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