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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Simmons v. State, Dept. of Corrections (9/14/2018) sp-7299

Simmons v. State, Dept. of Corrections (9/14/2018) sp-7299

          Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

          Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

                                                                                                                 

          303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                                                   

          corrections@akcourts.us.  



                     THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  



DAVID  SIMMONS,                                             )  

                                                             )         Supreme  Court  No.  S-16171  

                              Appellant,                    )  

                                                                                                                                  

                                                            )          Superior Court No. 3PA-14-01187 CI  

          v.                                                 )  

                                                                                          

                                                             )         O P I N I O N  

                    

STATE OF ALASKA,                                             )  

                                                                                                                

                                 

                                                                      No. 7299 - September 14, 2018  

DEPARTMENT OF CORRECTIONS, )  

                                                             )
  

                              Appellee.                     )
  

                                                             )
  



                                                                                                       

                    A            

                       ppeal from the Superior Court of the State of Alaska, Third  

                                                                                    

                    Judicial District, Palmer, Vanessa White, Judge.  



                                                                                                                 

                    Appearances:  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.  



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  


----------------------- Page 2-----------------------

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                                                                                                                                                           



                                                                                                                                                                                                                                                                                                                                                                         1  

May 1992.                                         The court of appeals reversed Simmons's convictions in March 1995.                                                                                                                                                                                                                                                           



 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  

                                                                                                                                                                                                                                                                                                                                                



                            1                           Simmons v. State, No. A-4475, 1995 WL 17220358 (Alaska App. Mar. 22,  

                                                                                                                                                                                                                                                                                                                                                              

 1995).  



                                                                                                                                                                                -2-                                                                                                                                                                                      7299  


----------------------- Page 3-----------------------

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                                                                                                           

                                                                                                                                                        2    nevertheless,  the  

constitutional   right   to   counsel  in  prison   disciplinary   hearings;                                                                                                                 



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  

                                                                                                                                                                          



               2              McGinnis  v.  Stevens,  543  P.2d   1221,   1231-35  (Alaska   1975).  



                                                                                                -3-                                                                                               7299  


----------------------- Page 4-----------------------

decision.   Simmons appeals.   



III.         STANDARD OF REVIEW                   



                          "Appellate judicial review ofprisoner disciplinary proceedings is                                                          available  



                                                                                                             3  

                                                                                                                                                    

when 'issues of constitutional magnitude' are involved."                                                        We review issues concering  



                                                                               4  

                                                                                                                                                                  

constitutional rights of inmates de novo.                                           "Because the superior court 'act[ed] as an  



                                                                                                                                                                 

intermediate appellate court in an administrative matter,' we 'independently review the  



                                                                            5  

                                                                           

merits of the administrative decision.' " 



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  



                                                                                                                                                6  

                                                                                                                                                   Simmons  

identification registration system first went into effect on January 1, 1996. 



                                                                                                                                                       7  

                                                                                                                             

argues that the DNA sample requirement does not apply to him.  We disagree.  



             3            James v. State, Dep't of Corr.                         , 260 P.3d 1046, 1050 (Alaska2011) (quoting                           



Dep't of Corr. v. Kraus                      , 759 P.2d 539, 540 (Alaska 1988)),                                  overruled on other grounds           

by Walker v. State, Dep't of Corr.                               , 421 P.3d 74, 81 (Alaska 2018).                   



             4            See id.  (quoting Brandon v. State, Dep't of Corr., 73 P.3d 1230, 1233  

                                                                                                                                                             

(Alaska 2003)).  

                 



             5            Id.  (alteration in original) (quoting Button v. Haines Borough, 208 P.3d  

                                                                                                                                                              

 194, 200 (Alaska 2009)).  

                                   



             6            Ch. 10,  4, SLA 1995.  

                                                            



             7            The  Department  argues  that  Simmons  did  not  sufficiently  raise  this  

                                                                                                                                                               

argument in the administrative proceedings or in the superior court and therefore waived  

                                                                                                                                                         

the argument. We recently explained in Walker v. State, Department of Corrections that  

                                                                                                                                                                

a  pro  se  inmate  does  not  forfeit  a  constitutional  claim  by  failing  to  raise  it  in  an  

                                                                                                                                                                  

administrative appeal, at least as long as the inmate brings the claim to the Department's  

                                                                                                                                             

attention during the initial stages of the disciplinary process. 421 P.3d at 81. An incident  

                                                                                                                                                        

                                                                                                                                             (continued...)  



