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7 LONG TITLE
8 General Description:
9 This bill addresses penalties imposed on an individual for certain sexual offenses
10 committed as a juvenile.
11 Highlighted Provisions:
12 This bill:
13 ▸ defines a term;
14 ▸ subject to an exception for certain repeat offenders, provides that, if an individual is
15 sentenced in district court for certain sexual offenses committed while the
16 individual was a juvenile:
17 • the individual is not required to register on the sex and kidnap offender registry;
18 • the individual will be sentenced consistent with the disposition that would have
19 been made in juvenile court; and
20 • incarceration is limited to certain circumstances and subject to certain
21 limitations;
22 ▸ subject to an exception, provides for expungement of the conviction of an
23 individual described in the preceding paragraph; and
24 ▸ makes technical changes.
25 Money Appropriated in this Bill:
26 None
27 Other Special Clauses:
28 None
29 Utah Code Sections Affected:
30 AMENDS:
31 76-3-209, as enacted by Laws of Utah 2016, Chapter 277
32 77-40-102, as last amended by Laws of Utah 2020, Chapter 354
33 77-40-105, as last amended by Laws of Utah 2020, Chapters 177 and 218
34 77-40-107, as last amended by Laws of Utah 2020, Chapters 12, 12, and 54
35 77-41-113, as enacted by Laws of Utah 2020, Chapter 237
36
37 Be it enacted by the Legislature of the state of Utah:
38 Section 1. Section 76-3-209 is amended to read:
39 76-3-209. Limitation on sentencing for crimes committed by juveniles.
40 (1) As used in this section, "qualifying sexual offense" means:
41 (a) an offense described in Chapter 5, Part 4, Sexual Offenses;
42 (b) Section 76-9-702, lewdness;
43 (c) Section 76-9-702.1, sexual battery; or
44 (d) Section 76-9-702.5, lewdness involving a child.
45 (2) (a) This Subsection (2) only applies prospectively to an individual sentenced on or
46 after May 10, 2016.
47 (b) Notwithstanding any provision of law, [
48 sentenced to life without parole if:
49 (i) the individual is convicted of a crime punishable by life without parole [
50
51 (ii) at the time the individual committed the crime, the individual was less than 18
52 years old.
53 (c) The maximum punishment that may be imposed on [
54
55 than 25 years and that may be for life. [
56
57 (3) Except as provided in Subsection (4), if an individual is convicted in district court
58 of a qualifying sexual offense and, at the time of the offense, the individual was at least 14
59 years old, but under 18 years old:
60 (a) the individual is not, based on the conviction, subject to the registration
61 requirements described in Title 77, Chapter 41, Sex and Kidnap Offender Registry;
62 (b) the district court shall impose a sentence consistent with the disposition that would
63 have been made in juvenile court; and
64 (c) the district court may not impose incarceration unless the court enters specific
65 written findings that incarceration is warranted based on a totality of the circumstances, taking
66 into account:
67 (i) the time that elapsed after the individual committed the offense;
68 (ii) the age of the individual at the time of the offense;
69 (iii) the age of the victim at the time of the offense;
70 (iv) the criminal history of the individual after the individual committed the offense;
71 (v) any treatment assessments or validated risk tools; and
72 (vi) public safety concerns.
73 (4) Subsection (3) does not apply if:
74 (a) before the individual described in Subsection (3) is convicted of the qualifying
75 sexual offense, the individual is convicted of a qualifying sexual offense that the individual
76 committed when the individual was 18 years old or older; or
77 (b) the individual is convicted in district court, before the victim is 18 years old, of a
78 violation of Section 76-5-405, aggravated sexual assault.
79 (5) If the district court imposes incarceration under Subsection (3)(c), the term of
80 incarceration may not exceed:
81 (a) seven years for a violation of Section 76-5-405, aggravated sexual assault;
82 (b) except as provided in Subsection (5)(a), four years for a felony violation of Chapter
83 5, Part 4, Sexual Offenses; or
84 (c) the maximum sentence described in Section 76-3-204 for:
85 (i) a misdemeanor violation of Chapter 5, Part 4, Sexual Offenses;
86 (ii) a violation of Section 76-9-702, lewdness;
87 (iii) a violation of Section 76-9-702.1, sexual battery; or
88 (iv) a violation of Section 76-9-702.5, lewdness involving a child.
89 Section 2. Section 77-40-102 is amended to read:
90 77-40-102. Definitions.
