok v. State, — P.3d — (Alaska Ct. App. Oct. 14, 2020).

Familiarity with victim. —

In prosecution for first-degree sexual assault, defendant’s familiarity with his victim (his 12-year-old daughter) was not a mitigating factor. Hodges v. State, 660 P.2d 1203 (Alaska Ct. App. 1983).

Failure to consider statutory mitigator. —

Because both the record and the superior court's findings at sentencing supported the legal conclusion that defendant's conduct was among the least serious conduct included in the definition of first-degree robbery, it was error for the superior court to fail to recognize that statutory mitigator, notwithstanding the obvious incompetence of the defense attorney in failing to raise it. Edwin v. State, — P.3d — (Alaska Ct. App. Mar. 17, 2021).

Judicial discretion. —

In the sentencing phase of a second-degree murder trial, the trial judge’s rejection of defendant’s assertion that he committed the homicide under duress and after being subjected to provocation from the victim was proper; further, defendant’s challenge to the trial judge’s rulings regarding the proposed mitigating factors was moot as as the trial judge’s authority to impose the sentence did not rest on his findings concerning contested aggravating or mitigating factors. Allen v. State, 56 P.3d 683 (Alaska Ct. App. 2002).

C.Elements of Offense as Factors

Subsection (e) construed. —

Subsection (e) does not purport to deal with limitations on the applicability of presumptive sentencing under AS 12.55.125 and does not preclude the use of a prior conviction to invoke presumptive sentencing under AS 12.55.125 when that prior conviction is a necessary element of the present offense. Fry v. State, 655 P.2d 789 (Alaska Ct. App. 1983).

Subsection (e) speaks only to those cases in which the aggravating factor is a necessary element of the offense, and it is not a violation for the state to rely on the same evidence to prove both the charged offense and an applicable aggravating factor. Russell v. State, 934 P.2d 1335 (Alaska Ct. App. 1997).

Underlying policy of subsection (e) of this section is to avoid double punishment for the same conduct. Juneby v. State, 641 P.2d 823 (Alaska Ct. App. 1982), modified, 665 P.2d 30 (Alaska Ct. App. 1983).

Where violence and injury are characteristic of offense defined by statute, the mere fact of some physical injury to the victim as a result of the defendant’s conduct, though technically an aggravating factor under paragraph (c)(1) of this section, will not justify a significant increase in the presumptive term. Juneby v. State, 641 P.2d 823 (Alaska Ct. App. 1982), modified, 665 P.2d 30 (Alaska Ct. App. 1983).

Since presumptive terms are intended to be applicable in typical cases, and not in aggravated or mitigated cases, the presumptive 10-year term applicable to defendant must be deemed to take into account the potential for violence and the likelihood of some degree of physical injury which is typical of the offense for which he was convicted, first-degree sexual assault. Juneby v. State, 665 P.2d 30 (Alaska Ct. App. 1983).

Vulnerability of victim not an element of first degree sexual assault. —

Judge’s comment regarding a circumstance often present during a sexual assault did not alter the fact that the victim’s vulnerability is not a necessary element of the offense of first-degree sexual assault; there was no error in using that as an aggravating factor. Grandstaff v. State, 171 P.3d 1176 (Alaska Ct. App. 2007).

Merger of aggravating and mitigating factors based on same intent and conduct of accused. —

See Juneby v. State, 665 P.2d 30 (Alaska Ct. App. 1983).

Conduct leading to prior conviction as factor. —

Consideration, as an aggravating factor of conduct by the defendant for which a separate conviction has been entered and a separate sentence imposed is prohibited. Juneby v. State, 665 P.2d 30 (Alaska Ct. App. 1983).

Evidence supporting mitigation. —

Where the actions in evidence which supported defendant being charged with second degree sexual assault rather than first degree sexual assault were elements of the crime of second degree sexual assault, the same evidence could not be used in support of defendant’s “least serious” sentence mitigation argument. Bavilla v. State, — P.3d — (Alaska Ct. App. May 23, 2012) (memorandum decision).

IV.Findings of Court

Provisions of subsection (f) must be read to require more than a pro forma, conclusory statement that an aggravating or mitigating factor has or has not been shown by clear and convincing evidence. Juneby v. State, 641 P.2d 823 (Alaska Ct. App. 1982), modified, 665 P.2d 30 (Alaska Ct. App. 1983).

Remarks must be specific. —

Subsection (f) of this section, which requires that findings “be set out with specificity,” calls for sentencing judges to include, in their remarks on the record, the following specific information: (1) the specific factors in aggravation and in mitigation found to have been established by clear and convincing evidence; (2) the evidence upon which the court has relied in finding the existence of aggravating or mitigating factors; (3) an explanation of the weight given by the court to each aggravating or mitigating factor, and the relative importance of each factor in comparison with other aggravating or mitigating factors established; and (4) an evaluation of the totality of the aggravating and mitigating factors in light of the State v. Chaney, 477 P.2d 441 (Alaska 1970), criteria, as expressed in AS 12.55.005 , in order to determine the amount by which the presumptive sentence for the particular offense should be adjusted. Juneby v. State, 641 P.2d 823 (Alaska Ct. App. 1982), modified, 665 P.2d 30 (Alaska Ct. App. 1983).

Superior court properly convicted defendant, following a jury trial, of second-degree sexual assault for vaginally penetrating his cousin (the victim) while she was unconscious because the evidence established that the victim was incapacitated and that defendant knew that she was incapacitated—she had four to six shots of whiskey, did not remember lying down in the bed in which she woke up, did not remember the sexual assault, and never would have consciously consented to have sex with defendant—defendant failed to explain how an error in the timing of the admission of the text messages prejudiced him, and the court engaged in a thorough review of the statutory criteria and explained in detail the reasons it imposed the sentence it did. Williams v. State, 486 P.3d 1134 (Alaska Ct. App. 2021).

Accuracy of fact finding held to overcome error. —

Blakely’s beyond a reasonable doubt standard did not have to be applied to whether there was a finding of the aggravators listed in AS 12.55.155(c)(13) and former 12.55.125(d)(1) . The clear and convincing standard that was used did not seriously diminish the accuracy of the fact-finding when defendants were sentenced. State v. Smart, 202 P.3d 1130 (Alaska 2009).

Lack of authorization to consider hearsay evidence. —

Where the defendant, at his sentencing hearing, testified and submitted to cross-examination, and where the state presented no witnesses, the judge was not authorized to consider the state’s hearsay evidence, and his finding of an aggravating factor was clearly erroneous. Ashenfelter v. State, 988 P.2d 120 (Alaska Ct. App. 1999).

Non-statutory mitigator. —

Superior court's decision not to refer defendant's case to a three-judge sentencing panel for consideration of a non-statutory mitigator was not clearly mistaken. Defendant was caught smuggling a substantial amount of drugs (including several pounds of hash oil), with a street value of over $300,000, which defendant admitted he planned to distribute notwithstanding that such conduct was flatly prohibited by the law both at the time he was caught and now. Smith v. State, — P.3d — (Alaska Ct. App. Nov. 6, 2019) (memorandum decision).

Conclusory finding not sufficient. —

Compliance with the statutory directive to set forth all findings with specificity requires more than a conclusory finding that aggravating or mitigating factors have been established by the requisite standard of proof. DeGross v. State, 768 P.2d 134 (Alaska Ct. App. 1989).

Presentence report prepared by probation office does not satisfy state’s obligation under subsection (f) of this section. Nukapigak v. State, 645 P.2d 215 (Alaska Ct. App. 1982), aff'd, 663 P.2d 943 (Alaska 1983).

Lack of express findings as to aggravating factors. —

In the absence of a presentence hearing to permit resolution of disputed facts pertaining to alleged aggravating factors and in the absence of express findings by the sentencing court as to the existence of aggravating factors, the three-year increase of the presumptive six-year term specified for defendant’s assault conviction could not be sustained. Dunn v. State, 653 P.2d 1071 (Alaska Ct. App. 1982).

Judge’s comment that the “case [was] brought about by blinding, impetuous rage on the part of [defendant] over some real or imagined provocation” was not a finding of provocation or compulsion constituting a mitigating factor. Proctor v. State, 236 P.3d 375 (Alaska Ct. App. 2010).

Trial court did not err in finding aggravator (c)(2) because it did not make a finding on that aggravator; instead, the trial court indicated that it had denied defendant's request for referral on the merits based on a finding that defendant had failed to prove that he had extraordinary potential for rehabilitation. Jones v. State, — P.3d — (Alaska Ct. App. Jan. 30, 2019) (memorandum decision).

Defendant was not entitled to relief from a sentence exceeding the statutory range for defendant's crime because, if the issue were reviewable despite defendant's failure to raise the issue in the trial court, despite the trial court's failure to explicitly find aggravating factors at sentencing, (1) the sentence was agreed upon, (2) the State's proposed judgment form stated the parties stipulated to such factors and the court found them, and (3) the record contained insufficient information to address the issue on appeal. Jenkins v. State, — P.3d — (Alaska Ct. App. June 10, 2020) (memorandum decision).

Three-judge panel. —

A composite sentence of seven years of active imprisonment with an additional three years suspended for second-degree sexual abuse of a minor was proper because the sentence was within the applicable presumptive range of five to 15 years and, while the defendant had normal prospects for rehabilitation, the three-judge panel focused on the “egregious” nature of defendant's use of a vibrator and pressuring the victim to recant. Campbell v. State, — P.3d — (Alaska Ct. App. Mar. 8, 2017) (memorandum decision).

In sexual assault case, consecutive 15-year sentences were proper where the trial court found that defendant had a “profound antisocial nature,” and that he was a “particularly violent and dangerous” offender; the sexual assaults were “reprehensible and destructive” to both the victim and the community, and defendant was a worst offender with no likelihood of rehabilitation. Douglas v. State, 151 P.3d 495 (Alaska Ct. App. 2006).

Remand for resentencing. —

Because the requirement of specific findings relates not only to the adequacy of the appellate record, but also to the appropriateness of the trial court’s sentencing decision, a lack of adequate findings required a remand for resentencing, rather than merely a remand for additional findings. DeGross v. State, 768 P.2d 134 (Alaska Ct. App. 1989).

V.Alcohol or Drug Intoxication

Constitutionality. —

In preventing the court from considering as a mitigating factor defendant’s problems with alcohol abuse as they related to his rehabilitation, subsection (g) does not violate Alaska Const., art. I, § 12, or infringe upon the separation of powers. Koteles v. State, 660 P.2d 1199 (Alaska Ct. App. 1983).

The exclusion of voluntary intoxication and chronic alcoholism as mitigating factors in determining appropriate sentences for those subject to presumptive sentencing is not a denial of equal protection because the legislative rejection of these conditions as mitigating circumstances is consistent throughout the criminal code and there are sufficient reasons to justify the exclusion. Wright v. State, 656 P.2d 1226 (Alaska Ct. App. 1983).

Alcoholism as consideration for sentencing. —

While voluntary intoxication or a history of alcoholism cannot be considered an aggravating or mitigating factor for the purposes of presumptive sentencing, when a violent crime is committed under the influence of alcohol by a person with a background of alcohol-related violence, his background should be considered by the court in determining the extent to which rehabilitation will realistically be accomplished by the sentence which it intends to impose. State v. Ahwinona, 635 P.2d 488 (Alaska Ct. App. 1981).

Increased sentence upheld. —

The addition of five years suspended imprisonment to a five-year presumptive term for drunk-driving manslaughter was not clearly mistaken, where the aggravating factor for increasing the sentence was defendant’s decision to operate a motor vehicle after having consumed enough intoxicating liquor to raise his blood-alcohol level to almost twice the legal maximum. Krasovich v. State, 731 P.2d 598 (Alaska Ct. App. 1987).

In a felony refusal to submit to a chemical test, the worst offender finding was based primarily on defendant’s extensive criminal history and repeated failed rehabilitation attempts, not on his current offense; however, his high blood alcohol level endangered passengers in his boat and other boats in the harbor; and the trial court found that isolation and protection of the public was necessary. Anderson v. State, — P.3d — (Alaska Ct. App. Apr. 10, 2013) (memorandum decision).

VI.Notice

Notice to parties of factors in question. —

The parties may rely upon evidence introduced during trial to sustain their respective burdens of proving aggravating and mitigating factors, but they are entitled to notice in advance of the sentencing hearing regarding the aggravating and mitigating factors in question since this enables them to conduct orderly preparation, and gives them an opportunity to rebut trial evidence at the sentencing hearing. Hartley v. State, 653 P.2d 1052 (Alaska Ct. App. 1982).

In a prosecution for first-degree sexual assault, where the trial judge found an aggravating factor which he mentioned to the parties for the first time in the context of his closing sentencing remarks and then sentenced defendant to 15 years, the court of appeals remanded for resentencing since defendant was entitled to notice and an opportunity to be heard. Hartley v. State, 653 P.2d 1052 (Alaska Ct. App. 1982).

Both the defendant and the government are entitled to notice that the judge is considering previously unmentioned aggravating or mitigating factors before the parties present their sentencing arguments. Collins v. State, 816 P.2d 1383 (Alaska Ct. App. 1991).

Preservation of issue of lack of notice. —

Absent plain error, a defendant will not be heard to complain on appeal that he lacked advance notice of aggravating factors unless the issue has been preserved by a timely objection in the trial court. Collins v. State, 816 P.2d 1383 (Alaska Ct. App. 1991).

Although defendant did not receive notice of an aggravating factor under subsection (c)(10) prior to sentencing in an assault case, the error was waived because no objection was lodged and defense counsel chose to forgo a continuance and proceed with sentencing. Hurd v. State, 107 P.3d 314 (Alaska Ct. App. 2005).

Trial court has power sua sponte to alert parties to possible aggravating and mitigating factors present in the record so long as the parties are given an opportunity to marshal the relevant evidence, pro and con, and make their arguments accordingly. Hartley v. State, 653 P.2d 1052 (Alaska Ct. App. 1982).

When party has had insufficient time to comply with notice requirements relating to proof of prior convictions or aggravating and mitigating factors, the appropriate remedy should normally be a continuance of the sentencing proceedings; and failure to consider prior crimes for presumptive sentencing purposes can be condoned only in those cases where the state, after exercising due diligence, is unable to meet the statutory requirements for proof of a prior conviction. Kelly v. State, 663 P.2d 967 (Alaska Ct. App. 1983).

Collateral references. —

Downward departure under state sentencing guidelines permitting downward departure for defendants with significantly reduced mental capacity, including alcohol or drug dependency. 113 ALR5th 597.

Sec. 12.55.165. Extraordinary circumstances.

  1. If the defendant is subject to sentencing under AS 12.55.125(c) , (d), (e), or (i) and the court finds by clear and convincing evidence that manifest injustice would result from failure to consider relevant aggravating or mitigating factors not specifically included in AS 12.55.155 or from imposition of a sentence within the presumptive range, whether or not adjusted for aggravating or mitigating factors, the court shall enter findings and conclusions and cause a record of the proceedings to be transmitted to a three-judge panel for sentencing under AS 12.55.175 .
  2. In making a determination under (a) of this section, the court may not refer a case to a three-judge panel based on the defendant’s potential for rehabilitation if the court finds that a factor in aggravation set out in AS 12.55.155(c)(2) , (8), (10), (12), (15), (17), (18)(B), (20), (21), or (28) is present.
  3. A court may not refer a case to a three-judge panel under (a) of this section if the defendant is being sentenced for a sexual felony under AS 12.55.125(i) and the request for the referral is based solely on the claim that the defendant, either singly or in combination, has
    1. prospects for rehabilitation that are less than extraordinary; or
    2. a history free of unprosecuted, undocumented, or undetected sexual offenses.
  4. 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.

History. (§ 12 ch 166 SLA 1978; am § 37 ch 143 SLA 1982; am § 2 ch 168 SLA 1990; am § 27 ch 79 SLA 1992; am § 10 ch 30 SLA 1996; am § 8 ch 90 SLA 2003; am § 22 ch 2 SLA 2005; am § 22 ch 43 SLA 2013; am § 3 ch 56 SLA 2014)

Cross references. —

Sentences of imprisonment for felonies — AS 12.55.125

Factors in aggravation and mitigation — AS 12.55.155

Three-judge sentencing panel — AS 12.55.175

TD: VI, 77-78.

Cross references. —

For legislative findings and intent in connection with the enactment of (c) of this section, see sec. 1, ch. 43, SLA 2013 in the 2013 Temporary and Special Acts.

For governor's transmittal letter for ch. 43, SLA 2013 (SB 22), see 2013 Senate Journal 38 — 39.

For statement of legislative intent relating to (d) of this section, see sec. 1, ch. 56, SLA 2014 in the 2014 Temporary and Special Acts.

Effect of amendments. —

The 2013 amendment, effective July 1, 2013, added (c).

The 2014 amendment, effective July 1, 2014, added (d).

Editor’s notes. —

Under sec. 46(b), ch. 43, SLA 2013, subsection (c), added by sec. 22, ch. 43, SLA 2013, applies to offenses committed before, on, or after July 1, 2013.

Under sec. 5, ch. 56, SLA 2014, subsection (d) applies “to offenses committed before, on, or after July 1, 2014 if the sentence is imposed on or after July 1, 2014.”

Notes to Decisions

Legislature intended that this section establish two separate bases for referral of a case from a trial court to a three-judge panel for sentencing. First, referral is warranted in situations where manifest injustice would result from failure to consider relevant, nonstatutory aggravating or mitigating factors in sentencing; and, second, where manifest injustice would result from imposition of a presumptive sentence, whether or not adjusted for statutory aggravating or mitigating factors. Dancer v. State, 715 P.2d 1174 (Alaska Ct. App. 1986).

This section establishes two distinct grounds for referral of a case to a three-judge panel: (1) if the presumptive term, adjusted for aggravating or mitigating factors, would be manifestly unjust or plainly unfair and, (2) if manifest injustice will result from failure to consider a nonstatutory aggravating or mitigating factor. Kirby v. State, 748 P.2d 757 (Alaska Ct. App. 1987).

Authority to create new factors. —

It appears that the legislature, in adopting this section, in effect delegated to the three-judge panel the authority to create new aggravating and mitigating factors under the common law, which would be available for consideration in subsequent cases. Dancer v. State, 715 P.2d 1174 (Alaska Ct. App. 1986).

Trial court’s authority. —

Appellate court had no authority to declare that defendant’s case should be referred to a three-judge panel on the ground that even a sentence of forty-five years to serve was clearly mistaken; the appellate court had no authority to declare that such a sentence was not clearly mistaken, and that the trial judge therefore committed no error when he failed to refer defendant’s case to the three-judge panel. Shinault v. State, 258 P.3d 848 (Alaska Ct. App. 2011).

Superior court did not err in failing to consider whether referral to a three-judge sentencing panel was appropriate where it was aware of the restrictions on defendant's discretionary parole, understood his eligibility for parole, gave specific reasons for being cautious about his rehabilitation prospects, and found that any sentence lower than the presumptive range would have violated the sentencing goals of deterrence, community condemnation, and reaffirmation of societal norms. Fulling v. State, — P.3d — (Alaska Ct. App. Nov. 9, 2016) (memorandum decision).

Because there were no applicable statutory mitigators, the sentencing judge had no authority to impose a sentence below the presumptive minimum unless he referred defendant's case to the three-judge panel; the court failed to properly assess whether defendant had extraordinary potential for rehabilitation. King v. State, 487 P.3d 242 (Alaska Ct. App. 2021).

No basis for referral to sentencing panel. —

Defendant's claim that the sentencing judge should have referred his case to a statewide three-judge sentencing panel was properly rejected where his reliance on a mistaken halfway house handbook had already been rejected, his sentence had been mitigated based on his later acquittal of the underlying charges, his prior sentence in another state for sexual assault justified the sentence, and his re-conviction of a felony theft charge in Alaska remained a previous conviction for sentencing purposes. Jackson v. State, — P.3d — (Alaska Ct. App. May 24, 2017) (memorandum decision).

Trial court was statutorily precluded from referring defendant's case to a three-judge panel based on extraordinary potential for rehabilitation where it found as a factual matter that she was on felony probation at the time she committed the instant offense, and thus, her sentence was aggravated under AS 12.55.155(c)(20) . Jones v. State, — P.3d — (Alaska Ct. App. Oct. 10, 2018) (memorandum decision).

Sentencing court did not err by declining to refer defendant’s case to the three-judge sentencing panel on the basis of extraordinary potential for rehabilitation as there was no clear error in the court rejecting his factual claim that his spice use caused him to commit the sexual assaults or that his sentence was excessive. Bullock v. State, — P.3d — (Alaska Ct. App. Dec. 29, 2021).

First felony offense. —

A superior court should normally sentence a first felony offender to a lesser sentence than the presumptive term that would apply if the offense was a second felony, and that sentencing limit should be exceeded only when the state proves one or more of the aggravating factors listed in AS 12.55.155(c) or extraordinary circumstances, as defined in this section. Harris v. State, 980 P.2d 482 (Alaska Ct. App. 1999).

Ruling in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), did not affect the validity of defendant’s sentence, nor of any other sentence imposed on a first felony offender under AS 12.55.125 , so long as the unsuspended portion of the defendant’s term of imprisonment did not exceed the presumptive term that would have applied to a second felony offender convicted of the same offense. State v. Gibbs, 105 P.3d 145 (Alaska Ct. App. 2005).

Probationary reluctance not included. —

An offender’s declared reluctance to be placed under probationary supervision is not one of the aggravating factors included in this section. Bland v. State, 846 P.2d 815 (Alaska Ct. App. 1993).

Consideration of evidence of rehabilitation. —

Where the sentencing record contained unusually strong evidence that a youthful first offender has a particularly favorable potential for rehabilitation, and where the absence of statutory aggravating or mitigating factors would have precluded the sentencing court from giving any consideration to that evidence in imposing a sentence, the Alaska Court of Appeals thought referral to the three-judge panel was expressly authorized under this section and AS 12.55.175 . Smith v. State, 711 P.2d 561 (Alaska Ct. App. 1985).

Once the court finds the mitigating factor of unusual prospects for rehabilitation in the case of a first offender, it should evaluate the factor’s impact on an appropriate sentence in the same way it would evaluate a statutory mitigating factor that had been established by clear and convincing evidence. The court should deny referral to the three-judge panel only when it concludes that no adjustment to the presumptive term is appropriate in light of the factor. Kirby v. State, 748 P.2d 757 (Alaska Ct. App. 1987).

The superior court is justified in concluding that a defendant has unusually good potential for rehabilitation only when the court is satisfied, after reviewing the totality of the circumstances, that the defendant can adequately be treated in the community and need not be incarcerated for the full presumptive term in order to prevent future criminal activity. Lepley v. State, 807 P.2d 1095 (Alaska Ct. App. 1991).

The defendant has the burden to prove the mitigating factor of uncommonly good potential for rehabilitation by clear and convincing evidence. Lepley v. State, 807 P.2d 1095 (Alaska Ct. App. 1991).

The trial court did not err in failing to refer the defendant’s case, pursuant to this section, to the three-judge panel where the judge concluded that the defendant had failed to prove by clear and convincing evidence that his unusually good prospects for rehabilitation constituted an unspecified mitigating factor warranting referral to the panel pursuant to Smith v. State, 711 P.2d 561 (Alaska Ct. App. 1985).Boerma v. State, 843 P.2d 1246 (Alaska Ct. App. 1992).

Where the record showed that the defendant had refused to acknowledge responsibility for his crimes and had declined to engage in any therapy or treatment, it supported the trial judge’s ruling that the defendant failed to prove an extraordinary potential for rehabilitation. Beltz v. State, 980 P.2d 474 (Alaska Ct. App. 1999).

A non-statutory mitigating factor for the sentencing of a juvenile offender based on defendant’s extraordinary potential for rehabilitation could be considered because it is integrally related to the sentencing criteria of AS 12.55.005 . If a sentencing court ignored defendant’s demonstrated uncommon potential for rehabilitation, there would be a risk that the sentence would be imposed without appropriate regard for the sentencing goal of rehabilitation. Smith v. State, 258 P.3d 913 (Alaska Ct. App. 2011).

Trial court should not propose a nonstatutory mitigating factor where the legislature specifically rejected that factor for inclusion in AS 12.55.155(d) . —

Where the legislature has expressly addressed a consideration, such as the relationship between a defendant’s past conduct and his present offense, and imposed limitations on the trial court’s power to consider that relationship in mitigation of sentence, the trial court should not propose the same mitigating factor to the three-judge panel without complying with the limitations; to do so is to suggest a common-law development inconsistent with legislation. Totemoff v. State, 739 P.2d 769 (Alaska Ct. App. 1987).

Basis for referral to sentencing panel. —

Where the trial court found that it would be manifestly unfair not to adjust appellant’s sentence on account of non-statutory mitigating factors, the court appropriately referred the case to a three-judge sentencing panel pursuant to this section. Morrison v. State, 7 P.3d 955 (Alaska Ct. App. 2000).

Referral to a statewide sentencing panel for resentencing under Collins v. State was unwarranted because (1) the legislature repudiated Collins v. State, and (2) defendant’s amenability to treatment was not shown. James v. State, — P.3d — (Alaska Ct. App. Dec. 16, 2015) (memorandum decision).

Trial court did not err in not referring defendant’s sexual assault case to a three-judge sentencing panel; defendant was not a youthful offender and did not have extraordinary potential for rehabilitation. Bernhardt v. State, — P.3d — (Alaska Ct. App. Feb. 6, 2013) (memorandum decision).

Defendant was convicted of first degree sexual assault of his girlfriend’s sister, and the court sentenced him at the low end of the presumptive sentence range for that offense. However, based on the legislative history of the presumptive sentencing range, defendant’s sentencing was appropriate for referral to a three judge panel. Defendant had no prior history as a sex offender, and his prospects for rehabilitation were excellent. Collins v. State, 287 P.3d 791 (Alaska Ct. App. 2012).

Case was remanded for the trial court to reconsider referral to the three-judge panel based on manifest injustice of the applicable presumptive range where the court incorrectly believed that defendant would have been eligible for discretionary parole after serving one-third of her sentence, and that misperception may have impacted its decision to deny referral. Jones v. State, — P.3d — (Alaska Ct. App. Oct. 10, 2018) (memorandum decision).

Poor history on probation not subject to referral. —

The “extraordinary circumstances” demonstrated by a defendant’s poor history on probation does not have to be referred to the statewide three-judge sentencing panel under AS 12.55.165 through 12.55.175 . Surrells v. State, 151 P.3d 483 (Alaska Ct. App. 2006).

Manifest injustice. —

Manifest injustice is basically a subjective standard because of the purpose that the standard serves in recognizing cases that will inevitably arise in which the subjective judgment of the sentencing court should take precedence over the objective limits imposed by statute. Lloyd v. State, 672 P.2d 152 (Alaska Ct. App. 1983).

The judge did not commit error by refusing to find manifest injustice based on imposition of the adjusted presumptive term in light of the totality of the circumstances. Lloyd v. State, 672 P.2d 152 (Alaska Ct. App. 1983).

Judge did not apply an incorrect standard in determining the question of manifest injustice when he defined the term as “something that’s shocking to the conscience,” and remand for application of the obvious unfairness standard proposed by defendant was unwarranted. Lloyd v. State, 672 P.2d 152 (Alaska Ct. App. 1983).

It was not manifestly unjust to impose a five-year presumptive term upon defendant’s conviction of attempted sexual assault of a minor, and he was not automatically entitled as a matter of law to have his case referred to a three-judge panel for sentencing. Aveoganna v. State, 757 P.2d 75 (Alaska Ct. App. 1988).

Three-judge panel was well within its discretion in determining that it would not be manifestly unjust to impose the five-year manslaughter term without downward adjustment based on defendant’s considerable prospects for rehabilitation, where defendant’s actions were sufficiently reckless, and his crime sufficiently aggravated. Lowe v. State, 866 P.2d 1320 (Alaska Ct. App. 1994).

For purposes of this section and AS 12.55.175 , a presumptive term cannot be “manifestly unjust” in general, and before a sentencing judge can properly characterize a presumptive term as “manifestly unjust” in respect to a particular defendant, he must articulate specific circumstances that make that defendant significantly different from a typical offender within that category or that make the defendant’s conduct significantly different from a typical offense. Beltz v. State, 980 P.2d 474 (Alaska Ct. App. 1999).

Trial court did not err in denying defendant's request for referral to the three-judge panel because defendant failed to establish that it was manifestly unjust to sentence him within the applicable 4- to 30-year sentencing range; defendant had a criminal history, and the sentencing judge expressed concern about the impact of alcohol consumption on his conduct, given that the victims testified that defendant was intoxicated when he assaulted them. Galaktianoff v. State, — P.3d — (Alaska Ct. App. Feb. 27, 2019), reaff'd, — P.3d — (Alaska Ct. App. 2019) (memorandum decision).

Consideration of defendant’s prior felony conviction. —

The three-judge sentencing panel may consider the mitigated nature of a defendant’s prior felony conviction as a factor in the overall determination of whether imposition of the presumptive term for a subsequent felony conviction would be manifestly unjust. The nature and seriousness of an offender’s prior criminal misconduct are a legitimate part of the totality of the circumstances; as such, they may be considered in the overall determination of manifest injustice. Duncan v. State, 782 P.2d 301 (Alaska Ct. App. 1989).

Denial of defendant’s request for referral to three-judge sentencing panel not error. —

See Bartholomew v. State, 720 P.2d 54 (Alaska Ct. App. 1986); Abdulbaqui v. State, 728 P.2d 1211 (Alaska Ct. App. 1986); Bossie v. State, 835 P.2d 1257 (Alaska Ct. App. 1992); Russell v. State, 934 P.2d 1335 (Alaska Ct. App. 1997).

Sentencing court was not clearly mistaken in refusing to send the case of defendant convicted of first-degree sexual abuse of a minor to the statewide three-judge sentencing panel because it focused on the severity of the injury to a very young child and defendant’s failure to produce a sex offender assessment or any other evaluation of his rehabilitation potential. The court properly weighed the factors of defendant’s low cognitive functioning, childhood history of neglect and sexual abuse, lack of criminal history, and youth. Knipe v. State, 305 P.3d 359 (Alaska Ct. App. 2013).

Trial court did not err by denying defendant's request for referral to the statewide three-judge sentencing panel because it expressly concluded that the five-year minimum term of imprisonment was not manifestly unjust. Ackerman v. State, — P.3d — (Alaska Ct. App. Feb. 20, 2019) (memorandum decision).

Mitigation based on non-statutory factors. —

Even though aggravator factor in AS 12.55.155 applied to defendant who pled guilty to sexual abuse of a minor, the trial court was not precluded by subsection (b) of this section from referring the case to a three-judge panel based on defendant’s favorable post-offense conduct; and the panel could mitigate defendant’s presumptive term based on this non-statutory factor. State v. McKinney, 946 P.2d 456 (Alaska Ct. App. 1997).

Trial court erred by failing to refer defendant’s case to the three judge sentencing panel where the trial court found the non-statutory mitigating factor of extraordinary potential for rehabilitation, and no statutory mitigators were proved. The question the trial court should have asked was whether, because of the non-statutory mitigator, it was manifestly unjust to fail to make some adjustment to the otherwise allowable sentence. Harapat v. State, 174 P.3d 249 (Alaska Ct. App. 2007).

Court declined to recognize “developmental immaturity” as a non-statutory mitigator appropriate for referring a juvenile’s case to the three-judge statewide panel that was authorized to depart from the normal rules that governed presumptive sentencing because such recognition would run contrary to legislative policy and recognition of that proposed non-statutory mitigator would, in effect, create a presumption that older teenagers should be treated more leniently. Smith v. State, 258 P.3d 913 (Alaska Ct. App. 2011).

Superior court's decision not to refer defendant's case to a three-judge sentencing panel for consideration of a non-statutory mitigator was not clearly mistaken. Defendant was caught smuggling a substantial amount of drugs (including several pounds of hash oil), with a street value of over $300,000, which defendant admitted he planned to distribute notwithstanding that such conduct was flatly prohibited by the law both at the time he was caught and the present day. Smith v. State, — P.3d — (Alaska Ct. App. Nov. 6, 2019).

Applied in

McManners v. State, 650 P.2d 414 (Alaska Ct. App. 1982); Sears v. State, 653 P.2d 349 (Alaska Ct. App. 1982); Seymore v. State, 655 P.2d 786 (Alaska Ct. App. 1982); Peetook v. State, 655 P.2d 1308 (Alaska Ct. App. 1982); Shaw v. State, 673 P.2d 781 (Alaska Ct. App. 1983); Walsh v. State, 677 P.2d 912 (Alaska Ct. App. 1984); Degler v. State, 741 P.2d 659 (Alaska Ct. App. 1987); Winther v. State, 749 P.2d 1356 (Alaska Ct. App. 1988); Horton v. State, 758 P.2d 628 (Alaska Ct. App. 1988).

Quoted in

Wiley v. State, 822 P.2d 940 (Alaska Ct. App. 1991); State v. Wagner, 835 P.2d 454 (Alaska Ct. App. 1992); Olmstead v. State, 477 P.3d 656 (Alaska Ct. App. 2020).

Stated in

Erhart v. State, 656 P.2d 1199 (Alaska Ct. App. 1982); State v. Rastopsoff, 659 P.2d 630 (Alaska Ct. App. 1983); Maldonado v. State, 676 P.2d 1093 (Alaska Ct. App. 1984); Tulowetzke v. State, Dep't of Pub. Safety, 743 P.2d 368 (Alaska 1987); Cook v. State, 36 P.3d 710 (Alaska Ct. App. 2001).

Cited in

Juneby v. State, 641 P.2d 823 (Alaska Ct. App. 1982); Lacquement v. State, 644 P.2d 856 (Alaska Ct. App. 1982); Wolf v. State, 647 P.2d 609 (Alaska Ct. App. 1982); Neakok v. State, 653 P.2d 658 (Alaska Ct. App. 1982); Griffith v. State, 653 P.2d 1057 (Alaska Ct. App. 1982); Wright v. State, 656 P.2d 1226 (Alaska Ct. App. 1983); Koteles v. State, 660 P.2d 1199 (Alaska Ct. App. 1983); Langton v. State, 662 P.2d 954 (Alaska Ct. App. 1983); Woods v. State, 667 P.2d 184 (Alaska 1983); Maal v. State, 670 P.2d 708 (Alaska Ct. App. 1983); State v. LaPorte, 672 P.2d 466 (Alaska Ct. App. 1983); Flink v. State, 683 P.2d 725 (Alaska Ct. App. 1984); Benboe v. State, 698 P.2d 1230 (Alaska Ct. App. 1985); Rhodes v. State, 717 P.2d 422 (Alaska Ct. App. 1986); Schnecker v. State, 739 P.2d 1310 (Alaska Ct. App. 1987); James v. State, 739 P.2d 1314 (Alaska Ct. App. 1987); Bond v. State, 747 P.2d 546 (Alaska Ct. App. 1987); Comegys v. State, 747 P.2d 554 (Alaska Ct. App. 1987); James v. State, 754 P.2d 1336 (Alaska Ct. App. 1988); Stewart v. State, 756 P.2d 900 (Alaska Ct. App. 1988); Gabrieloff v. State, 758 P.2d 128 (Alaska Ct. App. 1988); Juelson v. State, 758 P.2d 1294 (Alaska Ct. App. 1988); Sledge v. State, 763 P.2d 1364 (Alaska Ct. App. 1988); Luepke v. State, 765 P.2d 988 (Alaska Ct. App. 1988); Hilburn v. State, 765 P.2d 1382 (Alaska Ct. App. 1988); Fowler v. State, 766 P.2d 588 (Alaska Ct. App. 1988); DeHart v. State, 781 P.2d 989 (Alaska Ct. App. 1989); Collins v. State, 816 P.2d 1383 (Alaska Ct. App. 1991); Beauvois v. State, 837 P.2d 1118 (Alaska Ct. App. 1992); Lewis v. State, 845 P.2d 447 (Alaska Ct. App. 1993); Reese v. State, 930 P.2d 1295 (Alaska Ct. App. 1996); Sorenson v. State, 938 P.2d 1084 (Alaska Ct. App. 1997); Rozkydal v. State, 938 P.2d 1091 (Alaska Ct. App. 1997); Clark v. State, 8 P.3d 1149 (Alaska Ct. App. 2000); Brockway v. State, 37 P.3d 427 (Alaska Ct. App. 2001); Hurd v. State, 107 P.3d 314 (Alaska Ct. App. 2005); Michael v. State, 115 P.3d 517 (Alaska 2005); Greist v. State, 121 P.3d 811 (Alaska Ct. App. 2005); Cleveland v. State, 143 P.3d 977 (Alaska Ct. App. 2006); State v. Dague, 143 P.3d 988 (Alaska Ct. App. 2006); Blodgett v. Blodgett (In re Estate of Blodgett), 147 P.3d 702 (Alaska 2006); Labrake v. State, 152 P.3d 474 (Alaska Ct. App. 2007); Malloy v. State, 153 P.3d 1003 (Alaska Ct. App. 2007); Luckart v. State, 270 P.3d 816 (Alaska Ct. App. 2012); Balallo v. State, — P.3d — (Alaska Ct. App. July 30, 2018).

Collateral references. —

Downward departure under state sentencing guidelines based on extraordinary family circumstances. 106 ALR5th 377.

Downward departure from United States Sentencing Guidelines (U.S.S.G. §§ 1A1.1 et seq.) based on aberrant behavior. 164 A.L.R. Fed. 61.

Sec. 12.55.172. [Renumbered as AS 12.55.180.]

Sec. 12.55.175. Three-judge sentencing panel.

  1. There is created within the superior court a panel of five superior court judges to be appointed by the chief justice in accordance with rules and for terms as may be prescribed by the supreme court. Three judges of the panel shall be designated by the chief justice as members.  The remaining two judges shall be designated by the chief justice as first and second alternates to sit as members in the event of disqualification or disability in accordance with rules as may be prescribed by the supreme court.
  2. Upon receipt of a record of proceedings under AS 12.55.165 , the three-judge panel shall consider all pertinent files, records, and transcripts, including the findings and conclusions of the judge who originally heard the matter. The panel may hear oral testimony to supplement the record before it. If the panel supplements the record, the panel shall permit the victim to testify before the panel. If the panel finds that manifest injustice would result from failure to consider relevant aggravating or mitigating factors not specifically included in AS 12.55.155 or from imposition of a sentence within the presumptive range, whether or not adjusted for aggravating or mitigating factors, it shall sentence the defendant in accordance with this section. If the panel does not find that manifest injustice would result, it shall remand the case to the sentencing court, with a written statement of its findings and conclusions, for sentencing under AS 12.55.125 .
  3. The three-judge panel may in the interest of justice sentence the defendant to any definite term of imprisonment up to the maximum term provided for the offense or to any sentence authorized under AS 12.55.015 .
  4. Sentencing of a defendant or remanding of a case under this section shall be by a majority of the three-judge panel.
  5. If the three-judge panel determines under (b) of this section that manifest injustice would result from imposition of a sentence within the presumptive range and the panel also finds that the defendant has an exceptional potential for rehabilitation and that a sentence of less than the presumptive range should be imposed because of the defendant’s exceptional potential for rehabilitation, the panel
    1. shall sentence the defendant within the presumptive range required under AS 12.55.125 or as permitted under AS 12.55.155 ;
    2. shall order the defendant under AS 12.55.015 to engage in appropriate programs of rehabilitation; and
    3. may provide that the defendant is eligible for discretionary parole under AS 33.16.090 during the second half of the sentence imposed under this subsection if the defendant successfully completes all rehabilitation programs ordered under (2) of this subsection.
  6. A defendant being sentenced for a sexual felony under AS 12.55.125(i) may not establish, nor may the three-judge panel find under (b) of this section or any other provision of law, that manifest injustice would result from imposition of a sentence within the presumptive range based solely on the claim that the defendant, either singly or in combination, has
    1. prospects for rehabilitation that are less than extraordinary; or
    2. a history free of unprosecuted, undocumented, or undetected sexual offenses.
  7. 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.

History. (§ 12 ch 166 SLA 1978; am § 28 ch 79 SLA 1992; am § 16 ch 63 SLA 1997; am §§ 23, 24 ch 2 SLA 2005; am § 23 ch 43 SLA 2013; am § 4 ch 56 SLA 2014)

Cross references. —

Sentences of imprisonment for felonies — AS 12.55.125

Extraordinary circumstances — AS 12.55.165

Original Code Provision — None.

TD: VI, 78-79.

Cross references. —

For legislative findings and intent in connection with the enactment of (f) of this section, see sec. 1, ch. 43, SLA 2013 in the 2013 Temporary and Special Acts.

