H.B. 510

1

INDIGENT DEFENSE ACT AMENDMENTS
2 2012 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Gregory H. Hughes
5 Senate Sponsor: ____________
6
7 LONG TITLE
8 General Description:
9 This bill modifies the Indigent Defense Act.
10 Highlighted Provisions:
11 This bill:
12 . defines "defense service provider", "legal defense", and "regional legal defense";
13 . allows a person charged with a serious offense to file a claim of indigency with the
14 court;
15 . requires a defense service provider to provide all legal defense services as a
16 package;
17 . provides procedures for the court to follow when a defendant hires private counsel;
18 and
19 . extends subsequent terms of county commissioners and county attorneys who serve
20 on the Indigent Defense Fund Board to be four years rather than two years.
21 Money Appropriated in this Bill:
22 None
23 Other Special Clauses:
24 None
25 Utah Code Sections Affected:
26 AMENDS:
27 77-32-201, as last amended by Laws of Utah 2011, Chapter 108

28 77-32-202, as last amended by Laws of Utah 2011, Chapter 108
29 77-32-301, as renumbered and amended by Laws of Utah 1997, Chapter 354
30 77-32-302, as last amended by Laws of Utah 2006, Chapter 49
31 77-32-303, as last amended by Laws of Utah 2008, Chapter 3
32 77-32-304, as renumbered and amended by Laws of Utah 1997, Chapter 354
33 77-32-304.5, as last amended by Laws of Utah 2006, Chapter 49
34 77-32-305.5, as enacted by Laws of Utah 1997, Chapter 307
35 77-32-306, as last amended by Laws of Utah 2006, Chapter 49
36 77-32-307, as renumbered and amended by Laws of Utah 1997, Chapter 354
37 77-32-401, as last amended by Laws of Utah 2010, Chapter 286
38
39 Be it enacted by the Legislature of the state of Utah:
40 Section 1. Section 77-32-201 is amended to read:
41 77-32-201. Definitions.
42 For the purposes of this chapter:
43 (1) "Board" means the Indigent Defense Funds Board created in Section 77-32-401 .
44 (2) "Compelling reason" shall include one or more of the following circumstances
45 relating to the contracting attorney:
46 (a) a conflict of interest;
47 (b) the contracting attorney does not have sufficient expertise to provide an effective
48 defense of the indigent; or
49 (c) the defense resource is insufficient or lacks expertise to provide a complete defense.
50 (3) "Defense resources" means a competent investigator, expert witness, or other
51 appropriate means necessary, for an effective defense of an indigent, but does not include legal
52 counsel.
53 (4) "Defense services provider" means a legal aid association, legal defender's office,
54 regional legal defense association, law firm, attorney, or attorneys contracting with a county or
55 municipality to provide legal defense, and includes any combination of counties and
56 municipalities, to provide regional legal defense.
57 [(4)] (5) "Indigent" means a person qualifying as an indigent under indigency standards
58 established in Part 3, Counsel for Indigents.

59 [(5)] (6) "Legal aid association" means a nonprofit defense association or society that
60 provides [counsel and] legal defense [resources] for indigent defendants.
61 [(6)] (7) "Legal defender's office" means a [department] division of county government
62 created and authorized by the county legislative body to provide legal representation in
63 criminal matters to indigent defendants.
64 [(7)] (8) "Legal defense" means [legal counsel, defense resources, or both.] to:
65 (a) provide competent defense counsel for each indigent who faces the substantial
66 probability of the deprivation of the indigent's liberty;
67 (b) afford timely representation by defense counsel;
68 (c) provide the defense resources necessary for a complete defense;
69 (d) assure undivided loyalty of defense counsel to the client;
70 (e) provide a first appeal right; and
71 (f) prosecute other remedies, before or after a conviction, considered by defense
72 counsel to be in the interest of justice except for other subsequent discretionary appeals or
73 discretionary writ proceedings.
74 [(8)] (9) "Participating county" means a county which has complied with the provisions
75 of this chapter for participation in the Indigent Capital Defense Trust Fund as provided in
76 Sections 77-32-602 and 77-32-603 or the Indigent Felony Defense Trust Fund as provided in
77 Sections 77-32-702 and 77-32-703 .
78 (10) "Regional legal defense" means a defense services provider which provides legal
79 defense to any combination of counties and municipalities through an interlocal cooperation
80 agreement pursuant to Title 11, Chapter 13, Interlocal Cooperation Act, and Subsection
81 77-32-306 (3).
82 [(9)] (11) "Serious offense" means a felony or capital felony.
83 Section 2. Section 77-32-202 is amended to read:
84 77-32-202. Procedure for determination of indigency -- Standards.
85 (1) A determination of indigency or continuing indigency of any defendant may be
86 made by the court at any stage of the proceedings.
87 (2) (a) Any defendant claiming indigency who is charged with a crime the penalty of
88 which is a class A misdemeanor or [felony] serious offense shall file with the court a fully
89 complete affidavit verified by a notary or other person authorized by law to administer an oath

