HB 495 — Capital Felony Case Amendments

76-3-206.76-3-206 .

(2)(2)(a) (a) If the [person] individual described in Subsection (1) was 18 years [of age] old or older at the time the offense was committed, the sentence shall be:

[(3)[(3)(a) (a) The judgment of conviction and sentence of death is subject to automatic review by the Utah State Supreme Court within 60 days after certification by the sentencing court of the entire record unless time is extended an additional period not to exceed 30 days by the Utah State Supreme Court for good cause shown.] [(b) The review by the Utah State Supreme Court has priority over all other cases and shall be heard in accordance with rules promulgated by the Utah State Supreme Court.] Section 2.

76-3-207.76-3-207 .

(1)(1)(a) (a) When a defendant has pled guilty to or been found guilty of a capital felony, [there[ there shall be further proceedings before the court or jury on the issue of sentence] a further proceeding shall {immediately } be conducted on the issue of the defendant's sentence for the capital felony.

- 4 - HB0495 compared with HB0495S02 (b) [In the case of a plea of] When a defendant has pled guilty to a capital felony, the sentencing [proceedings shall be] proceeding described in Subsection (1)(a) is conducted before:

or (ii)- upon4 request- ofEnrolled theCopy defendantH.B. and with the approval of the court and the consent of the prosecution, [by the court which] the court that accepted the plea.

(c)495 (i)(ii) Whenupon arequest defendant has been found guilty of a capital felony, the [proceedings shall be] sentencing proceeding described in Subsection (1)(a) is conducted before[ the court or jury which found the defendant guilty,and provided the defendant may waive hearing before the jury with the approval of the court and the consent of the prosecution, in[by whichthe eventcourt which] the hearingcourt shallthat beaccepted before the court.]plea. :

(c)(i) When a defendant has been found guilty of a capital felony, the [proceedings shall be] sentencing proceeding described in Subsection (1)(a) is conducted before[ the court or jury which found the defendant guilty, provided the defendant may waive hearing before the jury with the approval of the court and the consent of the prosecution, in which event the hearing shall be before the court.] :

(2)(2)(a) (a) In [capital sentencing proceedings] a sentencing proceeding described in Subsection (1)(a), evidence may be presented on:

(b)(b)(i) -Any 5 - HB0495 compared with HB0495S02 (i) {[Any evidence the court considers to have probative force may be received{]}received Relevant and reliable evidence may be received} regardless of [its] the evidence's admissibility under the [exclusionary ]rules of evidence.

(4)(4)(a) (a) As used in this Subsection (4), "mental condition" does not include an abnormality manifested primarily by repeated criminal conduct.

[(a)]- (i)5 the- defendantH.B. has no significant history of prior criminal activity;

495 Enrolled Copy [(a)] (i) the defendant has no significant history of prior criminal activity;

[(f)] (vi) the defendant was an accomplice in the homicide committed by another [person][ person] individual and the defendant's participation was relatively minor;

(5)(5)[(a)] [(a)] The court or jury, as the case may be, shall retire to consider the [penalty] defendant's sentence.[ {[} Except as provided in Subsections 76-3-207.5(2) and 76-3-206(2)(b), in all proceedings before a jury, under this section, it shall be instructed as to the punishment to be imposed upon a unanimous decision for death and that the penalty of either an indeterminate prison term of not less than 25 years and which may be for life or life in prison without parole, shall be imposed if a unanimous decision for death is not found.] [(b)] -(6)(a) 6 - HB0495 compared with HB0495S02 (6) (a) Except as provided in Subsections 76-3-206(2)(b) and 76-3-207.5(2), the court shall instruct a jury in a sentencing proceeding for a capital felony on the punishment to be imposed in accordance with this Subsection (6).

(i)- discharge6 the- jury;Enrolled Copy H.B.

and[495 {[}(i) shalldischarge ] (ii) impose the sentencejury; of death.

and[ shall ] (ii) impose the sentence of death.

[(d)] (7) [If the defendant waives hearing before the jury as to sentencing, with the approval of the court and the consent of the prosecution] If the sentencing proceeding described in Subsection (1)(a) is conducted before the court as described in Subsection (1)(b) or (c), the court shall determine the appropriate penalty according to the standards of [Subsections[ Subsections (5)(b) and (c)] Subsection (6).

- 7 - HB0495 compared with HB0495S02 [(e)] (8) If the defendant is sentenced to more than one term of life in prison with or without the possibility of parole, or in addition to a sentence of life in prison with or without the possibility of parole the defendant is sentenced for other offenses [which] that result in terms of imprisonment, the [judge] court shall determine whether the terms of imprisonment shall be imposed as concurrent or consecutive sentences in accordance with Section 76-3-401.

In cases of remand for new sentencing proceedings, all exhibits and a transcript of all testimony and other evidence properly- admitted7 in- theH.B. prior trial and sentencing proceedings are admissible in the new sentencing proceedings, and if the sentencing proceeding was before a:] [(a) jury, a new jury shall be impaneled for the new sentencing proceeding unless the defendant waives the hearing before the jury with the approval of the court and the consent of the prosecution, in which case the proceeding shall be held according to Subsection (6)(b) or (c), as applicable;] [(b) judge, the original trial judge shall conduct the new sentencing proceeding;

or]495 [(c)Enrolled judge,Copy andproperly admitted in the originalprior trial judgeand issentencing unableproceedings orare unavailableadmissible toin conductthe a new sentencing proceeding,proceedings, thenand anotherif judgethe shallsentencing beproceeding designatedwas tobefore conducta:] the[(a) newjury, sentencinga proceeding,new andjury theshall newbe proceedingimpaneled willfor bethe beforenew asentencing juryproceeding unless the defendant waives the hearing before the jury with the approval of the court and the consent of the prosecution.]prosecution, (9)in (a)which Ifcase athe defendantproceeding isshall sentencedbe held according to death,Subsection (6)(b) or (c), as applicable;] [(b) judge, the courtoriginal shall:trial judge shall conduct the new sentencing proceeding;

(i)or] advise[(c) judge, and the defendantoriginal ,trial atjudge is unable or unavailable to conduct a new sentencing proceeding, then another judge shall be designated to conduct the new sentencing proceeding, and the new proceeding ,will ofbe before a jury unless the defendant'sdefendant rightwaives tothe ahearing directbefore appealthe andjury with the approval of the provisionscourt forand postconvictionthe reliefconsent inof Titlethe 78B,prosecution.] Chapter(9)(a) 9,If Parta 1,defendant Generalis Provisions;sentenced to death, the court shall:

(i) advise the defendant, at the sentencing proceeding, of the defendant's right to a direct appeal and of the provisions for postconviction relief in Title 78B, Chapter 9, Part 1, General Provisions;

(10)(10)(a) - 8 - HB0495 compared with HB0495S02 (a) If a defendant is convicted and sentenced to death for a capital felony and the defendant waives the defendant's right to an appeal or fails to file a timely notice of appeal:

(b) The Supreme Court shall conduct the automatic review of a defendant's case {described in Subsection (10)(a)(i) } within 120 days after the day on which the sentencing court certifies the entire record of the defendant's case.

