This document includes Senate 2nd Reading Floor Amendments incorporated into the bill on Wed, Feb 25, 2015 at 3:46 PM by lpoole.
This document includes House Committee Amendments incorporated into the bill on Fri, Mar 6, 2015 at 2:21 PM by jeyring.
This document includes House Floor Amendments incorporated into the bill on Wed, Mar 11, 2015 at 8:48 PM by jeyring.
1     
JUVENILE OFFENDER AMENDMENTS

2     
2015 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Aaron Osmond

5     
House Sponsor: V. Lowry Snow

6     

7     LONG TITLE
8     General Description:
9          This bill makes changes to statutes regarding minors and courts.
10     Highlighted Provisions:
11          This bill:
12          ▸     adds a specific list of previous offenses and conditions to the statute that allows for
13     the direct filing of charges in district court;
14          ▸     adds a new option to the serious youth offender statute;
15          ▸     creates guidelines for housing a minor convicted in district court in a juvenile secure
16     facility;
17          ▸     requires that the court determine that a minor is knowingly and intentionally
18     waiving counsel; and
19          ▸     sets a presumption that juveniles are not to be shackled when appearing in court
20     unless ordered by the court.
21     Money Appropriated in this Bill:
22          None
23     Other Special Clauses:
24          Ŝ→ [
None] This bill provides a special effective date. ←Ŝ
25     Utah Code Sections Affected:
26     AMENDS:
27          62A-7-201, as last amended by Laws of Utah 2010, Chapter 38

28          78A-6-701, as last amended by Laws of Utah 2014, Chapter 234
29          78A-6-702, as last amended by Laws of Utah 2014, Chapter 234
30          78A-6-703, as last amended by Laws of Utah 2014, Chapter 234
31          78A-6-1111, as repealed and reenacted by Laws of Utah 2014, Chapter 275
32     ENACTS:
33          78A-6-122, Utah Code Annotated 1953
34          78A-6-705, Utah Code Annotated 1953
35     

36     Be it enacted by the Legislature of the state of Utah:
37          Section 1. Section 62A-7-201 is amended to read:
38          62A-7-201. Confinement -- Facilities -- Restrictions.
39          (1) Children under 18 years of age, who are apprehended by any officer or brought
40     before any court for examination under any provision of state law, may not be confined in jails,
41     lockups, or cells used for persons 18 years of age or older who are charged with crime, or in
42     secure postadjudication correctional facilities operated by the division, except as provided in
43     Subsection (2), other specific statute, or in conformance with standards approved by the board.
44          (2) (a) Children charged with crimes under Section 78A-6-701, as a serious youth
45     offender under Section 78A-6-702 and bound over to the jurisdiction of the district court, or
46     certified to stand trial as an adult pursuant to Section 78A-6-703, if detained, shall be detained
47     [in a jail or other place of detention used for adults] as provided in these sections.
48          (b) Children detained in adult facilities under Section 78A-6-702 or 78A-6-703 prior to
49     a hearing before a magistrate, or under Subsection 78A-6-113(3), may only be held in certified
50     juvenile detention accommodations in accordance with rules promulgated by the division.
51     Those rules shall include standards for acceptable sight and sound separation from adult
52     inmates. The division certifies facilities that are in compliance with the division's standards.
53     The provisions of this Subsection (2)(b) do not apply to juveniles held in an adult detention
54     facility in accordance with Subsection (2)(a).
55          (3) In areas of low density population, the division may, by rule, approve juvenile
56     holding accommodations within adult facilities that have acceptable sight and sound
57     separation. Those facilities shall be used only for short-term holding purposes, with a
58     maximum confinement of six hours, for children alleged to have committed an act which