                                                                                 -4-                                                                         7299
  


----------------------- Page 5-----------------------

                    In    1995    the    legislature    passed   AS    44.41.035,    creating    the    DNA  



                                                     8  

identification   registration   system.                                                                                     

                                                         This  1995  act  provided  for  collection  of  DNA  

                                                                                                 9  The act "applie[d] to  

                                                                                                                                  

                                                                                      

samples from "person[s] convicted of a crime against a person." 

                                                                                   10  The act defined "crime against  

all convictions occurring on or after [January 1, 1996]."                                                                 

                                                                        



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)(felonyfirst-degreeburglary),AS11.41.210(a)(1)(felonysecond-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  

                                                                                                                                



          7         (...continued)  



                                                                                                                         

report  shows  Simmons  objected  to  retrospective  application  of  the  DNA  sample  

                                                                                                                         

requirement when he was asked to provide a DNA sample.  At his disciplinary hearing  

                                                                                                                             

and in his administrative appeal of the disciplinary decision, he also argued that the DNA  

                                                                                                                            

sample requirement was enacted after his conviction.  And Simmons argued that "[t]he  

                                                                                                                               

DNA statute remains prospective to this day" in his appeal to the superior court.  We  

                                                                                                                   

conclude that Simmons has not forfeited his argument that the DNA sample requirement  

                            

does not apply to him.  



          8         Ch. 10,  2, SLA 1995.  

                                                



          9         Id.  The act also provided for the collection of DNA for minors older than  

                                                                                                                              

16 who were adjudicated as delinquent for crimes that would be crimes against a person  

                                                                                                                           

if committed by an adult.  Id.  

                                         



          10        Id.   3-4.  

                               



          11        Id.   2.  

                             



                                                                -5-                                                         7299
  


----------------------- Page 6-----------------------

 1995 act.             12  



                                                                                                                                                                                                                   

                                  In 2003 the legislature expanded the list of crimes that would require the  

                                                                          13  It required all persons convicted of felonies under AS 11  

                                                                                                                                                                                                                     

                                                       

submission of a DNA sample. 



or AS 28.35 to submit a DNA sample in addition to those convicted of crimes against a  

                                                                                                                                                                                                                        



                   14  

person,                  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  

                                                                                                                                                                                                                



                 12               The Department argues that the date of Simmons's sentencing, in June                                                                                                        



 1996, and not the date he was found guilty, in September 1995, should constitute the date                                                                                                                       

of conviction. We do not have to reach this question because we conclude that Simmons                                                                                                              

was required under the 2003 version of the statute that remained in effect in 2014 to                                                                                                                                

provide a DNA sample, even assuming the date of the guilty verdict constituted the date                                                                                                                         

of conviction.                       In this opinion, we assume that Simmons was convicted before January                                                                                              

 1, 1996.   



                 13               Ch. 88,  5, SLA 2003.  AS 44.41.035 was previously amended in 2001 to  

                                                                                                                                                                                                                      

require people "convicted of burglary or a felony attempt to commit burglary" to submit  

                                                                                                                                                                                                          

a DNA sample.  Ch. 49,  1, SLA 2001.  This change only applied to persons convicted  

                                                                                                                                                                                                  

after September 23, 2001, id.  2, and therefore is not relevant to the analysis whether  

                                                                            

Simmons is required to submit a DNA sample.  

                                                                                                   



                 14               Ch. 88,  5, SLA 2003.  

                                                                                               



                 15              Id.   8.  

                                              



                 16              Id.   12, 16.  

                                                            



                                                                                                          -6-                                                                                                 7299
  


----------------------- Page 7-----------------------

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  



                                                                                                                                                                                           18  

                                                                                                                                                                                                We  

consistently concluded that DNA sample requirements are not ex post facto laws. 



