Representative Nelson T. Abbott proposes the following substitute bill:


1     
COMMITMENT IN CRIMINAL PROCEEDINGS

2     
2022 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Nelson T. Abbott

5     
Senate Sponsor: ____________

6     

7     LONG TITLE
8     General Description:
9          This bill addresses commitment of an individual found guilty with a mental illness.
10     Highlighted Provisions:
11          This bill:
12          ▸     creates and modifies definitions;
13          ▸     upon a plea or verdict of guilty with a mental illness, requires a court to commit the
14     defendant to a local mental health authority for a certain period if the defendant:
15               •     currently has a certain type of mental illness; and
16               •     committed a certain type of misdemeanor or infraction;
17          ▸     allows the court to require the defendant to pay criminal restitution;
18          ▸     requires the court to close the court case against the defendant upon the
19     commitment and restitution orders;
20          ▸     requires the local mental health authority to provide care and treatment to the
21     defendant in accordance with civil commitment processes;
22          ▸     allows the local mental health authority to:
23               •     limit the defendant's travel; and
24               •     move the defendant to a more restrictive environment under certain
25     circumstances;
26          ▸     allows the defendant to seek an automatic expungement of the misdemeanor or
27     infraction; and
28          ▸     makes technical and conforming changes.
29     Money Appropriated in this Bill:
30          None
31     Other Special Clauses:
32          None
33     Utah Code Sections Affected:
34     AMENDS:
35          77-16a-101, as last amended by Laws of Utah 2011, Chapter 366
36          77-16a-103, as last amended by Laws of Utah 2011, Chapter 366
37          77-16a-104, as last amended by Laws of Utah 2011, Chapter 366
38          77-16a-202, as last amended by Laws of Utah 2011, Chapter 366
39          77-40-102, as last amended by Laws of Utah 2021, Chapters 206 and 260
40     ENACTS:
41          77-16a-105, Utah Code Annotated 1953
42          77-16a-202.5, Utah Code Annotated 1953
43     

44     Be it enacted by the Legislature of the state of Utah:
45          Section 1. Section 77-16a-101 is amended to read:
46          77-16a-101. Definitions.
47          As used in this chapter:
48          (1) "Board" means the Board of Pardons and Parole established under Section 77-27-2.
49          (2) "Department" means the Department of Human Services.
50          (3) "Executive director" means the executive director of the Department of Human
51     Services.
52          (4) "Mental health facility" means the Utah State Hospital or other facility that
53     provides mental health services under contract with the division, a local mental health
54     authority, or organization that contracts with a local mental health authority.
55          (5) "Mental illness" is as defined in Section 76-2-305.
56          (6) "Minor offense" means an offense that is a misdemeanor or infraction and is not an
57     offense under Title 41, Chapter 6a, Part 5, Driving Under the Influence and Reckless Driving,
58     or Title 76, Chapter 5, Offenses Against the Person.
59          [(6)] (7) "Offender with a mental illness" means an individual who has been
60     adjudicated guilty with a mental illness, including an individual who has an intellectual
61     disability.
62          (8) "Offender with a severe mental disorder" means an individual who has been
63     adjudicated guilty with a mental illness and currently has a severe mental disorder.
64          (9) "Severe mental disorder" means the following disorders as described in the current
65     edition of the Diagnostic and Statistical Manual of Mental Disorders published by the
66     American Psychiatric Association:
67          (a) schizophrenia;
68          (b) major depression;
69          (c) bipolar disorders;
70          (d) delusional disorders;
71          (e) psychotic disorders;
72          (f) obsessive-compulsive disorders;
73          (g) dissociative disorders; and
74          (h) neurocognitive disorders.
75          [(7)] (10) "UDC" means the Department of Corrections.
76          Section 2. Section 77-16a-103 is amended to read:
77          77-16a-103. Plea of guilty with a mental illness at the time of the offense --
78     Hearing to determine present mental state -- Sentencing.
79          (1) [Upon a] Except as provided in Section 77-16a-105, upon a defendant's plea of
80     guilty with a mental illness at the time of the offense [being tendered by a defendant] to any
81     charge, the court shall hold a hearing within a reasonable time to determine whether the
82     defendant currently has a mental illness.
83          (2) (a) [The] To make the determination under Subsection (1), the court may:
84          (i) order the department to examine the defendant[,]; and [may]
85          (ii) receive the testimony of any public or private expert witness offered by the
86     defendant or the prosecutor.
87          (b) The defendant may be placed in the Utah State Hospital for [that] the examination
88     only upon approval by the executive director.