For governor's transmittal letter for ch. 43, SLA 2013 (SB 22), see 2013 Senate Journal 38 — 39.

For statement of legislative intent relating to (g) of this section, see sec. 1, ch. 56, SLA 2014 in the 2014 Temporary and Special Acts.

Effect of amendments. —

The 2013 amendment, effective July 1, 2013, added (f).

The 2014 amendment, effective July 1, 2014, added (g).

Editor’s notes. —

Under sec. 46(b), ch. 43, SLA 2013, subsection (f), added by sec. 23, ch. 43, SLA 2013, applies to offenses committed before, on, or after July 1, 2013.

Under sec. 5, ch. 56, SLA 2014, subsection (g) applies “to offenses committed before, on, or after July 1, 2014 if the sentence is imposed on or after July 1, 2014.”

Notes to Decisions

Sentencing authority. —

The fact that a matter is referred back to the original sentencing judge when the three-judge panel disagrees with the original sentencing judge indicates that the legislature wanted the original sentencing judge to maintain control of the sentencing process. Heathcock v. State, 670 P.2d 1155 (Alaska Ct. App. 1983).

When a trial judge referred a case to a three-judge panel, the panel did not have statutory authority to impose a sentence greater than the two-year presumptive sentence on the ground that the two-year presumptive sentence was manifestly unjust because it was too severe; rather the panel was required to remand the case to the trial judge for further proceedings, since it disagreed with the trial judge’s conclusion. Heathcock v. State, 670 P.2d 1155 (Alaska Ct. App. 1983).

Under the provisions of the revised Criminal Code and the decision in Heathcock v. State, 670 P.2d 1155 (Alaska Ct. App. 1983), the three-judge panel does not have authority to sentence until it agreed with the trial judge that his application of the provisions of the revised Criminal Code would result in a sentence which was manifestly unjust; the panel was not free to assume that defendant could be sentenced to concurrent sentences and then go forward and sentence him. Winfree v. State, 683 P.2d 284 (Alaska Ct. App. 1984).

Under subsection (c), the three-judge panel is expressly empowered to impose any sentence authorized for the offense. State v. Ridgway, 750 P.2d 362 (Alaska Ct. App. 1988).

A three-judge panel had no authority to reduce defendant’s sentence to less than three and one-half years to serve (50% of the low end of the applicable presumptive range), even if the three-judge panel concluded that such a sentence would be manifestly too severe. Garner v. State, 266 P.3d 1045 (Alaska Ct. App. 2011).

Three-judge sentencing panel misunderstood its authority related to applying a sentence and a term of parole to defendant. Luckart v. State, 314 P.3d 1226 (Alaska Ct. App. 2013).

Trial court erred in failing to consider whether the prohibition on discretionary parole would result in manifest injustice after it imposed a sentenced of 15 years with 9 years suspended for second-degree sexual abuse of a minor and the three-judge sentencing panel had statutory authority to grant enhanced parole eligibility to defendants who were subject to presumptive sentencing. Lochridge v. State, — P.3d — (Alaska Ct. App. June 8, 2016) (memorandum decision).

Sentence upheld. —

Three-judge panel's error in sentencing defendant under the general provisions of subsections (b) and (c) did not make any difference with regard to the sentence imposed on defendant's first-degree sexual assault conviction because the applicable presumptive range was 20 to 30 years; the panel gave defendant 16 years to serve, which was more than the 10 years they would have been permitted to impose under subsection (e). Holt v. State, — P.3d — (Alaska Ct. App. Apr. 3, 2019) (memorandum decision).

Discretion to modify presumptive sentence. —

The statutory scheme gives the three-judge panel substantial discretion in determining whether to modify presumptive sentences in light of nonstatutory aggravating or mitigating factors. That discretion will be disturbed only where the panel’s exercise of that discretion was clearly mistaken. Winther v. State, 749 P.2d 1356 (Alaska Ct. App. 1988).

Sentencing powers are not subject to restriction under AS 12.55.155(a)(2) . State v. Price, 730 P.2d 159 (Alaska Ct. App. 1986).

Non-statutory mitigating factor. —

Even though aggravator AS 12.55.155(c)(18)(B) applied to defendant who pled guilty to sexual abuse of a minor, the trial court was not precluded by AS 12.55.165(b) from referring the case to a three-judge panel based on defendant’s favorable post-offense conduct, and the panel could mitigate defendant’s presumptive term based on non-statutory factors separate and distinct from his potential for rehabilitation. State v. McKinney, 946 P.2d 456 (Alaska Ct. App. 1997).

Court declined to recognize “developmental immaturity” as a non-statutory mitigator appropriate for referring a juvenile’s case to the three-judge statewide panel authorized to depart from the normal rules that governed presumptive sentencing. Such recognition was contrary to legislative policy and recognition of such a mitigator could create a presumption that older teenagers should be treated more leniently. This could require the transfer of sentencing of all younger offenders to the state-wide sentencing panel, since the panel is the only sentencing court authorized to consider non-statutory factors. Smith v. State, 258 P.3d 913 (Alaska Ct. App. 2011).

Sentencing factors considered. —

In a second-degree sexual assault case, a three-judge panel was not clearly mistaken in finding that a 99-year presumptive term applied, even though the panel’s analysis was initially flawed due to a misreading of Moore v. State, 262 P.3d 217 (Alaska App. 2011). Defendant’s age, military service, and post-traumatic stress disorder were considered, and the panel ultimately concluded that, in light of defendant’s criminal history, lack of remorse, and repeated failures at rehabilitation, these factors did not make him atypical among repeat sexual offenders, and he was therefore not entitled to a sentence below the presumptive term. Kobuk v. State, — P.3d — (Alaska Ct. App. Apr. 8, 2015) (memorandum decision).

Consecutive sentences. —

AS 12.55.025(h) , which formerly imposed mandatory consecutive sentences in certain instances, applied to sentencing decisions made by the three-judge panel. State v. Wagner, 835 P.2d 454 (Alaska Ct. App. 1992).

Under subsection (c), the three-judge panel has broad discretion to determine the sentence appropriate for multiple offenses over which it has jurisdiction and to determine what portion of each sentence should be consecutively imposed; the scope of this discretion was not affected by former subsection (h) of AS 12.55.025 . State v. Wagner, 835 P.2d 454 (Alaska Ct. App. 1992).

Denial of defendant’s request for referral to three-judge panel held error. —

Defendant was convicted of first degree sexual assault of his girlfriend’s sister, and the court sentenced him at the low end of the presumptive sentence range for that offense. However, based on the legislative history of the presumptive sentencing range, defendant’s sentencing was appropriate for referral to a three judge panel. Defendant had no prior history as a sex offender, and his prospects for rehabilitation were excellent. Collins v. State, 287 P.3d 791 (Alaska Ct. App. 2012).

Because there were no applicable statutory mitigators, the sentencing judge had no authority to impose a sentence below the presumptive minimum unless he referred defendant's case to the three-judge panel; the court failed to properly assess whether defendant had extraordinary potential for rehabilitation. King v. State, 487 P.3d 242 (Alaska Ct. App. 2021).

Denial of defendant’s request for referral to three-judge sentencing panel not error. —

See Bartholomew v. State, 720 P.2d 54 (Alaska Ct. App. 1986).

Trial court did not err in denying defendant’s request to refer his case to a three-judge sentencing panel where defendant refused to accept responsibility for the sexual assault and he had not proven the non-statutory mitigating factor of exceptional prospects for rehabilitation. Defendant’s conduct did not differ significantly from a typical offender. Manrique v. State, 177 P.3d 1188 (Alaska Ct. App. 2008).

Trial court correctly declined to refer defendant’s sexual assault case to a three-judge sentencing panel; defendant was not a youthful offender and did not have extraordinary potential for rehabilitation. Bernhardt v. State, — P.3d — (Alaska Ct. App. Feb. 6, 2013) (memorandum decision).

Remedy for manifest injustice. —

Where an individual sentencing judge is precluded by the absence of statutory aggravating and mitigating factors from any adjustment of the presumptive terms, imposition of the seven-year presumptive term for first-degree assault constitutes a manifest injustice. Thus, the appropriate remedy for this is referral to the three-judge panel. New v. State, 714 P.2d 378 (Alaska Ct. App. 1986).

For purposes of AS 12.55.165 and this section, a presumptive term cannot be “manifestly unjust” in general, and before a sentencing judge can properly characterize a presumptive term as “manifestly unjust” in respect to a particular defendant, he must articulate specific circumstances that make that defendant significantly different from a typical offender within that category or that make the defendant’s conduct significantly different from a typical offense. Beltz v. State, 980 P.2d 474 (Alaska Ct. App. 1999).

Three-judge sentencing panel should have imposed a sentence below the presumptive range where the trial judge and panel agreed that it would be manifestly unjust to impose a sentence within the presumptive range for first-degree sexual assault, given defendant’s youth, remorse, lack of criminal history and the fact that he turned himself in; AS 12.55.175(e) did not apply to require a finding of exceptional potential for rehabilitation. Luckart v. State, 270 P.3d 816 (Alaska Ct. App. 2012).

Manifest injustice. —

Because defendant's case was remanded to the three-judge panel with directions to reconsider the potential manifest injustice of a sentence within the presumptive range, the court of appeals anticipated that defendant would present his arguments regarding the proper interpretation of "manifest injustice," and, therefore, it was premature for the court of appeals to resolve the issue until the three-judge panel heard defendant's arguments and reconsidered its decision. Balallo v. State, — P.3d — (Alaska Ct. App. July 30, 2018).

Where the statewide three-judge sentencing panel found that it would not be manifestly unjust to sentence defendant within the presumptive range for third-degree sexual assault (engaging in sexual contact with an incapacitated person), the three-judge panel did not err in rejecting defendant's claim of manifest injustice because defendant did not focus on the specific circumstances of his prior offenses or argue how those circumstances differentiated him from the typical offender with prior felony convictions for property offenses; and defendant largely overlooked his remaining criminal history, which included a string of misdemeanors and probation violations following his release from prison, and a fourth-degree assault conviction. Kignak v. State, — P.3d — (Alaska Ct. App. Oct. 16, 2019) (memorandum decision).

Consideration of evidence of rehabilitation. —

Where the sentencing record contained unusually strong evidence that a youthful first offender has a particularly favorable potential for rehabilitation, and where the absence of statutory aggravating or mitigating factors would have precluded the sentencing court from giving any consideration to that evidence in imposing a sentence, the Alaska Court of Appeals thought referral to the three-judge panel was expressly authorized under AS 12.55.165 and this section. Smith v. State, 711 P.2d 561 (Alaska Ct. App. 1985).

Because the three-judge panel concluded that, even after considering the non-statutory mitigating factor that defendant had extraordinary potential for rehabilitation, the presumptive term of seven years for manslaughter was not manifestly unjust. The panel applied the correct test in declining to accept jurisdiction. Garner v. State, 266 P.3d 1045 (Alaska Ct. App. 2011).

Consideration of defendant’s prior felony conviction. —

The three-judge sentencing panel may consider the mitigated nature of a defendant’s prior felony conviction as a factor in the overall determination of whether imposition of the presumptive term for a subsequent felony conviction would be manifestly unjust. The nature and seriousness of an offender’s prior criminal misconduct are a legitimate part of the totality of the circumstances; as such, they may be considered in the overall determination of manifest injustice. Duncan v. State, 782 P.2d 301 (Alaska Ct. App. 1989).

Panel not bound by trial court’s evaluation. —

The three-judge panel is not bound by the trial court’s evaluation of the facts or determination of the law. Winther v. State, 749 P.2d 1356 (Alaska Ct. App. 1988).

Trial court should not propose nonstatutory mitigating factor to three-judge panel where legislature specifically rejected that factor for inclusion in AS 12.55.155(d) . —

Where the legislature has expressly addressed a consideration, such as the relationship between a defendant’s past conduct and his present offense, and imposed limitations on the trial court’s power to consider that relationship in mitigation of sentence, the trial court should not propose the same mitigating factor to the three-judge panel without complying with the limitations; to do so is to suggest a common-law development inconsistent with legislation. Totemoff v. State, 739 P.2d 769 (Alaska Ct. App. 1987).

Remand of case back to court for sentencing. —

If the three-judge panel concludes that the proper sentence for a defendant is a sentence that the single judge was authorized to impose, the panel is obliged under subsection (b) to remand the case to the single judge for sentencing, because the statute authorizes the three-judge panel to keep the case and sentence the defendant only if the panel concludes that a proper sentence lies outside the range of sentences that the single judge was authorized to impose. Morrison v. State, 7 P.3d 955 (Alaska Ct. App. 2000).

Remand for resentencing was required because the three-judge panel sentenced defendant under the general provisions of subsections (b) and (c), and its error made a difference with respect to the sentences for second-degree sexual assault convictions since the applicable presumptive range for those four counts was 5 to 15 years; thus, under subsection (e) defendant's minimum active term of imprisonment for each count was 2.5 years, but the panel only gave him 1 year to serve on each conviction. Holt v. State, — P.3d — (Alaska Ct. App. Apr. 3, 2019) (memorandum decision).

Applied in

McManners v. State, 650 P.2d 414 (Alaska Ct. App. 1982); Shaw v. State, 673 P.2d 781 (Alaska Ct. App. 1983); Degler v. State, 741 P.2d 659 (Alaska Ct. App. 1987); Lowe v. State, 866 P.2d 1320 (Alaska Ct. App. 1994).

Quoted in

Kirby v. State, 748 P.2d 757 (Alaska Ct. App. 1987); Wiley v. State, 822 P.2d 940 (Alaska Ct. App. 1991); Gwalthney v. State, 964 P.2d 1285 (Alaska Ct. App. 1998).

Stated in

Erhart v. State, 656 P.2d 1199 (Alaska Ct. App. 1982); State v. Rastopsoff, 659 P.2d 630 (Alaska Ct. App. 1983); Maldonado v. State, 676 P.2d 1093 (Alaska Ct. App. 1984); Tulowetzke v. State, Dep't of Pub. Safety, 743 P.2d 368 (Alaska 1987).

Cited in

Juneby v. State, 641 P.2d 823 (Alaska Ct. App. 1982); Neakok v. State, 653 P.2d 658 (Alaska Ct. App. 1982); Griffith v. State, 653 P.2d 1057 (Alaska Ct. App. 1982); Wright v. State, 656 P.2d 1226 (Alaska Ct. App. 1983); Langton v. State, 662 P.2d 954 (Alaska Ct. App. 1983); State v. LaPorte, 672 P.2d 466 (Alaska Ct. App. 1983); Walsh v. State, 677 P.2d 912 (Alaska Ct. App. 1984); State v. Brinkley, 681 P.2d 351 (Alaska Ct. App. 1984); Flink v. State, 683 P.2d 725 (Alaska Ct. App. 1984); Dancer v. State, 715 P.2d 1174 (Alaska Ct. App. 1986); Kuvaas v. State, 717 P.2d 855 (Alaska Ct. App. 1986); Schnecker v. State, 739 P.2d 1310 (Alaska Ct. App. 1987); James v. State, 739 P.2d 1314 (Alaska Ct. App. 1987); Comegys v. State, 747 P.2d 554 (Alaska Ct. App. 1987); Russell v. State, 752 P.2d 1022 (Alaska Ct. App. 1988); James v. State, 754 P.2d 1336 (Alaska Ct. App. 1988); Beauvois v. State, 837 P.2d 1118 (Alaska Ct. App. 1992); Blodgett v. Blodgett (In re Estate of Blodgett), 147 P.3d 702 (Alaska 2006); Olmstead v. State, 477 P.3d 656 (Alaska Ct. App. 2020).

Sec. 12.55.180. Designation of representative.

If more than one person who qualifies as a victim under AS 12.55.185 desires notice under AS 12.55.088 , the prosecuting attorney shall designate one person to represent all victims for purposes of receiving the notice required and exercising the rights granted under this chapter.

History. (§ 6 ch 59 SLA 1989)

Cross references. —

Definition of “victim” — AS 12.55.185

Original Code Provision — None.

Revisor’s notes. —

Formerly AS 12.55.172 . Renumbered in 1990.

Sec. 12.55.185. Definitions.

In this chapter, unless the context requires otherwise,

  1. “active term of imprisonment” has the meaning given in AS 12.55.127 ;
  2. “building” has the meaning given in AS 11.81.900 ;
  3. “crime against a person” has the meaning given in AS 33.30.901 ;
  4. “criminal street gang” has the meaning given in AS 11.81.900(b) ;
  5. “dangerous instrument” has the meaning given in AS 11.81.900 ;
  6. “domestic violence” has the meaning given in AS 18.66.990 ;
  7. “firearm” has the meaning given in AS 11.81.900 ;
  8. “first felony conviction” means that the defendant has not been previously convicted of a felony;
  9. “judicial officer” has the meaning given in AS 11.56.900 ;
  10. “most serious felony” means
    1. arson in the first degree, sex trafficking in the first degree under AS 11.66.110(a)(2) , enticement of a minor under AS 11.41.452(e) , or any unclassified or class A felony prescribed under AS 11.41; or
    2. an attempt, or conspiracy to commit, or criminal solicitation under AS 11.31.110 of, an unclassified felony prescribed under AS 11.41;
  11. “paramedic” means a mobile intensive care paramedic licensed under AS 18.08;
  12. “peace officer” has the meaning given in AS 11.81.900 ;
  13. “pecuniary gain” means the amount of money or value of property at the time of commission of the offense derived by the defendant from the commission of the offense, less the amount of money or value of property returned to the victim of the offense or seized by or surrendered to lawful authority before sentence is imposed;
  14. “second felony conviction” means that the defendant previously has been convicted of a felony;
  15. “serious physical injury” has the meaning given in AS 11.81.900 ;
  16. “sexual felony” means sexual assault in the first degree, sexual abuse of a minor in the first degree, sex trafficking in the first degree, sexual assault in the second degree, sexual abuse of a minor in the second degree, sexual abuse of a minor in the third degree under AS 11.41.438(c) , unlawful exploitation of a minor, indecent viewing or production of a picture under AS 11.61.123(f)(1) or (2), distribution of child pornography, sexual assault in the third degree, incest, indecent exposure in the first degree, possession of child pornography, enticement of a minor, and felony attempt, conspiracy, or solicitation to commit those crimes;
  17. “third felony conviction” means that the defendant has been at least twice previously convicted of a felony;
  18. “unconditional discharge” means that a defendant is released from all disability arising under a sentence, including probation and parole;
  19. “victim” means
    1. a person against whom an offense has been perpetrated;
    2. one of the following, not the perpetrator, if the person specified in (A) of this paragraph is a minor, incompetent, or incapacitated:
      1. an individual living in a spousal relationship with the person specified in (A) of this paragraph; or
      2. a parent, adult child, guardian, or custodian of the person;
    3. one of the following, not the perpetrator, if the person specified in (A) of this paragraph is dead:
      1. a person living in a spousal relationship with the deceased before the deceased died;
      2. an adult child, parent, brother, sister, grandparent, or grandchild of the deceased; or
      3. any other interested person, as may be designated by a person having authority in law to do so.

History. (§ 12 ch 166 SLA 1978; am E.O. No. 55, § 9 (1984); am § 3 ch 154 SLA 1984; § 7 ch 59 SLA 1989; am § 6 ch 64 SLA 1991; am § 8 ch 36 SLA 1993; am § 5 ch 6 SLA 1996; am § 13 ch 7 SLA 1996; am § 10 ch 60 SLA 1996; am § 15 ch 64 SLA 1996; am § 9 ch 90 SLA 2003; am § 25 ch 2 SLA 2005; am § 17 ch 53 SLA 2006; am § 21 ch 1 TSSLA 2012; am § 24 ch 43 SLA 2013; am §§ 78, 79 ch 4 FSSLA 2019; am § 7 ch 29 SLA 2021)

Cross references. —

Definitions — AS 11.56.990, 11.81.900(b)

Definition of “domestic violence” — AS 25.35.060 .

Original Code Provision — None.

Revisor's notes. —

Renumbered in 1991, 1993, 1996, and 2001 to maintain defined terms in alphabetical order. In 2005, paragraph (1) was enacted as paragraph (18) and renumbered in 2005, at which time former paragraphs (1)-(17) were renumbered as paragraphs (2)-(18) [now (3)-(19)]. In 2006, paragraph (2) was enacted as paragraph (19) and renumbered in 2006, at which time former paragraphs (2)-(18) were renumbered as paragraphs (3)-(19).

Cross references. —

For governor's transmittal letter for ch. 43, SLA 2013 (SB 22), see 2013 Senate Journal 38 — 39.

Administrative Code. —

For discretionary parole release hearings, see 22 AAC 20, art. 4.

For mandatory parole release and revocation, see 22 AAC 20, art. 7.

Effect of amendments. —

The 2012 amendment, effective July 1, 2012, in (10)(A), substituted “sex trafficking” for “promoting prostitution”, and added “online enticement of a minor under AS 11.41.452(e) ,” following “AS 11.66.110(a)(2) ”.

The 2013 amendment, effective July 1, 2013, in (16), inserted “sex trafficking in the first degree,” following “abuse of a minor in the first degree,”, and “online enticement of a minor,” following “possession of child pornography,”.

The 2019 amendment, effective July 9, 2019, in (10)(A), deleted “online” following “AS 11.66.110(a)(2) ,” and in (16), inserted “sexual abuse of a minor in the third degree under AS 11.41.438(c) ,” and “indecent viewing or production of a picture under AS 11.61.123(f)(1) or (2),” and deleted “online” following “possession of child pornography,”.

The 2021 amendment, effective January 1, 2022, in (11), substituted “AS 18.08” for “AS 08.64”.

Editor's notes. —

Section 27(a), ch. 1, TSSLA 2012, provides that the 2012 amendments to paragraph (10) apply to offenses committed before, on, or after July 1, 2012.

Under sec. 46(b), ch. 43, SLA 2013, the 2013 changes to paragraph (16) apply to offenses committed before, on, or after July 1, 2013.

Section 142(b), ch. 4, FSSLA 2019, provides that the 2019 amendments to paragraphs (10) and (16) of this section apply “to sentences imposed on or after July 9, 2019, for conduct occurring on or after July 9, 2019.”

Legislative history reports. —

For House letter of intent relating to the definition of “victim” in this section, as amended by § 7, ch. 59, SLA 1989 (CSHB 36(Fin) am), and related letter from the Department of Law, see 1989 House Journal 710 — 712.

For the governor's transmittal letter concerning ch. 1, TSSLA 2012 (HB 359), see 2012 House Journal 1666 — 1668.

Notes to Decisions

Prior convictions for presumptive sentencing. —

Under the plain terms of AS 12.55.145 and 12.55.185 one conviction must precede the next before presumptive sentencing can apply. State v. Rastopsoff, 659 P.2d 630 (Alaska Ct. App. 1983).

Where defendant’s three separate criminal episodes occurred in close proximity and his convictions were entered after all of the offenses had been committed, he cannot be deemed to be a second felony offender under AS 12.55.125 and AS 12.55.185 . State v. Rastopsoff, 659 P.2d 630 (Alaska Ct. App. 1983).

A person has not been convicted of a felony offense for presumptive sentencing purposes until after he has been sentenced on the first felony offense. Sawyer v. State, 663 P.2d 230 (Alaska Ct. App. 1983).

When defendant was convicted of first-degree sexual abuse of a minor, a 99-year presumptive term of imprisonment was proper. Defendant had two prior felony convictions for attempted second-degree sexual abuse of a minor. The appellate court rejected defendant’s constitutional attack on the 99-year sentence because increased penalties for repeat felony offenders are presumptively constitutional. Sikeo v. State, 258 P.3d 906 (Alaska Ct. App. 2011).

All prior felony convictions must be counted unless exempted. —

Read together, AS 12.55.145 and the definitions in this section establish a framework in which all prior felony convictions are counted toward establishment of a defendant’s status as a second or third felony offender, unless one or more of the convictions is expressly exempted by AS 12.55.145 . Gilley v. State, 955 P.2d 927 (Alaska Ct. App. 1998).

Terms broadly defined. —

Sentencing judge may require the defendant to attend a batterer’s intervention program, but the definitions of “crime involving domestic violence” and “domestic violence” are quite broad under this section and AS 18.66.990 , encompassing many situations that have nothing to do with an assault by one domestic partner against another, making a different intervention program more appropriate. Cooper v. Dist. Court, 133 P.3d 692 (Alaska Ct. App. 2006).

“Unconditional discharge” construed. —

The definition of “unconditional discharge” in AS 15.60.010 is functionally identical to the definition of the same term set out in this section. Singleton v. State, 921 P.2d 636 (Alaska Ct. App. 1996).

The definition of “unconditional discharge” set forth in this section must be interpreted to require the completion of any sentence of imprisonment, discharge from parole or probation, and release from any other restriction directly imposed as part of the judgment of conviction; restoration of collaterally affected rights or privileges, such as the right to vote and the right to carry a gun, is not required. Singleton v. State, 921 P.2d 636 (Alaska Ct. App. 1996).

“Victim.” —

The legislature did not intend the definition of “victim” to be limited to “offenses against the person,” because the term appears in statutes defining property crimes that are outside that class. Municipality of Anchorage v. Sanders, 902 P.2d 347 (Alaska Ct. App. 1995).

Under AS 47.12.120(b)(4) , superior court had authority, and was obligated, to order restitution for the time the victim’s aunt missed work because, as the victim’s effective guardian, she was a “victim” under AS 47.12.990 and this section. W.S. v. State, 174 P.3d 256 (Alaska Ct. App. 2008).

Trial judge erred in requiring defendant to pay, as part of his sentence for manslaughter, airline fare for decedent’s friends and relatives to attend decedent’s funeral when these friends and relatives did not fit within the definition of “victim.” Ned v. State, 119 P.3d 438 (Alaska Ct. App. 2005).

Judge's recusal in a divorce was not required because, inter alia, when a father had been convicted of indecent exposure to the parties' child, it was not error to refer to the child's mother as a “victim.” Jerry B. v. Sally B., 377 P.3d 916 (Alaska), modified, — P.3d — (Alaska 2016).

Judge's recusal in a divorce was not required because, inter alia, when a father had been convicted of indecent exposure to the parties' child, it was not error to refer to the child's mother as a “victim.” Jerry B. v. Sally B., 377 P.3d 916 (Alaska), modified, — P.3d — (Alaska 2016).

Applied in

Fry v. State, 655 P.2d 789 (Alaska Ct. App. 1983); Wesolic v. State, 837 P.2d 130 (Alaska Ct. App. 1992); Smith v. State, 83 P.3d 12 (Alaska Ct. App. 2004); Powell v. State, 88 P.3d 532 (Alaska Ct. App. 2004); Shepersky v. State, 401 P.3d 990 (Alaska Ct. App. 2017).

Quoted in

Wright v. State, 656 P.2d 1226 (Alaska Ct. App. 1983); Capwell v. State, 823 P.2d 1250 (Alaska Ct. App. 1991); Wooley v. State, 221 P.3d 12 (Alaska Ct. App. 2009); Dalton v. State, 477 P.3d 650 (Alaska Ct. App. 2020).

Stated in

Juneby v. State, 641 P.2d 823 (Alaska Ct. App. 1982); Linn v. State, 658 P.2d 150 (Alaska Ct. App. 1983).

Cited in

Lacquement v. State, 644 P.2d 856 (Alaska Ct. App. 1982); Russell v. State, 752 P.2d 1022 (Alaska Ct. App. 1988); Waters v. State, 64 P.3d 169 (Alaska Ct. App. 2003); Simon v. State, 121 P.3d 815 (Alaska Ct. App. 2005); Felber v. State, 243 P.3d 1007 (Alaska Ct. App. 2010); Thomas v. State, 413 P.3d 1207 (Alaska Ct. App. 2018).

Chapter 60. Prevention of Crimes.

Article 1. Manner of Preventing Crimes.

Sec. 12.60.010. Resistance to commission of crime. [Repealed, § 21 ch 166 SLA 1978. For present provisions, see AS 11.81.330 — AS 11.81.350.]

Sec. 12.60.020. Manner of preventing crime.

Crimes may be prevented by the intervention of the peace officers

  1. by requiring security to keep the peace;
  2. by forming a police in cities, towns, villages, and settlements, and by requiring their attendance at exposed places;
  3. by suppressing riots.

History. (§ 9.02 ch 34 SLA 1962)

Sec. 12.60.030. Justification of persons aiding officers in preventing crime. [Repealed, § 21 ch 166 SLA 1978. For present provisions, see AS 11.81.380.]

Article 2. Action on Threatened Crime; Requirements of Undertakings.

Sec. 12.60.040. Action on threatened crime.

A person may bring a complaint in the district court against a person who has threatened to commit a crime against the person or property of another.

History. (§ 9.04 ch 34 SLA 1962; am § 3 ch 24 SLA 1966)

Sec. 12.60.050. Examination of complainant and witnesses.

When the complaint is brought, the judge or magistrate shall examine the complainant and require the complainant to sign the complaint under oath, and take signed statements under oath of any witnesses the complainant produces.

History. (§ 9.05 ch 34 SLA 1962; am § 18 ch 8 SLA 1971)

Sec. 12.60.060. Arrest.

If it appears that there is good reason to fear the commission of the crime threatened by the person complained of, the judge or magistrate shall have the person complained of arrested and immediately brought before the judge or magistrate.

History. (§ 9.06 ch 34 SLA 1962; am § 19 ch 8 SLA 1971)

Sec. 12.60.070. Examination of charge.

When the person complained of appears or is brought before the judge or magistrate, if the charge in the complaint is controverted, the judge or magistrate may subpoena witnesses, hear any statement to the charges made by the person complained of, and hear all other testimony.

History. (§ 9.07 ch 34 SLA 1962; am § 20 ch 8 SLA 1971)

Sec. 12.60.080. Adjournment of examination.

The judge or magistrate may adjourn the examination and commit the person complained of, or take bail or a deposit of money in lieu thereof.

History. (§ 9.08 ch 34 SLA 1962; am § 21 ch 8 SLA 1971)

Sec. 12.60.090. Discharge for lack of grounds.

If it appears that there is no good reason to fear the commission of the crime alleged to have been threatened, the person complained of shall be discharged.

History. (§ 9.09 ch 34 SLA 1962)

Sec. 12.60.100. Requirement of undertaking.

If there is good reason to fear the commission of the crime, the person complained of may be required to enter into an undertaking in a sum not exceeding $2,000 as the judge or magistrate may direct, with one or more sufficient sureties, to keep the peace toward the people of the state and particularly toward the complainant. The undertaking is valid and binding for not more than one year and may, upon the renewal of the action, be extended for an additional period of not more than one year, or a new undertaking required.

History. (§ 9.10 ch 34 SLA 1962; am § 22 ch 8 SLA 1971)

Notes to Decisions

Cited in

Bobby v. State, 950 P.2d 135 (Alaska Ct. App. 1997).

Sec. 12.60.110. Discharge upon giving undertaking.

If the undertaking is given, the party complained of shall be discharged. If the party complained of does not give the undertaking, the judge or magistrate shall commit the party to the custody of a peace officer.

History. (§ 9.11 ch 34 SLA 1962; am § 23 ch 8 SLA 1971)

Sec. 12.60.120. Security where crime committed or threatened before court, judge or magistrate.

A person who, in the presence of a court, judge, or magistrate, assaults or threatens to assault another, or to commit an offense against another’s property, or who contends with another with angry words to the disturbance of the peace may be ordered by the court, judge, or magistrate without warrant or other proof to give security as provided in this chapter and, if the person omits to do so, may be committed.

History. (§ 9.12 ch 34 SLA 1962; am § 24 ch 8 SLA 1971)

Sec. 12.60.130. Discharge upon giving undertaking after commitment.

If the person complained of is committed for not giving the undertaking required, the person may be discharged by any judge or magistrate upon giving the undertaking.

History. (§ 9.13 ch 34 SLA 1962; am § 25 ch 8 SLA 1971)

Sec. 12.60.140. Forfeiture of undertaking.

The undertaking is forfeited upon the person complained of being convicted of a breach of the peace.

History. (§ 9.14 ch 34 SLA 1962)

Sec. 12.60.150. Rights and authorities of sureties.

The sureties in an undertaking to keep the peace are entitled to the rights and authority of bail under AS 12.30 and the Alaska Rules of Criminal Procedure, and may be exonerated from their undertaking in the manner prescribed by law.

History. (§ 9.15 ch 34 SLA 1962; am § 4 ch 21 SLA 1985)

Sec. 12.60.160. Requiring security of convicted person.

The court before whom any person is convicted of a crime which, by the judgment of the court, is punished otherwise than by imprisonment in the penitentiary may require that person to enter into an undertaking as provided in AS 12.60.100 for not more than two years. If the person does not provide the undertaking, the court may commit the person until the undertaking is given or the period expires.

History. (§ 9.16 ch 34 SLA 1962)

Sec. 12.60.170. Security to keep the peace.

An undertaking to keep the peace shall also be considered an undertaking to be of good behavior, and cannot be required except as prescribed in this chapter.

History. (§ 9.17 ch 34 SLA 1962)

Article 3. Unlawful Assembly.

Sec. 12.60.180. Unlawful or riotous assembly.

Where six or more persons, whether armed or not, are riotously assembled, a district judge, magistrate, peace officer, or the chief executive officer of a city, town, village, or settlement shall go among the persons assembled, or as near to them as can be done with safety, and command them in the name of the state to disperse.

History. (§ 9.16 ch 34 SLA 1962; am § 19 ch 166 SLA 1978)

Collateral references. —

53A Am. Jur. 2d, Mobs and Riots, § 1 et seq.

77 C.J.S., Riot

Insurrection, § 1 et seq.

What constitutes offense of unlawful assembly. 71 ALR2d 875.

Sec. 12.60.190. Arrest on failure to disperse and commanding aid.

If the persons assembled do not immediately disperse, the district judges, magistrates, and officers shall arrest them. Any two of the officers mentioned in AS 12.60.180 may command the aid of a sufficient number of persons, armed or otherwise, as may be necessary, and may proceed in the manner as in their judgment may be most expedient to disperse the assembly and arrest the offenders.

History. (§ 9.19 ch 34 SLA 1962; am § 27 ch 8 SLA 1971)

Sec. 12.60.200. Person refusing to aid officers as rioter. [Repealed, § 21 ch 166 SLA 1978.]

Sec. 12.60.210. Officer failing to act is guilty of misdemeanor.

If a district judge, magistrate, or officer having notice of an unlawful or riotous assembly, mentioned in AS 12.60.180 , neglects to proceed to the place of assembly, or as near as can be done with safety, and to exercise the authority with which invested for suppressing the same and arresting the offenders, that person is guilty of a misdemeanor.

History. (§ 9.21 ch 34 SLA 1962; am § 29 ch 8 SLA 1971)

Sec. 12.60.220. Guilt where death ensues.

If, in the effort to suppress or disperse any unlawful or riotous assembly, or to arrest or detain any of the persons engaged in the assembly, any of the rioters or other persons then present as spectators or otherwise are killed or wounded, the district judge, magistrate, and officers and persons acting in their aid are guiltless of the killing or wounding. However, if a district judge, magistrate, or officer or person acting in their aid is killed or wounded, all the persons unlawfully engaged in the assembly are guilty of the killing or wounding.

History. (§ 9.22 ch 34 SLA 1962; am § 30 ch 8 SLA 1971)

Article 4. Rewards.

Sec. 12.60.230. Reward for information leading to conviction of certain persons.

A reward of $200 shall be paid to any person not a peace officer who lodges information that leads to the arrest and conviction of any person or persons maliciously breaking into and entering any cache, cabin, house, or warehouse, whether occupied or unoccupied, located outside the boundaries of an incorporated town in the state.

History. (§ 9.23 ch 34 SLA 1962)

Sec. 12.60.240. Payment of reward.

The Department of Revenue shall pay all claims for rewards upon certificate by a judge or clerk of the superior court, showing that the claimant has lodged information that resulted in an arrest and conviction under the provisions of AS 12.60.230 .

History. (§ 9.24 ch 34 SLA 1962; am § 31 ch 8 SLA 1971)

Chapter 61. Rights of Victims; Protection of Victims and Witnesses.

Article 1. Rights and Duties.

Sec. 12.61.010. Rights of crime victims.

  1. Victims of crimes have the following rights:
    1. the right to be present during any proceeding in
      1. the prosecution and sentencing of a defendant if the defendant has the right to be present, including being present during testimony even if the victim is likely to be called as a witness;
      2. the adjudication of a minor as provided under AS 47.12.110 ;
    2. the right to be notified by the appropriate law enforcement agency or the prosecuting attorney of any request for a continuance that may substantially delay the prosecution and of the date of trial, sentencing, including a proceeding before a three-judge panel under AS 12.55.175 , an appeal, and any hearing in which the defendant’s release from custody is considered;
    3. the right to be notified that a sentencing hearing or a court proceeding to which the victim has been subpoenaed will not occur as scheduled;
    4. the right to receive protection from harm and threats of harm arising out of cooperation with law enforcement and prosecution efforts and to be provided with information as to the protection available;
    5. the right to be notified of the procedure to be followed to apply for and receive any compensation under AS 18.67;
    6. at the request of the prosecution or a law enforcement agency, the right to cooperate with the criminal justice process without loss of pay and other employee benefits except as authorized by AS 12.61.017 and without interference in any form by the employer of the victim of crime;
    7. the right to obtain access to immediate medical assistance and not to be detained for an unreasonable length of time by a law enforcement agency before having medical assistance administered; however, an employee of the law enforcement agency may, if necessary, accompany the person to a medical facility to question the person about the criminal incident if the questioning does not hinder the administration of medical assistance;
    8. the right to make a written or oral statement for use in preparation of the presentence report of a felony defendant;
    9. the right to appear personally at the defendant’s sentencing hearing to present a written statement and to give sworn testimony or an unsworn oral presentation;
    10. the right to be informed by the prosecuting attorney, at any time after the defendant’s conviction, about the complete record of the defendant’s convictions;
    11. the right to notice under AS 12.47.095 concerning the status of the defendant found not guilty by reason of insanity;
    12. the right to notice under AS 33.16.087 of a hearing concerning special medical parole of the defendant;
    13. the right to notice under AS 33.16.120 of a hearing to consider or review discretionary parole of the defendant;
    14. the right to notice under AS 33.30.013 of the release or escape of the defendant; and
    15. the right to be notified orally and in writing of and receive information about the office of victims’ rights from the law enforcement officer initially investigating the crime and from the prosecuting attorney assigned to the offense; at a minimum, the information provided must include the address, telephone number, and Internet address of the office of victims’ rights; this paragraph
      1. applies only to victims of felonies and to victims of class A misdemeanors if the class A misdemeanor is a crime involving domestic violence or a crime against a person under AS 11.41; if the victim is an unemancipated minor, the law enforcement officer and the prosecuting attorney shall also provide the notice required by this paragraph to the parent or guardian of the minor;
      2. is satisfied if, at the time of initial contact with the crime victim, the investigating officer and prosecuting attorney each give each crime victim a brochure or other written material prepared by the office of victims’ rights and provided to law enforcement agencies for that purpose.
  2. Law enforcement agencies, prosecutors, corrections agencies, social services agencies, and the courts shall make every reasonable effort to ensure that victims of crimes have the rights set out in (a) of this section. However, a failure to ensure these rights does not give rise to a separate cause of action against law enforcement agencies, other agencies of the state, or a political subdivision of the state.

History. (§ 4 ch 154 SLA 1984; am § 8 ch 59 SLA 1989; am § 10 ch 57 SLA 1991; am § 17 ch 63 SLA 1997; am § 1 ch 15 SLA 2004; am § 1 ch 72 SLA 2012)

Cross references. —

Definitions of “victim,” “domestic violence assault” — AS 12.61.900

Designation of Representative — AS 12.61.030

Interference by Victim’s Employer — AS 12.61.017

Participation by Victim in Sentencing — AS 12.55.023

Right to Comment on Motions to Modify or Reduce Sentence — AS 12.55.088

Right to Comment on Parole of Prisoner — AS 33.16.120

Right to Comment on Application for Executive Clemency — AS 33.2

Right to Comment of Furlough of Prisoner — AS 33.30.111

Cross references. —

For right of victims to comment on parole of prisoner, see AS 33.16.120 .

Effect of amendments. —

The 2004 amendment, effective July 20, 2004, added paragraph (a)(15) and made related changes.

The 2012 amendment, effective September 17, 2012, in (a)(2), inserted “any request for a continuance that may substantially delay the prosecution and of” following “prosecuting attorney of.”

