This document includes Senate Committee Amendments incorporated into the bill on Mon, Jan 31, 2022 at 10:23 AM by lpoole.
Representative Karianne Lisonbee proposes the following substitute bill:


1     
OFFENDER SUPERVISION AMENDMENTS

2     
2022 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Karianne Lisonbee

5     
Senate Sponsor: Michael S. Kennedy

6     

7     LONG TITLE
8     General Description:
9          This bill amends provisions regarding individuals subject to probation and parole.
10     Highlighted Provisions:
11          This bill:
12          ▸     allows a jail to hold a parolee or probationer under certain circumstances;
13          ▸     clarifies the information a court and the Board of Pardons and Parole shall consider
14     under the sentencing guidelines when an individual violates a provision of probation
15     or parole;
16          ▸     requires the department of corrections to detain an individual who violates a
17     condition of probation or parole if the violation was a particular type of offense;
18          ▸     requires a court to review costs that a defendant will be charged for supervisory
19     services;
20          ▸     clarifies which offenders, the department of corrections, a local government agency,
21     or a private probation provider may supervise;
22          ▸     modifies the duties of private probation providers;
23          ▸     requires law enforcement agencies to perform certain tasks regarding supervision
24     and presentence investigation reports;
25          ▸     requires the department of corrections to provide a victim notice regarding:
26               •     the expiration of an offender's probation or parole term; and
27               •     the victim's ability to obtain a continuous protective order;
28          ▸     allows a court and the Board of Pardons and Parole to impose a period of
29     incarceration that differs from the sentencing guidelines; and
30          ▸     makes technical changes.
31     Money Appropriated in this Bill:
32          None
33     Other Special Clauses:
34          None
35     Utah Code Sections Affected:
36     AMENDS:
37          17-22-5.5, as last amended by Laws of Utah 2021, Second Special Session, Chapter 4
38          58-50-9, as last amended by Laws of Utah 2021, Chapter 260
39          63M-7-404, as last amended by Laws of Utah 2021, Chapter 173
40          64-13-14.7, as last amended by Laws of Utah 2008, Chapter 382
41          64-13-29, as last amended by Laws of Utah 2021, Chapter 173
42          77-18-103, as enacted by Laws of Utah 2021, Chapter 260
43          77-18-105, as enacted by Laws of Utah 2021, Chapter 260 and last amended by
44     Coordination Clause, Laws of Utah 2021, Chapter 246
45          77-18-108, as enacted by Laws of Utah 2021, Chapter 260 and last amended by
46     Coordination Clause, Laws of Utah 2021, Chapter 260
47          77-18-109, as enacted by Laws of Utah 2021, Chapter 260
48          77-27-11, as last amended by Laws of Utah 2021, Chapter 260
49     

50     Be it enacted by the Legislature of the state of Utah:
51          Section 1. Section 17-22-5.5 is amended to read:
52          17-22-5.5. Sheriff's classification of jail facilities -- Maximum operating capacity
53     of jail facilities -- Transfer or release of prisoners -- Limitation -- Records regarding
54     release.
55          (1) (a) Except as provided in Subsection (4), a county sheriff shall determine:
56          (i) subject to Subsection (1)(b), the classification of each jail facility or section of a jail
57     facility under the sheriff's control;
58          (ii) the nature of each program conducted at a jail facility under the sheriff's control;
59     and
60          (iii) the internal operation of a jail facility under the sheriff's control.
61          (b) A classification under Subsection (1)(a)(i) of a jail facility may not violate any
62     applicable zoning ordinance or conditional use permit of the county or municipality.
63          (2) Except as provided in Subsection (4), each county sheriff shall:
64          (a) with the approval of the county legislative body, establish a maximum operating
65     capacity for each jail facility under the sheriff's control, based on facility design and staffing;
66     and
67          (b) upon a jail facility reaching the jail facility's maximum operating capacity:
68          (i) transfer prisoners to another appropriate facility:
69          (A) under the sheriff's control; or
70          (B) available to the sheriff by contract;
71          (ii) release prisoners:
72          (A) to a supervised release program, according to release criteria established by the
73     sheriff; or
74          (B) to another alternative incarceration program developed by the sheriff; or
75          (iii) admit prisoners in accordance with law and a uniform admissions policy imposed
76     equally upon all entities using the county jail.
77          (3) (a) The sheriff shall keep records of the release status and the type of release
78     program or alternative incarceration program for any prisoner released under Subsection
79     (2)(b)(ii).
80          (b) The sheriff shall make these records available upon request to the Department of
81     Corrections, the Judiciary, and the Commission on Criminal and Juvenile Justice.
82          (4) This section may not be construed to authorize a sheriff to modify provisions of a
83     contract with the Department of Corrections to house in a county jail an individual sentenced to
84     the Department of Corrections.
85          (5) Regardless of whether a jail facility has reached the jail facility's maximum
86     operating capacity under Subsection (2), a sheriff may release an individual from a jail facility
87     in accordance with Section 77-20-203 or 77-20-204.
88          (6) (a) Subject to Subsection (6)(c), a jail facility shall detain an individual for up to 24
89     hours from booking if:
90          (i) the individual is on supervised probation or parole and that information is
91     reasonably available; and
92          (ii) the individual was arrested for:
93          (A) a violent felony as defined in Section 76-3-203.5; or
94          (B) a qualifying domestic violence offense as defined in Subsection 77-36-1.1(4) that
95     is not a criminal mischief offense.