91 As used in this chapter:
92 (1) "Administrative finding" means a decision upon a question of fact reached by an
93 administrative agency following an administrative hearing or other procedure satisfying the
94 requirements of due process.
95 (2) "Agency" means a state, county, or local government entity that generates or
96 maintains records relating to an investigation, arrest, detention, or conviction for an offense for
97 which expungement may be ordered.
98 (3) "Bureau" means the Bureau of Criminal Identification of the Department of Public
99 Safety established in Section 53-10-201.
100 (4) "Certificate of eligibility" means a document issued by the bureau stating that the
101 criminal record and all records of arrest, investigation, and detention associated with a case that
102 is the subject of a petition for expungement is eligible for expungement.
103 (5) (a) "Clean slate eligible case" means a case:
104 (i) where, except as provided in Subsection (5)(c), each conviction within the case is:
105 (A) a misdemeanor conviction for possession of a controlled substance in violation of
106 Subsection 58-37-8(2)(a)(i);
107 (B) a class B or class C misdemeanor conviction; or
108 (C) an infraction conviction;
109 (ii) that involves an individual:
110 (A) whose total number of convictions in Utah state courts, not including infractions,
111 traffic offenses, or minor regulatory offenses, does not exceed the limits described in
112 Subsections 77-40-105[
113 Subsection 77-40-105[
114 (B) against whom no criminal proceedings are pending in the state; and
115 (iii) for which the following time periods have elapsed from the day on which the case
116 is adjudicated:
117 (A) at least five years for a class C misdemeanor or an infraction;
118 (B) at least six years for a class B misdemeanor; and
119 (C) at least seven years for a class A conviction for possession of a controlled
120 substance in violation of Subsection 58-37-8(2)(a)(i).
121 (b) "Clean slate eligible case" includes a case that is dismissed as a result of a
122 successful completion of a plea in abeyance agreement governed by Subsection 77-2a-3(2)(b)
123 if:
124 (i) except as provided in Subsection (5)(c), each charge within the case is:
125 (A) a misdemeanor for possession of a controlled substance in violation of Subsection
126 58-37-8(2)(a)(i);
127 (B) a class B or class C misdemeanor; or
128 (C) an infraction;
129 (ii) the individual involved meets the requirements of Subsection (5)(a)(ii); and
130 (iii) the time periods described in Subsections (5)(a)(iii)(A) through (C) have elapsed
131 from the day on which the case is dismissed.
132 (c) "Clean slate eligible case" does not include a case:
133 (i) where the individual is found not guilty by reason of insanity;
134 (ii) where the case establishes a criminal judgment accounts receivable, as defined in
135 Section 77-32a-101, that:
136 (A) has been entered as a civil judgment and transferred to the Office of State Debt
137 Collection; or
138 (B) has not been satisfied according to court records; or
139 (iii) that resulted in one or more pleas held in abeyance or convictions for the following
140 offenses:
141 (A) any of the offenses listed in Subsection 77-40-105(2)(a);
142 (B) an offense against the person in violation of Title 76, Chapter 5, Offenses Against
143 the Person;
144 (C) a weapons offense in violation of Title 76, Chapter 10, Part 5, Weapons;
145 (D) sexual battery in violation of Section 76-9-702.1;
146 (E) an act of lewdness in violation of Section 76-9-702 or 76-9-702.5;
147 (F) an offense in violation of Title 41, Chapter 6a, Part 5, Driving Under the Influence
148 and Reckless Driving;
149 (G) damage to or interruption of a communication device in violation of Section
150 76-6-108;
151 (H) a domestic violence offense as defined in Section 77-36-1; or
152 (I) any other offense classified in the Utah Code as a felony or a class A misdemeanor
153 other than a class A misdemeanor conviction for possession of a controlled substance in
154 violation of Subsection 58-37-8(2)(a)(i).
155 (6) "Conviction" means judgment by a criminal court on a verdict or finding of guilty
156 after trial, a plea of guilty, or a plea of nolo contendere.
157 (7) "Department" means the Department of Public Safety established in Section
158 53-1-103.
159 (8) "Drug possession offense" means an offense under:
160 (a) Subsection 58-37-8(2), except any offense under Subsection 58-37-8(2)(b)(i),
161 possession of 100 pounds or more of marijuana, any offense enhanced under Subsection
162 58-37-8(2)(e), violation in a correctional facility or Subsection 58-37-8(2)(g), driving with a
163 controlled substance illegally in the person's body and negligently causing serious bodily injury
164 or death of another;
165 (b) Subsection 58-37a-5(1), use or possession of drug paraphernalia;
166 (c) Section 58-37b-6, possession or use of an imitation controlled substance; or
167 (d) any local ordinance which is substantially similar to any of the offenses described
168 in this Subsection (8).
