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Simmons v. State, Department of Corrections

Supreme Court of Alaska

September 14, 2018


          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.


          STOWERS, Chief Justice.


         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.


         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.


         "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]


         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 ...

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