HB 894: Georgia Second Look Act; enact

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 Code of Georgia Annotated, relating to procedure for sentencing and imposition of punishment, so as to authorize the sentencing court to review and resentence certain cases where the punishment of life without parole was imposed; to provide for a petition; to provide for a hearing; to provide for the right to counsel; to provide for notice to the victim; to provide for an appeal process; to provide for limitations; to provide for related matters; to provide for a short title; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1.

This Act shall be known and may be cited as the "Georgia Second Look Act."

SECTION 2.

Article 1 of Chapter 10 of Title 17 of the Official Code of Georgia Annotated, relating to procedure for sentencing and imposition of punishment, is amended by revising subparagraph (a)(1)(A) of Code Section 17-10-1, relating to fixing of sentence, suspension or probation of sentence, change in sentence, eligibility for parole, prohibited modifications, and exceptions, as follows:

"(a)(1)(A) Except as provided in Code Section 17-10-1.5, in cases in which life imprisonment, life without parole, or the death penalty may be imposed, upon a verdict or plea of guilty in any case involving a misdemeanor or felony, and after a presentence hearing, the judge fixing the sentence shall prescribe a determinate sentence for a specific number of months or years which shall be within the minimum and maximum sentences prescribed by law as the punishment for the crime. The judge imposing the sentence is granted power and authority to suspend or probate all or any part of the entire sentence under such rules and regulations as the judge deems proper, including service of a probated sentence in the sentencing options system, as provided by Article 6 of Chapter 3 of Title 42, and including the authority to revoke the suspension or probation when the defendant has violated any of the rules and regulations prescribed by the court, even before the probationary period has begun, subject to the conditions set out in this subsection; provided, however, that such action shall be subject to the provisions of Code Sections 17-10-6.1 and 17-10-6.2."

SECTION 3.

Said article is further amended by adding a new Code section to read as follows:

"17-10-1.5.

(a)(1) Notwithstanding any other provision of law, including any applicable mandatory minimum sentence, an incarcerated individual who was not convicted of an offense violating Code Section 16-5-1 or 16-6-1 and who has served at least 20 years of his or her sentence may petition the sentencing court for a reduction of his or her sentence, except where:

(A) A petition for a reduction in sentence under this Code section has been denied. The incarcerated individual may not file a successive petition until at least two years have elapsed after the date such petition was denied; the court may require a longer waiting period, but no more than five years after the date the petition was denied; and

(B) A petition for a reduction in sentence under this Code section has been granted. The incarcerated individual may not file a petition for a second sentencing reduction until at least five years have elapsed after the date the petition was granted.

(2) Notwithstanding this subsection, an otherwise ineligible incarcerated individual shall be deemed eligible to petition for a reduction in sentence upon consent of the prosecuting attorney.

(b) No more than 30 days after the date on which the twentieth year of imprisonment begins for an incarcerated individual sentenced to life without parole, the Department of Corrections shall provide written notice of the provisions of this Code section to the incarcerated individual and the sentencing court, the prosecuting attorney, and the incarcerated individual's attorney of record or the Georgia Public Defender Council. (c)(1) A petition for a sentence reduction under this Code section may be filed six months after the date on which the twentieth year of imprisonment begins for an incarcerated individual sentenced to life without parole, and such petition shall be filed in writing in the judicial district in which the sentence was imposed and may include affidavits, declarations, letters, prison records, or other written and electronic material.

(2) Upon the court's receipt of a petition under this Code section, the court shall promptly notify the appropriate prosecuting attorney and provide such prosecuting attorney with a copy of the petition, including any attached written or electronic material. (d)(1) A petition submitted pursuant to subsection (c) of this Code section shall be referred for determination to the judge or justice who imposed the original sentence upon such individual. If, at the time of the application for petition, the original sentencing judge is no longer available, then the petition shall be assigned to another judge of the original sentencing court.

(2) After the filing of a petition for a sentencing reduction under this Code section, the court may direct the parties to expand the record by submitting additional materials relating to the motion. A petition filed under this Code section may be amended with leave of court, which the court should grant in the interest of justice.

(e) No waiver of the right to petition for a resentencing under this Code section shall be permitted or honored by the sentencing court.

(f)(1) The court shall, upon request of the defendant or the state, conduct a hearing on the motion, at which the defendant and counsel for the defendant shall be given the opportunity to be heard. Such hearing shall be recorded or transcribed.

