HB894: HB894 Georgia Second Look Act; enact

25 LC 48 1625 House Bill 894 By: Representatives Holcomb of the 101st and Blackmon of the 146th A BILL TO BE ENTITLED AN ACT To amend Article 1 of Chapter 10 of Title 17 of the Official Co de of Georgia Annotated,1 relating to procedure for sentencing and imposition of punishme nt, so as to authorize the2 sentencing court to review and resentence certain cases where the punishment of life without3 parole was imposed; to provide for a petition; to provide for a hearing; to provide for the4 right to counsel; to provide for notice to the victim; to provi de for an appeal process; to5 provide for limitations; to provide for related matters; to provide for a short title; to repeal6 conflicting laws; and for other purposes.7 BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:8 SECTION 1.9 This Act shall be known and may be cited as the "Georgia Second Look Act."10 SECTION 2.11 Article 1 of Chapter 10 of Title 17 of the Official Code of Geo rgia Annotated, relating to12 procedure for sentencing and imposition of punishment, is amend ed by revising13 subparagraph (a)(1)(A) of Code Section 17-10-1, relating to fixing of sentence, suspension14 H. B. 894 - 1 - 25 LC 48 1625 or probation of sentence, change in sentence, eligibility for parole, prohibited modifications,15 and exceptions, as follows:16 "(a)(1)(A) Except as provided in Code Section 17-10-1.5, in cases in which life17 imprisonment, life without parole, or the death penalty may be imposed, upon a verdict18 or plea of guilty in any case involving a misdemeanor or felony, and after a presentence19 hearing, the judge fixing the sentence shall prescribe a determ inate sentence for a20 specific number of months or years which shall be within the minimum and maximum21 sentences prescribed by law as the punishment for the crime. The judge imposing the22 sentence is granted power and authority to suspend or probate a ll or any part of the23 entire sentence under such rules and regulations as the judge deems proper, including24 service of a probated sentence in the sentencing options system, as provided by Article25 6 of Chapter 3 of Title 42, and including the authority to revo ke the suspension or26 probation when the defendant has violated any of the rules and regulations prescribed27 by the court, even before the probationary period has begun, subject to the conditions28 set out in this subsection; provided, however, that such action shall be subject to the29 provisions of Code Sections 17-10-6.1 and 17-10-6.2."30 SECTION 3.31 Said article is further amended by adding a new Code section to read as follows:32 "17-10-1.5.33 (a)(1) Notwithstanding any other provision of law, including any applicable mandatory34 minimum sentence, an incarcerated individual who was not convic ted of an offense35 violating Code Section 16-5-1 or 16-6-1 and who has served at least 20 years of his or her36 sentence may petition the sentencing court for a reduction of his or her sentence, except37 where:38 (A) A petition for a reduction in sentence under this Code sec tion has been denied. 39 The incarcerated individual may not file a successive petition until at least two years40 H. B. 894 - 2 - 25 LC 48 1625 have elapsed after the date such petition was denied; the court may require a longer41 waiting period, but no more than five years after the date the petition was denied; and42 (B) A petition for a reduction in sentence under this Code sec tion has been granted. 43 The incarcerated individual may not file a petition for a secon d sentencing reduction44 until at least five years have elapsed after the date the petition was granted.45 (2) Notwithstanding this subsection, an otherwise ineligible incarcerated individual shall46 be deemed eligible to petition for a reduction in sentence upon consent of the prosecuting47 attorney.48 (b) No more than 30 days after the date on which the twentieth year of imprisonment49 begins for an incarcerated individual sentenced to life without parole, the Department of50 Corrections shall provide written notice of the provisions of t his Code section to the51 incarcerated individual and the sentencing court, the prosecuti ng attorney, and the52 incarcerated individual's attorney of record or the Georgia Public Defender Council.53 (c)(1) A petition for a sentence reduction under this Code sec tion may be filed six54 months after the date on which the twentieth year of imprisonme nt begins for an55 incarcerated individual sentenced to life without parole, and such petition shall be filed56 in writing in the judicial district in which the sentence was i mposed and may include57 affidavits, declarations, letters, prison records, or other written and electronic material.58 (2) Upon the court's receipt of a petition under this Code section, the court shall promptly59 notify the appropriate prosecuting attorney and provide such prosecuting attorney with60 a copy of the petition, including any attached written or electronic material.61 (d)(1) A petition submitted pursuant to subsection (c) of this Code section shall be62 referred for determination to the judge or justice who imposed the original sentence upon63 such individual. If, at the time of the application for petiti on, the original sentencing64 judge is no longer available, then the petition shall be assign ed to another judge of the65 original sentencing court.66 H. B. 894 - 3 - 25 LC 48 1625 (2) After the filing of a petition for a sentencing reduction under this Code section, the67 court may direct the parties to expand the record by submitting additional materials68 relating to the motion. A petition filed under this Code secti on may be amended with69 leave of court, which the court should grant in the interest of justice.70 (e) No waiver of the right to petition for a resentencing under this Code section shall be71 permitted or honored by the sentencing court.72 (f)(1) The court shall, upon request of the defendant or the s tate, conduct a hearing on73 the motion, at which the