This document includes Senate Committee Amendments incorporated into the bill on Wed, Jan 26, 2022 at 8:21 AM by lpoole.
This document includes House Floor Amendments incorporated into the bill on Thu, Feb 17, 2022 at 11:53 AM by pflowers.
1     
INDIGENT DEFENSE AMENDMENTS

2     
2022 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Todd D. Weiler

5     
House Sponsor: Joel Ferry

6     

7     LONG TITLE
8     General Description:
9          This bill amends provisions relating to indigent defense.
10     Highlighted Provisions:
11          This bill:
12          ▸     modifies the definition of "indigent defense resource";
13          ▸     modifies the definition of "indigent defense service provider";
14          ▸     clarifies who a court may appoint to represent an indigent defendant;
15          ▸     allows the Indigent Defense Commission to award grants for indigent defense
16     services that Ĥ→ [:
17               •     would exceed the commission's core principles regarding indigent defense
18     services; or
19               •] ←Ĥ      are innovative for meeting or exceeding the commission's core principles
20     regarding indigent defense services;
21          ▸     clarifies who is eligible for appellate defense services; and
22          ▸     makes technical changes.
23     Money Appropriated in this Bill:
24          None
25     Other Special Clauses:
26          None
27     Utah Code Sections Affected:
28     AMENDS:
29          78B-22-102, as last amended by Laws of Utah 2021, Chapters 228, 235, 262 and last
30     amended by Coordination Clause, Laws of Utah 2021, Chapter 262
31          78B-22-201, as last amended by Laws of Utah 2021, Chapter 262
32          78B-22-203, as enacted by Laws of Utah 2019, Chapter 326
33          78B-22-406, as last amended by Laws of Utah 2021, Chapters 228 and 262
34          78B-22-701, as renumbered and amended by Laws of Utah 2019, Chapter 326
35          78B-22-901, as enacted by Laws of Utah 2020, Chapter 371
36     