169 (9) "Expunge" means to seal or otherwise restrict access to the individual's record held
170 by an agency when the record includes a criminal investigation, detention, arrest, or conviction.
171 (10) "Jurisdiction" means a state, district, province, political subdivision, territory, or
172 possession of the United States or any foreign country.
173 (11) "Minor regulatory offense" means any class B or C misdemeanor offense, and any
174 local ordinance, except:
175 (a) any drug possession offense;
176 (b) Title 41, Chapter 6a, Part 5, Driving Under the Influence and Reckless Driving;
177 (c) Sections 73-18-13 through 73-18-13.6;
178 (d) those offenses defined in Title 76, Utah Criminal Code; or
179 (e) any local ordinance that is substantially similar to those offenses listed in
180 Subsections (11)(a) through (d).
181 (12) "Petitioner" means an individual applying for expungement under this chapter.
182 (13) (a) "Traffic offense" means:
183 (i) all infractions, class B misdemeanors, and class C misdemeanors in Title 41,
184 Chapter 6a, Traffic Code;
185 (ii) Title 53, Chapter 3, Part 2, Driver Licensing Act;
186 (iii) Title 73, Chapter 18, State Boating Act; and
187 (iv) all local ordinances that are substantially similar to those offenses.
188 (b) "Traffic offense" does not mean:
189 (i) Title 41, Chapter 6a, Part 5, Driving Under the Influence and Reckless Driving;
190 (ii) Sections 73-18-13 through 73-18-13.6; or
191 (iii) any local ordinance that is substantially similar to the offenses listed in
192 Subsections (13)(b)(i) and (ii).
193 Section 3. Section 77-40-105 is amended to read:
194 77-40-105. Requirements to apply for a certificate of eligibility to expunge
195 conviction.
196 (1) An individual convicted of an offense may apply to the bureau for a certificate of
197 eligibility to expunge the record of conviction as provided in this section.
198 (2) [
199 certificate of eligibility from the bureau if:
200 (a) the conviction for which expungement is sought is:
201 (i) a capital felony;
202 (ii) a first degree felony;
203 (iii) a violent felony as defined in Subsection 76-3-203.5(1)(c)(i);
204 (iv) felony automobile homicide;
205 (v) a felony conviction described in Subsection 41-6a-501(2);
206 (vi) a registerable sex offense as defined in Subsection 77-41-102(17); or
207 (vii) a registerable child abuse offense as defined in Subsection 77-43-102(2);
208 (b) a criminal proceeding is pending against the petitioner; or
209 (c) the petitioner intentionally or knowingly provides false or misleading information
210 on the application for a certificate of eligibility.
211 (3) The eligibility limitation described in Subsection (2) does not apply in relation to a
212 conviction for a qualifying sexual offense, as defined in Subsection 76-3-209(1), if, at the time
213 of the offense, the individual who committed the offense was at least 14 years old, but under 18
214 years old, unless the conviction occurred in district court after the individual was:
215 (a) charged by criminal information under Section 78A-6-703.2 or 78A-6-703.3; and
216 (b) bound over to district court under Section 78A-6-703.5.
217 [
218 eligible to receive a certificate of eligibility from the bureau until all of the following have
219 occurred:
220 (a) the petitioner has paid in full all fines and interest ordered by the court related to the
221 conviction for which expungement is sought;
222 (b) the petitioner has paid in full all restitution ordered by the court pursuant to Section
223 77-38a-302, or by the Board of Pardons and Parole pursuant to Section 77-27-6; and
224 (c) the following time periods have elapsed from the date the petitioner was convicted
225 or released from incarceration, parole, or probation, whichever occurred last, for each
226 conviction the petitioner seeks to expunge:
227 (i) 10 years in the case of a misdemeanor conviction of Subsection 41-6a-501(2) or a
228 felony conviction of Subsection 58-37-8(2)(g);
229 (ii) seven years in the case of a felony;
230 (iii) five years in the case of any class A misdemeanor or a felony drug possession
231 offense;
232 (iv) four years in the case of a class B misdemeanor; or
233 (v) three years in the case of any other misdemeanor or infraction.
