Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 100 (2021GS)

Sponsor

Rep. Brammer, B.

Final action

Governor Signed 3/11/2021

Outcome

Became law — signed by Gov. Spencer J. Cox

Summary

What it does

• This bill:
• adds a lower standard for a petitioner to show prejudice when a prosecutor knowingly failed to correct false testimony;
• amends the grounds upon which a petitioner is not eligible for postconviction relief;
• provides that post-conviction remedies petitions based on factual innocence or requesting DNA testing are not subject to procedural or time bars;
• modifies the factors that a judge may consider when determining whether to appoint pro bono counsel; and
• makes technical and conforming changes.

Every vote on this bill

Bill text

POSTCONVICTION REMEDIES ACT AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Brady Brammer
Senate Sponsor: 
Todd D. Weiler
LONG TITLE
General Description:
This bill amends the Postconviction Remedies Act.
Highlighted Provisions:
This bill:
▸ adds a lower standard for a petitioner to show prejudice when a prosecutor
knowingly failed to correct false testimony;
▸ amends the grounds upon which a petitioner is not eligible for postconviction relief;
▸ provides that post-conviction remedies petitions based on factual innocence or
requesting DNA testing are not subject to procedural or time bars;
▸ modifies the factors that a judge may consider when determining whether to appoint
pro bono counsel; and
▸ makes technical and conforming changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
78B-9-104
, as last amended by Laws of Utah 2018, Chapter 221
78B-9-106
, as last amended by Laws of Utah 2017, Chapter 447
78B-9-107
, as last amended by Laws of Utah 2017, Chapter 447
78B-9-109
, as last amended by Laws of Utah 2008, Chapter 288 and renumbered and
amended by Laws of Utah 2008, Chapter 3
78B-9-301
, as last amended by Laws of Utah 2018, Chapter 86
78B-9-402
, as last amended by Laws of Utah 2013, Chapter 46
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
78B-9-104
 is amended to read:
78B-9-104.
Grounds for relief -- Retroactivity of rule.
(1) Unless precluded by Section 
78B-9-106
 or 
78B-9-107
, [
a person
] 
an individual
who has been convicted and sentenced for a criminal offense may file an action in the district
court of original jurisdiction for [
post-conviction
] 
postconviction
 relief to vacate or modify the
conviction or sentence upon the following grounds:
(a) the conviction was obtained or the sentence was imposed in violation of the United
States Constitution or Utah Constitution;
(b) the conviction was obtained or the sentence was imposed under a statute that is in
violation of the United States Constitution or Utah Constitution, or the conduct for which the
petitioner was prosecuted is constitutionally protected;
(c) the sentence was imposed or probation was revoked in violation of the controlling
statutory provisions;
(d) the petitioner had ineffective assistance of counsel in violation of the United States
Constitution or Utah Constitution;
(e) newly discovered material evidence exists that requires the court to vacate the
conviction or sentence, because:
(i) neither the petitioner nor petitioner's counsel knew of the evidence at the time of
trial or sentencing or in time to include the evidence in any previously filed post-trial motion or
[
post-conviction
] 
postconviction
 proceeding, and the evidence could not have been discovered
through the exercise of reasonable diligence;
(ii) the material evidence is not merely cumulative of evidence that was known;
(iii) the material evidence is not merely impeachment evidence; and
(iv) viewed with all the other evidence, the newly discovered material evidence
demonstrates that no reasonable trier of fact could have found the petitioner guilty of the
offense or subject to the sentence received; [
or
]
(f) the petitioner can prove entitlement to relief under a rule announced by the United
States Supreme Court, the Utah Supreme Court, or the Utah Court of Appeals after conviction
and sentence became final on direct appeal, and that:
(i) the rule was dictated by precedent existing at the time the petitioner's conviction or
sentence became final; or
(ii) the rule decriminalizes the conduct that comprises the elements of the crime for
which the petitioner was convicted; or
(g) the petitioner committed any of the following offenses while subject to force, fraud,
or coercion, as defined in Section 
76-5-308
:
(i) Section 
58-37-8
, possession of a controlled substance;
