HF 3856

as introduced - 92nd Legislature (2021 - 2022) Posted on 03/23/2022 12:31pm

A bill for an act
relating to public safety; presuming departure from the Sentencing Guidelines for
certain offenders who have been the victim of domestic abuse, sexual assault, or
sex trafficking; providing for resentencing for certain offenders who have been
the victim of domestic abuse, sexual assault, or sex trafficking; proposing coding
for new law in Minnesota Statutes, chapter 609.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

new text begin [609.1057] CRIMES COMMITTED BY DOMESTIC ABUSE AND
SEXUAL ASSAULT VICTIMS; DEPARTURE AUTHORIZED.
new text end

new text begin Subdivision 1. new text end

new text begin Definitions. new text end

new text begin (a) As used in this section, the following terms have the
meanings given.
new text end

new text begin (b) "Domestic abuse" has the meaning given in section 518B.01, subdivision 2, paragraph
(a).
new text end

new text begin (c) "Prosecutor" means the attorney general, county attorney, or city attorney responsible
for the prosecution of individuals charged with a crime.
new text end

new text begin (d) "Sexual assault" means an act that would constitute a violation of section 609.342,
609.343, 609.344, 609.345, 609.3451, or 609.3458.
new text end

new text begin (e) "Sex trafficking" has the meaning given in section 609.321, subdivision 7a.
new text end

new text begin Subd. 2. new text end

new text begin Offenses committed by domestic abuse, sexual assault, and sex trafficking
victims. new text end

new text begin (a) When a court is sentencing an offender, the court shall consider information
that the person has been the victim of domestic abuse, sexual assault, or sex trafficking.
new text end

new text begin (b) The court may also consider information that the domestic abuse, sexual assault, or
sex trafficking caused or exacerbated sexual trauma, post-traumatic stress disorder, or any
other mental health condition.
new text end

new text begin (c) The court may consider the statement of the offender and any other information,
including court records, military service records, social services records, medical records,
and statements of witnesses. The court may issue an order permitting the filing of records
that are not otherwise public, including military service records, social services records,
and medical records under seal or as confidential and may issue any other order to maintain
the confidentiality of records including excising any part of the records or requiring that
review be made in camera.
new text end

new text begin Subd. 3. new text end

new text begin Stay of imposition or execution. new text end

new text begin (a) Notwithstanding any mandatory minimum
sentence or other law to the contrary, when (1) an offender who has been the victim of
domestic abuse, sexual assault, or sex trafficking is convicted of an offense, (2) the
presumptive sentence under the Sentencing Guidelines is commitment to the custody of the
commissioner of corrections, and (3) the court finds that the offender committed the offense
as a result of being the victim of domestic abuse, sexual assault, or sex trafficking, the
offender is presumed to be particularly amenable to probation and a stay of imposition or
execution of sentence is presumed to be in the public interest unless there is clear and
convincing evidence that a mitigated dispositional departure would increase the risk that
the offender poses to a specific individual or the public.
new text end

new text begin (b) In determining whether a mitigated dispositional departure would increase the risk
that the offender poses to a specific individual or the public, the court shall consider the
statement of any victim.
new text end

new text begin (c) Nothing in this subdivision prohibits the court from announcing a sentence that is a
mitigated dispositional departure based on any other mitigating factor.
new text end

new text begin Subd. 4. new text end

new text begin Duration of confinement. new text end

new text begin The court may determine that the conduct of an
offender who was the victim of domestic abuse, sexual assault, or sex trafficking that caused
or exacerbated sexual trauma, post-traumatic stress disorder, or any mental health condition
was significantly less serious than that typically involved in the commission of the offense.
Notwithstanding any mandatory minimum sentence or other law to the contrary, if the court
determines that a history of domestic abuse, sexual assault, or sex trafficking mitigates the
offender's culpability, the court may execute a sentence that is a mitigated durational
departure.
new text end

new text begin Subd. 5. new text end

new text begin Supportive services. new text end

new text begin If the court places an offender who was the victim of
domestic abuse, sexual assault, or sex trafficking on probation, the court may require as a
condition of probation that the offender participate in treatment or programming to support
the offender in addressing behaviors and mental health conditions arising from or exacerbated
by experiences of domestic abuse, sexual assault, or sex trafficking.
new text end

new text begin Subd. 6. new text end

new text begin Sentences imposed before August 1, 2022; petition for resentencing. new text end

new text begin (a) An
offender who was the victim of domestic abuse, sexual assault, or sex trafficking and was
sentenced for an offense before August 1, 2022, may petition for resentencing under this
subdivision by filing a petition in the district court in the county in which the person was
convicted.
new text end

