Rule 32.1. Presentence Procedure for Felony Sentencings

(a) Scheduling & Preliminary Filings. At the time a defendant’s guilt in a felony case is established by verdict or plea, (1) the judge shall establish the date for a sentencing hearing and the date for a separate presentencing hearing, if appropriate. If the judge elects to conduct all of the proceed- ings at a single hearing, all the procedures that govern presen- tencing and sentencing hearings shall apply at the single hearing; (2) unless the court has accepted the parties’ negotiated sentencing agreement and has decided to proceed without a presentence report pursuant to Criminal Rule 11(e)(1), the judge shall direct the Department of Corrections to conduct a presentence investigation and prepare a report in all cases where the defendant has been convicted of an unclassified felony or a class A felony, or in any other case if either party requests a presentence report or the judge concludes that there is good cause to have one; (3) the judge shall direct the parties to file the following preliminary pleadings within ten days, unless a different schedule is ordered by the court: (A) Defendant’s Sentencing Status. If the defen- dant’s sentencing is governed in whole or part by presumptive Rule 32.1 sentencing, the state shall file a notice explaining the defen- dant’s status as a first, second, or third felony offender for purposes of presumptive sentencing, as well as any other factor that triggers a specific presumptive range. If the defendant is to be sentenced for an unclassified felony under AS 12.55.125(a) or (b), or if the defendant is subject to the mandatory sentence- ing provisions of AS 12.55.125(l), the state shall specify the applicable mandatory minimum term of imprisonment. If the defendant is to be sentenced for two or more offenses, the state shall specify the amount of consecutive imprisonment, if any, required by AS 12.55.127; and (B) Defendant’s Financial Statement. In cases where restitution may be ordered, the defendant shall submit a financial statement to the probation office on a form desig- nated by the Administrative Director. (b) Presentence Investigation and Report. (1) Contents and Filing. If the court directs the Department of Corrections to prepare a presentence report, the report shall be filed with the court and served on counsel at least 30 days before the sentencing hearing, or 30 days before the presentencing hearing, if one is scheduled. The report shall contain all of the defendant’s prior criminal convictions and findings of delinquency and any other information about the defendant’s characteristics, financial condition, and the circumstances affecting the defendant’s behavior that may be helpful in fashioning the defendant’s sentence, a victim impact statement, and any other information required by the judge. If the crime involved a victim, the court may not accept a presentence report that does not include a victim’s impact statement, unless the presentence report explains the reason why the victim or the victim’s representative could not be interviewed. The presentence report shall comply with the Victims’ Rights Act, AS 12.61.100 — 12.61.150 and AS 12.55.022. (2) Restitution Information. In cases where the court may order the defendant to pay restitution, the presentence report must include: (A) defendant’s financial statement completed under subparagraph (a)(3)(B) of this rule; and (B) information concerning the identity of any victims or other persons seeking restitution and, if known, whether any victim or other person expressly declines restitution, the nature and amount of any damages together with any supporting documentation, a restitution amount recommendation, and the names of any co-defendants and their case numbers. (3) Disclosure. Unless the judge finds that providing specific portions of the report to the defendant would prove detrimental to the rehabilitation of the defendant or the safety of the public, the defense attorney may give a full copy of the report to the defendant. Unless otherwise ordered, or except as specifically allowed by other provisions of law, further disclosure of the report shall be limited to agents of the state’s attorney or the defendant’s attorney, any reviewing courts, and the agencies having charge of the defendant’s rehabilitation. (4) Plea Agreements. (A) If the parties request preparation of a presentence report to aid them in reaching a plea agreement, the judge may order the department to prepare such a report prior to the time stated in this rule. If a report is prepared prior to entry of a verdict or plea of guilty or no contest, the report shall be submitted only to the parties and not to the judge. (B) Notwithstanding subparagraph (b)(4)(A), the judge may use the presentence report to determine whether to accept a plea agreement under Criminal Rule 11. (5) Service. The parties must serve the Department of Corrections with all filings relating to sentencing, and the court must distribute all orders related to sentencing to the