                                        

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  

                                                                            [19]  

                                                  

                               act was committed. 



                17             Simmons also alleges that he had previously refused to provide a DNA                                                                                        



sample in February 1996 and that the Department is precluded from disciplining him                                                                                                              

now.   But Simmons was not disciplined for this earlier refusal:  he was disciplined for                                         

the separate refusal to provide a DNA sample in January 2014.                                                                        



                               Simmons further argues that this is a parole violation issue and that only the                                                                                      

parole board had jurisdiction.                                         He is incorrect as to the procedural posture of this case.                                                                          

Although he refused to provide a DNA sample to a parole officer, he was charged in a                                                                                                                   

prison disciplinary proceeding.              



                18             See State v. Banks, 146 A.3d 1, 5-8 n.7, 13-15 (Conn. 2016) (citing cases  

                                                                                                                                                                                             

from many jurisdictions).  

                            



                19             State v.  Anthony, 816 P.2d  1377,  1378  & n.1 (Alaska 1991)  (quoting  

                                                                                                                                                                                    

                                                                                                                                                                          (continued...)  



                                                                                                 -7-                                                                                         7299
  


----------------------- Page 8-----------------------

                      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                                           



           20  

                                                                                                                                        

facto."         And if a statute has a valid regulatory purpose, it does not violate the ex post  



                     21  

          

facto clause. 



                                                                                                                           22  

                                                                                                                                       

                      The ex post facto clause addresses laws that are penal in nature.                                        We have  



                                                                                                                                   

previously  applied  the  two-part  "intent-effects"  test  to  determine  whether  a  statute  



                                                                                                                                           23  

                                                                                                                      

imposes punishment and violates the ex post facto clause of the Alaska Constitution. 



                                                                                                                  

                      Under   this   test,   a   court   first   determines   whether   the  

                                                                                                                   

                      legislatureintendedtoimposepunishment;ifpunishmentwas  

                                                                                                         

                      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  

                                                                       [24]  

                                                              

                      nonetheless punitive in effect. 



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  

                                                                                                                    



           19         (...continued)  



                                                                                                                                       

Dobbert v. Florida, 432 U.S. 282, 292 (1977)); see also Doe v. State, 189 P.3d 999,  

                              

 1004-06 (Alaska 2008).  



           20         Anthony ,  816  P.2d  at   1378.  



           21         Id .  (citing  De   Veau  v.  Braisted,  363  U.S.   144,   160  (1960)).  



           22         Doe,   189  P.3d  at   1003.  



           23         Id .  at   1003,   1007-19.  



           24         Id .  at   1007  (citing  Smith  v.  Doe,  538  U.S.  84,  92  (2003)).  



                                                                     -8-                                                              7299
  


----------------------- Page 9-----------------------

                       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, "To support criminal justice services in  

                                                                                                                                               



this state,theDepartment 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 requirementappears in the state government title of theAlaska 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 the crimes identified  

                                                                                                                                   

in AS 44.41.035, and to assist in identifying potential suspects.28                                                 From all this we  

                                                                                                                                             



conclude that in creating the DNA registry, the legislature's intent was not penal.  

                                                                                                                               



           25         Id . at 1008 (alteration in original) (quoting                         Kennedy v. Mendoza-Martinez                         ,  



372 U.S. 144, 168-69 (1963)).         



           26         AS  44.41.035(a)  (emphasis  added).  



           27          Ch.  88,     1,  SLA  2003.  



           28         See  Minutes,  H.  Judiciary  Comm.  Hearing  on  H.B.  27,  19th  Leg.,  1st  Sess.  



(Jan.  25,   1995).  



                                                                       -9-                                                               7299
  


----------------------- Page 10-----------------------

                              We next consider the effects of the DNA sample requirement, considering                                                                  



each of the seven factors listed above.                                



                              1.             Affirmative disability or restraint                         



                              Alaska   Statute   44.41.035   requires   no   physical   restraint   or   affirmative  



disability.    In  Doe v. State                              , we found that the Alaska Sex Offender Registration Act                                                                    



(ASORA) was very restrictive because of the wide public dissemination of otherwise                                                                                         



private information and potential ostracismfrompersonal and professional relationships                                                                               

that the sex offender registry could cause.29                                                                                                                                                      

                                                                                                   The same is not true of the DNA registry.  