89          (3) (a) [A] The trial judge shall first examine the defendant [who tenders a plea of
90     guilty with a mental illness at the time of the offense shall be examined first by the trial judge,]
91     in compliance with the standards for taking pleas of guilty.
92          (b) The trial judge shall advise the defendant [shall be advised] that a plea of guilty
93     with a mental illness at the time of the offense is a plea of guilty and not a contingent plea.
94          [(b)] (4) If [the defendant is later found not to have a current] the court finds the
95     defendant does not currently have a mental illness[, that]:
96          (a) the defendant's plea remains a valid plea of guilty with a mental illness at the time
97     of the offense[,]; and
98          (b) the court shall sentence the defendant [shall be sentenced] as the court would
99     sentence any other [offender] defendant.
100          [(4)] (5) If the court [concludes] finds that the defendant currently has a mental illness,
101     the court shall:
102          (a) accept the defendant's plea [shall be accepted and the defendant shall be sentenced];
103     and
104          (b) sentence the defendant in accordance with [Section] Sections 77-16a-104 and
105     77-16a-202.
106          [(5) (a) When the offense is a state offense, expenses of examination, observation, and
107     treatment for the defendant shall be paid by the department.]
108          [(b) Travel expenses shall be paid by the county where prosecution is commenced.]
109          [(c) Expenses of examination for defendants charged with violation of a municipal or
110     county ordinance shall be paid by the municipality or county that commenced the prosecution.]
111          (6) (a) If the defendant is charged with a state offense, the department shall pay the
112     expenses of examination, observation, and treatment for the defendant.
113          (b) The county that commenced the prosecution shall pay the travel expenses for the
114     defendant.
115          (c) If the offense is a municipal or county ordinance, the municipality or county that
116     commenced the prosecution shall pay the expenses of examination for the defendant.
117          Section 3. Section 77-16a-104 is amended to read:
118          77-16a-104. Verdict of guilty with a mental illness -- Hearing to determine
119     present mental state -- Sentencing -- Criteria for commitment.
120          (1) [Upon] Except as provided in Section 77-16a-105, upon a verdict of guilty with a
121     mental illness for the offense charged, or any lesser offense, the court shall conduct a hearing to
122     determine the defendant's present mental state.
123          [(2) The court may order the department to examine the defendant to determine the
124     defendant's mental condition, and may receive the evidence of any public or private expert
125     witness offered by the defendant or the prosecutor.]
126          (2) (a) To make the determination under Subsection (1), the court may make the order
127     and receive testimony as described in Subsection 77-16a-103(2)(a).
128          (b) The defendant may be placed in the Utah State Hospital for [that] the examination
129     [only upon approval of the executive director] in accordance with Subsection
130     77-16a-103(2)(b).
131          (3) If the court finds that the defendant does not currently have a mental illness, the
132     court shall sentence the defendant as the court would sentence any other defendant.
133          [(3)] (4) If the court finds by clear and convincing evidence that the defendant currently
134     has a mental illness, the court shall:
135          (a) impose any sentence that could be imposed under law upon a defendant who does
136     not have a mental illness and who is convicted of the same offense[, and:]; and
137          (b) make an order in accordance with Subsection (5).
138          (5) In addition to imposing the sentence under Subsection (4), the court shall:
139          (a) commit the defendant to the department, in accordance with [the provisions of]
140     Section 77-16a-202, if:
141          (i) the court gives the department the opportunity to provide an evaluation and
142     recommendation under Subsection [(4)] (6); and
143          (ii) the court finds by clear and convincing evidence that:
144          (A) because of the defendant's mental illness, the defendant poses an immediate
145     physical danger to self or others, including jeopardizing the defendant's own or others' safety,
146     health, or welfare if placed in a correctional or probation setting, or lacks the ability to provide
147     the basic necessities of life, such as food, clothing, and shelter, if placed on probation; and
148          (B) the department is able to provide the defendant with treatment, care, custody, and
149     security that is adequate and appropriate to the defendant's conditions and needs;
150          (b) order probation in accordance with Section 77-16a-201; or
151          (c) if the court determines that commitment to the department under Subsection
152     [(3)(a)] (5)(a) or probation under Subsection [(3)(b)] (5)(b) is not appropriate, [the court shall]
153     place the defendant in the custody of UDC or a county jail as allowed by law.
154          [(4)] (6) In order to [insure] ensure that the requirements of Subsection [(3)] (4)(a) are
155     met, the court shall, before making a determination, notify the executive director of the
156     proposed placement and provide the department with an opportunity to evaluate the defendant
157     and make a recommendation to the court regarding placement [prior to] before commitment.