(ii) Section 
76-10-1304
, aiding prostitution;
(iii) Section 
76-6-206
, criminal trespass;
(iv) Section 
76-6-413
, theft;
(v) Section 
76-6-502
, possession of forged writing or device for writing;
(vi) Sections 
76-6-602
 through 
76-6-608
, retail theft;
(vii) Subsection 
76-6-1105
(2)(a)(i)(A), unlawful possession of another's identification
document;
(viii) Section 
76-9-702
, lewdness;
(ix) Section 
76-10-1302
, prostitution; or
(x) Section 
76-10-1313
, sexual solicitation.
(2) The court may not grant relief from a conviction or sentence unless 
in light of the
facts proved in the postconviction proceeding, viewed with the evidence and facts introduced at
trial or during sentencing:
(a)
 the petitioner establishes that there would be a reasonable likelihood of a more
favorable outcome [
in light of the facts proved in the post-conviction proceeding, viewed with
the evidence and facts introduced at trial or during sentencing.
]
; or
(b) if the petitioner challenges the conviction or the sentence on grounds that the
prosecutor knowingly failed to correct false testimony at trial or at sentencing, the petitioner
establishes that the false testimony, in any reasonable likelihood, could have affected the
judgment of the fact finder.
(3) 
(a)
 The court may not grant relief from a conviction based on a claim that the
petitioner is innocent of the crime for which convicted except as provided in [
Title 78B,
Chapter 9,
] Part 3, Postconviction Testing of DNA, or Part 4, Postconviction Determination of
Factual Innocence.
(b)
 Claims under Part 3, Postconviction Testing of DNA
,
 or Part 4, Postconviction
Determination of Factual Innocence
,
 of this chapter may not be filed as part of a petition under
this part, but shall be filed separately and in conformity with the provisions of Part 3,
Postconviction Testing of DNA
,
 or Part 4, Postconviction Determination of Factual Innocence.
Section 2. Section 
78B-9-106
 is amended to read:
78B-9-106.
Preclusion of relief -- Exception.
(1) A [
person
] 
petitioner
 is not eligible for relief under this chapter upon any ground
that:
(a) may still be raised on direct appeal or by a post-trial motion;
(b) was raised or addressed 
in the trial court,
 at trial
,
 or on appeal;
(c) could have been but was not raised 
in the trial court,
 at trial
,
 or on appeal;
(d) was raised or addressed in any previous request for post-conviction relief or could
have been, but was not, raised in a previous request for [
post-conviction
] 
postconviction
 relief;
or
(e) is barred by the limitation period established in Section 
78B-9-107
.
(2) (a) The state may raise any of the procedural bars or time bar at any time, including
during [
the state's
] 
an
 appeal from an order granting 
or denying
 [
post-conviction
]
postconviction
 relief, unless the court determines that the state should have raised the time bar
or procedural bar at an earlier time.
(b) Any court may raise a procedural bar or time bar on [
its
] 
the court's
 own motion,
provided that [
it
] 
the court
 gives the parties notice and an opportunity to be heard.
(3) (a) Notwithstanding Subsection (1)(c), a [
person
] 
petitioner
 may be eligible for
relief on a basis that the ground could have been but was not raised 
in the trial court,
 at trial
,
 or
on appeal, if the failure to raise that ground was due to ineffective assistance of counsel[
; or
]
.
(b) Notwithstanding Subsections (1)(c) and (1)(d), a [
person
] 
petitioner
 may be eligible
for relief on a basis that the ground could have been but was not raised 
in the trial court,
 at trial,
on appeal, or in a previous request for [
post-conviction
] 
postconviction
 relief, if the failure to
raise that ground was due to force, fraud, or coercion as defined in Section 
76-5-308
.
(4) This section authorizes a merits review only to the extent required to address the
exception set forth in Subsection (3).
(5) This section does not apply to a petition filed under Part 3, Postconviction Testing
of DNA, or Part 4, Postconviction Determination of Factual Innocence.
Section 3. Section 
78B-9-107
 is amended to read:
78B-9-107.
Statute of limitations for postconviction relief.
(1) A petitioner is entitled to relief only if the petition is filed within one year after 
the
day on which
 the cause of action has accrued.
(2) For purposes of this section, the cause of action accrues on the [
latest
] 
later
 of the
following dates:
(a) the last day for filing an appeal from the entry of the final judgment of conviction, if
