Appeal
from the Superior Court No. 3PA-14-01187 CI of the State of
Alaska, Third Judicial District, Palmer, Vanessa White,
Judge.
David
Simmons, pro se, Palmer, Appellant.
Matthias Cicotte, Assistant Attorney General, Anchorage, and
Jahna Lindemuth, Attorney General, Juneau, for Appellee.
Before: Stowers, Chief Justice, Maassen, Bolger, and Carney
Justices.
Winfree, Justice, not participating.
OPINION
STOWERS, Chief Justice.
I.
INTRODUCTION
An
inmate refused to provide a DNA sample for Alaska's DNA
identification registration system pursuant to a statutory
requirement that persons convicted of certain crimes provide
a DNA sample for the system. Refusal to submit a sample
constitutes a felony. The inmate was charged with an
infraction in a prison disciplinary hearing for refusing to
provide the sample and found guilty. He appealed to the
superior court, which affirmed. He now appeals to this court,
raising several claims of error. His core argument is that
the crimes for which he was found guilty and incarcerated
occurred before the effective date of the DNA identification
registration system. He argues that the DNA sample
requirement either is not retrospective or, if it is, it
violates the ex post facto clauses of the Alaska and U.S.
Constitutions.
Another
issue on appeal concerns an inmate's right to counsel in
disciplinary proceedings. Because the inmate was charged with
a disciplinary infraction constituting a felony, under our
case law he had the right to counsel in his disciplinary
hearing. The Department of Corrections refused to provide him
counsel for his hearing. The superior court ruled that
although the denial of counsel violated the inmate's
constitutional rights, the violation did not prejudice his
ability to have a fair hearing.
We
affirm the superior court's decisions.
II.
FACTS AND PROCEEDINGS
David
Simmons was indicted on counts of burglary in the first
degree, assault in the second degree, assault in the third
degree, and misconduct involving a deadly weapon in November
1990. He was found guilty by a jury on all four counts in May
1992. The court of appeals reversed Simmons's convictions
in March 1995.[1]Simmons was retried and found guilty by a
jury in September 1995. He was sentenced in June 1996.
Simmons
was scheduled to be released on mandatory parole beginning in
February 2014. On January 8, 2014, a parole officer asked
Simmons to provide a DNA sample as a condition of his parole.
Simmons refused. The officer concluded that Simmon's
refusal to provide a sample violated AS 11.56.760, which
makes it a class C felony for persons convicted of certain
crimes to refuse to provide a DNA sample to an officer upon
request, and thus also violated 22 Alaska Administrative Code
05.400(c)(24) (2018), which makes it a prison disciplinary
infraction to commit a class C or B felony. The officer filed
an incident report citing Simmons for this infraction.
A
disciplinary hearing was held on January 14. Prior to the
hearing Simmons invoked his right to counsel in writing. We
have held that inmates who are charged with major
disciplinary infractions for conduct that constitutes a
felony have a constitutional right to counsel in prison
disciplinary hearings;[2] nevertheless, the Department of
Corrections did not provide Simmons counsel for the hearing.
Simmons was found guilty and sentenced to 20 days of punitive
segregation, with a suspended imposition of sentence if he
committed no further violations for 180 days.
Simmons
appealed the decision to the correctional facility
superintendent; the superintendent denied Simmons's
appeal. Simmons then appealed the superintendent's
decision to the superior court. The superior court
interpreted Simmons's appeal to include ex post facto,
jurisdictional, double jeopardy, due process, right to
counsel, separation of powers, statute of limitations, and
doctrine of abatement claims. The Department did not file a
brief responding to this appeal. Notwithstanding, the
superior court ruled against Simmons on all claims except his
claim that the Department violated his constitutional right
to counsel. The court concluded that the Department
unconstitutionally denied Simmons's right to counsel, but
found that this violation was harmless error because there
were no factual disputes and none of Simmons's legal
claims had merit. The court affirmed the Department's
disciplinary decision. Simmons appeals.
III.
STANDARD OF REVIEW
"Appellate
judicial review of prisoner disciplinary proceedings is
available when 'issues of constitutional magnitude'
are involved."[3] We review issues concering constitutional
rights of inmates de novo.[4] "Because the superior court
'act[ed] as an intermediate appellate court in an
administrative matter,' we 'independently review the
merits of the administrative decision.'
"[5]
IV.
DISCUSSION
A.
The DNA Sample Requirement Applies to Simmons.