90 and file a copy of that affidavit with the prosecuting entity. The affidavit shall contain the
91 factual information required in this section and by the court.
92 (b) A defendant claiming indigency who is charged with a crime the penalty of which
93 is less than a class A misdemeanor is not required to comply with the requirements of
94 Subsection (2)(a) and Subsection (4).
95 (3) (a) "Indigency" means that a person:
96 (i) does not have sufficient income, assets, credit, or other means to provide for the
97 payment of legal counsel and all other necessary expenses of representation without depriving
98 that person or the family of that person of food, shelter, clothing, and other necessities; or
99 (ii) has an income level at or below 150% of the United States poverty level as defined
100 by the most recently revised poverty income guidelines published by the United States
101 Department of Health and Human Services; and
102 (iii) has not transferred or otherwise disposed of any assets since the commission of the
103 offense with the intent of establishing eligibility for the appointment of counsel under this
104 chapter.
105 (b) In making a determination of indigency, the court shall consider:
106 (i) the probable expense and burden of defending the case;
107 (ii) the ownership of, or any interest in, any tangible or intangible personal property or
108 real property, or reasonable expectancy of any such interest;
109 (iii) the amounts of debts owned by the defendant or that might reasonably be incurred
110 by the defendant because of illness or other needs within the defendant's family;
111 (iv) number, ages, and relationships of any dependents;
112 (v) the reasonableness of fees and expenses charged to the defendant by the defendant's
113 attorney where the defendant is represented by privately retained defense counsel; and
114 (vi) other factors considered relevant by the court.
115 (4) Upon making a finding of indigence, the court shall enter the findings on the record
116 and enter an order assigning a defense [counsel] service provider to represent the defendant in
117 the case. The clerk of the court shall send a copy of the affidavit and order to the prosecutor
118 and to the county clerk or municipal recorder.
119 (5) If the county or municipality providing the defense [counsel] services provider has
120 any objections to or concerns with the finding of indigency and assignment of a defense

121 [counsel] services provider or the continuing of indigency status and assignment of a [public
122 defender] defense services provider, it shall file notice with the court and a hearing shall be
123 scheduled to review the findings and give the county or municipality the opportunity to present
124 evidence and arguments as to the reasons the finding of indigency should be reversed.
125 (6) (a) If the trial court finds within one year after the determination of indigency that
126 any defendant was erroneously or improperly determined to be indigent, the county or
127 municipality may proceed against that defendant for the reasonable value of the services
128 rendered to the defendant, including all costs paid by the county or municipality in providing
129 the legal defense [counsel].
130 (b) Subsection (6)(a) does not affect any restitution required of the defendant by the
131 court pursuant to [Title 77,] Chapter 32a, Defense Costs.
132 (c) A defendant claiming indigency has a continuing duty to inform the court of any
133 material changes or change in circumstances that may affect the determination of his eligibility
134 for indigency.
135 (d) Any person who intentionally or knowingly makes a material false statement or
136 omits a material fact in an affidavit for indigency is guilty of a class B misdemeanor.
137 Section 3. Section 77-32-301 is amended to read:
138 77-32-301. Minimum standards for defense of an indigent.
139 (1) Each county, city, and town shall provide for the legal defense of an indigent in
140 criminal cases in the courts and various administrative bodies of the state in accordance with
141 [the following minimum] legal defense standards[:] as defined in Section 77-32-201 .
142 [(1) provide counsel for each indigent who faces the substantial probability of the
143 deprivation of the indigent's liberty;]
144 [(2) afford timely representation by competent legal counsel;]
145 [(3) provide the investigatory resources necessary for a complete defense;]
146 [(4) assure undivided loyalty of defense counsel to the client;]
147 [(5) proceed with a first appeal of right; and]
148 [(6) prosecute other remedies before or after a conviction, considered by defense
149 counsel to be in the interest of justice except for other and subsequent discretionary appeals or
150 discretionary writ proceedings.]
151 (2) (a) A county or municipality that contracts with a defense services provider shall

