Representative Mark A. Wheatley proposes the following substitute bill:


1     
FACTUAL INNOCENCE PAYMENTS AMENDMENTS

2     
2021 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Mark A. Wheatley

5     
Senate Sponsor: Luz Escamilla

6     

7     LONG TITLE
8     General Description:
9          This bill amends provisions regarding payments for individuals who are found factually
10     innocent by a court.
11     Highlighted Provisions:
12          This bill:
13          ▸     allows the State Commission of Criminal and Juvenile Justice to pay an individual
14     who is found factually innocent by a court in one lump payment; and
15          ▸     makes technical and conforming changes.
16     Money Appropriated in this Bill:
17          None
18     Other Special Clauses:
19          None
20     Utah Code Sections Affected:
21     AMENDS:
22          78B-9-402, as last amended by Laws of Utah 2013, Chapter 46
23          78B-9-405, as last amended by Laws of Utah 2012, Chapter 220
24     

25     Be it enacted by the Legislature of the state of Utah:
26          Section 1. Section 78B-9-402 is amended to read:
27          78B-9-402. Petition for determination of factual innocence -- Sufficient
28     allegations -- Notification of victim -- Payment to surviving spouse.
29          (1) A person who has been convicted of a felony offense may petition the district court
30     in the county in which the person was convicted for a hearing to establish that the person is
31     factually innocent of the crime or crimes of which the person was convicted.
32          (2) (a) The petition shall contain an assertion of factual innocence under oath by the
33     petitioner and shall aver, with supporting affidavits or other credible documents, that:
34          (i) newly discovered material evidence exists that, if credible, establishes that the
35     petitioner is factually innocent;
36          (ii) the specific evidence identified by the petitioner in the petition establishes
37     innocence;
38          (iii) the material evidence is not merely cumulative of evidence that was known;
39          (iv) the material evidence is not merely impeachment evidence; and
40          (v) viewed with all the other evidence, the newly discovered evidence demonstrates
41     that the petitioner is factually innocent.
42          (b) The court shall review the petition in accordance with the procedures in Subsection
43     (9)(b), and make a finding that the petition has satisfied the requirements of Subsection (2)(a).
44     If the court finds the petition does not meet all the requirements of Subsection (2)(a), it shall
45     dismiss the petition without prejudice and send notice of the dismissal to the petitioner and the
46     attorney general.
47          (3) (a) The petition shall also contain an averment that:
48          (i) neither the petitioner nor the petitioner's counsel knew of the evidence at the time of
49     trial or sentencing or in time to include the evidence in any previously filed post-trial motion or
50     postconviction motion, and the evidence could not have been discovered by the petitioner or
51     the petitioner's counsel through the exercise of reasonable diligence; or
52          (ii) a court has found ineffective assistance of counsel for failing to exercise reasonable
53     diligence in uncovering the evidence.
54          (b) Upon entry of a finding that the petition is sufficient under Subsection (2)(a), the
55     court shall then review the petition to determine if Subsection (3)(a) has been satisfied. If the
56     court finds that the requirements of Subsection (3)(a) have not been satisfied, it may dismiss
57     the petition without prejudice and give notice to the petitioner and the attorney general of the
58     dismissal, or the court may waive the requirements of Subsection (3)(a) if the court finds the
59     petition should proceed to hearing based upon the strength of the petition, and that there is
60     other evidence that could have been discovered through the exercise of reasonable diligence by
61     the petitioner or the petitioner's counsel at trial, and the other evidence:
62          (i) was not discovered by the petitioner or the petitioner's counsel;
63          (ii) is material upon the issue of factual innocence; and
64          (iii) has never been presented to a court.
65          (4) If the conviction for which the petitioner asserts factual innocence was based upon
66     a plea of guilty, the petition shall contain the specific nature and content of the evidence that
67     establishes factual innocence. The court shall review the evidence and may dismiss the petition
68     at any time in the course of the proceedings, if the court finds that the evidence of factual
69     innocence relies solely upon the recantation of testimony or prior statements made by a witness
70     against the petitioner, and the recantation appears to the court to be equivocal or selfserving.
71          (5) A person who has already obtained postconviction relief that vacated or reversed
72     the person's conviction or sentence may also file a petition under this part in the same manner
73     and form as described above, if no retrial or appeal regarding this offense is pending.
