S-5058

   Amend  the amendment, S-5052, to Senate File 2328, as follows:
   1.  By striking page 1, line 1, through page 17, line 13, and inserting: 
   <Amend Senate File 2328 as follows:
   1.  By striking everything after the enacting clause and inserting: 
<DIVISION I
COMMUNICATIONS IN PROFESSIONAL CONFIDENCE —— CRIMINAL ACTIONS

   Section 1.  Section 622.10, subsection 4, paragraph a, subparagraph (2), Code 2022, is amended by adding the following new subparagraph division:
   NEW SUBPARAGRAPH DIVISION.  (e)  For purposes of this subsection, “exculpatory information” means only information that tends to negate the guilt of the defendant, and not information that is merely impeaching or is substantially cumulative in nature.
DIVISION II
NO-CONTACT ORDERS

   Sec. 2.  Section 664A.8, Code 2022, is amended to read as follows:
   664A.8  Extension of no-contact order.
   Upon the filing of an application by the state or by the victim of any public offense referred to in section 664A.2, subsection 1 which is filed within ninety days prior to the expiration of a modified no-contact order, the The court shall modify and extend the no-contact order upon the expiration of the no-contact order for an additional period of five years, unless, upon the filing of an application by the defendant within ninety days prior to the expiration of a modified no-contact order, the court finds that the defendant no longer poses a threat to the safety of the victim, persons residing with the victim, or members of the victim’s family. The number of modifications extending the no-contact order permitted by this section is not limited.
DIVISION III
DOMESTIC ABUSE ASSAULT PENALTIES

   Sec. 3.  Section 708.2A, subsection 6, paragraph a, Code 2022, is amended by striking the paragraph.
DIVISION IV
LIMITATION OF CRIMINAL ACTIONS INVOLVING CERTAIN SEXUAL OFFENSES

   Sec. 4.  Section 802.2B, Code 2022, is amended by adding the following new subsections:
   NEW SUBSECTION.  5A.  Continuous sexual abuse of a child in violation of section 709.23. 
   NEW SUBSECTION.  5B.  Kidnapping in the first degree when the person kidnapped, and as a consequence of the kidnapping, is intentionally subjected to sexual abuse in violation of section 710.2. 
   NEW SUBSECTION.  5C.  Burglary in the first degree in violation of section 713.3, subsection 1, paragraph “d”.
   Sec. 5.  Section 802.2C, Code 2022, is amended to read as follows:
   802.2C  Kidnapping.
   An information or indictment for kidnapping in the first, second, or third degree, except as provided in section 802.2B, committed on or with a person who is under the age of eighteen years shall be found within ten years after the person upon whom the offense is committed attains eighteen years of age, or if the person against whom the information or indictment is sought is identified through the use of a DNA profile, an information or indictment shall be found within three years from the date the person is identified by the person’s DNA profile, whichever is later.
DIVISION V
CRIMINAL SENTENCING AND CORRECTIONS

