Chief Sponsor: Eric K. Hutchings

Senate Sponsor: Daniel W. Thatcher


9     General Description:
10          This bill amends provisions of the Utah Code of Criminal Procedure relating to
11     presentence investigation reports and affidavits reporting a probation violation.
12     Highlighted Provisions:
13          This bill:
14          ▸     provides that, under certain circumstances, the Department of Corrections may
15     provide a copy of a defendant's presentence investigation report to a sex offender
16     treatment provider working with the defendant;
17          ▸     provides that an unsworn declaration may be used to report a probation violation;
18     and
19          ▸     makes technical changes.
20     Money Appropriated in this Bill:
21          None
22     Other Special Clauses:
23          None
24     Utah Code Sections Affected:
25     AMENDS:
26          77-18-1, as last amended by Laws of Utah 2017, Chapter 304

28     Be it enacted by the Legislature of the state of Utah:
29          Section 1. Section 77-18-1 is amended to read:
30          77-18-1. Suspension of sentence -- Pleas held in abeyance -- Probation --
31     Supervision -- Presentence investigation -- Standards -- Confidentiality -- Terms and
32     conditions -- Termination, revocation, modification, or extension -- Hearings -- Electronic
33     monitoring.
34          (1) On a plea of guilty or no contest entered by a defendant in conjunction with a plea
35     in abeyance agreement, the court may hold the plea in abeyance as provided in Title 77,
36     Chapter 2a, Pleas in Abeyance, and under the terms of the plea in abeyance agreement.
37          (2) (a) On a plea of guilty, guilty with a mental illness, no contest, or conviction of any
38     crime or offense, the court may, after imposing sentence, suspend the execution of the sentence
39     and place the defendant [on probation. The court may place the defendant]:
40          (i) on probation under the supervision of the Department of Corrections except in cases
41     of class C misdemeanors or infractions;
42          (ii) on probation under the supervision of an agency of local government or with a
43     private organization; or
44          (iii) on court probation under the jurisdiction of the sentencing court.
45          (b) (i) The legal custody of all probationers under the supervision of the department is
46     with the department.
47          (ii) The legal custody of all probationers under the jurisdiction of the sentencing court
48     is vested as ordered by the court.
49          (iii) The court has continuing jurisdiction over all probationers.
50          (iv) Court probation may include an administrative level of services, including
51     notification to the court of scheduled periodic reviews of the probationer's compliance with
52     conditions.
53          (c) Supervised probation services provided by the department, an agency of local
54     government, or a private organization shall specifically address the offender's risk of
55     reoffending as identified by a validated risk and needs screening or assessment.
56          (3) (a) The department shall establish supervision and presentence investigation
57     standards for all individuals referred to the department[. These standards shall be] based on:
58          (i) the type of offense;

59          (ii) the results of a risk and needs assessment;
60          (iii) the demand for services;
61          (iv) the availability of agency resources;
62          (v) public safety; and
63          (vi) other criteria established by the department to determine what level of services
64     shall be provided.
65          (b) Proposed supervision and investigation standards shall be submitted to the Judicial
66     Council and the Board of Pardons and Parole on an annual basis for review and comment prior
67     to adoption by the department.
68          (c) The Judicial Council and the department shall establish procedures to implement
69     the supervision and investigation standards.
70          (d) The Judicial Council and the department shall annually consider modifications to
71     the standards based upon criteria in Subsection (3)(a) and other criteria as they consider
72     appropriate.
73          (e) The Judicial Council and the department shall annually prepare an impact report
74     and submit it to the appropriate legislative appropriations subcommittee.
75          (4) Notwithstanding other provisions of law, the department is not required to
76     supervise the probation of [persons] an individual convicted of a class B or C [misdemeanors
77     or infractions] misdemeanor or an infraction or to conduct presentence investigation reports on
78     a class C [misdemeanors or infractions] misdemeanor or infraction. However, the department
79     may supervise the probation of a class B [misdemeanants] misdemeanant in accordance with
80     department standards.
81          (5) (a) Before the imposition of any sentence, the court may, with the concurrence of
82     the defendant, continue the date for the imposition of sentence for a reasonable period of time
83     for the purpose of obtaining a presentence investigation report from the department or
84     information from other sources about the defendant.
85          (b) The presentence investigation report shall include:
86          (i) a victim impact statement according to guidelines set in Section 77-38a-203
87     describing the effect of the crime on the victim and the victim's family;
88          (ii) a specific statement of pecuniary damages, accompanied by a recommendation
89     from the department regarding the payment of restitution with interest by the defendant in