no appeal is taken;
(b) the entry of the decision of the appellate court [
which
] 
that
 has jurisdiction over the
case, if an appeal is taken;
(c) the last day for filing a petition for writ of certiorari in the Utah Supreme Court or
the United States Supreme Court, if no petition for writ of certiorari is filed;
(d) the entry of the denial of the petition for writ of certiorari or the entry of the
decision on the petition for certiorari review, if a petition for writ of certiorari is filed;
(e) the date on which petitioner knew or should have known, in the exercise of
reasonable diligence, of evidentiary facts on which the petition is based; or
(f) the date on which the new rule described in Subsection 
78B-9-104
(1)(f) is
established.
(3) 
(a)
 The limitations period is tolled for any period during which the petitioner was
prevented from filing a petition due to state action in violation of the United States
Constitution, due to physical or mental incapacity, or for claims arising under Subsection
78B-9-104
(1)(g), due to force, fraud, or coercion as defined in Section 
76-5-308
.
(b)
 The petitioner has the burden of proving by a preponderance of the evidence that
the petitioner is entitled to relief under this Subsection (3).
(4) The statute of limitations is tolled during the pendency of the outcome of a petition
asserting:
(a) exoneration through DNA testing under Section 
78B-9-303
; or
(b) factual innocence under Section [
78B-9-401
] 
78B-9-402
.
(5) Sections 
77-19-8
, 
78B-2-104
, and 
78B-2-111
 do not extend the limitations period
established in this section.
(6) This section does not apply to a petition filed under Part 3, Postconviction Testing
of DNA, or Part 4, Postconviction Determination of Factual Innocence.
Section 4. Section 
78B-9-109
 is amended to read:
78B-9-109.
Appointment of pro bono counsel.
(1) 
(a)
 If any portion of the petition is not summarily dismissed, the court may, upon
the request of an indigent petitioner, appoint counsel on a pro bono basis to represent the
petitioner in the [
post-conviction
] 
postconviction
 court or on [
post-conviction
] 
postconviction
appeal.
(b)
 Counsel who represented the petitioner at trial or on the direct appeal may not be
appointed to represent the petitioner under this section.
(2) In determining whether to appoint counsel, the court [
shall consider the following
factors
] 
may consider
:
[
(a) whether the petition or the appeal contains factual allegations that will require an
evidentiary hearing; and
]
[
(b) whether the petition involves complicated issues of law or fact that require the
assistance of counsel for proper adjudication.
]
(a) whether the petitioner is incarcerated;
(b) the likelihood that an evidentiary hearing will be necessary;
(c) the likelihood that an investigation will be necessary;
(d) the complexity of the factual and legal issues; and
(e) any other factor relevant to the particular case.
(3) An allegation that counsel appointed under this section was ineffective cannot be
the basis for relief in any subsequent [
post-conviction
] 
postconviction
 petition.
Section 5. Section 
78B-9-301
 is amended to read:
78B-9-301.
Postconviction testing of DNA -- Petition -- Sufficient allegations --
Notification of victim.
(1) As used in this part:
(a) "DNA" means deoxyribonucleic acid.
(b) "Factually innocent" means the same as that term is defined in Section [
78B-9-402
]
78B-9-401.5
.
(2) [
A person
] 
An individual
 convicted of a felony offense may at any time file a
petition for postconviction DNA testing in the trial court that entered the judgment of
conviction if the [
person
] 
individual
 asserts factual innocence under oath and the petition
alleges:
(a) evidence has been obtained regarding the [
person's
] 
individual's
 case that is still in
existence and is in a condition that allows DNA testing to be conducted;
(b) the chain of custody is sufficient to establish that the evidence has not been altered
in any material aspect;
(c) the [
person
] 
individual
 identifies the specific evidence to be tested and states a
theory of defense, not inconsistent with theories previously asserted at trial, that the requested
DNA testing would support;
(d) the evidence was not previously subjected to DNA testing, or if the evidence was
tested previously, the evidence was not subjected to the testing that is now requested, and the
new testing may resolve an issue not resolved by the prior testing;
(e) the proposed DNA testing is generally accepted as valid in the scientific field or is