Notes to Decisions

Introduction of victim’s widow. —

Even if it was error for the trial court to allow the prosecutor to specially introduce the police officer’s widow at the beginning of defendant’s trial, that error did not prejudice the fairness of the proceedings; the widow had a right to attend the trial under Alaska Const. art. I, § 24 and AS 12.61.010(a) , she testified during the state’s case-in-chief, and the trial court expressly cautioned the jurors not to allow their decision to rest on mere sentiment, conjecture, sympathy, passion, prejudice, public opinion, or public feeling. Phillips v. State, 70 P.3d 1128 (Alaska Ct. App. 2003).

Victim without standing regarding selection of rehabilitation program. —

Crime victim claimed that her husband’s sentence for assaulting her was illegal because he was ordered to participate in a batterer’s intervention program that was not approved by the Alaska Department of Corrections. Her application for relief was denied because neither Alaska Const. art. I, § 24 nor this section gives crime victims the right to intervene in the litigation of a criminal case. Cooper v. Dist. Court, 133 P.3d 692 (Alaska Ct. App. 2006).

Victim’s application for resentencing. —

When a crime victim sought to re-open a defendant's sentencing due to being denied the right to be heard at sentencing, the application was moot because the defendant's restitution obligation had been satisfied, so it was unnecessary to consider if the victim was otherwise entitled to have the sentencing court reconsider the defendant's restitution obligation and if double jeopardy barred such a reconsideration. Barber v. Superior Court, — P.3d — (Alaska Ct. App. Aug. 10, 2016) (memorandum decision).

Quoted in

Greywolf v. Carroll, 151 P.3d 1234 (Alaska 2007).

Cited in

State v. Carlin, 249 P.3d 752 (Alaska 2011).

Collateral references. —

Validity, construction, and application of state constitutional or statutory victims’ bill of rights. 91 ALR5th 343.

Sec. 12.61.015. Duties of prosecuting attorney.

  1. If a victim of a felony, a sex offense as defined in AS 12.63.100 , or a crime involving domestic violence requests, the prosecuting attorney shall make a reasonable effort to
    1. confer with the person against whom the offense has been perpetrated about that person’s testimony before the defendant’s trial;
    2. in a manner reasonably calculated to give prompt actual notice, notify the victim
      1. of the defendant’s conviction and the crimes of which the defendant was convicted;
      2. of the victim’s right in a case that is a felony to make a written or oral statement for use in preparation of the defendant’s presentence report, and of the victim’s right to appear personally at the defendant’s sentencing hearing to present a written statement and to give sworn testimony or an unsworn oral presentation;
      3. of the address and telephone number of the office that will prepare the presentence report; and
      4. of the time and place of the sentencing proceeding;
    3. notify the victim in writing of the final disposition of the case within 30 days after final disposition of the case;
    4. confer with the victim or the victim’s legal guardian concerning a proposed plea agreement before entering into the plea agreement to ask the victim or the victim’s legal guardian whether the victim is in agreement with the proposed plea agreement; the prosecuting attorney shall record whether the victim or the victim’s legal guardian is in agreement with the proposed plea agreement;
    5. inform the victim of a pending motion that may substantially delay the prosecution and inform the court of the victim’s position on the motion; in this paragraph, a “substantial delay” is
      1. for a misdemeanor, a delay of one month or longer;
      2. for a felony, a delay of two months or longer; and
      3. for an appeal, a delay of six months or longer.
  2. The notice given under (a)(2) of this section must inform the victim that the statement, sworn testimony, or unsworn oral presentation of the victim may contain any relevant information including
    1. an explanation of the nature and extent of physical, psychological, or emotional harm or trauma suffered by the victim;
    2. an explanation of the extent of economic loss or property damage suffered by the victim;
    3. an opinion of the need for and extent of restitution and whether the victim has applied for or received compensation for loss or damage; and
    4. the recommendation of the victim for an appropriate sentence.
  3. The state and the prosecuting attorney may not be held liable in damages for any failure to comply with the requirements of this section.
  4. The court may reschedule a hearing to consider a plea agreement as needed to allow additional time to comply with the victim notification requirements under (a)(2) and (4) of this section.
  5. Nothing in this section requires a victim or a victim’s legal guardian to provide a response to a prosecuting attorney regarding a plea agreement or requires the prosecuting attorney to be bound by the victim’s or legal guardian’s response regarding the plea agreement.
  6. The prosecuting attorney shall notify a victim of a sex offense as defined in AS 12.63.100 or crime involving domestic violence as defined in AS 18.66.990 if, before trial, the offender of the victim is discharged from a treatment program for noncompliance.

History. (§ 9 ch 59 SLA 1989; am §§ 11, 12 ch 57 SLA 1991; am § 16 ch 64 SLA 1996; am § 2 ch 72 SLA 2012; am § 94 ch 36 SLA 2016; am §§ 9, 10 ch 11 SLA 2019; am § 80 ch 4 FSSLA 2019)

Revisor's notes. —

Subsection (f) was enacted as (d). Relettered in 2019.

Effect of amendments. —

The 2012 amendment, effective September 17, 2012 added (a)(5).

The 2016 amendment, effective July 12, 2016, in (a)(4), deleted “of a crime involving domestic violence”.

The first 2019 amendment, effective October 17, 2019, in (a), in the introductory language, inserted “, a sex offense as defined in AS 12.63.100 ,” following “If a victim of a felony”, rewrote (a)(4), which read, “confer with the victim concerning a proposed plea agreement before entering into an agreement”; added (d) and (e).

The second 2019 amendment, effective July 9, 2019, added (d) [now (f)].

Sec. 12.61.016. Duties of agency investigating a sexual offense.

A law enforcement agency investigating an offense under AS 11.41.410 - 11.41.470 may not disclose information related to the investigation to an employer of the victim unless

  1. the victim expressly permits the disclosure; or
  2. the agency determines the disclosure is necessary to investigate or prevent a crime.

History. (§ 95 ch 36 SLA 2016)

Effective dates. —

Section 95, ch. 36, SLA 2016 makes this section effective October 9, 2016.

Sec. 12.61.017. Interference by victim’s employer.

  1. An employer may not penalize or threaten to penalize a victim of an offense because the victim
    1. is subpoenaed or requested by the prosecuting attorney to attend a court proceeding for the purpose of giving testimony; or
    2. reports the offense to a law enforcement agency or participates in the investigation of the offense by a law enforcement agency.
  2. A person who violates (a) of this section is guilty of a violation.
  3. A victim who suffers a pecuniary loss as a result of an employer’s act prohibited by this section may bring a civil action to recover actual damages and punitive damages of three times the actual damages sustained.
  4. In this section, “penalize” means to take action affecting the employment status, wages, and benefits payable to the victim, including
    1. demotion or suspension;
    2. dismissal from employment; and
    3. loss of pay or benefits, except pay and benefits that are directly attributable to the victim’s absence from employment to
      1. attend the court proceeding;
      2. report the offense to a law enforcement agency;
      3. participate in a law enforcement agency investigation of the offense.

History. (§ 9 ch 59 SLA 1989; am §§ 96, 97 ch 36 SLA 2016)

Cross references. —

Definition of “victim” — AS 12.61.900

Fine Authorized for Violation — AS 12.55.035(b)(5)

Sentences for Violations — AS 12.55.140

Original Code Provision — None.

Revisor’s notes. —

In 1995, in subsection (a), “subsection” was substituted for “section” to correct a manifest error in ch. 59, SLA 1989.

Effect of amendments. —

The 2016 amendment, effective October 9, 2016, in the introductory language of (a), deleted “of an offense” following “penalize a victim”; designated portions of (a) as (a)(1) and (a)(2), in (a)(2), substituted “reports the offense to a law enforcement agency or participates in the investigation of the offense by a law enforcement agency” for “. In this subsection, “penalize” means to take action affecting the employment status, wages, and benefits payable to the victim, including (1) demotion or suspension; (2) dismissal from employment; and (3) loss of pay or benefits, except pay and benefits that are directly attributable to the victim’s absence from employment to attend the court proceeding”; added (d).

Sec. 12.61.020. Money received as the result of the commission of a crime.

  1. Every person contracting with an offender with respect to the reenactment of the offender’s crime by way of a movie, book, magazine article, radio or television presentation, or live entertainment of any kind, or to the expression of the offender’s thoughts, feelings, opinions, or emotions regarding the crime, shall pay to the state any money that would otherwise be owing to the offender.
  2. A claim by a victim arising out of an order of restitution under AS 12.55.045 , or a judgment in a civil action against an offender for damages resulting from a crime is a superior claim for money that would otherwise be paid to the state under (a) of this section.
  3. Notwithstanding other statutory limitations, a civil action by a victim against an offender for damages resulting from the commission of the crime must be commenced within 10 years of the date of the crime or the date of the discovery of the perpetrator of the crime if the perpetrator is unknown on the date of the commission of the crime.
  4. For the purposes of this section, if the offender has not been convicted, proof of the commission of a crime must be established by a preponderance of the evidence.
  5. In this section
    1. “offender” means a person who has committed a crime in this state, whether or not the person has been convicted of the crime, or that person’s representative or assignee.
    2. [Repealed, § 25 ch 59 SLA 1989.]

History. (§ 4 ch 154 SLA 1984; am § 25 ch 59 SLA 1989; am §§ 10, 11 ch 41 SLA 2009)

Cross references. —

Definition of “victim” — AS 12.61.900

Revisor’s notes. —

Section 11, ch. 154, SLA 1984 provides that if this section is held invalid by a final decision of an appellate court, AS 18.67.165 , repealed by § 11, ch. 154, SLA 1984, is revived.

Effect of amendments. —

The 2009 amendment, effective June 21, 2009, made stylistic changes in (a) and (c).

Collateral references. —

Validity, construction, and application of “Son of Sam” laws regulating or prohibiting distribution of crime-related book, film, or comparable revenues to criminals. 60 ALR4th 1210.

Sec. 12.61.030. Designation of representative.

If more than one person who qualifies as a victim under AS 12.55.185 makes a request under AS 12.61.010 — 12.61.030 , the prosecuting attorney shall designate one person for purposes of receiving the notice required and exercising the rights granted under AS 12.61.010 — 12.61.030 .

History. (§ 10 ch 59 SLA 1989)

Cross references. —

Definition of “victim” — AS 12.61.900

Original Code Provision — None.

Revisor’s notes. —

In 1995, “AS 12.61.010 — 12.61.030 ” was substituted for “this chapter” in both places, to reflect the 1991 enactment of AS 12.61.100 — 12.61.150 .

Sec. 12.61.050. Automated victim notification system.

  1. The Department of Corrections shall establish an automated victim notification system that automatically provides crime victims with notice by telephone when there is a change in the status of their offender. The system must also allow crime victims to initiate telephone calls to the system to receive the latest status report for their offender. An automated victim notification system established under this section satisfies the duty of a state agency to notify a crime victim of the change in status of an offender. The failure of a system to provide notice to a crime victim does not give rise to a separate cause of action by the crime victim against the state, an agency of the state, or a municipality, or the officers, employees, or contractors of the state, agency of the state, or municipality.
  2. Each department and each municipality shall cooperate with the Department of Corrections in establishing and maintaining an automated victim notification system required under this section.
  3. Through the automated victim notification system established in (a) of this section, the Department of Corrections shall notify a victim of a sex offense as defined in AS 12.63.100 or a crime involving domestic violence as defined in AS 18.66.990 of the option to request a protective order under AS 18.65.850 or AS 18.66.100 and provide contact information for state victim resources, including the Council on Domestic Violence and Sexual Assault, the Alaska Network on Domestic Violence and Sexual Assault, the office of victims’ rights, and the Violent Crimes Compensation Board. This notification must occur when the offender of the victim is released from incarceration or when the order under AS 12.55.015(l) expires, whichever is later.

History. (§ 1 ch 73 SLA 1997; am § 81 ch 4 FSSLA 2019)

Effect of amendments. —

The 2019 amendment, effective July 9, 2019, added (c).

Article 2. Victim and Witness Information Confidentiality.

Sec. 12.61.100. Declaration of purpose.

The purpose of AS 12.61.100 — 12.61.150 is to protect victims of and witnesses to crime from risk of harassment, intimidation, and unwarranted invasion of privacy by prohibiting the unnecessary disclosure of their addresses and telephone numbers.

History. (§ 13 ch 57 SLA 1991)

Sec. 12.61.110. Confidentiality of victim and witness addresses and telephone numbers.

The residence and business addresses and telephone numbers of a victim of a crime or witness to a crime are confidential. A report, paper, picture, photograph, court file, or other document that relates to a crime and contains the residence or business address or telephone number of a victim or witness, and that is in the custody or possession of a public officer or employee, may not be made available for public inspection unless the residence and business addresses and telephone numbers of all victims and witnesses have been deleted.

History. (§ 13 ch 57 SLA 1991)

Sec. 12.61.120. Disclosure to defense; contacts with victims and witnesses.

  1. The prosecution in a criminal case may not be required to furnish to the defendant personally the address or telephone number of a victim or witness absent a showing of good cause as determined by the court. Except as provided in (b) of this section, good cause exists when the defendant is proceeding without counsel. When a defendant is represented by counsel, the address and telephone number of a victim or witness may be disclosed to the defendant’s counsel, but the court shall order the defendant’s counsel to not disclose the information to the defendant.
  2. If the defendant is proceeding without counsel in a case involving a charged violation of AS 11.41, AS 11.46.300 — 11.46.330 , AS 11.56.740 , 11.56.807 , 11.56.810 , AS 11.61.190 — 11.61.210 , or a crime involving domestic violence and the court finds that the defendant may pose a continuing threat to the victim of or witness to the offense charged, the court shall protect the address and telephone number of the victim or witness by providing the information only to a person specified by the court or by imposing other restrictions that the court considers necessary. When an address or telephone number is released to a person specified by the court under this subsection, that person, who shall be ordered not to disclose the information to the defendant, shall contact the victim or witness on behalf of the defendant, and the defendant shall meet or speak with the victim or witness only in the presence of that person.
  3. If a defendant or a person acting on behalf of a defendant contacts the victim of an offense with which the defendant is or could be charged, the person shall clearly inform the victim
    1. of the person’s identity and specific association with the defendant;
    2. that the victim does not have to talk to the person unless the victim wishes; and
    3. that the victim may have a prosecuting attorney or other person present during an interview.
  4. If a defendant or a person acting on behalf of a defendant wishes to make a recording of statements of the victim of an offense with which the defendant is or could be charged in this or another jurisdiction, or of a witness, the person shall, before recording begins, obtain the consent of the victim or witness to record the statement by clearly informing the victim or witness (1) of the information set out in (c) of this section, (2) that the statement will be recorded if the victim or witness consents, and (3) that the victim or witness may obtain a transcript or other copy of the recorded statement upon request. When recording begins, the person making the recording shall indicate in the recording that the victim or witness has been informed as required by this subsection, and the victim or witness shall state in the recording that consent of the victim or witness to the recording has been given.
  5. If a victim or witness requests a transcript or other copy of a recorded statement taken under (d) of this section, the defense shall prepare the transcript or other copy and provide it to the person whose statement was recorded.
  6. In this section, “recording” means capturing a statement of a person, whether by magnetic tape or other electronic or electromagnetic means.

History. (§ 13 ch 57 SLA 1991; am § 29 ch 79 SLA 1992; am §§ 17 — 19 ch 64 SLA 1996; am § 19 ch 92 SLA 2002)

Revisor’s notes. —

In 1991, “AS 11.56.740 ” was substituted for “AS 11.61.120(a)(6) ” to reconcile § 13, ch. 57, SLA 1991, and §§ 1 and 2, ch. 64, SLA 1991. Section 1, ch. 64, SLA 1991 added AS 11.56.740 and § 2, ch. 64, SLA 1991 deleted AS 11.61.120(a)(6) .

Notes to Decisions

Constitutionality. —

The provisions of paragraphs (c)(2) and (c)(3) of this section requiring a defendant, or a representative of a defendant, to provide unsolicited advice to a victim, are constitutional with respect to victims of sexual offenses and domestic violence crimes, but they are unconstitutional with respect to all other victims. State v. Murtagh, 169 P.3d 602 (Alaska 2007).

The provisions of subsection (d) of this section, precluding defense representation from recording conversations with victims and witnesses without first disclosing their relationship with the defendant and obtaining the consent of the victim or witness to the recording, are unconstitutional. State v. Murtagh, 169 P.3d 602 (Alaska 2007).

Sec. 12.61.125. Victims and witnesses of sexual offenses.

  1. The defendant accused of a sexual offense, the defendant’s counsel, or an investigator or other person acting on behalf of the defendant, may not
    1. notwithstanding AS 12.61.120 , contact the victim of the offense or a witness to the offense if the victim or witness, or the parent or guardian of the victim or witness if the victim or witness is a minor, has informed the defendant or the defendant’s counsel in writing or in person that the victim or witness does not wish to be contacted by the defense; a victim or witness who has not informed the defendant or the defendant’s counsel in writing or in person that the victim does not wish to be contacted by the defense is entitled to rights as provided in AS 12.61.120 ;
    2. obtain a statement from the victim of the offense or a witness to the offense, unless,
      1. if the statement is taken as a recording, the recording is taken in compliance with AS 12.61.120, and written authorization is first obtained from the victim or witness, or from the parent or guardian of the victim or witness if the victim or witness is a minor; the written authorization must state that the victim or witness is aware that there is no legal requirement that the victim or witness talk to the defense; or
      2. if the statement is not taken as a recording, written authorization is first obtained from the victim or witness, or from the parent or guardian of the victim or witness if the victim or witness is a minor; the written authorization must state that the victim or witness is aware that there is no legal requirement that the victim or witness talk to the defense; a victim or witness making a statement under this subparagraph remains entitled to rights as provided in AS 12.61.120.
  2. A defendant who is the parent or guardian of a minor victim or witness may not provide the authorization required under (a) of the section.
  3. If an attorney, or a person acting on behalf of the defendant for an attorney, violates this section, the court shall refer the violation to the Disciplinary Board of the Alaska Bar Association as a grievance.
  4. In this section,
    1. “recording” has the meaning given in AS 12.61.120 ;
    2. “sexual offense” means a violation of AS 11.41.410 — 11.41.470 .

History. (§ 20 ch 64 SLA 1996; am § 1 ch 18 SLA 2004)

Notes to Decisions

Constitutionality. —

The provisions of paragraph (a)(1) of this section, permitting a victim or witness to contact a defendant or a defendant’s counsel with a wish to not be contacted, are constitutional with respect to victims, but they are unconstitutional with respect to witnesses. State v. Murtagh, 169 P.3d 602 (Alaska 2007).

The provisions of paragraph (a)(2)(B), requiring written consent from a victim or witness before the taking of a statement by a defendant or defense counsel, are unconstitutional. State v. Murtagh, 169 P.3d 602 (Alaska 2007).

The provisions of paragraph (a)(2)(A), requiring written consent from a victim or witness before the taking of a recorded statement by a defendant or defense counsel, are unconstitutional. State v. Murtagh, 169 P.3d 602 (Alaska 2007).

Sec. 12.61.127. Inadmissibility of statements taken in violation of AS 12.61.120 or 12.61.125.

A statement obtained from a victim or witness in violation of AS 12.61.120 or 12.61.125 is presumed inadmissible in a prosecution of the defendant. To overcome the presumption of inadmissibility, the defendant must prove by clear and convincing evidence that

  1. the statement is reliable;
  2. similar evidence is unavailable from any other source; and
  3. failure to introduce the statement would substantially undermine the reliability of the fact-finding process and result in manifest injustice.

History. (§ 20 ch 64 SLA 1996)

Sec. 12.61.130. Disclosure during court proceedings.

  1. During a trial or hearing related to a criminal prosecution, the residence and business addresses and telephone numbers of a victim of or witness to the charged offense may not be disclosed in open court, and a victim or witness may not be required to provide the addresses or telephone numbers in response to questioning, unless the court determines that the information is necessary and relevant to the facts of the case. The burden to establish the need and relevance for disclosure is on the party seeking disclosure. Before ordering disclosure, the court shall take appropriate measures to minimize the risk of personal harm to the victim or witness that would result from the disclosure.
  2. The address or telephone number of a victim of or witness to a charged offense may not be placed in the court file or court documents relating to that offense except when
    1. the address is used to identify the place of the crime; or
    2. the address or telephone number is contained in a transcript of a court proceeding and disclosure of the address or telephone number was ordered under (a) of this section.

History. (§ 13 ch 57 SLA 1991)

Sec. 12.61.140. Disclosure of victim’s name.

  1. The portion of the records of a court or law enforcement agency that contains the name of the victim of an offense under AS 11.41.300(a)(1)(C) or 11.41.410 — 11.41.460
    1. shall be withheld from public inspection, except with the consent of the court in which the case is or would be prosecuted; and
    2. is not a public record under AS 40.25.110 — 40.25.125 .
  2. In all written court records open to public inspection, the name of the victim of an offense under AS 11.41.300(a)(1)(C) or 11.41.410 — 11.41.460 may not appear. Instead, the victim’s initials shall be used. However, a sealed record containing the victim’s name shall be kept by the court in order to ensure that a defendant is not charged twice for the same offense.

History. (§ 13 ch 57 SLA 1991)

Revisor’s notes. —

In 2000, “AS 40.25.110 — 40.25.125 ” was substituted for “AS 09.25.110 — 09.25.125” to reflect the 2000 renumbering of AS 09.25.110 — 09.25.125.

Sec. 12.61.150. Public and media access.

AS 12.61.100 — 12.61.150 may not be construed to require the court to exclude the public from any stage of the criminal proceeding or to interfere with the right of news media to report information lawfully obtained.

History. (§ 13 ch 57 SLA 1991)

Article 3. General Provisions.

Sec. 12.61.900. Definitions.

In this chapter,

  1. “crime involving domestic violence” has the meaning given in AS 18.66.990 ;
  2. “person acting on behalf of a defendant” includes the defendant’s attorney, an agent of the defendant or the defendant’s attorney, or a person specified by the court under AS 12.61.120(b) or an agent of that person, but does not include the defendant;
  3. “victim” has the meaning given in AS 12.55.185 ;
  4. “witness” means a person contacted in connection with a criminal case because the person may have knowledge or information about the criminal case.

History. (§ 11 ch 59 SLA 1989; am §§ 21, 72 ch 64 SLA 1996)

Revisor’s notes. —

Paragraph (1) was enacted as (3), paragraph (2) was enacted as (4), and paragraph (4) was enacted as (5). Renumbered in 1996, at which time former paragraph (2) was renumbered as (3).

Chapter 62. Criminal Justice Information and Records Checks.

Opinions of attorney general. —

AS 12.62, and regulations adopted under authority of that chapter, do not apply to the Alaska Public Safety Information Network (APSIN) since APSIN was not “funded in whole or in part by the Law Enforcement Assistance Administration” and is, thus, not a “criminal justice information system” as that term was defined in former AS 12.62.070(3) [see AS 12.62.900 (13)], but restrictions on the system should nonetheless be imposed. December 10, 1986 Op. Att’y Gen.

Article 1. Criminal Justice Information.

Sec. 12.62.005. Intent.

It is the intent of the legislature that the department administer the provisions of this chapter in a manner that protects victims of crime, allows the proper administration of justice, and avoids vigilantism.

History. (§ 1 ch 118 SLA 1994)

Secs. 12.62.010 — 12.62.015. Regulations; collection and security of information. [Repealed, § 4 ch 118 SLA 1994. For current law, see AS 12.62.110 — 12.62.150.]

Sec. 12.62.017. Annual report to commission. [Repealed, § 35 ch 126 SLA 1994.]

Secs. 12.62.020 — 12.62.035. Collection, storage, access, and use. [Repealed, § 4 ch 118 SLA 1994. For current law, see AS 12.62.160.]

Secs. 12.62.040 — 12.62.070. Security, updating; interstate exchange of information; remedies; definitions. [Repealed, § 4 ch 118 SLA 1994. For current law, see AS 12.62.170 — 12.62.190.]

Sec. 12.62.100. Criminal justice information advisory board; functions and duties.

  1. The Criminal Justice Information Advisory Board is established in the department. The board consists of the following members:
    1. a member of the general public appointed by and serving at the pleasure of the governor;
    2. a municipal police chief appointed by and serving at the pleasure of the governor; in making this appointment, the governor shall consult with the Alaska Association of Chiefs of Police;
    3. the attorney general or the attorney general’s designee;
    4. the chief justice of the supreme court or the chief justice’s designee;
    5. the commissioner of administration or the commissioner’s designee;
    6. the commissioner of corrections or the commissioner’s designee;
    7. the commissioner of health and social services or the commissioner’s designee;
    8. the commissioner of public safety or the commissioner’s designee, who will serve as chair of the board; and
    9. the executive director of the Alaska Judicial Council or the executive director’s designee.
  2. Members of the board receive no compensation for services on the board, but are entitled to per diem and travel expenses authorized for boards under AS 39.20.180 .
  3. The board shall meet at least once every six months.
  4. The board shall advise the department and other criminal justice agencies on matters pertaining to the development and operation of the central repository described in AS 12.62.110 (1) and other criminal justice information systems, including providing advice about regulations and procedures, and estimating the resources and costs of those resources, needed to carry out the provisions of this chapter.

History. (§ 2 ch 118 SLA 1994)

Administrative Code. —

For reporting information to the repository, see 13 AAC 68, art. 2.

Sec. 12.62.110. Duties of the commissioner regarding information systems.

The commissioner shall

  1. develop and operate a criminal justice information system to serve as the state’s central repository of criminal history record information, and to collect, store, and release criminal justice information as provided in this chapter;
  2. consult with the board established by AS 12.62.100 regarding matters concerning the operation of the department’s criminal justice information systems;
  3. provide a uniform crime reporting system for the periodic collection, analysis, and reporting of crimes, and compile and publish statistics and other information on the nature and extent of crime in the state;
  4. cooperate with other agencies of the state, the criminal record repositories of other states, the Interstate Identification Index, the National Law Enforcement Telecommunications System, the National Crime Information Center, and other appropriate agencies or systems, in the development and operation of an effective interstate, national, and international system of criminal identification, records, and statistics; and
  5. in accordance with AS 44.62 (Administrative Procedure Act), adopt regulations necessary to implement the provisions of this chapter; in adopting the regulations, the commissioner may consult with affected law enforcement agencies regarding the fiscal implications of the regulations; regulations may not be adopted under this section that affect procedures of the court system.

History. (§ 2 ch 118 SLA 1994)

Administrative Code. —

For scope and purpose of the repository, see 13 AAC 68, art. 1.

For reporting information to the repository, see 13 AAC 68, art. 2.

For completeness, accuracy, and security, see 13 AAC 68, art. 3.

For dissemination of criminal justice information, see 13 AAC 68, art. 4.

For central repository of criminal justice information, see 13 AAC 68, art. 6.

Sec. 12.62.120. Reporting of criminal justice information.

  1. The commissioner, by regulation and after consultation with the board and affected agencies, may designate which criminal justice agencies are responsible for reporting the events described in (b) of this section. An agency designated under this subsection shall report the events described in (b) of this section to the department, at the time, in the manner, and in the form specified by the department.
  2. An agency designated under (a) of this section shall report the following events to the department if they occur in connection with an arrestable offense:
    1. the issuance, receipt, withdrawal, quashing, or execution of a judicial arrest warrant, a governor’s warrant of arrest for extradition, or a parole arrest warrant;
    2. an arrest, with or without a warrant, or an escape after arrest;
    3. the release of a person after arrest without charges being filed;
    4. the admittance to, release or escape from, or unlawful evasion of, official detention in a correctional facility, either pretrial or post-trial;
    5. a decision by a prosecutor or a grand jury not to commence criminal proceedings, to defer or indefinitely postpone prosecution, or to decline to prosecute charges;
    6. the filing of a charging document, including an indictment, criminal complaint, criminal information, or a petition or other document showing a violation of bail, probation, or parole, or the amendment of a charging document;
    7. an acquittal, dismissal, conviction, or other disposition of charges set out in a charging document described in (6) of this subsection;
    8. the imposition of a sentence or the granting of a suspended imposition of sentence under AS 12.55.085 ;
    9. the commencement or expiration of parole or probation supervision and the conditions of that parole or probation supervision;
    10. the commitment to or release from a facility, designated by the Department of Health and Social Services, of a person who was previously accused of a crime but who has been found to be incompetent to stand trial or found not criminally responsible;
    11. the filing of an action in an appellate court or a federal court relating to a conviction or sentence;
    12. a judgment of a court that reverses, remands, vacates, or reinstates a criminal charge, conviction, or sentence;
    13. a pardon, reprieve, executive clemency, commutation of sentence, or other change in the length or terms of a sentence by executive or judicial action;
    14. the release of a person on bail and the conditions of that release; and
    15. any other event required to be reported under regulations adopted under this chapter.

History. (§ 2 ch 118 SLA 1994; am § 1 ch 79 SLA 2006)

Administrative Code. —

For reporting information to the repository, see 13 AAC 68, art. 2.

Sec. 12.62.130. Reporting of uniform crime information.

A criminal justice agency shall submit to the department, at the time, in the manner, and in the form specified by the department, data regarding crimes committed within that agency’s jurisdiction. At a minimum, the department shall require a criminal justice agency to report each felony sex offense committed in the agency’s jurisdiction. The department may withhold grant funding to a criminal justice agency that fails to report data as required by this section. The department shall compile, and provide to the governor and the attorney general, an annual report concerning the number and nature of criminal offenses committed, the disposition of the offenses, and any other data the commissioner finds appropriate relating to the method, frequency, cause, and prevention of crime. In this section, “sex offense” has the meaning given in AS 12.63.100 .

History. (§ 2 ch 118 SLA 1994; am § 17 ch 18 SLA 2010)

Effect of amendments. —

The 2010 amendment, effective July 1, 2010, added the second, third, and last sentences.

Sec. 12.62.140. Reporting of information regarding wanted persons and stolen property.

  1. A criminal justice agency shall report to the department, at the time, in the manner, and in the form specified by the department, data regarding
    1. a person the agency is trying to locate, whether that person is wanted in connection with the commission of a crime, and the discovery, if any, of that person;
    2. the theft, and recovery if any, of an identifiable motor vehicle; and
    3. the theft, and recovery if any, of identifiable property.
  2. A criminal justice agency, annually and at other times if requested by the department, shall confirm whether information already reported under (a) of this section continues to be valid, and shall cooperate with the department in periodic audits to validate the information reported.

History. (§ 2 ch 118 SLA 1994)

Sec. 12.62.150. Completeness, accuracy, and security of criminal justice information.

  1. A criminal justice agency shall
    1. adopt reasonable procedures to ensure that criminal justice information that the agency maintains is accurate and complete;
    2. notify a criminal justice agency known to have received information of a material nature that is inaccurate or incomplete;
    3. provide adequate procedures and facilities to protect criminal justice information from unauthorized access and from accidental or deliberate damage by theft, sabotage, fire, flood, wind, or power failure;
    4. provide procedures for screening, supervising, and disciplining agency personnel in order to minimize the risk of security violations;
    5. provide training for employees working with or having access to criminal justice information;
    6. if maintaining criminal justice information within an automated information system operated by a noncriminal justice agency, develop or approve system operating procedures to comply with this chapter or regulations adopted under this chapter, and monitor the implementation of those procedures to ensure that they are effective; and
    7. maintain, for at least three years, and make available for audit purposes,
      1. records showing the accuracy and completeness of information maintained by the agency in a criminal justice information system; and
      2. records required to be maintained under AS 12.62.160(c)(4) .
  2. The department shall adopt reasonable procedures designed to ensure that information about arrests and criminal charges that is stored in a criminal justice information system can be linked with information about the disposition of those arrests and charges.
  3. Every two years the department shall undertake an audit, and every four years shall obtain an independent audit, of the department’s criminal justice information system that serves as the central repository and of a sample of other state and local criminal justice information systems, to verify adherence to the requirements of this chapter and other applicable laws. The department shall provide to the board the final report of each audit.

History. (§ 2 ch 118 SLA 1994)

Administrative Code. —

For completeness, accuracy, and security, see 13 AAC 68, art. 3.

For dissemination of criminal justice information, see 13 AAC 68, art. 4.

Sec. 12.62.160. Release and use of criminal justice information; fees.

  1. Criminal justice information and the identity of recipients of criminal justice information are confidential and exempt from disclosure under AS 40.25. The existence or nonexistence of criminal justice information may not be released to or confirmed to any person except as provided in this section and AS 12.62.180(d) .
  2. Subject to the requirements of this section, and except as otherwise limited or prohibited by other provision of law or court rule, criminal justice information
    1. may be provided to a person when, and only to the extent, necessary to avoid imminent danger to life or extensive damage to property;
    2. may be provided to a person to the extent required by applicable court rules or under an order of a court of this state, another state, or the United States;
    3. may be provided to a person if the information is commonly or traditionally provided by criminal justice agencies in order to identify, locate, or apprehend fugitives or wanted persons or to recover stolen property, or for public reporting of recent arrests, charges, and other criminal justice activity;
    4. may be provided to a criminal justice agency for a criminal justice activity;
    5. may be provided to a government agency when necessary for enforcement of or for a purpose specifically authorized by state or federal law;
    6. may be provided to a person specifically authorized by a state or federal law to receive that information;
    7. in aggregate form may be released to a qualified person, as determined by the agency, for criminal justice research, subject to written conditions that assure the security of the information and the privacy of individuals to whom the information relates;
    8. may be provided to a person for any purpose, except that information may not be released if the information is nonconviction information or correctional treatment information;
    9. including information relating to a serious offense, may be provided to an interested person if the information is requested for the purpose of determining whether to grant a person supervisory or disciplinary power over a minor or dependent adult; and
    10. may be provided to the person who is the subject of the information.
  3. Unless otherwise provided for in regulations adopted by the commissioner, if access to criminal justice information is permitted under (b) of this section
    1. the information may be released only by the agency maintaining that information;
    2. the information may not be released under this section without first determining that the information is the most current information available within that criminal justice information system, unless the system is incapable of providing the most current information available within the necessary time period;
    3. the information may not be released under this section until the person requesting the information establishes the identity of the subject of the information by fingerprint comparison or another reliable means of identification approved by the department;
    4. the information may not be released under this section unless the criminal justice agency releasing the information records, and maintains for at least three years, the name of the person or agency that is to receive the information, the date the information was released, the nature of the information, and the statutory authority that permits the release; and
    5. information released under this section may be used only for the purpose or activity for which the information was released.
  4. Notwithstanding AS 40.25, a criminal justice agency may charge fees, established by regulation or municipal ordinance, for processing requests for records under this chapter, unless the request is from a criminal justice agency or is required for purposes of discovery in a criminal case. In addition to fees charged under AS 44.41.025 for processing fingerprints through the Alaska automated fingerprint system, the department may charge fees for other services in connection with the processing of information requests, including fees for contacting other jurisdictions to determine the disposition of an out-of-state arrest or to clarify the nature of an out-of-state conviction. The department may also collect and account for fees charged by the Federal Bureau of Investigation for processing fingerprints forwarded to the bureau by the department. The annual estimated balance in the account maintained by the commissioner of administration under AS 37.05.142 may be used by the legislature to make appropriations to the department to carry out the purposes of this chapter.
  5. When an interested person requests information under (b)(9) of this section, the department may also obtain a national criminal history record check under AS 12.62.400 if the person submits the fingerprints and fees required for that check under (d) of this section.

History. (§ 2 ch 118 SLA 1994; am § 1 ch 53 SLA 2001; am § 6 ch 79 SLA 2004; am § 12 ch 41 SLA 2009)

Revisor’s notes. —

In 2000, “AS 40.25” was substituted for “AS 09.25” to reflect the 2000 renumbering of AS 09.25.100 — 09.25.220 .

Administrative Code. —

For sex offender and child kidnapper registration, see 13 AAC 9.

For scope and purpose of the repository, see 13 AAC 68, art. 1.

For completeness, accuracy, and security, see 13 AAC 68, art. 3.

For dissemination of criminal justice information, see 13 AAC 68, art. 4.

For central repository of criminal justice information, see 13 AAC 68, art. 6.

Notes to Decisions

Disclosure of criminal records. —

Even if the superior court had the power to seal a court file for a convicted criminal if presented with extraordinary circumstances to override public access, the superior court could reasonably conclude that defendant had not shown such extraordinary circumstances and that the state laws and the court rules expressed a clear preference for public records to remain accessible; thus, the superior court did not abuse its discretion when it denied defendant’s motion to seal his court records. Johnson v. State, 50 P.3d 404 (Alaska Ct. App. 2002).

Sec. 12.62.170. Correction of criminal justice information.

  1. A criminal justice agency shall correct, modify, or add an explanatory notation to criminal history records that the agency is responsible for maintaining if the revision is necessary to achieve accuracy or completeness.
  2. A person may submit a written request to the head of the agency responsible for maintaining criminal justice information asking the agency to correct, modify, or add any information or explanatory notation to criminal justice information about the person that the person believes is inaccurate or incomplete. The decision of the head of the agency is the final administrative decision on the request.
  3. The person requesting revision of criminal justice information may appeal an adverse decision of the agency to the court under applicable rules of procedure for appealing the decision of an administrative agency. The appellant bears the burden on appeal of showing that the agency decision was in error. An appeal filed under this subsection may not collaterally attack a court judgment or a decision by prison, probation, or parole authorities, or any other action that is or could have been subject to appeal, post-conviction relief, or other administrative remedy.

History. (§ 2 ch 118 SLA 1994)

Administrative Code. —

For completeness, accuracy, and security, see 13 AAC 68, art. 3.

Sec. 12.62.180. Sealing of criminal justice information.

  1. Under this section, a criminal justice agency may seal only the information that the agency is responsible for maintaining.
  2. A person may submit a written request to the head of the agency responsible for maintaining past conviction or current offender information, asking the agency to seal such information about the person that, beyond a reasonable doubt, resulted from mistaken identity or false accusation. The decision of the head of the agency is the final administrative decision on the request.
  3. The person requesting that the information be sealed may appeal an adverse decision of the agency to the court under applicable rules of procedure for appealing the decision of an administrative agency. The appellant bears the burden on appeal of showing that the agency decision was clearly mistaken. An appeal filed under this subsection may not collaterally attack a court judgment or a decision by prison, probation, or parole authorities, or any other action that is or could have been subject to appeal, post-conviction relief, or other administrative remedy.
  4. A person about whom information is sealed under this section may deny the existence of the information and of an arrest, charge, conviction, or sentence shown in the information. Information that is sealed under this section may be provided to another person or agency only
    1. for record management purposes, including auditing;
    2. for criminal justice employment purposes;
    3. for review by the subject of the record;
    4. for research and statistical purposes;
    5. when necessary to prevent imminent harm to a person; or
    6. for a use authorized by statute or court order.

History. (§ 2 ch 118 SLA 1994)

Administrative Code. —

For completeness, accuracy, and security, see 13 AAC 68, art. 3.

For dissemination of criminal justice information, see 13 AAC 68, art. 4.

Notes to Decisions

Stated in

State v. Platt, 169 P.3d 595 (Alaska 2007).

Sec. 12.62.190. Purging of criminal justice information.

  1. A criminal justice agency may purge only the criminal justice information that the agency is responsible for maintaining. An agency may determine when and what information will be purged, under (b) of this section.
  2. Criminal justice information may be purged if the agency determines that the information is devoid of usefulness to a criminal justice agency due to the
    1. death of the subject of the information;
    2. age of the information;
    3. nature of the offense or of the information;
    4. volume of the agency’s records or other record management considerations.

History. (§ 2 ch 118 SLA 1994)

Administrative Code. —

For completeness, accuracy, and security, see 13 AAC 68, art. 3.

Sec. 12.62.200. Civil action and defense.

  1. Failure to comply with a requirement of this chapter or a regulation adopted under this chapter is not a basis for civil liability, but may be the basis for employee discipline or administrative action to restrict a person’s or agency’s access to information. However, a person whose criminal justice information has been released or used in knowing violation of this chapter or a regulation adopted under this chapter may bring an action for damages in the superior court.
  2. It is a defense to a civil or criminal action based on a violation of this chapter, or regulations adopted under this chapter, if a person relied in good faith upon the provisions of this chapter or of other laws or regulations governing maintenance, release, or use of criminal justice information, or upon policies or procedures established by a criminal justice agency.

History. (§ 2 ch 118 SLA 1994)

Administrative Code. —

For completeness, accuracy, and security, see 13 AAC 68, art. 3.

For dissemination of criminal justice information, see 13 AAC 68, art. 4.

Notes to Decisions

Cited in

Thoma v. Hickel, 947 P.2d 816 (Alaska 1997).

Article 2. National Criminal History Record Check.

Sec. 12.62.400. National criminal history record checks for employment, licensing, and other noncriminal justice purposes.