   Sec. 6.  Section 901.4B, subsection 2, Code 2022, is amended to read as follows:
   2.  After hearing any statements presented pursuant to subsection 1, and before imposing sentence, the court shall address any victim of the crime who is physically present at the sentencing and shall allow do all of the following:
   a.  Ask any victim or representative of the victim whether the victim has been informed by the prosecuting attorney or the prosecuting attorney’s designee of the status of the case and of the prosecuting attorney’s recommendation for sentencing.
   b.  Allow any victim to be reasonably heard, including but not limited to by presenting a victim impact statement in the manner described in section 915.21.
   Sec. 7.  Section 901.8, Code 2022, is amended to read as follows:
   901.8  Consecutive sentences.
   1.  If a person is sentenced for two or more separate offenses, the sentencing judge may order the second or further sentence to begin at the expiration of the first or succeeding sentence.
   2.  If a person is sentenced for escape under section 719.4 or for a crime committed while confined in a detention facility or penal institution, the sentencing judge shall order the sentence to begin at the expiration of any existing sentence. If the person is presently in the custody of the director of the Iowa department of corrections, the sentence shall be served at the facility or institution in which the person is already confined unless the person is transferred by the director.
   3.  If a person is sentenced for two or more separate offenses contained in section 902.12, subsection 1, and one or more of the convictions is for an offense under chapter 709 or chapter 710, the sentencing judge shall require that the sentences be served consecutively.
   4.  Except as otherwise provided in section 903A.7, if consecutive sentences are specified in the order of commitment, the several terms shall be construed as one continuous term of imprisonment.
   Sec. 8.  Section 901.11, subsections 2, 3, 4, and 5, Code 2022, are amended to read as follows:
   2.  At the time of sentencing, the court shall determine when a person convicted of child endangerment as described in section 902.12, subsection 2 3, shall first become eligible for parole or work release within the parameters specified in section 902.12, subsection 2 3, based upon all pertinent information including the person’s criminal record, a validated risk assessment, and whether the offense involved multiple intentional acts or a series of intentional acts, or whether the offense involved torture or cruelty.
   3.  At the time of sentencing, the court shall determine when a person convicted of robbery in the first degree as described in section 902.12, subsection 3 4, shall first become eligible for parole or work release within the parameters specified in section 902.12, subsection 3 4, based upon all pertinent information including the person’s criminal record, a validated risk assessment, and the negative impact the offense has had on the victim or other persons. 
   4.  At the time of sentencing, the court shall determine when a person convicted of robbery in the second degree as described in section 902.12, subsection 4 5, shall first become eligible for parole or work release within the parameters specified in section 902.12, subsection 4 5, based upon all pertinent information including the person’s criminal record, a validated risk assessment, and the negative impact the offense has had on the victim or other persons.
   5.  At the time of sentencing, the court shall determine when a person convicted of arson in the first degree as described in section 902.12, subsection 5 6, shall first become eligible for parole or work release within the parameters specified in section 902.12, subsection 5 6, based upon all pertinent information including the person’s criminal record, a validated risk assessment, and the negative impact the offense has had on the victim or other persons.
   Sec. 9.  NEW SECTION.  902.9A  Minimum sentence —— certain felonies.
   The minimum sentence for any person convicted of a felony contained in section 902.12, and who did not receive a deferred judgment or a deferred or suspended sentence under chapter 907, shall be that prescribed by statute or, if not prescribed by statute, shall be determined as follows:
   1.  A class “B” felon shall be confined for no less than one year.
   2.  A class “C” felon shall be confined for no less than two months.
   3.  A class “D” felon shall be confined for no less than one month.
   Sec. 10.  Section 902.12, Code 2022, is amended to read as follows:
   902.12  Minimum sentence for certain felonies —— eligibility for parole or work release.
   1.  A person serving a sentence for conviction of any of the following felonies that occur on or after July 1, 2022, if other than a class “A” felony, shall be denied parole or work release unless the person has served at least nine-tenths of the maximum term of the person’s sentence:
   a.  Homicide or a related crime in violation of chapter 707.
   b.  Assault in violation of chapter 708.
   c.  Terrorism in violation of chapter 708A.
   d.  Sexual abuse in violation of chapter 709.
   e.  Kidnapping or related offenses in violation of chapter 710.
   f.  Human trafficking in violation of chapter 710A, except for a violation of section 710A.2A.
   g.  Robbery, aggravated theft, or extortion in violation of chapter 711.
   h.  Arson in violation of chapter 712.
   i.  Burglary in violation of chapter 713, except for a violation of section 713.7.
   j.  Criminal gang participation or gang recruitment in violation of chapter 723A.
   k.  Sexual exploitation of a minor in violation of section 728.12.
   1.  2.  A person serving a sentence for conviction of any of the following felonies, including a person serving a sentence for conviction of the following felonies that occur prior to July 1, 2003 2022, shall be denied parole or work release unless the person has served at least seven-tenths of the maximum term of the person’s sentence:
   a.  Murder in the second degree in violation of section 707.3.
   b.  Attempted murder in violation of section 707.11, except as provided in section 707.11, subsection 5.
   c.  Sexual abuse in the second degree in violation of section 709.3.
   d.  Kidnapping in the second degree in violation of section 710.3.
   e.  Robbery in the second degree in violation of section 711.3, except as determined in subsection 4 5.
   f.  Vehicular homicide in violation of section 707.6A, subsection 1 or 2, if the person was also convicted under section 321.261, subsection 4, based on the same facts or event that resulted in the conviction under section 707.6A, subsection 1 or 2.
   2.  3.  A person serving a sentence for a conviction of child endangerment as defined in section 726.6, subsection 1, paragraph “b”, that is described and punishable under section 726.6, subsection 5, shall be denied parole or work release until the person has served between three-tenths and seven-tenths of the maximum term of the person’s sentence as determined under section 901.11, subsection 2.
   3.  4.  A person serving a sentence for a conviction for robbery in the first degree in violation of section 711.2 for a conviction that occurs on or after July 1, 2018 prior to July 1, 2022, shall be denied parole or work release until the person has served between one-half and seven-tenths of the maximum term of the person’s sentence as determined under section 901.11, subsection 3.
   4.  5.  A person serving a sentence for a conviction for robbery in the second degree in violation of section 711.3 for a conviction that occurs on or after July 1, 2016 prior to July 1, 2022, shall be denied parole or work release until the person has served between one-half and seven-tenths of the maximum term of the person’s sentence as determined under section 901.11, subsection 4.
   5.  6.  A person serving a sentence for a conviction for arson in the first degree in violation of section 712.2 that occurs on or after July 1, 2019 prior to July 1, 2022, shall be denied parole or work release until the person has served between one-half and seven-tenths of the maximum term of the person’s sentence as determined under section 901.11, subsection 5.
   Sec. 11.  Section 903A.2, subsection 1, paragraph c, Code 2022, is amended to read as follows:
   c.  Category “C” sentences are those sentences for attempted murder described in section 707.11, subsection 5, and sentences for the offenses described in section 902.12, subsection 1. Notwithstanding paragraphs paragraph “a” or “b”, an inmate serving a category “C” sentence is ineligible for a reduction of sentence under this section. 
DIVISION VI
PAROLE AND WORK RELEASE