158     [(5) If the court finds that the defendant does not currently have a mental illness, the court
159     shall sentence the defendant as it would any other defendant. (6)] Expenses for [examinations]
160     an examination ordered under this section shall be paid in accordance with Subsection
161     [77-16a-103(5)] 77-16a-103(6).
162          Section 4. Section 77-16a-105 is enacted to read:
163          77-16a-105. Plea or verdict of guilty with a mental illness for certain
164     misdemeanors -- Hearing to determine present mental state -- Sentencing -- Criteria for
165     commitment.
166          (1) Notwithstanding Sections 77-16a-103 and 77-16a-104, upon a defendant's plea of
167     guilty with a mental illness at the time of the offense for a minor offense, or upon a verdict of
168     guilty with a mental illness for a minor offense, the court shall hold a hearing within a
169     reasonable time to determine whether the defendant currently has a severe mental disorder.
170          (2) (a) To make the determination under Subsection (1), the court may make the order
171     and receive testimony in accordance with Subsection 77-16a-103(2)(a).
172          (b) The defendant may be placed in the Utah State Hospital for the examination in
173     accordance with Subsection 77-16a-103(2)(b).
174          (3) If the defendant enters a plea described in Subsection (1), the trial judge shall
175     examine and advise the defendant in accordance with Subsection 77-16a-103(3)(a).
176          (4) If the court finds the defendant does not currently have a severe mental disorder:
177          (a) the defendant's plea described in Subsection (1), if applicable, remains a valid plea
178     of guilty with a mental illness at the time of the offense; and
179          (b) the court shall sentence the defendant in accordance with Subsections
180     77-16a-103(4) and 77-16a-104(3).
181          (5) If the court finds by clear and convincing evidence that the defendant currently has
182     a severe mental disorder and meets the criteria described in Subsection 77-16a-104(5)(a)(ii),
183     the court:
184          (a) shall commit the defendant to a local mental health authority in accordance with
185     Section 77-16a-202.5;
186          (b) may require the defendant to pay criminal restitution; and
187          (c) immediately after entering the orders described in Subsections (5)(a) and (b), shall
188     close the court case against the defendant for the minor offense.
189          Section 5. Section 77-16a-202 is amended to read:
190          77-16a-202. Individual found guilty with a mental illness -- Commitment to
191     department -- Admission to Utah State Hospital.
192          (1) (a) [In] Except as provided in Section 77-16a-202.5, in sentencing and committing
193     an offender with a mental illness to the department under [Subsection 77-16a-104(3)(a)]
194     Subsections 77-16a-104(3) and (4)(a), the court shall:
195          [(a)] (i) sentence the offender to a term of imprisonment and order that [he] the
196     offender be committed to the department and admitted to the Utah State Hospital for care and
197     treatment until transferred to UDC in accordance with Sections 77-16a-203 and 77-16a-204,
198     making provision for readmission to the Utah State Hospital whenever the requirements and
199     conditions of Section 77-16a-204 are met; or
200          [(b)] (ii) sentence the offender to a term of imprisonment and order that the offender be
201     committed to the department for care and treatment for no more than 18 months, or until the
202     offender's condition has been stabilized to the point that commitment to the department and
203     admission to the Utah State Hospital is no longer necessary to ensure adequate mental health
204     treatment, whichever occurs first.
205          (b) At the expiration of [that time] the commitment period under Subsection (1)(a)(ii),
206     the court may recall the sentence and commitment, and resentence the offender. [A]
207          (c) (i) Subject to Subsection (2), the court shall specify the commitment and retention
208     of jurisdiction under [this Subsection (1)(b) shall be specified] Subsection (1)(a)(ii) in the
209     sentencing order.
210          (ii) If [that] the court does not make the specification [is not included] under
211     Subsection (1)(c)(i) in the sentencing order, the court shall sentence the offender [shall be
212     committed] in accordance with Subsection (1)(a)(i).
213          (2) (a) The court may not retain jurisdiction, under Subsection (1)[(b)](c), over the
214     sentence of an offender with a mental illness who has been convicted of a capital felony.
215          (b) In [capital cases] a capital case, the court shall make the findings required by this
216     section after the capital sentencing proceeding [mandated by] under Section 76-3-207.
217          (3) (a) [When] If an offender is committed to the department and admitted to the Utah
218     State Hospital under Subsection [(1)(b)] (1)(a)(ii), the department shall provide the court with
219     [reports] a report of the offender's mental health status prepared in accordance with Section
220     77-16a-203 every six months. [Those reports shall be prepared in accordance with the
221     requirements of Section 77-16a-203. Additionally, the]
222          (b) The court may appoint an independent examiner to assess the mental health status
223     of the offender.