(c) Except as provided in Subsection (10)(d), an automatic review {described in Subsection (10)(a) } is conducted without briefing from any party.

(d) If the Supreme Court determines that the conviction should be modified, or the conviction- or8 sentence- shouldEnrolled beCopy vacated,H.B. upon an automatic review {described in Subsection (10)(a)} :

495 conviction or sentence should be vacated, upon an automatic review:

(11)(11)(a) (a) A reversible error in a sentencing proceeding for a capital felony does not result in the reversal of the conviction for the capital felony.

(12)(12)(a) (a) An automatic review described in Subsection (10) has priority over all other cases before the Supreme Court.

- 9 - HB0495 compared with HB0495S02 (c) A petition for post-convictionpostconviction relief in a capital case has priority over all other cases in the district court, except for a trial of a capital felony case, and should be expedited.

and (ii) the original trial judge is unable or unavailable to conduct the new sentencing proceeding.- 9 - H.B.

[(7)]495 (14)Enrolled IfCopy theproceeding. [penalty] sentence of death is held to be unconstitutional by the Utah Supreme Court or the United States Supreme Court, the court having jurisdiction over a [person] defendant previously sentenced to death for a capital felony shall:

[(7)] (14) If the [penalty] sentence of death is held to be unconstitutional by the Utah Supreme Court or the United States Supreme Court, the court having jurisdiction over a [ person] defendant previously sentenced to death for a capital felony shall:

[(8)] (15)(15)(a) (a) If the appellate court's final decision regarding any appeal of a sentence of death precludes the imposition of [the death penalty{]penalty the sentence of death} due to {[} mental retardation{]retardation intellectual disability} or subaverage general intellectual functioning under Section 77-15a-101] the sentence of death due to an intellectual disability as described in Section 77-15a-101.5, the court having jurisdiction over a defendant previously sentenced to death for a capital felony shall:

(b) If the appellate court precludes the imposition of the [death penalty] sentence of death under Subsection [(8)(a)] (15)(a), but the appellate court finds that sentencing the defendant to life in prison without parole is likely to result in a manifest injustice, [it] the appellate court may remand - 10 - HB0495 compared with HB0495S02 the case to the sentencing court for [further sentencing proceedings] a sentencing proceeding to determine if the defendant should serve a sentence of life in prison without parole or an indeterminate prison term of not less than 25 years and which may be for life.

77-15-5.77-15-5 .

(d)- shall10 hold- aEnrolled hearing,Copy ifH.B. the petition is opposed by either party;

495 (d) shall hold a hearing, if the petition is opposed by either party;

(3)(3)(a) (a) If the court finds that there is a bona fide doubt as to the defendant's competency to stand trial, the court shall order the department to have one or two forensic evaluators complete a competency evaluation for the defendant in accordance with Subsection (3)(b) and provide a report to the court regarding the competency of the defendant to stand trial.

(c)(c)(i) - 11 - HB0495 compared with HB0495S02 (i) This section does not prohibit a party from seeking an additional forensic evaluator to conduct a competency evaluation of the defendant.

(4)(4)(a) (a) If the petition or other information sufficiently raises concerns that the defendant may have an intellectual disability, at least one forensic evaluator who is experienced in assessments of intellectual disabilities shall conduct a competency evaluation.

(b) The petitioner or other party, as directed by the court or requested by the department, shall provide to the forensic evaluator nonmedical information and materials relevant to a determination of the defendant's competency, including the charging document, arrest or incident reports pertaining to the charged offense, known criminal history information,- and11 known- priorH.B. mental health evaluations and treatments.

495 Enrolled Copy information, and known prior mental health evaluations and treatments.

(e)(e)(i) - 12 - HB0495 compared with HB0495S02 (i) Except as otherwise provided by law and in Subsections (4)(e)(ii) and (4)(f), the court shall order the forensic evaluator to destroy all records subject to the protective order within the 180 day period described in Subsection (4)(d).

(6) In the conduct of a competency evaluation and in a report to the court, a forensic evaluator- shall12 consider- andEnrolled address,Copy inH.B. addition to any other factors determined to be relevant by the forensic evaluator:

495 evaluator shall consider and address, in addition to any other factors determined to be relevant by the forensic evaluator:

- 13 - HB0495 compared with HB0495S02 (iii) understand the range of possible penalties associated with the charges or allegations against the defendant;

(8)(8)(a)(i) (a) (i) A forensic evaluator shall provide an initial report to the court and the prosecuting- and13 defense- attorneysH.B. within 30 days of the receipt of the court's order.

495 Enrolled Copy prosecuting and defense attorneys within 30 days of the receipt of the court's order.

(b)(b)(i) (i) If the forensic evaluator is unable to complete the report in the time specified in Subsection (8)(a), the forensic evaluator shall give written notice to the court.

- 14 - HB0495 compared with HB0495S02 (ii) A forensic evaluator who provides the notice described in Subsection (8)(b)(i) shall receive a 15-15-day day extension, giving the forensic evaluator a total of 45 days after the day on which the forensic evaluator received the court's order to conduct a competency evaluation and file a report.

(10)(10)(a) (a) Any statement made by the defendant in the course of any competency examination, whether the examination is with or without the consent of the defendant, any testimony by a forensic evaluator based upon the statement, and any other fruits of the statement may not be admitted in evidence against the defendant in any criminal proceeding except on an issue respecting mental condition on which the defendant- has14 introduced- evidence,Enrolled unlessCopy theH.B. evidence is relevant to a determination of the defendant's competency.

495 defendant has introduced evidence, unless the evidence is relevant to a determination of the defendant's competency.