152 provide that all defense elements be included in a single package of legal defense services
153 made available to indigents, except as provided in Sections 77-32-302 and 77-32-303 .
154 (b) If necessary to avoid a conflict of interest between:
155 (i) trial counsel and counsel on appeal, a defense services provider may utilize different
156 trial and appellate counsel; and
157 (ii) counsel for co-defendants, a defense services provider may utilize different trial
158 counsel for each defendant.
159 (c) If a county or municipality contracts to provide all legal defense elements as a
160 single package, a defendant may not receive funding for defense resources unless represented
161 by publically funded counsel or as provided in Subsection 77-32-303 (2).
162 Section 4. Section 77-32-302 is amended to read:
163 77-32-302. Assignment of counsel on request of indigent or order of court.
164 (1) [Legal counsel] The defense services provider shall be assigned to represent each
165 indigent and [the indigent] shall [also be provided access to] provide legal defense [resources]
166 services necessary for an [effective] adequate defense, if the indigent is under arrest for or
167 charged with a crime in which there is a substantial probability that the penalty to be imposed
168 is confinement in either jail or prison if:
169 (a) the indigent requests [counsel or] legal defense [resources, or both] services; or
170 (b) the court on its own motion or otherwise orders [counsel,] legal defense [resources,
171 or both] services and the defendant does not affirmatively waive or reject on the record the
172 opportunity to be [represented and] provided legal defense [resources] services.
173 (2) (a) If a county responsible for providing indigent legal defense[, including counsel
174 and defense resources,] has established a county legal defender's office and the court has
175 received notice of the establishment of the office, the court shall assign to the county legal
176 defender's office the responsibility to defend indigent defendants within the county and provide
177 defense resources.
178 (b) If the county or municipality responsible to provide for the legal defense of an
179 indigent[, including defense resources and counsel,] has arranged by contract to provide those
180 services through a [legal aid association,] defense services provider, and the court has received
181 notice or a copy of the contract, the court shall assign the [legal aid association] defense
182 services provider named in the contract to [defend the indigent and] provide legal defense

183 [resources] services.
184 [(c) If the county or municipality responsible for providing indigent legal defense,
185 including counsel and defense resources, has contracted to provide those services through
186 individual attorneys, individual defense resources, or associations providing defense resources,
187 and the court has received notice or a copy of the contracts, the court shall assign a contracting
188 attorney as the legal counsel to represent an indigent and a contracted defense resource to
189 provide defense-related services.]
190 [(d)] (c) If no county [legal defender's office] or municipal defense services provider
191 contract exists, the court shall select and assign [an attorney or] a legal defense [resource if:]
192 services provider.
193 [(i) the contract for indigent legal services is with multiple attorneys or resources; or]
194 [(ii) the contract is with another attorney in the event of a conflict of interest.]
195 [(e)] (d) If the court considers the assignment of a noncontracting [attorney or defense
196 resource to provide legal services] legal defense services provider to an indigent defendant
197 despite the existence of [an indigent legal] a defense services provider contract and the court
198 has a copy or notice of the contract, before the court may make the assignment, it shall:
199 (i) set the matter for a hearing;
200 (ii) give proper notice of the hearing to the attorney of the responsible county or
201 municipality and county clerk or municipal recorder; and
202 (iii) make findings that there is a compelling reason to appoint a noncontracting
203 attorney or defense resource.
204 [(f)] (e) The indigent's preference for other counsel or defense resources may not be
205 considered a compelling reason justifying the appointment of a noncontracting attorney or
206 defense resource.
207 (3) The court may make a determination of indigency at any time.
208 Section 5. Section 77-32-303 is amended to read:
209 77-32-303. Standard for court to appoint noncontracting attorney or defense
210 resource -- Hearing.
211 (1) If a county or municipality has contracted or otherwise provided for a defense
212 provider, [or otherwise made arrangements for, the legal defense of indigents, including a
213 competent attorney and defense resources,] the court may not appoint a noncontracting attorney