234 [
235 not consider:
236 (a) a petitioner's pending or previous:
237 (i) infraction;
238 (ii) traffic offense;
239 (iii) minor regulatory offense; or
240 (iv) clean slate eligible case that was automatically expunged in accordance with
241 Section 77-40-114; or
242 (b) a fine or fee related to an offense described in Subsection [
243 [
244 seeks a certificate of eligibility, the bureau determines that the petitioner's criminal history,
245 including previously expunged convictions, contains any of the following, except as provided
246 in Subsection [
247 (a) two or more felony convictions other than for drug possession offenses, each of
248 which is contained in a separate criminal episode;
249 (b) any combination of three or more convictions other than for drug possession
250 offenses that include two class A misdemeanor convictions, each of which is contained in a
251 separate criminal episode;
252 (c) any combination of four or more convictions other than for drug possession
253 offenses that include three class B misdemeanor convictions, each of which is contained in a
254 separate criminal episode; or
255 (d) five or more convictions other than for drug possession offenses of any degree
256 whether misdemeanor or felony, each of which is contained in a separate criminal episode.
257 [
258 seeks a certificate of eligibility, the bureau determines that the petitioner's criminal history,
259 including previously expunged convictions, contains any of the following:
260 (a) three or more felony convictions for drug possession offenses, each of which is
261 contained in a separate criminal episode; or
262 (b) any combination of five or more convictions for drug possession offenses, each of
263 which is contained in a separate criminal episode.
264 [
265 possession offense and a non drug possession offense arising from the same criminal episode,
266 that criminal episode shall be counted as provided in Subsection [
267 possession offense in that episode:
268 (a) is a felony or class A misdemeanor; or
269 (b) has the same or a longer waiting period under Subsection [
270 possession offense in that episode.
271 [
272 released from incarceration, parole, or probation, whichever occurred last, for all convictions,
273 then each eligibility limit defined in Subsection [
274 [
275 Board of Pardons and Parole, the petitioner is entitled to an expungement order for all
276 pardoned crimes pursuant to Section 77-27-5.1.
277 Section 4. Section 77-40-107 is amended to read:
278 77-40-107. Petition for expungement -- Prosecutorial responsibility -- Hearing --
279 Standard of proof -- Exception.
280 (1) The petitioner shall file a petition for expungement and, except as provided in
281 Subsection 77-40-103(5), the certificate of eligibility in the court specified in Section
282 77-40-103 and deliver a copy of the petition and certificate to the prosecuting agency. If the
283 certificate is filed electronically, the petitioner or the petitioner's attorney shall keep the original
284 certificate until the proceedings are concluded. If the original certificate is filed with the
285 petition, the clerk of the court shall scan it and return it to the petitioner or the petitioner's
286 attorney, who shall keep it until the proceedings are concluded.
287 (2) (a) Upon receipt of a petition for expungement of a conviction or a charge
288 dismissed in accordance with a plea in abeyance, the prosecuting attorney shall provide notice
289 of the expungement request by first-class mail to the victim at the most recent address of record
290 on file.
291 (b) The notice shall:
292 (i) include a copy of the petition, certificate of eligibility, statutes, and rules applicable
293 to the petition;
294 (ii) state that the victim has a right to object to the expungement; and
295 (iii) provide instructions for registering an objection with the court.
296 (3) The prosecuting attorney and the victim, if applicable, may respond to the petition
297 by filing a recommendation or objection with the court within 35 days after receipt of the
298 petition.
299 (4) (a) The court may request a written response to the petition from the Division of
300 Adult Probation and Parole within the Department of Corrections.
301 (b) If requested, the response prepared by the Division of Adult Probation and Parole
302 shall include:
303 (i) the reasons probation was terminated; and
304 (ii) certification that the petitioner has completed all requirements of sentencing and
305 probation or parole.
306 (c) The Division of Adult Probation and Parole shall provide a copy of the response to
307 the petitioner and the prosecuting attorney.
308 (5) The petitioner may respond in writing to any objections filed by the prosecutor or
309 the victim and the response prepared by the Division of Adult Probation and Parole within 14
310 days after receipt.
311 (6) (a) If the court receives an objection concerning the petition from any party, the
312 court shall set a date for a hearing and notify the petitioner and the prosecuting attorney of the
313 date set for the hearing. The prosecuting attorney shall notify the victim of the date set for the
314 hearing.
315 (b) The petitioner, the prosecuting attorney, the victim, and any other person who has
316 relevant information about the petitioner may testify at the hearing.
317 (c) The court shall review the petition, the certificate of eligibility, and any written
318 responses submitted regarding the petition.