96          (b) The jail facility shall notify the entity supervising the individual's probation or
97     parole that the individual is being detained.
98          (c) (i) The jail facility shall release the individual:
99          (A) to the Department of Corrections if the Department of Corrections supervises the
100     individual and requests the individual's release; or
101          (B) if a court or magistrate orders release.
102          (ii) Nothing in this Subsection (6) prohibits a jail facility from holding the individual in
103     accordance with Title 77, Chapter 20, Bail, for new criminal conduct.
104          Section 2. Section 58-50-9 is amended to read:
105          58-50-9. Standards of conduct for private probation providers -- Contracts --
106     Reports.
107          (1) The private probation provider:
108          [(1)] (a) shall maintain impartiality toward all parties;
109          [(2)] (b) shall ensure that all parties understand the nature of the process, the
110     procedure, the particular role of the private probation provider, and the parties' relationship to
111     the private probation provider;
112          [(3)] (c) shall maintain confidentiality or, in cases where confidentiality is not
113     protected, the private probation provider shall so advise the parties;
114          [(4)] (d) shall disclose any circumstance that may create or give the appearance of a
115     conflict of interest and any circumstance that may reasonably raise a question as to the private
116     probation provider's impartiality; if the contract probation supervisor perceives or believes a
117     conflict of interest to exist, the contract probation supervisor shall refrain from entering into
118     those probation services;
119          [(5)] (e) shall adhere to the standards regarding private probation services adopted by
120     the licensing board;
121          [(6)] (f) shall comply with orders of court and perform services as directed by judges in
122     individual cases; [and]
123          [(7)] (g) shall perform duties established under Section 77-18-105, as ordered by the
124     court[.];
125          (h) beginning July 1, 2022, may not provide private probation in a county where an
126     agency of local government provides probation services unless the private probation provider
127     has entered into a contract with the agency of local government; and
128          (i) shall provide a report each month to each county sheriff where the private probation
129     provider provides private probation identifying:
130          (i) each individual currently supervised in the county by the private probation provider;
131          (ii) the crimes each individual supervised committed;
132          (iii) the level of supervision that is being provided for each individual; and
133          (iv) any other information related to the provision of private probation that the county
134     sheriff determines is relevant.
135          (2) A contract described in Subsection (1)(h) shall include a description of the fees the
136     private probation provider will charge a defendant who is supervised by the private probation
137     provider.
138          Section 3. Section 63M-7-404 is amended to read:
139          63M-7-404. Purpose -- Duties.
140          (1) The purpose of the commission is to develop guidelines and propose
141     recommendations to the Legislature, the governor, and the Judicial Council regarding:
142          (a) the sentencing and release of juvenile and adult offenders in order to:
143          (i) respond to public comment;
144          (ii) relate sentencing practices and correctional resources;
145          (iii) increase equity in criminal sentencing;
146          (iv) better define responsibility in criminal sentencing; and
147          (v) enhance the discretion of sentencing judges while preserving the role of the Board
148     of Pardons and Parole and the Youth Parole Authority;
149          (b) the length of supervision of adult offenders on probation or parole in order to:
150          (i) increase equity in criminal supervision lengths;
151          (ii) respond to public comment;
152          (iii) relate the length of supervision to an offender's progress;
153          (iv) take into account an offender's risk of offending again;
154          (v) relate the length of supervision to the amount of time an offender has remained
155     under supervision in the community; and
156          (vi) enhance the discretion of the sentencing judges while preserving the role of the
157     Board of Pardons and Parole;
158          (c) appropriate, evidence-based probation and parole supervision policies and services
159     that assist individuals in successfully completing supervision and reduce incarceration rates
160     from community supervision programs while ensuring public safety, including:
161          (i) treatment and intervention completion determinations based on individualized case
162     action plans;
163          (ii) measured and consistent processes for addressing violations of conditions of
164     supervision;
165          (iii) processes that include using positive reinforcement to recognize an individual's
166     progress in supervision;
167          (iv) engaging with social services agencies and other stakeholders who provide
168     services that meet offender needs; and
169          (v) identifying community violations that may not warrant revocation of probation or
170     parole.
171          (2) (a) The commission shall modify the sentencing guidelines and supervision length
172     guidelines for adult offenders to implement the recommendations of the Commission on
173     Criminal and Juvenile Justice for reducing recidivism.
174          (b) The modifications under Subsection (2)(a) shall be for the purposes of protecting
175     the public and ensuring efficient use of state funds.
176          (3) (a) The commission shall modify the criminal history score in the sentencing
177     guidelines for adult offenders to implement the recommendations of the Commission on
178     Criminal and Juvenile Justice for reducing recidivism.
179          (b) The modifications to the criminal history score under Subsection (3)(a) shall
180     include factors in an offender's criminal history that are relevant to the accurate determination
181     of an individual's risk of offending again.
182          (4) (a) The commission shall establish sentencing guidelines for periods of
183     incarceration for individuals who are on probation and:
184          (i) who have violated one or more conditions of probation; and
185          (ii) whose probation has been revoked by the court.
186          (b) [The guidelines shall consider] For a situation described in Subsection (4)(a), the
187     guidelines shall recommend that a court consider:
188          (i) the seriousness of [the] any violation of the [conditions] condition of probation[,];
189          (ii) the probationer's conduct while on probation[,]; and
190          (iii) the probationer's criminal history.
