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H.B. 202 Enrolled
7 LONG TITLE
8 General Description:
9 This bill modifies the Criminal Code and the Judicial Code regarding capital sentencing
11 Highlighted Provisions:
12 This bill:
13 . clarifies when a petitioner has a right to funded counsel for successive petitions; and
14 . sets limits on the obtaining of execution stays for successive postconviction
16 Money Appropriated in this Bill:
18 Other Special Clauses:
20 Utah Code Sections Affected:
22 77-19-8, as last amended by Laws of Utah 2008, Chapter 3
23 78B-9-202, as last amended by Laws of Utah 2008, Chapter 288 and renumbered and
24 amended by Laws of Utah 2008, Chapter 3
26 Be it enacted by the Legislature of the state of Utah:
27 Section 1. Section 77-19-8 is amended to read:
28 77-19-8. Judgment of death, when suspended, and by whom.
29 (1) Except as stated in Subsection (2), a judge, tribunal, or officer, other than the
30 governor or the Board of Pardons and Parole, may not stay or suspend the execution of a
31 judgment of death.
32 (2) (a) A court of competent jurisdiction shall issue a temporary stay of judgment of
33 death when:
34 (i) the judgment is appealed;
35 (ii) the judgment is automatically reviewed;
36 (iii) the person sentenced to death files a first petition for postconviction relief after the
37 direct appeal under Title 78B, Chapter 9, [
38 (iv) the person sentenced to death requests counsel under Subsection 78B-9-202 (2)(a)
39 to represent [
40 Chapter 9, [
41 (v) counsel enters an appearance to represent the person sentenced to death in [
42 first action for postconviction relief under Title 78B, Chapter 9, [
43 Postconviction Remedies Act.
44 (b) A court may not issue a temporary stay of judgment of death when the person
45 sentenced to death files a petition for postconviction relief under Title 78B, Chapter 9,
46 Postconviction Remedies Act, after a first petition has been denied or dismissed, unless the
47 court first finds all of the following:
48 (i) the claims would not be barred under Section 78B-9-106 ;
49 (ii) the claims are potentially meritorious; and
50 (iii) the petition may not be reasonably disposed of before the execution date.
52 under Section 77-19-202 may temporarily suspend the execution if the person sentenced to
53 death appears to be incompetent or pregnant.
54 (ii) A temporary suspension under Subsection (2)[
55 determined to be:
56 (A) competent;
57 (B) not pregnant; or
58 (C) no longer incompetent or pregnant.
59 (3) (a) The court must vacate a stay issued pursuant to Subsection (2)(a) when the
60 appeal, automatic review, or action under Title 78B, Chapter 9, [
61 Postconviction Remedies Act is concluded.
62 (b) A request for counsel under Section 78B-9-202 does not constitute an application
63 for postconviction or other collateral review and does not toll the statute of limitations under
64 Section 78B-9-107 .
65 Section 2. Section 78B-9-202 is amended to read:
67 78B-9-202. Appointment and payment of counsel in death penalty cases.
68 (1) A person who has been sentenced to death and whose conviction and sentence has
69 been affirmed on appeal shall be advised in open court, on the record, in a hearing scheduled
70 no less than 30 days prior to the signing of the death warrant, of the provisions of this chapter
71 allowing challenges to the conviction and death sentence and the appointment of counsel for
72 indigent petitioners.
73 (2) (a) If a petitioner requests the court to appoint counsel, the court shall determine
74 whether the petitioner is indigent and make findings on the record regarding the petitioner's
75 indigency. If the court finds that the petitioner is indigent, it shall, subject to the provisions of
76 Subsection (5), promptly appoint counsel who is qualified to represent petitioners in
77 postconviction death penalty cases as required by Rule 8 of the Utah Rules of Criminal
78 Procedure. Counsel who represented the petitioner at trial or on the direct appeal may not be
79 appointed to represent the petitioner under this section.
80 (b) A petitioner who wishes to reject the offer of counsel shall be advised on the record
81 by the court of the consequences of the rejection before the court may accept the rejection.