319 (7) If no objection is received within 60 days from the date the petition for
320 expungement is filed with the court, the expungement may be granted without a hearing.
321 (8) The court shall issue an order of expungement if the court finds by clear and
322 convincing evidence that:
323 (a) the petition and, except as provided under Subsection 77-40-103(5), certificate of
324 eligibility are sufficient;
325 (b) the statutory requirements have been met;
326 (c) if the petitioner seeks expungement after a case is dismissed without prejudice or
327 without condition, the prosecutor provided written consent and has not filed and does not
328 intend to refile related charges;
329 (d) if the petitioner seeks expungement of drug possession offenses allowed under
330 Subsection 77-40-105[
331 successfully managing any substance addiction;
332 (e) if the petitioner seeks expungement without a certificate of eligibility for
333 expungement under Subsection 77-40-103(5) for a record of conviction related to cannabis
334 possession:
335 (i) the petitioner had, at the time of the relevant arrest or citation leading to the
336 conviction, a qualifying condition, as that term is defined in Section 26-61a-102; and
337 (ii) the possession of cannabis in question was in a form and an amount to medicinally
338 treat the condition described in Subsection (8)(e)(i);
339 (f) if an objection is received, the petition for expungement is for a charge dismissed in
340 accordance with a plea in abeyance agreement, and the charge is an offense eligible to be used
341 for enhancement, there is good cause for the court to grant the expungement; and
342 (g) it is not contrary to the interests of the public to grant the expungement.
343 (9) (a) If the court denies a petition described in Subsection (8)(c) because the
344 prosecutor intends to refile charges, the person seeking expungement may again apply for a
345 certificate of eligibility if charges are not refiled within 180 days of the day on which the court
346 denies the petition.
347 (b) A prosecutor who opposes an expungement of a case dismissed without prejudice
348 or without condition shall have a good faith basis for the intention to refile the case.
349 (c) A court shall consider the number of times that good faith basis of intention to
350 refile by the prosecutor is presented to the court in making the court's determination to grant
351 the petition for expungement described in Subsection (8)(c).
352 (10) If the court grants a petition described in Subsection (8)(e), the court shall make
353 the court's findings in a written order.
354 (11) A court may not expunge a conviction of an offense for which a certificate of
355 eligibility may not be or should not have been issued under Section 77-40-104 or 77-40-105.
356 Section 5. Section 77-41-113 is amended to read:
357 77-41-113. Removal for offenses for which registration is no longer required.
358 (1) An individual who is currently on the Sex and Kidnap Offender Registry because of
359 a conviction for any of the following offenses may contact the department and request removal
360 from the registry if the only offense or offenses for which the individual is on the registry is
361 listed in Subsection (2).
362 (2) This section applies to a conviction for the following offenses:
363 (a) a class B or class C misdemeanor for enticing a minor, Section 76-4-401;
364 (b) kidnapping, based upon Subsection 76-5-301(1)(a) or (b);
365 (c) child kidnapping, Section 76-5-301.1, if the offender was the natural parent of the
366 child victim;
367 (d) unlawful detention, Section 76-5-304;
368 (e) a third degree felony for unlawful sexual intercourse before 1986, or a class B
369 misdemeanor for unlawful sexual intercourse, Section 76-5-401; [
370 (f) sodomy, but not forcible sodomy, Section 76-5-403[
371 (g) unless the offender is an individual described in Subsection 77-41-102(9)(f) or
372 (17)(f), an offense committed in Utah before the offender is 18 years old.
373 (3) The department, upon receipt of a request for removal from the registry shall:
374 (a) check the registry for the individual's current status;
375 (b) determine whether the individual qualifies for removal based upon this section; and
376 (c) notify the individual in writing of the department's determination and whether the
377 individual:
378 (i) qualifies for removal from the registry; or
379 (ii) does not qualify for removal.
380 (4) If the department determines that the individual qualifies for removal from the
381 registry, the department shall remove the offender from the registry.
382 (5) If the department determines that the individual does not qualify for removal from
383 the registry, the department shall provide an explanation in writing for the department's
384 determination. The department's determination is final and not subject to administrative review.
385 (6) Neither the department nor any employee may be civilly liable for a determination
386 made in good faith in accordance with this section.
387 (7) The department shall provide a response to a request for removal within 30 days of
388 receipt of the request and payment of the fee. If the response cannot be provided within 30
389 days, the department shall notify the individual that the response may be delayed up to 30
390 additional days.
391 (8) The department may charge a fee, not to exceed $25, for a request for removal.