191          (5) (a) The commission shall establish sentencing guidelines for periods of
192     incarceration for individuals who are on parole and:
193          (i) who have violated a condition of parole; and
194          (ii) whose parole has been revoked by the Board of Pardons and Parole.
195          (b) [The guidelines shall consider] For a situation described in Subsection (5)(a), the
196     guidelines shall recommend that the Board of Pardons and Parole consider:
197          (i) the seriousness of [the] any violation of the [conditions] condition of parole[,];
198          (ii) the individual's conduct while on parole[,]; and
199          (iii) the individual's criminal history.
200          (6) The commission shall establish graduated and evidence-based processes to
201     facilitate the prompt and effective response to an individual's progress in or violation of the
202     terms of probation or parole by the adult probation and parole section of the Department of
203     Corrections, or other supervision services provider, [in order] to implement the
204     recommendations of the Commission on Criminal and Juvenile Justice for reducing recidivism
205     and incarceration, including:
206          (a) responses to be used when an individual violates a condition of probation or parole;
207          (b) responses to recognize positive behavior and progress related to an individual's case
208     action plan;
209          (c) when a violation of a condition of probation or parole should be reported to the
210     court or the Board of Pardons and Parole; and
211          (d) a range of sanctions that may not exceed a period of incarceration of more than:
212          (i) three consecutive days; and
213          (ii) a total of five days in a period of 30 days.
214          (7) The commission shall establish graduated incentives to facilitate a prompt and
215     effective response by the adult probation and parole section of the Department of Corrections
216     to an offender's:
217          (a) compliance with the terms of probation or parole; and
218          (b) positive conduct that exceeds those terms.
219          (8) (a) The commission shall establish guidelines, including sanctions and incentives,
220     to appropriately respond to negative and positive behavior of juveniles who are:
221          (i) nonjudicially adjusted;
222          (ii) placed on diversion;
223          (iii) placed on probation;
224          (iv) placed on community supervision;
225          (v) placed in an out-of-home placement; or
226          (vi) placed in a secure care facility.
227          (b) In establishing guidelines under this Subsection (8), the commission shall consider:
228          (i) the seriousness of the negative and positive behavior;
229          (ii) the juvenile's conduct post-adjudication; and
230          (iii) the delinquency history of the juvenile.
231          (c) The guidelines shall include:
232          (i) responses that are swift and certain;
233          (ii) a continuum of community-based options for juveniles living at home;
234          (iii) responses that target the individual's criminogenic risk and needs; and
235          (iv) incentives for compliance, including earned discharge credits.
236          (9) The commission shall establish and maintain supervision length guidelines in
237     accordance with this section [before October 1, 2018].
238          Section 4. Section 64-13-14.7 is amended to read:
239          64-13-14.7. Victim notification of offender's release.
240          (1) As used in this section:
241          (a) "Offender" means a person who committed an act of criminally injurious conduct
242     against the victim and has been sentenced to incarceration in the custody of the department.
243          (b) "Victim" means a person against whom an offender committed criminally injurious
244     conduct as defined in Section 63M-7-502, and who is entitled to notice of hearings regarding
245     the offender's parole under Section 77-27-9.5. "Victim" includes the legal guardian of a victim,
246     or the representative of the family of a victim who is deceased.
247          (2) (a) (i) [A] Upon submitting a signed written request of notification to the
248     Department of Corrections, a victim shall be notified of an offender's release under Sections
249     64-13-14.5 and 64-13-14.7, or any other release to or from a half-way house, to a program
250     outside of the prison such as a rehabilitation program, state hospital, community center other
251     than a release on parole, commutation or termination for which notice is provided under
252     Sections 77-27-9.5 and 77-27-9.7, transfer of the offender to an out-of-state facility, [or] an
253     offender's escape, [upon submitting a signed written request of notification to the Department
254     of Corrections] or an offender's termination from probation or parole.
255          (ii) The request shall include a current mailing address and may include current
256     telephone numbers if the victim chooses.
257          (iii) The notice for an offender's termination from probation or parole shall notify the
258     victim that the victim may petition the court for the appropriate continuous protective order
259     under Subsection 78B-7-804(5) or 78B-7-805(5).
260          (b) (i) [The] Subject to Subsection (3)(b)(ii), the department shall advise the victim of
261     an offender's release or escape under Subsection (2)(a), in writing.
262          (ii) [However, if] If written notice is not feasible because the release is immediate or
263     the offender escapes, the department shall make a reasonable attempt to notify the victim by
264     telephone if the victim has provided a telephone number under Subsection (2)(a) and shall
265     follow up with a written notice.
266          (3) (a) Notice of victim rights under this section shall be provided to the victim in the
267     notice of hearings regarding parole under Section 77-27-9.5.
268          (b) The department shall coordinate with the Board of Pardons and Parole to ensure the
269     notice is implemented.
270          (4) A victim's request for notification under this section and any notification to a victim
271     under this section is private information that the department may not release:
272          (a) to the offender under any circumstances; or
273          (b) to any other party without the written consent of the victim.
274          (5) The department may make rules as necessary to implement this section.
275          (6) The department or its employees acting within the scope of their employment are
276     not civilly or criminally liable for failure to provide notice or improper notice under this section
277     unless the failure or impropriety is willful or grossly negligent.
278          Section 5. Section 64-13-29 is amended to read:
279          64-13-29. Violation of parole or probation -- Detention -- Hearing.