90     accordance with Title 77, Chapter 38a, Crime Victims Restitution Act;
91          (iii) findings from any screening and any assessment of the offender conducted under
92     Section 77-18-1.1;
93          (iv) recommendations for treatment of the offender; and
94          (v) the number of days since the commission of the offense that the offender has spent
95     in the custody of the jail and the number of days, if any, the offender was released to a
96     supervised release or alternative incarceration program under Section 17-22-5.5.
97          (c) The contents of the presentence investigation report are protected and are not
98     available except by court order for purposes of sentencing as provided by rule of the Judicial
99     Council or for use by the department.
100          (6) (a) The department shall provide the presentence investigation report to the
101     defendant's attorney, or the defendant if not represented by counsel, the prosecutor, and the
102     court for review, three working days prior to sentencing. Any alleged inaccuracies in the
103     presentence investigation report, which have not been resolved by the parties and the
104     department prior to sentencing, shall be brought to the attention of the sentencing judge, and
105     the judge may grant an additional 10 working days to resolve the alleged inaccuracies of the
106     report with the department. If after 10 working days the inaccuracies cannot be resolved, the
107     court shall make a determination of relevance and accuracy on the record.
108          (b) If a party fails to challenge the accuracy of the presentence investigation report at
109     the time of sentencing, that matter shall be considered to be waived.
110          (7) At the time of sentence, the court shall receive any testimony, evidence, or
111     information the defendant or the prosecuting attorney desires to present concerning the
112     appropriate sentence. This testimony, evidence, or information shall be presented in open court
113     on record and in the presence of the defendant.
114          (8) While on probation, and as a condition of probation, the court may require that the
115     defendant:
116          (a) perform any or all of the following:
117          (i) provide for the support of others for whose support the defendant is legally liable;
118          (ii) participate in available treatment programs, including any treatment program in
119     which the defendant is currently participating, if the program is acceptable to the court;
120          (iii) if on probation for a felony offense, serve a period of time, not to exceed one year,

121     in a county jail designated by the department, after considering any recommendation by the
122     court as to which jail the court finds most appropriate;
123          (iv) serve a term of home confinement, which may include the use of electronic
124     monitoring;
125          (v) participate in compensatory service restitution programs, including the
126     compensatory service program provided in Section 76-6-107.1;
127          (vi) pay for the costs of investigation, probation, and treatment services;
128          (vii) make restitution or reparation to the victim or victims with interest in accordance
129     with Title 77, Chapter 38a, Crime Victims Restitution Act; and
130          (viii) comply with other terms and conditions the court considers appropriate to ensure
131     public safety or increase a defendant's likelihood of success on probation; and
132          (b) if convicted on or after May 5, 1997:
133          (i) complete high school classwork and obtain a high school graduation diploma, a
134     GED certificate, or a vocational certificate at the defendant's own expense if the defendant has
135     not received the diploma, GED certificate, or vocational certificate prior to being placed on
136     probation; or
137          (ii) provide documentation of the inability to obtain one of the items listed in
138     Subsection (8)(b)(i) because of:
139          (A) a diagnosed learning disability; or
140          (B) other justified cause.
141          (9) The department shall collect and disburse the accounts receivable as defined by
142     Section 77-32a-101, with interest and any other costs assessed under Section 64-13-21 during:
143          (a) the parole period and any extension of that period in accordance with Subsection
144     77-27-6(4); and
145          (b) the probation period in cases for which the court orders supervised probation and
146     any extension of that period by the department in accordance with Subsection (10).
147          (10) (a) (i) Probation may be terminated at any time at the discretion of the court or
148     upon completion without violation of 36 months probation in felony or class A misdemeanor
149     cases, 12 months in cases of class B or C misdemeanors or infractions, or as allowed pursuant
150     to Section 64-13-21 regarding earned credits.
151          (ii) (A) If, upon expiration or termination of the probation period under Subsection