59     would be a criminal offense if committed by an adult. Acceptable short-term holding purposes
60     are: identification, notification of juvenile court officials, processing, and allowance of
61     adequate time for evaluation of needs and circumstances regarding release or transfer to a
62     shelter or detention facility. The provisions of this Subsection (3) do not apply to juveniles
63     held in an adult detention facility in accordance with Subsection (2)(a).
64          (4) Children who are alleged to have committed an act which would be a criminal
65     offense if committed by an adult, may be detained in holding rooms in local law enforcement
66     agency facilities for a maximum of two hours, for identification or interrogation, or while
67     awaiting release to a parent or other responsible adult. Those rooms shall be certified by the
68     division, according to the division's rules. Those rules shall include provisions for constant
69     supervision and for sight and sound separation from adult inmates.
70          (5) Willful failure to comply with any of the provisions of this section is a class B
71     misdemeanor.
72          (6) (a) The division is responsible for the custody and detention of children under 18
73     years of age who require detention care prior to trial or examination, or while awaiting
74     assignment to a home or facility, as a dispositional placement under Subsection
75     78A-6-117(2)(f)(i) or 78A-6-1101(3)(a), and of youth offenders under Subsection
76     62A-7-504(8). The provisions of this Subsection (6)(a) do not apply to juveniles held in an
77     adult detention facility in accordance with Subsection (2)(a).
78          (b) The division shall provide standards for custody or detention under Subsections
79     (2)(b), (3), and (4), and shall determine and set standards for conditions of care and
80     confinement of children in detention facilities.
81          (c) All other custody or detention shall be provided by the division, or by contract with
82     a public or private agency willing to undertake temporary custody or detention upon agreed
83     terms, or in suitable premises distinct and separate from the general jails, lockups, or cells used
84     in law enforcement and corrections systems. The provisions of this Subsection (6)(c) do not
85     apply to juveniles held in an adult detention facility in accordance with Subsection (2)(a).
86          Section 2. Section 78A-6-122 is enacted to read:
87          78A-6-122. Restraint of juveniles.
88          (1) As used in this section, "restrained" means the use of handcuffs, chains, shackles,
89     zip ties, irons, straightjackets, and any other device or method which may be used to

90     immobilize a juvenile.
91          (2) Ŝ→ The Judicial Council shall adopt rules that address the circumstances under
91a     which a juvenile may be restrained while appearing in court. The Judicial Council shall ensure
91b     that the rules consider both the welfare of the juvenile and the safety of the court. ←Ŝ A
91c     juvenile may not be restrained during a court proceeding unless restraint is
92     Ŝ→ [
ordered] authorized ←Ŝ by Ŝ→ [the court] rules of the Judicial Council ←Ŝ .
93          Section 3. Section 78A-6-701 is amended to read:
94          78A-6-701. Jurisdiction of district court.
95          (1) The district court has exclusive original jurisdiction over all persons 16 years of age
96     or older charged with:
97          (a) an offense which would be murder or aggravated murder if committed by an adult;
98     [or]
99          (b) [an offense which would be a felony if committed by an adult] if the minor has
100     been previously committed to a secure facility as defined in Section 62A-7-101[. This
101     Subsection (1)(b) shall not apply if the offense is committed in a secure facility.], a felony
102     violation of:
103          (i) Section 76-6-103, aggravated arson;
104          (ii) Section 76-5-103, aggravated assault resulting in serious bodily injury to another;
105          (iii) Section 76-5-302, aggravated kidnapping;
106          (iv) Section 76-6-203, aggravated burglary;
107          (v) Section 76-6-302, aggravated robbery;
108          (vi) Section 76-5-405, aggravated sexual assault;
109          (vii) Section 76-10-508.1, felony discharge of a firearm;
110          (viii) Section 76-5-202, attempted aggravated murder; or
111          (ix) Section 76-5-203, attempted murder; or
112          (c) an offense other than those listed in Subsection (1)(b) involving the use of a
113     dangerous weapon, which would be a felony if committed by an adult, and the minor has been
114     previously adjudicated or convicted of an offense involving the use of a dangerous weapon,
115     which also would have been a felony if committed by an adult.
116          (2) When the district court has exclusive original jurisdiction over a minor under this
117     section, it also has exclusive original jurisdiction over the minor regarding all offenses joined
118     with the qualifying offense, and any other offenses, including misdemeanors, arising from the
119     same criminal episode. The district court is not divested of jurisdiction by virtue of the fact
120     that the minor is allowed to enter a plea to, or is found guilty of, a lesser or joined offense.
121          (3) (a) Any felony, misdemeanor, or infraction committed after the offense over which
122     the district court takes jurisdiction under Subsection (1) or (2) shall be tried against the
123     defendant as an adult in the district court or justice court having jurisdiction.
124          (b) If the qualifying charge under Subsection (1) results in an acquittal, a finding of not
125     guilty, or a dismissal of the charge in the district court, the juvenile court under Section
126     78A-6-103 and the Division of Juvenile Justice Services regain any jurisdiction and authority
127     previously exercised over the minor.
128          (4) A minor arrested under this section shall be held in a juvenile detention facility
129     until the district court determines where the minor shall be held until the time of trial, except
130     for defendants who are otherwise subject to the authority of the Board of Pardons and Parole.
131          (5) The district court shall consider the following when determining where the minor
132     will be held until the time of trial:
133          (a) the age of the minor;
134          (b) the nature, seriousness, and circumstances of the alleged offense;
135          (c) the minor's history of prior criminal acts;
136          (d) whether detention in a juvenile detention facility will adequately serve the need for
137     community protection pending the outcome of any criminal proceedings;
138          (e) whether the minor's placement in a juvenile detention facility will negatively impact
139     the functioning of the facility by compromising the goals of the facility to maintain a safe,
140     positive, and secure environment for all minors within the facility;
141          (f) the relative ability of the facility to meet the needs of the minor and protect the
142     public;
143          (g) whether the minor presents an imminent risk of harm to the minor or others within
144     the facility;
145          (h) the physical maturity of the minor;
146          (i) the current mental state of the minor as evidenced by relevant mental health or
147     psychological assessments or screenings that are made available to the court; and
148          (j) any other factors the court considers relevant.
149          (6) A minor ordered to a juvenile detention facility under Subsection (5) shall remain
150     in the facility until released by a district court judge, or if convicted, until sentencing.
151          (7) A minor held in a juvenile detention facility under this section shall have the same