280          (1) (a) The department or local law enforcement agency shall ensure that the court is
281     notified of violations of the terms and conditions of probation in the case of probationers under
282     the supervision of the department, the local law enforcement agency, or the Board of Pardons
283     and Parole in the case of parolees under the department's supervision when:
284          (i) a sanction of incarceration is recommended; [or]
285          (ii) the department or local law enforcement agency determines that a graduated and
286     evidence-based response is not an appropriate response to the offender's violation and
287     recommends revocation of probation or parole[.]; or
288          (iii) there is probable cause that the conduct that led to a violation of parole or
289     probation is:
290          (A) a violent felony as defined in Section 76-3-203.5; or
291          (B) a qualifying domestic violence offense as defined in Subsection 77-36-1.1(4) that
292     is not a criminal mischief offense.
293          (b) In cases where the department desires to detain an offender alleged to have violated
294     his parole or probation and where it is unlikely that the Board of Pardons and Parole or court
295     will conduct a hearing within a reasonable time to determine if the offender has violated his
296     conditions of parole or probation, the department shall hold an administrative hearing within a
297     reasonable time, unless the hearing is waived by the parolee or probationer, to determine if
298     there is probable cause to believe that a violation has occurred.
299          (c) If there is a conviction for a crime based on the same charges as the probation or
300     parole violation, or a finding by a federal or state court that there is probable cause to believe
301     that an offender has committed a crime based on the same charges as the probation or parole
302     violation, the department need not hold an administrative hearing.
303          (2) The appropriate officer or officers of the department shall, as soon as practical
304     following the department's administrative hearing, report to the court or the Board of Pardons
305     and Parole, furnishing a summary of the hearing, and may make recommendations regarding
306     the disposition to be made of the parolee or probationer.
307          (3) (a) Pending any proceeding under this section for a violation of probation or parole,
308     the department:
309          (i) except as provided in Subsection (3)(b), may take custody of and detain the parolee
310     or probationer [involved] who committed the violation for a period not to exceed 72 hours
311     excluding weekends and holidays[.]; and
312          (ii) if the department or the department's agent has probable cause that the conduct that
313     led to the violation is an offense described in Subsection (1)(a)(iii), shall take custody of and
314     detain the parolee or probationer who committed the violation for a period not to exceed 72
315     hours excluding weekends and holidays.
316          (b) The 72-hour period described in this Subsection (3) is reduced by the amount of
317     time a probationer or parolee is detained under Subsection 17-22-5.5(6).
318          (4) In cases where probationers are supervised by a local law enforcement agency, the
319     agency may take custody of and detain the probationer involved for a period not to exceed 72
320     hours excluding weekends and holidays if:
321          (a) the probationer commits a major violation or repeated violations of probation;
322          (b) it is unlikely that the court will conduct a hearing within a reasonable time to
323     determine if the offender has violated the conditions of probation; and
324          (c) the law enforcement agency conducts an administrative hearing within a reasonable
325     time to determine if there is probable cause to believe the offender has violated the conditions
326     of probation, unless the hearing is waived by the probationer.
327          (5) If the requirements for Subsection (4) are met, the local law enforcement agency
328     shall ensure the proper court is notified.
329          (6) If the hearing officer determines that there is probable cause to believe that the
330     offender has violated the conditions of the offender's parole or probation, the department may
331     detain the offender for a reasonable period of time after the hearing or waiver, as necessary to
332     arrange for the incarceration of the offender. A written order of the department is sufficient
333     authorization for any peace officer to incarcerate the offender. The department may promulgate
334     rules for the implementation of this section.
335          (7) A written order from the local law enforcement agency is sufficient authorization
336     for any peace officer to incarcerate the offender if:
337          (a) the probationers are supervised by a local law enforcement agency; and
338          (b) the appropriate officer or officers determine that there is probable cause to believe
339     that the offender has violated the conditions of probation.
340          (8) If a probationer supervised by a local law enforcement agency commits a violation
341     outside of the jurisdiction of the supervising agency, the arresting agency is not required to
342     hold or transport the probationer for the supervising agency.
343          Section 6. Section 77-18-103 is amended to read:
344          77-18-103. Presentence investigation report -- Classification of presentence
345     investigation report -- Evidence or other information at sentencing.
346          (1) Before the imposition of a sentence, the court may:
347          (a) upon agreement of the defendant, continue the date for the imposition of the
348     sentence for a reasonable period of time for the purpose of obtaining a presentence
349     investigation report from the department [or information from other sources], a law
350     enforcement agency, or Ŝ→ information from ←Ŝ any other source about the defendant; and
351          (b) if the defendant is convicted of a felony or a class A misdemeanor, request that the
352     department or a law enforcement agency prepare a presentence investigation report for the
353     defendant.
354          (2) If a presentence investigation report is required under the standards established by
355     the department described in Section 77-18-109, the presentence investigation report under
356     Subsection (1) shall include:
357          (a) any impact statement provided by a victim as described in Subsection
358     77-38b-203(3)(c);
359          (b) information on restitution as described in [Subsection] Subsections
360     77-38b-203(3)(a) and (b);
361          (c) findings from any screening and any assessment of the defendant conducted under
362     Section 77-18-104;
363          (d) recommendations for treatment for the defendant; and
364          (e) the number of days since the commission of the offense that the defendant has spent
365     in the custody of the jail and the number of days, if any, the defendant was released to a
366     supervised release program or an alternative incarceration program under Section 17-22-5.5.