defendant and counsel for the defendan t shall be given the74 opportunity to be heard. Such hearing shall be recorded or transcribed.75 (2) In a hearing under this subsection, the court, in its disc retion, may allow parties to76 present any evidence that the court deems relevant to the issue of the propriety of a77 reduction in sentencing. Such evidence may include documents, live testimony, tangible78 objects, or any other class of evidence or information pertinent to sentencing. The court79 has exclusive discretion to determine the relevance of any proposed evidence. At such80 hearing, the defendant shall have the right to testify or to remain silent at the defendant's81 sole discretion.82 (3) In a hearing under this subsection, the defendant shall be present unless he or she83 waives the right to be present. The requirement under this paragraph may be satisfied by84 the defendant appearing by video teleconference.85 (4) The court shall set forth, either in open court or in writing, the reasons for granting86 or denying a petition under this Code section.87 (g) In exercising its discretion under this Code section, the court must consider the88 following factors:89 (1) The age of the defendant at the time of the offense and relevant research regarding90 development of the brain;91 (2) The age of the defendant at the time of the sentence modif ication petition and92 relevant research regarding the decline in criminal behavior as individuals grow older;93 H. B. 894 - 4 - 25 LC 48 1625 (3) The age of the defendant and the likely impact of this factor to mitigate a potential94 risk to public safety;95 (4) The health of the defendant and the likely impact of this factor to mitigate a potential96 risk to public safety;97 (5) The nature of the offense, including any changing societal attitudes regarding the98 propriety of criminalizing the offense and the appropriate sentence for the offense;99 (6) The history and characteristics of the defendant at the ti me of the petition for a100 reduction in sentence, including rehabilitation demonstrated by the defendant, the101 defendant's disciplinary record while incarcerated, and the def endant's efforts to102 participate in educational, therapeutic, and vocational opportunities while imprisoned;103 (7) The circumstances of the offense, including the defendant's role in its commission,104 whether the defendant was under the influence of another, or whether the defendant was105 the victim of domestic or sexual abuse at the time of the offense and whether such abuse106 was related to the defendant's commission of the offense;107 (8) Any report of a physical, mental, or psychiatric examinati on of the defendant108 conducted by a licensed health care professional;109 (9) Any statement by any victim of an offense for which the defendant is imprisoned or110 by a family member of the victim if the victim is deceased;111 (10) Any evidence concerning whether the defendant's sentence was enhanced because112 the defendant exercised his or her constitutional right to a trial;113 (11) Any evidence that the defendant was denied effective assistance of counsel at any114 stage in the case leading to the original sentence, including i neffective assistance of115 counsel at the plea-bargaining stage;116 (12) Any evidence that the defendant is innocent of the offense for which he or she was117 incarcerated; or118 (13) Any other information the court determines relevant to the decision of the court.119 H. B. 894 - 5 - 25 LC 48 1625 (h) In the case of a defendant who is 55 years of age or older on the date on which the120 defendant files a petition for a sentence reduction under this Code section, there shall be121 a rebuttable presumption that the defendant shall be released.122 (i) In calculating the new term to be served by the defendant, such defendant shall be123 credited for any jail time credited toward the subject convicti on as well as any period of124 incarceration credited toward the sentence originally imposed.125 (j)(1) A defendant who is unable to afford counsel is entitled to have counsel appointed,126 at no cost to the defendant, to represent the defendant for the petition and proceedings127 under this Code section, including any appeal, unless the defendant expressly waives the128 right to counsel after being fully advised of such right by the court.129 (2) A defendant who files a pro se petition and subsequently r etains or is appointed130 counsel shall be entitled to amend such petition at least once as of right with the131 assistance of counsel. Subsequent amendments may be permitted by leave of court, as132 authorized by subsection (c) of this Code section.133 (k)(1) Upon receipt of a petition for resentencing, a prosecuting attorney shall provide134 any notification to the victim otherwise required by statute an d shall, if practicable,135 consult with the victim prior to making any filing in relation to a petition under this Code136 section or consenting to the petition of an otherwise-ineligible defendant.137 (2) The victim shall not be excluded from a hearing granted under subsection (f) of this138 Code section and may be allowed to provide a statement, oral or written, regarding the139 impact of the offense on the victim.140 (3) The court shall not, in modifying a sentence, disturb any restitution awarded at the141 original sentencing.142 (l) An appeal from a resentencing proceeding under this Code section may be submitted143 by the defendant or the prosecuting authority on the grounds th at the resentence is144 unlawful, was imposed in an unlawful manner, is too lenient, or is otherwise inappropriate145 in light of the purposes of sentencing as enunciated in this st ate's statutes. The right to146 H. B. 894 - 6 - 25 LC 48 1625 appeal from a sentence modification under this subsection shall be as of right on the same147 terms as a first appeal from an initial sentence at the time of conviction."148 SECTION 4.149 All laws and parts of laws in conflict with this Act are repealed.150 H. B. 894 - 7 -