                                                                                                                                                                                 

The DNA registry is explicitly excluded from the public record and is used in limited  



                                 30  

                                                                                                                                                                                            

circumstances.                           There  is  no  significant  physical  restraint  or  disability  entailed  in  



                                                                                                                                                                                       

collecting the DNA sample:  the sample can be taken using a simple mouth swab.  This  



                                                                                       

factor weighs against finding punitive effects.  



                                                                                                        

                              2.             Historically regarded as punishment  



                                                                                                                                                                                  

                              DNA collection is a relatively new phenomenon in the criminal justice  



                                                                                               31 

                                                                                                                                                                                     

system and has few historical antecedents.                                                          We agree with the Department that DNA  



                                                                                                                                                                                            

collection is akin to fingerprinting and that fingerprinting is traditionally a means of  



                                                                                                                                                                                  

identification rather than punishment.  The same is true in using an oral swab to collect  



                                                                                                                                                                                 

and analyze DNA; the purpose is to generate a record of the person's identity.  



                                                                                                                                                                                           

                              Unlike ASORA, where the public dissemination of information about the  



               29             189  P.3d  at   1008-12.  



               30             AS  44.41.035(f).  



               31             See  Minutes,  H.  Judiciary  Comm.  Hearing  on  H.B.  27,  19th  Leg.,  1st  Sess.  



(Jan.  25,   1995)  (noting  that  Alaska  would  be  the  27th  state  to  start  a  DNA  registry).  



                                                                                            -10-                                                                                      7299
  


----------------------- Page 11-----------------------

                                                                                                            32  

sex   offender   "resemble[d]   the   punishment   of   shaming"                                                and   the   registration   and  

disclosure provisions were "comparable to conditions of supervised release or parole,"                                                                      33  



the DNA registry is not public and has no on-going registration requirement.  To the  

                                                                                                                                                          

                                                                           34  and a DNA sample must only be provided  

contrary, public disclosure is forbidden,                                                                                                      

                                                         

upon request.35               This factor weighs against finding a punitive effect.  

                                                                                                                  



                         3.          Finding of scienter  

                                                           



                         In Doe we observed that ASORA "overwhelmingly applies to offenses that  

                                                                                                                                                          



require a finding of scienter for conviction" and that the few strict liability offenses to  

                                                                                                                  



which ASORAapplies, such as statutory rape, were such that "the law deems sufficiently  

                                                                                                                                            

harmful to effectively assume scienter."36  

                                                                                                                                             

                                                                               Without further explanation, we concluded  



                                                                                                                                                37  

                                                                                                                                                     There  

that this factor weakly implied a punitive effect and gave this factor little weight. 



                                                                                                                                                          

is a stronger argument that the DNA sample requirement is non-punitive because the  



                                                                                                                                               

requirement applies to more offenses that do not require a finding of scienter, including  



                                                                                                                                                         

most motor vehicle felonies under AS 28.35.  Thus, even assuming that this factor still  



                                                                                           

weakly implies a punitive effect, we give it little weight.  



                                                                                                                                        

                         4.          Traditional aims of punishment:  retribution and deterrence  



                                                                                                                                                        

                         Requiringpersons convicted ofcertaincrimestosubmit DNAsamples does  



            32          Doe, 189 P.3d at 1012 (citing                         E.B. v. Verniero             , 119 F.3d 1077, 1115-19 (3d                   



Cir. 1997) (Becker, J., concurring in part and dissenting in part)).                                          



            33          Id.  (quoting  Smith  v.  Doe,  538  U.S.  84,  115  (2003)  (Ginsburg,  J.,  

                                                                                                                                                           

dissenting)).  