214 or defense resource either under this part, Section 78B-1-151 , or Rule 15, Utah Rules of
215 Criminal Procedure, unless the court:
216 [(1)] (a) conducts a hearing with proper notice to the [responsible entity] county clerk
217 or municipal recorder to consider the authorization or designation of a noncontract attorney or
218 defense resource; and
219 [(2)] (b) makes a finding that there is a compelling reason to authorize or designate a
220 noncontracting attorney or defense resources for the indigent defendant.
221 (2) If a court conducts a hearing under Subsection (1)(a) to consider the provision of
222 defense resources for a defendant who has retained private legal counsel, the court shall
223 consider the following:
224 (a) the reasons offered by defendant for not using the defense services provider;
225 (b) the financial circumstances which permit the defendant to retain private counsel,
226 but not pay for defense resources;
227 (c) the financial arrangement between the defendant and the defendant's private
228 counsel, reviewed by the court in camera without counsel present, including a full accounting
229 of defense retainer and counsel's anticipated costs of defense resources;
230 (d) whether requiring the defendant to agree to the substitution of a contracted defense
231 services provider would prejudice an adequate defense, with or without a reasonable
232 continuance; and
233 (e) whether the request is made in good faith.
234 (3) In considering a defendant's motion under Subsection (2), the court may not order
235 the county or municipality to provide defense resources independently of the defendant's use of
236 the defense services provider, absent clear and convincing evidence that the defendant's rights
237 to due process and an adequate defense will be denied if the request is not granted.
238 Section 6. Section 77-32-304 is amended to read:
239 77-32-304. Duties of assigned counsel -- Compensation.
240 (1) When representing an indigent, the assigned counsel shall:
241 (a) counsel and defend the indigent at every stage of the proceeding following
242 assignment; and
243 (b) file any first appeal of right or other remedy before or after conviction that the
244 assigned counsel considers to be in the interest of justice, except for other and subsequent

245 discretionary appeals or discretionary writ proceedings.
246 (2) An assigned counsel may not have the duty or power under this section to represent
247 an indigent in any discretionary appeal or action for a discretionary writ, other than in a
248 meaningful first appeal of right to assure the indigent an adequate opportunity to present the
249 indigent's claims fairly in the context of the appellate process of this state.
250 (3) An assigned counsel for an indigent shall be entitled to compensation upon:
251 (a) approval of the district court where the original trial was held;
252 (b) a showing that:
253 (i) the indigent has been denied a constitutional right; or
254 (ii) there was newly discovered evidence that would show the indigent's innocence; and
255 (c) a clear showing that the legal services rendered by counsel were:
256 (i) other than that required under this chapter or under a separate fee arrangement; and
257 (ii) necessary for the adequate defense of the indigent and not for the purpose of
258 delaying the judgment of the original trier of fact.
259 Section 7. Section 77-32-304.5 is amended to read:
260 77-32-304.5. Reasonable compensation for defense counsel for indigents.
261 (1) This section does not apply to any [attorney: (a)] defense services provider
262 otherwise under contract with the county or municipality for defense of an indigent person[;].
263 [(b) in the legal defender organization, legal aid agency, law firm, or public defender
264 association with which that attorney is professionally associated; or]
265 [(c) who is an employee of a county legal defender's office.]
266 (2) (a) The county or municipality shall pay reasonable compensation to any attorney
267 assigned by the court under Subsection 77-32-306 at the conclusion of the representation or any
268 segment of the representation, as provided in Subsections (2)(b), (c), (d), and (e):
269 (i) before the district or justice courts, including interlocutory appeals; and
270 (ii) before the appellate court on a first appeal of right.
271 (b) The legislative body of each county and municipality shall establish and annually
272 review guidelines for the rate of compensation, taking into account:
273 (i) the nature and complexity of the case;
274 (ii) the competency and years of experience in criminal defense of the assigned
275 attorney;