152     right to bail as any other criminal defendant.
153          (8) If the minor ordered to a juvenile detention facility under Subsection (5) attains the
154     age of 18 years, the minor shall be transferred within 30 days to an adult jail until released by
155     the district court judge, or if convicted, until sentencing.
156          (9) A minor 16 years of age or older whose conduct or condition endangers the safety
157     or welfare of others in the juvenile detention facility may, by court order that specifies the
158     reasons, be detained in another place of confinement considered appropriate by the court,
159     including jail or other place of pretrial confinement for adults.
160          Section 4. Section 78A-6-702 is amended to read:
161          78A-6-702. Serious youth offender -- Procedure.
162          (1) Any action filed by a county attorney, district attorney, or attorney general charging
163     a minor 16 years of age or older with a felony [shall] may be by criminal information and filed
164     in the juvenile court if the minor was a principal actor in the offense and the information
165     charges any of the following offenses:
166          (a) any felony violation of:
167          (i) Section 76-6-103, aggravated arson;
168          (ii) Section 76-5-103, aggravated assault resulting in serious bodily injury to another;
169          (iii) Section 76-5-302, aggravated kidnapping;
170          (iv) Section 76-6-203, aggravated burglary;
171          (v) Section 76-6-302, aggravated robbery;
172          (vi) Section 76-5-405, aggravated sexual assault;
173          (vii) Section 76-10-508.1, felony discharge of a firearm;
174          (viii) Section 76-5-202, attempted aggravated murder; or
175          (ix) Section 76-5-203, attempted murder; or
176          (b) an offense other than those listed in Subsection (1)(a) involving the use of a
177     dangerous weapon, which would be a felony if committed by an adult, and the minor has been
178     previously adjudicated or convicted of an offense involving the use of a dangerous weapon,
179     which also would have been a felony if committed by an adult.
180          (2) All proceedings before the juvenile court related to charges filed under Subsection
181     (1) shall be conducted in conformity with the rules established by the Utah Supreme Court.
182          (3) (a) If the information alleges the violation of a felony listed in Subsection (1), the