367          (3) The department or law enforcement agency shall provide the presentence
368     investigation report to the defendant's attorney, or the defendant if the defendant is not
369     represented by counsel, the prosecuting attorney, and the court for review within three working
370     days before the day on which the defendant is sentenced.
371          (4) (a) (i) If there is an alleged inaccuracy in the presentence investigation report that is
372     not resolved by the parties and the department or law enforcement agency before sentencing:
373          (A) the alleged inaccuracy shall be brought to the attention of the court at sentencing;
374     and
375          (B) the court may grant an additional 10 working days after the day on which the
376     alleged inaccuracy is brought to the court's attention to allow the parties and the department to
377     resolve the alleged inaccuracy in the presentence investigation report.
378          (ii) If the court does not grant additional time under Subsection (4)(a)(i)(B), or the
379     alleged inaccuracy cannot be resolved after 10 working days, and if the court finds that there is
380     an inaccuracy in the presentence investigation report, the court shall:
381          (A) enter a written finding as to the relevance and accuracy of the challenged portion of
382     the presentence investigation report; and
383          (B) provide the written finding to the Division of Adult Probation and Parole or the
384     law enforcement agency.
385          (b) The Division of Adult Probation and Parole shall attach the written finding to the
386     presentence investigation report as an addendum.
387          (c) If a party fails to challenge the accuracy of the presentence investigation report at
388     the time of sentencing, the matter shall be considered waived.
389          (5) The contents of the presentence investigation report are protected and not available
390     except by court order for purposes of sentencing as provided by rule of the Judicial Council or
391     for use by the department or law enforcement agency.
392          (6) (a) A presentence investigation report is classified as protected in accordance with
393     Title 63G, Chapter 2, Government Records Access and Management Act.
394          (b) Notwithstanding Sections 63G-2-403 and 63G-2-404, the State Records Committee
395     may not order the disclosure of a presentence investigation report.
396          (7) Except for disclosure at the time of sentencing in accordance with this section, the
397     department or law enforcement agency may disclose a presentence investigation only when:
398          (a) ordered by the court in accordance with Subsection 63G-2-202(7);
399          (b) requested by a law enforcement agency or other agency approved by the department
400     for purposes of supervision, confinement, and treatment of a defendant;
401          (c) requested by the board;
402          (d) requested by the subject of the presentence investigation report or the subject's
403     authorized representative;
404          (e) requested by the victim of the offense discussed in the presentence investigation
405     report, or the victim's authorized representative, if the disclosure is only information relating
406     to:
407          (i) statements or materials provided by the victim;
408          (ii) the circumstances of the offense, including statements by the defendant; or
409          (iii) the impact of the offense on the victim or the victim's household; or
410          (f) requested by a sex offender treatment provider:
411          (i) who is certified to provide treatment under the certification program established in
412     Subsection 64-13-25(3);
413          (ii) who is providing, at the time of the request, sex offender treatment to the offender
414     who is the subject of the presentence investigation report; and
415          (iii) who provides written assurance to the department that the report:
416          (A) is necessary for the treatment of the defendant;
417          (B) will be used solely for the treatment of the defendant; and
418          (C) will not be disclosed to an individual or entity other than the defendant.
419          (8) (a) At the time of sentence, the court shall receive any testimony, evidence, or
420     information that the defendant or the prosecuting attorney desires to present concerning the
421     appropriate sentence.
422          (b) Testimony, evidence, or information under Subsection (8)(a) shall be presented in
423     open court on record and in the presence of the defendant.
424          Section 7. Section 77-18-105 is amended to read:
425          77-18-105. Pleas held in abeyance -- Suspension of a sentence -- Probation --
426     Supervision -- Terms and conditions of probation -- Time periods for probation -- Bench
427     supervision for payments on criminal accounts receivable.
428          (1) If a defendant enters a plea of guilty or no contest in conjunction with a plea in
429     abeyance agreement, the court may hold the plea in abeyance:
430          (a) in accordance with Chapter 2a, Pleas in Abeyance; and
431          (b) under the terms of the plea in abeyance agreement.
432          (2) If a defendant is convicted, the court:
433          (a) shall impose a sentence in accordance with Section 76-3-201; and
434          (b) subject to Subsection (5), may suspend the execution of the sentence and place the
435     defendant:
436          (i) on supervised probation under the supervision of the department[, except as
437     provided in Subsection (5)];
438          (ii) on probation under the supervision of an agency of a local government or a private
439     organization; or
440          (iii) on court probation under the jurisdiction of the sentencing court.
441          (3) (a) The legal custody of all probationers under the supervision of the department is
442     with the department.
443          (b) The legal custody of all probationers under the jurisdiction of the sentencing court
444     is vested as ordered by the court.
445          (c) The court has continuing jurisdiction over all probationers.
446          (4) (a) Court probation may include an administrative level of services, including
447     notification to the sentencing court of scheduled periodic reviews of the probationer's
448     compliance with conditions.
449          (b) Supervised probation services provided by the department, an agency of a local
450     government, or a private organization shall specifically address the defendant's risk of
451     reoffending as identified by a screening or an assessment.
452          [(5) A court may not order the department to supervise the probation of an individual
453     who is convicted of a class B or C misdemeanor or an infraction.]
454          (5) (a) Before ordering supervised probation, the court shall consider the supervision
455     costs to the defendant for each entity that can supervise the defendant.
456          (b) (i) A court may order an agency of a local government to supervise the probation
457     for an individual convicted of any crime.
