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
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:
25 Other Special Clauses:
27 Utah Code Sections Affected:
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
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
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
52 (6) [
53 effective defense for an indigent individual[
57 (7) "Indigent defense service provider" means an attorney or entity appointed to
58 represent an indigent individual [
59 (a) a contract with an indigent defense system to provide indigent defense services; [
60 (b) an order issued by the court under Subsection 78B-22-203(2)(a)[
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;
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 [
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
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 [
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;
98 (c) a parent or legal guardian facing an action initiated by any party under:
99 (i) 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
111 defense services for an individual over whom the court has jurisdiction if:
112 (i) the individual is an indigent individual [
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 [
120 (i) all [
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
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→ [
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
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→ [
183 (ii) the indigent defense system shall use the grant in an innovative manner that meets
184 Ĥ→ [
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 [
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
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