276 (iii) the adjusted net hourly rate incurred by the county or municipality for a prosecutor
277 or public defender of equivalent experience and competency; and
278 (iv) the prevailing rates within the judicial district for comparable services.
279 (c) If the legislative body of a county or municipality does not establish the rate
280 guidelines, the rate of compensation shall be determined by the trial judge or a judge other than
281 the trial judge if requested by:
282 (i) the assigned attorney; or
283 (ii) the county or municipality.
284 (d) If the assigned attorney disagrees with the amount of compensation paid or
285 contemplated for payment by the county or municipality, the assigned attorney shall
286 nonetheless continue to represent the indigent defendant and may file a claim against:
287 (i) the county pursuant to Section 17-50-401 , in which event the period for a denial by
288 the county shall be 20 days; or
289 (ii) the municipality pursuant to Title 10, Chapter 6, Uniform Fiscal Procedures Act for
290 Utah Cities.
291 (e) In determining the reasonable compensation to be paid to defense counsel under
292 Subsections (2)(c) and (d), the court shall consider the factors contained in Subsections
293 (2)(b)(i) through (iv).
294 (f) The total compensation in a noncapital case may not, without prior court approval
295 following a hearing, exceed:
296 (i) $3,500 for each assigned attorney in a case in which one or more felonies is
297 charged;
298 (ii) $1,000 for each assigned attorney in a case in which only misdemeanors or lesser
299 offenses are charged; or
300 (iii) $2,500 for each assigned attorney in the representation of an indigent in an
301 appellate court on a first appeal of right.
302 Section 8. Section 77-32-305.5 is amended to read:
303 77-32-305.5. Reimbursement of extraordinary expense.
304 (1) For the purposes of this section, an "extraordinary expense" means the collective
305 expense which exceeds $500 for defense resources or any particular service or item such as
306 experts, investigators, surveys, or demonstrative evidence.

307 (2) The county or municipality shall reimburse expenses, exclusive of overhead and
308 extraordinary expense not approved by the court in accordance with this chapter, reasonably
309 incurred by assigned attorneys for indigent defendants through a contracted defense services
310 provider, ordered by the court based on a hearing held in accordance with Subsections
311 77-32-303 (2) and (3), or for an appointed counsel under Section 77-32-304.5 .
312 (3) The assigned attorney shall file a motion with the court for approval of the
313 proposed expenditure for any extraordinary expense before the expense is incurred. The
314 motion shall be heard and ruled upon by a judge other than the trial judge if so requested by
315 either party or upon the motion of the trial judge.
316 Section 9. Section 77-32-306 is amended to read:
317 77-32-306. County or municipal legislative body to provide legal defense.
318 (1) The county or municipal legislative body shall either:
319 (a) contract [to provide the legal defense, including counsel, defense resources, or both,
320 as prescribed by this chapter, and as available, through:] with a defense services provider; or
321 [(i) a legal aid association; or]
322 [(ii) one or more defense associations or attorneys and qualified defense resources; or]
323 (b) authorize the court to provide the services prescribed by this chapter by assigning a
324 qualified attorney in each case.
325 (2) A county may create a county legal defender's office to provide for the legal
326 defense[, including counsel and defense resources or both,] as prescribed by this chapter.
327 (3) A county legal defender's office may, through the county legislative body contract
328 with other counties and municipalities within a judicial district to provide the legal services as
329 prescribed.
330 (4) Counties and municipalities are encouraged to enter into interlocal cooperation
331 agreements pursuant to Title 11, Chapter 13, Interlocal Cooperation Act, for the provision of
332 legal defense, including multiple counties and municipalities contracting with either a private
333 defense services provider or with a legal defender's office. An interlocal agreement may
334 provide for:
335 (a) the creation of or contract with a private defense services provider, as defined in
336 Subsection 77-32-201 (4):
337 (b) multiple counties or municipalities to contract with a county legal defender's office,