otherwise admissible under Utah law;
(f) the evidence that is the subject of the request for testing:
(i) has the potential to produce new, noncumulative evidence; and
(ii) there is a reasonable probability that the defendant would not have been convicted
or would have received a lesser sentence if the evidence had been presented at the original trial;
and
(g) the [
person
] 
individual
 is aware of the consequences of filing the petition,
including:
(i) [
those
] 
the consequences
 specified in Sections 
78B-9-302
 and 
78B-9-304
; and
(ii) that the [
person
] 
individual
 is waiving any statute of limitations in all jurisdictions
as to any felony offense the [
person
] 
individual
 has committed which is identified through
DNA database comparison.
(3) The petition under Subsection (2) shall comply with [
Rule 65C,
] Utah Rules of
Civil Procedure, 
Rule 65C,
 including providing the underlying criminal case number.
(4) After a petition is filed under this section, prosecutors, law enforcement officers,
and crime laboratory personnel have a duty to cooperate in preserving evidence and in
determining the sufficiency of the chain of custody of the evidence which may be subject to
DNA testing.
(5) (a) 
(i)
 [
A person
] 
An individual
 who files a petition under this section shall serve
notice upon the office of the prosecutor who obtained the conviction, and upon the Utah
attorney general.
(ii)
 The attorney general shall, within 30 days after receipt of service of a copy of the
petition, or within any additional period of time the court allows, answer or otherwise respond
to all proceedings initiated under this part.
(b) After the attorney general responds under Subsection (5)(a), the petitioner has the
right to reply to the response of the attorney general.
(c) After the attorney general and the petitioner have filed a response and reply in
compliance with Subsection (5)(b), the court shall order DNA testing if it finds by a
preponderance of the evidence that all criteria of Subsection (2) have been met.
(6) (a) If the court grants the petition for testing, the DNA test shall be performed by
the Utah State Crime Laboratory within the Criminal Investigations and Technical Services
Division created in Section 
53-10-103
, unless the [
person
] 
individual
 establishes that the state
crime laboratory has a conflict of interest or does not have the capability to perform the
necessary testing.
(b) If the court orders that the testing be conducted by any laboratory other than the
state crime laboratory, the court shall require that the testing be performed:
(i) under reasonable conditions designed to protect the state's interests in the integrity
of the evidence; and
(ii) according to accepted scientific standards and procedures.
(7) (a) DNA testing under this section shall be paid for from funds appropriated to the
Department of Public Safety under Subsection 
53-10-407
(4)(d)(ii) from the DNA Specimen
Restricted Account created in Section 
53-10-407
 if:
(i) the court ordered the DNA testing under this section;
(ii) the Utah State Crime Laboratory within the Criminal Investigations and Technical
Services Division has a conflict of interest or does not have the capability to perform the
necessary testing; and
(iii) the petitioner who has filed for postconviction DNA testing under Section
78B-9-201
 is serving a sentence of imprisonment and is indigent.
(b) Under this Subsection (7), costs of DNA testing include [
those
] 
costs that are
necessary to transport the evidence, prepare samples for analysis, analyze the evidence, and
prepare reports of findings.
(8) If the [
person
] 
individual
 is serving a sentence of imprisonment and is indigent, the
state shall pay for the costs of the testing under this part, but if the result is not favorable to the
[
person
] 
individual,
 the court may order the person to reimburse the state for the costs of the
testing, [
pursuant to
] 
in accordance with
 Subsections 
78B-9-302
(4) and 
78B-9-304
(1)(b).
(9) Any victim of the crime regarding which the [
person
] 
individual
 petitions for DNA
testing, who has elected to receive notice under Section 
77-38-3
 shall be notified by the state's
attorney of any hearing regarding the petition and testing, even though the hearing is a civil
proceeding.
Section 6. Section 
78B-9-402
 is amended to read:
78B-9-402.
Petition for determination of factual innocence -- Sufficient
allegations -- Notification of victim -- Payment to surviving spouse.
(1) A person who has been convicted of a felony offense may petition the district court