458          (ii) A court may only order:
459          (A) the department to supervise the probation for an individual convicted of a class A
460     misdemeanor or any felony; or
461          (B) a private organization to supervise the probation for an individual convicted of a
462     class Ŝ→ [B or C] A, B, or C ←Ŝ misdemeanor or an infraction.
463          (6) (a) If a defendant is placed on probation, the court may order the defendant as a
464     condition of the defendant's probation:
465          (i) to provide for the support of persons for whose support the defendant is legally
466     liable;
467          (ii) to participate in available treatment programs, including any treatment program in
468     which the defendant is currently participating if the program is acceptable to the court;
469          (iii) be voluntarily admitted to the custody of the Division of Substance Abuse and
470     Mental Health for treatment at the Utah State Hospital in accordance with Section 77-18-106;
471          (iv) if the defendant is on probation for a felony offense, to serve a period of time as an
472     initial condition of probation that does not exceed one year in a county jail designated by the
473     department, after considering any recommendation by the court as to which jail the court finds
474     most appropriate;
475          (v) to serve a term of home confinement in accordance with Section 77-18-107;
476          (vi) to participate in compensatory service programs, including the compensatory
477     service program described in Section 76-6-107.1;
478          (vii) to pay for the costs of investigation, probation, or treatment services;
479          (viii) to pay a criminal accounts receivable established for the defendant under Section
480     77-32b-103; or
481          (ix) to comply with other terms and conditions the court considers appropriate to
482     ensure public safety or increase a defendant's likelihood of success on probation.
483          (b) (i) Notwithstanding Subsection (6)(a)(iv), the court may modify the probation of a
484     defendant to include a period of time that is served in a county jail immediately before the
485     termination of probation as long as that period of time does not exceed one year.
486          (ii) If a defendant is ordered to serve time in a county jail as a sanction for a probation
487     violation, the one-year limitation described in Subsection (6)(a)(iv) or (6)(b)(i) does not apply
488     to the period of time that the court orders the defendant to serve in a county jail under this
489     Subsection (6)(b)(ii).
490          (7) (a) Except as provided in Subsection (7)(b), probation of an individual placed on
491     probation after December 31, 2018:
492          (i) may not exceed the individual's maximum sentence;
493          (ii) shall be for a period of time that is in accordance with the supervision length
494     guidelines established by the Utah Sentencing Commission under Section 63M-7-404, to the
495     extent the guidelines are consistent with the requirements of the law; and
496          (iii) shall be terminated in accordance with the supervision length guidelines
497     established by the Utah Sentencing Commission under Section 63M-7-404, to the extent the
498     guidelines are consistent with the requirements of the law.
499          (b) Probation of an individual placed on probation after December 31, 2018, whose
500     maximum sentence is one year or less, may not exceed 36 months.
501          (c) Probation of an individual placed on probation on or after October 1, 2015, but
502     before January 1, 2019, may be terminated at any time at the discretion of the court or upon
503     completion without violation of 36 months probation in felony or class A misdemeanor cases,
504     12 months in cases of class B or C misdemeanors or infractions, or as allowed in accordance
505     with Section 64-13-21 regarding earned credits.
506          (d) This Subsection (7) does not apply to the probation of an individual convicted of an
507     offense for criminal nonsupport under Section 76-7-201.
508          (8) (a) Notwithstanding Subsection (7), if there is an unpaid balance of the criminal
509     accounts receivable for the defendant upon termination of the probation period for the
510     defendant under Subsection (7), the court may require the defendant to continue to make
511     payments towards the criminal accounts receivable in accordance with the payment schedule
512     established by the court under Section 77-32b-103.
513          (b) A court may not require the defendant to make payments as described in Subsection
514     (8)(a) beyond the expiration of the defendant's sentence.
515          (c) If the court requires a defendant to continue to pay in accordance with the payment
516     schedule for the criminal accounts receivable under this Subsection (8) and the defendant
517     defaults on the criminal accounts receivable, the court shall proceed with an order for a civil
518     judgment of restitution and a civil accounts receivable for the defendant as described in Section
519     77-18-114.
520          (d) (i) Upon a motion from the prosecuting attorney, the victim, or upon the court's
521     own motion, the court may require a defendant to show cause as to why the defendant's failure
522     to pay in accordance with the payment schedule should not be treated as contempt of court.
523          (ii) A court may hold a defendant in contempt for failure to make payments for a
524     criminal accounts receivable in accordance with Title 78B, Chapter 6, Part 3, Contempt.
525          (e) This Subsection (8) does not apply to the probation of an individual convicted of an
526     offense for criminal nonsupport under Section 76-7-201.
527          (9) When making any decision regarding probation, the court shall consider
528     information provided by the Department of Corrections regarding a defendant's individual case
529     action plan, including any progress the defendant has made in satisfying the case action plan's
530     completion requirements.
531          Section 8. Section 77-18-108 is amended to read:
532          77-18-108. Termination, revocation, modification, or extension of probation --
533     Violation of probation -- Hearing on violation.
534          (1) (a) The department shall notify the court and the prosecuting attorney, in writing:
535          (i) when the department is requesting termination of supervision for a defendant; or
536          (ii) before a defendant's supervision will be terminated by law.
537          (b) The notification under this Subsection (1) shall include a probation progress report.
538          (c) If a defendant's probation is being terminated, and the defendant's criminal accounts
539     receivable has an unpaid balance or there is any outstanding debt with the department, the
540     department shall notify the Office of State Debt Collection that the defendant's criminal
541     accounts receivable has an unpaid balance or there is an outstanding debt with the department.