            34           See AS 44.41.035(f).  

                                        



            35           See AS  11.56.760(a)(2); AS 33.16.150(a)(12).  

                                                                               



            36          Doe, 189 P.3d at 1012-13.  

                                                         



            37          Id. at 1013.  

                                    



                                                                            -11-                                                                      7299
  


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not have retributive or deterrent effects. We                                   found ASORAapplied                        to "a broad spectrum  



of crimes regardless of their inherent or comparative seriousness," and we concluded its                                                                    



"registrationand               unlimited public dissemination requirements                                       provide[d]adeterrent                    and  

                                  38    Unlike ASORA, the requirement to submit samples to the DNA  

retributive effect."                                                                                                                                  



registry is limited to certain felonies, violent crimes against a person, and motor vehicle  

                                                                                                                                                   

offenses.39   The purpose for requiring a convicted person to provide a DNA sample is to  

                                                                                                                                                             



create a DNA database for offenders of crimes with a high recidivism rate. And again,  

                                                                                                              

the information is not publicly disseminated.40                                          It is difficult to conclude the act has a  

                                                                                                                                                              



retributive effect.  

                     



                         It could be argued that there is a deterrent effect because law enforcement  

                                                                                                                                         



will have personal identifying information in its database. However, the same is true for  

                                                                                                                                                           



providing fingerprints upon arrest.   In this case, DNA was not requested until after  

                                                                                                                                                       



Simmons was convicted. Given that the information in the database is not publicly  

                                                                                                                                                



disseminated, the deterrent effects that were present with ASORA are not present under  

                                                                                                                                                      



the DNA registry.  This factor weighs against finding a punitive effect.  

                                                                                                                        



                         5.          Application only to criminal behavior  

                                                                                              



                         In Doe we explained that where a statute applies only to behavior that is  

                                                                                                                                                             

already a crime, this supports a conclusion that the statute's effects are punitive.41   In this  

                                                                                                                                                          



case, the statute applies only to criminal behavior, so this weighs in favor of finding a  

                                                                                                                                                              



punitive effect.  

                 



            38          Id . at 1013-14.     



            39  

                                        

                         See AS 44.41.035(b).  



            40  

                                        

                         See AS 44.41.035(f).  



            41  

                                                                                                                                                         

                        Doe, 189 P.2d at1014(citing Kennedyv. Mendoza-Martinez, 372 U.S.144,  

         

 168 (1963)).  



                                                                            -12-                                                                      7299
  


----------------------- Page 13-----------------------

                       6.          Advancing a non-punitive interest                  



                       In   Doe   we   explained   that   this   factor   inquires   into   whether  there   is   a  



                                                                         42  

legitimate, regulatory purpose for the law.                                                                                                        

                                                                             As expressly set forth in AS 44.41.035, the  



                                                                                                                                                     43  

                                                                                                                                                          

                                                                                                                                          

legislature's stated purpose was "[t]o support criminal justice services in this state." 



                                                                                                                                       

And in 2003 the legislature found that the DNA registration system was "an important  



                                                                                                                                    

tool in the investigation of crime, both in excluding innocent persons and in detecting  



                                                                                                                                           

repeat offenders . . . [and] [would] greatly assist law enforcement agencies in solving  



                                                                    44  

                                                                                                                                                   

crimes and detecting repeat offenders."                                  Based on these statements, the purpose of the  



                                                                                                      

DNA registry is to address crimes with a high recidivism rate and maintain a database  



                                                                                                                                                   

that aids in protecting the public safety. Similar reasons were given for ASORA and we  

                                                                                                     45   This factor weighs against  

                                                                                                                                            

                                                                                        

concluded that ASORA advanced a non-punitive interest. 



finding a punitive effect.  