(11)(11)(a) - 15 - HB0495 compared with HB0495S02 (a) Upon receipt of the forensic evaluators' reports, the court shall set a date for a competency hearing.

(d)(d)(i) (i) If the forensic evaluators are in conflict as to the competency of the defendant, all forensic evaluators should be called to testify at the hearing if reasonably available.

(12)(12)(a)(i) (a) (i) A defendant shall be presumed competent to stand trial unless the court, by a preponderance of the evidence, finds the defendant incompetent to proceed.

(d)- subject15 to- SubsectionH.B. (15), whether the defendant was found incompetent to proceed in a criminal action unrelated to the charged offense for which the petition is filed;

495 Enrolled Copy (d) subject to Subsection (15), whether the defendant was found incompetent to proceed in a criminal action unrelated to the charged offense for which the petition is filed;

- 16 - HB0495 compared with HB0495S02 (f) the forensic evaluator's testimony and report;

Section 77-15a-101.177-15a-101.1, which is renumbered from Section 77-15a-102 is renumbered and amended to read:

[77-15a-102] 77-15a-101.1.77-15a-101.1 .

(a)- [the16 defendant- hasEnrolled ]significantCopy subaverageH.B. general intellectual functioning that [results in and ]exists concurrently with significant deficiencies in adaptive functioning[ that exist primarily in the areas of reasoning or impulse control, or in both of these areas];

and495 -(a) 17[the -defendant HB0495has compared]significant with HB0495S02 [(2)] (b) the subaverage general intellectual functioning that [ results in and the]exists concurrently with significant deficiencies in adaptive functioningfunctioning[ [underthat Subsectionexist (1)]primarily described in Subsectionthe (1)(a)areas areof bothreasoning manifestedor [priorimpulse tocontrol, ageor 22]in beforeboth theof individualthese isareas]; 22 years old.

and [(2)] (b) the subaverage general intellectual functioning and the significant deficiencies in adaptive functioning [under Subsection (1)] described in Subsection (1)(a) are both manifested [prior to age 22] before the individual is 22 years old.

Section 77-15a-101.577-15a-101.5, which is renumbered from Section 77-15a-101 is renumbered and amended to read:

[77-15a-101] 77-15a-101.5.77-15a-101.5 .

Intellectually disabled defendant not subject to a sentence of deathdeath. {-- Defendant with significant subaverage functioning not subject to sentence of death if confession not corroborated} .

[(2) A defendant who does not meet the definition of intellectually disabled under Section {[}77-15a-102 77-15a-102{] 77-15a-101.1} is not subject to {[} the death penalty{]penalty a sentence of death} if:] [(a) the defendant has significantly subaverage general intellectual functioning that exists concurrently with significant deficiencies in adaptive functioning;] [(b) the functioning described in Subsection (2)(a) is manifested {[} prior to age 22{]22; before the defendant is 22 years old};

77-15a-104.77-15a-104 .

[(1)[(1)(a) (a) If a defendant proposes to offer evidence concerning or argue that he qualifies for an exemption from the death penalty under Subsection 77-15a-101(1) or (2), the defendant shall file and serve the prosecuting attorney with written notice of his intention as soon as practicable, but not fewer than 60 days before trial.] - 18 - HB0495 compared with HB0495S02 [(b) If the defendant wishes to claim the exemption provided in Subsection 77-15a-101(2), the defendant shall file and serve the prosecuting attorney with written notice of his intention as soon as practicable, but not fewer than 60 days before- trial.]17 [(2)- WhenH.B. notice is given under Subsection (1), the court raises the issue, or a motion is filed regarding Section 77-15a-101, the court may stay all proceedings in order to address the issue.] (1) If a prosecuting attorney files a notice of intent to seek a sentence of death, and unless the defendant objects to the appointment, the court shall appoint a prescreening psychologist to determine the defendant's intelligence quotient using the procedures for determining an intelligence quotient that are {community, nationally, and culturally accepted } the medical community's standards at the time of appointment.

(2)495 (a)Enrolled IfCopy before trial.] [(2) When notice is given under Subsection (1), the court raises the issue, or a defendantmotion objectsis filed regarding Section 77-15a-101, the court may stay all proceedings in order to address the appointmentissue.] of(1) If a prescreeningprosecuting psychologistattorney asfiles describeda innotice Subsectionof (1),intent to seek a sentence of death, and unless the defendant waivesobjects to the rightappointment, tothe assertcourt thatshall appoint a prescreening psychologist to determine the defendantdefendant's isintelligence intellectuallyquotient disabledusing the procedures for purposesdetermining ofan establishingintelligence quotient that are the defendantmedical iscommunity's notstandards subjectat tothe atime sentence of death.appointment.

(2)(a) If a defendant objects to the appointment of a prescreening psychologist as described in Subsection (1), the defendant waives the right to assert that the defendant is intellectually disabled for purposes of establishing that the defendant is not subject to a sentence of death.

(3)(3)(a) (3){(a)} Within {10 } 30 days after that day on which the defendant is tested by an appointed prescreening psychologist, the prescreening psychologist shall submit a written report to the court on the prescreening psychologist's determination of the defendant's intelligence quotient.

(4)(4)(a)(i) (a) (a){(i)} If a prescreening psychologist determines that the defendant's intelligence quotient is higher than 75:

(i){(A)}(A) the defendant shall present any evidence of {a lower intelligence quotient } significant subaverage general intellectual functioning or significant deficiencies in adaptive functioning - 19 - HB0495 compared with HB0495S02 within {10 } 30 days after the day on which the prescreening psychologist submits the report described in Subsection (3);

and (ii){(B)}(B) except as provided in Subsection (4)(c), the court shall make the prescreening psychologist's report available to the defendant but seal the report as to all other persons.

(ii) The court may grant the defendant an extension under Subsection (4)(a)(i)(A) upon- a18 showing- ofEnrolled goodCopy cause.H.B.

(b)495 Ifupon a prescreeningshowing psychologistof determinesgood thatcause. the defendant's intelligence quotient is higher than 75 and the defendant presents no contrary evidence under Subsection {(4)(a)(i)} (4)(a)(i)(A):

(b) If a prescreening psychologist determines that the defendant's intelligence quotient is higher than 75 and the defendant presents no contrary evidence under Subsection (4)(a)(i)(A):

or (c){(ii)}(ii) {The court shall release the prescreening psychologist's report on the motion of any party if } the defendant introduces the report in the case before or after conviction or in any related collateral proceeding.