  1. To obtain a national criminal history record check for determining a person’s qualifications for a license, permit, registration, employment, or position, a person shall submit the person’s fingerprints to the department with the fee established by  AS 12.62.160 . The department may submit the fingerprints to the Federal Bureau of Investigation to obtain a national criminal history record check of the person for the purpose of evaluating a person’s qualifications for
    1. a license or conditional contractor’s permit to manufacture, sell, offer for sale, possess for sale or barter, traffic in, or barter an alcoholic beverage under  AS 04.11;
    2. licensure as a mortgage lender, a mortgage broker, or a mortgage loan originator under  AS 06.60;
    3. admission to the Alaska Bar Association under  AS 08.08;
    4. licensure as a collection agency operator under  AS 08.24;
    5. a certificate of fitness to handle explosives under  AS 08.52;
    6. licensure as a massage therapist under  AS 08.61;
    7. licensure to practice nursing or certification as a nurse aide under  AS 08.68;
    8. certification as a real estate appraiser under as 08.87;
    9. a position involving supervisory or disciplinary power over a minor or dependent adult for which criminal justice information may be released under  AS 12.62.160 (b)(9);
    10. a teacher certificate under  AS 14.20;
    11. a registration or license to operate a marijuana establishment under  AS 17.38;
    12. admittance to a police training program  under AS 18.65.230 or for certification  as a police officer under AS 18.65.240 if that person’s  prospective employer does not have access to a criminal justice information  system;
    13. licensure as a security guard under  AS 18.65.400 — 18.65.490 ;
    14. a concealed handgun permit under  AS 18.65.700 — 18.65.790 ;
    15. licensure as an insurance producer, managing general agent, reinsurance intermediary broker, reinsurance intermediary manager, surplus lines broker, or independent adjuster under  AS 21.27;
    16. serving and executing process issued by a court by a person designated under  AS 22.20.130 ;
    17. a school bus driver license under  AS 28.15.046 ;
    18. licensure as an operator or an instructor for a commercial driver training school under  AS 28.17;
    19. registration as a broker-dealer, agent, investment adviser representative, or  investment adviser under  AS 45.56.300 — 45.56.350 ;
    20. licensure, license renewal, certification, certification renewal, or payment from the Department of Health and Social Services of an individual and an entity subject to the requirements for a criminal history check under  AS 47.05.310 , including
      1. a public home care provider described in  AS 47.05.017 ;
      2. a provider of home and community-based waiver services financed under  AS 47.07.030(c) ;
      3. a case manager to coordinate community mental health services under  AS 47.30.530 ;
      4. an entity listed in  AS 47.32.010(b) , including an owner, officer, director, member, partner, employee, volunteer, or contractor of an entity; or
      5. an individual or entity not described in (A) — (D) of this paragraph that is required by statute or regulation to be licensed or certified by the Department of Health and Social Services or that is eligible to receive payments, in whole or in part, from the Department of Health and Social Services to provide for the health, safety, and welfare of persons who are served by the programs administered by the Department of Health and Social Services.
  2. Notwithstanding (a) of this section, an applicant for a license under  AS 06.60 may submit the applicant’s fingerprints to the Nationwide Mortgage Licensing System and Registry. In this subsection, “Nationwide Mortgage Licensing System and Registry” has the meaning given in  12 U.S.C. 5102.
  3. To obtain a national criminal history record check for determining a current or prospective employee’s qualifications under  AS 39.90.210 or a contractor’s qualifications under  AS 36.30.960 , the agency or the procurement officer shall submit the current or prospective employee’s or contractor’s fingerprints to the department with the fee established by  AS 12.62.160 . The department shall submit the fingerprints to the Federal Bureau of Investigation to obtain a national criminal history record check of the current or prospective employee or contractor for the purpose of evaluating a person’s qualifications under  AS 36.30.960 and  AS 39.90.210 . In this subsection, unless the context otherwise requires,
    1. “agency” has the meaning given in  AS 39.90.290 ;
    2. “contractor” has the meaning given in  AS 36.30.960;
    3. “employee” has the meaning given in  AS 39.90.290 .

History. (§ 7 ch 79 SLA 2004; am § 5 ch 105 SLA 2006; am § 5 ch 50 SLA 2007; am §§ 84, 85 ch 61 SLA 2010; am § 8 ch 42 SLA 2014; am § 5 ch 114 SLA 2014; am § 14 ch 32 SLA 2016; am § 1 ch 25 SLA 2018; am § 1 ch 35 SLA 2018; am § 4 ch 65 SLA 2018; am § 1 ch 69 SLA 2018)

Revisor's notes. —

The paragraphs of subsection (a) were renumbered in 2006, 2007, 2014, 2016, and 2018 to maintain the numerical order of the sections cited.

In 2018, in (a) of this section, “AS 45.56.300 — 45.56.350 ” was substituted for “AS 45.56.405 — 45.56.440 ” to reflect the 2018 renumbering of those sections.

Effect of amendments. —

The 2010 amendment, effective July 1, 2010, in (a)(2), substituted “a mortgage loan originator” for “an originator”; added (b).

The first 2014 amendment, effective June 19, 2014, added (a)(16) [now (a)(8)].

The second 2014 amendment, effective July 1, 2015, added (a)(16) [now (a)(6)].

The 2016 amendment, effective October 4, 2016, added (a)(18) [now (a)(11)], and made a related change.

The first 2018 amendment, effective July 1, 2018, added (c).

The second 2018 amendment, effective September 19, 2018, added (a)(19) [now (a)(12)], and made a related change.

The third 2018 amendment, effective January 1, 2019, in (a)(18) [now (a)(19)], substituted “investment adviser under AS 45.56.405 — 45.56.440 [now AS 45.56.300 — 45.56.350 ]” for “state investment adviser under AS 45.55.030 – 45.55.060 ”.

The fourth 2018 amendment, effective July 25, 2018, added (a)(19) [now (a)(20)].

Legislative history reports. —

For governor's transmittal letter for ch. 69, SLA 2018 (SB 81), which added paragraph (a)(20), see 2017 Senate Journal 452 — 454.

Article 3. General Provisions.

Sec. 12.62.900. Definitions.

In this chapter,

  1. “agency” means a criminal justice agency;
  2. “automatic data processing” has the meaning given in AS 44.21.170 ;
  3. “board” means the Criminal Justice Information Advisory Board;
  4. “commissioner” means the commissioner of public safety;
  5. “complete” means that a criminal history record contains information about the disposition of criminal charges occurring in the state and entered within 90 days after the disposition occurred;
  6. “correctional treatment information” means information about an identifiable person, excluding past conviction information or current offender information, collected to monitor that person in a correctional facility or while under correctional supervision, including the person’s current or past institutional behavior, medical or psychological condition, or rehabilitative progress;
  7. “crime involving domestic violence” has the meaning given in AS 18.66.990 ;
  8. “criminal history record information” means information that contains
    1. past conviction information;
    2. current offender information;
    3. criminal identification information;
  9. “criminal identification information” means fingerprints, photographs, and other information or descriptions that identify a person as having been the subject of a criminal arrest or prosecution;
  10. “criminal justice activity” means
    1. investigation, identification, apprehension, detention, pretrial or post-trial release, prosecution, adjudication, or correctional supervision or rehabilitation of a person accused or convicted of a crime;
    2. collection, storage, transmission, and release of criminal justice information; or
    3. the employment of personnel engaged in activities described in (A) or (B) of this paragraph;
  11. “criminal justice agency” means
    1. a court with criminal jurisdiction or an employee of that court;
    2. a government entity or subdivision of a government entity that allocates a substantial portion of its budget to a criminal justice activity under a law, regulation, or ordinance; or
    3. an individual or organization obligated to undertake a criminal justice activity under a written agreement with an agency described in (A) or (B) of this paragraph; as used in this subparagraph, “organization” includes an interagency or interjurisdictional task force formed to further common criminal justice goals;
  12. “criminal justice information” means any of the following, other than a court record, a record of traffic offenses maintained for the purpose of regulating drivers’ licenses, or a record of a juvenile subject to the jurisdiction of a court under AS 47.12:
    1. criminal history record information;
    2. nonconviction information;
    3. correctional treatment information;
    4. information relating to a person to be located, whether or not that person is wanted in connection with the commission of a crime;
  13. “criminal justice information system” means an automatic data processing system used to collect, store, display, or transmit criminal justice information, and that permits information within the system, without action by the agency maintaining the information, to be directly accessed by another principal department of the state, another branch of state government, an agency of another state or the federal government, or by a political subdivision of a state or the federal government;
  14. “current offender information” means information showing that an identifiable person
    1. is currently under arrest for or is charged with a crime and
      1. prosecution is under review or has been deferred by written or oral agreement;
      2. a warrant exists for the person’s arrest; or
      3. less than a year has elapsed since the date of the arrest or filing of the charges, whichever is latest;
    2. is currently released on bail or on other conditions imposed by a court in a criminal case, either pretrial or post-trial, including the conditions of the release;
    3. is currently serving a criminal sentence or is under the custody of the commissioner of corrections for supervision purposes; “current offender information” under this subparagraph includes
      1. the terms and conditions of any sentence, probation, suspended imposition of sentence, discretionary or mandatory parole, furlough, executive clemency, or other release; and
      2. the location of any place of incarceration, halfway house, restitution center, or other correctional placement to which the person is assigned; or
    4. has had a criminal conviction or sentence reversed, vacated, set aside, or has been the subject of executive clemency;
  15. “department” means the Department of Public Safety;
  16. “dependent adult” means an adult with a physical or mental disability who requires assistance or supervision with the activities of daily living;
  17. “information” means, unless the context clearly indicates otherwise, data compiled within a criminal justice information system;
  18. “interested person” means a person as defined in AS 01.10.060 that employs, appoints, or permits a person to serve with or without compensation in a position in which the employed, appointed, or permitted person has or would have supervisory or disciplinary power over a minor or dependent adult;
  19. “nonconviction information” means information that an identifiable person was arrested or that criminal charges were filed or considered against the person and
    1. a prosecutor or grand jury has elected not to begin criminal proceedings against the person and at least a year has elapsed since that decision;
    2. criminal charges against the person have been dismissed or the person has been acquitted and at least a year has elapsed since that action; or
    3. there is no indication of the disposition of the criminal charges or the arrest and at least a year has elapsed since the arrest, filing of the charges, or referral of the matter for review by a prosecutor, whichever is latest;
  20. “past conviction information” means information showing that an identifiable person who has been unconditionally discharged has previously been convicted of a crime; “past conviction information” includes
    1. the terms of any sentence, probation, suspended imposition of sentence, or discretionary or mandatory parole; and
    2. information that a criminal conviction or sentence has been reversed, vacated, set aside, or been the subject of executive clemency;
  21. “purge” means to delete or destroy information in a criminal justice information system so that there can be no access to the information;
  22. “seal” means to retain information in a criminal justice information system subject to special restrictions on access or dissemination;
  23. “serious offense” means a conviction for a violation or for an attempt, solicitation, or conspiracy to commit a violation of any of the following laws, or of the laws of another jurisdiction with substantially similar elements:
    1. a felony offense;
    2. a crime involving domestic violence;
    3. AS 11.41.410 — 11.41.470 ;
    4. AS 11.51.130 or 11.51.200 — 11.56.210 ;
    5. AS 11.61.110(a)(7) or 11.61.125 ;
    6. AS 11.66.100 — 11.66.130 ;
    7. former AS 11.15.120, former 11.15.134, or assault with the intent to commit rape under former AS 11.15.160; or
    8. former AS 11.40.080, 11.40.110, 11.40.130, or 11.40.200 — 11.40.420, if committed before January 1, 1980.

History. (§ 2 ch 118 SLA 1994; am § 2 ch 59 SLA 1996; am §§ 22, 23 ch 64 SLA 1996; am § 10 ch 32 SLA 1997; am § 6 ch 106 SLA 1998; am §§ 2, 4 ch 53 SLA 2001)

Revisor’s notes. —

Paragraph (7) was enacted as (24). Renumbered in 1996, at which time former paragraphs (7) — (23) were renumbered as (8) — (24) [now repealed].

Chapter 63. Registration of Sex Offenders.

Cross references. —

For inapplicability to certain offenders unconditionally discharged before July 1, 1984, from conviction for a single sex offense see § 12(a), ch. 41, SLA 1994 in the Temporary and Special Acts.

Administrative Code. —

For sex offender and child kidnapper registration, see 13 AAC 09.

Editor’s notes. —

Section 13, ch. 41, SLA 1994 provides that “[t]he Department of Public Safety shall uniformly enforce the provisions of this Act throughout the state regardless of the geographical location of the residence of the offender.”

Notes to Decisions

Constitutionality. —

The Registration Act, ch. 41, SLA 1994, created a civil, nonpunitive scheme to track sex offenders and could be constitutionally applied to offenders who committed their crimes before or after the Act’s enactment. Smith v. Doe, 538 U.S. 84, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (U.S. 2003).

For discussion of whether the sanction of the Registration Act, ch. 41, SLA 1994, entails an affirmative disability or restraint, whether the sanction has historically been regarded as punitive, whether the sanction depends upon a finding of scienter, whether the sanction will operate to promote traditional punishment objectives, whether the sanction applies to behavior which is already a crime, whether there is an alternative non-punitive purpose for the sanction, and whether the sanction is excessive in relation to the alternative purpose, see Rowe v. Burton, 884 F. Supp. 1372 (D. Alaska 1994), rev'd, 248 F.3d 832 (9th Cir. Alaska 2001), reversed on other grounds, sub nom. Doe v. Otte, 248 F.3d 832 (9th Cir. Alaska), amended, (9th Cir. 2001), amended, 259 F.3d 979 (9th Cir. 2001).

Sec. 12.63.010. Registration of sex offenders and related requirements.

  1. A sex offender or child kidnapper who is physically present in the state shall register as provided in this section. The sex offender or child kidnapper shall register
    1. within the 30-day period before release from an in-state correctional facility;
    2. by the next working day following conviction for a sex offense or child kidnapping if the sex offender is not incarcerated at the time of conviction; or
    3. by the next working day of becoming physically present in the state.
  2. A sex offender or child kidnapper required to register under (a) of this section shall register with the Department of Corrections if the sex offender or child kidnapper is incarcerated or in person at the Alaska state trooper post or municipal police department located nearest to where the sex offender or child kidnapper resides at the time of registration. To fulfill the registration requirement, the sex offender or child kidnapper shall
    1. complete a registration form that includes, at a minimum,
      1. the sex offender’s or child kidnapper’s name, address, place of employment, and date of birth;
      2. each conviction for a sex offense or child kidnapping for which the duty to register has not terminated under AS 12.63.020 , the date of the sex offense or child kidnapping convictions, the place and court of the sex offense or child kidnapping convictions, and whether the sex offender or child kidnapper has been unconditionally discharged from the conviction for a sex offense or child kidnapping and the date of the unconditional discharge; if the sex offender or child kidnapper asserts that the offender or kidnapper has been unconditionally discharged, the offender or kidnapper shall supply proof of that discharge acceptable to the department;
      3. all aliases used;
      4. the sex offender’s or child kidnapper’s driver’s license number;
      5. the description, license numbers, and vehicle identification numbers of motor vehicles the sex offender or child kidnapper has access to, regardless of whether that access is regular or not;
      6. any identifying features of the sex offender or child kidnapper;
      7. anticipated changes of address;
      8. a statement concerning whether the offender or kidnapper has had treatment for a mental abnormality or personality disorder since the date of conviction for an offense requiring registration under this chapter; and
      9. each electronic mail address, instant messaging address, and other Internet communication identifier used by the sex offender or child kidnapper;
    2. allow the Alaska state troopers, Department of Corrections, or municipal police to take a complete set of the sex offender’s or child kidnapper’s fingerprints and to take the sex offender’s or child kidnapper’s photograph.
  3. If a sex offender or child kidnapper changes residence after having registered under (a) of this section, the sex offender or child kidnapper shall provide written notice of the change by the next working day following the change to the Alaska state trooper post or municipal police department located nearest to the new residence or, if the residence change is out of state, to the central registry. If a sex offender or child kidnapper establishes or changes an electronic mail address, instant messaging address, or other Internet communication identifier, the sex offender or child kidnapper shall, by the next working day, notify the department in writing of the changed or new address or identifier.
  4. A sex offender or child kidnapper required to register
    1. for 15 years under (a) of this section and AS 12.63.020 shall, annually, during the term of a duty to register under AS 12.63.020 , on a date set by the department at the time of the sex offender’s or child kidnapper’s initial registration, provide written verification to the department, in the manner required by the department, of the sex offender’s or child kidnapper’s address and notice of any changes to the information previously provided under (b)(1) of this section;
    2. for life under (a) of this section and AS 12.63.020 shall, not less than quarterly, on a date set by the department, provide written verification to the department, in the manner required by the department, of the sex offender’s or child kidnapper’s address and any changes to the information previously provided under (b)(1) of this section.
  5. The registration form required to be submitted under (b) of this section and the annual or quarterly verifications must be sworn to by the offender or kidnapper and contain an admonition that a false statement shall subject the offender or kidnapper to prosecution for perjury.
  6. In this section, “correctional facility” has the meaning given in AS 33.30.901 .

History. (§ 4 ch 41 SLA 1994; am §§ 7 — 11 ch 106 SLA 1998; am §§ 3, 4 ch 42 SLA 2008; am § 82 ch 4 FSSLA 2019)

Revisor’s notes. —

Subsection (e) was enacted as (f). Relettered in 1998, at which time former subsection (e) was relettered as (f).

Cross references. —

For provisions criminalizing failure to register, see AS 11.56.835 and 11.56.840 .

Administrative Code. —

For sex offender and child kidnapper registration, see 13 AAC 9.

Effect of amendments. —

The 2019 amendment, effective July 9, 2019, substituted “AS 12.63.020 ” for “AS 12.63.020 (a)(2)” in (d)(1) and for “AS 12.63.020(a)(1) ” in (d)(2).

Editor’s notes. —

Section 142(c), ch. 4, FSSLA 2019, provides that the 2019 amendments to (d) of this section apply “to the duty to register as a sex offender for offenses committed on or after July 9, 2019.”

Notes to Decisions

Constitutionality. —

Finding that defendant was required to register and report under the Sex Offender Registration Act, AS 12.63.100 (6)(C)(i), was proper where the Act was constitutional and was a regulatory measure; thus, the registration and reporting requirements were not part of defendant’s sentence. Herreid v. State, 69 P.3d 507 (Alaska Ct. App. 2003).

Alaska’s sex offender registration and notification statute, 1994 SLA Ch. 41, did not violate plaintiffs’ procedural due process rights because the sex offender statute based the registration and notification requirements solely on the fact of plaintiffs’ convictions, which plaintiffs already had a procedurally safeguarded opportunity to contest; procedural due process does not require the opportunity to prove a fact that is not material to the state’s statutory scheme. Doe v. Tandeske, 361 F.3d 594 (9th Cir.), cert. denied, 543 U.S. 817, 125 S. Ct. 56, 160 L. Ed. 2d 25 (U.S. 2004).

Applying the Sex Offender Registration Act to a person whose conviction was set aside under AS 12.55.085 before the Act became effective unconstitutionally interferes with the defendant’s liberty interests. Doe v. Dep't of Public Safety, 92 P.3d 398 (Alaska 2004).

Alaska’s sex offender registration and notification statute, 1994 SLA ch. 41, did not violate plaintiffs’ substantive due process rights because persons convicted of serious sex offenses did not have a fundamental right to be free from the statute’s registration and notification requirements, and the statute served a legitimate nonpunitive purpose of public safety by alerting the public to the risk of sex offenders in the community; further, the broad categories of offenses and the corresponding length of the reporting requirement were reasonably related to the danger of recidivism and were thus consistent with the regulatory objective. Doe v. Tandeske, 361 F.3d 594 (9th Cir.), cert. denied, 543 U.S. 817, 125 S. Ct. 56, 160 L. Ed. 2d 25 (U.S. 2004).

Alaska Sex Offender Registration Act’s registration and dissemination provisions have consequences to sex offenders that go beyond the state’s interest in public safety; therefore, AS 18.65.087 is excessive in relation to the State’s interest in public safety. Doe v. State, 189 P.3d 999 (Alaska 2008), reaff'd, 297 P.3d 885 (Alaska 2013).

The Registration Act, ch. 41, SLA 1994, created a civil, nonpunitive scheme to track sex offenders and could be constitutionally applied to offenders who committed their crimes before or after the Act’s enactment. Applying the Sex Offender Registration Act to a person whose correction was set aside under AS 12.55.085 before the Act became effective unconstitutionally interferes with the defendant’s liberty interests. Smith v. Doe, 538 U.S. 84, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (U.S. 2003).

Even though there was a problem for homeless sex offenders since this statute did not contain a definition of “residence,” a resolution was not required based on defendant’s vagueness challenge because employees from the Alaska Department of Public Safety had adopted an ad hoc definition of “residence” that was tailored to that situation. Therefore, defendant’s conviction for failure to register as a sex offender when he moved from a shelter to an outdoor camping area was upheld; because defendant benefitted from the Department’s policy, he failed to show that he personally was affected, or prejudiced in any manner, by the potential difficulties in defining the term “residence” as it applied to homeless sex offenders. Shayen v. State, 373 P.3d 532 (Alaska Ct. App. 2015), modified, — P.3d — (Alaska Ct. App. 2016).

While the Alaska Sexual Offender Registration Act, AS 12.63.010 — 12.63.100 , violated the due process clause, its defect could be cured by creation of a procedure for offenders to establish their non-dangerousness by filing a civil action in a superior court. Doe v. Dep't of Pub. Safety, 444 P.3d 116 (Alaska 2019).

Enforceable procedural right. —

A defendant who has satisfied his suspended imposition of sentence conditions, and whose conviction was set aside by a final order entered before this act became specifically applicable to convictions that have been set aside, has an enforceable procedural right in the set-aside order’s meaning and terms such that the State may not alter or ignore them without heeding the requirements of procedural fairness, including prior notice, an opportunity to cross-examine and defend, and a case-specific showing of compelling circumstances warranting relief from the judgment. Doe v. Dep't of Public Safety, 92 P.3d 398 (Alaska 2004).

Where appellant was charged in 1985 and pleaded no contest to first-degree sexual abuse of a minor and second-degree sexual abuse of a minor before the Alaska Sex Offender Registration Act (ASORA) was enacted, application of ASORA imposed burdens that had the effect of adding punishment beyond what could be imposed when the crime was committed in violation of the ex post facto clause of Alaska Const., art. I, § 15; supreme court of Alaska held that ASORA’s registration requirement did not apply to persons who committed their crimes before ASORA became effective. Doe v. State, 189 P.3d 999 (Alaska 2008), reaff'd, 297 P.3d 885 (Alaska 2013).

Construction. —

Clause “as required in AS 12.63.010 ” refers to all four paragraphs of AS 11.56.840(a) , based on the legislature’s clear intent in AS 12.63.010 — 12.63.100 to require convicted sex offenders to register and to periodically provide certain information to the State. Dailey v. State, 65 P.3d 891 (Alaska Ct. App. 2003).

Ex post facto. —

Defendant was a convicted sex offender in the 1980s, prior to the enactment of Alaska’s sex offender registration act. Defendant appealed a conviction for registering false information as being ex post facto. In this advisory opinion the court of appeals found that under either of the predominant approaches to application of ex post facto laws in Alaska, defendant could not properly be convicted for violating a requirement which is, in essence, punishment, where the underlying conviction preceded the institution of the requirement. Charles v. State, 287 P.3d 779 (Alaska Ct. App. 2012).

Application of amendments to Alaska’s Sex Offender Registration Act, AS 12.63.010 et seq. for crimes committed before the amendments were effective violated the ex post facto clause in Alaska Const. art. I, § 15. The Alaska Supreme Court, in a two-to-one decision, previously held the retroactive application of the amendments was an ex post facto violation, and Alaska R. App. P. 106, adopted after the Supreme Court’s prior decision and stating a two-to-one decision did not establish binding precedent, did not apply retroactively to the prior decision. State v. Doe, 297 P.3d 885 (Alaska), modified, — P.3d — (Alaska 2013).

General rule for all to cover reporting deadline. —

This statute does not preclude the Department from promulgating a general rule to govern the reporting deadline for all sex offenders, such as the rule that requires all sex offenders to make their yearly report within the 30 days preceding their birthday. Semaken v. State, 8 P.3d 368 (Alaska Ct. App. 2000).

Offenses not listed. —

There is no provision in this statute that authorizes a judge to order a defendant to register when the defendant is convicted of an offense not specifically listed by the legislature. Whitehead v. State, 985 P.2d 1019 (Alaska Ct. App. 1999).

Change of residence. —

Evidence was sufficient to convict defendant of second-degree failure to register as a sex offender because the trial judge found that defendant knew that he was no longer living at the drug- and alcohol-free rooming house, knew that he would have to verify his address information at the time of his quarterly deadline, and knew that he had to give notice the next day if he changed residences; and, while defendant might have legitimately been confused or unsure about what new address or location to submit, as he was homeless, the record supported the district court's conclusion that defendant was aware that he had to do something to be in compliance with the Alaska Sex Offender Registration Act. Outwater v. State, — P.3d — (Alaska Ct. App. May 31, 2017) (memorandum decision).

Conviction set aside before this act became applicable. —

Applying the Alaska Sex Offender Registration Act to a person whose conviction was set aside before the Act became specifically applicable to convictions that were set aside unconstitutionally interfered with the individual’s liberty interests and was not justified by a compelling governmental interest. Doe v. Dep't of Public Safety, 92 P.3d 398 (Alaska 2004).

Effect on plea agreement of failure to warn. —

Since a plea remains constitutionally valid even if the court fails to comply with one or more provisions of Criminal Rule 11(c), the defendant’s plea was knowing and voluntary for due process purposes even if he did not know about the registration requirement of this section when he entered his plea. Peterson v. State, 988 P.2d 109 (Alaska Ct. App. 1999).

Defendant did not establish either manifest injustice or fair and just reason for withdrawing his no contest pleas to two counts of sexual abuse of a minor in the second degree. Defendant never testified that he did not enter his pleas because of the specific requirements of the sex offender statute, and there was substantial evidence that he entered the pleas for strategic reasons, the court did not have to address the claim related to sex offender registration. Jovanov v. State, — P.3d — (Alaska Ct. App. Sept. 5, 2012) (memorandum decision).

Required to register. —

Defendant's claim that trial court err by accepting defense-proposed stipulation that defendant was a convicted sex offender who was required to register without a personal jury trial waiver from defendant was rejected because the record showed that the jury was instructed on all of the elements of the offense, including the element covered by the stipulation; the jury was instructed that they could not convict defendant of failing to register unless the State proved every element of the offense beyond a reasonable doubt, and at no time was the jury instructed that the stipulation relieved the State of its burden of proving that element. Marshall v. State, 436 P.3d 1065 (Alaska Ct. App. 2018).

Registration as a collateral consequence. —

Where the duty to register was not a direct result of the defendant’s plea agreement, which had been entered into prior to the enactment of the sex offender registration statute, but a collateral consequence, the defendant had not shown a violation of his plea agreement. Patterson v. State, 985 P.2d 1007 (Alaska Ct. App. 1999), overruled in part, Doe v. Dep't of Public Safety, 92 P.3d 398 (Alaska 2004).

Error in terminology. —

Although the prosecutor, and witnesses repeatedly referred to defendant’s failure to verify address as failure to register, it was clear from the context of the references that the jury was aware that the charge against the defendant was failure to verify his address as required of a convicted sex offender. Accordingly, the misstatements were harmless error. Reandeau v. State, 265 P.3d 1045 (Alaska Ct. App. 2011).

Sworn and attested to verifications required. —

Defendant, who was required to register as a sex offender under the Alaska Sex Offender Registration Act, was properly convicted of not complying with the statute where defendant prepared the required quarterly verification reports but did not swear or attest to the accuracy of the reports, citing concerns about perjury. Dailey v. State, 65 P.3d 891 (Alaska Ct. App. 2003).

Cited in

Bobby v. State, 950 P.2d 135 (Alaska Ct. App. 1997); Semaken v. State, 8 P.3d 368 (Alaska Ct. App. 2000); Boles v. State, 210 P.3d 454 (Alaska Ct. App. 2009); Maves v. State, 479 P.3d 399 (Alaska 2021).

Collateral references. —

Validity, construction, and application of state sex offender registration statutes concerning level of classification — initial classification determination, 65 ALR6th 1.

Validity, construction, and application of state sex offender registration statutes concerning level of classification — claims for downward departure, 66 ALR6th 1.

Sec. 12.63.020. Duration of sex offender or child kidnapper duty to register.

  1. The duty of a sex offender or child kidnapper to comply with the requirements of AS 12.63.010 is as follows:
    1. for a sex offender or child kidnapper, as that term is defined in AS 12.63.100 (6)(A), for each sex offense or child kidnapping, the duty
      1. continues for the lifetime of a sex offender or child kidnapper convicted of
        1. one aggravated sex offense; or
        2. two or more sex offenses, two or more child kidnappings, or one sex offense and one child kidnapping; for purposes of this section, a person convicted of indecent exposure before a person under 16 years of age under AS 11.41.460 more than two times has been convicted of two or more sex offenses;
      2. ends 15 years following the sex offender’s or child kidnapper’s unconditional discharge from a conviction for a single sex offense that is not an aggravated sex offense or for a single child kidnapping if the sex offender or child kidnapper has supplied proof that is acceptable to the department of the unconditional discharge; the registration period under this subparagraph
        1. is tolled for each year that a sex offender or child kidnapper fails to comply with the requirements of this chapter or is incarcerated for the offense or kidnapping for which the offender or kidnapper is required to register or for any other offense;
        2. may include the time a sex offender or child kidnapper was absent from this state if the sex offender or child kidnapper has complied with any sex offender or child kidnapper registration requirements of the jurisdiction in which the offender or kidnapper was located and if the sex offender or child kidnapper provides the department with proof of the compliance while the sex offender or child kidnapper was absent from this state; and
        3. continues for a sex offender or child kidnapper who has not supplied proof acceptable to the department of the offender’s or kidnapper’s unconditional discharge for the sex offense or child kidnapping requiring registration;
    2. for a sex offender or child kidnapper, as that term is defined in AS 12.63.100 (6)(B), the duty continues for the period determined by the department under (b) of this section.
  2. The department shall adopt, by regulation,
    1. procedures to notify a sex offender or child kidnapper
      1. who, on the registration form under AS 12.63.010 , lists a conviction for a sex offense or child kidnapping that is a violation of a former law of this state or a law of another jurisdiction, of the duration of the offender’s or kidnapper’s duty under (a) of this section for that sex offense or child kidnapping;
      2. as that term is defined in AS 12.63.100 (6)(B), of the duration of the sex offender or child kidnapper’s duty under (a) of this section; in adopting regulations under this subparagraph, the department shall
        1. consider the period of registration required in the other jurisdiction; and
        2. provide for tolling of the registration period if the sex offender or child kidnapper fails to comply with the requirements of this chapter or is incarcerated;
    2. a requirement that an offender or kidnapper supply proof acceptable to the department of unconditional discharge and the date it occurred.

History. (§ 4 ch 41 SLA 1994; am § 15 ch 81 SLA 1998; am § 12 ch 106 SLA 1998; am § 83 ch 4 FSSLA 2019)

Cross references. —

For applicability provisions relating to the duration of registration requirements of subsection (a), see §§ 17(b) and 18(b), ch. 54, SLA 1999 in the 1999 Temporary & Special Acts.

Administrative Code. —

For sex offender and child kidnapper registration, see 13 AAC 9.

Effect of amendments. —

The 2019 amendment, effective July 9, 2019, in (a), substituted “AS 12.63.010 is as follows:

“(1) for a sex offender or child kidnapper, as that term is defined in AS 12.63.100 (6)(A), for each sex offense or child kidnapping, the duty” for “AS 12.63.010 for each sex offense or child kidnapping” at the end of the introductory paragraph, redesignated former (a)(1) as (a)(1)(A), (a)(1)(A) as (a)(1)(A)(i), (a)(1)(B) as (a)(1)(A)(ii), (a)(2) as (a)(1)(B), (a)(2)(A) as (a)(1)(B)(i), (a)(2)(B) as (a)(1)(B)(ii) and (a)(2)(C) as (a)(1)(B)(iii), inserted “subparagraph” at the end of (a)(1)(B), deleted “paragraph” at the beginning of (a)(1)(B)(i), deleted former (a)(2)(A)(i) and (a)(2)(A)(ii) designations, inserted “or” following “chapter” in (a)(1)(B)(i), added (a)(2), and made related stylistic changes; rewrote (b), which read, “The department shall adopt, by regulation, procedures to notify a sex offender or child kidnapper who, on the registration form under AS 12.63.010 , lists a conviction for a sex offense or child kidnapping that is a violation of a former law of this state or a law of another jurisdiction, of the duration of the offender’s or kidnapper’s duty under (a) of this section for that sex offense or child kidnapping. As a part of the regulations, the department shall require the offender or kidnapper to supply proof acceptable to the department of unconditional discharge and the date it occurred.”

Editor's notes. — Section 142(c), ch. 4, FSSLA 2019, provides that the 2019 amendments to this section apply “to the duty to register as a sex offender for offenses committed on or after July 9, 2019.”

Notes to Decisions

Applicability. —

Trial court's decision requiring defendant to register for life under the Alaska Sex Offenders Registration Act (ASORA) was improper because the 1994 version of ASORA was not plainly intended to apply to offenders whose convictions have been set aside and once defendant's Colorado conviction was set aside, it was not a conviction for purposes of registration under the 1994 version of ASORA. With only one conviction, he was required to register under ASORA for 15 years rather than life. Maves v. State, 479 P.3d 399 (Alaska 2021).

Sexual offender registration. —

Finding that defendant was required to register and report under the Sex Offender Registration Act, AS 12.63.100 (6)(C)(i), for 15 years, AS 12.63.020(a)(2) , was proper where the Act was constitutional and was a regulatory measure; thus, the registration and reporting requirements were not part of defendant’s sentence. Herreid v. State, 69 P.3d 507 (Alaska Ct. App. 2003).

While the superior court properly found that the first defendant did not have to register as a sex offender in Alaska, it erred in finding that the second defendant had to register as a sex offender because both the Washington statute, relating to communicating with a minor (or someone believed to be a minor) for immoral purposes, and the California statute, relating to annoying or molesting any child under 18 years of age, under which defendants were respectively convicted, were significantly broader than and different from the Alaska offense of attempted sexual abuse of a minor in the second degree. State v. Doe, 425 P.3d 115 (Alaska 2018).

Statement by superior court held not a formal ruling on duration of registration. —

Superior court was complying with its duty under Alaska R. Crim. P. 32(d) when, in its remarks at the sentencing hearing and later in its written judgment, the court declared that defendant would be required to register as a sex offender for life, but this was not a “ruling;” the superior court did not formally adjudicate defendant’s obligation under the statute but merely offered its prediction concerning how the statute would apply to defendant. Boles v. State, 210 P.3d 454 (Alaska Ct. App.), amended, — P.3d — (Alaska Ct. App. 2009).

Multiple convictions in same proceeding. —

The fact that AS 12.63.020 requires an offender to be convicted of multiple sex offenses does not imply a requirement of multiple prosecutions or multiple, separate convictions; it is common for a defendant to be tried for, and convicted of, several offenses in the same proceeding and by entry of a single judgment. The statute’s plain language gives no indication that the term “two or more offenses” instead means “two or more separate arrests, charging instruments, or convictions.” On its face, then, AS 12.63.020 (a)(1)(B) plainly requires lifetime registration for a person convicted of two or more sex offenses, even if the person was convicted of multiple sex offenses by a single judgment in a single proceeding. Ward v. State, 288 P.3d 94 (Alaska 2012).

Stated in

Smith v. Doe, 538 U.S. 84, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (U.S. 2003); Doe v. Dep't of Public Safety, 92 P.3d 398 (Alaska 2004); Holden v. State, 190 P.3d 725 (Alaska Ct. App. 2008).

Cited in

Doe v. State, 189 P.3d 999 (Alaska 2008); Doe v. Dep't of Pub. Safety, 444 P.3d 116 (Alaska 2019); Doe v. Dep't of Pub. Safety, 444 P.3d 116 (Alaska 2019).

Collateral references. —

Validity, construction, and application of state sex offender registration statutes concerning level of classification — initial classification determination, 65 ALR6th 1.

Validity, construction, and application of state sex offender registration statutes concerning level of classification — claims for downward departure, 66 ALR6th 1.

Sec. 12.63.030. Notification of other jurisdictions.

  1. If a sex offender or child kidnapper notifies the department that the sex offender or child kidnapper is moving from the state, the department shall notify the Federal Bureau of Investigation and the state where the sex offender or child kidnapper is moving of the sex offender’s or child kidnapper’s intended address.
  2. If a sex offender or child kidnapper fails to register or to verify the sex offender’s or child kidnapper’s address and registration under this chapter, or the department does not know the location of a sex offender or child kidnapper required to register under this chapter, the department shall immediately notify the Federal Bureau of Investigation.

History. (§ 13 ch 106 SLA 1998)

Sec. 12.63.100. Definitions.

In this chapter,

  1. “aggravated sex offense” means
    1. a crime under AS 11.41.100(a)(3) , or a similar law of another jurisdiction, in which the person committed or attempted to commit a sexual offense, or a similar offense under the laws of the other jurisdiction; in this subparagraph, “sexual offense” has the meaning given in AS 11.41.100(a)(3) ;
    2. a crime under AS 11.41.110(a)(3) , or a similar law of another jurisdiction, in which the person committed or attempted to commit one of the following crimes, or a similar law of another jurisdiction:
      1. sexual assault in the first degree;
      2. sexual assault in the second degree;
      3. sexual abuse of a minor in the first degree; or
      4. sexual abuse of a minor in the second degree;
    3. a crime, or an attempt, solicitation, or conspiracy to commit a crime, under AS 11.41.410 , 11.41.434 , or a similar law of another jurisdiction or a similar provision under a former law of this state; or
    4. an offense, or an attempt, solicitation, or conspiracy to commit an offense, under
      1. AS 26.05.890 , or a similar law of another jurisdiction, if the person engaged in or attempted to engage in sexual penetration; or
      2. AS 26.05.893 , or a similar law of another jurisdiction, if the prohibited sexual activity in which the member of the militia engaged or attempted to engage is sexual penetration;
  2. “child kidnapping” means
    1. a crime under AS 11.41.100(a)(3) , or a similar law of another jurisdiction, in which the person committed or attempted to commit kidnapping;
    2. a crime under AS 11.41.110(a)(3) , or a similar law of another jurisdiction, in which the person committed or attempted to commit kidnapping if the victim was under 18 years of age at the time of the offense;
    3. a crime, or an attempt, solicitation, or conspiracy to commit a crime, under AS 11.41.300 , or a similar law of another jurisdiction or a similar provision under a former law of this state, if the victim was under 18 years of age at the time of the offense; or
    4. an offense, or an attempt, solicitation, or conspiracy to commit an offense, under AS 26.05.935(b) , or a similar law of another jurisdiction, if the
      1. member of the militia commits the enumerated offense of kidnapping, punishable under Article 134, 10 U.S.C. 934 (Uniform Code of Military Justice); and
      2. victim was under 18 years of age at the time of the offense;
  3. “conviction” means that an adult, or a juvenile charged as an adult under AS 47.12 or a similar procedure in another jurisdiction, has entered a plea of guilty, guilty but mentally ill, or nolo contendere, or has been found guilty or guilty but mentally ill by a court or jury, of a sex offense or child kidnapping regardless of whether the judgment was set aside under AS 12.55.085 or a similar procedure in another jurisdiction or was the subject of a pardon or other executive clemency; “conviction” does not include a judgment that has been reversed or vacated by a court;
  4. “department” means the Department of Public Safety;
  5. “sexual contact” has the meaning given in AS 11.81.900 ;
  6. “sex offender or child kidnapper” means
    1. a person convicted of a sex offense or child kidnapping in this state or another jurisdiction regardless of whether the conviction occurred before, after, or on January 1, 1999; or
    2. a person charged and convicted as an adult of an offense that requires registration as a sex offender or child kidnapper in another jurisdiction;
  7. “sex offense” means
    1. a crime under AS 11.41.100(a)(3) , or a similar law of another jurisdiction, in which the person committed or attempted to commit a sexual offense, or a similar offense under the laws of the other jurisdiction; in this subparagraph, “sexual offense” has the meaning given in AS 11.41.100(a)(3) ;
    2. a crime under AS 11.41.110(a)(3) , or a similar law of another jurisdiction, in which the person committed or attempted to commit one of the following crimes, or a similar law of another jurisdiction:
      1. sexual assault in the first degree;
      2. sexual assault in the second degree;
      3. sexual abuse of a minor in the first degree; or
      4. sexual abuse of a minor in the second degree;
    3. a crime, or an attempt, solicitation, or conspiracy to commit a crime, under the following statutes or a similar law of another jurisdiction:
      1. AS 11.41.410 — 11.41.438 ;
      2. AS 11.41.440(a)(2) ;
      3. AS 11.41.450 — 11.41.458 ;
      4. AS 11.41.460 or AS 26.05.900(c) if the indecent exposure is before a person under 16 years of age and the offender has previously been convicted under AS 11.41.460 or AS 26.05.900(c) ;
      5. AS 11.61.125 — 11.61.128 ;
      6. AS 11.66.110 , 11.66.130(a)(2)(B) , or AS 26.05.900(b) if the person who was induced or caused to engage in prostitution was under 20 years of age at the time of the offense;
      7. former AS 11.15.120, former 11.15.134, or assault with the intent to commit rape under former AS 11.15.160, former AS 11.40.110, or former 11.40.200;
      8. AS 11.61.118(a)(2) if the offender has a previous conviction for that offense;
      9. AS 11.66.100(a)(2) if the offender is subject to punishment under AS 11.66.100(e) ;
      10. AS 26.05.890 if the person engaged in sexual penetration or sexual contact with the victim;
      11. AS 26.05.890 if, at the time of the offense, the victim is under a duty to obey the lawful orders of the offender, regardless of whether the offender is in the direct chain of command over the victim;
      12. AS 26.05.893 if the person engaged in sexual penetration or sexual contact with the victim;
      13. AS 26.05.900 (a)(1) — (4) if the victim is under 18 years of age at the time of the offense;
      14. AS 26.05.900 if, at the time of the offense, the victim is under a duty to obey the lawful orders of the offender, regardless of whether the offender is in the direct chain of command over the victim; or
      15. AS 11.61.123 if the offender is subject to punishment under AS 11.61.123 (f)(1) or (2);
    4. an offense, or an attempt, solicitation, or conspiracy to commit an offense, under AS 26.05.935(b) , or a similar law of another jurisdiction, if the member of the militia commits one of the following enumerated offenses punishable under Article 134, 10 U.S.C. 934 (Uniform Code of Military Justice):
      1. child pornography; or
      2. pandering and prostitution if the person who is induced, enticed, caused, or procured to engage in a sexual act is under 20 years of age at the time of the offense; or
    5. an offense in which the person is required to register as a sex offender under the laws of another jurisdiction;
  8. “sexual penetration” has the meaning given in AS 11.81.900 ;
  9. “unconditional discharge” has the meaning given in AS 12.55.185 .