   Sec. 12.  Section 906.4, subsection 1, Code 2022, is amended to read as follows:
   1.  A parole or work release shall be ordered only for the best interest of society, any victim of the person, and the offender person, not as an award of clemency. The board shall release on parole or work release any person whom it has the power to so release, only when in its opinion there is reasonable a significant probability that the person can be released without detriment to the community, any victim of the person, or to the person. A person’s release is not a detriment to the community, any victim of the person, or the person if the person is able and willing to fulfill the obligations of a law-abiding citizen, in the board’s determination.
   Sec. 13.  Section 906.5, subsection 1, paragraph a, Code 2022, is amended to read as follows:
   a.  The board shall establish and implement a plan by which the board systematically reviews the status of each person who has been committed to the custody of the director of the Iowa department of corrections and considers the person’s prospects for parole or work release. The board shall, at least annually shall but no more frequently than every six months, review the status of a person other than a class “A” felon, a class “B” felon serving a sentence of more than twenty-five years, or a felon serving an offense punishable under section 902.9, subsection 1, paragraph “a”, or a felon serving a mandatory minimum sentence other than a class “A” felon, and provide the person with notice of the board’s parole or work release decision.
   Sec. 14.  Section 906.5, subsection 1, Code 2022, is amended by adding the following new paragraph:
   NEW PARAGRAPH.  c.  The board shall require that all parole hearings be recorded and maintained as public records under chapter 22 for a minimum of three years from the date of the hearing or the most recent release of an inmate on parole. 
   Sec. 15.  Section 906.5, subsection 2, Code 2022, is amended to read as follows:
   2.  It is the intent of the general assembly that the board shall implement a plan of early release in an effort to assist in controlling the prison population and assuring prison space for the confinement of offenders whose release would be detrimental to the citizens of this state to ensure that parole or work release is only ordered when in the best interest of society, any victim of the person, and the person. The board shall report to the legislative services agency on a monthly basis concerning the implementation of this plan and the number of inmates paroled pursuant to this plan and the average length of stay of those paroled.
DIVISION VII
CRIME VICTIMS —— RIGHTS