(5) If the prescreening psychologist determines that the defendant's intelligence quotient is 75 or less, or the defendant presents evidence of {a lower intelligence quotient } an intellectual disability as described in Subsection {(4)(a)(i)} (4)(a)(i)(A):

[(3)] (6)(6)(a) (a) The court shall order the Department of Health and Human Services to appoint at least two mental health experts to examine the defendant and report to the court.

- 20 - HB0495 compared with HB0495S02 [(b)] (c) Upon appointment of [the experts] the examiners, the defendant, or other party as directed by the court, shall provide information and materials to the examiners relevant to a determination [of the defendant's intellectual disability] of whether the defendant is intellectually disabled, including:

(iii)- known19 criminal- historyH.B. information[, and ] ;

495 Enrolled Copy (iii) known criminal history information[, and ] ;

[(c)] (d) The court may make the necessary orders to provide the information listed in Subsection [(3)[(3)(b)] (b)] (6)(c) to the examiners.

[(5)] (8) [The experts] An examiner described in Subsection (6)(a) shall, in the conduct of [their[ their examinations and in their reports] the examiner's examinations and reports to the court, consider and address:

{(b)} and [(b) the degree of any intellectual disability the {[}expert expert{] examiner} finds to exist;] [(c) whether the defendant {[} is intellectually disabled as specified in Subsection 77-15a-101(2){]77-15a-101(2); possesses the mental deficiencies described in Subsection 77-15a-101.5(2)};

[(6)] (9)(9)(a) (a) [The experts examining the defendant] An examiner shall provide [written reports] a written report to the court, the prosecution, and the defense within 60 days [of[ of the receipt of] after the day on which the examiner receives the court's order, unless the [expert] examiner submits to the court a written request for additional time in accordance with Subsection [(6)(c)] (9)(c).

- 21 - HB0495 compared with HB0495S02 (b) The [reports] written report shall provide, to the court and to prosecution and defense counsel, the [examiners'] examiner's written opinions concerning [the intellectual disability of the defendant] whether the defendant is intellectually disabled.

(c) If an examiner requests of the court additional time, the examiner shall provide the report to the court and counsel within 90 days [from the receipt of the court's order unless, for good cause shown,] after the day on which the examiner receives the court's- order,20 unless- theEnrolled courtCopy authorizes,H.B. for good cause shown, an additional period of time to complete the examination and provide the report.

495 court's order, unless the court authorizes, for good cause shown, an additional period of time to complete the examination and provide the report.

[(9)] (12)(12)(a) (a) Except pursuant to Section 77-15a-105, this chapter does not prevent any party from producing any other testimony as to the [mental condition] intellectual or adaptive functioning of the defendant.

[(10)] (13)(13)(a) (a) [Expenses] The Department of Health and Human Services shall pay the expenses of examinations of the defendant ordered by the court under this section[ shall be paid by the Department of Health and Human Services].

(b) [Travel] The Department of Health and Human Services shall charge travel expenses associated with any court-ordered examination that are incurred by the defendant [shall[ shall be charged by the Department of Health and Human Services ]to the county where prosecution is commenced.

- 22 - HB0495 compared with HB0495S02 [(11)] (14)(14)(a)(i) (a) (i) When the report is received, the court shall set a date for a hearing that is within a reasonable time before jury selection to determine if the exemption under Section [77-15a-101] 77-15a-101.5 applies.[ {[} The hearing shall be held and the judge shall make the determination within a reasonable time prior to jury selection.] (ii) The court shall make a determination described in Subsection (14)(a)(i) within a reasonable time before jury selection.

(b) Prosecution and defense counsel may subpoena to testify at the hearing any person or organization appointed by the Department of Health and Human Services to conduct the- examination21 and- anyH.B. independent examiner.

(c)495 (i)Enrolled TheCopy courtthe mayexamination calland any examinerindependent toexaminer. testify at the hearing who is not called by the parties.

(c)(i) The court may call any examiner to testify at the hearing who is not called by the parties.

[(12)] (15)(15)(a) (a) A defendant is presumed not to be intellectually disabled unless the court, by a preponderance of the evidence, finds the defendant to be intellectually disabled.

[(13){][(13)(a) {(16)} } (a) The defendant is presumed not to possess the mental deficiencies listed in Subsection {[}77-15a-101(2) 77-15a-101(2){] 77-15a-101.5(2)} unless the court, by a preponderance of the evidence, finds that the defendant has significant subaverage general intellectual functioning that exists concurrently with significant deficiencies in adaptive functioning and that this functioning {[} was manifested prior to age 22{]22. manifested before the defendant was 22 years old}.

{(b)} The burden of proof is upon the proponent of that proposition.] [(b){][(b) {(c)} } If the court finds by a preponderance of the evidence that the defendant has significant subaverage general intellectual functioning that exists concurrently with significant deficiencies in adaptive functioning and that this functioning {[} was manifested prior to age 22, then{]then manifested - 23 - HB0495 compared with HB0495S02 before the defendant was 22 years old,} the burden is upon the state to establish that any confession by the defendant {[}which which{] that} the state intends to introduce into evidence is supported by substantial evidence independent of the confession.] [(14)] (17){(16)}(16)(a) (a) If the court finds the defendant is intellectually disabled, [it] the court shall issue an order:

[(b) If the court finds by a preponderance of the evidence that the defendant possesses the mental deficiencies listed in Subsection {[} 77-15a-101(2) {]and 77-15a-101.5(2) }and that the state fails to establish that any confession is supported by substantial evidence independent of the confession, the state may proceed with {[}its its{] the state's} case and:] [(i) introduce the confession into evidence, and {[} the death penalty{]penalty a sentence of death} will not be a sentencing- option22 in- theEnrolled case;Copy H.B.

or]495 [(ii) not introduce into evidence any confession or the fruits of a confession that the court has found is not supported by substantial evidence independent of the confession, and {[} the death penalty{] a sentence of death} will be a sentencing option in the case.]case; [(c)] (b) (i) A finding by the court regarding whether the defendant qualifies for an exemption under Section [77-15a-101] 77-15a-101.5 is a final determination of that issue for purposes of this chapter.

