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Rule 32.1. Presentence Procedure for Felony Sentencings.
(a) Scheduling. At the time guilt in a felony case is established by verdict or plea, the judge shall establish the date for a sentencing hearing and a presentencing hearing, if appropriate, and, except as provided in paragraph (f) of this rule, shall order a presentence investigation by the Department of Corrections. The judge may order a presentence investigation in a case in which an investigation is not required under paragraph (f). If the judge elects to schedule a single hearing, all of the procedures for the presentencing and sentencing hearings shall be applicable at the single hearing.
(b) Presentence Investigation and Report.
(1) The Department of Corrections shall prepare and deliver the report of the presentence investigation not less than 30 days before the presentencing hearing. The report shall contain any prior criminal conviction and any finding of delinquency of the defendant and such information about the de-fendant's characteristics, financial condition, and the circumstances affecting the defendant's behavior as may be helpful in imposing sentence or in granting probation or in the correctional treatment of the defendant, and such other information as may be required by the judge. The presentence report shall comply with the Victims' Rights Act, AS 12.61.100-.150.
The report shall be submitted to the judge, the state's attorney, and the attorney for the defendant; the defense attorney shall not be prohibited from providing a full copy to the defendant unless the judge enters on the record findings why providing specific portions of the report to the defendant would prove detrimental to the rehabilitation of the defendant or the safety of the public.
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.
(2) In the event the parties request preparation of a presentence report to aid them in reaching a plea agreement, the judge may order such a report made 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.
(3) Notwithstanding subparagraph (b)(2), the judge may use the presentence report to determine whether to accept a plea agreement under Criminal Rule 11.
(c) Notice of Aggravating and Mitigating Factors, Extraordinary Circumstances, Prior Convictions, and Other Information to be Relied on at Sentencing. (1) Within ten days after receipt of the presentence report, each party shall file:
(A) notice of any aggravating or mitigating factors, pursuant to AS 12.55.155, or extraordinary circumstances, pursuant to AS 12.55.165, on which it intends to rely, supported by a written statement outlining, as an offer of proof, the evidence that counsel contends establishes each aggravating or mitigating factor or extraordinary circumstance; and
(B) a memorandum giving notice of any evidence which the party intends to rely on at sentencing which was not previously presented at a prior proceeding in the case, in the notice described in (c)(1)(A), or in the presentence report. If the party intends to present additional witnesses, the memorandum shall include a list of these witnesses and a brief summary of their anticipated testimony. The memorandum need not give notice of matters to be mentioned in a defendant's allocution or a victim's oral statement.
(2) Within ten days after receipt of the presentence report, the state shall file:
(A) notice of the prior convictions, if any, on which it intends to rely for presumptive sentencing purposes; and
(B) notice of the amount of restitution, if any, it intends to request, supported by a memorandum or exhibits that establish the basis for the restitution request.
(d) Disputing Aggravating and Mitigating Factors, Extraordinary Circumstances, Prior Convictions, or Other Information. (1) Within ten days after receipt of the notices required by paragraph (c), each party shall file:
(A) notice whether the party concedes or disputes each aggravating or mitigating factor or extraordinary circumstance asserted by the opposing party; and
(B) notice of objection to any information in the presentence report or in any other material the judge or opposing party has identified as a source of information to be relied on at sentencing on the ground that such information is insufficiently verified or is inaccurate. For each item a party contests as inaccurate, that party shall submit an affidavit from the party or another witness with personal knowledge outlining the testimony the witness is prepared to provide to refute or to explain the allegation, or a notice that the party has served or attempted to serve a subpoena upon the person who provided the contested information and intends to examine the person at the presentencing hearing.
(2) Within ten days after receipt of the notices required by paragraph (c), the defense shall file:
(A) notice of any objection to any of the prior convictions relied on by the state and a statement of the grounds for the objection as provided in AS 12.55.145(c), which shall be supported by affidavit if the objection is based on facts outside the record; and
(B) notice of any objection to any restitution request and a statement of grounds for the objection.
(e) Presentencing Hearing. At the presentencing hearing, the judge shall review the notices filed pursuant to paragraphs (c) and (d). The judge shall enter findings as to undisputed facts. For each allegation a party contends is based on insufficiently verified information, the judge shall determine whether the allegation is sufficiently verified and shall order stricken from the presentence report any allegation the judge finds is not sufficiently verified. The judge shall provide an opportunity for argument and then shall enter conclusions on legal issues that may be resolved without an evidentiary hearing. The judge shall clarify the material disputed facts, so that the parties can be prepared to present witnesses at the sentencing hearing.
(f) When Presentence Investigation Not Required. Unless the defendant may be sentenced to a presumptive term of imprisonment under AS 12.55.125(e)(1) or (2), a presentence investigation by the Department of Corrections is not required if the defendant is convicted of the following offenses:
(1) vehicle theft in the first degree in violation of AS 11.46.360;
(2) driving while intoxicated under AS 28.35.030(n); or
(3) refusal to submit to a chemical test under AS 28.35.032(p).
(Added by SCO 157 effective February 15, 1973; amended by SCO 218 effective January 15, 1976; by SCO 536 effective October 1, 1982; by SCO 643 effective September 15, 1985; repealed and reenacted by SCO 1136 effective July 15, 1993; amended by SCO 1269 effective July 15, 1997)
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.
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Last Modified 7/14/1999