History. (§ 4 ch 41 SLA 1994; am § 16 ch 81 SLA 1998; am §§ 14 — 16 ch 106 SLA 1998; am §§ 12 — 15 ch 54 SLA 1999; am §§ 8, 9 ch 14 SLA 2006; am § 24 ch 24 SLA 2007; am § 18 ch 18 SLA 2010; am § 25 ch 43 SLA 2013; am § 39 ch 1 4SSLA 2017; am §§ 1 — 4 ch 85 SLA 2018; am §§ 84, 85 ch 4 FSSLA 2019)

Revisor's notes. —

Paragraphs were renumbered in 1998 and again in 1999 to maintain alphabetical order.

Paragraphs (5) and (8) were enacted as (8) and (9); renumbered in 2018 for alphabetical consistency, at which time other paragraphs were also renumbered.

Cross references. —

For applicability provisions relating to the 1999 amendments of paragraphs (1), (2), and (6) (earlier designated as (5)), see § 17, ch. 54, SLA 1999 in the 1999 Temporary and Special Acts. For provisions relating to legislative purpose and applicability of the 1999 enactment of paragraph (3) (enacted in 1999 as (7)), see §§ 1 and 18, ch. 54, SLA 1999 in the 1999 Temporary and Special Acts.

For governor's transmittal letter for ch. 43, SLA 2013 (SB 22), see 2013 Senate Journal 38 — 39.

For provision relating to the applicability of the 2018 changes to this section, see sec. 42(b), ch. 85, SLA 2018, in the 2018 Temporary and Special Acts.

For a statement of legislative intent regarding the 2019 amendment to paragraph (7) of this section, see § 1, ch. 4, FSSLA 2019, in the 2019 Temporary and Special Acts.

Effect of amendments. —

The 2010 amendment, effective July 1, 2010, added (6)(C)(viii) and made related changes.

The 2013 amendment, effective July 1, 2013, in (6)(C)(vi) substituted “was under 20 years of age” for “was 16 or 17 years of age”; added (6)(C)(ix).

The 2017 amendment, effective November 27, 2017, in (6)(C)(vi), substituted “11.66.130(a)(2)(B)” for “11.66.130(a)(2)”.

The 2018 amendment, effective January 1, 2019, added (1)(D); added (2)(D); in (6) [now 7], in (6)(C)(iv) [now (7)(C)(iv)], inserted “or AS 26.05.900(c) ” following “AS 11.41.460 ” at the beginning, and substituted “previously been convicted under AS 11.41.460 or AS 26.05.900(c) ” for “a previous conviction for that offense”, in (6)(C)(vi) [now (7)(C)(vi)], inserted “, or AS 26.05.900(b) ” preceding “if the person”, and made related changes, added (6)(C)(x) — (xiv) [now (7) (C)(x) — (xiv), added (6)(D) [now (7)(D); added (8) [now (5)] and (9) [now (8)].

The 2019 amendment, effective July 9, 2019, added (6)(B), (7)(C)(xv), (7)(E), and made related stylistic changes.

Editor's notes. —

Section 21(a), ch. 18, SLA 2010, provides that the 2010 enactment of (6)(C)(viii) of this section applies to offenses committed on or after July 1, 2010.

Under sec. 46(a), ch. 43, SLA 2013, the 2013 changes to paragraph (6) apply to offenses committed on or after July 1, 2013.

Section 142(c), ch. 4, FSSLA 2019, provides that the 2019 amendments to paragraphs (6) and (7) of this section apply “to the duty to register as a sex offender for offenses committed on or after July 9, 2019.”

Notes to Decisions

Retrospective application. —

Although the extension of the registration requirement to defendants convicted of a sex offense defined in this section before the law was enacted means that many defendants who pled guilty or no contest to a sex offense prior to enactment had no warning of this consequence when they entered their pleas, unlike those convicted subsequent to its enactment, this disparate treatment may be explained by the risk of disruption of the justice system of the potential re-opening of hundreds of criminal cases. Peterson v. State, 988 P.2d 109 (Alaska Ct. App. 1999).

Because the Alaska Sex Offender Registration Act’s registration, disclosure, and dissemination provisions violate the protection against ex post facto laws afforded by the Alaska constitution as it applies to defendants who committed their crimes before the legislature enacted the act, the supreme court of Alaska held that AS 12.63.100 (3) could not be applied to appellant who was charged in 1985 and pleaded no contest to first-degree sexual abuse of a minor and second-degree sexual abuse. Doe v. State, 189 P.3d 999 (Alaska 2008), reaff'd, 297 P.3d 885 (Alaska 2013).

Conviction. —

As promulgated by the Department of Public Safety under its authority to adopt regulations to implement the purpose of the Alaska Sex Offender Registration Act, the definition of “conviction,” to include a conviction that had been set aside after the completion of a suspended imposition of sentence, was consistent with the legislative purpose to protect the public. State v. Otness, 986 P.2d 890 (Alaska Ct. App. 1999), overruled, Maves v. State, 479 P.3d 399 (Alaska 2021).

Registration not punitive. —

Finding that defendant was required to register and report under the Sex Offender Registration Act, AS 12.63.100 (6)(C)(i), was proper where the Act was a regulatory measure, and the registration and reporting requirements were not part of defendant’s sentence. Herreid v. State, 69 P.3d 507 (Alaska Ct. App. 2003).

Interpretation. —

Alaska Sex Offender Registration Act’s registration and dissemination provisions have consequences to sex offenders that go beyond the state’s interest in public safety; therefore, AS 18.65.087 is excessive in relation to the State’s interest in public safety. Doe v. State, 189 P.3d 999 (Alaska 2008), reaff'd, 297 P.3d 885 (Alaska 2013).

Applied in

Ward v. State, 288 P.3d 94 (Alaska 2012); Doe v. Dep't of Pub. Safety, 444 P.3d 116 (Alaska 2019); Doe v. Dep't of Pub. Safety, 444 P.3d 116 (Alaska 2019).

Quoted in

Holden v. State, 190 P.3d 725 (Alaska Ct. App. 2008); State v. Doe, 425 P.3d 115 (Alaska 2018).

Stated in

Nunley v. State, 26 P.3d 1113 (Alaska Ct. App. 2001).

Cited in

Doe v. Dep't of Public Safety, 92 P.3d 398 (Alaska 2004); Boles v. State, 210 P.3d 454 (Alaska Ct. App. 2009); Maves v. State, 479 P.3d 399 (Alaska 2021).

Chapter 64. National Crime Prevention and Privacy Compact.

Sec. 12.64.010. Compact enacted.

The National Crime Prevention and Privacy Compact as contained in this section is enacted into law and entered into on behalf of the State of Alaska with any other states legally joining in it in a form substantially as follows:

The contracting parties agree to the following:

OVERVIEW

  1. In general. This Compact organizes an electronic information sharing system among the federal government and the states to exchange criminal history records for noncriminal justice purposes authorized by federal or state law, such as background checks for governmental licensing and employment.
  2. Obligations of parties. Under this Compact, the FBI and the party states agree to maintain detailed databases of their respective criminal history records, including arrests and dispositions, and to make them available to the federal government and to party states for authorized purposes. The FBI shall also manage the federal data facilities that provide a significant part of the infrastructure for the system.

History. (§ 3 ch 53 SLA 2001)

ARTICLE I. DEFINITIONS

In this Compact, unless the context clearly requires otherwise:

  1. “attorney general” means the attorney general of the United States;
  2. “Compact officer” means
    1. with respect to the federal government, an official so designated by the director of the FBI; and
    2. with respect to a party state, the chief administrator of the state’s criminal history record repository or a designee of the chief administrator who is a regular full-time employee of the repository;
  3. “council” means the Compact Council established under Article VI;
  4. “criminal history records”
    1. means information collected by criminal justice agencies on individuals consisting of identifiable descriptions and notations of arrests, detentions, indictments, or other formal criminal charges, and any disposition arising therefrom, including acquittal, sentencing, correctional supervision, or release; and
    2. does not include identification information such as fingerprint records if such information does not indicate involvement of the individual with the criminal justice system;
  5. “criminal history record repository” means the state agency designated by the governor or other appropriate executive official or the legislature of a state to perform centralized record keeping functions for criminal history records and services in the state;
  6. “criminal justice” includes activities relating to the detection, apprehension, detention, pretrial release, post-trial release, prosecution, adjudication, correctional supervision, or rehabilitation of accused persons or criminal offenders; the administration of criminal justice includes criminal identification activities and the collection, storage, and dissemination of criminal history records;
  7. “criminal justice agency” means
    1. courts;
    2. a governmental agency or any subunit thereof that
      1. performs the administration of criminal justice pursuant to a statute or executive order; and
      2. allocates a substantial part of its annual budget to the administration of criminal justice; and
    3. federal and state inspectors general offices;
  8. “criminal justice services” means services provided by the FBI to criminal justice agencies in response to a request for information about a particular individual or as an update to information previously provided for criminal justice purposes;
  9. “criterion offense” means any felony or misdemeanor offense not included on the list of nonserious offenses published periodically by the FBI;
  10. “direct access” means access to the National Identification Index by computer terminal or other automated means not requiring the assistance of or intervention by any other party or agency;
  11. “executive order” means an order of the President of the United States or the chief executive officer of a state that has the force of law and that is promulgated in accordance with applicable law;
  12. “FBI” means the Federal Bureau of Investigation;
  13. “Interstate Identification Index System” or “III System”
    1. means the cooperative federal-state system for the exchange of criminal history records;
    2. includes the National Identification Index, the National Fingerprint File, and to the extent of their participation in such system, the criminal history record repositories of the states and the FBI;
  14. “National Fingerprint File” means a database of fingerprints, or other uniquely personal identifying information, relating to an arrested or charged individual maintained by the FBI to provide positive identification of record subjects indexed in the III System;
  15. “National Identification Index” means an index maintained by the FBI consisting of names, identifying numbers, and other descriptive information relating to record subjects about whom there are criminal history records in the III System;
  16. “national indices” means the National Identification Index and the National Fingerprint File;
  17. “nonparty state” means a state that has not ratified this Compact;
  18. “noncriminal justice purposes” means uses of criminal history records for purposes authorized by federal or state law other than purposes relating to criminal justice activities, including employment suitability, licensing determinations, immigration and naturalization matters, and national security clearances;
  19. “party state” means a state that has ratified this Compact;
  20. “positive identification” means a determination, based upon a comparison of fingerprints or other equally reliable biometric identification techniques, that the subject of a record search is the same person as the subject of a criminal history record or records indexed in the III System; identifications based solely upon a comparison of subjects’ names or other nonunique identification characteristics or numbers, or combinations thereof, shall not constitute positive identification;
  21. “sealed record information” means
    1. with respect to adults, that portion of a record that is
      1. not available for criminal justice uses;
      2. not supported by fingerprints or other accepted means of positive identification; or
      3. subject to restrictions on dissemination for noncriminal justice purposes pursuant to a court order related to a particular subject or pursuant to a federal or state statute that requires action on a sealing petition filed by a particular record subject; and
    2. with respect to juveniles, whatever each state determines is a sealed record under its own law and procedure;
  22. “state” means any state, territory, or possession of the United States, the District of Columbia, and the Commonwealth of Puerto Rico.

ARTICLE II. PURPOSES

The purposes of this Compact are to

  1. provide a legal framework for the establishment of a cooperative federal-state system for the interstate and federal-state exchange of criminal history records for noncriminal justice uses;
  2. require the FBI to permit use of the National Identification Index and the National Fingerprint File by each party state, and to provide, in a timely fashion, federal and state criminal history records to requesting states, in accordance with the terms of this Compact and with rules, procedures, and standards established by the council under Article VI;
  3. require party states to provide information and records for the National Identification Index and the National Fingerprint File and to provide criminal history records, in a timely fashion, to criminal history record repositories of other states and the federal government for noncriminal justice purposes, in accordance with the terms of this Compact and with rules, procedures, and standards established by the council under Article VI;
  4. provide for the establishment of a council to monitor the III System operations and to prescribe system rules and procedures for the effective and proper operation of the III System for noncriminal justice purposes; and
  5. require the FBI and each party state to adhere to III System standards concerning record dissemination and use, response times, system security, data quality, and other duly established standards, including those that enhance the accuracy and privacy of such records.

ARTICLE III. RESPONSIBILITIES OF COMPACT PARTIES

  1. FBI responsibilities. The director of the FBI shall
    1. appoint an FBI Compact officer who shall
      1. administer this Compact within the Department of Justice and among federal agencies and other agencies and organizations that submit search requests to the FBI pursuant to Article V(c);
      2. ensure that Compact provisions and rules, procedures, and standards prescribed by the council under Article VI are complied with by the Department of Justice and the federal agencies and other agencies and organizations referred to in Article III(1)(A); and
      3. regulate the use of records received by means of the III System from party states when such records are supplied by the FBI directly to other federal agencies;
    2. provide to federal agencies and to state criminal history record repositories, criminal history records maintained in its database for the noncriminal justice purposes described in Article IV, including
      1. information from nonparty states; and
      2. information from party states that is available from the FBI through the III System, but is not available from the party state through the III System;
    3. provide a telecommunications network and maintain centralized facilities for the exchange of criminal history records for both criminal justice purposes and the noncriminal justice purposes described in Article IV, and ensure that the exchange of such records for criminal justice purposes has priority over exchange for noncriminal justice purposes; and
    4. modify or enter into user agreements with nonparty state criminal history record repositories to require them to establish record request procedures conforming to those prescribed in Article V.
  2. State responsibilities. Each party state shall
    1. appoint a Compact officer who shall
      1. administer this Compact within that state;
      2. ensure that Compact provisions and rules, procedures, and standards established by the council under Article VI are complied with in the state; and
      3. regulate the in-state use of records received by means of the III System from the FBI or from other party states;
    2. establish and maintain a criminal history record repository, which shall provide
      1. information and records for the National Identification Index and the National Fingerprint File; and
      2. the state’s III System-indexed criminal history records for noncriminal justice purposes described in Article IV;
    3. participate in the National Fingerprint File; and
    4. provide and maintain telecommunications links and related equipment necessary to support the services set forth in this Compact.
  3. Compliance with III System standards. In carrying out their responsibilities under this Compact, the FBI and each party state shall comply with III System rules, procedures, and standards duly established by the council concerning record dissemination and use, response times, data quality, system security, accuracy, privacy protection, and other aspects of III System operation.
  4. Maintenance of record services.
    1. Use of the III System for noncriminal justice purposes authorized in this Compact shall be managed so as not to diminish the level of services provided in support of criminal justice purposes.
    2. Administration of Compact provisions shall not reduce the level of service available to authorized noncriminal justice users on the effective date of this Compact.

ARTICLE IV. AUTHORIZED RECORD DISCLOSURES

  1. State criminal history record repositories. To the extent authorized by section 552a of title 5, United States Code (commonly known as the “Privacy Act of 1974”), the FBI shall provide on request criminal history records (excluding sealed records) to state criminal history record repositories for noncriminal justice purposes allowed by federal statute, federal executive order, or a state statute that has been approved by the attorney general and that authorizes national indices checks.
  2. Criminal justice agencies and other governmental or nongovernmental agencies. The FBI, to the extent authorized by section 552a of title 5, United States Code (commonly known as the “Privacy Act of 1974”), and state criminal history record repositories shall provide criminal history records (excluding sealed records) to criminal justice agencies and other governmental or nongovernmental agencies for noncriminal justice purposes allowed by federal statute, federal executive order, or a state statute that has been approved by the attorney general, that authorizes national indices checks.
  3. Procedures. Any record obtained under this Compact may be used only for the official purposes for which the record was requested. Each Compact officer shall establish procedures, consistent with this Compact, and with rules, procedures, and standards established by the council under Article VI, which procedures shall protect the accuracy and privacy of the records, and shall
    1. ensure that records obtained under this Compact are used only by authorized officials for authorized purposes;
    2. require that subsequent record checks are requested to obtain current information whenever a new need arises; and
    3. ensure that record entries that may not legally be used for a particular noncriminal justice purpose are deleted from the response and, if no information authorized for release remains, an appropriate “no record” response is communicated to the requesting official.

ARTICLE V. RECORD REQUEST PROCEDURES

  1. Positive identification. Subject fingerprints or other approved forms of positive identification shall be submitted with all requests for criminal history record checks for noncriminal justice purposes.
  2. Submission of state requests. Each request for a criminal history record check utilizing the national indices made under any approved state statute shall be submitted through that state’s criminal history record repository. A state criminal history record repository shall process an interstate request for noncriminal justice purposes through the national indices only if such request is transmitted through another state criminal history record repository or the FBI.
  3. Submission of federal requests. Each request for criminal history record checks utilizing the national indices made under federal authority shall be submitted through the FBI or, if the state criminal history record repository consents to process fingerprint submissions, through the criminal history record repository in the state in which such request originated. Direct access to the National Identification Index by entities other than the FBI and state criminal history records repositories shall not be permitted for noncriminal justice purposes.
  4. Fees. A state criminal history record repository or the FBI
    1. may charge a fee, in accordance with applicable law, for handling a request involving fingerprint processing for noncriminal justice purposes; and
    2. may not charge a fee for providing criminal history records in response to an electronic request for a record that does not involve a request to process fingerprints.
  5. Additional search.
    1. If a state criminal history record repository cannot positively identify the subject of a record request made for noncriminal justice purposes, the request, together with fingerprints or other approved identifying information, shall be forwarded to the FBI for a search of the national indices.
    2. If, with respect to a request forwarded by a state criminal history record repository under paragraph (1), the FBI positively identifies the subject as having a III System-indexed record or records
      1. the FBI shall so advise the state criminal history record repository; and
      2. the state criminal history record repository shall be entitled to obtain the additional criminal history record information from the FBI or other state criminal history record repositories.

ARTICLE VI. ESTABLISHMENT OF A COMPACT COUNCIL

  1. Establishment.
    1. In general. There is established a council to be known as the “Compact Council,” which shall have the authority to promulgate rules and procedures governing the use of the III System for noncriminal justice purposes, not to conflict with FBI administration of the III System for criminal justice purposes.
    2. Organization. The council shall
      1. continue in existence as long as this Compact remains in effect;
      2. be located, for administrative purposes, within the FBI; and
      3. be organized and hold its first meeting as soon as practicable after the effective date of this Compact.
  2. Membership. The council shall be composed of 15 members, each of whom shall be appointed by the attorney general, as follows:
    1. nine members, each of whom shall serve a two-year term, who shall be selected from among the Compact officers of party states based on the recommendation of the Compact officers of all party states, except that, in the absence of the requisite number of Compact officers available to serve, the chief administrators of the criminal history record repositories of nonparty states shall be eligible to serve on an interim basis;
    2. two at-large members, nominated by the director of the FBI, each of whom shall serve a three-year term, of whom
      1. one shall be a representative of the criminal justice agencies of the federal government and may not be an employee of the FBI; and
      2. one shall be a representative of the noncriminal justice agencies of the federal government;
    3. two at-large members, nominated by the chair of the council, once the chair is elected pursuant to Article VI(c), each of whom shall serve a three-year term, of whom
      1. one shall be a representative of state or local criminal justice agencies; and
      2. one shall be a representative of state or local noncriminal justice agencies;
    4. one member, who shall serve a three-year term, and who shall simultaneously be a member of the FBI’s advisory policy board on criminal justice information services, nominated by the membership of that policy board;
    5. one member, nominated by the director of the FBI, who shall serve a three-year term, and who shall be an employee of the FBI.
  3. Chair and vice chair.
    1. In general. From its membership, the council shall elect a chair and a vice chair of the council, respectively. Both the chair and vice chair of the council
      1. shall be a Compact officer, unless there is no Compact officer on the council who is willing to serve, in which case the chair may be an at-large member; and
      2. shall serve a two-year term and be reelected to only one additional two-year term.
    2. Duties of the vice chair. The vice chair of the council shall serve as the chair of the council in the absence of the chair.
  4. Meetings.
    1. In general. The council shall meet at least once a year at the call of the chair. Each meeting of the council shall be open to the public. The council shall provide prior public notice in the Federal Register of each meeting of the council, including the matters to be addressed at such meeting.
    2. Quorum. A majority of the council or any committee of the council shall constitute a quorum of the council or of such committee, respectively, for the conduct of business. A lesser number may meet to hold hearings, take testimony, or conduct any business not requiring a vote.
  5. Rules, procedures, and standards. The council shall make available for public inspection and copying at the council office within the FBI, and shall publish in the Federal Register, any rules, procedures, or standards established by the council.
  6. Assistance from FBI. The council may request from the FBI such reports, studies, statistics, or other information or materials as the council determines to be necessary to enable the council to perform its duties under this Compact. The FBI, to the extent authorized by law, may provide such assistance or information upon such a request.
  7. Committees. The chair may establish committees as necessary to carry out this Compact and may prescribe their membership, responsibilities, and duration.

ARTICLE VII. RATIFICATION OF COMPACT

This Compact shall take effect upon being entered into by two or more states as between those states and the federal government. Upon subsequent entering into this Compact by additional states, it shall become effective among those states and the federal government and each party state that has previously ratified it. When ratified, this Compact shall have the full force and effect of law within the ratifying jurisdictions. The form of ratification shall be in accordance with the laws of the executing state.

ARTICLE VIII. MISCELLANEOUS PROVISIONS

  1. Relation of Compact to certain FBI activities. Administration of this Compact shall not interfere with the management and control of the director of the FBI over the FBI’s collection and dissemination of criminal history records and the advisory function of the FBI’s advisory policy board chartered under the Federal Advisory Committee Act (5 U.S.C. App.) for all purposes other than noncriminal justice.
  2. No authority for nonappropriated expenditures. Nothing in this Compact shall require the FBI to obligate or expend funds beyond those appropriated to the FBI.
  3. Relating to Public Law 92-544. Nothing in this Compact shall diminish or lessen the obligations, responsibilities, and authorities of any state, whether a party state or a nonparty state, or of any criminal history record repository or other subdivision or component thereof, under the Departments of State, Justice, and Commerce, the Judiciary, and Related Agencies Appropriation Act, 1973 (Public Law 92-544) or regulations and guidelines promulgated thereunder, including the rules and procedures promulgated by the council under Article VI(a), regarding the use and dissemination of criminal history records and information.

ARTICLE IX. RENUNCIATION

  1. In general. This Compact shall bind each party state until renounced by the party state.
  2. Effect. Any renunciation of this Compact by a party state shall
    1. be effected in the same manner by which the party state ratified this Compact; and
    2. become effective 180 days after written notice of renunciation is provided by the party state to each other party state and to the federal government.

ARTICLE X. SEVERABILITY

The provisions of this Compact shall be severable, and if any phrase, clause, sentence, or provision of this Compact is declared to be contrary to the constitution of any participating state, or to the Constitution of the United States, or the applicability thereof to any government, agency, person, or circumstance is held invalid, the validity of the remainder of this Compact and the applicability thereof to any government, agency, person, or circumstance shall not be affected thereby. If a portion of this Compact is held contrary to the constitution of any party state, all other portions of this Compact shall remain in full force and effect as to the remaining party states and in full force and effect as to the party state affected, as to all other provisions.

ARTICLE XI. ADJUDICATION OF DISPUTES

  1. In general. The council shall
    1. have initial authority to make determinations with respect to any dispute regarding
      1. interpretation of this Compact;
      2. any rule or standard established by the council pursuant to Article V; and
      3. any dispute or controversy between any parties to this Compact; and
    2. hold a hearing concerning any dispute described in paragraph (1) at a regularly scheduled meeting of the council and only render a decision based upon a majority vote of the members of the council. Such decision shall be published pursuant to the requirements of Article VI(e).
  2. Duties of the FBI. The FBI shall exercise immediate and necessary action to preserve the integrity of the III System, maintain system policy and standards, protect the accuracy and privacy of records, and to prevent abuses, until the council holds a hearing on such matters.
  3. Right of appeal. The FBI or a party state may appeal any decision of the council to the attorney general, and thereafter may file suit in the appropriate district court of the United States, which shall have original jurisdiction of all cases or controversies arising under this Compact. Any suit arising under this Compact and initiated in a state court shall be removed to the appropriate district court of the United States in the manner provided by section 1446 of title 28, United States Code, or other statutory authority.

Chapter 65. Death Investigations and Medical Examiners.

Cross references. —

For inquests, see AS 09.55.062 — 09.55.069 .

Collateral references. —

18 Am. Jur. 2d, Coroners or Medical Examiners, § 1 et seq.

18 C.J.S., Coroners, § 1 et seq.

80 C.J.S., Sheriffs and Constables, § 61.

Liability for wrongful autopsy. 18 ALR4th 858, 31 ALR Fed. 156.

Article 1. Medical Examiner; Procedures after Death.

Sec. 12.65.005. Duty to notify state medical examiner.

  1. Unless the person has reasonable grounds to believe that notice has already been given, a person who attends a death or has knowledge of a death, in addition to notifying a peace officer, shall immediately notify the state medical examiner when the death appears to have
    1. been caused by unknown or criminal means, during the commission of a crime, or by suicide, accident, or poisoning;
    2. occurred under suspicious or unusual circumstances or occurred suddenly when the decedent was in apparent good health;
    3. been unattended by a practicing physician or occurred less than 24 hours after the deceased was admitted to a medical facility;
    4. been associated with a diagnostic or therapeutic procedure;
    5. resulted from a disease that constitutes a threat to public health;
    6. been caused by a disease, injury, or toxic agent resulting from employment;
    7. occurred in a jail or corrections facility owned or operated by the state or a political subdivision of the state or in a facility for the placement of persons in the custody or under the supervision of the state;
    8. occurred in a foster home;
    9. occurred in a mental institution or mental health treatment facility;
    10. occurred while the deceased was in the custody of, or was being taken into the custody of, the state or a political subdivision of the state or a public officer or agent of the state or a political subdivision of the state; or
    11. been of a child under 18 years of age or under the legal custody of the Department of Health and Social Services, subject to the jurisdiction of AS 47.10 or AS 47.12, unless the
      1. child’s death resulted from a natural disease process and was medically expected; and
      2. the child was under supervised medical care during the 24 hours before the death.
  2. A person who attends a death or has knowledge of a death occurring in circumstances other than those enumerated in (a) of this section may notify the state medical examiners of the death if, in the person’s opinion, a death investigation under AS 12.65.020 — 12.65.025 may be appropriate.
  3. The body of a person whose death has been or should be reported to the state medical examiner under this section may not be moved or otherwise disturbed without the permission of the state medical examiner.

History. (§ 2 ch 103 SLA 1996; am § 8 ch 99 SLA 1998)

Sec. 12.65.007. No duty for peace officer to respond to the scene of an expected home death.

  1. A peace officer is not required by state law to respond to the scene of an expected home death if
    1. the death was expected to occur due to the dead person’s state of health before death;
    2. the death occurred at the dead person’s home as expected due to the dead person’s state of health;
    3. a person authorized to determine and pronounce death determines and pronounces the death; and
    4. a form signed by the dead person’s physician concerning the physician’s expectation that the death would occur due to the person’s state of health and that it would occur at home was, at the time of death, on file with the law enforcement agency for that jurisdiction.
  2. This section does not
    1. prohibit a person from requesting a peace officer to respond to the scene described in (a) of this section if, in the person’s opinion, a death investigation by a peace officer may be appropriate due to suspicious or unusual circumstances; or
    2. relieve a person of the duty to notify the medical examiner and a peace officer of a death that is described in AS 12.65.005(a) .

History. (§ 1 ch 100 SLA 1998)

Sec. 12.65.010. Appointment of medical examiner. [Repealed, § 18 ch 103 SLA 1996.]

Sec. 12.65.015. State medical examiner and deputies.

  1. The commissioner of health and social services shall appoint a state medical examiner to perform the duties set out in AS 12.65.015 — 12.65.025 . The commissioner shall also appoint a deputy medical examiner, and may appoint assistant medical examiners, to perform or assist the state medical examiner in performing these duties. To be eligible for the position of medical examiner, deputy medical examiner, or assistant medical examiner, a person must be a physician licensed to practice in this state or, if the physician is licensed in another jurisdiction, the physician must be employed by the state or by an agency of the United States government within the state. The state medical examiner, deputy medical examiner, and assistant medical examiners are in the exempt service under AS 39.25.110 .
  2. The state medical examiner and the deputy medical examiner must be physicians licensed to practice in the state who have education and experience in forensic pathology.
  3. The state medical examiner and deputy medical examiner shall perform the duties assigned to the medical examiner and deputy medical examiner under AS 12.65.020 and regulations implementing that section, and other duties as assigned by the commissioner of health and social services.
  4. The state medical examiner may, through contracts for services, appoint local, regional, and district medical examiners throughout the state to perform or assist in performing the duties assigned to the state medical examiner. To be eligible for appointment as a local, regional, or district medical examiner, a person must be a physician licensed to practice in this state or, if the physician is licensed in another jurisdiction, the physician must be employed by the state or by an agency of the United States government within the state. An appointment under this subsection may be for a term of up to two years.
  5. The state medical examiner shall facilitate the formation of local, regional, or district child fatality review teams to assist local, regional, and district medical examiners in determining the cause and manner of deaths of children under 18 years of age. If a team is formed under this subsection, the team shall have the same access to information, confidentiality requirements, and immunity as provided to the state child fatality review team under AS 12.65.140 . A meeting of a team formed under this subsection is closed to the public and not subject to the provisions of AS 44.62.310 — 44.62.319 (Open Meetings Act). A review by a local, regional, or district child fatality review team does not relieve the state child fatality review team under AS 12.65.120 of the responsibility for reviewing a death under AS 12.65.130 . A person on a local, regional, or district child fatality review team is not eligible to receive compensation from the state for service on the team, but is eligible for travel expenses and per diem from the Department of Health and Social Services under AS 39.20.180 . A person on a team formed under this subsection serves at the pleasure of the state medical examiner.

History. (§ 1 ch 47 SLA 1993; am §§ 3, 4 ch 103 SLA 1996; am § 9 ch 99 SLA 1998; am §§ 1 — 3 ch 76 SLA 2005)

Revisor’s notes. —

In 2010, “AS 44.62.310 — 44.62.319 (Open Meetings Act)” was substituted for “AS 44.62.310 and 44.62.312 ” in accordance with § 29(1), ch. 58, SLA 2010.

Administrative Code. —

For births, deaths, burial permits, marriages, divorces, adoptions, see 7 AAC 5, art. 2.

For cost of post-mortem examinations, autopsies, embalming and related services, see 7 AAC 35, art. 2.

Effect of amendments. —

The 2005 amendment, effective October 12, 2005, in the first sentence in subsection (a) substituted “shall” for “may”, inserted “may appoint”, and made stylistic changes; in subsection (b) inserted “and the deputy medical examiner” and made stylistic changes; and in subsection (c) inserted “and deputy medical examiner” and “to the medical examiner and deputy medical examiner.”

Sec. 12.65.020. Medical death investigations.

  1. When a death is reported to the state medical examiner under AS 12.65.005 , the state medical examiner or the deputy medical examiner shall perform a medical death investigation. When a person dies under circumstances that, in the opinion of the state medical examiner, warrant an investigation, the state medical examiner or the deputy medical examiner may perform a medical death investigation. In performing the investigation, the state medical examiner or the deputy medical examiner may
    1. order that the body of the person who has died not be moved or otherwise disturbed without the permission of the medical examiner;
    2. request a peace officer to secure the scene and perform an on-scene investigation;
    3. view the remains of the deceased person;
    4. order the remains of the deceased to be transported to another location;
    5. perform a post mortem examination;
    6. perform an autopsy;
    7. take possession of property considered necessary for the investigation;
    8. subpoena and examine a person or record necessary in the opinion of the medical examiner to determine the material facts relating to the death; and
    9. take other actions appropriate under the circumstances to determine the cause and manner of death.
  2. When the state medical examiner or deputy medical examiner has completed an investigation or made the inquiry considered appropriate by the examiner, the examiner shall prepare a report of the examiner’s findings and conclusions. If the findings and conclusions indicate that the death may have been caused by criminal means, the state medical examiner or the deputy medical examiner shall submit a copy of the report to the district attorney responsible for prosecutions in the location where the death occurred. The investigative report is a privileged and confidential document, not subject to public disclosure under AS 40.25. It may be disclosed to public officers and employees for a public purpose and, when doing so will not interfere with an ongoing investigation or prosecution, to a person who is related to the deceased or who has a financial or personal interest in the estate of the deceased person.
  3. The state medical examiner, the deputy medical examiner, or a prosecuting attorney may petition the court to hold a death inquest under AS 09.55.062 if the findings and conclusions of the state medical examiner or the deputy medical examiner, in the opinion of the state medical examiner, the deputy medical examiner, or prosecuting attorney, warrant the inquest. Otherwise, the state medical examiner or the deputy medical examiner shall cause a certificate of death for the deceased person to be completed and filed as prescribed by law.
  4. The state medical examiner or the deputy medical examiner may direct the state registrar of vital statistics to amend a death certificate when, in the opinion of the state medical examiner or the deputy medical examiner, the death certificate is incomplete or inaccurate.
  5. The state medical examiner may enter into agreements for services to be performed by persons in the course of medical investigations, and the state medical examiner or the deputy medical examiner may call upon public employees, including a peace officer or a village public safety officer, to perform or assist in performing the duties specified in this section.
  6. The state medical examiner, the deputy medical examiner, and individuals who perform or assist the state medical examiner or the deputy medical examiner in performing the duties of the state medical examiner or the deputy medical examiner under this section are immune from civil liability based on determining the cause and manner of a person’s death.
  7. The Department of Health and Social Services shall adopt regulations to implement this section.

History. (§ 10.02 ch 34 SLA 1962; am § 3 ch 24 SLA 1966; am § 1 ch 107 SLA 1982; am § 1 ch 26 SLA 1988; am §§ 2, 3 ch 47 SLA 1993; am § 5 ch 103 SLA 1996; am §§ 4 — 9 ch 76 SLA 2005)

Revisor’s notes. —

In 2000, “AS 40.25” was substituted for “AS 09.25” to reflect the 2000 renumbering of AS 09.25.100 — 09.25.220 .

Cross references. —

For recording of death certificates, see AS 18.50.230 .

Administrative Code. —

For births, deaths, burial permits, marriages, divorces, adoptions, see 7 AAC 5, art. 2.

Effect of amendments. —

The 2005 amendment, effective October 12, 2005, inserted reference to the deputy medical examiner in subsections (a) — (f); in subsection (a) added the language beginning “the state medical examiner” to the end of the first sentence; deleted “state medical examiner’s” preceding “investigative report” in the next-to-last sentence in subsection (b); and inserted “state medical examiner” in subsection (e).

Sec. 12.65.025. Post mortem examinations.

  1. The state medical examiner shall designate the facilities at which post mortem examinations and autopsies ordered under this chapter may be performed consistent with this section. The Department of Health and Social Services shall pay the costs of
    1. post mortem examinations and autopsies ordered under this chapter;
    2. related transportation to the location where the post mortem examination is conducted and then to the community closest to where the death occurred, except that transportation costs to another requested location shall be paid to the extent that the costs do not exceed the costs that would otherwise have been paid by the department for returning the body to the community closest to where the death occurred;
    3. embalming, if embalming is required by law; and
    4. cosmetology necessary to make the head, face, neck, and hands of the deceased presentable if those parts of the body are disfigured by the post mortem examination.
  2. The Department of Health and Social Services shall provide clothing and a casket for the deceased if the person legally responsible for the burial, other than the state, is unable to pay for clothing and a casket and the responsible person does not object.
  3. Instead of paying the cost of services listed under (a)(3), (a)(4), and (b) of this section, the Department of Health and Social Services may pay for the cremation and inurnment of the deceased if
    1. the person legally responsible for the burial requests or approves the cremation and inurnment; and
    2. the cost to the department of the cremation and inurnment does not exceed the cost to the state of services listed under (a)(3), (a)(4), and (b) of this section that the department would otherwise pay for or provide for the deceased.
  4. The Department of Health and Social Services shall establish the maximum amounts or rates that the department will pay for services under this section. Facilities designated under (a) of this section, as a condition of their designation, shall agree to accept reimbursement from the department as payment in full for services provided by the facility under this section, and may not seek reimbursement for those services from a third party.
  5. The state medical examiner shall designate a location for conducting a post mortem examination that is in the community closest to where the death occurred if
    1. the state medical examiner has verified that a facility with adequate technology, personnel, and training is available at the location to enable the state medical examiner to direct a remote examination;
    2. the facility meets applicable standards, including inspection and accreditation, for conducting remote post mortem examinations established in the Forensic Autopsy Performance Standards by the National Association of Medical Examiners; and
    3. the cost of conducting the examination in the community closest to where the death occurred is less than the cost of conducting the examination or autopsy at another location, including the cost of transporting the body to and from another location to conduct the examination.
  6. The Department of Health and Social Services shall provide to a person responsible for the burial of a body written notice describing the duties and procedures of the state medical examiner and the department under this chapter. The notice must explain, in a form and language that is designed to be easy to understand, the availability of
    1. an option to release the body after examination and autopsy to a location other than a mortuary without a recommendation or stated preference to do otherwise;
    2. the department’s coverage of costs associated with the examination or autopsy, transportation of the body, and necessary cosmetology as provided under (a) of this section;
    3. clothing and a casket required under (b) of this section;
    4. transportation to the community closest to where the death occurred or to another location;
    5. a burial-transit permit as provided under AS 18.50.250 ; and
    6. a death certificate as provided under AS 18.50.230 .
  7. A person is “unable to pay” under this section if the person
    1. is eligible for assistance under AS 47.25.120 — 47.25.300 ; or
    2. is otherwise unable to provide clothing and a casket for the deceased.

History. (§ 1 ch 58 SLA 1984; am § 6 ch 103 SLA 1996; am §§ 1, 2 ch 96 SLA 2014)

Revisor’s notes. —

Subsections (e) and (f) were enacted as (f) and (g) and relettered in 2014, at which time existing subsection (e) was relettered as (g).

Administrative Code. —

For cost of post-mortem examinations, autopsies, embalming and related services, see 7 AAC 35, art. 2.