152     (10)(a)(i), there remains an unpaid balance upon the accounts receivable as defined in Section
153     77-32a-101, the court may retain jurisdiction of the case and continue the defendant on bench
154     probation for the limited purpose of enforcing the payment of the account receivable. If the
155     court retains jurisdiction for this limited purpose, the court may order the defendant to pay to
156     the court the costs associated with continued probation under this Subsection (10).
157          (B) In accordance with Section 77-18-6, the court shall record in the registry of civil
158     judgments any unpaid balance not already recorded and immediately transfer responsibility to
159     collect the account to the Office of State Debt Collection.
160          (iii) Upon motion of the Office of State Debt Collection, prosecutor, victim, or upon its
161     own motion, the court may require the defendant to show cause why the defendant's failure to
162     pay should not be treated as contempt of court.
163          (b) (i) The department shall notify the sentencing court, the Office of State Debt
164     Collection, and the prosecuting attorney in writing in advance in all cases when termination of
165     supervised probation is being requested by the department or will occur by law.
166          (ii) The notification shall include a probation progress report and complete report of
167     details on outstanding accounts receivable.
168          (11) (a) (i) Any time served by a probationer outside of confinement after having been
169     charged with a probation violation and prior to a hearing to revoke probation does not
170     constitute service of time toward the total probation term unless the probationer is exonerated
171     at a hearing to revoke the probation.
172          (ii) Any time served in confinement awaiting a hearing or decision concerning
173     revocation of probation does not constitute service of time toward the total probation term
174     unless the probationer is exonerated at the hearing.
175          (iii) Any time served in confinement awaiting a hearing or decision concerning
176     revocation of probation constitutes service of time toward a term of incarceration imposed as a
177     result of the revocation of probation or a graduated sanction imposed under Section
178     63M-7-404.
179          (b) The running of the probation period is tolled upon the filing of a violation report
180     with the court alleging a violation of the terms and conditions of probation or upon the issuance
181     of an order to show cause or warrant by the court.
182          (12) (a) (i) Probation may be modified as is consistent with the graduated sanctions and

183     incentives developed by the Utah Sentencing Commission under Section 63M-7-404, but the
184     length of probation may not be extended, except upon waiver of a hearing by the probationer or
185     upon a hearing and a finding in court that the probationer has violated the conditions of
186     probation.
187          (ii) Probation may not be revoked except upon a hearing in court and a finding that the
188     conditions of probation have been violated.
189          (b) (i) Upon the filing of an affidavit, or an unsworn written declaration executed in
190     substantial compliance with Section 78B-5-705, alleging with particularity facts asserted to
191     constitute violation of the conditions of probation, the court that authorized probation shall
192     determine if the affidavit or unsworn written declaration establishes probable cause to believe
193     that revocation, modification, or extension of probation is justified.
194          (ii) If the court determines there is probable cause, it shall cause to be served on the
195     defendant a warrant for the defendant's arrest or a copy of the affidavit or unsworn written
196     declaration and an order to show cause why the defendant's probation should not be revoked,
197     modified, or extended.
198          (c) (i) The order to show cause shall specify a time and place for the hearing and shall
199     be served upon the defendant at least five days prior to the hearing.
200          (ii) The defendant shall show good cause for a continuance.
201          (iii) The order to show cause shall inform the defendant of a right to be represented by
202     counsel at the hearing and to have counsel appointed if the defendant is indigent.
203          (iv) The order shall also inform the defendant of a right to present evidence.
204          (d) (i) At the hearing, the defendant shall admit or deny the allegations of the affidavit
205     or unsworn written declaration.
206          (ii) If the defendant denies the allegations of the affidavit or unsworn written
207     declaration, the prosecuting attorney shall present evidence on the allegations.
208          (iii) The persons who have given adverse information on which the allegations are
209     based shall be presented as witnesses subject to questioning by the defendant unless the court
210     for good cause otherwise orders.
211          (iv) The defendant may call witnesses, appear and speak in the defendant's own behalf,
212     and present evidence.
213          (e) (i) After the hearing the court shall make findings of fact.