   Sec. 16.  Section 915.11, subsection 1, Code 2022, is amended to read as follows:
   1.  a.  A local police department or county sheriff’s department shall advise a victim of the right to register with the county attorney, and shall provide a request-for-registration form to each victim. A local police department or county sheriff’s department shall provide a telephone number and internet site to each victim to register with the automated victim notification system established pursuant to section 915.10A.
   b.  A local police department or county sheriff’s department shall provide a victim with a pamphlet explaining the victim’s rights as a victim of a public offense or delinquent act. 
   Sec. 17.  Section 915.20, Code 2022, is amended by adding the following new subsection:
   NEW SUBSECTION.  1A.  A local police department or county sheriff’s department shall provide to the crime victim assistance division of the department of justice with the contact information for a victim of a public offense or delinquent act. A victim counselor shall contact a victim to determine whether the victim is in need of further assistance from the victim counselor or whether the victim has any questions regarding the person’s rights as a victim.
   Sec. 18.  Section 915.38, Code 2022, is amended by adding the following new subsection:
   NEW SUBSECTION.  3A.  a.  It is the public policy of the state that statements made by children to forensic interviewers at child advocacy centers and child protection centers are presumptively reliable and should be admitted into evidence in the courts.
   b.  Notwithstanding any other provision of law, the court shall upon motion of a party admit a recorded statement of a child as defined in section 702.5, if all of the following apply:
   (1)  The recorded statement describes conduct that constitutes a public offense committed against or involving a child, or describes circumstances relevant to such conduct.
   (2)  The recorded statement was obtained by a forensic interviewer employed by an accredited child advocacy center or child protection center. 
   (3)  The interview was conducted substantially in accordance with a nationally recognized protocol for interviewing children.
   (4)  The recorded statement is offered in a criminal proceeding, the opposing party was given at least ten days’ notice prior to the trial commencing of the intention to admit the recorded statement, and any of the following apply:
   (a)  The child testifies at trial.
   (b)  The child has been questioned by the defendant or the defendant’s attorney at a deposition or at any substantially similar setting. 
   (c)  The child is unavailable as a witness as provided in rule of evidence 5.804(a).
   (d)  The court finds by a preponderance of the evidence that the child would suffer significant emotional or psychological trauma from testifying in the personal presence of the defendant at the time of the criminal proceeding.
   c.  A court may deny the admission of a recorded statement under this section only if the party opposing the admission proves by clear and convincing evidence that the recorded statement is unreliable. 
   d.  Portions of a recorded interview admitted pursuant to this section may be redacted under the following circumstances:
   (1)  By agreement of the parties.
   (2)  By order of the court, if the court finds by a preponderance of the evidence that redaction is necessary to either:
   (a)  Minimize embarrassment or trauma to the child.
   (b)  Effectuate a provision of the rules of evidence other than the rules against hearsay.
   Sec. 19.  NEW SECTION.  915.44A  Limitation of evidence in sexual abuse cases.
   A defendant charged with a criminal offense under chapter 709 who has filed an application for postconviction relief upon conviction for a criminal offense under chapter 709 shall be precluded from questioning any victim or any other person regarding evidence which is inadmissible under rule of evidence 5.412 or any other successor provision. Prohibited evidence includes all of the following:
   1.  Reputation or opinion evidence of a victim offered to prove that a victim engaged in other sexual behavior.
   2.  Evidence of a victim’s other sexual behavior other than reputation or opinion evidence.
   3.  Evidence of a victim’s sexual predisposition.
   Sec. 20.  COMMISSION ON CONTINUING LEGAL EDUCATION —— CONTINUING LEGAL EDUCATION REQUIREMENTS.  The supreme court shall amend Iowa court rule 42.2 to require all attorneys licensed in this state to complete a minimum of one hour, annually, of continuing legal education that focuses on crime victims and how to improve a crime victim’s experience within the criminal justice system.
DIVISION VIII
DISCOVERY