(ii)or] [The[(ii) followingnot questions]introduce Whetherinto evidence any confession or the defendantfruits of a confession that the court has found is intellectuallynot disabledsupported forby purposessubstantial evidence independent of thisthe chapterconfession, mayand notthe death penalty will be submitteda tosentencing theoption juryin bythe instruction,case.] special[(c)] verdict,(b)(i) argument,A orfinding otherby means.[:]the [(A)court regarding whether the defendant qualifies for an exemption under Section [77-15a-101] 77-15a-101.5 is intellectuallya disabledfinal determination of that issue for purposes of this chapter;chapter.

and](ii) [(B)[The whetherfollowing thequestions] defendantWhether possesses the mentaldefendant deficienciesis {[}intellectually specifieddisabled infor Subsectionpurposes 77-15a-101(2){]of describedthis in Subsection 77-15a-101.5(2)}.] (iii) This chapter doesmay not preventbe thesubmitted defendantto fromthe submittingjury evidenceby ofinstruction, intellectualspecial disabilityverdict, argument, or other mentalmeans[:] deficiency. to establish a mental condition as a mitigating circumstance under Section 76-3-207.

[(15)[(A) Awhether ruling by the court that the defendant is exemptintellectually fromdisabled thefor deathpurposes penaltyof may be appealed by the state pursuant to Section 77-18a-1.] - 24 - HB0495 compared with HB0495S02 [(16)] (18){(17)} Failure to comply with this sectionchapter; does not result in the dismissal of criminal charges.

and] [(B) whether the defendant possesses the mental deficiencies specified in Subsection 77-15a-101(2).] (iii) This chapter does not prevent the defendant from submitting evidence of intellectual disability or other mental deficiency to establish a mental condition as a mitigating circumstance under Section 76-3-207.

[(15) A ruling by the court that the defendant is exempt from the death penalty may be appealed by the state pursuant to Section 77-18a-1.] [(16)] (17) Failure to comply with this section does not result in the dismissal of criminal charges.

77-15a-105.77-15a-105 .

(1) [If the defendant files notice, raises the issue, or intends to present evidence or make an argument that the defendant is exempt from the death penalty] If the defendant presents evidence {of } or makes an argument that the defendant is exempt from a sentence of death under this chapter, the defendant shall make himself or herself available and fully cooperate in any examination by mental health experts appointed by the Department of Health and Human Services and any other independent examiners for the defense or the prosecution.

(2) If the defendant wilfully fails to make himself or herself available and fully cooperate in the examination, and that failure is established to the satisfaction of the court, the defendant is barred from presenting expert testimony relating to any exemption from [the[ death- penalty]23 a- sentenceH.B. of death under this chapter.

495 Enrolled Copy the death penalty] a sentence of death under this chapter.

77-18a-1.77-18a-1 .

(1) {(a)} A defendant may, as a matter of right, appeal from:

{[(a){]}(a) {(i)} } a final judgment of conviction, whether by verdict or plea;

{[(b){]}(b) {(ii)} } an order made after judgment that affects the substantial rights of the defendant;

{[(c){]}(c) {(iii)} } an order adjudicating the defendant's competency to proceed further in a pending prosecution;

{[or]}or {[(d){]}(d) {(iv)} } an order denying bail under Chapter 20, Bail{[.{]}Bail. ;

or} {(v) an order finding the defendant is not intellectually disabled after an examination and hearing as described in Section 77-15a-104.} {(b) Notwithstanding Subsection (1)(a)(ii), a defendant may not, as a matter of right, appeal from an order on a petition to adjudicate the defendant's competency to be executed under Chapter 19, Part 2, Competency for Execution.} (2) In addition to any appeal permitted by Subsection (1), a defendant may seek discretionary appellate review of any interlocutory order.

- 25 - HB0495 compared with HB0495S02 (3) The prosecution may, as a matter of right, appeal from:

(4) In addition to any appeal permitted by Subsection (3), the prosecution may seek discretionary appellate review of any interlocutory order entered before jeopardy attaches.- 24 - Enrolled Copy H.B.

495 attaches.

77-19-6.77-19-6 .

[(1)[(1)(a) (a) When judgment of death is rendered, a warrant, signed by the judge and attested by the clerk under the seal of the court, shall be drawn and delivered to the sheriff of the county where the conviction is had.] (1)(1)(a) (a) When a judgment of death is rendered for a defendant, the sentencing court shall:

- 26 - HB0495 compared with HB0495S02 (i) immediately transmit a statement of the conviction and sentence and a summary of the evidence given at trial to the Board of Pardons and Parole;

(2)(2)(a) (a) [The] Subject to Subsection (2)(b), the warrant shall state the conviction, the [judgment][ judgment] sentence, the method of execution, and the [appointed day the judgment is to be executed, which may not be fewer than 30 days nor more than 60 days from the date of issuance of the warrant, and may not be ] day on which the sentence is to be executed.

77-19-8.77-19-8 .

[(1) Except as stated in Subsection (2), a judge, tribunal, or officer, other than the governor or the Board of Pardons and Parole, may not stay or suspend the execution of a {[}judgment judgment{] sentence} of death.] [(2)[(2)(a) (a) A court {[} of competent jurisdiction {]} shall issue a temporary stay of {[}judgment judgment{] a sentence} of death when:] [(i) the judgment is appealed;] [(ii) the judgment is automatically reviewed{ in accordance with Subsection 76-3-207(11)};] [(iii) the {[} person{] individual} sentenced to death files{:} {(A)} a first petition for postconviction relief {[} after the direct appeal {]} under Title 78B, Chapter 9, Postconviction Remedies Act;] - 2725 - HB0495H.B. compared with HB0495S02 [(iv) { or} {(B) {a timely notice of appeal from a final order of a first petition for postconviction relief;} (iv) the {[} person sentenced to death requests{] individual sentenced to death is appointed} counsel under Subsection {[} 78B-9-202(2)(a){] 78B-8-202(1)} to represent the {[} person{] individual} in a first action for postconviction relief under Title 78B, Chapter 9, Postconviction Remedies Act;