74          (6) If some or all of the evidence alleged to be exonerating is biological evidence
75     subject to DNA testing, the petitioner shall seek DNA testing pursuant to Section 78B-9-301.
76          (7) Except as provided in Subsection (9), the petition and all subsequent proceedings
77     shall be in compliance with and governed by Rule 65C, Utah Rules of Civil Procedure, and
78     shall include the underlying criminal case number.
79          (8) After a petition is filed under this section, prosecutors, law enforcement officers,
80     and crime laboratory personnel shall cooperate in preserving evidence and in determining the
81     sufficiency of the chain of custody of the evidence which is the subject of the petition.
82          (9) (a) A person who files a petition under this section shall serve notice of the petition
83     and a copy of the petition upon the office of the prosecutor who obtained the conviction and
84     upon the Utah attorney general.
85          (b) The assigned judge shall conduct an initial review of the petition. If it is apparent
86     to the court that the petitioner is either merely relitigating facts, issues, or evidence presented in
87     previous proceedings or presenting issues that appear frivolous or speculative on their face, the
88     court shall dismiss the petition, state the basis for the dismissal, and serve notice of dismissal
89     upon the petitioner and the attorney general. If, upon completion of the initial review, the court
90     does not dismiss the petition, it shall order the attorney general to file a response to the petition.
91     The attorney general shall, within 30 days after receipt of the court's order, or within any
92     additional period of time the court allows, answer or otherwise respond to all proceedings
93     initiated under this part.
94          (c) After the time for response by the attorney general under Subsection (9)(b) has
95     passed, the court shall order a hearing if it finds the petition meets the requirements of
96     Subsections (2) and (3) and finds there is a bona fide and compelling issue of factual innocence
97     regarding the charges of which the petitioner was convicted. No bona fide and compelling
98     issue of factual innocence exists if the petitioner is merely relitigating facts, issues, or evidence
99     presented in a previous proceeding or if the petitioner is unable to identify with sufficient
100     specificity the nature and reliability of the newly discovered evidence that establishes the
101     petitioner's factual innocence.
102          (d) If the parties stipulate that the evidence establishes that the petitioner is factually
103     innocent, the court may find the petitioner is factually innocent without holding a hearing. If
104     the state will not stipulate that the evidence establishes that the petitioner is factually innocent,
105     no determination of factual innocence may be made by the court without first holding a hearing
106     under this part.
107          (10) The court may not grant a petition for a hearing under this part during the period
108     in which criminal proceedings in the matter are pending before any trial or appellate court,
109     unless stipulated to by the parties.
110          (11) Any victim of a crime that is the subject of a petition under this part, and who has
111     elected to receive notice under Section 77-38-3, shall be notified by the state's attorney of any
112     hearing regarding the petition.
113          (12) A petition to determine factual innocence under this part, or Part 3, Postconviction
114     Testing of DNA, shall be filed separately from any petition for postconviction relief under Part
115     1, General Provisions. Separate petitions may be filed simultaneously in the same court.
116          (13) The procedures governing the filing and adjudication of a petition to determine
117     factual innocence apply to all petitions currently filed or pending in the district court and any
118     new petitions filed on or after June 1, 2012.
119          (14) (a) As used in this Subsection (14) and in Subsection (15):
120          (i) "Married" means the legal marital relationship established between a man and a
121     woman and as recognized by the laws of this state; and
122          (ii) "Spouse" means a person married to the petitioner at the time the petitioner was
123     found guilty of the offense regarding which a petition is filed and who has since then been
124     continuously married to the petitioner until the petitioner's death.
125          (b) A claim for determination of factual innocence under this part is not extinguished
126     upon the death of the petitioner.
127          (c) (i) If any payments are already being made to the petitioner under this part at the
128     time of the death of the petitioner, or if the finding of factual innocence occurs after the death
129     of the petitioner, the payments due under Section 78B-9-405 shall be paid [according to the
130     schedule under] in accordance with Section 78B-9-405 to the petitioner's surviving spouse.
131          (ii) Payments cease upon the death of the spouse.