   Sec. 21.  NEW SECTION.  821A.1  Subpoenas in criminal actions.
   1.  A criminal defendant or counsel acting on the defendant’s behalf shall not issue any subpoena for documents or other evidence except upon application to the court. Such an application shall not be granted unless a defendant proves by a preponderance of the evidence all of the following:
   a.  The evidence is material and necessary to prepare a defense.
   b.  The defendant has made reasonable efforts to obtain the evidence without invoking compulsory process.
   c.  The evidence is not available from any other source.
   d.  For evidence that is obtainable by the state only through the execution of a search warrant, the defendant must show probable cause that the information sought contains exculpatory information that is not available from any other source and that there is a compelling need for the evidence to enable the defendant to present a defense at trial. 
   2.  This section is the exclusive mechanism for a criminal defendant or counsel acting on the defendant’s behalf to issue a subpoena for documents or other evidence.
   3.  An application made pursuant to this section shall not be filed ex parte. 
   4.  This section shall not apply to a subpoena issued solely to secure the presence of a witness listed in the minutes of testimony at an authorized deposition or to secure the presence of a witness listed in either the minutes of testimony or in the defendant’s witness list submitted for a hearing or trial.
   5.  The prosecuting attorney shall not be required to execute or effectuate any order or subpoena issued pursuant to this section. 
   6.  If any documents or evidence are obtained pursuant to this section, the criminal defendant or counsel acting on the defendant’s behalf must notify the prosecuting attorney within twenty-four hours of obtaining the documents or evidence. The documents or evidence received, or copies of the same, must be provided to the prosecuting attorney as soon as possible. 
   7.  Evidence or documents obtained by a subpoena that does not comply with this section shall not be admissible in any criminal action if offered by the defendant.
   8.  Any person who knowingly issues a subpoena that does not comply with this section may be declared in contempt of court.
   9.  Nothing in this section shall eliminate or reduce a criminal defendant’s obligation to comply with section 622.10, subsection 4, when seeking privileged records.
   10.  Any provision of law or rule of court promulgated by the supreme court that is inconsistent with this section shall have no legal effect. 
   Sec. 22.  NEW SECTION.  821A.2  Discovery depositions in criminal actions —— witness lists.
   1.  Discovery depositions shall not be permitted in any criminal action, except upon application to the court and a showing of exceptional circumstances.
   2.  A criminal defendant must file a witness list when the defendant requests or receives any discretionary discovery, the date when any deposition is taken, or ten days before trial, whichever date is earliest. If the defendant fails to timely list a witness, the court shall prohibit the witness from testifying at trial absent good cause shown for the defendant’s failure to timely list the witness.
   3.  A person who is not yet a party to a criminal action shall not be permitted to depose another person until the time the person who is not yet a party to the criminal action is charged with or indicted for the associated criminal offense.
DIVISION IX
POSTCONVICTION RELIEF AND DISCOVERY PROCEDURE

   Sec. 23.  Section 822.7, Code 2022, is amended to read as follows:
   822.7  Court to hear application.
   The application shall be heard in, and before any judge of the court in which the conviction or sentence took place. However, if the applicant is seeking relief under section 822.2, subsection 1, paragraph “f”, the application shall be heard in, and before any judge of the court of the county in which the applicant is being confined. A record of the proceedings shall be made and preserved. All rules and statutes applicable in civil proceedings including pretrial and discovery procedures are available to the parties, subject to the restrictions contained in section 822.7A. The court may receive proof of affidavits, depositions, oral testimony, or other evidence, and may order the applicant brought before it for the hearing. If the court finds in favor of the applicant, it shall enter an appropriate order with respect to the conviction or sentence in the former proceedings, and any supplementary orders as to rearraignment, retrial, custody, bail, discharge, correction of sentence, or other matters that may be necessary and proper. The court shall make specific findings of fact, and state expressly its conclusions of law, relating to each issue presented. This order is a final judgment.
   Sec. 24.  NEW SECTION.  822.7A  Postconviction relief —— discovery.
   This chapter is intended to provide a limited scope of discovery that is no broader than what is afforded to a defendant in a criminal action. Notwithstanding any other statute, rule, or law, the following limitations on discovery and procedure shall apply to a claim for postconviction relief under this chapter. 
   1.  An applicant may conduct discovery only by order of the court to be granted upon a showing that the information sought is reasonably calculated to lead to the discovery of admissible evidence to support or defeat a claim that is adequately pled in the application and, if taken as true, constitutes a colorable claim for relief.
   2.  An applicant shall not be permitted to depose or otherwise conduct discovery upon the victim, as defined in section 915.10, of the underlying public offense, unless the applicant proves all of the following by clear and convincing evidence:
   a.  The evidence is necessary to prove the applicant is actually innocent of the underlying public offense and all lesser-included offenses.
   b.  The information is not available from any other source.
   c.  Contact with a victim is minimized by limitations on the method of discovery including in camera review, remote testimony, or allowing a victim to provide a written statement in lieu of testimony.
   3.  The privileges contained in section 622.10 shall be absolute, except that the filing of an application shall waive any privilege an applicant may claim regarding an attorney who represented the applicant in the underlying criminal action or any previous postconviction action.
   4.  Evidence that would be excluded in a criminal action pursuant to rule of evidence 5.412 shall not be discoverable or admissible in a postconviction action.
   5.  The state shall not be required to produce copies of discovery that was previously disclosed to an applicant in the underlying criminal action or a previous postconviction relief action or which the applicant was in possession of in the underlying criminal action or a previous postconviction action.
   6.  The state shall not be required to produce any discovery contained in a court file accessible to the applicant.
   7.  The state shall not be required to produce any discovery that cannot be lawfully disseminated or that is otherwise confidential by law.
   8.  An applicant shall not be permitted to conduct discovery or seek the appointment of an expert witness through ex parte communication or in camera review.
   9.  Depositions shall only be permitted upon a showing of exceptional circumstances, except that the applicant’s criminal trial counsel may be deposed by the respondent upon request or by the applicant pursuant to subsection 1 and a victim may only be deposed pursuant to subsection 2.
DIVISION X
REQUIRED REPORTS TO THE GENERAL ASSEMBLY