or]495 [(v)Enrolled counselCopy enters[(i) anthe appearancejudgment tois representappealed;] [(ii) the {[}judgment person{]is individual}automatically reviewed;] [(iii) the person sentenced to death infiles a first actionpetition for postconviction relief after the direct appeal under Title 78B, Chapter 9, Postconviction Remedies Act.]Act;] {(b)[(iv) Athe courtperson maysentenced grantto adeath temporaryrequests staycounsel tounder determineSubsection competency78B-9-202(2)(a) to berepresent executed in accordance with Part 2, Competency for Execution.} [(b){] {(c)} } A court may not issue a temporary stay of {[} judgment{] a sentence} of death when the {[}person person{]in individual} sentenced to death files a petitionfirst action for postconviction relief under Title 78B, Chapter 9, Postconviction Remedies Act,{Act; or a timely notice of appeal from a final order on the petition,} after a first petition{ of postconviction relief} has been denied or dismissed, unless the court first finds all of the following:] [(i) the claims would not be barred under Section 78B-9-106;] [(ii) the claims are potentially meritorious;

and]or] [(iii)[(v) counsel enters an appearance to represent the petition{person orsentenced appeal}to death in a first action for postconviction relief under Title 78B, Chapter 9, Postconviction Remedies Act.] [(b) A court may not beissue reasonablya disposedtemporary stay of beforejudgment of death when the executionperson date.]sentenced [(c)]to {(d)}death (1)files Excepta aspetition providedfor inpostconviction thisrelief section,under aTitle court,78B, tribunal,Chapter or9, officer,Postconviction otherRemedies thanAct, theafter governora first petition has been denied or dismissed, unless the Boardcourt first finds all of Pardonsthe andfollowing:] Parole,[(i) maythe claims would not staybe orbarred suspendunder theSection execution78B-9-106;] of[(ii) athe sentenceclaims ofare death.potentially meritorious;

and] [(iii) the petition may not be reasonably disposed of before the execution date.] [(c)] (1) Except as provided in this section, a court, tribunal, or officer, other than the governor or the Board of Pardons and Parole, may not stay or suspend the execution of a sentence of death.

[(i)] (3)(3)(a) (a) The executive director of the Department of Corrections[ or a designee under Section 77-19-202] , or the executive director's designee, may temporarily suspend the execution of a sentence of death under Section 77-19-202 if the [person] individual sentenced to death appears to be incompetent or pregnant.

[(ii)] (b) A temporary suspension under Subsection [(2)(c)(i)] {(2)(d)(i)} (3)(a) shall end if the [person][ person] individual is determined to be:

- 28 - HB0495 compared with HB0495S02 [(B)] (ii) not pregnant;

{(3)(4) {If a court issued a temporary stay under Subsection (2)(a)(ii), the court shall vacate the stay when the automatic review of the defendant's sentence is concluded.} } {(4) {If a court issued a temporary stay under Subsection (2)(a)(iv) or (v), the court shall vacate the stay if a petition for postconviction relief under Title 78B, Chapter 9, Postconviction Remedies Act, is not filed before the statute of limitations passes under Section 78B-9-107.} } {(5) {Except as provided in Subsection (3) or (4), a stay issued by a court under Subsection (2) automatically expires upon the entry of a final order disposing of the action that triggered the stay.} } (6){(4)} If a stay is vacated or expires before the day on which the sentence is to be executedandexecuted and the sentence remains in force, the issuance of a new order of execution and warrant is not- required26 to- executeEnrolled theCopy sentence.H.B.

[(3)495 (a)not Therequired court must vacate a stay issued pursuant to Subsectionexecute (2)(a) when the appeal,sentence. automatic review, or action under Title 78B, Chapter 9, Postconviction Remedies Act is concluded.] [(b){] {(7)} } {[} A request for{] The appointment of} counsel under Section 78B-9-202 does not constitute an application for postconviction or other collateral review and does not toll the statute of limitations under Section 78B-9-107.] Section 11.

[(3)(a) The court must vacate a stay issued pursuant to Subsection (2)(a) when the appeal, automatic review, or action under Title 78B, Chapter 9, Postconviction Remedies Act is concluded.] [(b) A request for counsel under Section 78B-9-202 does not constitute an application for postconviction or other collateral review and does not toll the statute of limitations under Section 78B-9-107.] Section 11.

77-19-9.77-19-9 .

The court shall also draw and have delivered another warrant under Section 77-19-6.] - 29 - HB0495 compared with HB0495S02 (1) If for any reason a sentence of death has not been executed and remains in force, the attorney general, or the county or district attorney in the county or district in which the conviction occurred, may apply for an order of execution from the court in which the conviction occurred.

(2)(2)(a) (2){(a)} Within 21 days after the application is filed, the court shallshall: {hold a hearing to consider the application and any response filed by the defendant.} :

{(3) } {(a) {Upon a hearing described in Subsection (2), the court shall:} } (i) subject to Subsections {(3)(b) } (2)(b) and (c), enter an order requiring the executive director of the Department of Corrections, or the executive director's designee, to ensure that the sentence is executed on a specified day if no legal reason exists against the execution of a sentence for death;

(b) {The } Except as provided in Subsection (2)(c), the specified day described in Subsection {(3)(a)(i) } (2)(a)(i) may not be:

(i) sooner than 30 days after, or later than 60 days after, the day on which the court enters- the27 orderfor- execution;H.B.

495 Enrolled Copy enters the order for execution;

(c) If the defendant seeks review of a finding of competency by the Supreme Court and the Supreme Court does not set the finding of competency aside, the specified day described in Subsection (2)(a)(2)(a)(i) (i) may not be:

(c){(d)}(d) No legal reason exists under Subsection {(3)(a)(i) } (2)(a)(i) if:

{[(3){]}(3) {(4)} } The Department of Corrections shall determine the hour, within the [appointed] specified day, at which the [judgment] sentence is to be executed.

-77-19-10 30. - HB0495 compared with HB0495S02 77-19-10.

(3) If the [judgment] sentence of death is to be carried out by firing squad under Subsection 77-18-113(2), (3), or (4) the executive director of the department or a designee shall select a five-five-person person firing squad of peace officers.

(6) The department shall adopt and enforce rules governing procedures for the execution of [judgments][ sentences- of28 death.- Enrolled Copy H.B.

495 judgments] sentences of death.

77-19-201.Part 2.

Issues of Pregnancy and Competency for Execution 77-19-201 .

2.As used in this part:

Issues of Pregnancy and Competency for Execution As used in this part:

77-19-202.77-19-202 .