in the county in which the person was convicted for a hearing to establish that the person is
factually innocent of the crime or crimes of which the person was convicted.
(2) (a) The petition shall contain an assertion of factual innocence under oath by the
petitioner and shall aver, with supporting affidavits or other credible documents, that:
(i) newly discovered material evidence exists that, if credible, establishes that the
petitioner is factually innocent;
(ii) the specific evidence identified by the petitioner in the petition establishes
innocence;
(iii) the material evidence is not merely cumulative of evidence that was known;
(iv) the material evidence is not merely impeachment evidence; and
(v) viewed with all the other evidence, the newly discovered evidence demonstrates
that the petitioner is factually innocent.
(b) 
(i)
 The court shall review the petition in accordance with the procedures in
Subsection (9)(b), and make a finding that the petition has satisfied the requirements of
Subsection (2)(a).
(ii)
 If the court finds the petition does not meet all the requirements of Subsection
(2)(a), [
it
] 
the court
 shall dismiss the petition without prejudice and send notice of the dismissal
to the petitioner and the attorney general.
(3) (a) The petition shall also contain an averment that:
(i) neither the petitioner nor the petitioner's counsel knew of the evidence at the time of
trial or sentencing or in time to include the evidence in any previously filed post-trial motion or
postconviction motion, and the evidence could not have been discovered by the petitioner or
the petitioner's counsel through the exercise of reasonable diligence; or
(ii) a court has found ineffective assistance of counsel for failing to exercise reasonable
diligence in uncovering the evidence.
(b) 
(i)
 Upon entry of a finding that the petition is sufficient under Subsection (2)(a), the
court shall then review the petition to determine if Subsection (3)(a) has been satisfied.
(ii)
 If the court finds that the requirements of Subsection (3)(a) have not been satisfied,
[
it
] 
the court
 may dismiss the petition without prejudice and give notice to the petitioner and
the attorney general of the dismissal, or the court may waive the requirements of Subsection
(3)(a) if the court finds the petition should proceed to hearing based upon the strength of the
petition, and that there is other evidence that could have been discovered through the exercise
of reasonable diligence by the petitioner or the petitioner's counsel at trial, and the other
evidence:
[
(i)
] 
(A)
 was not discovered by the petitioner or the petitioner's counsel;
[
(ii)
] 
(B)
 is material upon the issue of factual innocence; and
[
(iii)
] 
(C)
 has never been presented to a court.
(4) 
(a)
 If the conviction for which the petitioner asserts factual innocence was based
upon a plea of guilty, the petition shall contain the specific nature and content of the evidence
that establishes factual innocence.
(b)
 The court shall review the evidence and may dismiss the petition at any time in the
course of the proceedings, if the court finds that the evidence of factual innocence relies solely
upon the recantation of testimony or prior statements made by a witness against the petitioner,
and the recantation appears to the court to be equivocal or [
selfserving
] 
self serving
.
(5) A person who has already obtained postconviction relief that vacated or reversed
the person's conviction or sentence may also file a petition under this part in the same manner
and form as described above, if no retrial or appeal regarding this offense is pending.
(6) If some or all of the evidence alleged to be exonerating is biological evidence
subject to DNA testing, the petitioner shall seek DNA testing [
pursuant to
] 
in accordance with
Section 
78B-9-301
.
(7) Except as provided in Subsection (9), the petition and all subsequent proceedings
shall be in compliance with and governed by [
Rule 65C,
] Utah Rules of Civil Procedure, 
Rule
65C
 and shall include the underlying criminal case number.
(8) After a petition is filed under this section, prosecutors, law enforcement officers,
and crime laboratory personnel shall cooperate in preserving evidence and in determining the
sufficiency of the chain of custody of the evidence which is the subject of the petition.
(9) (a) A person who files a petition under this section shall serve notice of the petition
and a copy of the petition upon the office of the prosecutor who obtained the conviction and