183     state shall have the burden of going forward with its case and the burden of proof to establish
184     probable cause to believe that one of the crimes listed in Subsection (1) has been committed
185     and that the defendant committed it. If proceeding under Subsection (1)(b), the state shall have
186     the additional burden of proving by a preponderance of the evidence that the defendant has
187     previously been adjudicated or convicted of an offense involving the use of a dangerous
188     weapon.
189          (b) If the juvenile court judge finds the state has met its burden under this Subsection
190     (3), the court shall order that the defendant be bound over and held to answer in the district
191     court in the same manner as an adult unless the juvenile court judge finds that it would be
192     contrary to the best interest of the minor and to the public to bind over the defendant to the
193     jurisdiction of the district court.
194          (c) In making the bind over determination in Subsection (3)(b), the judge shall consider
195     only the following:
196          (i) whether the minor has been previously adjudicated delinquent for an offense
197     involving the use of a dangerous weapon which would be a felony if committed by an adult;
198          (ii) if the offense was committed with one or more other persons, whether the minor
199     appears to have a greater or lesser degree of culpability than the codefendants;
200          (iii) the extent to which the minor's role in the offense was committed in a violent,
201     aggressive, or premeditated manner;
202          (iv) the number and nature of the minor's prior adjudications in the juvenile court; and
203          (v) whether public safety [is] and the interests of the minor are better served by
204     adjudicating the minor in the juvenile court or in the district court, including whether the
205     resources of the adult system or juvenile system are more likely to assist in rehabilitating the
206     minor and reducing the threat which the minor presents to the public.
207          (d) Once the state has met its burden under Subsection (3)(a) as to a showing of
208     probable cause, the defendant shall have the burden of going forward and presenting evidence
209     that in light of the considerations listed in Subsection (3)(c), it would be contrary to the best
210     interest of the minor and the best interests of the public to bind the defendant over to the
211     jurisdiction of the district court.
212          (e) If the juvenile court judge finds by [clear and convincing] a preponderance of
213     evidence that it would be contrary to the best interest of the minor and the best interests of the

214     public to bind the defendant over to the jurisdiction of the district court, the court shall so state
215     in its findings and order the minor held for trial as a minor and shall proceed upon the
216     information as though it were a juvenile petition.
217          (4) If the juvenile court judge finds that an offense has been committed, but that the
218     state has not met its burden of proving the other criteria needed to bind the defendant over
219     under Subsection (1), the juvenile court judge shall order the defendant held for trial as a minor
220     and shall proceed upon the information as though it were a juvenile petition.
221          (5) At the time of a bind over to district court a criminal warrant of arrest shall issue.
222     The defendant shall have the same right to bail as any other criminal defendant and shall be
223     advised of that right by the juvenile court judge. The juvenile court shall set initial bail in
224     accordance with Title 77, Chapter 20, Bail.
225          (6) At the time the minor is bound over to the district court, the juvenile court shall
226     make the initial determination on where the minor shall be held.
227          (7) The juvenile court shall consider the following when determining where the minor
228     shall be held until the time of trial:
229          (a) the age of the minor;
230          (b) the nature, seriousness, and circumstances of the alleged offense;
231          (c) the minor's history of prior criminal acts;
232          (d) whether detention in a juvenile detention facility will adequately serve the need for
233     community protection pending the outcome of any criminal proceedings;
234          (e) whether the minor's placement in a juvenile detention facility will negatively impact
235     the functioning of the facility by compromising the goals of the facility to maintain a safe,
236     positive, and secure environment for all minors within the facility;
237          (f) the relative ability of the facility to meet the needs of the minor and protect the
238     public;
239          (g) whether the minor presents an imminent risk of harm to the minor or others within
240     the facility;
241          (h) the physical maturity of the minor;
242          (i) the current mental state of the minor as evidenced by relevant mental health or
243     psychological assessments or screenings that are made available to the court; and
244          (j) any other factors the court considers relevant.