-(2) 31 - HB0495 compared with HB0495S02 {(2) } (a){(2)} The executive director shall immediately give written notice to the sentencing court, the prosecuting attorney, the attorney general, and defense counsel for an inmate if:

(i){(a)}(a) the inmate has been sentenced to death;

(ii){(b)}(b) all state and federal appeals or review attacking the sentence have been exhausted;

(iii){(c)}(c) an active warrant for execution has been signed and an execution date has been set as described in Sections 77-19-6 and 77-19-9;

and (iv){(d)}(d) the executive director has good reason to believe that:

(A){(i)}(i) the inmate is pregnant;

or (B){(ii)}(ii) the inmate's competency to be executed under this chapter should be addressed by the sentencing court.

{(b) {If the sentencing court receives a notice under Subsection (2)(a), the execution of the sentence of death shall be stayed pending further order of the court.} } (3) If the sentencing court receives a notice under Subsection {(2)(a) } (2) that there is good reason for the sentencing court to address an inmate's competency to be executed, the sentencing court shall order that the mental condition of the inmate be examined under the provisions of Section 77-19-204, including holding a hearing at which the state and the inmate may appear as parties.

Section 1577-19-202.5 is enacted to read:

77-19-202.5.77-19-202.5 .

{(1)(1) {If the sentencing court finds that an inmate sentenced to death is pregnant, the sentencing court shall:} } (a){(1)} If the sentencing court finds that an inmate sentenced to death is pregnant, the sentencing court shall immediately transmit a certificate of the finding to the Department of Corrections and the Board of Pardons and Parole{;Parole.

and}- .29 - H.B.

{(b)495 {issueEnrolled anCopy order staying the execution of the sentence of death during the pregnancy.} } (2) When the sentencing court finds that an inmate sentenced to death is no longer pregnant, the sentencing court shall:

and (b) except as provided in Subsection {77-19-8(6)} 77-18-8(4), draw and deliver another warrant in accordance with Section 77-19-6, with a copy of the certificate of the finding.

(3)(3)(a) - 32 - HB0495 compared with HB0495S02 (a) Subject to Subsection (3)(b), the warrant shall state the day on which the sentence is to be executed.

77-19-203.77-19-203 .

(a) contain a certificate stating that it is filed in good faith and {[onon reasonable grounds to believe the inmate is incompetent to be executed{]}executed; not for the purpose of delay};

and (b) contain a specific recital of the facts, observations, and conversations with the inmate [that[ that form the basis for the petition] that give rise to the belief that the inmate may not be competent to be executed.

(4)(4)(a) (a) A {motion } petition for an examination of the inmate that is filed fewer than 21 days before the day on which the inmate is scheduled to be executed is untimely.

(b) A court may not consider a {motion } petition that is untimely under Subsection (4)(a) unless the {motion } petition is accompanied by:

(i) at least one affidavit from a licensed physician or licensed psychologist who has examined the inmate and determined that, in the physician's or psychologist's opinion,- the30 inmate- isEnrolled notCopy competentH.B. to proceed;

and495 (ii)opinion, athe statementinmate thatis establishesnot goodcompetent cause for the failure to fileproceed; a {motion } petition for examination in a timely manner.

-and 33(ii) - HB0495 compared with HB0495S02 [(4)] (5) Before ruling on a petitionstatement filedthat byestablishes angood inmatecause orfor [his] the inmate'sfailure counsel alleging that the inmate is incompetent to befile executed,a thepetition courtfor shallexamination givein thea statetimely andmanner. the Department of Corrections an opportunity to respond to the allegations of incompetency.

[(4)] (5) Before ruling on a petition filed by an inmate or [his] the inmate's counsel alleging that the inmate is incompetent to be executed, the court shall give the state and the Department of Corrections an opportunity to respond to the allegations of incompetency.

[(5) {(7)} {When a petition is filed under this section, a stay of a scheduled execution may only be granted if there are circumstances beyond the court's control that prevent the court from ruling on the petition before the scheduled execution date.} If a petition is filed after an inmate has previously been found competent under either this chapter or under Chapter 15, Defendant's Competency to Proceed, no further hearing on competency may be granted unless the successive petition:] [(a) alleges with specificity a substantial change of circumstances subsequent to the previous determination of competency;

Section 1777-19-203.5 is enacted to read:

77-19-203.5.77-19-203.5 .

(a) alleges with specificity a substantial change of circumstances {subsequent to } after the previous finding of competency by the court;

and - 34 - HB0495 compared with HB0495S02 (b) does not meet the requirements of Subsection (1)(c) if any of the new facts described in- Subsection31 (2)(a)- wereH.B. known to the defense before the previous finding of the court that the inmate was competent to be executed.

495 Enrolled Copy in Subsection (2)(a) were known to the defense before the previous finding of the court that the inmate was competent to be executed.

{(4) {When a successive petition is filed, a stay of a scheduled execution is disfavored and may only be granted upon a showing of extraordinary circumstances.} } Section 18.

77-19-204.77-19-204 .

(b) a petition is filed with the court that complies with Section 77-19-203 and the court has good reason to believe the inmate may {by } be incompetent to be executed;

(2)(2)(a) (a) The inmate subject to examination under Subsection (1) shall be examined by at least two mental health experts who are not involved in the inmate's current treatment.

- 35 - HB0495 compared with HB0495S02 (3) The inmate shall make himself or herself available and fully cooperate in the examination by the Department of Health and Human Services and any other independent examiners for the defense or the state.

(4) [The examiners] An examiner shall in the conduct of [their] the examiner's examinations and in [their] the examiner's reports to the court consider and address, in addition to any other- factors32 determined- toEnrolled beCopy relevantH.B. by the [examiners] examiner:

495 other factors determined to be relevant by the [examiners] examiner:

(5)(5)(a) (a) [The examiners who are] An examiner who is examining the inmate shall [each provide an initial] provide a report to the court and the attorneys for the state and the inmate within [60 days of the receipt of the court's order] 30 days after the day on which the examiner received the court's order for an examination of the inmate.

(6)(6)(a) (a) All interviews with the inmate conducted by the examiners shall be videotaped, unless otherwise ordered by the court for good cause shown.

[(b)] (c) Immediately following the videotaping, the videotape shall be provided to the attorney for the state, who shall deliver [it] the videotape as soon as practicable to the [judge][ judge] court in whose court the competency determination is pending.

- 36 - HB0495 compared with HB0495S02 [(c)] (d) The court shall grant counsel for the state and for the inmate, and [examiners who are] an examiner who is examining the inmate under this part access to view the videotape at the court building where the court is located that is conducting the competency determination under this part.