department. (c) Notice of Aggravating Factors, Extraordinary Circumstances, and Restitution. Within seven days after service of the presentence report on the parties, or, if no presentence report is ordered, at least 30 days before the sentencing hearing: (1) The state shall list the aggravating factors and describe the nature of any extraordinary circumstances on which the state intends to rely at sentencing. This notice shall include a written summary of the evidence that the state will rely on to establish each aggravating factor or extraordinary circumstance. (2) The state shall give notice if it will seek restitution from the defendant in an amount different from the recommendation in the presentence report. The notice shall specify the amount of restitution sought and shall set forth the facts establishing the basis for this amount, and shall include information concerning the identity of any victims or other persons seeking restitution and, if known, whether any victim or other person expressly declines restitution, the nature and amount of any damages together with any supporting documentation, and the names of any co-defendants and their case numbers. (3) The state shall give notice of any evidence on which it intends to rely at sentencing that is not contained in the presentence report. If the state intends to present any witness, the notice shall contain a brief summary of the witness’s anticipated testimony. The notice need not include any information to be presented by a victim’s oral or written statement. (4) Notices under this rule shall be served by delivery to parties in the same community as the party making service, and by facsimile transmission (“fax”) to parties in outlying communities. When service is made by fax, a paper copy of the notices shall also be mailed to the intended recipient. (d) Notice of Mitigating Factors, Extraordinary Circumstances, and Responses to State’s Notices. Within seven days after service of the notices required by paragraph (c): Rule 32.1 (1) The defendant shall file a notice responding to each notice filed by the state under paragraphs (a)(3)(A) and (c)(1). The notice shall indicate whether the defendant concedes or disputes each felony conviction, aggravating factor and extraordinary circumstance and, if so, shall include a description of the basis for the opposition. (2) The defendant shall list the mitigating factors and describe the nature of any extraordinary circumstances on which the defense intends to rely at sentencing. This notice shall include a written summary of the evidence that the defendant will rely on to establish each mitigating factor or extraordinary circumstance. (3) If the defendant objects to any recommendation for restitution included in the presentence report or in a notice filed by the state under paragraph (c)(2), the defendant shall file a notice disputing the legal basis for restitution, the factual basis for restitution, or the amount sought. The notice shall set out the specific grounds for contesting the restitution or provide information that the victim or other person entitled to the restitution expressly declines restitution. (4) The defendant shall give notice of any evidence on which the defendant intends to rely at sentencing that is not contained in the presentence report. If the defendant intends to present any witness, the notice shall contain a brief summary of the witness’s anticipated testimony. The notice need not include any information to be presented in the defendant’s allocution. (5) The defendant shall give notice of any objection to any information contained in the presentence report or to any other material the judge or the state has identified as a source of information to be relied upon at sentencing. The notice shall state the basis for the defendant’s objection. If the defendant objects to information as inaccurate, the notice shall include any information upon which the defendant intends to rely to refute the objected-to information. (6) Notices under this rule shall be served by delivery to parties in the same community as the party making service, and by fax to parties in outlying communities. When service is made by fax, a paper copy of the notices shall also be mailed to the intended recipient. (e) Disputing Mitigating Factors, Extraordinary Circumstances, and Objections to Restitution. Within seven days after service of the notices required by paragraph (d): (1) The state shall file a notice responding to each notice filed by the defendant under paragraph (d)(2). The notice shall indicate whether the state concedes or disputes each mitigating factor and extraordinary circumstance, and shall include a description of the basis for the opposition. (2) The state shall file a notice responding to each notice filed by the defendant under paragraph (d)(3). The notice shall indicate whether the state disagrees with the contention of the defendant concerning restitution and shall include a brief summary of the basis for its position. (3) Notices under this rule shall be served by delivery