37     Be it enacted by the Legislature of the state of Utah:
38          Section 1. Section 78B-22-102 is amended to read:
39          78B-22-102. Definitions.
40          As used in this chapter:
41          (1) "Account" means the Indigent Defense Resources Restricted Account created in
42     Section 78B-22-405.
43          (2) "Board" means the Indigent Defense Funds Board created in Section 78B-22-501.
44          (3) "Commission" means the Utah Indigent Defense Commission created in Section
45     78B-22-401.
46          (4) "Child welfare case" means a proceeding under Title 80, Chapter 3, Abuse,
47     Neglect, and Dependency Proceedings, or Title 80, Chapter 4, Termination or Restoration of
48     Parental Rights.
49          (5) "Executive Director" means the executive director of the Office of Indigent Defense
50     Services, created in Section 78B-22-451, who is appointed in accordance with Section
51     78B-22-453.
52          (6) [(a)] "Indigent defense resources" means the resources necessary to provide an
53     effective defense for an indigent individual[, including the costs for a competent investigator,
54     expert witness, scientific or medical testing, transcripts, and printing briefs.].
55          [(b) "Indigent defense resources" does not include an indigent defense service
56     provider.]
57          (7) "Indigent defense service provider" means an attorney or entity appointed to
58     represent an indigent individual [pursuant to] through:
59          (a) a contract with an indigent defense system to provide indigent defense services; [or]
60          (b) an order issued by the court under Subsection 78B-22-203(2)(a)[.]; or
61          (c) direct employment with an indigent defense system.
62          (8) "Indigent defense services" means:
63          (a) the representation of an indigent individual by an indigent defense service provider;
64     and
65          (b) the provision of indigent defense resources for an indigent individual.
66          (9) "Indigent defense system" means:
67          (a) a city or town that is responsible for providing indigent defense services;
68          (b) a county that is responsible for providing indigent defense services in the district
69     court, juvenile court, and the county's justice courts; or
70          (c) an interlocal entity, created pursuant to Title 11, Chapter 13, Interlocal Cooperation
71     Act, that is responsible for providing indigent defense services according to the terms of an
72     agreement between a county, city, or town.
73          (10) "Indigent individual" means:
74          (a) a minor who is:
75          (i) arrested and admitted into detention for an offense under Section 78A-6-103;
76          (ii) charged by petition or information in the juvenile or district court; or
77          (iii) described in this Subsection [(9)] (10)(a), who is appealing an adjudication or
78     other final court action; and
79          (b) an individual listed in Subsection 78B-22-201(1) who is found indigent pursuant to
80     Section 78B-22-202.
81          (11) "Minor" means the same as that term is defined in Section 80-1-102.
82          (12) "Office" means the Office of Indigent Defense Services created in Section
83     78B-22-451.
84          (13) "Participating county" means a county that complies with this chapter for
85     participation in the Indigent Aggravated Murder Defense Trust Fund as provided in Sections
86     78B-22-702 and 78B-22-703.
87          Section 2. Section 78B-22-201 is amended to read:
88          78B-22-201. Right to counsel.
89          (1) A court shall advise the following of the individual's right to counsel [when the
90     individual first appears before the court] no later than the individual's first court appearance:
91          (a) an adult charged with a criminal offense the penalty for which includes the
92     possibility of incarceration regardless of whether actually imposed;
93          (b) a parent or legal guardian facing an action initiated by the state under:
94          (i) Title 78A, Chapter 6, Part 4a, Adult Criminal Proceedings;
95          [(i)] (ii) Title 80, Chapter 3, Abuse, Neglect, and Dependency Proceedings; or
96          [(ii)] (iii) Title 80, Chapter 4, Termination and Restoration of Parental Rights; [or]
97          [(iii) Title 78A, Chapter 6, Part 4a, Adult Criminal Proceedings;]
98          (c) a parent or legal guardian facing an action initiated by any party under:
99          (i) Section 78B-6-112; or
100          [(i)] (ii) Title 80, Chapter 4, Termination and Restoration of Parental Rights; or
101          [(ii) Section 78B-6-112; or]
102          (d) an individual described in this Subsection (1), who is appealing a conviction or
103     other final court action.
104          (2) If an individual described in Subsection (1) does not knowingly and voluntarily
105     waive the right to counsel, the court shall determine whether the individual is indigent under
106     Section 78B-22-202.
107          Section 3. Section 78B-22-203 is amended to read:
108          78B-22-203. Order for indigent defense services.
109          (1) (a) A court shall appoint an indigent defense service provider who is employed by
110     an indigent Ŝ→ defense ←Ŝ system or who has a contract with an indigent defense system to provide
110a     indigent
111     defense services for an individual over whom the court has jurisdiction if:
112          (i) the individual is an indigent individual [as defined in Section 78B-22-102]; and
113          (ii) the individual does not have private counsel.
114          (b) An indigent defense service provider appointed by the court under Subsection
115     (1)(a) shall provide indigent defense services for the indigent individual in all court
116     proceedings in the matter for which the indigent defense service provider is appointed.
117          (2) (a) Notwithstanding Subsection (1), the court may order that indigent defense
118     services be provided by an indigent defense service provider who does not have a contract with
119     an indigent defense system [only] if the court finds by clear and convincing evidence that:
120          (i) all [of] the contracted indigent defense service providers:
121          (A) have a conflict of interest; or
122          (B) do not have sufficient expertise to provide indigent defense services for the
123     indigent individual; or
124          (ii) the indigent defense system does not have a contract with an indigent defense
125     service provider for indigent defense services.
126          (b) A court may not order indigent defense services under Subsection (2)(a) unless the
127     court conducts a hearing with proper notice to the indigent defense system by sending notice of
128     the hearing to the county clerk or municipal recorder.
129          (3) (a) A court may order reasonable indigent defense resources for an individual who
130     has retained private counsel only if the court finds by clear and convincing evidence that:
131          (i) the individual is an indigent individual;
132          (ii) the individual would be prejudiced by the substitution of a contracted indigent
133     defense service provider and the prejudice cannot be remedied;
134          (iii) at the time that private counsel was retained, the individual:
135          (A) entered into a written contract with private counsel; and
136          (B) had the ability to pay for indigent defense resources, but no longer has the ability to
137     pay for the indigent defense resources in addition to the cost of private counsel;
138          (iv) there has been an unforeseen change in circumstances that requires indigent
139     defense resources beyond the individual's ability to pay; and
140          (v) any representation under this Subsection (3)(a) is made in good faith and is not
141     calculated to allow the individual or retained private counsel to avoid the requirements of this
142     section.
143          (b) A court may not order indigent defense resources under Subsection (3)(a) until the
144     court conducts a hearing with proper notice to the indigent defense system by sending notice of
145     the hearing to the county clerk or municipal recorder.
146          (c) At the hearing, the court shall conduct an in camera review of:
147          (i) the private counsel contract;
148          (ii) the costs or anticipated costs of the indigent defense resources; and
149          (iii) other relevant records.
150          (4) Except as provided in this section, a court may not order indigent defense services.
151          Section 4. Section 78B-22-406 is amended to read:
152          78B-22-406. Indigent defense services grant program.
153          (1) The commission may award grants:
154          (a) to supplement local spending by an indigent defense system for indigent defense
155     services; and
156          (b) for contracts to provide indigent defense services for appeals from juvenile court
157     proceedings in a county of the third, fourth, fifth, or sixth class.
158          (2) The commission may use grant money:
159          (a) to assist an indigent defense system to provide indigent defense services that meet
160     Ĥ→ [or exceed] ←Ĥ the commission's core principles for the effective representation of indigent
161     individuals;
162          (b) to establish and maintain local indigent defense data collection systems;
163          (c) to provide indigent defense services in addition to indigent defense services that are
164     currently being provided by an indigent defense system;
165          (d) to provide training and continuing legal education for indigent defense service
166     providers;
167          (e) to assist indigent defense systems with appeals from juvenile court proceedings;
168          (f) to pay for indigent defense resources and costs and expenses for parental
169     representation attorneys as described in Subsection 78B-22-804(2); and
170          (g) to reimburse an indigent defense system for the cost of providing indigent defense
171     services in an action initiated by a private party under Title 80, Chapter 4, Termination and
172     Restoration of Parental Rights, if the indigent defense system has complied with the
173     commission's policies and procedures for reimbursement.
174          (3) To receive a grant from the commission, an indigent defense system shall
175     demonstrate to the commission's satisfaction that:
176          (a) the indigent defense system has incurred or reasonably anticipates incurring
177     expenses for indigent defense services that are in addition to the indigent defense system's
178     average annual spending on indigent defense services in the three fiscal years immediately
179     preceding the grant application; and
180          (b) (i) a grant from the commission is necessary for the indigent defense system to
181     meet Ĥ→ [or exceed] ←Ĥ the commission's core principles for the effective representation of
181a     indigent
182     individuals[.]; or
183          (ii) the indigent defense system shall use the grant in an innovative manner that meets
184     Ĥ→ [or exceeds] ←Ĥ the commission's core principles for the effective representation of indigent
185     individuals.
186          (4) The commission may revoke a grant if an indigent defense system fails to meet
187     requirements of the grant or any of the commission's core principles for the effective
188     representation of indigent individuals.
189          Section 5. Section 78B-22-701 is amended to read:
190          78B-22-701. Establishment of Indigent Aggravated Murder Defense Trust Fund
191     -- Use of fund -- Compensation for indigent legal defense from fund.
192          (1) For purposes of this part, "fund" means the Indigent Aggravated Murder Defense
193     Trust Fund.
194          (2) (a) There is established a private-purpose trust fund known as the "Indigent
195     Aggravated Murder Defense Trust Fund."
196          (b) The Division of Finance shall disburse money from the fund at the direction of the
197     board and subject to this chapter.
198          (3) The fund consists of:
199          (a) money received from participating counties as provided in Sections 78B-22-702
200     and 78B-22-703;
201          (b) appropriations made to the fund by the Legislature as provided in Section
202     78B-22-703; and
203          (c) interest and earnings from the investment of fund money.
204          (4) The state treasurer shall invest fund money with the earnings and interest accruing
205     to the fund.
206          (5) The fund shall be used to assist participating counties with financial resources, as
207     provided in Subsection (6), to fulfill their constitutional and statutory mandates for the
208     provision of [an adequate] a constitutionally effective defense for indigent individuals
209     prosecuted for the violation of state laws in cases involving aggravated murder.
210          (6) Money allocated to or deposited in this fund shall be used only:
211          (a) to reimburse participating counties for expenditures made for an attorney appointed
212     to represent an indigent individual, other than a state inmate in a state prison, prosecuted for
213     aggravated murder in a participating county; and
214          (b) for administrative costs pursuant to Section 78B-22-501.
215          Section 6. Section 78B-22-901 is amended to read:
216          78B-22-901. Definitions.
217          (1) (a) "Appellate defense services" means the representation of an indigent individual
218     [facing] described in Subsection 78B-22-201(1)(d) or who is a party to an appeal under Section
219     77-18a-1.
220          (b) "Appellate defense services" does not include the representation of an indigent
221     individual facing an appeal in a case where the indigent individual was prosecuted for
222     aggravated murder.
223          (2) "Division" means the Indigent Appellate Defense Division created in Section
224     78B-22-902.