Chief Sponsor: Brady Brammer

Senate Sponsor: Michael K. McKell

6     Cosponsor:
7     Travis M. Seegmiller


10     General Description:
11          This bill concerns penalties and evidence relating to property and financial offenses.
12     Highlighted Provisions:
13          This bill:
14          ▸     defines terms;
15          ▸     requires the Sentencing Commission to create and publish for public comment
16     guidelines relating to certain financial and property offenses;
17          ▸     increases the penalty for a violation of a written false statement on a financial
18     declaration completed by a defendant;
19          ▸     provides that a prosecuting attorney may subpoena certain information regarding
20     property that may be necessary to satisfy a future restitution order, and that a court
21     may consider this information when establishing a defendant's payment schedule on
22     a criminal accounts receivable; and
23          ▸     makes technical and conforming changes.
24     Money Appropriated in this Bill:
25          None
26     Other Special Clauses:
27          None

28     Utah Code Sections Affected:
29     AMENDS:
30          63G-12-402, as last amended by Laws of Utah 2021, Chapter 402
31          63M-7-404, as last amended by Laws of Utah 2021, Chapter 173
32          76-8-504, as enacted by Laws of Utah 1973, Chapter 196
33          77-32b-103, as enacted by Laws of Utah 2021, Chapter 260
34          77-38b-204, as renumbered and amended by Laws of Utah 2021, Chapter 260
35          77-38b-402, as renumbered and amended by Laws of Utah 2021, Chapter 260

37     Be it enacted by the Legislature of the state of Utah:
38          Section 1. Section 63G-12-402 is amended to read:
39          63G-12-402. Receipt of state, local, or federal public benefits -- Verification --
40     Exceptions -- Fraudulently obtaining benefits -- Criminal penalties -- Annual report.
41          (1) (a) Except as provided in Subsection (3) or when exempted by federal law, an
42     agency or political subdivision of the state shall verify the lawful presence in the United States
43     of an individual at least 18 years [of age] old who applies for:
44          (i) a state or local public benefit as defined in 8 U.S.C. Sec. 1621; or
45          (ii) a federal public benefit as defined in 8 U.S.C. Sec. 1611, that is administered by an
46     agency or political subdivision of this state.
47          (b) For purpose of a license issued under Title 58, Chapter 55, Utah Construction
48     Trades Licensing Act, to an applicant that is an unincorporated entity, the Department of
49     Commerce shall verify in accordance with this Subsection (1) the lawful presence in the United
50     States of each individual who:
51          (i) owns an interest in the contractor that is an unincorporated entity; and
52          (ii) engages, or will engage, in a construction trade in Utah as an owner of the
53     contractor described in Subsection (1)(b)(i).
54          (2) This section shall be enforced without regard to race, religion, gender, ethnicity, or

55     national origin.
56          (3) Verification of lawful presence under this section is not required for:
57          (a) any purpose for which lawful presence in the United States is not restricted by law,
58     ordinance, or regulation;
59          (b) assistance for health care items and services that:
60          (i) are necessary for the treatment of an emergency medical condition, as defined in 42
61     U.S.C. Sec. 1396b(v)(3), of the individual involved; and
62          (ii) are not related to an organ transplant procedure;
63          (c) short-term, noncash, in-kind emergency disaster relief;
64          (d) public health assistance for immunizations with respect to immunizable diseases
65     and for testing and treatment of symptoms of communicable diseases whether or not the
66     symptoms are caused by the communicable disease;
67          (e) programs, services, or assistance such as soup kitchens, crisis counseling and
68     intervention, and short-term shelter, specified by the United States Attorney General, in the
69     sole and unreviewable discretion of the United States Attorney General after consultation with
70     appropriate federal agencies and departments, that:
71          (i) deliver in-kind services at the community level, including through public or private
72     nonprofit agencies;
73          (ii) do not condition the provision of assistance, the amount of assistance provided, or
74     the cost of assistance provided on the income or resources of the individual recipient; and
75          (iii) are necessary for the protection of life or safety;
76          (f) the exemption for paying the nonresident portion of total tuition as set forth in
77     Section 53B-8-106;
78          (g) an applicant for a license under Section 61-1-4, if the applicant:
79          (i) is registered with the Financial Industry Regulatory Authority; and
80          (ii) files an application with the state Division of Securities through the Central
81     Registration Depository;