245          (8) If a minor is ordered to a juvenile detention facility under Subsection (7), the minor
246     shall remain in the facility until released by a district court judge, or if convicted, until
247     sentencing.
248          (9) A minor held in a juvenile detention facility under this section shall have the same
249     right to bail as any other criminal defendant.
250          (10) If the minor ordered to a juvenile detention facility under Subsection (7) attains
251     the age of 18 years, the minor shall be transferred within 30 days to an adult jail until released
252     by the district court judge, or if convicted, until sentencing.
253          (11) A minor 16 years of age or older whose conduct or condition endangers the safety
254     or welfare of others in the juvenile detention facility may, by court order that specifies the
255     reasons, be detained in another place of pretrial confinement considered appropriate by the
256     court, including jail or other place of confinement for adults.
257          (12) The district court may reconsider the decision on where the minor will be held
258     pursuant to Subsection (6).
259          (13) If an indictment is returned by a grand jury charging a violation under this section,
260     the preliminary examination held by the juvenile court judge need not include a finding of
261     probable cause that the crime alleged in the indictment was committed and that the defendant
262     committed it, but the juvenile court shall proceed in accordance with this section regarding the
263     additional considerations listed in Subsection (3)(b).
264          (14) When a defendant is charged with multiple criminal offenses in the same
265     information or indictment and is bound over to answer in the district court for one or more
266     charges under this section, other offenses arising from the same criminal episode and any
267     subsequent misdemeanors or felonies charged against him shall be considered together with
268     those charges, and where the court finds probable cause to believe that those crimes have been
269     committed and that the defendant committed them, the defendant shall also be bound over to
270     the district court to answer for those charges.
271          (15) When a minor has been bound over to the district court under this section, the
272     jurisdiction of the Division of Juvenile Justice Services and the juvenile court over the minor is
273     terminated regarding that offense, any other offenses arising from the same criminal episode,
274     and any subsequent misdemeanors or felonies charged against the minor, except as provided in
275     Subsection (19) or Section 78A-6-705.

276          (16) A minor who is bound over to answer as an adult in the district court under this
277     section or on whom an indictment has been returned by a grand jury is not entitled to a
278     preliminary examination in the district court.
279          (17) Allegations contained in the indictment or information that the defendant has
280     previously been adjudicated or convicted of an offense involving the use of a dangerous
281     weapon, or is 16 years of age or older, are not elements of the criminal offense and do not need
282     to be proven at trial in the district court.
283          (18) If a minor enters a plea to, or is found guilty of, any of the charges filed or any
284     other offense arising from the same criminal episode, the district court retains jurisdiction over
285     the minor for all purposes, including sentencing.
286          (19) The juvenile court under Section 78A-6-103 and the Division of Juvenile Justice
287     Services regain jurisdiction and any authority previously exercised over the minor when there
288     is an acquittal, a finding of not guilty, or dismissal of all charges in the district court.
289          Section 5. Section 78A-6-703 is amended to read:
290          78A-6-703. Certification hearings -- Juvenile court to hold preliminary hearing --
291     Factors considered by juvenile court for waiver of jurisdiction to district court.
292          (1) If a criminal information filed in accordance with Subsection 78A-6-602(3) alleges
293     the commission of an act which would constitute a felony if committed by an adult, the
294     juvenile court shall conduct a preliminary hearing.
295          (2) At the preliminary hearing the state shall have the burden of going forward with its
296     case and the burden of establishing:
297          (a) probable cause to believe that a crime was committed and that the defendant
298     committed it; and
299          (b) by a preponderance of the evidence, that it would be contrary to the best interests of
300     the minor or of the public for the juvenile court to retain jurisdiction.
301          (3) In considering whether or not it would be contrary to the best interests of the minor
302     or of the public for the juvenile court to retain jurisdiction, the juvenile court shall consider,
303     and may base its decision on, the finding of one or more of the following factors:
304          (a) the seriousness of the offense and whether the protection of the community requires
305     isolation of the minor beyond that afforded by juvenile facilities;
306          (b) whether the alleged offense was committed by the minor under circumstances

307     which would subject the minor to enhanced penalties under Section 76-3-203.1 if the minor
308     were adult and the offense was committed:
309          (i) in concert with two or more persons;
310          (ii) for the benefit of, at the direction of, or in association with any criminal street gang
311     as defined in Section 76-9-802; or
312          (iii) to gain recognition, acceptance, membership, or increased status with a criminal
313     street gang as defined in Section 76-9-802;
314          (c) whether the alleged offense was committed in an aggressive, violent, premeditated,
315     or willful manner;
316          (d) whether the alleged offense was against persons or property, greater weight being
317     given to offenses against persons, except as provided in Section 76-8-418;
318          (e) the maturity of the minor as determined by considerations of the minor's home,
319     environment, emotional attitude, and pattern of living;
320          (f) the record and previous history of the minor;
321          (g) the likelihood of rehabilitation of the minor by use of facilities available to the
322     juvenile court;
323          (h) the desirability of trial and disposition of the entire offense in one court when the
324     minor's associates in the alleged offense are adults who will be charged with a crime in the
325     district court;
326          (i) whether the minor used a firearm in the commission of an offense; and
327          (j) whether the minor possessed a dangerous weapon on or about school premises as
328     provided in Section 76-10-505.5.
329          (4) The amount of weight to be given to each of the factors listed in Subsection (3) is
330     discretionary with the court.
331          (5) (a) Written reports and other materials relating to the minor's mental, physical,
332     educational, and social history may be considered by the court.
333          (b) If requested by the minor, the minor's parent, guardian, or other interested party, the
334     court shall require the person or agency preparing the report and other material to appear and
335     be subject to both direct and cross-examination.
336          (6) At the conclusion of the state's case, the minor may testify under oath, call
337     witnesses, cross-examine adverse witnesses, and present evidence on the factors required by