upon the Utah attorney general.
(b) 
(i)
 The assigned judge shall conduct an initial review of the petition.
(ii)
 If it is apparent to the court that the petitioner is either merely relitigating facts,
issues, or evidence presented in previous proceedings or presenting issues that appear frivolous
or speculative on their face, the court shall dismiss the petition, state the basis for the dismissal,
and serve notice of dismissal upon the petitioner and the attorney general.
(iii)
 If, upon completion of the initial review, the court does not dismiss the petition,
[
it
] 
the court
 shall order the attorney general to file a response to the petition.
(iv)
 The attorney general shall, within 30 days after [
receipt of
] 
the day on which the
attorney general receives
 the court's order, or within any additional period of time the court
allows, answer or otherwise respond to all proceedings initiated under this part.
(c) 
(i)
 After the time for response by the attorney general under Subsection (9)(b) has
passed, the court shall order a hearing if [
it
] 
the court
 finds the petition meets the requirements
of Subsections (2) and (3) and finds there is a bona fide and compelling issue of factual
innocence regarding the charges of which the petitioner was convicted.
(ii)
 No bona fide and compelling issue of factual innocence exists if the petitioner is
merely relitigating facts, issues, or evidence presented in a previous proceeding or if the
petitioner is unable to identify with sufficient specificity the nature and reliability of the newly
discovered evidence that establishes the petitioner's factual innocence.
(d) 
(i)
 If the parties stipulate that the evidence establishes that the petitioner is factually
innocent, the court may find the petitioner is factually innocent without holding a hearing.
(ii)
 If the state will not stipulate that the evidence establishes that the petitioner is
factually innocent, no determination of factual innocence may be made by the court without
first holding a hearing under this part.
(10) The court may not grant a petition for a hearing under this part during the period
in which criminal proceedings in the matter are pending before any trial or appellate court,
unless stipulated to by the parties.
(11) Any victim of a crime that is the subject of a petition under this part, and who has
elected to receive notice under Section 
77-38-3
, shall be notified by the state's attorney of any
hearing regarding the petition.
(12) 
(a)
 A petition to determine factual innocence under this part, or Part 3,
Postconviction Testing of DNA, shall be filed separately from any petition for postconviction
relief under Part 1, General Provisions.
(b)
 Separate petitions may be filed simultaneously in the same court.
(13) The procedures governing the filing and adjudication of a petition to determine
factual innocence apply to all petitions currently filed or pending in the district court and any
new petitions filed on or after June 1, 2012.
(14) (a) As used in this Subsection (14) and in Subsection (15):
(i) "Married" means the legal marital relationship established between [
a man and a
woman
] 
two individuals
 and as recognized by the [
laws of this state
] 
law
; and
(ii) "Spouse" means [
a person
] 
an individual
 married to the petitioner at the time the
petitioner was found guilty of the offense regarding which a petition is filed and who has since
then been continuously married to the petitioner until the petitioner's death.
(b) A claim for determination of factual innocence under this part is not extinguished
upon the death of the petitioner.
(c) 
(i)
 If any payments are already being made to the petitioner under this part at the
time of the death of the petitioner, or if the finding of factual innocence occurs after the death
of the petitioner, the payments due under Section 
78B-9-405
 shall be paid according to the
schedule under Section 
78B-9-405
 to the petitioner's surviving spouse.
(ii)
 Payments cease upon the death of the spouse.
(15) The spouse under Subsection (14) forfeits all rights to receive any payment under
this part if the spouse is charged with a homicide established by a preponderance of the
evidence that meets the elements of any felony homicide offense in Title 76, Chapter 5,
Offenses Against the Person, except automobile homicide, applying the same principles of
culpability and defenses as in Title 76, Utah Criminal Code, including Title 76, Chapter 2,
Principles of Criminal Responsibility.