214          (ii) Upon a finding that the defendant violated the conditions of probation, the court
215     may order the probation revoked, modified, continued, or reinstated for all or a portion of the
216     original term of probation.
217          (iii) If a period of incarceration is imposed for a violation, the defendant shall be
218     sentenced within the guidelines established by the Utah Sentencing Commission pursuant to
219     Subsection 63M-7-404(4), unless the judge determines that:
220          (A) the defendant needs substance abuse or mental health treatment, as determined by a
221     validated risk and needs screening and assessment, that warrants treatment services that are
222     immediately available in the community; or
223          (B) the sentence previously imposed shall be executed.
224          (iv) If the defendant had, prior to the imposition of a term of incarceration or the
225     execution of the previously imposed sentence under this Subsection (12), served time in jail as
226     a condition of probation or due to a violation of probation under Subsection(12)(e)(iii), the
227     time the probationer served in jail constitutes service of time toward the sentence previously
228     imposed.
229          (13) The court may order the defendant to commit [himself or herself] the defendant to
230     the custody of the Division of Substance Abuse and Mental Health for treatment at the Utah
231     State Hospital as a condition of probation or stay of sentence, only after the superintendent of
232     the Utah State Hospital or the superintendent's designee has certified to the court that:
233          (a) the defendant is appropriate for and can benefit from treatment at the state hospital;
234          (b) treatment space at the hospital is available for the defendant; and
235          (c) [persons] individuals described in Subsection 62A-15-610(2)(g) are receiving
236     priority for treatment over the defendants described in this Subsection (13).
237          (14) Presentence investigation reports are classified protected in accordance with Title
238     63G, Chapter 2, Government Records Access and Management Act. Notwithstanding Sections
239     63G-2-403 and 63G-2-404, the State Records Committee may not order the disclosure of a
240     presentence investigation report. Except for disclosure at the time of sentencing pursuant to
241     this section, the department may disclose the presentence investigation only when:
242          (a) ordered by the court pursuant to Subsection 63G-2-202(7);
243          (b) requested by a law enforcement agency or other agency approved by the department
244     for purposes of supervision, confinement, and treatment of the offender;

245          (c) requested by the Board of Pardons and Parole;
246          (d) requested by the subject of the presentence investigation report or the subject's
247     authorized representative; [or]
248          (e) requested by the victim of the crime discussed in the presentence investigation
249     report or the victim's authorized representative, provided that the disclosure to the victim shall
250     include only information relating to statements or materials provided by the victim, to the
251     circumstances of the crime including statements by the defendant, or to the impact of the crime
252     on the victim or the victim's household[.]; or
253          (f) requested by a sex offender treatment provider who is certified to provide treatment
254     under the program established in Subsection 64-13-25(3) and who, at the time of the request:
255          (i) is providing sex offender treatment to the offender who is the subject of the
256     presentence investigation report; and
257          (ii) provides written assurance to the department that the report:
258          (A) is necessary for the treatment of the offender;
259          (B) will be used solely for the treatment of the offender; and
260          (C) will not be disclosed to an individual or entity other than the offender.
261          (15) (a) The court shall consider home confinement as a condition of probation under
262     the supervision of the department, except as provided in Sections 76-3-406 and 76-5-406.5.
263          (b) The department shall establish procedures and standards for home confinement,
264     including electronic monitoring, for all individuals referred to the department in accordance
265     with Subsection (16).
266          (16) (a) If the court places the defendant on probation under this section, it may order
267     the defendant to participate in home confinement through the use of electronic monitoring as
268     described in this section until further order of the court.
269          (b) The electronic monitoring shall alert the department and the appropriate law
270     enforcement unit of the defendant's whereabouts.
271          (c) The electronic monitoring device shall be used under conditions which require:
272          (i) the defendant to wear an electronic monitoring device at all times; and
273          (ii) that a device be placed in the home of the defendant, so that the defendant's
274     compliance with the court's order may be monitored.
275          (d) If a court orders a defendant to participate in home confinement through electronic

276     monitoring as a condition of probation under this section, it shall:
277          (i) place the defendant on probation under the supervision of the Department of
278     Corrections;
279          (ii) order the department to place an electronic monitoring device on the defendant and
280     install electronic monitoring equipment in the residence of the defendant; and
281          (iii) order the defendant to pay the costs associated with home confinement to the
282     department or the program provider.
283          (e) The department shall pay the costs of home confinement through electronic
284     monitoring only for [those persons who have been] an individual who is determined to be
285     indigent by the court.
286          (f) The department may provide the electronic monitoring described in this section
287     either directly or by contract with a private provider.

Legislative Review Note
Office of Legislative Research and General Counsel