224          (4) The period of commitment to the department and admission to the Utah State
225     Hospital, and any subsequent retransfers to the Utah State Hospital made [pursuant to] under
226     Section 77-16a-204 may not exceed the maximum sentence imposed on the defendant by the
227     court.
228          (5) Upon expiration of [that] the maximum sentence, the administrator of the facility
229     where the offender is located may initiate civil proceedings for involuntary commitment in
230     accordance with Title 62A, Chapter 5, Services for People with Disabilities, or Title 62A,
231     Chapter 15, [Substance Abuse and Mental Health Act] Part 6, Utah State Hospital and Other
232     Mental Health Facilities.
233          Section 6. Section 77-16a-202.5 is enacted to read:
234          77-16a-202.5. Individual found guilty with a mental illness for certain
235     misdemeanors -- Commitment to local mental health authority.
236          (1) In committing a defendant with a severe mental disorder who is found guilty with a
237     mental illness under Section 77-16a-105, the court shall commit the defendant to a local mental
238     health authority for care and treatment for a period of:
239          (a) six months; or
240          (b) if the offender committed a minor offense that is a class A misdemeanor, 12
241     months.
242          (2) Except as provided in Subsections (3) and (4), the local mental health authority
243     shall provide care and treatment to, periodically examine, and release or discharge the
244     defendant in accordance with Title 62A, Chapter 15, Part 6, Utah State Hospital and Other
245     Mental Health Facilities.
246          (3) If necessary for treatment of the defendant, the local mental health authority may
247     prohibit the defendant from traveling outside of:
248          (a) the defendant's home;
249          (b) the county in which the defendant resides;
250          (c) the state; or
251          (d) a mental health facility.
252          (4) The local mental health authority may issue an order for the immediate placement
253     of the defendant in a more restrictive environment in accordance with Section 62A-15-637:
254          (a) if necessary to prevent the defendant from being a harm to self or others or
255     committing an additional offense;
256          (b) for the reasons described in Subsection 62A-15-637(3)(a); or
257          (c) if the defendant violates a travel restriction under Subsection (3).
258          Section 7. Section 77-40-102 is amended to read:
259          77-40-102. Definitions.
260          As used in this chapter:
261          (1) "Administrative finding" means a decision upon a question of fact reached by an
262     administrative agency following an administrative hearing or other procedure satisfying the
263     requirements of due process.
264          (2) "Agency" means a state, county, or local government entity that generates or
265     maintains records relating to an investigation, arrest, detention, or conviction for an offense for
266     which expungement may be ordered.
267          (3) "Bureau" means the Bureau of Criminal Identification of the Department of Public
268     Safety established in Section 53-10-201.
269          (4) "Certificate of eligibility" means a document issued by the bureau stating that the
270     criminal record and all records of arrest, investigation, and detention associated with a case that
271     is the subject of a petition for expungement is eligible for expungement.
272          (5) (a) "Clean slate eligible case" means a closed guilty but mentally ill case or a case:
273          (i) where, except as provided in Subsection (5)(c), each conviction within the case is:
274          (A) a misdemeanor conviction for possession of a controlled substance in violation of
275     Subsection 58-37-8(2)(a)(i);
276          (B) a class B or class C misdemeanor conviction; or
277          (C) an infraction conviction;
278          (ii) that involves an individual:
279          (A) whose total number of convictions in Utah state courts, not including infractions,
280     traffic offenses, or minor regulatory offenses, does not exceed the limits described in
281     Subsections 77-40-105(6) and (7) without taking into consideration the exception in Subsection
282     77-40-105(9); and
283          (B) against whom no criminal proceedings are pending in the state; and
284          (iii) for which the following time periods have elapsed from the day on which the case
285     is adjudicated:
286          (A) at least five years for a class C misdemeanor or an infraction;
287          (B) at least six years for a class B misdemeanor; and
288          (C) at least seven years for a class A conviction for possession of a controlled
289     substance in violation of Subsection 58-37-8(2)(a)(i).
290          (b) "Clean slate eligible case" includes a case that is dismissed as a result of a
291     successful completion of a plea in abeyance agreement governed by Subsection 77-2a-3(2)(b)
292     if:
293          (i) except as provided in Subsection (5)(c), each charge within the case is:
294          (A) a misdemeanor for possession of a controlled substance in violation of Subsection
295     58-37-8(2)(a)(i);
296          (B) a class B or class C misdemeanor; or
297          (C) an infraction;
298          (ii) the individual involved meets the requirements of Subsection (5)(a)(ii); [and]
299          (iii) the time periods described in Subsections (5)(a)(iii)(A) through (C) have elapsed
300     from the day on which the case is dismissed[.]; and
301          (iv) the case is not a closed guilty but mentally ill case.