82          (h) a state public benefit to be given to an individual under Title 49, Utah State
83     Retirement and Insurance Benefit Act;
84          (i) a home loan that will be insured, guaranteed, or purchased by:
85          (i) the Federal Housing Administration, the Veterans Administration, or any other
86     federal agency; or
87          (ii) an enterprise as defined in 12 U.S.C. Sec. 4502;
88          (j) a subordinate loan or a grant that will be made to an applicant in connection with a
89     home loan that does not require verification under Subsection (3)(i);
90          (k) an applicant for a license issued by the Department of Commerce or individual
91     described in Subsection (1)(b), if the applicant or individual provides the Department of
92     Commerce:
93          (i) certification, under penalty of perjury, that the applicant or individual is:
94          (A) a United States citizen;
95          (B) a qualified alien as defined in 8 U.S.C. Sec. 1641; or
96          (C) lawfully present in the United States; and
97          (ii) (A) the number assigned to a driver license or identification card issued under Title
98     53, Chapter 3, Uniform Driver License Act; or
99          (B) the number assigned to a driver license or identification card issued by a state other
100     than Utah if, as part of issuing the driver license or identification card, the state verifies an
101     individual's lawful presence in the United States; and
102          (l) an applicant for:
103          (i) an Opportunity scholarship described in Title 53B, Chapter 8, Part 2, Regents'
104     Scholarship Program;
105          (ii) a New Century scholarship described in Section 53B-8-105;
106          (iii) a promise scholarship described in Section 53B-8-303; or
107          (iv) a scholarship:
108          (A) for an individual who is a graduate of a high school located within Utah; and

109          (B) administered by an institution of higher education as defined in Section 53B-2-101.
110          (4) (a) An agency or political subdivision required to verify the lawful presence in the
111     United States of an applicant under this section shall require the applicant to certify under
112     penalty of perjury that:
113          (i) the applicant is a United States citizen; or
114          (ii) the applicant is:
115          (A) a qualified alien as defined in 8 U.S.C. Sec. 1641; and
116          (B) lawfully present in the United States.
117          (b) The certificate required under this Subsection (4) shall include a statement advising
118     the signer that providing false information subjects the signer to penalties for perjury.
119          (5) An agency or political subdivision shall verify a certification required under
120     Subsection (4)(a)(ii) through the federal SAVE program.
121          (6) (a) An individual who knowingly and willfully makes a false, fictitious, or
122     fraudulent statement or representation in a certification under Subsection (3)(k) or (4) is subject
123     to the criminal penalties applicable in this state for:
124          (i) making a written false statement under [Subsection 76-8-504(2)] Section 76-8-504;
125     and
126          (ii) fraudulently obtaining:
127          (A) public assistance program benefits under Sections 76-8-1205 and 76-8-1206; or
128          (B) unemployment compensation under Section 76-8-1301.
129          (b) If the certification constitutes a false claim of United States citizenship under 18
130     U.S.C. Sec. 911, the agency or political subdivision shall file a complaint with the United
131     States Attorney General for the applicable district based upon the venue in which the
132     application was made.
133          (c) If an agency or political subdivision receives verification that a person making an
134     application for a benefit, service, or license is not a qualified alien, the agency or political
135     subdivision shall provide the information to the Office of the Attorney General unless

136     prohibited by federal mandate.
137          (7) An agency or political subdivision may adopt variations to the requirements of this
138     section that:
139          (a) clearly improve the efficiency of or reduce delay in the verification process; or
140          (b) provide for adjudication of unique individual circumstances where the verification
141     procedures in this section would impose an unusual hardship on a legal resident of Utah.
142          (8) It is unlawful for an agency or a political subdivision of this state to provide a state,
143     local, or federal benefit, as defined in 8 U.S.C. Sec. 1611 and 1621, in violation of this section.
144          (9) A state agency or department that administers a program of state or local public
145     benefits shall:
146          (a) provide an annual report to the governor, the president of the Senate, and the
147     speaker of the House regarding its compliance with this section; and
148          (b) (i) monitor the federal SAVE program for application verification errors and
149     significant delays;
150          (ii) provide an annual report on the errors and delays to ensure that the application of
151     the federal SAVE program is not erroneously denying a state or local benefit to a legal resident
152     of the state; and
153          (iii) report delays and errors in the federal SAVE program to the United States
154     Department of Homeland Security.
155          Section 2. Section 63M-7-404 is amended to read:
156          63M-7-404. Purpose -- Duties.
157          (1) The purpose of the commission is to develop guidelines and propose
158     recommendations to the Legislature, the governor, and the Judicial Council regarding:
159          (a) the sentencing and release of juvenile and adult offenders in order to:
160          (i) respond to public comment;
161          (ii) relate sentencing practices and correctional resources;
162          (iii) increase equity in criminal sentencing;

