Chief Sponsor: Eric K. Hutchings

Senate Sponsor: Daniel W. Thatcher


9     General Description:
10          This bill amends provisions relating to presentence investigation reports and affidavits
11     reporting a probation violation.
12     Highlighted Provisions:
13          This bill:
14          ▸     allows the Department of Corrections to provide a copy of a defendant's presentence
15     investigation report to a sex offender treatment provider working with the
16     defendant; and
17          ▸     provides that an unsworn declaration may be used to report a probation violation.
18     Money Appropriated in this Bill:
19          None
20     Other Special Clauses:
21          None
22     Utah Code Sections Affected:
23     AMENDS:
24          77-18-1, as last amended by Laws of Utah 2018, Chapter 334

26     Be it enacted by the Legislature of the state of Utah:
27          Section 1. Section 77-18-1 is amended to read:
28          77-18-1. Suspension of sentence -- Pleas held in abeyance -- Probation --
29     Supervision -- Presentence investigation -- Standards -- Confidentiality -- Terms and

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

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

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

114          (b) participate in available treatment programs, including any treatment program in
115     which the defendant is currently participating, if the program is acceptable to the court;
116          (c) if on probation for a felony offense, serve a period of time, not to exceed one year,
117     in a county jail designated by the department, after considering any recommendation by the
118     court as to which jail the court finds most appropriate;
119          (d) serve a term of home confinement, which may include the use of electronic
120     monitoring;
121          (e) participate in compensatory service restitution programs, including the
122     compensatory service program provided in Section 76-6-107.1;
123          (f) pay for the costs of investigation, probation, and treatment services;
124          (g) make restitution or reparation to the victim or victims with interest in accordance
125     with Title 77, Chapter 38a, Crime Victims Restitution Act; and
126          (h) comply with other terms and conditions the court considers appropriate to ensure
127     public safety or increase a defendant's likelihood of success on probation.
128          (9) The department shall collect and disburse the accounts receivable as defined by
129     Section 77-32a-101, with interest and any other costs assessed under Section 64-13-21 during:
130          (a) the parole period and any extension of that period in accordance with Subsection
131     77-27-6(4); and
132          (b) the probation period in cases for which the court orders supervised probation and
133     any extension of that period by the department in accordance with Subsection (10).
134          (10) (a) (i) Except as provided in Subsection (10)(a)(ii), probation of an individual
135     placed on probation after December 31, 2018:
136          (A) may not exceed the individual's maximum sentence;
137          (B) shall be for a period of time that is in accordance with the supervision length
138     guidelines established by the Utah Sentencing Commission under Section 63M-7-404, to the
139     extent the guidelines are consistent with the requirements of the law; and
140          (C) shall be terminated in accordance with the supervision length guidelines
141     established by the Utah Sentencing Commission under Section 63M-7-404, to the extent the

142     guidelines are consistent with the requirements of the law.
143          (ii) Probation of an individual placed on probation after December 31, 2018, whose
144     maximum sentence is one year or less may not exceed 36 months.
145          (iii) Probation of an individual placed on probation on or after October 1, 2015, but
146     before January 1, 2019, may be terminated at any time at the discretion of the court or upon
147     completion without violation of 36 months probation in felony or class A misdemeanor cases,
148     12 months in cases of class B or C misdemeanors or infractions, or as allowed pursuant to
149     Section 64-13-21 regarding earned credits.
150          (b) (i) If, upon expiration or termination of the probation period under Subsection
151     (10)(a), there remains an unpaid balance upon the accounts receivable as defined in Section
152     77-32a-101, the court may retain jurisdiction of the case and continue the defendant on bench
153     probation for the limited purpose of enforcing the payment of the account receivable. If the
154     court retains jurisdiction for this limited purpose, the court may order the defendant to pay to
155     the court the costs associated with continued probation under this Subsection (10).
156          (ii) In accordance with Section 77-18-6, the court shall record in the registry of civil
157     judgments any unpaid balance not already recorded and immediately transfer responsibility to
158     collect the account to the Office of State Debt Collection.
159          (iii) Upon motion of the Office of State Debt Collection, prosecutor, victim, or upon its
160     own motion, the court may require the defendant to show cause why the defendant's failure to
161     pay should not be treated as contempt of court.
162          (c) (i) The department shall notify the sentencing court, the Office of State Debt
163     Collection, and the prosecuting attorney in writing in advance in all cases when termination of
164     supervised probation is being requested by the department or will occur by law.
165          (ii) The notification shall include a probation progress report and complete report of
166     details on outstanding accounts receivable.
167          (11) (a) (i) Any time served by a probationer outside of confinement after having been
168     charged with a probation violation and prior to a hearing to revoke probation does not
169     constitute service of time toward the total probation term unless the probationer is exonerated