to parties in the same community as the party making service, and by fax to parties in outlying communities. When service is made by fax, a paper copy of the notices shall also be mailed to the intended recipient. (f) Adjudicating Disputed Factual and Legal Issues. The court shall give the parties the opportunity to present evidence and argument on the disputed factual and legal issues related to sentencing at the sentencing hearing or at any presentencing hearing or other supplemental evidentiary hearings that the court may order. (1) The court shall enter findings regarding whether the defendant’s sentence is governed by presumptive sentencing, the number of the defendant’s prior felonies as defined in AS 12.55.145, and the existence of any other factor that triggers a specific presumptive term. (2) The court shall enter findings regarding the aggravating factors, mitigating factors, and extraordinary circumstances raised by the parties. However, no finding is necessary if the court affirmatively determines that resolution of a disputed factor or extraordinary circumstance is immaterial to the imposition of a just sentence. (3) If the sentencing judge believes that the parties have overlooked a prior felony conviction or any other factor triggering a specific presumptive term, or have overlooked an applicable aggravating or mitigating factor or extraordinary circumstance, the judge shall notify the parties of the court’s belief. The judge shall inform the parties of the specific facts which the judge believes establish the prior felony or presumptive sentencing factor, and the judge must allow the parties an opportunity to respond to the judge’s information. (4) The court shall resolve any factual disputes related to restitution. (5) The court shall enter findings regarding any disputed assertion in the presentence report. Any assertion that has not been proved shall be deleted from the report; any assertion that has been proved only in part shall be modified in the report. Alternatively, if the court determines that the disputed assertion is not relevant to its sentencing decision so that resolution of the dispute is not warranted, the court shall delete the assertion from the report without making any finding. After the court has made the necessary deletions and modifications, the court’s corrected copy shall be labeled the “approved version” of the presentence report. A copy of the approved version must be delivered to the Department of Corrections within seven days after sentencing. (g) Restitution Procedures When There Is No Presen- tence Investigation. (1) In cases where the court may order the defendant to pay restitution but no presentence investigation report is prepared, the prosecuting authority must file a notice concerning restitution at least ten days before the sentencing hearing, unless otherwise ordered by the court. The notice shall include information concerning the identity of any victims or other persons seeking restitution and, if known, Rule 32.2 whether any victim or other person expressly declines restitution, the nature and amount of any damages together with any supporting documentation, a restitution amount recommendation, and the names of any co-defendants and their case numbers. (2) Unless otherwise ordered by the court, the defendant shall file any objections to the information submitted under paragraph (g)(1), or provide information that the victim or other person expressly declines restitution, at least five days before the sentencing hearing, together with defendant’s financial statement on a form designated by the Administrative Director. Note to SCO 1269: In 1996, the legislature amended Criminal Rule 32.1 to eliminate presentence investigations for certain defendants convicted of joyriding (§§ 9 & 10 ch. 71 SLA 1996) or felony DWI or refusal (§§ 20 & 21 ch. 143 SLA 1996). Section 15 of this order is adopted for the sole reason that the legislature has mandated the amendments. Note: Chapter 70 SLA 2012 (SB 210) added new subsections to AS 12.55.125 and AS 12.55.155 relating to sentencing procedures, effective July 1, 2012. According to section 16 of the Act, AS 12.55.125(p), enacted by section 12, and AS 12.55.155(i), enacted by section 13, have the effect of amending Alaska Rule of Criminal Procedure 32.1, by amending procedures for sentencing persons convicted of certain crimes. Note: Chapter 43, SLA 2013 (SB 22), effective nunc pro tunc to July 1, 2013, amended Criminal Rule 32.1(b)(1) relating to victim’s impact statements. This rule change is adopted for the sole reason that the legislature has mandated the amendment. Note to SCO 1886: Chapter 36, SLA 2016 (SB 91) enacted a number of changes relating to criminal procedure. According to section 180(d) of the Act, AS 12.55.135(p), enacted by section 93 of the Act, has the effect of changing Criminal Rule 32.1, effective July 12, 2016, regarding the procedure for notice and proof of aggravating factors sought to be considered at the sentencing of a defendant convicted of a class A misdemeanor.