                                 



                       7.          Closeness of means to State's interest  

                                                                                           



                       The final question is whether the statute's regulatory means are excessive  

                                                                                                                                        



in relation to their purpose.  The "means . . . include the scope of the statute and the  

                                                                                                                                                   



obligations  it  imposes on  those  subject  to  it  and  what  the  state  can  or  must  do  in  

                                                                                                                                                    

enforcing it."46  

                   

                                                                                                                                                  

                           In Doe we concluded that (1) ASORA was overbroad because there was  



                                                                                                                                   

no escape from its requirements even if an individual could show he was successfully  



                                                                                                                                      

rehabilitated; (2) ASORA was underinclusive because individuals who had committed  



            42         Id . at 1015.     



            43         AS 44.41.035(a).  

                               



            44         Ch. 88,  1, SLA 2003.  

                                                       



            45         Doe, 189 P.3d at 1015-16.         



            46         Id . at 1017.     



                                                                        -13-                                                                   7299
  


----------------------- Page 14-----------------------

the same crimes but pleaded guilty to or were convicted of lesser offenses were not                                                                                         



subject to the same disclosure requirements; (3) ASORA's requirements were excessive                                                                            



in   relation   to   its   non-punitive   purpose   because   the   registration   requirements   were  



"demanding and intrusive and [were] of long duration," and (4) the State's dissemination                                                               

                                                                                                                     47    The same concerns are not  

of the sex offender's private information was sweeping.                                                                                                                     



present here.  While there is no escape from the requirement to submit to DNA testing,  

                                                                                                                                                                    



AS 44.41.035 does not substantially burden individuals like ASORA does.  And unlike  

                                                                                                                                                                      



ASORA, a person required to provide a DNA sample does not have to register and re- 

                                                                                                                                                                             



register  or  update  private  information  that  is  then  distributed  to  the  public.  The  

                                                                                                                                                                          



registration requirements  of  AS  44.41.035 are not demanding or intrusive, and the  

                                                                                                                                                                            



information  in  the  DNA  registry  is  not  widely  disseminated.                                                                        The  DNA  sample  

                                                                                                                                                                   



requirement is similar to being fingerprinted when arrested for a crime.   This factor  

                                                                                                                                                                      



weighs in favor of finding the statute is not punitive.  

                                                                                                              



                            8.           Effects of AS 44.41.035  

                                                                        



                            Considering theseven factors, we concludetheeffectsofAS44.41.035 and  

                                                                                                                                                                            



its implementing statutes are not punitive in nature.   The DNA registry has a valid  

                                                                                                                                                                        



regulatory purpose of collecting and maintaining identifying information in a database  

                                                                                                                                                                 



to aid law enforcement efforts and to enhance public safety similar to the purposes of  

                                                                                                                                                                              



fingerprinting. The concerns we had with the burdensome and invasive requirements of  

                                                                                                                                                                               



ASORA are not present under the DNA registry scheme.  DNA information collected  

                                                                                                                                                                



from  persons  subject  to  the  DNA  registry  act  is  prohibited  from  being  publicly  

                                                                                                                                                  



distributed.  And the means of collecting the DNA - a mouth swab - is minimally  

                                                                                                                                                              



intrusive.  We conclude that the DNA sample requirement does not violate the ex post  

                                                                                                                                             



facto clause in article I, section 9 of the Alaska Constitution.  

                                                                                                   



              47  

                                                                        

                           Id . (cross-references omitted).  



                                                                                     -14-                                                                                      7299  


----------------------- Page 15-----------------------

                              We similarly conclude that the DNA sample requirement does not violate                                                                             



                                                                                                                                                            48  

the ex post facto clause in article I, section 10 of the U.S. Constitution.                                                                                                  

                                                                                                                                                                  The Supreme  



                                                                                                                                                                                     

Court  has  employed  the  intent-effects  test  to  ex  post  facto  claims  under  the  U.S.  

                             49  In Smith v. Doe, the Supreme Court concluded that ASORA satisfied the  

Constitution.                                                                                                                                                                             

federal  intent-effects  test.50                                   If  the  Supreme  Court  concluded  ASORA,  a  far  more  

                                                                                                                                                                                    



intrusive (and in our view, punitive) law, did not offend the U.S. Constitution's ex post  

                                                                                                                                                                                       



facto  clause,  the  Court  certainly  would  uphold  a  federal  ex  post-fact  challenge  to  

                                                                                                                                                                                           



Alaska's DNA registry process. We conclude the DNA registry act passes muster under  

                                                                                                                                                                                    



the U.S. Constitution's ex post facto clause.  We affirm the superior court's decision.  