132          (15) The spouse under Subsection (14) forfeits all rights to receive any payment under
133     this part if the spouse is charged with a homicide established by a preponderance of the
134     evidence that meets the elements of any felony homicide offense in Title 76, Chapter 5,
135     Offenses Against the Person, except automobile homicide, applying the same principles of
136     culpability and defenses as in Title 76, Utah Criminal Code, including Title 76, Chapter 2,
137     Principles of Criminal Responsibility.
138          Section 2. Section 78B-9-405 is amended to read:
139          78B-9-405. Judgment and assistance payment.
140          (1) As used in this section:
141          (a) "Felony" means a criminal offense classified as a felony under Title 76, Chapter 3,
142     Punishments, or conduct that would constitute a felony if committed in Utah.
143          (b) "Petitioner" means a United States citizen or an individual who was otherwise
144     lawfully present in this country at the time of the incident that gave rise to the underlying
145     conviction.
146          [(1) (a)] (2) (a) If a court finds a petitioner factually innocent under Part 3,
147     Postconviction Testing of DNA, or under this part, and if the petitioner has served a period of
148     incarceration, the court shall order that[, as provided in Subsection (2), the petitioner shall] the
149     petitioner receive for each year or portion of a year the petitioner was incarcerated, up to a
150     maximum of 15 years, the monetary equivalent of the average annual nonagricultural payroll
151     wage in Utah, as determined by the data most recently published by the Department of
152     Workforce Services at the time of the petitioner's release from prison.
153          [(b) As used in this Subsection (1), "petitioner" means a United States citizen or an
154     individual who was otherwise lawfully present in this country at the time of the incident that
155     gave rise to the underlying conviction.]
156          [(2) Payments pursuant to this section shall be made as follows:]
157          (b) The court's determination of the monetary equivalent of the average annual
158     nonagricultural payroll wage shall be included in the order declaring that the petitioner is
159     factually innocent.
160          (3) If a court orders that a petitioner is to receive payment under Subsection (2):
161          (a) [The] the Utah Office for Victims of Crime shall pay from the Crime Victim
162     Reparations Fund to the petitioner within 45 days of the court order under Subsection [(1)] (2)
163     an initial sum equal to either 20% of the total financial assistance payment as determined under
164     Subsection [(1)] (2) or an amount equal to two years of incarceration, whichever is greater, but
165     not to exceed the total amount owed[.];
166          (b) [The] the Legislature shall appropriate as nonlapsing funds from the General Fund,
167     and no later than the next general session following the issuance of the court order under
168     Subsection [(1)] (2):
169          (i) to the Crime Victim Reparations Fund, the amount that was paid out of the fund
170     under Subsection [(2)(a)] (3)(a); and
171          (ii) to the State Commission on Criminal and Juvenile Justice, as a separate line item,
172     the amount ordered by the court for payments under Subsection [(1)] (2), minus the amount
173     reimbursed to the Crime Victim Reparations Fund under Subsection [(2)(b)(i).] (3)(b)(i); and
174          [(c) Payments to the petitioner under this section, other than the payment under
175     Subsection (2)(a), shall be made by the Commission on Criminal and Juvenile Justice quarterly
176     on or before the last day of the month next succeeding each calendar quarterly period.]
177          (c) the State Commission on Criminal and Juvenile Justice shall pay the amount
178     ordered by the court under Subsection (2), minus the amount paid by the Utah Office for
179     Victims of Crime under Subsection (3)(a), to the petitioner:
180          (i) quarterly on or before the last day of the month next succeeding each calendar
181     quarterly period; or
182          (ii) in one lump sum payment no later than the next succeeding July 31 after the day on
183     which the court ordered the payment.
184          (4) (a) For a payment under Subsection (3)(c):
185          (i) the petitioner shall choose, within 90 days after the day on which the payment under
186     Subsection (3)(a) is made, whether the payment is disbursed under Subsection (3)(c)(i) or (ii);
187     and
188          (ii) the State Commission on Criminal and Juvenile Justice shall disburse the payment
189     in accordance with the petitioner's choice under Subsection (4)(a)(i).