   Sec. 25.  NEW SECTION.  602.6204  Reporting requirement.
   The state court administrator shall submit to the governor and to the general assembly, not later than December 15 each year, an annual report which shall include, for the violent and sexual criminal offenses listed in section 902.12, all of the following:
   1.  The number of deferred judgments, deferred sentences, and suspended sentences the court entered, including the criminal offenses involved, during the previous year.
   2.  The number of defendants who received deferred judgments, deferred sentences, and suspended sentences during the previous year.
   3.  The number of cases where the court pronounced judgment and imposed sentence after a defendant failed to comply with the conditions set by the court for a deferred judgment or deferred sentence. 
   4.  The number of cases where the court revoked a suspended sentence after a defendant failed to comply with conditions set by the court. 
   5.  The types of violations by a defendant of the conditions imposed by the court that resulted in the court pronouncing judgment and imposing sentence or revoking a suspended sentence of a defendant. The report shall include information on whether the violations were technical violations, due to the commission of a new crime, or due to any other reason.
   Sec. 26.  NEW SECTION.  904.103A  Recidivism —— annual report.
   1.  The department, in cooperation with the board of parole, shall submit to the governor and to the general assembly, not later than December 15 each year, an annual report detailing the recidivism rate in the state specifically for the violent and sexual criminal offenses contained in section 902.12.
   2.  The report shall include, at a minimum, all of the following:
   a.  The rate of recidivism, including the percentage and number of offenders who committed another crime within three years of being released from the custody of the department.
   b.  The percentage and number of offenders paroled or placed on probation who violate the conditions of the offender’s release and are reincarcerated including information regarding offenders who were returned for technical violations, and those who were returned for the commission of a new crime.
   c.  Whether there were victims involved in the crimes committed while an offender was paroled or on probation, and whether any of the victims were previous victims of the offender.
   d.  The types of offenses that caused the offender to be returned to the custody of the department.
   e.  The type of release that preceded the offender’s return to the custody of the department. 
   f.  The number of hearings the board of parole held before the release of an offender who subsequently violated the conditions of release and who was subsequently returned to the custody of the department.
DIVISION XI
CONDITIONAL GUILTY PLEAS

   Sec. 27.  NEW SECTION.  814.30  Conditional guilty pleas not allowed.
   A conditional guilty plea that reserves the right to appellate review of an adverse determination of a specified pretrial motion shall not be allowed.>>
   2.  Title page, by striking lines 1 through 3 and inserting <An Act relating to criminal law including the disclosure of a defendant’s privileged records in a criminal action, no-contact orders, penalties for domestic abuse>
   3.  Title page, by striking lines 7 and 8 and inserting <actions, postconviction relief procedure, certain reporting requirements, conditional guilty pleas, and making penalties applicable.>

______________________________
JEFF REICHMAN