338     Subsection (3).
339          (7) At the time the minor is bound over to the district court, the juvenile court shall
340     make the initial determination on where the minor shall be held.
341          (8) The juvenile court shall consider the following when determining where the minor
342     will be held until the time of trial:
343          (a) the age of the minor;
344          (b) the nature, seriousness, and circumstances of the alleged offense;
345          (c) the minor's history of prior criminal acts;
346          (d) whether detention in a juvenile detention facility will adequately serve the need for
347     community protection pending the outcome of any criminal proceedings;
348          (e) whether the minor's placement in a juvenile detention facility will negatively impact
349     the functioning of the facility by compromising the goals of the facility to maintain a safe,
350     positive, and secure environment for all minors within the facility;
351          (f) the relative ability of the facility to meet the needs of the minor and protect the
352     public;
353          (g) whether the minor presents an imminent risk of harm to the minor or others within
354     the facility;
355          (h) the physical maturity of the minor;
356          (i) the current mental state of the minor as evidenced by relevant mental health or
357     psychological assessments or screenings that are made available to the court; and
358          (j) any other factors the court considers relevant.
359          (9) If a minor is ordered to a juvenile detention facility under Subsection (8), the minor
360     shall remain in the facility until released by a district court judge, or if convicted, until
361     sentencing.
362          (10) A minor held in a juvenile detention facility under this section shall have the same
363     right to bail as any other criminal defendant.
364          (11) If the minor ordered to a juvenile detention facility under Subsection (8) attains
365     the age of 18 years, the minor shall be transferred within 30 days to an adult jail until released
366     by the district court judge, or if convicted, until sentencing.
367          (12) A minor 16 years of age or older whose conduct or condition endangers the safety
368     or welfare of others in the juvenile detention facility may, by court order that specifies the

369     reasons, be detained in another place of confinement considered appropriate by the court,
370     including jail or other place of confinement for adults.
371          (13) The district court may reconsider the decision on where the minor shall be held
372     pursuant to Subsection (7).
373          (14) If the court finds the state has met its burden under Subsection (2), the court may
374     enter an order:
375          (a) certifying that finding; and
376          (b) directing that the minor be held for criminal proceedings in the district court.
377          (15) If an indictment is returned by a grand jury, the preliminary examination held by
378     the juvenile court need not include a finding of probable cause, but the juvenile court shall
379     proceed in accordance with this section regarding the additional consideration referred to in
380     Subsection (2)(b).
381          (16) The provisions of Section 78A-6-115, Section 78A-6-1111, and other provisions
382     relating to proceedings in juvenile cases are applicable to the hearing held under this section to
383     the extent they are pertinent.
384          (17) A minor who has been directed to be held for criminal proceedings in the district
385     court is not entitled to a preliminary examination in the district court.
386          (18) A minor who has been certified for trial in the district court shall have the same
387     right to bail as any other criminal defendant and shall be advised of that right by the juvenile
388     court judge. The juvenile court shall set initial bail in accordance with Title 77, Chapter 20,
389     Bail.
390          (19) When a minor has been certified to the district court under this section, the
391     jurisdiction of the Division of Juvenile Justice Services and the jurisdiction of the juvenile
392     court over the minor is terminated regarding that offense, any other offenses arising from the
393     same criminal episode, and any subsequent misdemeanors or felonies charged against the
394     minor, except as provided in Subsection (21) or Section 78A-6-705.
395          (20) If a minor enters a plea to, or is found guilty of any of the charges filed or on any
396     other offense arising out of the same criminal episode, the district court retains jurisdiction
397     over the minor for all purposes, including sentencing.
398          (21) The juvenile court under Section 78A-6-103 and the Division of Juvenile Justice
399     Services regain jurisdiction and any authority previously exercised over the minor when there