Simmons
was found guilty of four felonies in September 1995. The
requirement that certain convicted persons provide a DNA
sample for the DNA identification registration system first
went into effect on January 1, 1996.[6] Simmons argues that the DNA
sample requirement does not apply to him. We
disagree.[7]
In 1995
the legislature passed AS 44.41.035, creating the DNA
identification registration system.[8] This 1995 act provided for
collection of DNA samples from "person[s] convicted of a
crime against a person."[9] The act "applie[d] to all
convictions occurring on or after [January 1,
1996]."[10] The act defined "crime against a
person" as "a felony offense, or a felony attempt
to commit an offense, under AS 11.41, other than AS
11.41.320, or under AS 11.46.400."[11] Simmons was
convicted under AS 11.46.300(a)(1) (felony first-degree
burglary), AS 11.41.210(a)(1) (felony second-degree assault),
AS 11.41.220(a)(1) (felony third-degree assault), and AS
11.61.200(a)(1) (felony third-degree misconduct involving
weapons). Two of these crimes - those defined in AS
11.41.210(a)(1) and AS 11.41.220(a)(1) - qualified as crimes
against a person. But because Simmons was convicted before
January 1, 1996, he was not required to provide a DNA sample
as of January 1, 1996 under the provisions of the 1995
act.[12]
In 2003
the legislature expanded the list of crimes that would
require the submission of a DNA sample.[13] It required
all persons convicted of felonies under AS 11 or AS 28.35 to
submit a DNA sample in addition to those convicted of crimes
against a person, [14] and it redefined "crime against a
person" as "an offense, or an attempt or
solicitation to commit an offense, under AS
11.41."[15] The changes in the 2003 act applied to
all convictions after July 1, 2003 and all convictions that
"occurred before [July 1, 2003] if the person [was]
incarcerated or [was] under supervised probation or parole
for the offense on or after [July 1,
2003]."[16] Since all four of Simmons's
convictions are felonies under AS 11 - two of the four are
also for offenses under AS 11.41 - and since Simmons was
incarcerated on and after July 1, 2003, he was required to
provide a DNA sample under the 2003 act.[17]
B.
The DNA Sample Requirement Is Not An Ex Post Facto
Law.
As
explained above, the DNA sample requirement did not exist
when Simmons committed the four felonies for which he was
found guilty in 1995. Simmons argues that the addition of the
DNA sample requirement retroactively enhanced the punishment
for these already-committed crimes in violation of the ex
post facto clauses of the U.S. and Alaska Constitutions.
Courts that have considered this issue have consistently
concluded that DNA sample requirements are not ex post facto
laws.[18] We agree with these courts.
Article
I, section 15 of the Alaska Constitution provides that
"[n]o . . . ex post facto law shall be passed." An
ex post facto law is
[a]ny statute which punishes as a crime an act previously
committed, which was innocent when done; which makes more
burdensome the punishment for a crime, after its commission;
or which deprives one charged with a crime of any defense
available according to law at the time when the act was
committed.[19]
However,
"[t]he mere fact that [a law] alters a convicted
felon's circumstances to his or her disadvantage does not
in itself invalidate the statute as ex post
facto."[20] And if a statute has a valid regulatory
purpose, it does not violate the ex post facto
clause.[21]
The ex
post facto clause addresses laws that are penal in
nature.[22] We have previously applied the two-part
"intent-effects" test to determine whether a
statute imposes punishment and violates the ex post facto
clause of the Alaska Constitution.[23]
Under this test, a court first determines whether the
legislature intended to impose punishment; if punishment was
the intent, the court's inquiry ends. But if the court
concludes that the legislature intended a non-punitive
regulatory scheme, the court next analyzes the effects of the
statute under a number of factors to determine whether the
statute is nonetheless punitive in effect.[24]
There
are seven factors which provide guidance in assessing the
statute's punitive effect:
(1) "[w]hether the sanction involves an affirmative
disability or restraint";
(2) "whether it has historically been regarded as a
punishment";
(3) "whether it comes into play only on a finding of
scienter";
(4) "whether its operation will promote the traditional
aims of punishment - retribution and deterrence";
(5) "whether the behavior to which it applies is already
a crime";
(6) "whether an alternative purpose to which it may
rationally be connected is assignable for it"; and
(7) "whether it appears excessive in relation to the
alternative purpose assigned."[25]
The
text of AS 44.41.035 states, "7b support criminal
justice services inthis state, the Department
of Public Safety shall establish a deoxyribonucleic acid
(DNA) identification registration system."[26] In 2003 the
legislature added the findings that the DNA registration
system "is an important tool in the investigation of
crime, both in excluding innocent persons and in detecting
repeat offenders" and that it "will greatly assist
law enforcement agencies in solving crimes and detecting
repeat offenders."[27] The DNA sample requirement appears in
the state government title of the Alaska Statutes, not the
criminal law title. And a review of the House minutes when
the DNA registry was created indicates the goal of the
legislature was to create a registry to comport with national
standards, to address high recidivism rates associated with
...