                                                                                                                                                                         



               C.             Simmons Was Not Prejudiced By The Denial Of Counsel.  

                                                                                                                                                  



                              In McGinnis v. Stevens, we outlined "the contours and substance of the due  

                                                                                                                                                                                         



process rights to which a prisoner is entitled in prison disciplinary hearings under the  

                                                                                                                                                                                         

federal and Alaska constitutions."51  

                                                                                                                                                                                            

                                                                                  We held that inmates have the right to counsel in  



                                                                                                                                                                                            52  

                                                                                                                                                                                                  

major disciplinary proceedings "where misconduct constituting a felony is charged." 



This   is   because   the   realistic   possibility   of   criminal   charges   in   such   a   case   presents  

concerns of self-incrimination.                                     53  



                              The   superior   court   ruled   that   the   Department   of   Corrections   violated  



Simmons's constitutional rights by denying Simmons a lawyer.  The Department does                                                                                                     



               48             U.S. Const. art. I,  10 (                             "No   State   shall . . . pass any . . . ex post facto                                          



Law . . . ."           ).  



               49            Doe, 189 P.3d at 1007 (citing                                      Smith v. Doe                 , 538 U.S. 84, 92 (2003)).                                 



               50             538 U.S. at 92-106.  

                                                         



               51             543 P.2d 1221, 1224 (Alaska 1975).  

                                                                                                 



               52            Id.  at 1231-35.   



               53            Id.  at 1233-35.   



                                                                                            -15-                                                                                     7299
  


----------------------- Page 16-----------------------

not appeal this ruling, and we agree the Department's refusal to provide counsel to                                                                                                                                                                                                                                                                                    



 Simmons in the face of clear case law requiring it to do so was a clear violation of                                                                                                                                                                                                                                       



 Simmons's constitutional right to counsel.                                                                                                      



                                                         However, the Department's violation of an inmate's constitutional right to                                                                                                                                                                                                                                     



counsel in itself is not sufficient to reverse the Department's disciplinary decision - to                                                                                                                                                                                                                                                                              



overturn a prison disciplinary decision AS 33.30.295(b)(1) requires the court to find that                                                                                                                                                                                                                                                                       



a violation of the prisoner's fundamental constitutional rights "prejudiced the prisoner's                                                                                                                                                                                                                                           



right to a fair adjudication."                                                                                            The superior court ruled that the Department's denial of                                                                                                                                                                                     



counsel to Simmons was "harmless error." We interpret this as a ruling that Simmons's                                                                                                                                                                                                                                           



right to a fair adjudication was not prejudiced by the Department's denial of counsel to                                                                                                                                                                                                                                                                                



him, and so interpreted, we agree with the superior court.                                                                                                                                                                 



                                                         We have explained that the right to counsel under the Alaska Constitution                                                                                                                                                                                         



for inmatescharged with major disciplinary proceedings constituting                                                                                                                                                                                                                            afelony stems from                                           



                                                                                                                                                                                                                                                                                                                                                                          54  

the U.S. Supreme Court's decisions in                                                                                                                           Miranda v. Arizona                                                                   and  Mathis v. United States                                                                                       .    



In Miranda, the Court held that persons facing custodial interrogation must be informed  

                                                                                                                                                                                                                                                                                                                                         

of their right to remain silent and, if indigent, must be provided a lawyer if requested;55  

                                                                                                                                                                                                                                                                                                                             



in Mathis, the Court applied Miranda to an interrogation in a "routine tax investigation"  

                                                                                                                                                                                                                                                                                                                    

where the person was someone already in custody for unrelated reasons.56   In McGinnis,  

                                                                                                                                                                                                                                                                                                                                    



weheldundertheAlaskaConstitutionthat theseself-incrimination concernsnecessitated  

                                                                                                                                                                                                                                                                                                                              



that  inmates  charged  with  conduct  constituting  a  felony  in  a  major  disciplinary  

                                                                                                                                                                                                                                                                                                                          



                             54                         Id.   at 1235 (citing                                                            Miranda v. Arizona                                                                       , 384 U.S. 436 (1966);                                                                              Mathis v.   