Effect of amendments. —

The 2014 amendment, effective October 15, 2014, in (a), in the introductory language, added “consistent with this section” at the end of the first sentence, in (a)(2), substituted “requested location shall” for “requested location may” and substituted “costs that would otherwise have been paid by the department for” for “costs of”, in (a)(3), inserted “, if embalming is”; added (f) [now (e)] and (g) [now (f)].

Collateral references. —

Civil liability in conjunction with autopsy. 97 ALR5th 419.

Secs. 12.65.030 — 12.65.090. Coroners duties and powers. [Repealed, § 18 ch 103 SLA 1996. For current law, see AS 09.55.062 — 09.55.069.]

Sec. 12.65.100. Unclaimed bodies.

When a person dies and no person appears to claim the body for burial, and no provision is made for the body under AS 13.52, the Department of Health and Social Services, upon notification, shall request a court order authorizing the body to be plainly and decently buried or cremated and the remains decently interred. A judicial officer shall issue the requested order upon the sworn testimony or statement of a representative of the Department of Health and Social Services that a person has not appeared to claim the body for burial and provision is not made for the body under AS 13.52.

History. (§ 10.10 ch 34 SLA 1962; am § 2 ch 131 SLA 1970; am § 6 ch 104 SLA 1971; am § 1 ch 20 SLA 1973; am § 9 ch 107 SLA 1982; am § 7 ch 103 SLA 1996; am § 2 ch 83 SLA 2004)

Effect of amendments. —

The 2004 amendment, effective January 1, 2005, twice substituted “AS 13.52” for “AS 13.50.”

Sec. 12.65.105. Release of property to temporary custodian.

A person having possession of tangible personal property of a decedent may release the property to a temporary custodian willing to take custody of and preserve the property pending the appointment of a personal representative or other transfer under AS 13.16. Upon execution of an affidavit that meets the requirements of court rules adopted to implement this section, the person delivering possession of the property is discharged from further obligation as though the person had dealt with the personal representative of the estate, and the temporary custodian is answerable and accountable for the property to any personal representative of the estate or to another person having a superior right.

History. (§ 8 ch 103 SLA 1996)

Cross references. —

For court rule on temporary property custodians, see Rule 9.1, Alaska Rules of Probate Procedure.

Sec. 12.65.110. Inventory and disposition of property.

If a body is unclaimed as described in AS 12.65.100 and money or other property belonging to the deceased is found, the public administrator shall inventory it and take it into possession for disposition under AS 13.16.

History. (§ 10.11 ch 34 SLA 1962; am § 3 ch 24 SLA 1966; am § 10 ch 107 SLA 1982; am § 9 ch 103 SLA 1996)

Article 2. Child Fatality Review Teams.

Sec. 12.65.120. State child fatality review team.

  1. The state child fatality review team is established in the Department of Health and Social Services to assist the state medical examiner. The team is composed of
    1. the following persons, or that person’s designee:
      1. the state medical examiner;
      2. a state prosecutor with experience in homicide prosecutions, appointed by the attorney general;
      3. an investigator with the state troopers who has experience in conducting investigations of homicide, child abuse, or child neglect, appointed by the commissioner of public safety;
      4. a social worker with the Department of Health and Social Services who has experience in conducting investigations of child abuse and neglect, appointed by the commissioner of health and social services;
    2. the following persons, or that person’s designee, appointed by the commissioner of health and social services:
      1. a physician licensed under AS 08.64 who
        1. specializes in neonatology or perinatology; or
        2. is certified by the American Board of Pediatrics;
      2. a municipal law enforcement officer with experience in conducting investigations of homicide, child abuse, or child neglect;
      3. other persons, including educators, whose experience and expertise would, as determined by the commissioner of health and social services, contribute to the effectiveness of the team.
  2. A team member is not eligible to receive compensation from the state for service on the team. A member appointed under (a)(2) of this section
    1. is eligible for travel expenses and per diem from the Department of Health and Social Services under AS 39.20.180 ; and
    2. serves at the pleasure of the commissioner of health and social services.
  3. In addition to the persons specified in (a) of this section, the team may invite a person to participate as a member of the team if the person has expertise that would be helpful to the team in a review of a specific death. A person participating under this subsection is eligible only for travel expenses and per diem from the Department of Health and Social Services under AS 39.20.180 .
  4. The state medical examiner serves as chair of the team.

History. (§ 10 ch 99 SLA 1998)

Sec. 12.65.130. State child fatality review team duties.

  1. The state child fatality review team shall
    1. assist the state medical examiner in determining the cause and manner of the deaths in this state of children under 18 years of age;
    2. unless the child’s death is currently being investigated by a law enforcement agency, review a report of a death of a child within 48 hours of the report being received by the medical examiner if
      1. the death is of a child under 10 years of age;
      2. the deceased child, a sibling, or a member of the deceased child’s household
        1. is in the legal or physical custody of the state under AS 47 or under similar custody of another state or political subdivision of a state; or
        2. has been the subject of a report of harm under AS 47.17 or a child abuse or neglect investigation by the Department of Health and Social Services or by a similar child protective service in this or another state;
      3. a protective order issued, filed, or recognized under AS 18.66.100 , 18.66.110 , or 18.66.140 has been in effect during the previous year in which the petitioner or respondent was a member of the deceased child’s immediate family or household; or
      4. the child’s death occurred in a mental health institution, mental health treatment facility, foster home, or other residential or child care facility, including a day care facility;
    3. review records concerning
      1. abuse or neglect of the deceased child or another child in the deceased child’s household;
      2. the criminal history or juvenile delinquency of a person who may have caused the death of the child and of persons in the deceased child’s household; and
      3. a history of domestic violence involving a person who may have caused the death of the child or involving persons in the deceased child’s household, including records in the central registry of protective orders under AS 18.65.540 ;
    4. if insufficient information exists to adequately determine the cause and manner of death, recommend to the state medical examiner that additional information be obtained under AS 12.65.020 ; and
    5. if a local, regional, or district child fatality review team has not been appointed under AS 12.65.015 or is not available, be available to provide recommendations, suggestions, and advice to state or municipal law enforcement or social service agencies in the investigation of deaths of children.
  2. The state child fatality review team may
    1. collect data and analyze and interpret information regarding deaths of children in this state;
    2. develop state and local data bases on deaths of children in this state;
    3. develop a model protocol for the investigation of deaths of children; and
    4. periodically issue reports to the public containing statistical data and other information that does not violate federal or state law concerning confidentiality of the children and their families involved in the reviews; these reports may include
      1. identification of trends, patterns, and risk factors in deaths of the children;
      2. analyses of the incidence and causes of deaths of children in this state;
      3. recommendations for improving the coordination of government services and investigations; and
      4. recommendations for prevention of future deaths of children.

History. (§ 10 ch 99 SLA 1998; am § 15 ch 13 SLA 2017)

Effect of amendments. —

The 2017 amendment, effective September 17, 2017, in (a)(2)(c), inserted “issued, filed, or recognized” following “a protective order” and “, or 18.66.140” preceding “has been in effect”, and made related changes.

Sec. 12.65.140. Records; information; meetings; confidentiality; immunity.

  1. The state child fatality review team and its members shall have access to all information and records to which the state medical examiner has access under this chapter. The state child fatality review team and its members shall maintain the confidentiality of information and records concerning deaths under review, except when disclosures may be necessary to enable the team to carry out its duties under this chapter. However, the team and its members may not disclose a record that is confidential under federal or state law.
  2. Except for public reports issued by the team, records and other information collected by the team or a member of the team related to duties under this chapter are confidential and not subject to public disclosure under AS 40.25.100 — 40.25.295 (Alaska Public Records Act).
  3. Meetings of the state child fatality review team are closed to the public and are not subject to the provisions of AS 44.62.310 — 44.62.319 (Open Meetings Act).
  4. The determinations, conclusions, and recommendations of the state child fatality review team, or its members, are not admissible in a civil or criminal proceeding. Members may not be compelled to disclose their determinations, conclusions, recommendations, discussions, or thought processes through discovery or testimony in any civil or criminal proceeding. Records and information collected by the state child fatality review team are not subject to discovery or subpoena in connection with a civil or criminal proceeding.
  5. Notwithstanding (d) of this section, the state medical examiner may testify in a civil or criminal proceeding even though the death was reviewed by the state child fatality review team under AS 12.65.130 and information received from the review formed a basis of the state medical examiner’s testimony.
  6. A person who is a member or an employee of, or who furnishes services to or advises, the state child fatality review team is not liable for damages or other relief in an action brought by reason of the performance of a duty, a function, or an activity of the review team.

History. (§ 10 ch 99 SLA 1998; am § 9 ch 58 SLA 2010)

Revisor’s notes. —

In 2000, “AS 40.25.100 — 40.25.220 ” was substituted for “AS 09.25.100 — 09.25.220 ” to reflect the 2000 renumbering of AS 09.25.100 — 09.25.220 .

In 2010, “AS 44.62.310 — 44.62.319 (Open Meetings Act)” was substituted for “AS 44.62.310 and 44.62.312 ” in accordance with § 29(1), ch. 58, SLA 2010.

Effect of amendments. —

The 2010 amendment, effective June 10, 2010, in (b), substituted “AS 40.25.100 — 40.25.295 ” for “AS 40.25.100 — 40.25.220 ”.

Chapter 70. Uniform Criminal Extradition Act.

Notes to Decisions

Cited in

Conway v. State, 707 P.2d 930 (Alaska Ct. App. 1985).

Collateral references. —

31A Am. Jur. 2d, Extradition, § 1 et seq.

35 C.J.S., Extradition, § 1 et seq.

Sec. 12.70.010. Fugitives from other states and duty of governor.

Subject to the provisions of this chapter, the provisions of the constitution of the United States controlling, and any and all acts of Congress enacted in pursuance thereof, it is the duty of the governor of this state to have arrested and delivered up to the executive authority of another state a person charged in that state with treason, felony, or other crime, who has fled from justice and is found in this state.

History. (§ 11.02 ch 34 SLA 1962)

Notes to Decisions

State of Alaska recognizes federal supremacy in area of extradition in this section. Montague v. Smedley, 557 P.2d 774 (Alaska 1976).

State-enacted extradition laws are ancillary to federal law. —

While state-enacted extradition laws are not limited solely to the scope of the federal legislation, they are ancillary and must be consistent with the federal law. Montague v. Smedley, 557 P.2d 774 (Alaska 1976).

This section is not to be read as limitation on right of extradition by the state. Moser v. Zaborac, 514 P.2d 12 (Alaska 1973).

“Fugitive from justice” defined. —

Within the meaning of constitutional and statutory provisions governing interstate extradition, a “fugitive from justice” may be defined as a person who, having committed or been charged with a crime in one state, has left its jurisdiction and is found within the territory of another when it is sought to subject him to the criminal process of the former state. Brown v. State, 518 P.2d 770 (Alaska 1974).

Cited in

Marrone v. State, 458 P.2d 736 (Alaska 1969).

Collateral references. —

Necessity that demanding state show probable cause to arrest fugitive in extradition proceedings. 90 ALR3d 1085.

Sec. 12.70.020. Form of demand.

  1. No demand for the extradition of a person accused but not yet convicted of a crime in another state shall be recognized by the governor of this state unless made in writing and containing the following:
    1. an allegation that the accused was present in the demanding state at the time of the commission of the alleged crime and that thereafter the accused fled the demanding state; except that this allegation may not be required in a proceeding based on AS 12.70.050 ;
    2. a copy of an indictment found or an information supported by affidavit in the state having jurisdiction of the crime or by a copy of a complaint, affidavit, or other equivalent accusation made before a magistrate there; the indictment, information, or complaint, affidavit, or other equivalent accusation must substantially charge the person demanded with having committed a crime under the law of that state, and the copy must be authenticated by the executive authority making the demand.
  2. No demand for the extradition of a person convicted of a crime in another state shall be recognized by the governor of this state unless made in writing and containing the following:
    1. a statement by the executive authority of the demanding state that the person claimed has escaped from confinement or has broken the terms of bail, probation, or parole;
    2. a copy of the judgment of conviction or of a sentence imposed in execution thereof; the copy must be authenticated by the executive authority making the demand.

History. (§ 11.03 ch 34 SLA 1962)

Notes to Decisions

Federal statute governing extradition among the states is 18 U.S.C. § 3182. Montague v. Smedley, 557 P.2d 774 (Alaska 1976).

Purpose of this section is to require that the demanding state assure the asylum state that the person sought is still under sentence by the former state and, therefore, is subject to a demand for extradition by that state. Smedley v. Holt, 541 P.2d 17 (Alaska 1975).

Subsection (a) only applies before conviction. Wortham v. State, 519 P.2d 797 (Alaska 1974).

Paragraph (a)(1) does not require a finding of probable cause; it requires only an “allegation” that the accused is a fugitive from justice. Evans v. State, 820 P.2d 1098 (Alaska Ct. App. 1991).

Judicial determination of probable cause is necessary prerequisite to extradition. Montague v. Smedley, 557 P.2d 774 (Alaska 1976).

Where there is no probable cause established as before a grand jury, the complaint and supporting papers of the demanding state must establish probable cause before extradition from Alaska will be permitted. Montague v. Smedley, 557 P.2d 774 (Alaska 1976).

The 4th amendment forbade Alaska as an asylum state to render up a prisoner absent a showing of probable cause to believe that he had committed a crime in the demanding state. Warmbo v. State, 578 P.2d 582 (Alaska 1978).

Persons subjected to extradition proceedings are protected by certain constitutional rights which assure that the extradition power is not applied against them in an oppressive or arbitrary manner. Wortham v. State, 519 P.2d 797 (Alaska 1974); Montague v. Smedley, 557 P.2d 774 (Alaska 1976); Warmbo v. State, 578 P.2d 582 (Alaska 1978).

But probable cause requirements for rendering up alleged parole violator are less stringent than the requirements for extraditing one who has only been charged with and not convicted of a crime. Wortham v. State, 519 P.2d 797 (Alaska 1974); Montague v. Smedley, 557 P.2d 774 (Alaska 1976).

Extradition proceedings in asylum state must be stayed if defendant is mentally incapable of understanding the proceedings and aiding his counsel. This follows from the statutory right to the assistance of counsel in extradition proceedings in the asylum state, as well as by analogy to the due process prohibition against trial of a person mentally incapable of understanding or assisting in his defense. Warmbo v. State, 578 P.2d 582 (Alaska 1978).

Documentation types are independent of each other. —

The three types of supporting documentation required by paragraph (a)(2) are independent of each other, each sufficient to support extradition. Evans v. State, 820 P.2d 1098 (Alaska Ct. App. 1991).

The requirement that an affidavit be executed before a magistrate applies only to the third type of supporting documentation. This requirement does not apply to the affidavit supporting an information filed by a public prosecutor. Evans v. State, 820 P.2d 1098 (Alaska Ct. App. 1991).

Affidavit to be made before magistrate. Both 18 U.S.C. § 3182 and subsection (a)(2) of this section require that the affidavit in support of an extradition arrest must be made before a magistrate. Montague v. Smedley, 557 P.2d 774 (Alaska 1976).

Affidavit made before notary public is thus insufficient to authorize the issuance of a requisition. Montague v. Smedley, 557 P.2d 774 (Alaska 1976).

Affidavit supporting information. —

In a drug case, extradition was sufficiently supported where an affidavit of probable cause was sworn to before a notary public; because the three methods for supporting an extradition request are specified disjunctively in paragraph (a)(2) of this section, an affidavit that supports an information does not have to be sworn to before a magistrate. Swarner v. State, 118 P.3d 24 (Alaska Ct. App. 2005).

Affidavit not authenticated by governor of demanding state is inadmissible in asylum state. —

Since both 18 U.S.C. § 3182 and subsection (a)(2) of this section require that the affidavit in support of an extradition arrest must be authenticated by the governor of the demanding state, an affidavit, information or indictment not certified by the executive of the demanding state to the executive of the asylum state as authentic is inadmissible in the asylum state. Montague v. Smedley, 557 P.2d 774 (Alaska 1976).

Summary of sentence data is not “a copy of ... a sentence imposed in execution” of judgment of conviction called for by this section and is subject to possible inaccuracies occurring in its preparation. Smedley v. Holt, 541 P.2d 17 (Alaska 1975).

Examination of affidavits not necessary where indictment included. —

When the requisition papers include an indictment sufficient on its face, an examination of the accompanying affidavits is not necessary to determine whether the essential elements of a crime have been pleaded. Brown v. State, 518 P.2d 770 (Alaska 1974).

This section is analogous in this respect to its federal counterpart, 18 U.S.C. § 3182, which has been interpreted as not requiring the presentation of both an affidavit and an indictment to commence interstate rendition proceedings. Brown v. State, 518 P.2d 770 (Alaska 1974).

Documents providing sufficient basis for issuance of governor’s warrant. —

Where accompanying the request for extradition to the governor of Alaska were certified documents including two sworn criminal complaints, two informations, a certified commitment to state prison, fingerprint cards and photographs, a certification of the California authorities as to the length of prison term, a certification of parole by the California authorities and a certification of parole revocation by the California authorities together with an agreement of parole signed by appellant, such documents clearly provided sufficient basis for issuance of the Alaska governor’s warrant under subsection (b). Wortham v. State, 519 P.2d 797 (Alaska 1974).

That Virginia filed a detainer pursuant to AS 33.35.010 , but later dismissed the charge of escape against defendant, did not affect the validity of Virginia’s later extradition request which included a copy of the sentence imposed for the defendant’s Virginia felony charges, a statement that he failed to complete the sentences because he escaped, and a copy of the arrest warrant based on the escape charge. Kelly v. State, 803 P.2d 876 (Alaska Ct. App. 1990).

Presumption created by issuance of warrant. —

Once the governor of the asylum state (in this case, Alaska) issues an extradition warrant, a presumption is created that the accused was present in the demanding state when the alleged crime was committed. The accused can contest extradition by claiming that he was not present in the demanding state at the time of the crime, but a bare assertion of this claim is not enough to defeat extradition. The accused has the burden of establishing this fact. Evans v. State, 820 P.2d 1098 (Alaska Ct. App. 1991).

Quoted in

Perry v. State, 429 P.2d 249 (Alaska 1967).

Sec. 12.70.030. Investigation of demand and report.

When a demand is made upon the governor of this state by the executive authority of another state for a surrender of a person charged with crime, the governor shall investigate the demand.

History. (§ 11.04 ch 34 SLA 1962)

Notes to Decisions

Governor’s investigation is confined to determining adequacy of documents forwarded to him, not to investigating the commission of the crime. Brown v. State, 518 P.2d 770 (Alaska 1974).

And is matter of executive discretion. —

The supreme court has held that investigation under this section is a matter of executive discretion. Warmbo v. State, 578 P.2d 582 (Alaska 1978).

State courts will not interfere with exercise of governor’s discretionary function under this section. Brown v. State, 518 P.2d 770 (Alaska 1974).

Defendant was subject to jurisdiction of Alaska although, through misunderstanding or bureaucratic error, he was returned to Alaska before the judge in the asylum state was able to determine his claims under the law of the asylum state. Warmbo v. State, 578 P.2d 582 (Alaska 1978).

Quoted in

Perry v. State, 429 P.2d 249 (Alaska 1967).

Collateral references. —

Necessity that demanding state show probable cause to arrest fugitive in extradition proceedings. 90 ALR3d 1085.

Sec. 12.70.040. Extradition of persons imprisoned or awaiting trial in another state or who have left the demanding state under compulsion.

  1. When it is desired to have returned to this state a person charged in this state with a crime, and that person is imprisoned or is held under criminal proceedings then pending against that person in another state, the governor of this state may agree with the executive authority of the other state for the extradition of that person before the conclusion of the proceedings or the term of sentence in the other state, upon condition that the person be returned to the other state at the expense of this state as soon as the prosecution in this state is terminated.
  2. The governor of this state may also surrender on demand of the executive authority of another state a person in this state who is charged in the manner provided in AS 12.70.220 with having violated the laws of the state whose executive authority is making the demand, even though that person left the demanding state involuntarily.

History. (§ 11.05 ch 34 SLA 1962)

Notes to Decisions

Matter of making request for and issuance of extradition requisition by the governor of Alaska is a discretionary executive function and will not be interfered with by the courts. Marrone v. State, 458 P.2d 736 (Alaska 1969), cert. denied, 397 U.S. 967, 90 S. Ct. 1005, 25 L. Ed. 2d 260 (U.S. 1970).

Sec. 12.70.050. Extradition of person not present in demanding state at time of commission of crime.

The governor of this state may also surrender, on demand of the executive authority of another state, a person in this state charged in the other state in the manner provided in AS 12.70.020 with committing an act in this state, or a third state, intentionally resulting in a crime in the state whose executive authority is making the demand, and the provisions of this chapter not otherwise inconsistent shall apply to those cases, even though the accused was not in that state at the time of the commission of the crime and has not fled from that state.

History. (§ 11.06 ch 34 SLA 1962)

Notes to Decisions

Persons extraditable under section. —

This section permits extradition to a demanding state, at the discretion of the governor, of a person whose acts were committed in a third state and intentionally resulted in a crime in the demanding state. Moser v. Zaborac, 514 P.2d 12 (Alaska 1973).

Quoted in

Marrone v. State, 458 P.2d 736 (Alaska 1969).

Sec. 12.70.060. Issue of governor’s warrant of arrest.

If the governor decides that the demand should be complied with, the governor shall sign a warrant of arrest, which shall be sealed with the state seal, and be directed to a peace officer or other person whom the governor may think fit to entrust with the execution of the warrant. The warrant must substantially recite the facts necessary to the validity of its issuance.

History. (§ 11.07 ch 34 SLA 1962)

Notes to Decisions

Variance held slight. —

Where the governor’s warrant stated that the person was wanted in California for the crime of robbery when in fact his return was sought for a parole violation in connection with a previous robbery conviction, the variance was slight, since the warrant of arrest substantially recited the facts necessary to support the validity of its issuance. Griggs v. State, 481 P.2d 388 (Alaska), cert. denied, 404 U.S. 946, 92 S. Ct. 302, 30 L. Ed. 2d 263 (U.S. 1971).

Quoted in

Perry v. State, 429 P.2d 249 (Alaska 1967); Marrone v. State, 458 P.2d 736 (Alaska 1969).

Cited in

Warmbo v. State, 578 P.2d 582 (Alaska 1978); Ford v. Moses, 606 P.2d 795 (Alaska 1980).

Sec. 12.70.070. Manner and place of execution of the warrant of arrest.

The warrant shall authorize the peace officer or other person to whom directed to arrest the accused at any time and any place where the accused may be found within the state and to command the aid of all peace officers or other persons in the execution of the warrant, and to deliver the accused, subject to the provisions of this chapter, to the duly authorized agent of the demanding state.

History. (§ 11.08 ch 34 SLA 1962)

Notes to Decisions

Quoted in

Wilson v. State, 127 P.3d 826 (Alaska 2006).

Sec. 12.70.080. Authority of arresting officer to command assistance.

Every officer or other person empowered to make the arrest has the same authority in arresting the accused to command assistance therein as peace officers have by law in the execution of a criminal process directed to them, with like penalties against those who refuse their assistance.

History. (§ 11.09 ch 34 SLA 1962)

Sec. 12.70.090. Rights of accused person and application for writ of habeas corpus.

A person arrested on a warrant may not be delivered over to the agent who the executive authority demanding the person has appointed to receive the person unless the person is first taken immediately before a judge or magistrate of this state, who shall inform the person of the demand made for the person’s surrender, and of the crime with which the person is charged, and that the person has the right to demand and procure legal counsel. If the prisoner or the prisoner’s counsel states a desire to test the legality of the arrest, the judge or magistrate shall fix a reasonable time to be allowed the prisoner within which to apply for a writ of habeas corpus. When that writ is applied for, notice of the application and of the time and place of hearing on it shall be given to the prosecuting attorney of the judicial district in which the arrest is made and in which the accused is in custody, and to the agent of the demanding state.

History. (§ 11.10 ch 34 SLA 1962; am § 3 ch 24 SLA 1966; am § 1 ch 12 SLA 1986)

Notes to Decisions

Express rights under section. —

A person arrested in Alaska upon an extradition warrant, before being delivered to the agent of the demanding state, has the express right to test the legality of the arrest in a court of this state by way of habeas corpus, and the further right “to demand and procure legal counsel.” Kostic v. Smedley, 522 P.2d 535 (Alaska 1974).

A person has an express right to test the validity of his extradition. Montague v. Smedley, 557 P.2d 774 (Alaska 1976).

Proceedings considered criminal in nature. —

Habeas corpus has traditionally been considered as a civil proceeding. But where a possible deprivation of one’s liberty is involved, as it is in an extradition matter, habeas corpus proceedings in relation to extradition will be considered criminal in nature. Kostic v. Smedley, 522 P.2d 535 (Alaska 1974).

Objects of habeas corpus-extradition proceedings are to assure that the extradition power is not exerted against the individual in an oppressive or arbitrary manner and that due process of law has been fulfilled. Ford v. Moses, 606 P.2d 795 (Alaska 1980).

But this does not bring into play all rules and safeguards that apply to primary criminal proceeding. Ford v. Moses, 606 P.2d 795 (Alaska 1980).

Scope of inquiry is limited. —

The courts have traditionally held that in a habeas corpus-extradition matter the scope of inquiry is limited to the issues of (1) whether a crime has been charged in the demanding state, (2) whether the person in custody and seeking habeas corpus is the one charged with such crime, (3) whether such person is a fugitive from justice, and (4) whether the supporting documents from the governor of the demanding state are of proper form and content. Kostic v. Smedley, 522 P.2d 535 (Alaska 1974); Montague v. Smedley, 557 P.2d 774 (Alaska 1976).

The inquiry in habeas corpus-extradition proceedings is limited in scope. Ford v. Moses, 606 P.2d 795 (Alaska 1980).

Due process standard applied. —

The same standard of due process applied in criminal trials is applied in habeas corpus-extradition proceedings. Kostic v. Smedley, 522 P.2d 535 (Alaska 1974).

Fugitive must have sufficient mental competency to understand proceedings. —

In order to give meaning to the alleged fugitive’s right to bring a habeas corpus action to test the legality of his arrest, and to give meaning to his right to demand and procure legal counsel, it is essential to due process that such person has sufficient mental competency to understand the proceedings and to consult with and assist his counsel in such proceedings. Kostic v. Smedley, 522 P.2d 535 (Alaska 1974).

Extradition proceedings in the asylum state must be stayed if the defendant is mentally incapable of understanding the proceedings and aiding his counsel. This follows from the statutory right to the assistance of counsel in extradition proceedings in the asylum state, as well as by analogy to the due process prohibition against trial of a person mentally incapable of understanding or assisting in his defense. Warmbo v. State, 578 P.2d 582 (Alaska 1978).

Court having jurisdiction of crime to determine mental competency. —

It is no obstacle to extradition that the accused was insane at the time of the commission of the alleged crime in the demanding state, or that he is presently so mentally incompetent as not to be able to assist his counsel in defending against prosecution for that crime. These issues are to be determined by the court having jurisdiction of the crime, and not by the courts of the state from which extradition is sought. Kostic v. Smedley, 522 P.2d 535 (Alaska 1974).

Court should make express determination as to incompetency. —

The court should make an express determination of whether a fugitive, as a result of mental disease, lacks the ability to aid his counsel and comprehend the nature of the habeas corpus-extradition proceedings with a reasonable degree of rational understanding. Kostic v. Smedley, 522 P.2d 535 (Alaska 1974).

If incompetency is found to exist, matter of extradition must be stayed until such time as competency has been restored. Kostic v. Smedley, 522 P.2d 535 (Alaska 1974).

Pleading as to identity. —

A person bringing a habeas corpus action to resist an order for extradition cannot merely allege that the state has failed to establish his identity as the person sought by the demanding state, but must affirmatively plead that he is not the person named in the extradition warrant. Ford v. Moses, 606 P.2d 795 (Alaska 1980).

Collateral references. —

39 Am. Jur. 2d, Habeas Corpus, § 26 et seq.

39 C.J.S., Habeas Corpus, § 1 et seq.

Determination, in extradition proceedings, or on habeas corpus in such proceedings, whether a crime is charged. 40 ALR2d 1151.

Necessity and sufficiency of identification of accused as the person charged, to warrant extradition. 93 A.L.R.2d 912.

Right of prisoner held under extradition warrant to raise question of identity in habeas corpus proceeding. 93 ALR2d 916.

Discharge on habeas corpus of one held in extradition proceedings as precluding subsequent extradition proceedings. 33 ALR3d 1443.

Right of extraditee to bail after issuance of governor’s warrant and pending final disposition of habeas corpus claim. 13 ALR5th 118.

Allowance of bail in international extradition proceedings, 60 ALR Fed. 2d 203.

Sec. 12.70.100. Penalty for noncompliance with AS 12.70.090.

An officer or other person who delivers to the agent for extradition of the demanding state a person in custody under the governor’s warrant, in wilful disobedience to AS 12.70.090 , is guilty of a misdemeanor and, on conviction, is punishable by a fine of not more than $1,000, or by imprisonment for not more than six months, or by both.

History. (§ 11.11 ch 34 SLA 1962)

Sec. 12.70.110. Confinement in jail when necessary.

  1. The officer or persons executing the governor’s warrant of arrest, or the agent of the demanding state to whom the prisoner may have been delivered may, when necessary, confine the prisoner in a jail in a political subdivision, judicial district, or city of this state through which the officer or person may pass.  The keeper of the jail shall receive and safely keep the prisoner until the officer or person having charge of the prisoner is ready to proceed.  The officer or person is chargeable with the expense of keeping.
  2. The officer or agent of a demanding state to whom a prisoner may have been delivered following extradition proceedings in another state, or to whom a prisoner may have been delivered after waiving extradition in the other state, and who is passing through this state with a prisoner for the purpose of immediately returning that prisoner to the demanding state may, when necessary, confine the prisoner in a jail in a political subdivision, judicial district, or city of this state through which the officer or agent may pass.  The keeper of the jail shall receive and safely keep the prisoner until the officer or agent having charge of the prisoner is ready to proceed.  The officer or agent is chargeable with the expense of keeping.  The officer or agent shall produce and show to the keeper of the jail satisfactory written evidence of the fact that the officer or agent is actually transporting the prisoner to the demanding state after a requisition by the executive authority of the demanding state.  The prisoner shall not be entitled to demand a new requisition while in this state.

History. (§ 11.12 ch 34 SLA 1962)

Sec. 12.70.120. Arrest prior to requisition.

When a person within this state is charged on the oath of a credible person before a judge or magistrate of this state with the commission of a crime in another state and, except in cases arising under AS 12.70.050 , with having fled from justice, or with having been convicted of a crime in that state and having escaped from confinement, or having broken the terms of bail, probation, or parole; or whenever complaint is made before a judge or magistrate in this state setting out on the affidavit of a credible person in another state that a crime has been committed in the other state and that the accused has been charged in that state with the commission of the crime and, except in cases arising under AS 12.70.050 , has fled from justice, or with having been convicted of a crime in that state and having escaped from confinement, or having broken the terms of bail, probation, or parole and is believed to be in this state, the judge or magistrate shall issue a warrant directed to a peace officer commanding the officer to apprehend the person named in the warrant, wherever that person may be found in this state, and to bring that person before the same or another judge or magistrate who is available in or convenient of access to the place where the arrest may be made, to answer the charge or complaint and affidavit. A certified copy of the sworn charge or complaint or affidavit upon which the warrant is issued shall be attached to the warrant.

History. (§ 11.13 ch 34 SLA 1962; am § 3 ch 24 SLA 1966; am § 2 ch 12 SLA 1986)

Notes to Decisions

Cited in

Ford v. Moses, 606 P.2d 795 (Alaska 1980).

Collateral references. —

Necessity that demanding state show probable cause to arrest fugitive in extradition proceedings. 90 ALR3d 1085.

Sec. 12.70.130. Arrest without warrant.

The arrest of a person may also be lawfully made by a peace officer or a private person without a warrant upon reasonable information that the accused stands charged in the courts of another state with a crime punishable by death or imprisonment for a term exceeding one year, but when arrested the accused must be taken before a judge or magistrate without unnecessary delay and, in any event, within 24 hours after arrest, absent compelling circumstances, including Sundays and holidays, and complaint shall be made against the accused under oath setting out the ground for the arrest as in AS 12.70.120 . Thereafter the answer of the accused shall be heard as if the accused had been arrested on a warrant.

History. (§ 11.14 ch 34 SLA 1962; am § 3 ch 24 SLA 1966; am § 3 ch 12 SLA 1986; am § 19 ch 20 SLA 2011; am § 98 ch 36 SLA 2016; am § 86 ch 4 FSSLA 2019)

Effect of amendments. —

The 2011 amendment, effective July 1, 2011, substituted “within 48 hours of arrest” for “within 24 hours of arrest”.

The 2016 amendment, effective January 1, 2018, substituted “24 hours” for “48 hours”; inserted “absent compelling circumstances,” preceding “including Sundays and holidays,”; added the second sentence.

The 2019 amendment, effective July 9, 2019, deleted the former second sentence, which read, “The hearing before the judge or magistrate may not take place more than 48 hours after arrest.”

Editor's notes. —

Section 28(a), ch. 20, SLA 2011, provides that the 2011 amendment to this section applies “to arrests for offenses committed before, on, or after July 1, 2011.”

Section 142(a), ch. 4, FSSLA 2019, provides that the 2019 amendments of this section apply “to offenses committed on or after July 9, 2019.”

Notes to Decisions

Quoted in

Levick v. Smedley, 553 P.2d 482 (Alaska 1976).

Collateral references. —

5 Am. Jur. 2d, Arrest, § 30 et seq.

6A C.J.S., Arrest, § 1 et seq.

Sec. 12.70.140. Commitment to await requisition.

If at the examination before the judge or magistrate it appears that the person held is the person charged with having committed the crime alleged and, except in cases arising under AS 12.70.050 , that the person has fled from justice, the judge or magistrate shall commit the person to jail for not more than 30 days, as will enable the arrest of the accused to be made under a warrant of the governor on a requisition of the executive authority of the state having jurisdiction of the offense, unless the accused gives bail as provided in AS 12.70.150 , or until legally discharged. The commitment by the judge or magistrate shall be by a warrant that shall recite the following:

  1. the accusation against the accused;
  2. the fact that the commitment is for a time as will enable the arrest of the accused to be made under a warrant of the governor of this state; and
  3. that in any event the commitment shall be for not more than 30 days.

History. (§ 11.15 ch 34 SLA 1962; am § 3 ch 24 SLA 1966; am § 4 ch 12 SLA 1986)

Notes to Decisions

Construction of this section and AS 12.70.160 . —

This section and AS 12.70.160 allow the state to commit a fugitive to jail for up to 90 days pending the issuance of a governor’s warrant for extradition; once the statutory time has expired, the detainee is entitled to be released from custody, but the statutes do not preclude extradition. Laverty v. State, 963 P.2d 1076 (Alaska Ct. App. 1998).

Where governor’s warrant issued after petitioner detained beyond 30-day period. —

The fact that petitioner may have been detained for several days beyond the 30-day commitment period authorized by this section, prior to issuance of the governor’s warrant, did not entitle him to be released on a writ of habeas corpus. Once the governor’s warrant was filed, issues relating to any delay in consummating the extradition proceedings became moot. Levick v. Smedley, 553 P.2d 482 (Alaska 1976).

Collateral references. —

6A C.J.S., Arrest, §§ 58-61

22 C.J.S., Criminal Law, § 453 et seq.

Sec. 12.70.150. Bail.

Unless the offense with which the prisoner is charged is shown to be an offense punishable by death under the laws of the state in which it was committed, a judge or magistrate in this state shall admit the prisoner to bail by bond or undertaking, with sufficient sureties, and in a sum the judge or magistrate considers proper, conditioned upon the prisoner’s appearance before the judge or magistrate at a time specified in the bond or undertaking and for the prisoner’s surrender, to be arrested on the warrant of the governor of this state.

History. (§ 11.16 ch 34 SLA 1962; am § 3 ch 24 SLA 1966; am § 5 ch 12 SLA 1986)

Sec. 12.70.160. Extension of time of commitment.

If the accused is not arrested under warrant of the governor by the expiration of the time specified in the warrant, bond, or undertaking, a judge or magistrate may discharge the accused or may recommit the accused for a further period of not more than 60 days, or a judge or magistrate may again take bail for the appearance and surrender of the accused, as provided in AS 12.70.150 , but within a period of not more than 60 days after the date of the new bond or undertaking.

History. (§ 11.17 ch 34 SLA 1962; am § 3 ch 24 SLA 1966; am § 6 ch 12 SLA 1986)

Notes to Decisions

Construction of this section and AS 12.70.140 . —

This section and AS 12.70.140 allow the state to commit a fugitive to jail for up to 90 days pending the issuance of a governor’s warrant for extradition; once the statutory time has expired, the detainee is entitled to be released from custody, but the statutes do not preclude extradition. Laverty v. State, 963 P.2d 1076 (Alaska Ct. App. 1998).

Quoted in

Levick v. Smedley, 553 P.2d 482 (Alaska 1976).

Sec. 12.70.170. Forfeiture of bail.

If the prisoner is admitted to bail and fails to appear and surrender according to the conditions of the bond or undertaking, the judge or magistrate, by proper order, shall declare the bond or undertaking forfeited, and order the immediate arrest of the prisoner if the prisoner is within this state. Recovery may be had on the bond or undertaking in the name of the state as in the case of other bonds or undertakings given by the accused in criminal proceedings within this state.

History. (§ 11.18 ch 34 SLA 1962; am § 3 ch 24 SLA 1966; am § 7 ch 12 SLA 1986)

Sec. 12.70.180. Persons under criminal prosecution in this state at time of requisition.

If a criminal prosecution has been instituted against the person under the laws of this state and is still pending, the governor has discretion to surrender that person on demand of the executive authority of another state or hold that person until tried and discharged, or convicted and punished in this state.

History. (§ 11.19 ch 34 SLA 1962)

Notes to Decisions

Quoted in

Marrone v. State, 458 P.2d 736 (Alaska 1969).

Sec. 12.70.190. Inquiry into guilt or innocence of accused.

The guilt or innocence of the accused as to the crime of which the accused is charged may not be inquired into by the governor in any proceeding after the demand for extradition, accompanied by a charge of crime in legal form as provided in this chapter, has been presented to the governor, except as it may be involved in identifying the person held as the person charged with the crime.

History. (§ 11.20 ch 34 SLA 1962)

Notes to Decisions

Quoted in

Perry v. State, 429 P.2d 249 (Alaska 1967).

Sec. 12.70.200. Governor’s warrant.

The governor may recall the warrant of arrest or may issue another warrant whenever the governor deems proper.

History. (§ 11.21 ch 34 SLA 1962)

Notes to Decisions

Quoted in

Marrone v. State, 458 P.2d 736 (Alaska 1969).

Sec. 12.70.210. Fugitives from this state.

When the governor of this state demands a person charged with crime or with escaping from confinement or breaking the terms of bail, probation, or parole in this state from the executive authority of any other state, or from a judge of the District Court of the United States for the District of Columbia authorized to receive the demand under the laws of the United States, the governor shall issue a warrant under the seal of this state to an agent, commanding the agent to receive the person so charged if delivered to the agent and convey that person to the proper officer of the judicial district in this state in which the offense was committed.

History. (§ 11.22 ch 34 SLA 1962)

Notes to Decisions

Defendant was subject to jurisdiction of Alaska although, through misunderstanding or bureaucratic error, he was returned to Alaska before the judge in the asylum state was able to determine his claims under the law of the asylum state. Warmbo v. State, 578 P.2d 582 (Alaska 1978).

Cited in

Marrone v. State, 458 P.2d 736 (Alaska 1969).

Sec. 12.70.220. Application for issuance of requisition.

  1. When the return to this state of a person charged with a crime in this state is required, the prosecuting attorney of the judicial district in which the offense is committed, or the attorney general, shall present to the governor a written application for a requisition for the return of the person charged.  In the application there shall be stated the name of the person so charged, the crime charged, the approximate time, place, and circumstances of its commission, the state in which the accused is believed to be, including the location of the accused therein at the time the application is made, and certifying that in the opinion of the said prosecuting attorney or the attorney general, the ends of justice require the arrest and return of the accused to this state for trial, and that the proceeding is not instituted to enforce a private claim.
  2. When the return to this state is required of a person who has been convicted of a crime in this state and has escaped from confinement or broken the terms of the person’s bail, probation, or parole, the prosecuting attorney of the judicial district in which the offense was committed, or the attorney general, the parole or probation authority having jurisdiction over the person, or the commissioner of corrections shall present to the governor a written application for a requisition for the return of that person.  In the application there shall be stated the name of the person, the crime for which the person was convicted, the circumstances of the escape from confinement or of the breach of the terms of bail, probation, or parole, and the state in which the person is believed to be, including the location of the person therein at the time the application is made.
  3. The application shall be verified by affidavit, shall be executed in duplicate and shall be accompanied by two certified copies of the indictment returned, or information and affidavit filed, or the complaint made to the judge or magistrate, stating the offense with which the accused is charged, or of the judgment of conviction or of the sentence. The attorney general or the prosecuting attorney, the parole or probation authority, or the commissioner of corrections may also attach further affidavits and other documents in duplicate to be submitted with the application. One copy of the application, with the action of the governor indicated by endorsement on the application, and one of the certified copies of the indictment, complaint, information and affidavits, or judgment or conviction or sentence shall be filed in the office of the governor to remain of record in that office. The other copies of all papers shall be forwarded with the governor’s requisition.