338 as defined in Subsection 77-32-201 (7); or
339 (c) the creation of an interlocal entity as provided in Section 11-13-203 .
340 [(4)] (5) When a county or municipality has contracted under Subsection (1)(a) or a
341 county has created a legal defender's office as provided under Subsection (2) to provide the
342 legal [counsel and] defense resources required by this chapter, the [contracted legal aid
343 association or attorneys, contracted defense resources, and the county legal defender's office
344 are] legal services provider is the exclusive source from which the legal defense may be
345 provided, unless the court finds a compelling reason for the appointment of noncontracting
346 attorneys and defense resources[,] under Section 77-32-302 or 77-32-303 , in which case the
347 judge shall state the compelling reason and the findings of the hearing held under Subsections
348 77-32-303 (2) and (3) on the record.
349 (6) A county or municipality may by ordinance provide for some other means which
350 are constitutionally adequate for legal defense for indigents.
351 Section 10. Section 77-32-307 is amended to read:
352 77-32-307. Expenditures of county or municipal funds declared proper -- Tax
353 levy authorized.
354 (1) An expenditure by any county or [incorporated] municipality is considered a proper
355 use of public funds if the expenditure is necessary to carry out the purposes defined in this
356 chapter.
357 (2) A donation to a nonprofit legal aid or other association charged with the duty to
358 provide the services is a proper use of public funds.
359 (3) Any county or [incorporated area] municipality of the state is authorized to levy and
360 collect taxes to meet the requirements of this chapter.
361 Section 11. Section 77-32-401 is amended to read:
362 77-32-401. Indigent Defense Funds Board -- Members -- Administrative support.
363 (1) There is created within the Division of Finance the Indigent Defense Funds Board
364 composed of the following nine members:
365 (a) two members who are current commissioners or county executives of participating
366 counties appointed by the board of directors of the Utah Association of Counties;
367 (b) one member at large appointed by the board of directors of the Utah Association of
368 Counties;

369 (c) two members who are current county attorneys of participating counties appointed
370 by the Utah Prosecution Council;
371 (d) the director of the Division of Finance or his designee;
372 (e) one member appointed by the Administrative Office of the Courts; and
373 (f) two members who are private attorneys engaged in or familiar with the criminal
374 defense practice appointed by the members of the board listed in Subsections (1)(a) through
375 (e).
376 (2) Members shall serve four-year terms; however, one of the county commissioners,
377 and one of the county attorneys appointed to the initial board shall serve two-year terms and the
378 remaining other members of the initial board shall be appointed for four-year terms. After the
379 initial two-year term of the county commissioner and county attorney, those board positions
380 shall also have four-year terms.
381 (3) A vacancy is created if a member appointed under:
382 (a) Subsection (1)(a) no longer serves as a county commissioner or county executive;
383 or
384 (b) Subsection (1)(c) no longer serves as a county attorney.
385 (4) When a vacancy occurs in the membership for any reason, a replacement shall be
386 appointed for the remaining unexpired term in the same manner as the original appointment.
387 (5) The board may contract for administrative support for up to $15,000 annually to be
388 paid proportionally from each fund.
389 (6) A member may not receive compensation or benefits for the member's service, but
390 may receive per diem and travel expenses in accordance with:
391 (a) Section 63A-3-106 ;
392 (b) Section 63A-3-107 ; and
393 (c) rules made by the Division of Finance pursuant to Sections 63A-3-106 and
394 63A-3-107 .
395 (7) Per diem and expenses for board members shall be paid proportionally from each
396 fund.
397 (8) Five members shall constitute a quorum and, if a quorum is present, the action of a
398 majority of the members present shall constitute the action of the board.

Legislative Review Note
as of 2-6-12 10:52 AM

Office of Legislative Research and General Counsel