 United States                                            , 391 U.S. 1 (1968)).                          



                             55                         Miranda, 384 U.S. at 467-74.  

                                                                                                                                                      



                             56                         Mathis, 391 U.S. at 2-5.  

                                                                                                                                              



                                                                                                                                                                                -16-                                                                                                                                                                        7299
  


----------------------- Page 17-----------------------

                                                                                                           57  

proceeding must be provided a lawyer.                                                                             The rationale underlying an inmate's due                                                               



process right to counsel when charged with felonious misconduct in a major disciplinary                                                                                                              



proceeding is that the inmate may make incriminating statements in the administrative                                                                                                         



proceeding and the State may attempt to use these statements against the inmate in                                                                                                                                            

                                                                                                                             58          The  presence  of  counsel  in  the  

parallel   or   subsequent   criminal   proceedings.                                                                                                                                                                     



disciplinary  proceeding  in  most cases  should  protect the inmate from making  self- 

                                                                                                                                                                                                                       



incriminating statements.  

                                      



                                   In this case, however, counsel would not have made any difference. There  

                                                                                                                                                                                                                    



was only one material fact in issue:  did Simmons refuse to provide a DNA sample as  

                                                                                                                                                                                                                              



required by law?  Simmons did not dispute this fact, and he could not have denied it as  

                                                                                                                                                                                                                              



a practical matter because he in fact refused to provide a DNA sample and to this day  

                                                                                                                                                                       



continues to assert that the State has no legal right to require him to provide a DNA  

                                                                                                                                                                                                                   



 sample.                   Indeed,  Simmons  admitted  this  sole  material  fact  at  every  stage  in  the  

                                                                                                                                                                                                                 



proceedings, including in his appellant's brief to this court.  There being no disputed  

                                                                                                                                                                                   



material facts at issue, his arguments were purely legal, and as explained above, none of  

                                                                                                                                                                                                                              



his legal arguments have merit. Thus, on the facts of this case, we are unable to conclude  

                                                                                                                                                                                                            



                  57               McGinnis,543                            P.2d at 1232-35. Although                                            theU.S.               SupremeCourt                            rejected  



this   interpretation   of   Miranda   and   Mathis   for   the   U.S.   Constitution   in   Baxter   v.  

Palmigiano, 425 U.S. 308, 314-15 (1976), our holding in                                                                                                   McGinnis  was based on the                                       

Alaska Constitution.                                      See McGinnis                            , 543 P.2d at 1236 ("[W]e have concluded that                                           

Alaska's Constitution requires greater due process protections than the United States                                                                                                          

Constitution in the following respects: a prisoner has the right to counsel in conjunction                                                                                                          

with major disciplinary proceedings when felony prosecution may result . . . .");                                                                                                                             see also   

James v. State, Dep't of Corr.                                                 , 260 P.3d 1046, 1051 n.17 (Alaska 2011),                                                                        overruled on  

other grounds by Walker v. State,                                                               Dep't of Corr.                          , 421 P.3d 74, 81 (Alaska 2018);                                         

McGinnis v. Stevens                                   , 570 P.2d 735, 736-37 (Alaska 1977).                                               



                  58                Simmons was criminally charged for his refusal to provide a DNA sample,  

                                                                                                                                                                                                                

but the State later dismissed the charges.   State v. Simmons, No. 3PA-14-00333 CR  

                                                                                                                                                                                                                          

 (Alaska Super., dismissed Apr. 5, 2016).  

                                                                                           



                                                                                                             -17-                                                                                                     7299
  


----------------------- Page 18-----------------------

that the Department's unconstitutional failure to provide Simmons with an attorney  

                                                                                                                 



prejudiced his right to a fair adjudication.  So though it is undisputed the Department  

                                                                                                            



violated Simmons's constitutional right to counsel -which we strongly condemn -we  

                                                                                                                         



must affirm the superior court because the violation did not prejudice Simmons.  

                                                                                                     



V.        CONCLUSION  



                   We AFFIRM the superior court's decision upholding the Department of  

                                                                                                                          



Corrections' disciplinary decision.  

                                      



                                                           -18-                                                      7299
  

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