History. (§ 11.23 ch 34 SLA 1962; am § 3 ch 24 SLA 1966; am § 6 ch 104 SLA 1971; am E.O. No. 55, §§ 10, 11 (1984); am § 8 ch 12 SLA 1986)

Notes to Decisions

Officials authorized to present application for requisition. —

Under this section the only officials of the state of Alaska who are authorized to present an application for a requisition for the return of a person are the prosecuting attorney of the judicial district in which the offense was committed, the commissioner of health and social services (now the commissioner of corrections), the attorney general, or the parole or probation authority having jurisdiction over him. No authority is granted to any court or judicial officer thereof to request a requisition for a person’s return. Marrone v. State, 458 P.2d 736 (Alaska 1969), cert. denied, 397 U.S. 967, 90 S. Ct. 1005, 25 L. Ed. 2d 260 (U.S. 1970).

Defendant was subject to jurisdiction of Alaska although, through misunderstanding or bureaucratic error, he was returned to Alaska before the judge in the asylum state was able to determine his claims under the law of the asylum state. Warmbo v. State, 578 P.2d 582 (Alaska 1978).

Sec. 12.70.230. Immunity from service of process in certain civil actions.

A person brought into this state by or after waiver of extradition based on a criminal charge shall not be subject to service of personal process in civil actions arising out of the same facts as the criminal proceeding for which the person is being or has been returned, until the person has been convicted in the criminal proceedings, or, if acquitted, until the person has reasonable opportunity to return to the state from which extradited.

History. (§ 11.24 ch 34 SLA 1962)

Collateral references. —

Immunity of extradited person from service of process. 20 ALR2d 172.

Sec. 12.70.240. Written waiver of extradition proceedings.

  1. A person arrested in this state charged with having committed a crime in another state or alleged to have escaped from confinement, or broken the terms of bail, probation, or parole may waive the issuance and service of the warrant provided for in AS 12.70.060 and 12.70.070 and all other procedure incidental to extradition proceedings, by executing or subscribing in the presence of a judge or magistrate within this state a writing that states that the person consents to return to the demanding state; however, before the waiver is executed or subscribed by that person, the judge or magistrate shall inform that person of the right to the issuance and service of a warrant of extradition and of the right to apply for a writ of habeas corpus as provided for in AS 12.70.090 .
  2. If and when that consent is executed, it shall immediately be forwarded to the office of the governor of this state and filed therein.  The judge or magistrate shall direct the officer having the person in custody to deliver immediately that person to the duly accredited agent of the demanding state, and shall deliver or cause to be delivered to the agent a copy of the consent.
  3. Nothing in this section is considered to limit the rights of the accused person to return voluntarily and without formality to the demanding state, nor shall this waiver procedure be considered to be an exclusive procedure or to limit the powers, rights, or duties of the officers of the demanding state or of this state.

History. (§ 11.25 ch 34 SLA 1962; am § 3 ch 24 SLA 1966; am § 9 ch 12 SLA 1986)

Sec. 12.70.250. Nonwaiver by this state.

Nothing in this chapter is considered to constitute a waiver by this state of its right, power, or privilege to try the demanded person for crime committed within this state, or of its right, power, or privilege to regain custody of that person by extradition proceedings or otherwise for the purpose of trial, sentence, or punishment for a crime committed within this state, nor shall a proceeding had under these sections which results in, or fails to result in, extradition be deemed a waiver by this state of any of its rights, privileges, or jurisdiction in any way whatsoever.

History. (§ 11.26 ch 34 SLA 1962)

Sec. 12.70.260. No immunity from other criminal prosecutions while in this state.

After a person has been brought back to this state through extradition proceedings, or after waiver of extradition proceedings by that person, that person may be tried in this state for other crimes which the person may be charged with having committed here as well as that specified in the requisition for extradition.

History. (§ 11.27 ch 34 SLA 1962)

Sec. 12.70.270. Interpretation.

The provisions of this chapter shall be so interpreted and construed as to effectuate the general purposes to make uniform the law of those states that enact it.

History. (§ 11.28 ch 34 SLA 1962)

Sec. 12.70.280. Definitions.

In this chapter,

  1. “executive authority” includes the governor and a person performing the functions of governor in a state other than this state;
  2. “governor” includes
    1. a person performing the functions of governor by authority of the law of this state; and
    2. the lieutenant governor or the head of a principal department in the executive branch appointed by the governor to act on behalf of the governor in performing extradition duties under this chapter; the appointment shall be in writing and filed with the lieutenant governor;
  3. “state,” referring to a state other than this state, includes another state or possession of the United States.

History. (§ 11.01 ch 34 SLA 1962; am § 25 ch 75 SLA 2008)

Sec. 12.70.290. Short title.

This chapter may be cited as the Uniform Criminal Extradition Act.

History. (§ 11.29 ch 34 SLA 1962)

Notes to Decisions

Cited in

Marrone v. State, 458 P.2d 736 (Alaska 1969).

Chapter 72. Post-Conviction Relief Procedures for Persons Convicted of Criminal Offenses.

Cross references. —

For court rules on post conviction relief, see Rules 35 — 35.2, Alaska Rules of Criminal Procedure.

Sec. 12.72.010. Scope of post-conviction relief.

A person who has been convicted of, or sentenced for, a crime may institute a proceeding for post-conviction relief if the person claims

  1. that the conviction or the sentence was in violation of the Constitution of the United States or the constitution or laws of this state;
  2. that the court was without jurisdiction to impose sentence;
  3. that a prior conviction has been set aside and the prior conviction was used as a statutorily required enhancement of the sentence imposed;
  4. that there exists evidence of material facts, not previously presented and heard by the court, that requires vacation of the conviction or sentence in the interest of justice; if the person seeks post-conviction DNA testing to support a claim under this paragraph, the person’s exclusive method for obtaining that testing is an application under AS 12.73;
  5. that the person’s sentence has expired, or the person’s probation, parole, or conditional release has been unlawfully revoked, or the person is otherwise unlawfully held in custody or other restraint;
  6. that the conviction or sentence is otherwise subject to collateral attack upon any ground or alleged error previously available under the common law, statutory law, or other writ, motion, petition, proceeding, or remedy;
  7. that
    1. there has been a significant change in law, whether substantive or procedural, applied in the process leading to the person’s conviction or sentence;
    2. the change in the law was not reasonably foreseeable by a judge or a competent attorney;
    3. it is appropriate to retroactively apply the change in law because the change requires observance of procedures without which the likelihood of an accurate conviction is seriously diminished; and
    4. the failure to retroactively apply the change in law would result in a fundamental miscarriage of justice, which is established by demonstrating that, had the changed law been in effect at the time of the applicant’s trial, a reasonable trier of fact would have a reasonable doubt as to the guilt of the applicant;
  8. that, after the imposition of sentence, the applicant seeks to withdraw a plea of guilty or nolo contendere in order to correct manifest injustice under the Alaska Rules of Criminal Procedure; or
  9. that the applicant was not afforded effective assistance of counsel at trial or on direct appeal.

History. (§ 9 ch 79 SLA 1995; am § 4 ch 20 SLA 2010)

Effect of amendments. —

The 2010 amendment, effective July 1, 2010, in (4), added “if the person seeks post-conviction DNA testing to support a claim under this paragraph, the person’s exclusive method for obtaining that testing is an application under AS 12.73;”.

Notes to Decisions

Construction. —

Because petitioner’s application did not claim that the underlying judgment was void, his claim that the superior court suspended the writ of habeas corpus by applying Alaska Civ. R. 86(m) and directing him to refile his complaint as an application for post-conviction relief under Alaska Crim. R. 35.1, was without merit. Hertz v. State, 8 P.3d 1144 (Alaska Ct. App. 2000).

Newly discovered evidence. —

Petitioner's claim of newly discovered evidence failed; he did not address the superior court's findings regarding the testimony, nor did he explain why the court's findings might be erroneous. Considering the superior court's findings regarding the credibility of the witnesses' testimony, and the lack of probative value of another witness's testimony, and the superior court's overall assessment of whether this newly discovered evidence would result in a different verdict, the superior court did not abuse its discretion in denying relief. Grossman v. State, — P.3d — (Alaska Ct. App. July 8, 2020) (memorandum decision).

Defendant failed to set out a prima facie case of newly discovered evidence for post-conviction relief because defendant did not raise a claim of involuntariness due to medical conditions until defendant's motion for reconsideration following the denial of post-conviction relief. Moreover, defendant never contended that the evidence was actually new as defendant made no assertion that the evidence could not have been discovered earlier through the exercise of due diligence and stated that the medical conditions were known prior to trial. Hayden v. State, — P.3d — (Alaska Ct. App. Apr. 22, 2020).

Defendant's post-conviction request for a new trial based on newly discovered evidence was properly denied because a witness's recantations of his testimony made while under duress did not have the same indicia of reliability as his sworn statements during the trial and the deposition; and substantial circumstantial evidence supported the witness's testimony at trial that defendant had participated in the robberies because defendant matched the description of one of the suspects that the robbery victims had given to the police; his car matched the victims' description of a car used by one of the suspects; and, when the police attempted to pull defendant over the day after the robberies, he fled on foot following a high-speed car chase. Geisler v. State, — P.3d — (Alaska Ct. App. July 28, 2021).

Prima facie case. —

Defendant established a prima facie case that he did not understand the nature of the fourth-degree assault charge when he pled guilty where the court did not take affirmative steps to ensure that he understood the nature of the charge, ask whether he had read the complaint, independently advise him of the elements of the offense, or clarify his statement that his plea was not voluntary. Moreover, in summarizing the factual basis for the plea, the court's description was misleading as it did not clarify that the victim's fear of imminent physical injury had to be reasonable and that defendant must have acted in reckless disregard of this fear. Marlin v. State, — P.3d — (Alaska Ct. App. June 3, 2020) (memorandum decision).

Dismissing a claim that defendant did not understand the fourth-degree assault charge before pleading guilty was not error where the assertions in the police affidavit provided at least a reasonable factual basis that the victim was in fear of imminent physical injury. Marlin v. State, — P.3d — (Alaska Ct. App. June 3, 2020) (memorandum decision).

Remand was appropriate when defendant’s application for post-conviction relief was dismissed as untimely because the superior court was to address whether defendant pleaded sufficient facts to establish a prima facie claim that defendant suffered from a mental disease or defect that precluded defendant from timely filing defendant’s application for relief. under AS 12.72.020(b)(1) . Rak v. State, — P.3d — (Alaska Ct. App. Dec. 8, 2021).

Quoted in

DA's Office v. Osborne, 557 U.S. 52, 129 S. Ct. 2308, 174 L. Ed. 2d 38 (U.S. 2009).

Stated in

Barry H. v. State, 404 P.3d 1231 (Alaska 2017).

Cited in

Grinols v. State, 10 P.3d 600 (Alaska Ct. App. 2000); Geisinger v. State, 334 P.3d 1241 (Alaska Ct. App. 2014); Hall v. State, 446 P.3d 373 (Alaska Ct. App. 2019); Powell v. State, 460 P.3d 787 (Alaska Ct. App. 2020).

Collateral references. —

Validity, construction, and application of state statutes and rules governing requests for postconviction DNA testing, 72 ALR6th 227.

Sec. 12.72.020. Limitations on applications for post-conviction relief.

  1. A claim may not be brought under AS 12.72.010 or the Alaska Rules of Criminal Procedure if
    1. the claim is based on the admission or exclusion of evidence at trial or on the ground that the sentence is excessive;
    2. the claim was, or could have been but was not, raised in a direct appeal from the proceeding that resulted in the conviction;
    3. the later of the following dates has passed, except that if the applicant claims that the sentence was illegal there is no time limit on the claim:
      1. if the claim relates to a conviction, 18 months after the entry of the judgment of the conviction or, if the conviction was appealed, one year after the court’s decision is final under the Alaska Rules of Appellate Procedure;
      2. if the claim relates to a court revocation of probation, 18 months after the entry of the court order revoking probation or, if the order revoking probation was appealed, one year after the court’s decision is final under the Alaska Rules of Appellate Procedure;
    4. one year or more has elapsed from the final administrative decision of the Board of Parole or the Department of Corrections that is being collaterally attacked;
    5. the claim was decided on its merits or on procedural grounds in any previous proceeding; or
    6. a previous application for post-conviction relief has been filed under this chapter or under the Alaska Rules of Criminal Procedure.
  2. Notwithstanding (a)(3) and (4) of this section, a court may hear a claim
    1. if the applicant establishes due diligence in presenting the claim and sets out facts supported by admissible evidence establishing that the applicant
      1. suffered from a physical disability or from a mental disease or defect that precluded the timely assertion of the claim; or
      2. was physically prevented by an agent of the state from filing a timely claim;
    2. based on newly discovered evidence if the applicant establishes due diligence in presenting the claim and sets out facts supported by evidence that is admissible and
      1. was not known within
        1. 18 months after entry of the judgment of conviction if the claim relates to a conviction;
        2. 18 months after entry of a court order revoking probation if the claim relates to a court’s revocation of probation; or
        3. one year after an administrative decision of the Board of Parole or the Department of Corrections is final if the claim relates to the administrative decision;
      2. is not cumulative to the evidence presented at trial;
      3. is not impeachment evidence; and
      4. establishes by clear and convincing evidence that the applicant is innocent.
  3. Notwithstanding (a)(6) of this section, a court may hear a claim based on a final administrative decision of the Board of Parole or the Department of Corrections if
    1. the claim was not and could not have been challenged in a previous application for post-conviction relief filed under this chapter or under the Alaska Rules of Criminal Procedure; and
    2. a previous application for post-conviction relief relating to the administrative decision has not been filed under this chapter or under the Alaska Rules of Criminal Procedure.
  4. The court may not consider a substantive claim in an application brought under AS 12.72.010 or the Alaska Rules of Criminal Procedure until the court has first determined that
    1. the application is timely; and
    2. except for an application described in AS 12.72.025 or allowed under (c) of this section, no previous application has been filed.

History. (§ 9 ch 79 SLA 1995; am §§ 26 — 28 ch 75 SLA 2008)

Cross references. —

For the effect of the 2008 amendment of (a) and (b) of this section and enactment of (d) of this section on Rule 35.1, Alaska Rules of Criminal Procedure, see § 42, ch. 75, SLA 2008, in the 2008 Temporary and Special Acts.

Notes to Decisions

Constitutionality. —

The due process clause of the Alaska Constitution requires a limited exception to the ban on successive petitions for post-conviction relief codified in paragraph (a)(6). Defendants must be allowed to show that, despite their earlier petition for post-conviction relief, they were deprived of a fair opportunity to litigate their claims because they did not receive competent legal representation during the litigation of their first petition. Grinols v. State, 10 P.3d 600 (Alaska Ct. App. 2000), aff'd in part, 74 P.3d 889 (Alaska 2003).

Government’s interest in requiring timely litigation of post-conviction claims, and defendant’s extended opportunity to pursue his claim, outweigh the minimal risk that he suffered a wrongful conviction; defendant did not establish that the statute of limitations violated his right to due process of law. Xavier v. State, 278 P.3d 902 (Alaska Ct. App. 2012).

Due process requirements in consideration of post-conviction DNA evidentiary claims. —

Due process clause of the Alaska Constitution may require some avenue of relief where a constitutional violation could have resulted in the conviction of one who is innocent. Even though defendant’s claim of innocence is apparently barred by subsection (b)(2), it can be argued that the due process clause requires disregard of the wording of the statute and allows defendant to pursue his claim, as long as there is some chance that he could prove himself innocent by clear and convincing evidence. Osborne v. State, — P.3d — (Alaska Ct. App. Feb. 11, 2005), op. withdrawn, superseded, — P.3d — (Alaska Ct. App. 2005), sub. op., 110 P.3d 986 (Alaska Ct. App. 2005).

Defendant who seeks post-conviction DNA testing must, at a minimum, meet the three-part test endorsed by the state courts; that is, the defendant must show that the conviction rested primarily on eyewitness identification evidence, that there was a demonstrable doubt concerning the defendant’s identification as the perpetrator, and that scientific testing would likely be conclusive on the issue. Osborne v. State, — P.3d — (Alaska Ct. App. Feb. 11, 2005), op. withdrawn, superseded, — P.3d — (Alaska Ct. App. 2005), sub. op., 110 P.3d 986 (Alaska Ct. App. 2005).

When an indigent defendant’s first petition for post-conviction relief is challenged as time-barred under this section, defendant has a constitutional right to the assistance of counsel when responding to that challenge. Holden v. State, 172 P.3d 815 (Alaska Ct. App. 2007).

Court of appeals erroneously applied pre-conviction standards in finding that a state inmate had a due process right to access to evidence the state used to obtain a conviction for kidnapping, assault, and sexual assault. The issue of post-conviction access to DNA evidence is best left to Congress and state legislatures, and there was nothing inadequate about the procedures Alaska provided to the inmate. DA's Office v. Osborne, 557 U.S. 52, 129 S. Ct. 2308, 174 L. Ed. 2d 38 (U.S. 2009).

Parolee’s claim that post-conviction relief counsel was ineffective did not bar application of res judicata in his action seeking an order lifting the conditions on his parole because any argument regarding ineffective assistance of counsel should have been brought in a subsequent post-conviction relief proceeding; allowing the parolee to bring his claim as part of a separate civil suit would allow him to circumvent the protections the State received under the post-conviction relief statutes. Hertz v. Schmidt, — P.3d — (Alaska Dec. 23, 2015) (memorandum decision).

Prima facie case.

superior court erred in summarily dismissing defendant's application for post-conviction relief as untimely because the court records created a genuine issue of material fact as to whether defendant was suffering from a mental disease or defect prior to being involuntarily medicated, and he established a sufficient nexus between his mental disease and his lack of filing to overcome the State's motion to dismiss and to warrant an evidentiary hearing on the timeliness of his application. Stansberry v. State, — P.3d — (Alaska Ct. App. Apr. 7, 2021) (memorandum decision).

Delay caused by agent of state. —

Defendant’s argument, that the judge erred by rejecting his claim under subparagraph (b)(1)(B) that he was prevented from filing his claim because the prison law library was not updated, was disallowed where defendant did not allege that any agent of the state actively prevented him from filing his petition. Flanigan v. State, 3 P.3d 372 (Alaska Ct. App. 2000).

Late claim denied because subparagraph (b)(1)(B) requires proof that agents of the state “physically prevented” a defendant from filing a timely petition, and, although defendant claimed that he lacked access to a current copy of the Alaska statutes, he did not claim that government agents intentionally withheld the Alaska statutes or intentionally make them difficult to find. Flanigan v. State, 3 P.3d 372 (Alaska Ct. App. 2000).

Issues not raised on direct appeal. —

Prisoner’s argument that the prosecutor acted improperly by introducing evidence that the two shooting victims were unarmed was waived because the prisoner did not present this argument to the superior court in his second petition for post-conviction relief, and also because a defendant is prohibited from seeking post-conviction relief based on a claim that could have been raised on direct appeal. Hall v. State, — P.3d — (Alaska Ct. App. Nov. 21, 2012) (memorandum decision).

Petitioner was entitled to litigate his claims of judicial bias and the appearance of judicial bias in his postconviction relief action where there were conflicting affidavits regarding the nature of an ex parte contact, and the conflicting affidavits required both supplementation of the record and an evidentiary hearing, neither of which would have been available to petitioner on direct appeal. Haeg v. State, — P.3d — (Alaska Ct. App. Dec. 21, 2016) (memorandum decision).

Postconviction relief was not warranted where it was sought based on evidentiary rulings because this was not a viable issue; moreover, this and several other claims were barred because they either were raised or could have been raised in a direct appeal of the convictions. Wyatt v. State, 393 P.3d 442 (Alaska Ct. App. 2017).

Because this was petitioner's second petition for post-conviction relief, she was legally barred under AS 12.72.020(a)(6) from attacking the competence of her trial attorneys directly, as such was a claim that could have been raised in that earlier petition. Welton v. State, — P.3d — (Alaska Ct. App. Dec. 6, 2017) (memorandum decision).

Failure to state prima facie case. —

Although defendant raised a triable issue of fact as to whether his application for postconviction relief should have been accepted as timely, the timeliness issue was moot in light of the fact that the application failed to state a prima facie case for relief. Bailey v. State, — P.3d — (Alaska Ct. App. June 19, 2013) (memorandum decision).

Defendant’s new evidence, which consisted of telephone records and photographs he found in a box of personal belongings that had been in the safekeeping of a friend while he was serving his sentence, was not sufficient to lead to the conclusion that he was innocent of the underlying criminal offense, and thus, the superior court did not err in failing to hold an evidentiary hearing or appoint an attorney for defendant. Pomeroy v. State, — P.3d — (Alaska Ct. App. Mar. 18, 2015) (memorandum decision).

Superior court properly dismissed defendant's petition for post-conviction relief as untimely because, although defendant provided the superior court with documentation to support his claim that he suffered from mental difficulties, he failed to present a prima facie case that his mental difficulties made it impossible for him to pursue post-conviction relief any earlier, and his litigation of an illegal sentence claim in 2007 undercut his assertion that he was mentally unable to file a petition for post-conviction relief during that same period. Andrews v. State, — P.3d — (Alaska Ct. App. Feb. 24, 2016) (memorandum decision).

Newly discovered evidence. —

Defendant's application for post-conviction relief arguing that he was entitled to a new trial based on newly discovered evidence was properly dismissed as his brother's recantation did not undermine the State's case in a new or significant way because it failed to rise above mere impeachment evidence; the conspiracy charges for which defendant was convicted did not rest exclusively on the credibility of the accomplice's trial testimony; the State introduced evidence of the accomplice's recorded confession to a jailhouse informant that he had accepted $10,000 to lure the brother's girlfriend to the murder site so defendant could kill her; and phone records further corroborated the accomplice's claim that a conspiracy existed. Seaman v. State, — P.3d — (Alaska Ct. App. Oct. 12, 2016) (memorandum decision).

Due process precluded application of the statutory bar on successive petitions when a defendant was raising a post-conviction relief claim based on newly discovered evidence of innocence that was not previously available to the defendant. Because it was not clear whether defendant's claim for post-conviction relief qualified as newly discovered evidence of innocence, a remand for litigation of the question was required following the summary dismissal of defendant's successive petition for post-conviction relief. Hall v. State, 446 P.3d 373 (Alaska Ct. App. 2019).

Claim procedurally barred. —

Superior court properly denied defendant's postconviction motion because his claim under v. Washington, 542 U.S. 296 (2004), was procedurally barred by the doctrine of res judicata as well as by statute, which prohibited defendants from seeking post-conviction relief based on a claim that was decided on its merits or on procedural grounds in any previous proceeding where he had previously litigated the question of whether his sentence was illegal under Blakely in an earlier litigation and subsequently abandoned his appeal of the issue. Yatchmenoff v. State, — P.3d — (Alaska Ct. App. July 5, 2017) (memorandum decision).

Defendant's petition for post-conviction relief was denied because defendant failed to prove the factual bases of his claims to withdraw his pleas after judgment had been imposed, and he was statutorily barred from seeking post-conviction relief based on a claim that was decided on its merits in a previous proceeding. Vandergriff v. State, — P.3d — (Alaska Ct. App. Apr. 18, 2018) (memorandum decision).

Rule 60 claim dismissed. —

Petitioner had notice when the State moved to dismiss his post-conviction relief application as untimely, and he had the opportunity to be heard on that issue; the judgment was not void for lack of due process, and the superior court's dismissal of petitioner's claim under Alaska R. Civ. P. 60(b)(4) was affirmed. Powell v. State, 460 P.3d 787 (Alaska Ct. App. 2020).

Timeliness. —

The relevant event for purposes of deciding whether a petition for post-conviction relief is filed in a timely manner is the filing of the petition itself, even if the prisoner fails to accompany the petition with either a filing fee or an application for reduced fee. Mullin v. State, 996 P.2d 737 (Alaska Ct. App. 2000).

Where an attorney’s certificate pursuant to Alaska Rule of Criminal Procedure 35.1(e)(2) did not state why the inmate did not have an arguable defense to the two-year limitations period codified in subsection (a)(3)(A), the certificate should not have been accepted, and the post-conviction petition should not have been dismissed. One v. State, 127 P.3d 853 (Alaska Ct. App. 2006).

From a resisting arrest case, the superior court properly dismissed a petition for post-conviction relief where the petitioner presented no evidence that he had a valid excuse for failing to file his petition within the limitation period in subsection (b)(1)(B). Prentzel v. State, — P.3d — (Alaska Ct. App. May 13, 2009) (memorandum decision).

Petitioner filed his post-conviction petition over a year after the appeal from his weapons offense conviction was final. The petition was denied under the provisions of AS 12.72.020(a)(3)(A) ; however, the record reflected a possible reason to toll the normal period of limitation, and the petition for post-conviction relief was not “untimely” for purposes of paragraph (c)(1) of this section until that claim was resolved against the petitioner. Alex v. State, 210 P.3d 1225 (Alaska Ct. App. 2009).

Application for post-conviction relief was untimely under (a)(3)(A) because the one-year statute of limitations was not extended by appellant inmate’s filing of a motion under Alaska R. Crim. P. 35(a) claiming his sentence was illegal while a petition for hearing on the direct appeal from his conviction was pending. Cleveland v. State, 241 P.3d 504 (Alaska Ct. App.), amended, — P.3d — (Alaska Ct. App. 2010).

When appellant was convicted of first degree murder in 1993, his conviction became final in 1999; appellant’s second application for post-conviction relief filed in 2007 was barred by the statute of limitations set forth in (a)(3)(A). Appellant was not entitled to relief based on newly discovered evidence that discredited an FBI agent’s testimony about the comparison of bullet fragments taken from the victim’s body because there was substantial evidence to support appellant’s conviction; appellant did not present new evidence showing there was another perpetrator, establish an alibi, or otherwise prove his innocence. Newby v. State, — P.3d — (Alaska Ct. App. Aug. 18, 2010) (memorandum decision).

Defendant’s third petition for post-conviction relief was properly dismissed because it was too late for defendant to argue that trial counsel was ineffective for not raising the issue of newly discovered evidence. The claim could have been raised in defendant’s first petition for post-conviction relief. Grinols v. State, — P.3d — (Alaska Ct. App. Feb. 9, 2011) (memorandum decision).

Defendant’s petition for post-conviction relief in a murder case was time-barred; even if the superior court could have relaxed the statute of limitations based on alleged incompetent advice of counsel, defendant’s attorney correctly advised him that he could not obtain relief as to evidentiary rulings and claims raised on direct appeal. Noyakuk v. State, — P.3d — (Alaska Ct. App. July 27, 2011) (memorandum decision).

Superior court’s failure to recognize and apply the doctrine of equitable tolling was not plain error where, under Alaska R. Crim. P. 35(a), defendant had no justification for failing to raise his ineffective assistance of counsel claim within the two years allowed; defendant did not adequately establish his own diligence in pursuing the new claims, and the single aggravating factor was sufficient to establish the sentencing court’s authority to impose an aggravated sentence as part of the negotiated plea bargain. Donovan v. State, — P.3d — (Alaska Ct. App. June 1, 2011) (memorandum decision).

By withdrawing an appeal, the defendant relinquished his right to challenge any errors that the superior court might have committed during the litigation leading up to the dismissal of his first petition for post-conviction relief. Defendant could not use post-conviction relief as a method for raising claims that could have been raised on direct appeal. Pomeroy v. State, 258 P.3d 125 (Alaska Ct. App. 2011).

Defendant’s application for post-conviction relief was time-barred because it was filed years outside the statute of limitations and defendant could have raised the claim in his first application; there was no support for defendant’s claim that the state waived jurisdiction over him when it sent him to Arizona or that he was entitled to release from prison as a result. Harmon v. State, — P.3d — (Alaska Ct. App. May 2, 2012) (memorandum decision).

Application for post-conviction relief was properly dismissed as untimely. Although the prisoner was convicted before the limitation period for filing post conviction relief requests was reduced from two years to 18 months, the prisoner had several months to file his claim after the amended law came into effect. The retrospective application of the limitation period was specified in the amending legislation, and did not constitute violation of due process under Alaska law. Demientieff v. State, — P.3d — (Alaska Ct. App. Nov. 27, 2013) (memorandum decision).

Because the post-conviction relief application was filed approximately seven months after the appellate court’s decision of defendant’s sentence appeal became final, it was timely under AS 12.72.020 , and the superior court erred in granting the State’s motion to dismiss. Geisinger v. State, 334 P.3d 1241 (Alaska Ct. App. 2014).

In a driving under the influence case, an application for post-conviction relief seeking to withdraw a guilty plea based on newly discovered evidence was properly dismissed as untimely because the applicant was unaffected by accuracy problems where he refused to take a breath test. Gatei v. State, — P.3d — (Alaska Ct. App. Apr. 15, 2015) (memorandum decision).

Even assuming that defendants could seek relief from the statute of limitations codified in AS 12.72.020(a)(3) by showing that they did not understand the prejudicial error in their attorney's advice until after the normal limitation period expired, the defendants would have to show that they were diligent in their efforts to evaluate their attorney's advice. Ambris v. State, — P.3d — (Alaska Ct. App. Oct. 3, 2018) (memorandum decision).

Superior court erred in dismissing defendant's petition for post-conviction relief as time-barred because defendant was denied his right to counsel on the question of whether his petition was timely inasmuch as defendant's attorney was mistaken when he asserted that he lacked the authority to investigate and litigate the timeliness of defendant's petition for post-conviction relief unless he was separately appointed, and instead of ordering the attorney to investigate and litigate the question of whether defendant might have an excuse for his late filing, the court proceeded to issue a ruling on the merits of the timeliness issue. Conway v. State, — P.3d — (Alaska Ct. App. Mar. 6, 2019) (memorandum decision).

Defendant's post-conviction relief application was properly dismissed as untimely because, while defendant dealt with significant mental impediments, defendant did not show by clear and convincing evidence the impediments caused a 10-year delay in filing defendant's application or clearly explain the significant delay between dismissal of a prior application and filing the current application. Ballot v. State, — P.3d — (Alaska Ct. App. June 5, 2019) (memorandum decision).

Defendant's application for post-conviction relief was untimely filed because the superior court's factual finding that defendant did not earlier file a purported application for post-conviction relief and that defendant instead pursued other avenues for relief was not clearly erroneous. In light of this finding, the superior court did not err in concluding that defendant failed to establish that defendant acted with due diligence and thus failed to show that defendant's application was timely filed. Yatchmenoff v. State, — P.3d — (Alaska Ct. App. Jan. 27, 2021) (memorandum decision).

Superior court properly dismissed defendant's applications for post-conviction relief as time-barred because, even assuming that the statutory changes in the law constituted an exception to the limitations period and that the limitations period began to run on the effective date of the amended statutes, defendant's underlying legal claim had no arguable merit since she was not facing resentencing after a remand or for any other reason, nor was she facing a probation revocation or the imposition of suspended time on either case. Nelson v. State, — P.3d — (Alaska Ct. App. Mar. 31, 2021).

Trial court did not err in failing to hold an evidentiary hearing and dismissing appellant's application for post-conviction relief as untimely because appellant did not present specific facts that could explain or excuse his more than eighteen-year delay in seeking post-conviction relief; appellant did not tie the circumstances of his confinement to any coherent theory of equitable tolling. Collins v. State, — P.3d — (Alaska Ct. App. Feb. 10, 2021).

Remand was appropriate when defendant’s application for post-conviction relief was dismissed as untimely because the superior court was to address whether defendant pleaded sufficient facts to establish a prima facie claim that defendant suffered from a mental disease or defect that precluded defendant from timely filing defendant’s application for relief. under AS 12.72.020(b)(1) . Rak v. State, — P.3d — (Alaska Ct. App. Dec. 8, 2021).

Superior court properly dismissed defendant’s application for post-conviction relief as untimely because, despite being on notice of his trial attorney’s alleged incompetence by the time of the entry of the judgment in his underlying criminal case, he was not diligent in taking any action, he waived his due process claim by failing to secure a ruling from the superior court, and, despite his purported mental disease or defect that may have affected his communications with his attorneys, defendant was able to understand legal proceedings and manage his legal affairs prior to the post-conviction relief filing deadline. Powell v. Alaska, — P.3d — (Alaska Ct. App. Sept. 22, 2021).

Jurisdiction distinguished by nature of claim. —

Where a trial court denied an inmate’s application for post-conviction relief based on allegations of improper equipment and safety features in prison and retaliation for the filing of the application, under subsection (c) of this section, the court of appeals did not have jurisdiction because such claims were not proper basis for post-conviction relief; only the state supreme court had jurisdiction over appeals from administrative decisions like those raised by the inmate. Hertz v. State, 81 P.3d 1011 (Alaska Ct. App. 2004).

Post-conviction DNA testing. —

Defendant who seeks post-conviction DNA testing must, at a minimum, show that the conviction rested primarily on eyewitness identification evidence, that there was a demonstrable doubt concerning the defendant’s identification as the perpetrator, and that scientific testing would likely be conclusive on this issue. Osborne v. State, — P.3d — (Alaska Ct. App. Feb. 11, 2005), op. withdrawn, superseded, — P.3d — (Alaska Ct. App. 2005), sub. op., 110 P.3d 986 (Alaska Ct. App. 2005).

Successive post-conviction relief applications. —

There is substantial evidence that the legislature intended to limit successive applications for post-conviction relief in any one case to one direct appeal and one set of post-conviction relief proceedings in the state court system and one set of post-conviction relief proceedings in the federal system. Hertz v. State, 8 P.3d 1144 (Alaska Ct. App. 2000).

Because an indigent defendant has a right to effective counsel under both Alaska Const. art. I, § 7 and subsection (c) of this section in a first application for post-conviction relief, that defendant must be given the opportunity to challenge the effectiveness of counsel in a second petition for post-conviction relief. Grinols v. State, 74 P.3d 889 (Alaska 2003).

Where, even if an applicant for post-conviction relief should be allowed to file a second application for post-conviction relief, under due process or other grounds, because a jury conducted an unauthorized experiment during its deliberations, such relief would not have changed the outcome of the case, and denial of the application was not improper. Roberts v. State, 164 P.3d 664 (Alaska Ct. App. 2007).

Following inmate’s sentence for second-degree murder and first-degree assault, the inmate applied for post-conviction relief; however, the application was barred because it was not a second application but a third application. Carroll v. State, — P.3d — (Alaska Ct. App. Aug. 20, 2008).

Where defendant was explicitly informed in writing in 2004 that his post-conviction relief application had been dismissed, but defendant did not take any steps to advance his Grinols claim providing a limited exception to the ban on successive applications for post-conviction relief until seven years later, defendant failed to establish that application of the one-year statute of limitations for a defendant pursuing a Grinols application, which did not become effective until 2007, violated his right to due process under the Alaska Constitution. Gregory v. State, — P.3d — (Alaska Ct. App. May 15, 2019) (memorandum decision).

Due process precluded application of the statutory bar on successive petitions when a defendant was raising a post-conviction relief claim based on newly discovered evidence of innocence that was not previously available to the defendant. Because it was not clear whether defendant's claim for post-conviction relief qualified as newly discovered evidence of innocence, a remand for litigation of the question was required following the summary dismissal of defendant's successive petition for post-conviction relief. Hall v. State, 446 P.3d 373 (Alaska Ct. App. 2019).

Abuse of discretion. —

The superior court erred in dismissing a petition for post-conviction relief where the prisoner acted diligently to cure the defect in his petition upon being notified that the petition could not be processed until he either paid the required filing fee or applied for a partial exemption from that fee. Mullin v. State, 996 P.2d 737 (Alaska Ct. App. 2000).

Defendants are generally entitled to only one petition for post-conviction relief, and the superior court should normally not dismiss a petition simply because a defendant is a difficult or unreasonable litigant. Linton v. State, 27 P.3d 782 (Alaska Ct. App. 2001).

Applied in

Thompson v. State, 13 P.3d 276 (Alaska Ct. App. 2000).

Stated in

Griffin v. State, 18 P.3d 71 (Alaska Ct. App. 2001); Mooney v. State, 167 P.3d 81 (Alaska Ct. App. 2007); Powell v. Alaska, — P.3d — (Alaska Ct. App. Sept. 22, 2021).

Cited in

Brockway v. State, 37 P.3d 427 (Alaska Ct. App. 2001); Lord v. State, 489 P.3d 374 (Alaska Ct. App. 2021); Nelson v. State, — P.3d — (Alaska Ct. App. Sept. 29, 2021).

Collateral references. —

Effect of escape by, or fugitive status of, state criminal defendant on availability of appeal or other post-verdict or post-conviction relief — State cases. 105 ALR5th 529.

Validity, construction, and application of state statutes and rules governing requests for postconviction DNA testing, 72 ALR6th 227.

Sec. 12.72.025. Applications based on claim of ineffective assistance of counsel.

An application may not be brought under AS 12.72.010 or the Alaska Rules of Criminal Procedure if it is based on a claim that the assistance the applicant’s attorney provided in a prior application under AS 12.72.010 or the Alaska Rules of Criminal Procedure was ineffective, unless it is filed within one year after the court’s decision on the prior application is final under the Alaska Rules of Appellate Procedure.

History. (§ 25 ch 24 SLA 2007)

Notes to Decisions

Ineffective assistance of counsel claims. —

A defendant asserting ineffective assistance of counsel must provide the court with an affidavit from the former attorney, addressing the various claims of ineffective representation, or must explain why such an affidavit cannot be obtained (decided under former law). Tall v. State, 25 P.3d 704 (Alaska Ct. App. 2001), overruled in part, David v. State, 372 P.3d 265 (Alaska Ct. App. 2016).

Inmate’s petition for post-conviction relief from a sexual assault conviction was improperly granted where defense counsel made appropriate decisions regarding trial strategy; finding of ineffective assistance of counsel was not supported by the record. (decided under former law)State v. Savo, 108 P.3d 903 (Alaska Ct. App. 2005).

Timeliness. —

Court erred in dismissing prisoner’s second application for post-conviction relief because his first application for post-conviction relief was dismissed on February 14, 2011; no appeal was taken from that decision and he filed an application alleging ineffectiveness of counsel on August 26, 2011. Inga v. State, — P.3d — (Alaska Ct. App. Mar. 13, 2013) (memorandum decision).

Where defendant was explicitly informed in writing in 2004 that his post-conviction relief application had been dismissed, but defendant did not take any steps to advance his Grinols claim providing a limited exception to the ban on successive applications for post-conviction relief until seven years later, defendant failed to establish that application of the one-year statute of limitations for a defendant pursuing a Grinols application, which did not become effective until 2007, violated his right to due process under the Alaska Constitution. Gregory v. State, — P.3d — (Alaska Ct. App. May 15, 2019) (memorandum decision).

Quoted in

Serradell v. State, — P.3d — (Alaska Ct. App. Oct. 23, 2019).

Stated in

Hall v. State, 446 P.3d 373 (Alaska Ct. App. 2019).

Sec. 12.72.030. Filing of application for post-conviction relief.

  1. An application for post-conviction relief shall be filed with the clerk at the court location where the underlying criminal case is filed.
  2. A person who files an application for post-conviction relief under this chapter or the Alaska Rules of Criminal Procedure may not pursue discovery related to the application unless the applicant first pleads a prima facie case for relief and the court finds that a prima facie case for relief has been established under this chapter or the Alaska Rules of Criminal Procedure.

History. (§ 9 ch 79 SLA 1995; am § 5 ch 20 SLA 2010)

Effect of amendments. —

The 2010 amendment, effective July 1, 2010, added (b).

Notes to Decisions

Res judicata. —

Parolee’s claim that post-conviction relief counsel was ineffective did not bar application of res judicata in his action seeking an order lifting the conditions on his parole because any argument regarding ineffective assistance of counsel should have been brought in a subsequent post-conviction relief proceeding; allowing the parolee to bring his claim as part of a separate civil suit would allow him to circumvent the protections the State received under the post-conviction relief statutes. Hertz v. Schmidt, — P.3d — (Alaska Dec. 23, 2015) (memorandum decision).