542          (2) (a) The court may modify the defendant's probation in accordance with the
543     supervision length guidelines and the graduated and evidence-based responses and graduated
544     incentives developed by the Utah Sentencing Commission under Section 63M-7-404.
545          (b) The court may not:
546          (i) extend the length of a defendant's probation, except upon:
547          (A) waiver of a hearing by the defendant; or
548          (B) a hearing and a finding by the court that the defendant has violated the terms of
549     probation;
550          (ii) revoke a defendant's probation, except upon a hearing and a finding by the court
551     that the terms of probation have been violated; or
552          (iii) terminate a defendant's probation before expiration of the probation period until
553     the court enters a finding of whether the defendant owes restitution under Section 77-38b-205.
554          (3) (a) Upon the filing of an affidavit, or an unsworn written declaration executed in
555     substantial compliance with Title 78B, Chapter 18a, Uniform Unsworn Declarations Act,
556     alleging with particularity facts asserted to constitute violation of the terms of a defendant's
557     probation, the court shall determine if the affidavit or unsworn written declaration establishes
558     probable cause to believe that revocation, modification, or extension of the defendant's
559     probation is justified.
560          (b) (i) If the court determines there is probable cause, the court shall order that the
561     defendant be served with:
562          (A) a warrant for the defendant's arrest or a copy of the affidavit or unsworn written
563     declaration; and
564          (B) an order to show cause as to why the defendant's probation should not be revoked,
565     modified, or extended.
566          (ii) The order under Subsection (3)(b)(i)(B) shall:
567          (A) be served upon the defendant at least five days before the day on which the hearing
568     is held;
569          (B) specify the time and place of the hearing; and
570          (C) inform the defendant of the right to be represented by counsel at the hearing, the
571     right to have counsel appointed if the defendant is indigent, and the right to present evidence at
572     the hearing.
573          (iii) The defendant shall show good cause for a continuance of the hearing.
574          (c) At the hearing, the defendant shall admit or deny the allegations of the affidavit or
575     unsworn written declaration.
576          (d) (i) If the defendant denies the allegations of the affidavit or unsworn written
577     declaration, the prosecuting attorney shall present evidence on the allegations.
578          (ii) If the affidavit, or unsworn written declaration, alleges that a defendant is
579     delinquent, or in default, on a criminal accounts receivable, the prosecuting attorney shall
580     present evidence to establish, by a preponderance of the evidence, that the defendant:
581          (A) was aware of the defendant's obligation to pay the balance of the criminal accounts
582     receivable;
583          (B) failed to pay on the balance of the criminal accounts receivable as ordered by the
584     court; and
585          (C) had the ability to make a payment on the balance of the criminal accounts
586     receivable if the defendant opposes an order to show cause, in writing, and presents evidence
587     that the defendant was unable to make a payment on the balance of the criminal accounts
588     receivable.
589          (e) The persons who have given adverse information on which the allegations are
590     based shall be presented as witnesses subject to questioning by the defendant, unless the court
591     for good cause otherwise orders.
592          (f) At the hearing, the defendant may:
593          (i) call witnesses;
594          (ii) appear and speak in the defendant's own behalf; and
595          (iii) present evidence.
596          (g) (i) After the hearing, the court shall make findings of fact.
597          (ii) Upon a finding that the defendant violated the terms of the defendant's probation,
598     the court may order:
599          (A) the defendant's probation terminated, revoked, modified, continued, or reinstated
600     for all or a portion of the original term of probation[.]; or
601          (B) treatment services that are immediately available in the community for a defendant
602     that needs substance abuse or mental health treatment, as determined by a screening and
603     assessment.
604          (4) (a) (i) Except as provided in Subsection 77-18-105(7), the court may not require a
605     defendant to remain on probation for a period of time that exceeds the length of the defendant's
606     maximum sentence.
607          (ii) Except as provided in Subsection 77-18-105(7), if a defendant's probation is
608     revoked and later reinstated, the total time of all periods of probation that the defendant serves,
609     in relation to the same sentence, may not exceed the defendant's maximum sentence.
610          [(b) If a period of incarceration is imposed for a violation of the defendant's probation,
611     the defendant shall be sentenced within]
612          (b) If the court orders a period of incarceration for a probation violation, the court may:
613          (i) order a period of incarceration that is consistent with the guidelines established by
614     the Utah Sentencing Commission in accordance with Subsection 63M-7-404(4)[, unless the
615     court determines that:];
616          [(i) the defendant needs substance abuse or mental health treatment, as determined by a
617     screening and an assessment, that warrants treatment services that are immediately available in
618     the community; or]
619          (ii) order a period of incarceration that deviates from the guidelines with an
620     explanation for the deviation on the record; or
621          [(ii)] (iii) execute the sentence previously imposed [shall be executed].
622          (c) If the defendant had, before the imposition of a term of incarceration or the
623     execution of the previously imposed sentence under this section, served time in jail as a term of
624     probation or due to a violation of probation, the time that the defendant served in jail
625     constitutes service of time toward the sentence previously imposed.