163          (iv) better define responsibility in criminal sentencing; and
164          (v) enhance the discretion of sentencing judges while preserving the role of the Board
165     of Pardons and Parole and the Youth Parole Authority;
166          (b) the length of supervision of adult offenders on probation or parole in order to:
167          (i) increase equity in criminal supervision lengths;
168          (ii) respond to public comment;
169          (iii) relate the length of supervision to an offender's progress;
170          (iv) take into account an offender's risk of offending again;
171          (v) relate the length of supervision to the amount of time an offender has remained
172     under supervision in the community; and
173          (vi) enhance the discretion of the sentencing judges while preserving the role of the
174     Board of Pardons and Parole;
175          (c) appropriate, evidence-based probation and parole supervision policies and services
176     that assist individuals in successfully completing supervision and reduce incarceration rates
177     from community supervision programs while ensuring public safety, including:
178          (i) treatment and intervention completion determinations based on individualized case
179     action plans;
180          (ii) measured and consistent processes for addressing violations of conditions of
181     supervision;
182          (iii) processes that include using positive reinforcement to recognize an individual's
183     progress in supervision;
184          (iv) engaging with social services agencies and other stakeholders who provide
185     services that meet offender needs; and
186          (v) identifying community violations that may not warrant revocation of probation or
187     parole.
188          (2) (a) The commission shall modify the sentencing guidelines and supervision length
189     guidelines for adult offenders to implement the recommendations of the Commission on

190     Criminal and Juvenile Justice for reducing recidivism.
191          (b) The modifications under Subsection (2)(a) shall be for the purposes of protecting
192     the public and ensuring efficient use of state funds.
193          (3) (a) The commission shall modify the criminal history score in the sentencing
194     guidelines for adult offenders to implement the recommendations of the Commission on
195     Criminal and Juvenile Justice for reducing recidivism.
196          (b) The modifications to the criminal history score under Subsection (3)(a) shall
197     include factors in an offender's criminal history that are relevant to the accurate determination
198     of an individual's risk of offending again.
199          (4) (a) The commission shall establish sentencing guidelines for periods of
200     incarceration for individuals who are on probation and:
201          (i) who have violated one or more conditions of probation; and
202          (ii) whose probation has been revoked by the court.
203          (b) The guidelines shall consider the seriousness of the violation of the conditions of
204     probation, the probationer's conduct while on probation, and the probationer's criminal history.
205          (5) (a) The commission shall establish sentencing guidelines for periods of
206     incarceration for individuals who are on parole and:
207          (i) who have violated a condition of parole; and
208          (ii) whose parole has been revoked by the Board of Pardons and Parole.
209          (b) The guidelines shall consider the seriousness of the violation of the conditions of
210     parole, the individual's conduct while on parole, and the individual's criminal history.
211          (6) The commission shall establish graduated and evidence-based processes to
212     facilitate the prompt and effective response to an individual's progress in or violation of the
213     terms of probation or parole by the adult probation and parole section of the Department of
214     Corrections, or other supervision services provider, in order to implement the
215     recommendations of the Commission on Criminal and Juvenile Justice for reducing recidivism
216     and incarceration, including:

217          (a) responses to be used when an individual violates a condition of probation or parole;
218          (b) responses to recognize positive behavior and progress related to an individual's case
219     action plan;
220          (c) when a violation of a condition of probation or parole should be reported to the
221     court or the Board of Pardons and Parole; and
222          (d) a range of sanctions that may not exceed a period of incarceration of more than:
223          (i) three consecutive days; and
224          (ii) a total of five days in a period of 30 days.
225          (7) The commission shall establish graduated incentives to facilitate a prompt and
226     effective response by the adult probation and parole section of the Department of Corrections
227     to an offender's:
228          (a) compliance with the terms of probation or parole; and
229          (b) positive conduct that exceeds those terms.
230          (8) (a) The commission shall establish guidelines, including sanctions and incentives,
231     to appropriately respond to negative and positive behavior of juveniles who are:
232          (i) nonjudicially adjusted;
233          (ii) placed on diversion;
234          (iii) placed on probation;
235          (iv) placed on community supervision;
236          (v) placed in an out-of-home placement; or
237          (vi) placed in a secure care facility.
238          (b) In establishing guidelines under this Subsection (8), the commission shall consider:
239          (i) the seriousness of the negative and positive behavior;
240          (ii) the juvenile's conduct post-adjudication; and
241          (iii) the delinquency history of the juvenile.
242          (c) The guidelines shall include:
243          (i) responses that are swift and certain;

244          (ii) a continuum of community-based options for juveniles living at home;
245          (iii) responses that target the individual's criminogenic risk and needs; and
246          (iv) incentives for compliance, including earned discharge credits.
247          (9) The commission shall establish supervision length guidelines in accordance with
248     this section before October 1, 2018.
249          (10) (a) The commission shall create sentencing guidelines and supervision length
250     guidelines for the following financial and property offenses for which a pecuniary loss to a
251     victim may exceed $50,000:
252          (i) securities fraud, Sections 61-1-1 and 61-1-21;
253          (ii) sale by an unlicensed broker-dealer, agent, investment adviser, or investment
254     adviser representative, Sections 61-1-3 and 61-1-21;
255          (iii) offer or sale of unregistered security, Sections 61-1-7 and 61-1-21;
256          (iv) abuse or exploitation of a vulnerable adult under Title 76, Chapter 5, Part 1,
257     Assault and Related Offenses;
258          (v) arson, Section 76-6-102;
259          (vi) burglary, Section 76-6-202;
260          (vii) theft, Section 76-6-412;
261          (viii) forgery, Section 76-6-501;
262          (ix) unlawful dealing of property by a fiduciary, Section 76-6-513;
263          (x) fraudulent insurance act, Section 76-6-521;
264          (xi) computer crimes, Section 76-6-703;
265          (xii) mortgage fraud, Sections 76-6-1203 and 76-6-1204;
266          (xiii) pattern of unlawful activity, Sections 76-10-1603 and 76-10-1603.5;
267          (xiv) communications fraud, Section 76-10-1801;
268          (xv) money laundering, Section 76-10-1904; and
269          (xvi) other offenses in the discretion of the commission.
270          (b) The guidelines described in Subsection (10)(a) shall include a sentencing matrix

271     with proportionate escalating sanctions based on the amount of a victim's loss.
272          (c) On or before August 1, 2022, the commission shall publish for public comment the
273     guidelines described in Subsection (10)(a).
274          Section 3. Section 76-8-504 is amended to read:
275          76-8-504. Written false statement.
276          [A person is guilty of a class B misdemeanor if:]
277          (1) [He makes a] An actor commits the offense of written false statement [which he] if:
278          (a) the actor makes a statement that the actor does not believe to be true on or [pursuant
279     to] under a form bearing a notification authorized by law to the effect that false statements
280     made therein are punishable; or
281          [(2)] (b) [With] with intent to deceive a public servant in the performance of [his] the
282     public servant's official function, [he] the actor:
283          [(a)] (i) [Makes any] makes a written false statement [which he] that the actor does not
284     believe to be true; [or]
285          [(b)] (ii) [Knowingly] knowingly creates a false impression in a written application for
286     [any] a pecuniary or other benefit by omitting information necessary to prevent [statements
287     therein] a statement in the application from being misleading; [or]
288          [(c)] (iii) [Submits] submits or invites reliance on [any writing which he] a writing that
289     the actor knows to be lacking in authenticity; or
290          [(d)] (iv) [Submits] submits or invites reliance on [any] a sample, specimen, map,
291     boundary mark, or other object [which he] that the actor knows to be false.
292          (2) (a) Except as provided in Subsection (2)(b), a violation of Subsection (1) is a class
293     B misdemeanor.
294          (b) A violation of Subsection (1) is a third degree felony if the false statement is on a
295     financial declaration described in Section 77-38b-204.
296          [(3)] (3) [No person shall be guilty under this section if he] It is not an offense under
297     this section if the actor retracts the falsification before it becomes manifest that the falsification

