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S.B. 154 Enrolled

             1     

POSTCONVICTION REMEDIES ACT

             2     
AMENDMENTS

             3     
2010 GENERAL SESSION

             4     
STATE OF UTAH

             5     
Chief Sponsor: J. Stuart Adams

             6     
House Sponsor: Rebecca D. Lockhart

             7     
             8      LONG TITLE
             9      General Description:
             10          This bill clarifies the procedure for claiming factual innocence.
             11      Highlighted Provisions:
             12          This bill:
             13          .    clarifies the procedure for claiming factual innocence;
             14          .    specifies particular steps required;
             15          .    gives the court discretion to review and dismiss petitions under specific
             16      circumstances; and
             17          .    makes technical corrections.
             18      Monies Appropriated in this Bill:
             19          None
             20      Other Special Clauses:
             21          This bill provides an immediate effective date.
             22      Utah Code Sections Affected:
             23      AMENDS:
             24          78B-9-104, as last amended by Laws of Utah 2008, Chapter 288 and renumbered and
             25      amended by Laws of Utah 2008, Chapter 3
             26          78B-9-402, as last amended by Laws of Utah 2009, Chapter 301
             27          78B-9-404, as enacted by Laws of Utah 2008, Chapter 358
             28      ENACTS:
             29          78B-9-401.5, Utah Code Annotated 1953


             30     
             31      Be it enacted by the Legislature of the state of Utah:
             32          Section 1. Section 78B-9-104 is amended to read:
             33           78B-9-104. Grounds for relief -- Retroactivity of rule.
             34          (1) Unless precluded by Section 78B-9-106 or 78B-9-107 , a person who has been
             35      convicted and sentenced for a criminal offense may file an action in the district court of
             36      original jurisdiction for post-conviction relief to vacate or modify the conviction or sentence
             37      upon the following grounds:
             38          (a) the conviction was obtained or the sentence was imposed in violation of the United
             39      States Constitution or Utah Constitution;
             40          (b) the conviction was obtained or the sentence was imposed under a statute that is in
             41      violation of the United States Constitution or Utah Constitution, or the conduct for which the
             42      petitioner was prosecuted is constitutionally protected;
             43          (c) the sentence was imposed or probation was revoked in violation of the controlling
             44      statutory provisions;
             45          (d) the petitioner had ineffective assistance of counsel in violation of the United States
             46      Constitution or Utah Constitution;
             47          (e) newly discovered material evidence exists that requires the court to vacate the
             48      conviction or sentence, because:
             49          (i) neither the petitioner nor petitioner's counsel knew of the evidence at the time of
             50      trial or sentencing or in time to include the evidence in any previously filed post-trial motion
             51      or post-conviction proceeding, and the evidence could not have been discovered through the
             52      exercise of reasonable diligence;
             53          (ii) the material evidence is not merely cumulative of evidence that was known;
             54          (iii) the material evidence is not merely impeachment evidence; and
             55          (iv) viewed with all the other evidence, the newly discovered material evidence
             56      demonstrates that no reasonable trier of fact could have found the petitioner guilty of the
             57      offense or subject to the sentence received; or


