Effective 7/1/2026
78B-9-109 Appointment of pro bono counsel or counsel from Indigent Appellate Defense Division.
(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 or from the Indigent Appellate Defense Division, created in Section 75E-10-602, to represent the petitioner in the postconviction court or on 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 may consider:
(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 postconviction petition.

Amended by Chapter 291, 2026 General Session