      Notice: This opinion is subject to correction before publication in the PACIFIC 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.                     )
                           )                            OPINION
STATE OF ALASKA,           )
DEPARTMENT OF CORRECTIONS, )                            No. 7299 – September 14, 2018
                           )

              Appellee.    )

                           )



              Appeal 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
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
May 1992. The court of appeals reversed Simmons’s convictions in March 1995.1
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
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
constitutional right to counsel in prison disciplinary hearings;2 nevertheless, the
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
decision. Simmons appeals.
III.   STANDARD OF REVIEW
              “Appellate judicial review of prisoner disciplinary proceedings is available
when ‘issues of constitutional magnitude’ are involved.”3 We review issues concering
constitutional rights of inmates de novo.4 “Because the superior court ‘act[ed] as an
intermediate appellate court in an administrative matter,’ we ‘independently review the
merits of the administrative decision.’ ”5
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
identification registration system first went into effect on January 1, 1996.6 Simmons
argues that the DNA sample requirement does not apply to him. We disagree.7

       3
             James v. State, Dep’t of Corr., 260 P.3d 1046, 1050 (Alaska 2011) (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

             In 1995 the legislature passed AS 44.41.035, creating the DNA
identification registration system.8 This 1995 act provided for collection of DNA
samples from “person[s] convicted of a crime against a person.”9 The act “applie[d] to
all convictions occurring on or after [January 1, 1996].”10 The act defined “crime against
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) (felony first-degree burglary), AS 11.41.210(a)(1) (felony second-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

1995 act.12
              In 2003 the legislature expanded the list of crimes that would require the
submission of a DNA sample.13 It required all persons convicted of felonies under AS 11
or AS 28.35 to submit a DNA sample in addition to those convicted of crimes against a
person,14 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

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
consistently concluded that DNA sample requirements are not ex post facto laws.18 We
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
              act was committed.[19]


       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

              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
facto.”20 And if a statute has a valid regulatory purpose, it does not violate the ex post
facto clause.21
              The ex post facto clause addresses laws that are penal in nature.22 We have
previously applied the two-part “intent-effects” test to determine whether a statute
imposes punishment and violates the ex post facto clause of the Alaska Constitution.23
              Under this test, a court first determines whether the
              legislature intended to impose punishment; if punishment was
              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
              nonetheless punitive in effect.[24]
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

             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, the Department 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 requirement appears in the state government title of the Alaska 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

             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 ostracism from personal 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
circumstances.30 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
system and has few historical antecedents.31 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

sex offender “resemble[d] the punishment of shaming”32 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
contrary, public disclosure is forbidden,34 and a DNA sample must only be provided
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 ASORA applies, such as statutory rape, were such that “the law deems sufficiently
harmful to effectively assume scienter.”36 Without further explanation, we concluded
that this factor weakly implied a punitive effect and gave this factor little weight.37 There
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
                Requiring persons convicted of certain crimes to submit DNA samples 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

not have retributive or deterrent effects. We found ASORA applied to “a broad spectrum
of crimes regardless of their inherent or comparative seriousness,” and we concluded its
“registration and unlimited public dissemination requirements provide[d] a deterrent and
retributive effect.”38 Unlike ASORA, the requirement to submit samples to the DNA
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 at 1014 (citing Kennedy v. Mendoza-Martinez, 372 U.S. 144,
168 (1963)).

                                            -12-                                        7299

              6.    Advancing a non-punitive interest
              In Doe we explained that this factor inquires into whether there is a
legitimate, regulatory purpose for the law.42 As expressly set forth in AS 44.41.035, the
legislature’s stated purpose was “[t]o support criminal justice services in this state.”43
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
crimes and detecting repeat offenders.”44 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
concluded that ASORA advanced a non-punitive interest.45 This factor weighs against
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

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
of the sex offender’s private information was sweeping.47 The same concerns are not
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 the seven factors, we conclude the effects of AS 44.41.035 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
                 We similarly conclude that the DNA sample requirement does not violate
the ex post facto clause in article I, section 10 of the U.S. Constitution.48 The Supreme
Court has employed the intent-effects test to ex post facto claims under the U.S.
Constitution.49 In Smith v. Doe, the Supreme Court concluded that ASORA satisfied the
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
major disciplinary proceedings “where misconduct constituting a felony is charged.”52
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

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 inmates charged with major disciplinary proceedings constituting a felony stems from
the U.S. Supreme Court’s decisions in Miranda v. Arizona and Mathis v. United States.54
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,
we held under the Alaska Constitution that these self-incrimination concerns necessitated
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

proceeding must be provided a lawyer.57 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
parallel or subsequent criminal proceedings.58        The presence of counsel in the
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 the U.S. Supreme Court 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

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.




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