             58          (f) the petitioner can prove entitlement to relief under a rule announced by the United
             59      States Supreme Court, the Utah Supreme Court, or the Utah Court of Appeals after conviction
             60      and sentence became final on direct appeal, and that:
             61          (i) the rule was dictated by precedent existing at the time the petitioner's conviction or
             62      sentence became final; or
             63          (ii) the rule decriminalizes the conduct that comprises the elements of the crime for
             64      which the petitioner was convicted.
             65          (2) The court may not grant relief from a conviction or sentence unless the petitioner
             66      establishes that there would be a reasonable likelihood of a more favorable outcome in light of
             67      the facts proved in the post-conviction proceeding, viewed with the evidence and facts
             68      introduced at trial or during sentencing.
             69          (3) The court may not grant relief from a conviction based on a claim that the
             70      petitioner is innocent of the crime for which convicted except as provided in Title 78B,
             71      Chapter 9, Part 3, Postconviction Testing of DNA , or Part 4, Postconviction Determination of
             72      Factual Innocence. Claims under Part 3 or Part 4 of this chapter may not be filed as part of a
             73      petition under this part, but shall be filed separately and in conformity with the provisions of
             74      Part 3 or Part 4.
             75          Section 2. Section 78B-9-401.5 is enacted to read:
             76          78B-9-401.5. Definitions.
             77          As used in this part:
             78          (1) "Bona fide and compelling issue of factual innocence" means that the newly
             79      discovered material evidence presented by the petitioner, if credible, would clearly establish
             80      the factual innocence of the petitioner.
             81          (2) "Factual innocence" or "factually innocent" means a person did not:
             82          (a) engage in the conduct for which the person was convicted;
             83          (b) engage in conduct relating to any lesser included offenses of the crime for which
             84      the person was convicted; or
             85          (c) commit any other felony arising out of or reasonably connected to the facts


             86      supporting the indictment or information upon which the person was convicted.
             87          (3) "Newly discovered material evidence" means evidence that was not available to the
             88      petitioner at trial or during the resolution on the merits by the trial court of any motion to
             89      withdraw a guilty plea or motion for new trial and which is relevant to the determination of the
             90      issue of factual innocence, and may also include:
             91          (a) evidence which was discovered prior to or in the course of any appeal or
             92      postconviction proceedings that served in whole or in part as the basis for vacatur or reversal
             93      of the conviction of petitioner; or
             94          (b) evidence that supports the claims within a petition filed under Part 1, General
             95      Provisions, which is pending at the time of the court's determination of factual innocence.
             96          (4) "Period of incarceration" means any sentence of imprisonment, including jail,
             97      which was served after judgement of conviction.
             98          Section 3. Section 78B-9-402 is amended to read:
             99           78B-9-402. Petition for determination of factual innocence -- Sufficient
             100      allegations -- Notification of victim.
             101          [As used in this part:]
             102          [(1) "Factually innocent" means a person did not:]
             103          [(a) engage in the conduct for which the person was convicted;]
             104          [(b) engage in conduct relating to any lesser included offenses; or]
             105          [(c) commit any other felony arising out of or reasonably connected to the facts
             106      supporting the indictment or information upon which the person was convicted.]
             107          [(2) (a)] (1) A person who has been convicted of a felony offense may petition the
             108      district court in the county in which the person was convicted for a hearing to establish that
             109      the person is factually innocent of the crime or crimes of which the person was convicted[, if
             110      the person asserts].
             111          (2) (a) The petition shall contain an assertion of factual innocence under oath [and the
             112      petition alleges] by the petitioner, and shall aver, with supporting affidavits or other credible
             113      documents, that:


             114          (i) newly discovered material evidence exists that, if credible, establishes that the
             115      petitioner is factually innocent;
             116          (ii) [the petitioner identifies] the specific evidence identified by the petitioner [claims]
             117      in the petition establishes innocence;
             118          (iii) the material evidence is not merely cumulative of evidence that was known;
             119          (iv) the material evidence is not merely impeachment evidence; and
             120          (v) viewed with all the other evidence, the newly discovered evidence demonstrates
             121      that the petitioner is factually innocent[; and].
             122          (b) The court shall review the petition in accordance with the procedures in Subsection
             123      (9)(b), and make a finding that the petition has satisfied the requirements of Subsection (2)(a).
             124      If the court finds the petition does not meet all the requirements of Subsection (2)(a), it shall
             125      dismiss the petition without prejudice and send notice of the dismissal to the petitioner and the
             126      attorney general.
             127          (3) (a) The petition shall also contain an averment that:
             128          [(vi) (A)] (i) neither the petitioner nor petitioner's counsel knew of the evidence at the
             129      time of trial or sentencing or in time to include the evidence in any previously filed post-trial
             130      motion or postconviction motion, and the evidence could not have been discovered by the
             131      petitioner or the petitioner's counsel through the exercise of reasonable diligence; or
             132          [(B)] (ii) a court has found ineffective assistance of counsel for failing to exercise
             133      reasonable diligence in uncovering the evidence[; or].
             134          [(C) the court waives the requirements of Subsection (2)(a)(vi)(A) or (2)(a)(vi)(B) in
             135      the interest of justice.]
             136          (b) Upon entry of a finding that the petition is sufficient under Subsection (2)(a), the
             137      court shall then review the petition to determine if Subsection (3)(a) has been satisfied. If the
             138      court finds that the requirements of Subsection (3)(a) have not been satisfied, it may dismiss
             139      the petition without prejudice and give notice to the petitioner and the attorney general of the
             140      dismissal, or the court may enter a finding that based upon the strength of the petition, the
             141      requirements of Subsection (3)(a) are waived in the interest of justice.