626          (5) (a) Any time served by a defendant:
627          (i) outside of confinement after having been charged with a probation violation, and
628     before a hearing to revoke probation, does not constitute service of time toward the total
629     probation term, unless the defendant is exonerated at a hearing to revoke the defendant's
630     probation;
631          (ii) in confinement awaiting a hearing or a decision concerning revocation of the
632     defendant's probation does not constitute service of time toward the total probation term, unless
633     the defendant is exonerated at the hearing to revoke probation; or
634          (iii) in confinement awaiting a hearing or a decision concerning revocation of the
635     defendant's probation constitutes service of time toward a term of incarceration imposed as a
636     result of the revocation of probation or a graduated and evidence-based response imposed
637     under the guidelines established by the Utah Sentencing Commission in accordance with
638     Section 63M-7-404.
639          (b) The running of the probation period is tolled upon:
640          (i) the filing of a report with the court alleging a violation of the terms of the
641     defendant's probation; or
642          (ii) the issuance of an order or a warrant under Subsection (3).
643          Section 9. Section 77-18-109 is amended to read:
644          77-18-109. Standards for supervision and presentence investigation.
645          (1) The department shall establish supervision and presentence investigation standards
646     for all individuals referred to the department or supervising law enforcement agency based on:
647          (a) the type of offense;
648          (b) the results of a screening and an assessment;
649          (c) the demand for services;
650          (d) the availability of agency resources;
651          (e) public safety; and
652          (f) other criteria established by the department to determine what level of services shall
653     be provided.
654          (2) The department or supervising law enforcement agency shall submit proposed
655     supervision and presentence investigation standards annually to the Judicial Council and the
656     board for review and comment before the department adopts the standards.
657          (3) The Judicial Council [and the], department, and supervising law enforcement
658     agency shall establish procedures to implement the supervision and presentence investigation
659     standards.
660          (4) The Judicial Council [and the], department, and supervising law enforcement
661     agency shall annually consider modifications to the standards based upon criteria in Subsection
662     (1) and other criteria as the Judicial Council and the department consider appropriate.
663          (5) The Judicial Council and the department shall:
664          (a) annually prepare an impact report; and
665          (b) submit the impact report to the appropriate legislative appropriations
666     subcommittee.
667          Section 10. Section 77-27-11 is amended to read:
668          77-27-11. Revocation of parole.
669          (1) The board may revoke the parole of any individual who is found to have violated
670     any condition of the individual's parole.
671          (2) (a) If a parolee is confined by the department or any law enforcement official for a
672     suspected violation of parole, the department:
673          (i) shall immediately report the alleged violation to the board, by means of an incident
674     report; and
675          (ii) make any recommendation regarding the incident.
676          (b) A parolee may not be held for a period longer than 72 hours, excluding weekends
677     and holidays, without first obtaining a warrant.
678          (3) Any member of the board may:
679          (a) issue a warrant based upon a certified warrant request to a peace officer or other
680     persons authorized to arrest, detain, and return to actual custody a parolee; and
681          (b) upon arrest of the parolee, determine, or direct the department to determine, if there
682     is probable cause to believe that the parolee has violated the conditions of the parolee's parole.
683          (4) Upon a finding of probable cause, a parolee may be further detained or imprisoned
684     again pending a hearing by the board or the board's appointed examiner.
685          (5) (a) The board or the board's appointed examiner shall conduct a hearing on the
686     alleged violation, and the parolee shall have written notice of the time and location of the
687     hearing, the alleged violation of parole, and a statement of the evidence against the parolee.
688          (b) The board or the board's appointed examiner shall provide the parolee the
689     opportunity:
690          (i) to be present;
691          (ii) to be heard;
692          (iii) to present witnesses and documentary evidence;
693          (iv) to confront and cross-examine adverse witnesses, absent a showing of good cause
694     for not allowing the confrontation; and
695          (v) to be represented by counsel when the parolee is mentally incompetent or pleading
696     not guilty.
697          (c) (i) If heard by an appointed examiner, the examiner shall make a written decision
698     which shall include a statement of the facts relied upon by the examiner in determining the
699     guilt or innocence of the parolee on the alleged violation and a conclusion as to whether the
700     alleged violation occurred.
701          (ii) The appointed examiner shall then refer the case to the board for disposition.
702          (d) (i) A final decision shall be reached by a majority vote of the sitting members of the
703     board.
704          (ii) A parolee shall be promptly notified in writing of the board's findings and decision.
705          (6) (a) If a parolee is found to have violated the terms of parole, the board, at the
706     board's discretion, may:
707          (i) return the parolee to parole;
708          (ii) modify the payment schedule for the parolee's criminal accounts receivable in
709     accordance with Section 77-32b-105;
710          (iii) order the parolee to pay pecuniary damages that are proximately caused by a
711     defendant's violation of the terms of the defendant's parole;
712          (iv) order the parolee to be imprisoned, but not to exceed the maximum term of
713     imprisonment for the parolee's sentence; or
714          (v) order any other conditions for the parolee.
715          (b) If the board returns the parolee to parole, the length of parole may not be for a
716     period of time that exceeds the length of the parolee's maximum sentence.
717          (c) If the board revokes parole for a violation and orders incarceration, the board [shall
718     impose a period of incarceration] may impose a period of incarceration:
719          (i) consistent with the guidelines under Subsection 63M-7-404(5)[.]; or
720          (ii) subject to Subsection (6)(a)(iv), impose a period of incarceration that differs from
721     the guidelines.
722          (d) The following periods of time constitute service of time toward the period of
723     incarceration imposed under Subsection (6)(c):
724          (i) time served in jail by a parolee awaiting a hearing or decision concerning revocation
725     of parole; and
726          (ii) time served in jail by a parolee due to a violation of parole under Subsection
727     64-13-6(2).