Sec. 12.72.040. Burden of proof in post-conviction relief proceedings.

A person applying for post-conviction relief must prove all factual assertions by clear and convincing evidence.

History. (§ 9 ch 79 SLA 1995)

Notes to Decisions

Plea withdrawal. —

Defendants bore the burden of proving, by clear and convincing evidence that they were entitled to withdraw their no contest pleas to assault; nevertheless, the trial court’s findings that defendants understood the collateral consequences of their pleas were not clearly erroneous, and the finding that the possibility that they could be sued in a civil suit did not affect their decision to plead was also not clearly erroneous. The trial court did not err in denying defendants’ request to withdraw the plea. Register v. State, 71 P.3d 337 (Alaska Ct. App. 2003).

Application for postconviction relief from petitioner’s DUI conviction was denied where her private attorney’s failure to investigate destroyed security footage or advise her about a possible corpus delicti or delayed absorption defense was not ineffective assistance of counsel, and thus, she was not entitled to withdraw her guilty plea based on ineffective assistance of counsel. Ledlow v. State, — P.3d — (Alaska Ct. App. Nov. 18, 2015) (memorandum decision).

District court properly denied defendant's petition for post-conviction relief because defendant failed to prove the factual bases of his claims to withdraw his pleas after judgment had been imposed and he was statutorily barred from seeking post-conviction relief based on a claim that was decided on its merits in a previous proceeding. Vandergriff v. State, — P.3d — (Alaska Ct. App. Apr. 18, 2018) (memorandum decision).

Burden of proof not met. —

Court did not err by concluding that defendant convicted of first degree murder did not prove by clear and convincing evidence that his attorneys were ineffective by failing to communicate the State’s plea offer because, viewing the testimony in its entirety, it was reasonable to conclude that the attorneys conveyed to defendant the State’s offer to allow defendant to plead guilty to second degree murder and that defendant chose not to accept that offer. Simpson v. State, — P.3d — (Alaska Ct. App. Jan. 2, 2013) (memorandum decision).

Res judicata. —

Parolee’s claim that post-conviction relief counsel was ineffective did not bar application of res judicata in his action seeking an order lifting the conditions on his parole because any argument regarding ineffective assistance of counsel should have been brought in a subsequent post-conviction relief proceeding; allowing the parolee to bring his claim as part of a separate civil suit would allow him to circumvent the protections the State received under the post-conviction relief statutes. Hertz v. Schmidt, — P.3d — (Alaska Dec. 23, 2015) (memorandum decision).

Attorney’s certificate. —

Trial court erred in accepting attorney’s certificate under Alaska R. Crim. P. 35.1(e)(2)(C), which declared that defendant had no non-frivolous claims for post-conviction relief, because it was not proper for attorney to assess how a judge was likely to weigh defendant’s testimony on whether defendant understood key aspects of his plea agreement. Vizcarra-Medina v. State, 195 P.3d 1095 (Alaska Ct. App. 2008).

Applied in

State v. Zeciri, 43 P.3d 169 (Alaska Ct. App. 2002); Wyatt v. State, 393 P.3d 442 (Alaska Ct. App. 2017).

Stated in

Newby v. State, 967 P.2d 1008 (Alaska Ct. App. 1998).

Cited in

Olson v. State, 77 P.3d 15 (Alaska Ct. App. 2003).

Chapter 73. Post-Conviction DNA Testing Procedure.

Effective dates. —

Section 19, ch. 20, SLA 2010 makes this chapter effective July 1, 2010.

Editor’s notes. —

Section 14, ch. 20, SLA 2010, provides that the 2010 enactment of this chapter has the effect of amending Rule 35.1, Alaska Rules of Criminal Procedure, relating to post-conviction relief procedure.

Section 16(b), ch. 20, SLA 2010, provides that this chapter “applies to offenses committed before, on, or after July 1, 2010.

Sec. 12.73.010. Application for post-conviction DNA testing.

  1. A person convicted of a felony against a person under AS 11.41 who has not been unconditionally discharged may apply to the superior court for an order for DNA testing of evidence. The application must be filed in the court that entered the judgment of conviction, and a copy shall be served on the prosecuting authority responsible for obtaining the conviction.
  2. An application filed under (a) of this section must specifically identify the evidence sought to be tested and must include facts from which the court can make the findings required under AS 12.73.020 . The application must also include
    1. an affidavit by the applicant that attests to the following:
      1. the applicant did not commit the offense for which the applicant was convicted or a lesser included offense;
      2. the applicant did not solicit another person to commit, or aid or abet another person in planning or committing, that offense or a lesser included offense; and
      3. the applicant did not admit or concede guilt under oath in an official proceeding for the offense that was the basis of the conviction or a lesser included offense, except that the court, in the interest of justice, may waive this requirement; for the purposes of this subparagraph, the entry of a guilty or nolo contendere plea is not an admission or concession of guilt;
    2. an affidavit by the applicant or the applicant’s attorney stating the results of each DNA test performed on the evidence in the prosecution that resulted in the applicant’s conviction;
    3. an affidavit by the applicant or the applicant’s attorney describing all previous efforts to obtain DNA testing and any previous application filed under AS 12.72 or this section.
  3. An attorney who represents an applicant under this section shall investigate and, if possible, confirm the accuracy of information provided by the applicant under (b)(2) and (3) of this section.
  4. If an applicant is indigent, filing fees must be paid under AS 09.19, and counsel shall be appointed under AS 18.85.100 to represent the applicant.

History. (§ 6 ch 20 SLA 2010)

Notes to Decisions

Sufficiency of application. —

Denial of defendant's application for post-conviction DNA testing of blood and semen samples found at the scene of a double murder was appropriate because, given the strength of the State of Alaska's evidence in defendant's trial, defendant failed to show that the proposed DNA testing, if favorable, would have raised a reasonable probability that the outcome of trial would have been different; specifically a reasonable chance that reasonable doubt regarding defendant's guilt would have been found when none had previously existed. Lambert v. State, 435 P.3d 1011 (Alaska Ct. App. 2018).

Sec. 12.73.020. Findings required for post-conviction DNA testing orders.

The court shall order post-conviction DNA testing of specific evidence if

  1. the applicant was convicted of a felony under AS 11.41;
  2. the applicant and, if represented, the applicant’s attorney, have submitted the affidavits required by AS 12.73.010(b) ;
  3. the applicant did not admit or concede guilt under oath in an official proceeding for the offense that was the basis of the conviction or a lesser included offense, except that the court, in the interest of justice, may waive this requirement; for the purposes of this paragraph, the entry of a guilty or nolo contendere plea is not an admission or concession of guilt;
  4. the evidence either
    1. was not subjected to DNA testing; or
    2. was previously subjected to DNA testing, and
      1. the applicant is requesting DNA testing using a method or technology that is substantially more probative than the previous DNA testing; or
      2. the court determines that granting the application is in the best interest of justice;
  5. the evidence to be tested has been subject to a chain of custody and retained under conditions that ensure that the evidence has not been substituted, contaminated, or altered in any manner material to the proposed DNA testing;
  6. the proposed DNA testing is reasonable in scope, uses scientifically sound methods, and is consistent with accepted forensic practices;
  7. the applicant identifies a theory of defense that would establish the applicant’s innocence;
  8. the applicant was convicted after a trial and the identity of the perpetrator was a disputed issue in the trial;
  9. the proposed DNA testing of the specific evidence may produce new material evidence that would
    1. support the theory of defense described in (7) of this section; and
    2. raise a reasonable probability that the applicant did not commit the offense;
  10. the applicant consents to provide a DNA sample for purposes of comparison and to entry of the results into the DNA identification registration system under AS 44.41.035 and into any other law enforcement database; and
  11. the application is timely as described in AS 12.73.040 .

History. (§ 6 ch 20 SLA 2010)

Notes to Decisions

Sufficiency of application. —

Denial of defendant's application for post-conviction DNA testing of blood and semen samples found at the scene of a double murder was appropriate because, given the strength of the State of Alaska's evidence in defendant's trial, defendant failed to show that the proposed DNA testing, if favorable, would have raised a reasonable probability that the outcome of trial would have been different — specifically a reasonable chance that reasonable doubt regarding defendant's guilt would have been found when none had previously existed. Lambert v. State, 435 P.3d 1011 (Alaska Ct. App. 2018).

Sec. 12.73.030. Summary dismissal and response.

  1. If an application under AS 12.73.010(a) does not set out the specific facts necessary for the court to make the findings required under AS 12.73.020 or does not comply with AS 12.73.010(b) , the court shall deny the application without further proceedings.
  2. If an application filed under AS 12.73.010(a) is not denied under (a) of this section, the prosecuting authority shall file a response within 45 days after service of the application. The court shall conduct an evidentiary hearing to resolve any disputed facts.

History. (§ 6 ch 20 SLA 2010)

Sec. 12.73.040. Timeliness.

In determining whether an application is timely under AS 12.73.020 (11), there is a presumption of

  1. timeliness if the application is filed before three years after the date of conviction; this presumption may be rebutted if the court finds that the application is based solely upon information used in a previously denied application; and
  2. untimeliness if the application is filed three years or more after conviction; this presumption may be rebutted if the court finds good cause for filing three years or more after conviction.

History. (§ 6 ch 20 SLA 2010)

Editor’s notes. —

Section 16(c), ch. 20, SLA 2010, provides that “[n]otwithstanding any other provision of law, a person whose conviction was entered before July 1, 2010, has until July 1, 2020, to file a claim under [this chapter], . . . or a later date if the court finds good cause for a later filing.”

Sec. 12.73.050. Testing procedures.

  1. If the court grants the application and DNA samples for comparison purposes are required, samples taken from the applicant or a prisoner must be collected at a law enforcement or correctional facility. If the DNA sample is being collected from a person other than the applicant or a prisoner, the sample must be taken by a law enforcement officer or other authorized person at a location that is convenient for the person from whom the sample is being collected and the person collecting the sample.
  2. The court may not order that a person other than the applicant provide a DNA sample for comparison purposes unless that person is first afforded notice and an opportunity to be heard by the court. The results of DNA testing of a sample provided by a person other than the applicant may not be made available to the DNA identification registration system under AS 44.41.035 or to any other law enforcement database unless specifically ordered by the court.
  3. DNA testing ordered under this section shall be performed at the state’s expense and at a laboratory operated or approved by the Department of Public Safety. If, after completion of the testing ordered under this section, an applicant requests additional testing, any additional testing ordered by the court at the applicant’s request must be at the applicant’s expense. If the court orders additional testing by another laboratory at the request of the applicant, the laboratory operated or approved by the Department of Public Safety shall preserve a portion of the evidence for later testing. A laboratory selected by the applicant to perform testing under this section must comply with the quality assurance standards for DNA adopted by the United States Department of Justice and be accredited by the American Society of Crime Laboratory Directors Laboratory Accreditation Board or accepted as equivalent by the Department of Public Safety.
  4. Except as provided in (b) of this section, the results of testing ordered under this section shall be entered into the DNA identification registration system under AS 44.41.035 and into any other law enforcement database available to the Department of Public Safety.

History. (§ 6 ch 20 SLA 2010)

Sec. 12.73.060. Post-conviction testing by stipulation.

The provisions of this chapter do not prohibit an applicant and the prosecuting authority from agreeing to conduct post-conviction DNA testing without the person’s filing an application under this chapter. The parties may also stipulate to the payment of costs for the DNA testing and other costs associated with the terms of the agreement.

History. (§ 6 ch 20 SLA 2010)

Sec. 12.73.090. Definitions.

In this chapter, unless the context requires otherwise,

  1. “DNA” means deoxyribonucleic acid;
  2. “innocence” means that the applicant was not a perpetrator of or an accomplice to the offense or lesser included offense for which the applicant was convicted;
  3. “prisoner” has the meaning given in AS 33.30.901 ;
  4. “unconditionally discharged” means that a defendant is released from all disability arising under a sentence, including probation and parole.

History. (§ 6 ch 20 SLA 2010)

Cited in

Lambert v. State, 435 P.3d 1011 (Alaska Ct. App. 2018).

Chapter 75. Habeas Corpus.

Cross references. —

For court rules on habeas corpus, see Rule 86, Alaska Rules of Civil Procedure; for constitutional provision, see art. I, § 13 of the Constitution of the State of Alaska.

Collateral references. —

39 Am. Jur. 2d, Habeas Corpus, § 1 et seq.

39 C.J.S., Habeas Corpus, § 1 et seq.

Adequacy of defense counsel’s representation of criminal client regarding argument. 6 ALR4th 16.

Sec. 12.75.010. Persons entitled to prosecute writ.

A person imprisoned or otherwise restrained of liberty under any pretense whatsoever, except in the cases specified in AS 12.75.020 , may prosecute a writ of habeas corpus to inquire into the cause of the imprisonment or restraint, and, if illegal, to be released from custody or to be granted another remedy as law and justice require. Procedure may be as prescribed in the Rules of Civil Procedure.

History. (§ 12.01 ch 34 SLA 1962; am § 1 ch 49 SLA 1970)

Notes to Decisions

Habeas corpus proceeding is independent civil proceeding. State v. Hannagan, 559 P.2d 1059 (Alaska 1977).

Similar proceedings. —

An Alaska Rule of Criminal Procedure 35 post-conviction relief proceeding is similar in nature to habeas corpus proceeding. State v. Hannagan, 559 P.2d 1059 (Alaska 1977).

For cases construing earlier statutes, see Ex parte Dubuque, 1 Alaska 16 (D. Alaska 1883); In re Hernandez, 5 Alaska 421 (D. Alaska 1915); Mabry v. Beaumont, 6 Alaska 512 (D. Alaska 1922), aff'd, 290 F. 205, 5 Alaska Fed. 170 (9th Cir. Alaska 1923); United States v. Landicho, 72 F. Supp. 425, 11 Alaska 361 (D. Alaska 1947); In re Spracher, 150 F. Supp. 555, 17 Alaska 144 (D. Alaska 1957).

Collateral references. —

Former jeopardy as ground for habeas corpus. 8 ALR2d 285.

Habeas corpus on ground of deprivation of right to appeal. 19 ALR2d 789.

Insanity of accused at time of commission of offense, not raised at trial, as ground for habeas corpus after conviction. 29 ALR2d 703.

Determination whether crime is charged. 40 ALR2d 1151.

Waiver or loss of accused’s right to speedy trial as affecting right to habeas corpus. 57 ALR2d 339.

Right of prisoner held under extradition warrant to raise question of identity in habeas corpus proceeding. 93 ALR2d 916.

Attack, by petition for writ of habeas corpus, on personal service as having been obtained by fraud or trickery. 98 ALR2d 600.

Defendant’s appeal from plea conviction as affected by prosecutor’s failure or refusal to dismiss other pending charges, pursuant to plea agreement, until expiration of time for appeal. 86 ALR3d 1262.

Adequacy of defense counsel’s representation of criminal client regarding post-plea remedies. 13 ALR4th 533.

Adequacy of defense counsel’s representation of criminal client regarding appellate and postconviction remedies. 15 ALR4th 582.

Modern status of rule relating to jurisdiction of state court to try criminal defendant brought within jurisdiction illegally or as a result of fraud or mistake. 25 ALR4th 157.

When is a person in custody of governmental authorities for purpose of exercise of state remedy for habeas corpus — modern cases. 26 ALR4th 455.

Relief available for violation of right to counsel at sentencing in state criminal trial. 65 ALR4th 183.

Sec. 12.75.020. Persons not entitled to prosecute writ.

A person properly imprisoned or restrained by virtue of the legal judgment of a competent tribunal of civil or criminal jurisdiction, or by virtue of an execution regularly and lawfully issued upon that judgment or decree shall not be allowed to prosecute the writ.

History. (§ 12.02 ch 34 SLA 1962)

Notes to Decisions

When habeas corpus will lie. —

Habeas corpus will lie only to determine the legality of the particular sentence for which a petitioner is held in custody. Roberts v. State, 445 P.2d 674 (Alaska 1968).

No discharge where sufficient ground for detention exists. —

Where it appears that sufficient ground for detention exists, a prisoner will not be discharged for defects in the original arrest or commitment. Roberts v. State, 445 P.2d 674 (Alaska 1968).

Questions must relate to cause of detention. —

Habeas corpus is not available to review questions, no matter how important, which are not related to the cause of petitioner’s detention. Roberts v. State, 445 P.2d 674 (Alaska 1968).

Immediate release must result. —

Habeas corpus does not lie to secure a judicial decision which, even if determined in the prisoner’s favor, would not result in his immediate release. Roberts v. State, 445 P.2d 674 (Alaska 1968).

For cases construing earlier statutes, see Ex parte Dubuque, 1 Alaska 16 (D. Alaska 1883); In re McKenzie, 180 U.S. 536, 21 S. Ct. 468, 45 L. Ed. 657 (U.S. 1901); In re Habeas Corpus Burkell, 2 Alaska 108 (D. Alaska 1903); Mabry v. Beaumont, 6 Alaska 512 (D. Alaska 1922), aff'd, 290 F. 205, 5 Alaska Fed. 170 (9th Cir. Alaska 1923); Gozovich v. Sullivan, 7 Alaska 197 (D. Alaska 1924); Ex parte Oates, 8 Alaska 319 (D. Alaska 1931), rev'd, United States v. Oates, 61 F.2d 536, 5 Alaska Fed. 677 (9th Cir. Alaska 1932); Olsen v. Todd, 9 Alaska 14 (D. Alaska 1935); In re Jorge, 10 Alaska 633 (D. Alaska 1945).

Cited in

Grinols v. State, 10 P.3d 600 (Alaska Ct. App. 2000).

Collateral references. —

Withholding or suppression of evidence by prosecution in criminal case as vitiating conviction. 34 ALR3d 16.

Sec. 12.75.030. Offense not bailable.

When it appears that the cause or offense for which the person prosecuting the writ is imprisoned or restrained is not bailable, the production of the party may be dispensed with and the writ issued accordingly.

History. (§ 12.03 ch 34 SLA 1962)

Sec. 12.75.040. Production of body.

The person on whom a writ is served shall bring the body of the person in custody or under restraint, according to the command of the writ, except in the cases provided in AS 12.75.050 .

History. (§ 12.04 ch 34 SLA 1962)

Sec. 12.75.050. Hearing without production of person.

When, from the sickness or infirmity of the person directed to be produced, that person cannot without danger be brought before the court, the person in whose custody or power that person is may state that fact in the return to the writ. If the court is satisfied of the truth of the return and the return is otherwise sufficient, the court shall proceed to decide on the return and to dispose of the matter as if the party had been produced.

History. (§ 12.05 ch 34 SLA 1962)

Sec. 12.75.060. Proceedings on disobedience of writ.

If the person upon whom the writ is served refuses or neglects to obey it within the time required, and no sufficient excuse is shown, it is the duty of the court before whom the writ is returnable, upon due proof of service, to immediately issue a warrant against that person, directed to a peace officer commanding the officer to immediately apprehend and bring the person before the court. Upon that person being brought before the court, the court shall commit that person to custody until the person makes return to the writ and complies with any order that may be made.

History. (§ 12.06 ch 34 SLA 1962)

Sec. 12.75.070. Precept to peace officer.

A court that issues a writ without requiring the production of the person or that issues a warrant may also, at any time before final decision, issue a precept to the peace officer to whom the writ or warrant is directed commanding the officer to immediately bring the person for whose benefit the writ was allowed before the court. That person shall remain in the custody of the peace officer until discharged, remanded, or the matter is otherwise disposed of as law and justice require.

History. (§ 12.07 ch 34 SLA 1962; am § 2 ch 49 SLA 1970)

Sec. 12.75.080. Discharge of party.

If no legal cause is shown for the imprisonment or restraint, or for its continuation, the court shall discharge the party from the custody or restraint under which the party is held or grant any other appropriate remedy.

History. (§ 12.08 ch 34 SLA 1962; am § 3 ch 49 SLA 1970)

Sec. 12.75.090. Remand of party legally detained.

The court shall remand the party if it appears that the party is legally detained in custody.

History. (§ 12.09 ch 34 SLA 1962)

Collateral references. —

Right of prisoner held under extradition warrant to raise question of identity in habeas corpus proceeding. 93 ALR2d 916.

Sec. 12.75.100. Remedy of person in custody by virtue of civil process.

If it appears on the return of the writ that the prisoner is in custody by virtue of an order or civil process of a court legally constituted, or issued by an officer in the course of judicial proceedings before the officer, authorized by law, the prisoner shall be discharged or granted any other appropriate remedy in any of the following cases:

  1. when the jurisdiction of the court or officer has been exceeded, either as to matter, place, sum, or person;
  2. when, though the original imprisonment was lawful, yet by some act, omission, or event that has taken place afterwards, the party has become entitled to a discharge or other remedy;
  3. when the order or process is defective in some matter of substance required by law, rendering the process void;
  4. when the order or process, though in proper form, has been issued in a case not allowed by law;
  5. when the person having the custody of the prisoner under the order or process is not the person empowered by law to detain the prisoner; or
  6. when the order or process is not authorized by a judgment of a court or by a provision of law.

History. (§ 12.10 ch 34 SLA 1962; am § 4 ch 49 SLA 1970; am § 11 ch 30 SLA 1996)

Sec. 12.75.110. Limitation on scope of court’s inquiry.

No court or judge, on the return of a writ of habeas corpus, may inquire into the legality or justice of any order, judgment, or process specified in AS 12.75.020 or into the justice, propriety, or legality of a commitment for a contempt made by a court, officer, or body, according to law, and charged in the commitment, as provided by law.

History. (§ 12.11 ch 34 SLA 1962)

Notes to Decisions

Cited in

Grinols v. State, 10 P.3d 600 (Alaska Ct. App. 2000).

Sec. 12.75.120. Proceedings where commitment irregular.

If it appears by the testimony offered with the return, or upon the hearing that the party is probably guilty of a criminal offense, the court, although the commitment is irregular, shall immediately remand the party to the custody of the proper person.

History. (§ 12.12 ch 34 SLA 1962)

Sec. 12.75.130. Custody of party pending judgment.

Until judgment is given upon the return, the party may either be committed to the custody of a peace officer or placed in the officer’s care or under such custody as the party’s age or circumstances require.

History. (§ 12.13 ch 34 SLA 1962)

Sec. 12.75.140. Admission to bail.

A person prosecuting a writ of habeas corpus may, at any time after the writ is allowed, be admitted to bail by the court allowing the writ, or by another judge or magistrate designated by that court or judge, pending the hearing upon the writ and the final order of the court and, in case of appeal, during the pendency of the appeal and until the final order of the appellate court. The bail shall be by written undertaking and executed as bail upon arrest, and the undertaking shall be conditioned that the person so admitted to bail shall appear in the designated court or before the designated judge or magistrate whenever required, and shall at all times be amenable to the order or process of that court, judge, or magistrate, and that if the person fails to perform either of those conditions, the surety or sureties on the undertaking will pay to the state the sum in which that person is so admitted to bail.

History. (§ 12.14 ch 34 SLA 1962; am § 32 ch 8 SLA 1971)

Collateral references. —

Court’s power and duty, pending determination of habeas corpus proceeding on merits to admit petitioner to bail. 56 ALR2d 668.

Sec. 12.75.150. Effect of admitting to bail.

The admitting to bail of a person prosecuting a writ of habeas corpus does not in any manner affect the writ or other proceedings or the full right of that person to have the cause and legality of the person’s imprisonment inquired into and determined both in the trial court and upon appeal.

History. (§ 12.15 ch 34 SLA 1962)

Sec. 12.75.160. Enforcing judgment of discharge.

Obedience to a judgment for the discharge of a person imprisoned or restrained, pursuant to the provisions of this chapter, may be enforced by the court by proceedings for a contempt. A peace officer or other person is not liable to an action or proceeding for obeying the judgment of discharge.

History. (§ 12.16 ch 34 SLA 1962)

Sec. 12.75.170. Discharge as bar to subsequent restraint.

No person who has been discharged by the order of a court upon habeas corpus shall again be imprisoned, restrained, or kept in custody for the same cause except in the following cases:

  1. if the party has been discharged from a commitment on a criminal charge and is afterwards committed for the same offense by legal order or process;
  2. if, after a judgment or discharge for a defect of evidence, or for a material defect in the commitment, in a criminal case, the party is again arrested on sufficient evidence and committed by legal process for the same offense;
  3. if, after a civil action, the party has been discharged for any illegality in the judgment, decree, or process specified in AS 12.75.100 , and is afterwards imprisoned for the same cause of action;
  4. if, in a civil action, the party has been discharged from commitment on an order of arrest, and is afterwards committed on execution, in the same action, or on order of arrest in another action, after the dismissal of the first action.

History. (§ 12.17 ch 34 SLA 1962)

Sec. 12.75.180. Grounds for warrant in lieu of writ.

When it appears to a court authorized to issue the writ of habeas corpus that a person is illegally imprisoned or restrained, and that there is good reason to believe that the person will be carried out of the state or suffer some irreparable injury before the person can be relieved by the issuing of a writ of habeas corpus, a court or judge authorized to issue the writ may issue a warrant reciting the facts, and directed to a peace officer commanding the officer to immediately bring the person before the court to be dealt with according to law.

History. (§ 12.18 ch 34 SLA 1962)

Sec. 12.75.190. Warrant may include command for arrest of defendant.

When the proof mentioned in AS 12.75.180 is also sufficient to justify the arrest of the person having the party in custody, as for a criminal offense, committed in the taking or detaining of the party, the warrant may also contain an order for the arrest of the person for that offense.

History. (§ 12.19 ch 34 SLA 1962)

Sec. 12.75.200. Warrant in lieu of writ.

The peace officer to whom the warrant is directed shall execute it by bringing the party named and the person who detains the party, if so commanded by the warrant, before the judge issuing the warrant. The person detaining the party shall make a return to the warrant as in the case of a writ of habeas corpus, and a proceeding shall be had as if a writ of habeas corpus had been issued in the first instance.

History. (§ 12.20 ch 34 SLA 1962)

Sec. 12.75.210. Proceedings as to person having party in custody.

If the person having the party in custody is brought before the court as for a criminal offense, the person shall be examined, committed, bailed, or discharged by the court in like manner as in other criminal cases of the same nature.

History. (§ 12.21 ch 34 SLA 1962)

Sec. 12.75.220. Penalty for refusing to deliver copy of or obey authority to detain party.

If a peace officer or other person refuses to deliver a copy of an order, warrant, process, or other authority by which the officer or other person detains a person to anyone who demands a copy and tenders the fees therefor, the officer or other person shall forfeit and pay to the person detained a sum of not more than $200.

History. (§ 12.22 ch 34 SLA 1962)

Sec. 12.75.230. Appeal.

A party to a proceeding by habeas corpus may appeal from the judgment of the court refusing to allow the writ or a final judgment therein in like manner and with like effect as in an action. No question once finally determined upon a proceeding by habeas corpus shall be re-examined upon another or subsequent proceeding of the same kind.

History. (§ 12.23 ch 34 SLA 1962)

Notes to Decisions

At common law doctrine of res judicata was not applicable to habeas corpus. Taggard v. State, 500 P.2d 238 (Alaska 1972).

Construction. —

A construction of this section as having changed the common-law rule that res judicata is inapplicable to habeas corpus might raise serious questions of the constitutionality of this section. Perry v. State, 429 P.2d 249 (Alaska 1967).

The question of whether the legislature intended to change the common law by enacting this section might raise serious constitutional questions. Taggard v. State, 500 P.2d 238 (Alaska 1972).

Legislature used word “or” in this section in its truly disjunctive sense and intended by means of the second clause to allow appeals by the state from judgments by the lower court granting the writ. Smedley v. Holt, 541 P.2d 17 (Alaska 1975).

State was not precluded from bringing appeal from discharge granted in a habeas corpus proceeding, since a habeas corpus proceeding is civil in nature, not criminal. Adams v. Ross, 551 P.2d 948 (Alaska 1976).

Habeas corpus release is appealable “final judgment.” Adams v. Ross, 551 P.2d 948 (Alaska 1976).

This section was intended to apply only to successive applications for habeas corpus and not to a judgment followed by application for habeas relief. McCracken v. Corey, 612 P.2d 990 (Alaska 1980).

Dismissal of criminal appeal does not necessarily preclude second appeal. Taggard v. State, 500 P.2d 238 (Alaska 1972).

When appeal should be allowed. —

An appeal should be allowed where the supreme court has never had the opportunity to consider the merits of appellant’s assertion. Taggard v. State, 500 P.2d 238 (Alaska 1972).

Application for writ of habeas corpus sufficient to preserve objection to defective indictment on appeal. —

Although a motion to dismiss the indictment under Alaska Rule of Criminal Procedure 12(b)(2) would have been more appropriate than application for writ of habeas corpus to assert that the indictment resting solely on hearsay evidence of an anonymous informer must be dismissed where defendant was not represented by counsel at that point in the proceedings, the application for a writ of habeas corpus was sufficient to preserve the objection to the defective indictment on appeal. Taggard v. State, 500 P.2d 238 (Alaska 1972).

Applied in

Levick v. Smedley, 553 P.2d 482 (Alaska 1976); Montague v. Smedley, 557 P.2d 774 (Alaska 1976).

Quoted in

State v. Browder, 486 P.2d 925 (Alaska 1971).

Collateral references. —

Habeas corpus on ground of deprivation of right to appeal. 19 ALR2d 789.

Immunity of extradited person from service of process. 20 ALR2d 172.

Chapter 80. Miscellaneous Provisions.

Sec. 12.80.010. Contempt.

The provisions of the Code of Civil Procedure relating to contempt (AS 09.50.010 — 09.50.060 ) shall apply in criminal actions.

History. (§ 1.17 ch 34 SLA 1962)

Cross references. —

For court rule on contempt generally, see Rule 90, Alaska Rules of Civil Procedure.

Notes to Decisions

Civil and criminal contempt distinguished. —

See Johansen v. State, 491 P.2d 759 (Alaska 1971).

The character and purpose of the punishment serve to distinguish civil from criminal contempt. Johansen v. State, 491 P.2d 759 (Alaska 1971).

Absence of court order. —

Defendant, whom the judge approved as a third-party custodian for a probationer, contended that the judge never ordered him to remove all alcohol from his residence. In the absence of a specific court order, defendant was not guilty of criminal contempt. Romero v. State, 258 P.3d 132 (Alaska Ct. App. 2011).

Location of contempt laws in state statutes permits ambiguous inferences. The contempt provisions are found in AS 09.50.010 — 09.50.060 , part of the Code of Civil Procedure, but these sections are specifically made applicable to “criminal actions” by this section, part of the Code of Criminal Procedure. Johansen v. State, 491 P.2d 759 (Alaska 1971).

Cited in

Stadler v. State, 813 P.2d 270 (Alaska 1991).

Collateral references. —

17 Am. Jur. 2d, Contempt, § 1 et seq.

17 C.J.S., Contempt, § 1 et seq.

98 C.J.S., Witnesses, § 390 et seq.

Bail jumping after conviction, failure to surrender or to appear for sentencing, and the like, as contempt. 34 ALR2d 1100.

Right of state in criminal contempt case to obtain data from defendant by interrogatories or pretrial discovery as permitted in civil actions. 72 ALR2d 431.

Admissibility, in contempt proceeding against witness, of evidence of incriminating nature of question as to which he invoked privilege against self-incrimination. 88 ALR2d 463.

Interference with enforcement of judgment in criminal or juvenile delinquent case as contempt. 8 ALR3d 657.

Defense of entrapment in contempt proceedings. 41 ALR3d 418.

Right to counsel in contempt proceedings. 52 ALR3d 1002.

Acquittal of criminal charges other than contempt as precluding contempt proceedings relating to same transactions. 88 ALR3d 1089.

Contempt finding as precluding substantive criminal charges relating to same transaction. 26 ALR4th 563.

Failure to rise in courtroom as constituting criminal contempt. 28 ALR4th 1250.

Sec. 12.80.020. Indictment, information, and complaint.

No person shall be held to answer for an infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the armed forces in time of war or public danger. Indictment may be waived by the accused. In that case the prosecution shall be by information or complaint in the manner and form set out in the Rules of Criminal Procedure.

History. (§ 1.18 ch 34 SLA 1962)

Cross references. —

For court rules on indictment and information, see Rule 7, Alaska Rules of Criminal Procedure; for grand jury, see AS 12.40.

Notes to Decisions

Indictment is unnecessary to prosecute misdemeanor. —

Misdemeanors, for which an infamous punishment is not provided by law, may be prosecuted in Alaska upon a criminal information, as well as by indictment by the grand jury. United States v. Powers, 1 Alaska 180 (D. Alaska 1901).

Information not alleging criminal intent is illegal. —

Where the criminal intent of the petitioner is nowhere set forth in the information, the instrument is illegal as the basis of the commitment and the petitioner should be discharged from custody on habeas corpus. Ex parte Dubuque, 1 Alaska 16 (D. Alaska 1883).

Common-law distinction between complaint and information is that the former is an accusation or charge against an offender, made by a private person, under oath, to the justice of the peace or other proper officer, alleging that the offender has violated the law, while an information was an accusation filed by the prosecuting officer, charging an offense against the law. In the former the party making the accusation was known as the private prosecutor. Mabry v. Beaumont, 6 Alaska 512 (D. Alaska 1922), aff'd, 290 F. 205, 5 Alaska Fed. 170 (9th Cir. Alaska 1923).

Cited in

Cameron v. State, 171 P.3d 1154 (Alaska 2007).

Collateral references. —

41 Am. Jur. 2d, Indictments and Informations, § 1 et seq.

22A C.J.S., Criminal Law, § 581 et seq.

42 C.J.S., Indictments and Informations, § 1 et seq.

Consolidated trial upon several indictments or informations against same accused, over his objection. 59 ALR2d 841.

Power of assistant or deputy prosecutor or district attorney to file information in his own name. 80 ALR2d 1067.

Amendment of indictment or information with respect to name or capacity of person alleged to have been victim of crime as ground for continuance. 85 ALR2d 1204.

Power of court to make or permit amendment of indictment with respect to allegations as to nature of activity, happening, or circumstances. 17 ALR3d 1285.

Use of abbreviation in indictment or information. 92 ALR3d 494.

Limitations on state prosecuting attorney’s discretion to initiate prosecution by indictment or information. 44 ALR4th 401.

Sec. 12.80.030. Taxation of costs.

Costs may not be taxed to the defendant in a criminal action or proceeding begun or prosecuted in any of the courts of the state unless otherwise ordered by supreme court rule.

History. (§ 1 ch 50 SLA 1963)

Notes to Decisions

Cited in

Jerrel v. State, 765 P.2d 982 (Alaska Ct. App. 1988).

Sec. 12.80.040. Violations and infractions.

Except as provided in AS 11.81.900(b) and AS 28.90.010(d) , all laws of the state relating to misdemeanors apply to violations and infractions, including the powers of peace officers, the jurisdiction of courts, and the periods for commencing actions and for bringing a case to trial.

History. (§ 42 ch 102 SLA 1980)

Revisor’s notes. —

In 2006, “ AS 28.90.010(d) ” was substituted for “ AS 28.40.050 (d)” to reflect the 2006 renumbering of AS 28.40.050 .

Notes to Decisions

Jurisdiction. —

District court had subject matter jurisdiction over defendant's case for driving while license revoked, and it also had personal jurisdiction over defendant because he was present within the State when he committed the infraction of driving while license revoked. Selby v. State, — P.3d — (Alaska Ct. App. Oct. 21, 2020).

Quoted in

State v. Dutch Harbor Seafoods, Ltd., 965 P.2d 738 (Alaska 1998).

State v. Meyers, 479 P.3d 840 (Alaska Ct. App. 2020).

Sec. 12.80.050. [Renumbered as AS 12.45.086.]

Sec. 12.80.060. Fingerprinting.

  1. When a person is arrested for an offense, with or without a warrant, fingerprints of the person may be taken by the law enforcement agency with custody of the person. If the law enforcement agency with custody of the person does not take the fingerprints, the person’s fingerprints shall be taken by the correctional facility where the person is lodged following the arrest.
  2. At the initial court appearance or arraignment of a person for an offense, the court shall determine if the person’s fingerprints have been taken in connection with the offense. If the court is unable to conclusively determine that the person’s fingerprints have been taken, the court shall order the person to submit to fingerprinting within 24 hours at the appropriate correctional facility or another place for taking fingerprints that is more appropriate.
  3. When a defendant is sentenced or otherwise adjudicated for an offense, the court shall determine if legible fingerprints have been taken in connection with the proceedings. If the court is unable to conclusively determine that legible fingerprints have been taken, the court shall order that the defendant, as a condition of sentence, adjudication, suspended imposition of sentence, probation, or release, submit to fingerprinting within 24 hours at the appropriate correctional facility or another place for taking fingerprints that is more appropriate.
  4. The Department of Public Safety shall develop standard forms and procedures for the taking of fingerprints under this section. Fingerprints shall be
    1. taken on a form, and in the manner, prescribed by the Department of Public Safety; and
    2. forwarded within five working days to the Department of Public Safety.
  5. When the Department of Public Safety receives fingerprints of a person in connection with an offense, the Department of Public Safety shall make a reasonable effort to confirm the identity of the person fingerprinted. If the Department of Public Safety finds that the person fingerprinted has criminal history record information under a name other than the name submitted with the fingerprints, the Department of Public Safety shall promptly notify the officer, agency, or facility that took the fingerprints.
  6. If the arresting officer, the law enforcement agency that employs the officer, or the correctional facility where fingerprints were taken is notified by the Department of Public Safety that fingerprints taken under this section are not legible, the officer, agency, or facility shall make a reasonable effort to obtain a legible set of fingerprints. If legible fingerprints cannot be obtained within a reasonable period of time, and if the illegible fingerprints were taken under a court order, the officer or agency shall inform the court, which shall order the defendant to submit to fingerprinting again.
  7. In this section,
    1. “correctional facility” has the meaning given in AS 33.30.901 ;
    2. “offense” means conduct subjecting a person to arrest as an adult offender, or as a juvenile charged as an adult,
      1. due to a violation of a federal or state criminal law, the Military Code of Alaska, or a municipal criminal ordinance;
      2. under AS 12.25.180 ;
      3. under AS 11.56.730 ; or
      4. under AS 12.70.

History. (§ 1 ch 54 SLA 1994; am § 20 ch 19 SLA 2010; am § 5 ch 85 SLA 2018)

Cross references. —

For automated fingerprint system, see AS 44.41.025 .

Administrative Code. —

For reporting information to the repository, see 13 AAC 68, art. 2.

Effect of amendments. —

The 2010 amendment, effective July 1, 2010, in (g)(2)(C), substituted “AS 11.56.730 ” for “AS 12.30.060 ”.

The 2018 amendment, effective August 14, 2018, in (g)(2)(A), inserted “the Military Code of Alaska,” following “state criminal law,” and made a related change. Although the 2018 amendment was to have taken effect July 1, 2018, under sec. 46, ch. 85, SLA 2018, the governor did not sign the bill until August 13, 2018, and so the actual effective date of the amendment was August 14, 2018, under AS 01.10.070(d) .

Chapter 85. General Provisions.

Sec. 12.85.010. Applicability of title and supreme court rules.

The provisions of this title apply to all criminal actions and proceedings in all courts except where specific provision is otherwise made or where the Rules of Criminal Procedure adopted by the supreme court under its constitutional authority apply. This title governs all proceedings in actions brought after January 1, 1963, and all further proceedings in actions then pending, except to the extent that, in the opinion of the court, their application in a particular action pending when the rules take effect would not be feasible, or would work injustice, in which event, the laws in effect before January 1, 1963, apply.

History. (§§ 1.01, 13.03 ch 34 SLA 1962)

Cross references. —

For scope of court rules, see Rule 1, Alaska Rule of Criminal Procedure.

Notes to Decisions

Applies to proceedings involving violation of ordinance. —

This section does not apply only to proceedings involving alleged violations of state law. It applies with equal force where the alleged violation concerns a municipal ordinance. City of Kodiak v. Jackson, 584 P.2d 1130 (Alaska 1978).

Criminal Rules take precedence over Code of Criminal Procedure. —

The Criminal Rules have the force and effect of law and take precedence over the Code of Criminal Procedure. Price v. State, 647 P.2d 611 (Alaska Ct. App. 1982).

Applied in

Hensel v. State, 604 P.2d 222 (Alaska 1979).

Quoted in

Speas v. State, 511 P.2d 130 (Alaska 1973).

Cited in

Constantine v. State, 739 P.2d 188 (Alaska Ct. App. 1987).

Sec. 12.85.020. Short title.

This title may be cited as the Code of Criminal Procedure.

History. (§ 13.01 ch 34 SLA 1962)