             142          (4) (a) If the conviction for which the petitioner asserts factual innocence was based
             143      upon a plea of guilty, the petition shall contain the specific nature and content of the evidence
             144      that establishes factual innocence. The court shall review the evidence and may dismiss the
             145      petition at any time in the course of the proceedings, if the court finds that the evidence of
             146      factual innocence relies solely upon the recantation of testimony or prior statements made by a
             147      witness against the petitioner, and the recantation appears to the court to be equivocal or
             148      self-serving.
             149          [(b)] (5) A person who has already obtained postconviction relief that vacated or
             150      reversed the person's conviction or sentence may also file a petition under this part in the same
             151      manner and form as described above, if no retrial or appeal regarding this offense is pending.
             152          [(3)] (6) If some or all of the evidence alleged to be exonerating is biological evidence
             153      subject to DNA testing, the petitioner shall seek DNA testing pursuant to Section 78B-9-301 .
             154          [(4)] (7) Except as provided in Subsection [(6)] (9), the petition shall be in compliance
             155      with and governed by Rule 65C, Utah Rules of Civil Procedure, and shall include the
             156      underlying criminal case number.
             157          [(5)] (8) After a petition is filed under this section, prosecutors, law enforcement
             158      officers, and crime laboratory personnel shall cooperate in preserving evidence and in
             159      determining the sufficiency of the chain of custody of the evidence which is the subject of the
             160      petition.
             161          [(6) (a) Notwithstanding paragraphs (g) and (h) of Rule 65C, Utah Rules of Civil
             162      Procedure, a]
             163          (9) (a) A person who files a petition under this section shall serve notice of the petition
             164      and a copy of the petition upon the office of the prosecutor who obtained the conviction and
             165      upon the Utah attorney general.
             166          (b) The assigned judge shall conduct an initial review of the petition. If it is apparent
             167      to the court that the petitioner is either merely relitigating facts, issues, or evidence presented
             168      in previous proceedings or presenting issues that appear frivolous or speculative on their face,
             169      the court shall dismiss the petition, state the basis for the dismissal, and serve notice of


             170      dismissal upon the petitioner and the attorney general. If, upon completion of the initial
             171      review, the court does not dismiss the petition, it shall order the attorney general to file a
             172      response to the petition. The attorney general shall, within 30 days after receipt of [service of
             173      the notice] the court's order, or within any additional period of time the court allows, answer or
             174      otherwise respond to all proceedings initiated under this part.
             175          [(b) (i)] (c) After the time for response by the attorney general under Subsection
             176      [(6)(a)] (9)(b) has passed, the court shall order a hearing if it finds the petition meets the
             177      requirements of Subsections (2) and (3) and finds there is a bona fide [issue as to whether the
             178      petitioner is factually innocent of] and compelling issue of factual innocence regarding the
             179      charges of which the petitioner was convicted. No bona fide and compelling issue of factual
             180      innocence exists if the petitioner is merely relitigating facts, issues, or evidence presented in a
             181      previous proceeding or if the petitioner is unable to identify with sufficient specificity the
             182      nature and reliability of the newly discovered evidence that establishes the petitioner's factual
             183      innocence.
             184          [(ii)] (d) If the parties stipulate that the evidence establishes that the petitioner is
             185      factually innocent, the court may find the petitioner is factually innocent without holding a
             186      hearing.
             187          [(7)] (10) The court may not grant a petition for a hearing under this part during the
             188      period in which criminal proceedings in the matter are pending before any trial or appellate
             189      court, unless stipulated to by the parties.
             190          [(8)] (11) Any victim of a crime that is the subject of a petition under this part, and
             191      who has elected to receive notice under Section 77-38-3 , shall be notified by the state's
             192      attorney of any hearing regarding the petition.
             193          (12) A petition to determine factual innocence under this part, or Part 3,
             194      Postconviction Testing of DNA, shall be filed separately from any petition for postconviction
             195      relief under Part 1, General Provisions. Separate petitions may be filed simultaneously in the
             196      same court.
             197          (13) The procedures governing the filing and adjudication of a petition to determine