new text begin (b) A person financially unable to obtain counsel who desires to pursue the remedy
provided in this subdivision may apply for representation by the state public defender. The
state public defender shall represent the person under sections 611.14 to 611.27.
new text end

new text begin (c) The contents of the petition, cost, and filing shall be as provided in section 590.02,
subdivision 1.
new text end

new text begin (d) Within 20 days after the filing of the petition under this subdivision or within the
time that the judge to whom the matter has been assigned may fix, the prosecutor shall
respond to the petition by answer or motion which shall be filed with the court administrator
of the district court and served on the petitioner if unrepresented or on the petitioner's
attorney. No further pleadings are necessary except as the court may order or permit. The
court may at any time prior to its decision on the merits permit a withdrawal of the petition,
may permit amendments thereto, and to the answer. The court shall liberally construe the
petition and any amendments thereto and shall look to the substance thereof and waive any
irregularities or defects in form.
new text end

new text begin (e) The prosecutor shall make a good faith and reasonable effort to notify any person
determined to be a victim of the offense for which resentencing is sought of the existence
of a petition. Notification under this paragraph does not constitute a violation of an existing
order for protection, restraining order, or other no contact order. Notice to a victim of the
offense must:
new text end

new text begin (1) specifically inform the victim of the right to object, orally or in writing, to the
proposed resentencing;
new text end

new text begin (2) inform the victim of the day, time, and right to be present and to submit an oral or
written statement at the hearing described in paragraph (f); and
new text end

new text begin (3) inform the victim that if the victim notifies the prosecutor of an objection to the
proposed resentencing and is not present when the court considers the petition, the prosecutor
shall make these objections known to the court.
new text end

new text begin (f) The court shall hold a hearing on the petition no sooner than 60 days after filing the
petition. The hearing shall be scheduled so that the parties have adequate time to prepare
and present arguments regarding the issue of resentencing. The parties may make oral
arguments before the court at the hearing. The petitioner must be present at the hearing,
unless excused under Rules of Criminal Procedure, rule 26.03, subdivision 1, clause (3).
new text end

new text begin (g) A victim of the offense for which resentencing is sought has a right to submit an oral
or written statement to the court at the time of the hearing describing the harm suffered by
the victim as a result of the crime and the victim's recommendation on whether resentencing
should be granted or denied. The judge shall consider the victim's statement when making
a decision.
new text end

new text begin (h) The court shall determine whether the petitioner has been the victim of domestic
abuse, sexual assault, or sex trafficking and may consider information that the domestic
abuse, sexual assault, or sex trafficking caused or exacerbated sexual trauma, post-traumatic
stress disorder, or any other mental health condition. If the court determines that the petitioner
was the victim of domestic abuse, sexual assault, or sex trafficking, and that the offender
committed the offense as a result of being the victim of domestic abuse, sexual assault, or
sex trafficking, the court shall determine if resentencing the petitioner is in the public interest.
Resentencing is presumed to be in the public interest unless there is clear and convincing
evidence that resentencing would increase the risk that the offender poses to any specific
individual or the public. In making this determination, the court must consider any statement
made or submitted by a victim and may consider factors relating to both the petitioner and
the offense, including:
new text end

new text begin (1) information establishing that the petitioner was the victim of domestic abuse, sexual
assault, or sex trafficking;
new text end

new text begin (2) court records, military service records, social services records, medical records, and
statements of witnesses describing any incidents of domestic abuse, sexual assault, or sex
trafficking and the impact on the petitioner's mental health;
new text end

new text begin (3) the petitioner's performance on probation or supervision;
new text end

new text begin (4) the petitioner's disciplinary record during any period of incarceration;
new text end

new text begin (5) records of any rehabilitation efforts made by the petitioner since the date of the
offense and any plan to continue those efforts in the community; and
new text end

new text begin (6) any other information relevant to determining whether resentencing is in the public
interest.
new text end

new text begin (i) Notwithstanding any mandatory minimum sentence or any other law to the contrary,
if the court determines that resentencing is in the public interest, the court may modify the
sentence in any way provided the adjustment does not:
new text end

new text begin (1) increase the period of confinement or, if the individual is serving a stayed sentence,
increase the period of supervision;
new text end

new text begin (2) reduce or eliminate the amount of court-ordered restitution; or
new text end

new text begin (3) reduce or eliminate a term of conditional release required by law when a court
commits an offender to the custody of the commissioner of corrections.
new text end

new text begin (j) The court shall state in writing or on the record the reasons for its decision on the
petition.
new text end

new text begin (k) For purposes of appeal, an order issued under this subdivision shall not be considered
a final judgment, but shall be treated as an order imposing or staying a sentence.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2022.
new text end