170     at a hearing to revoke the probation.
171          (ii) Any time served in confinement awaiting a hearing or decision concerning
172     revocation of probation does not constitute service of time toward the total probation term
173     unless the probationer is exonerated at the hearing.
174          (iii) Any time served in confinement awaiting a hearing or decision concerning
175     revocation of probation constitutes service of time toward a term of incarceration imposed as a
176     result of the revocation of probation or a graduated sanction imposed under Section
177     63M-7-404.
178          (b) The running of the probation period is tolled upon the filing of a violation report
179     with the court alleging a violation of the terms and conditions of probation or upon the issuance
180     of an order to show cause or warrant by the court.
181          (12) (a) (i) Probation may be modified as is consistent with the supervision length
182     guidelines and the graduated sanctions and incentives developed by the Utah Sentencing
183     Commission under Section 63M-7-404.
184          (ii) The length of probation may not be extended, except upon waiver of a hearing by
185     the probationer or upon a hearing and a finding in court that the probationer has violated the
186     conditions of probation.
187          (iii) 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) (A) Except as provided in Subsection (10)(a)(ii), the court may not require a
218     defendant to remain on probation for a period of time that exceeds the length of the defendant's
219     maximum sentence.
220          (B) Except as provided in Subsection (10)(a)(ii), if a defendant's probation is revoked
221     and later reinstated, the total time of all periods of probation the defendant serves, relating to
222     the same sentence, may not exceed the defendant's maximum sentence.
223          (iv) If a period of incarceration is imposed for a violation, the defendant shall be
224     sentenced within the guidelines established by the Utah Sentencing Commission pursuant to
225     Subsection 63M-7-404(4), unless the judge determines that:

226          (A) the defendant needs substance abuse or mental health treatment, as determined by a
227     validated risk and needs screening and assessment, that warrants treatment services that are
228     immediately available in the community; or
229          (B) the sentence previously imposed shall be executed.
230          (v) If the defendant had, prior to the imposition of a term of incarceration or the
231     execution of the previously imposed sentence under this Subsection (12), served time in jail as
232     a condition of probation or due to a violation of probation under Subsection (12)(e)(iv), the
233     time the probationer served in jail constitutes service of time toward the sentence previously
234     imposed.
235          (13) The court may order the defendant to commit the defendant to the custody of the
236     Division of Substance Abuse and Mental Health for treatment at the Utah State Hospital as a
237     condition of probation or stay of sentence, only after the superintendent of the Utah State
238     Hospital or the superintendent's designee has certified to the court that:
239          (a) the defendant is appropriate for and can benefit from treatment at the state hospital;
240          (b) treatment space at the hospital is available for the defendant; and
241          (c) individuals described in Subsection 62A-15-610(2)(g) are receiving priority for
242     treatment over the defendants described in this Subsection (13).
243          (14) Presentence investigation reports are classified protected in accordance with Title
244     63G, Chapter 2, Government Records Access and Management Act. Notwithstanding Sections
245     63G-2-403 and 63G-2-404, the State Records Committee may not order the disclosure of a
246     presentence investigation report. Except for disclosure at the time of sentencing pursuant to
247     this section, the department may disclose the presentence investigation only when:
248          (a) ordered by the court pursuant to Subsection 63G-2-202(7);
249          (b) requested by a law enforcement agency or other agency approved by the department
250     for purposes of supervision, confinement, and treatment of the offender;
251          (c) requested by the Board of Pardons and Parole;
252          (d) requested by the subject of the presentence investigation report or the subject's
253     authorized representative; [or]

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

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