             198      factual innocence apply to all petitions currently filed or pending and any new petitions filed
             199      on or after the effective date of this amendment.
             200          Section 4. Section 78B-9-404 is amended to read:
             201           78B-9-404. Hearing upon petition -- Procedures -- Court determination of
             202      factual innocence.
             203          (1) (a) In any hearing conducted under this part, the Utah attorney general shall
             204      represent the state.
             205          (b) The burden is upon the petitioner to establish the petitioner's factual innocence by
             206      clear and convincing evidence.
             207          (2) The court may consider:
             208          (a) evidence that was suppressed or would be suppressed at a criminal trial; and
             209          (b) hearsay evidence, and may consider that the evidence is hearsay in evaluating its
             210      weight and credibility.
             211          (3) In making its determination the court shall consider, in addition to the evidence
             212      presented at the hearing under this part, [all the evidence presented at the original trial] the
             213      record of the original criminal case and at any postconviction proceedings in the case.
             214          (4) If the court, after considering all the evidence, determines by clear and convincing
             215      evidence that the petitioner:
             216          (a) is factually innocent of one or more offenses of which the petitioner was convicted,
             217      the court shall order that those convictions:
             218          (i) be vacated with prejudice; and
             219          (ii) be expunged from the petitioner's record; or
             220          (b) did not commit one or more offenses of which the petitioner was convicted, but the
             221      court does not find by clear and convincing evidence that the petitioner did not commit any
             222      lesser included offenses relating to those offenses, the court shall modify the original
             223      conviction and sentence of the petitioner as appropriate for the lesser included offense,
             224      whether or not the lesser included offense was originally submitted to the trier of fact.
             225          (5) (a) If the court, after considering all the evidence, does not determine by clear and


             226      convincing evidence that the petitioner is factually innocent of the offense or offenses the
             227      petitioner is challenging and does not find that Subsection (4)(b) applies, the court shall deny
             228      the petition regarding the offense or offenses.
             229          (b) If the court finds that the petition was brought in bad faith, it shall enter the
             230      finding on the record, and the petitioner may not file a second or successive petition under this
             231      section without first applying to and obtaining permission from the court which denied the
             232      prior petition.
             233          (6) At least 30 days prior to a hearing on a petition to determine factual innocence, the
             234      petitioner and the respondent shall exchange information regarding the evidence each intends
             235      to present at the hearing. This information shall include:
             236          (a) a list of witnesses to be called at the hearing; and
             237          (b) a summary of the testimony or other evidence to be introduced through each
             238      witness, including any expert witnesses.
             239          (7) Each party is entitled to a copy of any expert report to be introduced or relied upon
             240      by that expert or another expert at least 30 days prior to hearing.
             241          Section 5. Effective date.
             242          If approved by two-thirds of all the members elected to each house, this bill takes effect
             243      upon approval by the governor, or the day following the constitutional time limit of Utah
             244      Constitution Article VII, Section 8, without the governor's signature, or in the case of a veto,
             245      the date of veto override.


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