298     was or would be exposed.
299          Section 4. Section 77-32b-103 is amended to read:
300          77-32b-103. Establishment of a criminal accounts receivable -- Responsibility --
301     Payment schedule -- Delinquency or default.
302          (1) (a) Except as provided in Subsection (1)(b) and (c), at the time of sentencing or
303     acceptance of a plea in abeyance, the court shall enter an order to establish a criminal accounts
304     receivable for the defendant.
305          (b) The court is not required to create a criminal accounts receivable for the defendant
306     under Subsection (1)(a) if the court finds that the defendant does not owe restitution and there
307     are no other fines or fees to be assessed against the defendant.
308          (c) Subject to Subsection 77-38b-205(5), if the court does not create a criminal
309     accounts receivable for a defendant under Subsection (1)(a), the court shall enter an order to
310     establish a criminal accounts receivable for the defendant at the time the court enters an order
311     for restitution under Section 77-38b-205.
312          (2) After establishing a criminal accounts receivable for a defendant, the court shall:
313          (a) if a prison sentence is imposed and not suspended for the defendant:
314          (i) accept any payment for the criminal accounts receivable that is tendered on the date
315     of sentencing; and
316          (ii) transfer the responsibility of receiving, distributing, and processing payments for
317     the criminal accounts receivable to the Office of State Debt Collection; and
318          (b) for all other cases:
319          (i) retain the responsibility for receiving, processing, and distributing payments for the
320     criminal accounts receivable until the court enters a civil accounts receivable or civil judgment
321     of restitution on the civil judgment docket under Subsection 77-18-114(1) or (2); and
322          (ii) record each payment by the defendant on the case docket.
323          (c) For a criminal accounts receivable that a court retains responsibility for receiving,
324     processing, and distributing payments under Subsection (2)(b)(i), the Judicial Council may

325     establish rules to require a defendant to pay the cost, or a portion of the cost, that is charged by
326     a financial institution for the use of a credit or debit card by the defendant to make payments
327     towards the criminal accounts receivable.
328          (3) (a) Upon entering an order for a criminal accounts receivable, the court shall
329     establish a payment schedule for the defendant to make payments towards the criminal
330     accounts receivable.
331          (b) In establishing the payment schedule for the defendant, the court shall consider:
332          (i) the needs of the victim if the criminal accounts receivable includes an order for
333     restitution under Section 77-38b-205;
334          (ii) the financial resources of the defendant, as disclosed in the financial declaration
335     under Section 77-38b-204 or in evidence obtained by subpoena under Subsection
336     77-38b-402(1)(b);
337          (iii) the burden that the payment schedule will impose on the defendant regarding the
338     other reasonable obligations of the defendant;
339          (iv) the ability of the defendant to pay restitution on an installment basis or on other
340     conditions fixed by the court;
341          (v) the rehabilitative effect on the defendant of the payment of restitution and method
342     of payment; and
343          (vi) any other circumstance that the court determines is relevant.
344          (4) A payment schedule for a criminal accounts receivable does not limit the ability of
345     a judgment creditor to pursue collection by any means allowable by law.
346          (5) If the court orders restitution under Section 77-38b-205, or makes another financial
347     decision, after sentencing that increases the total amount owed in a defendant's case, the
348     defendant's criminal accounts receivable balance shall be adjusted to include any new amount
349     ordered by the court.
350          (6) (a) If a defendant is incarcerated in a county jail or a secure correctional facility, as
351     defined in Section 64-13-1, or the defendant is involuntarily committed under Section