82 (3) Attorney fees and litigation expenses incurred in providing the representation
83 provided for in this section and that the court has determined are reasonable shall be paid from
84 state funds by the Division of Finance according to rules established pursuant to Title 63G,
85 Chapter 3, Utah Administrative Rulemaking Act.
86 (a) In determining whether the requested funds are reasonable, the court should
88 (i) the extent to which the petitioner requests funds to investigate and develop evidence
89 and legal arguments that duplicate the evidence presented and arguments raised in the criminal
90 proceeding; and
91 (ii) whether the petitioner has established that the requested funds are necessary to
92 develop evidence and legal arguments that are reasonably likely to support postconviction
94 (b) The court may authorize payment of attorney fees at a rate of $125 per hour up to a
95 maximum of $60,000. The court may exceed the maximum only upon a showing of good
96 cause as established in Subsections (3)(e) and (f).
97 (c) The court may authorize litigation expenses up to a maximum of $20,000. The
98 court may exceed the maximum only upon a showing of good cause as established in
99 Subsections (3)(e) and (f).
100 (d) The court may authorize the petitioner to apply ex parte for the funds permitted in
101 Subsections (3)(b) and (c) upon a motion to proceed ex parte and if the petitioner establishes
102 the need for confidentiality. The motion to proceed ex parte must be served on counsel
103 representing the state, and the court may not grant the motion without giving the state an
104 opportunity to respond.
105 (e) In determining whether good cause exists to exceed the maximum sums established
106 in Subsections (3)(b) and (c), the court shall consider:
107 (i) the extent to which the work done to date and the further work identified by the
108 petitioner duplicates work and investigation performed during the criminal case under review;
110 (ii) whether the petitioner has established that the work done to date and the further
111 work identified is reasonably likely to develop evidence or legal arguments that will support
112 postconviction relief.
113 (f) The court may permit payment in excess of the maximum amounts established in
114 Subsections (3)(b) and (c) only on the petitioner's motion, provided that:
115 (i) if the court has granted a motion to file ex parte applications under Subsection
116 (3)(d), the petitioner shall serve the motion to exceed the maximum amounts on an assistant
117 attorney general employed in a division other than the one in which the attorney is employed
118 who represents the state in the postconviction case; if the court has not granted a motion to file
119 ex parte applications, then the petitioner must serve the attorney representing the state in the
120 postconviction matter with the motion to exceed the maximum funds;
121 (ii) if the motion proceeds under Subsection (3)(f)(i), the designated assistant attorney
122 general may not disclose to the attorney representing the state in the postconviction matter any
123 material the petitioner provides in support of the motion except upon a determination by the
124 court that the material is not protected by or that the petitioner has waived the attorney client
125 privilege or work product doctrine; and
126 (iii) the court gives the state an opportunity to respond to the request for funds in
127 excess of the maximum amounts provided in Subsections (3)(b) and (c).
128 (4) Nothing in this chapter shall be construed as creating the right to the effective
129 assistance of postconviction counsel, and relief may not be granted on any claim that
130 postconviction counsel was ineffective.
131 (5) If within 60 days of the request for counsel the court cannot find counsel willing to
132 accept the appointment, the court shall notify the petitioner and the state's counsel in writing.
133 In that event, the petitioner may elect to proceed pro se by serving written notice of that
134 election on the court and state's counsel within 30 days of the court's notice that no counsel
135 could be found. If within 30 days of its notice to the petitioner the court receives no notice that
136 the petitioner elects to proceed pro se, the court shall dismiss any pending postconviction
137 actions and vacate any execution stays, and the state may initiate proceedings under Section
138 77-19-9 to issue an execution warrant.
139 (6) Subject to Subsection (2)(a) the court shall appoint counsel to represent the
140 petitioner for the first petition filed after the direct appeal. For all other petitions, counsel may
141 not be appointed at public expense for a petitioner, except to raise claims:
142 (a) based on newly discovered evidence as defined in Subsection 78B-9-104 (1)(e)(i);
144 (b) based on Subsection 78B-9-104 (1)(f) that could not have been raised in any
145 previously filed post trial motion or postconviction proceeding.
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