400     is an acquittal, a finding of not guilty, or dismissal of all charges in the district court.
401          Section 6. Section 78A-6-705 is enacted to read:
402          78A-6-705. Youth prison commitment.
403          (1) Before sentencing a minor who is under the jurisdiction of the district court under
404     Section 78A-6-701, 78A-6-702, or 78A-6-703, to prison the court shall request a report from
405     the Division of Juvenile Justice Services regarding the potential risk to other juveniles if the
406     minor were to be committed to the custody of the division. The division shall submit the
407     requested report to the court as part of the pre-sentence report or as a separate report.
408          (2) If, after receiving the report described in Subsection (1), the court determines that
409     probation is not appropriate and commitment to prison is an appropriate sentence, the court
410     shall order the minor committed to prison and the minor shall be provisionally housed in a
411     secure facility operated by the Division of Juvenile Justice Services until the minor reaches 18
412     years of age, unless released earlier from incarceration by the Board of Pardons and Parole.
413          (3) The court may order the minor committed directly to the custody of the Department
414     of Corrections if the court finds that:
415          (a) the minor would present an unreasonable risk to other Ĥ→ s [
juveniles] while ←Ĥ
415a      in the division's
416     custody;
417          (b) the minor has previously been committed to a prison for adult offenders; or
418          (c) housing the minor in a secure facility operated by the Division of Juvenile Justice
419     Services would be contrary to the interests of justice.
420          (4) The Division of Juvenile Justice Services shall adopt procedures by rule, pursuant
421     to Title 63G, Chapter 3, Utah Administrative Rulemaking Act, regarding the transfer of a
422     minor provisionally housed in a division facility under Subsection (2) to the custody of the
423     Department of Corrections. If, in accordance with those rules, the division determines that
424     housing the minor in a division facility presents an unreasonable risk to others or that it is not
425     in the best interest of the minor, it shall transfer the physical custody of the minor to the
426     Department of Corrections.
427          (5) When a minor is committed to prison but ordered by a court to be housed in a
428     Division of Juvenile Justice Services facility under this section, the court and the division shall
429     immediately notify the Board of Pardons and Parole so that the minor may be scheduled for a
430     hearing according to board procedures. If a minor who is provisionally housed in a division

431     facility under this section has not been paroled or otherwise released from incarceration by the
432     time the minor reaches 18 years of age, the division shall as soon as reasonably possible, but
433     not later than when the minor reaches 18 years and 6 months of age, transfer the minor to the
434     physical custody of the Department of Corrections.
435          (6) Upon the commitment of a minor to the custody of the Division of Juvenile Justice
436     Services or the Department of Corrections under this section, the Board of Pardons and Parole
437     has authority over the minor for purposes of parole, pardon, commutation, termination of
438     sentence, remission of fines or forfeitures, orders of restitution, and all other purposes
439     authorized by law.
440          (7) The Youth Parole Authority may hold hearings, receive reports, or otherwise keep
441     informed of the progress of a minor in the custody of the Division of Juvenile Justice Services
442     under this section and may forward to the Board of Pardons and Parole any information or
443     recommendations concerning the minor.
444          (8) Commitment of a minor under this section is a prison commitment for all
445     sentencing purposes.
446          Section 7. Section 78A-6-1111 is amended to read:
447          78A-6-1111. Right to counsel -- Appointment of counsel for indigent -- Costs.
448          (1) (a) In any action in juvenile court initiated by the state, a political subdivision of the
449     state, or a private party, the parents, legal guardian, and the minor, where applicable, shall be
450     informed that they may be represented by counsel at every stage of the proceedings.
451          (b) In any action initiated by a private party, the parents or legal guardian shall have the
452     right to employ counsel of their own choice at their own expense.
453          (c) If, in any action initiated by the state or a political subdivision of the state under
454     Part 3, Abuse, Neglect, and Dependency Proceedings; Part 5, Termination of Parental Rights
455     Act; or Part 10, Adult Offenses, of this chapter or under Section 78A-6-1101, a parent or legal
456     guardian requests an attorney and is found by the court to be indigent, counsel shall be
457     appointed by the court to represent the parent or legal guardian in all proceedings directly
458     related to the petition or motion filed by the state, or a political subdivision of the state, subject
459     to the provisions of this section.
460          (d) In any action initiated by the state, a political subdivision of the state, or a private
461     party under Part 3, Abuse, Neglect, and Dependency Proceedings, or Part 5, Termination of