352     62A-15-631:
353          (i) all payments for a payment schedule shall be suspended for the period of time that
354     the defendant is incarcerated or involuntarily committed, unless the court, or the board if the
355     defendant is under the jurisdiction of the board, expressly orders the defendant to make
356     payments according to the payment schedule; and
357          (ii) the defendant shall provide the court with notice of the incarceration or involuntary
358     commitment.
359          (b) A suspension under Subsection (6)(a) shall remain in place for 60 days after the day
360     in which the defendant is released from incarceration or commitment.
361          Section 5. Section 77-38b-204 is amended to read:
362          77-38b-204. Financial declaration by defendant.
363          (1) (a) The Judicial Council shall design and publish a financial declaration form to be
364     completed by a defendant before the sentencing court establishes a payment schedule under
365     Section 77-38b-205.
366          (b) The financial declaration form shall:
367          (i) require a defendant to disclose all assets, income, and financial liabilities of the
368     defendant, including:
369          (A) real property;
370          (B) vehicles;
371          (C) precious metals or gems;
372          (D) jewelry with a value of $1,000 or more;
373          (E) other personal property with a value of $1,000 or more;
374          (F) the balance of any bank account and the name of the financial institution for the
375     bank account;
376          (G) cash;
377          (H) salary, wages, commission, tips, and business income, including the name of any
378     employer or entity from which the defendant receives a salary, wage, commission, tip, or

379     business income;
380          (I) pensions and annuities;
381          (J) intellectual property;
382          (K) accounts receivable;
383          (L) accounts payable;
384          (M) mortgages, loans, and other debts; and
385          (N) restitution that has been ordered, and not fully paid, in other cases; and
386          (ii) state that a false statement made in the financial declaration form is punishable as
387     [a class B misdemeanor] a third degree felony under Section 76-8-504.
388          (2) After a plea disposition or conviction has been entered but before sentencing, a
389     defendant shall complete the financial declaration form described in Subsection (1).
390          (3) When a civil judgment of restitution or a civil accounts receivable is entered for a
391     defendant on the civil judgment docket under Section 77-18-114, the court shall provide the
392     Office of State Debt Collection with the defendant's financial declaration form.
393          Section 6. Section 77-38b-402 is amended to read:
394          77-38b-402. Preservation of assets.
395          (1) (a) Before, or at the time, a criminal information, indictment charging a violation,
396     or a petition alleging delinquency is filed, or at any time during the prosecution of the case, a
397     prosecuting attorney may, if in the prosecuting attorney's best judgment there is a substantial
398     likelihood that a conviction will be obtained and restitution will be ordered in the case, petition
399     the court to:
400          [(a)] (i) enter a temporary restraining order, an injunction, or both;
401          [(b)] (ii) require the execution of a satisfactory performance bond; or
402          [(c)] (iii) take any other action to preserve the availability of property that may be
403     necessary to satisfy an anticipated order for restitution.
404          (b) A prosecuting attorney may subpoena a document, witness, or other evidence that,
405     in the prosecuting attorney's best judgment, may provide evidence relevant to the property

406     described in Subsection (1)(a)(iii).
407          (2) (a) Upon receiving a request from a prosecuting attorney under Subsection (1)(a),
408     and after notice to a person appearing to have an interest in the property and affording the
409     person an opportunity to be heard, the court may take action as requested by the prosecuting
410     attorney if the court determines:
411          (i) there is probable cause to believe that an offense has been committed and that the
412     defendant committed the offense, and that failure to enter the order will likely result in the
413     property being sold, distributed, exhibited, destroyed, or removed from the jurisdiction of the
414     court, or otherwise be made unavailable for restitution; and
415          (ii) the need to preserve the availability of the property or prevent the property's sale,
416     distribution, exhibition, destruction, or removal through the entry of the requested order
417     outweighs the hardship on any party against whom the order is to be entered.
418          (b) In a hearing conducted in accordance with this section, a court may consider
419     reliable hearsay as defined in Utah Rules of Evidence, Rule 1102.
420          (c) An order for an injunction entered under this section is effective for the period of
421     time given in the order.
422          (3) (a) Upon receiving a request for a temporary restraining order from a prosecuting
423     attorney under this section, a court may enter a temporary restraining order against an owner
424     with respect to specific property without notice or opportunity for a hearing if:
425          (i) the prosecuting attorney demonstrates that there is a substantial likelihood that the
426     property with respect to which the order is sought appears to be necessary to satisfy an
427     anticipated restitution order under this chapter; and
428          (ii) provision of notice would jeopardize the availability of the property to satisfy any
429     judgment or order for restitution.
430          (b) The temporary order in this Subsection (3) expires no later than 10 days after the
431     day on which the temporary order is entered unless extended for good cause shown or the party
432     against whom the temporary order is entered consents to an extension.

433          (4) A hearing concerning an order entered under this section shall be held as soon as
434     possible, and before the expiration of the temporary order.