190          (b) If the petitioner fails to make a choice under Subsection (4)(a)(i) within 90 days
191     after the day on which the payment under Subsection (3)(a) is made, the State Commission on
192     Criminal and Juvenile Justice shall pay the amount under Subsection (3)(c) in accordance with
193     Subsection (3)(c)(i).
194          (c) (i) If a court ordered a petitioner to receive a payment under this section on or
195     before May 5, 2021, the petitioner may request that the State Commission on Criminal and
196     Juvenile Justice disburse the remaining balance of the payment owed to the petitioner under
197     Subsection (3)(c) in one lump sum payment.
198          (ii) If a petitioner submits a request under Subsection (4)(c)(i), the State Commission
199     on Criminal and Juvenile Justice shall disburse the remaining balance of the payment owed to
200     the petitioner in one lump sum payment.
201          [(d)] (5) Payments under Subsection [(2)(c)] (3)(c)(i) shall:
202          [(i)] (a) commence no later than one year after the effective date of the appropriation
203     for the payments;
204          [(ii)] (b) be made to the petitioner for the balance of the amount ordered by the court
205     after the initial payment under Subsection [(2)(a)] (3)(a); and
206          [(iii)] (c) be allocated so that the entire amount due to the petitioner under this section
207     has been paid no later than 10 years after the effective date of the appropriation made under
208     Subsection [(2)(b)] (3)(b).
209          [(3)] (6) (a) Payments [pursuant to] under this section shall be reduced to the extent
210     that the period of incarceration for which the petitioner seeks payment was attributable to a
211     separate and lawful conviction.
212          (b) [(i)] Payments [pursuant to this section shall] under this section shall:
213          (i) be tolled upon the commencement of any period of incarceration due to the
214     petitioner's subsequent conviction of a felony [and shall]; and
215          (ii) resume upon the conclusion of that period of incarceration.
216          [(ii) As used in this section, "felony" means a criminal offense classified as a felony
217     under Title 76, Chapter 3, Punishments, or conduct that would constitute a felony if committed
218     in Utah.]
219          (c) The reduction of payments [pursuant to] under Subsection [(3)] (6)(a) or the tolling
220     of payments pursuant to Subsection [(3)] (6)(b) shall be determined by the same court that
221     finds a petitioner to be factually innocent under Part 3, Postconviction Testing of DNA, or this
222     part.
223          [(4)] (7) (a) [A person] An individual is ineligible for any payments under this part if
224     the [person] individual was already serving a prison sentence in another jurisdiction at the time
225     of the conviction of the crime for which that [person] individual has been found factually
226     innocent [pursuant to] in accordance with Part 3, Postconviction Testing of DNA, or this part,
227     and that [person] individual is to be returned to that other jurisdiction upon release for further
228     incarceration on the prior conviction.
229          (b) Ineligibility for any payments [pursuant to this Subsection (4)] under this
230     Subsection (7) shall be determined by the same court that finds [a person] an individual to be
231     factually innocent under Part 3, Postconviction Testing of DNA, or this part.
232          [(5)] (8) Payments [pursuant to] under this section:
233          (a) are not subject to any Utah state taxes; and
234          (b) may not be offset by any expenses incurred by the state or any political subdivision
235     of the state, including expenses incurred to secure the petitioner's custody, or to feed, clothe, or
236     provide medical services for the petitioner.
237          [(6)] (9) If a court finds a petitioner to be factually innocent under Part 3,
238     Postconviction Testing of DNA, or this part, the court shall also:
239          (a) issue an order of expungement of the petitioner's criminal record for all acts in the
240     charging document upon which the payment under this part is based; and
241          (b) provide a letter to the petitioner explaining that the petitioner's conviction has been
242     vacated on the grounds of factual innocence and indicating that the petitioner did not commit
243     the crime or crimes for which the petitioner was convicted and was later found to be factually
244     innocent under Part 3, Postconviction Testing of DNA, or this part.
245          [(7)] (10) A petitioner found to be factually innocent under Part 3, Postconviction
246     Testing of DNA, or this part shall have access to the same services and programs available to
247     Utah citizens generally as though the conviction for which the petitioner was found to be
248     factually innocent had never occurred.
249          [(8)] (11) (a) Payments [pursuant to] under this part constitute a full and conclusive
250     resolution of the petitioner's claims on the specific issue of factual innocence.
251          (b) Pre-judgment interest may not be awarded in addition to the payments provided
252     under this part.