(2) In a hearing under this subsection, the court, in its discretion, may allow parties to present any evidence that the court deems relevant to the issue of the propriety of a reduction in sentencing. Such evidence may include documents, live testimony, tangible objects, or any other class of evidence or information pertinent to sentencing. The court has exclusive discretion to determine the relevance of any proposed evidence. At such hearing, the defendant shall have the right to testify or to remain silent at the defendant's sole discretion.

(3) In a hearing under this subsection, the defendant shall be present unless he or she waives the right to be present. The requirement under this paragraph may be satisfied by the defendant appearing by video teleconference.

(4) The court shall set forth, either in open court or in writing, the reasons for granting or denying a petition under this Code section.

(g) In exercising its discretion under this Code section, the court must consider the following factors:

(1) The age of the defendant at the time of the offense and relevant research regarding development of the brain;

(2) The age of the defendant at the time of the sentence modification petition and relevant research regarding the decline in criminal behavior as individuals grow older;

(3) The age of the defendant and the likely impact of this factor to mitigate a potential risk to public safety;

(4) The health of the defendant and the likely impact of this factor to mitigate a potential risk to public safety;

(5) The nature of the offense, including any changing societal attitudes regarding the propriety of criminalizing the offense and the appropriate sentence for the offense;

(6) The history and characteristics of the defendant at the time of the petition for a reduction in sentence, including rehabilitation demonstrated by the defendant, the defendant's disciplinary record while incarcerated, and the defendant's efforts to participate in educational, therapeutic, and vocational opportunities while imprisoned;

(7) The circumstances of the offense, including the defendant's role in its commission, whether the defendant was under the influence of another, or whether the defendant was the victim of domestic or sexual abuse at the time of the offense and whether such abuse was related to the defendant's commission of the offense;

(8) Any report of a physical, mental, or psychiatric examination of the defendant conducted by a licensed health care professional;

(9) Any statement by any victim of an offense for which the defendant is imprisoned or by a family member of the victim if the victim is deceased;

(10) Any evidence concerning whether the defendant's sentence was enhanced because the defendant exercised his or her constitutional right to a trial;

(11) Any evidence that the defendant was denied effective assistance of counsel at any stage in the case leading to the original sentence, including ineffective assistance of counsel at the plea-bargaining stage;

(12) Any evidence that the defendant is innocent of the offense for which he or she was incarcerated; or

(13) Any other information the court determines relevant to the decision of the court.

(h) In the case of a defendant who is 55 years of age or older on the date on which the defendant files a petition for a sentence reduction under this Code section, there shall be a rebuttable presumption that the defendant shall be released.

(i) In calculating the new term to be served by the defendant, such defendant shall be credited for any jail time credited toward the subject conviction as well as any period of incarceration credited toward the sentence originally imposed. (j)(1) A defendant who is unable to afford counsel is entitled to have counsel appointed, at no cost to the defendant, to represent the defendant for the petition and proceedings under this Code section, including any appeal, unless the defendant expressly waives the right to counsel after being fully advised of such right by the court.

(2) A defendant who files a pro se petition and subsequently retains or is appointed counsel shall be entitled to amend such petition at least once as of right with the assistance of counsel. Subsequent amendments may be permitted by leave of court, as authorized by subsection (c) of this Code section.

(k)(1) Upon receipt of a petition for resentencing, a prosecuting attorney shall provide any notification to the victim otherwise required by statute and shall, if practicable, consult with the victim prior to making any filing in relation to a petition under this Code section or consenting to the petition of an otherwise-ineligible defendant.

(2) The victim shall not be excluded from a hearing granted under subsection (f) of this Code section and may be allowed to provide a statement, oral or written, regarding the impact of the offense on the victim.

(3) The court shall not, in modifying a sentence, disturb any restitution awarded at the original sentencing.

(l) An appeal from a resentencing proceeding under this Code section may be submitted by the defendant or the prosecuting authority on the grounds that the resentence is unlawful, was imposed in an unlawful manner, is too lenient, or is otherwise inappropriate in light of the purposes of sentencing as enunciated in this state's statutes. The right to appeal from a sentence modification under this subsection shall be as of right on the same terms as a first appeal from an initial sentence at the time of conviction."

SECTION 4.

All laws and parts of laws in conflict with this Act are repealed.