462     Parental Rights Act, of this chapter, the child shall be represented by a guardian ad litem in
463     accordance with Sections 78A-6-317 and 78A-6-902. The child shall also be represented by an
464     attorney guardian ad litem in other actions initiated under this chapter when appointed by the
465     court under Section 78A-6-902 or as otherwise provided by law.
466          (e) In any action initiated by the state or a political subdivision of the state under Part
467     6, Delinquency and Criminal Actions, or Part 7, Transfer of Jurisdiction, of this chapter, or
468     against a minor under Section 78A-6-1101, the parents or legal guardian and the minor shall be
469     informed that the minor [may] has the right to be represented by counsel at every stage of the
470     proceedings [and that if].
471          Ĥ→ [
(i) A minor charged with a felony Ŝ→ [or class A misdemeanor] ←Ŝ may not waive the
471a     right to
472     counsel.
473          (ii) In all other situations, the court shall Ŝ→ , taking into consideration the minor's
473a     circumstances, ←Ŝ determine that the minor Ŝ→ [knows] is knowingly and voluntarily
473b     waiving, ←Ŝ and
474     understands the consequences of waiving Ŝ→ , ←Ŝ the right to counsel before allowing the minor
474a     to
475     waive the right to counsel.
] (i) In cases where a minor is facing a felony level offense, the court

475a     shall appoint counsel, who shall appear until counsel is retained on the minor's behalf. The
475b     minor may not waive counsel unless the minor has had a meaningful opportunity to consult
475c     with a defense attorney. The court shall make findings on the record, taking into consideration
475d     the minor's unique circumstances and attributes, that the waiver is knowing and voluntary
475e     and the minor understands the consequences of waiving the right to counsel.
475f          (ii) In all other situations the right to counsel may not be waived by a minor unless
475g     there has been a finding on the record, taking into consideration the minor's unique
475h     circumstances and attributes, that the waiver is knowing and voluntary, and the minor
475i     understands the consequences of waiving the right to counsel. ←Ĥ
476          (iii) If the minor is found to be indigent, counsel shall be appointed by the court to
477     represent the minor in all proceedings directly related to the petition or motion filed by the state
478     or a political subdivision of the state, subject to the provisions of this section.
479          (f) Indigency of a parent, legal guardian, or minor shall be determined in accordance
480     with the process and procedure defined in Section 77-32-202. The court shall take into account
481     the income and financial ability of the parent or legal guardian to retain counsel in determining
482     the indigency of the minor.
483          (g) The cost of appointed counsel for a party found to be indigent, including the cost of
484     counsel and expense of the first appeal, shall be paid by the county in which the trial court
485     proceedings are held. Counties may levy and collect taxes for these purposes.
486          (2) Counsel appointed by the court may not provide representation as court-appointed
487     counsel for a parent or legal guardian in any action initiated by, or in any proceeding to modify
488     court orders in a proceeding initiated by, a private party.
489          (3) If the county responsible to provide legal counsel for an indigent under Subsection
490     (1)(g) has arranged by contract to provide services, the court shall appoint the contracting
491     attorney as legal counsel to represent that indigent.
492          (4) The court may order a parent or legal guardian for whom counsel is appointed, and

493     the parents or legal guardian of any minor for whom counsel is appointed, to reimburse the
494     county for the cost of appointed counsel.
495          (5) The state, or an agency of the state, may not be ordered to reimburse the county for
496     expenses incurred under Subsection (1)(g).
496a     Ŝ→      Section 8. Effective date.
496b          Section 78A-6-122 takes effect October 1, 2015. ←Ŝ






Legislative Review Note
     as of 2-5-15 2:14 PM


Office of Legislative Research and General Counsel