302          (c) "Clean slate eligible case" does not include a case that is not a closed guilty but
303     mentally ill case:
304          (i) where the individual is found not guilty by reason of insanity;
305          (ii) where the case establishes a criminal accounts receivable, as defined in Section
306     77-32b-102, that:
307          (A) has been entered as a civil accounts receivable or a civil judgment of restitution, as
308     those terms are defined in Section 77-32b-102, and transferred to the Office of State Debt
309     Collection under Section 77-18-114; or
310          (B) has not been satisfied according to court records; or
311          (iii) that resulted in one or more pleas held in abeyance or convictions for the following
312     offenses:
313          (A) any of the offenses listed in Subsection 77-40-105(2)(a);
314          (B) an offense against the person in violation of Title 76, Chapter 5, Offenses Against
315     the Person;
316          (C) a weapons offense in violation of Title 76, Chapter 10, Part 5, Weapons;
317          (D) sexual battery in violation of Section 76-9-702.1;
318          (E) an act of lewdness in violation of Section 76-9-702 or 76-9-702.5;
319          (F) an offense in violation of Title 41, Chapter 6a, Part 5, Driving Under the Influence
320     and Reckless Driving;
321          (G) damage to or interruption of a communication device in violation of Section
322     76-6-108;
323          (H) a domestic violence offense as defined in Section 77-36-1; or
324          (I) any other offense classified in the Utah Code as a felony or a class A misdemeanor
325     other than a class A misdemeanor conviction for possession of a controlled substance in
326     violation of Subsection 58-37-8(2)(a)(i).
327          (6) "Closed guilty but mentally ill case" means a case that:
328          (a) is closed under Subsection 77-16a-105(5); and
329          (b) for which at least one year has elapsed from the day on which the case was
330     adjudicated.
331          [(6)] (7) "Conviction" means judgment by a criminal court on a verdict or finding of
332     guilty after trial, a plea of guilty, or a plea of nolo contendere.
333          [(7)] (8) "Department" means the Department of Public Safety established in Section
334     53-1-103.
335          [(8)] (9) "Drug possession offense" means an offense under:
336          (a) Subsection 58-37-8(2), except any offense under Subsection 58-37-8(2)(b)(i),
337     possession of 100 pounds or more of marijuana, any offense enhanced under Subsection
338     58-37-8(2)(e), violation in a correctional facility or Subsection 58-37-8(2)(g), driving with a
339     controlled substance illegally in the person's body and negligently causing serious bodily injury
340     or death of another;
341          (b) Subsection 58-37a-5(1), use or possession of drug paraphernalia;
342          (c) Section 58-37b-6, possession or use of an imitation controlled substance; or
343          (d) any local ordinance which is substantially similar to any of the offenses described
344     in this Subsection [(8)] (9).
345          [(9)] (10) "Expunge" means to seal or otherwise restrict access to the individual's
346     record held by an agency when the record includes a criminal investigation, detention, arrest, or
347     conviction.
348          [(10)] (11) "Jurisdiction" means a state, district, province, political subdivision,
349     territory, or possession of the United States or any foreign country.
350          [(11)] (12) "Minor regulatory offense" means any class B or C misdemeanor offense,
351     and any local ordinance, except:
352          (a) any drug possession offense;
353          (b) Title 41, Chapter 6a, Part 5, Driving Under the Influence and Reckless Driving;
354          (c) Sections 73-18-13 through 73-18-13.6;
355          (d) those offenses defined in Title 76, Utah Criminal Code; or
356          (e) any local ordinance that is substantially similar to those offenses listed in
357     Subsections [(11)] (12)(a) through (d).
358          [(12)] (13) "Petitioner" means an individual applying for expungement under this
359     chapter.
360          [(13)] (14) (a) "Traffic offense" means:
361          (i) all infractions, class B misdemeanors, and class C misdemeanors in Title 41,
362     Chapter 6a, Traffic Code;
363          (ii) Title 53, Chapter 3, Part 2, Driver Licensing Act;
364          (iii) Title 73, Chapter 18, State Boating Act; and
365          (iv) all local ordinances that are substantially similar to those offenses.
366          (b) "Traffic offense" does not mean:
367          (i) Title 41, Chapter 6a, Part 5, Driving Under the Influence and Reckless Driving;
368          (ii) Sections 73-18-13 through 73-18-13.6; or
369          (iii) any local ordinance that is substantially similar to the offenses listed in
370     Subsections [(13)] (14)(b)(i) and (ii).