(c)- state33 the- examiner'sH.B. clinical observations, findings, and opinions on each issue referred for examination by the court, and indicate specifically those issues, if any, on which the examiner could not give an opinion;

495 Enrolled Copy (c) state the examiner's clinical observations, findings, and opinions on each issue referred for examination by the court, and indicate specifically those issues, if any, on which the examiner could not give an opinion;

(8)(8)(a)(i) (a) (i) When [the reports] all reports from examiners are received, the court shall set a date for a competency hearing[, which shall be held within not less than five and not more than 15 days, unless the court extends the time for good cause.] .

(b)(b)(i) (i) Any examiner directed by the Department of Health and Human Services to conduct the examination may be subpoenaed to provide testimony at the hearing.

(c)(c)(i) (i) The court may call any examiner to testify at the hearing who is not called by the parties.

(9)(9)(a)(i) (a) (i) An inmate shall be presumed competent to be executed unless the court, by a preponderance of the evidence, finds the inmate incompetent to be executed.

- 37 - HB0495 compared with HB0495S02 (ii) The burden of proof is upon the proponent of incompetency at the hearing.

(10)(10)(a) (a) If the court finds the inmate incompetent to be executed, [its] the court's order shall contain findings addressing each of the factors in Subsections (4)(a) through (d).

and [(iii)] (C) any other documents made available to the court by either the defense or the- state,34 pertaining- toEnrolled theCopy inmate'sH.B. current or past mental condition.

495 the state, pertaining to the inmate's current or past mental condition.

Section 1977-19-204.5 is enacted to read:

77-19-204.5.77-19-204.5 .

(a) any stay imposed by the court is automatically liftedaslifted as described in Utah Rules of Criminal Procedure, Rule 27;

and (b) except as provided in Subsection {77-19-8(6)} 77-19-8(4), the court shall draw and deliver another warrant of execution, with a copy of the certificate of findings, in accordance with Section 77-19-6.

77-19-205.77-19-205 .

-(1)[(a)(i) 38 - HB0495 compared with HB0495S02 (1) [(a) {[(i)} If after the hearing under Section 77-19-204 the inmate is found to be incompetent to be executed{]executed, If an inmate is found incompetent to be executed after the hearing described in Section 77-19-204 and the stay of the execution has not been issued}, the court shall {[} continue the stay of execution and the inmate shall receive appropriate mental health treatment{]treatment.] issue(a)(i) a stay of the execution}.] (b){(a)} (i) Upon an inmate being found incompetent to be executedafterexecuted after a hearing described in Section 77-19-204:

{and} (B) if a stay has not been issued by the court, the court shall issue a stay as described in Utah Rules of Criminal Procedure, Rule 27;

and (B){(C)}(C) the inmate shall receive appropriate mental health treatment.

{[(b){]}(b) {(c)} } The court shall order the executive director of the Department of Health and Human Services to provide periodic assessments to the court regarding the inmate's competency to be executed.

{[(c){]}(c) {(d)} } The inmate shall be held in secure confinement, either at the prison or the State Hospital,- as35 agreed- uponH.B. by the executive director of the Department of Corrections and the executive director of the Department of Health and Human Services.

(e){(d)}495 IfEnrolled theCopy inmateHospital, remainsas atagreed upon by the prison,executive director of the Department of HealthCorrections and Humanthe Servicesexecutive shalldirector consultof with the Department of CorrectionsHealth regardingand theHuman inmate'sServices. mental health treatment.

(2)(d) (a)If [Thethe examinerinmate orremains examiners]at An examiner designated by the executiveprison, director of the Department of Health and Human Services toshall assessconsult with the inmate'sDepartment progressof towardCorrections competencyregarding may not be involved in the routineinmate's treatmentmental ofhealth thetreatment. inmate.

-(2)(a) 39 - HB0495 compared with HB0495S02 (b) [The examiner or examinersexaminers] ] An examiner shalldesignated eachby providethe aexecutive fulldirector reportof to the courtDepartment andof counselHealth forand theHuman stateServices andto assess the inmateinmate's withinprogress 90toward dayscompetency [ofmay receiptnot ofbe theinvolved court'sin order] after the dayroutine ontreatment whichof the examinerinmate. receives the court's order.

(b) [The examiner or examiners ] An examiner shall each provide a full report to the court and counsel for the state and the inmate within 90 days [of receipt of the court's order] after the day on which the examiner receives the court's order.

(4)(4)(a) (a) Upon receipt of the full report, the court shall hold a hearing to determine the inmate's current status.

(5)(5)(a) (a) If the court determines that the inmate is competent to be executed, [it] the court shall- enter36 findings- andEnrolled shallCopy proceedH.B. under [Subsection 77-19-202(2)(c)] Section 77-19-204.5.

(b)495 (i)shall Ifenter thefindings courtand determinesshall theproceed inmateunder is[Subsection still77-19-202(2)(c)] incompetentSection to77-19-204.5. be executed[,] :

(b)(i) If the court determines the inmate is still incompetent to be executed[,] :

and - 40 - HB0495 compared with HB0495S02 (B) the court shall hold hearings no less frequently than at 18-month intervals for the purpose of determining the [defendant's] inmate's competency to be executed.

(6)(6)(a) (a) [If ] The court shall be notified if, at any time, the clinical director of the Utah State Hospital or the primary treating mental health professional determines that the inmate has been restored to competency[, he shall notify the court].

78A-3-102.78A-3-102 .

(3)(3)(a) (a) The Supreme Court has exclusive and original appellate jurisdiction, including exclusive and original appellate jurisdiction of an interlocutory appeal, over:

(iii)- the37 discipline- ofH.B. a lawyer;

-495 41Enrolled -Copy HB0495(iii) comparedthe withdiscipline HB0495S02of (iv) a finallawyer; order of the Judicial Conduct Commission;

(iv) a final order of the Judicial Conduct Commission;

(4)(4)(a) (a) In addition to Subsection (3)(a), the Supreme Court has original appellate jurisdiction, including original appellate jurisdiction of an interlocutory appeal, over:

or - 4238 - HB0495Enrolled comparedCopy withH.B. HB0495S02 (F) the executive director of the Department of Natural Resources reviewing an action of the Division of Forestry, Fire, and State Lands;

495 (F) the executive director of the Department of Natural Resources reviewing an action of the Division of Forestry, Fire, and State Lands;

(5)(5)(a) (a) The Supreme Court may not exercise subject matter jurisdiction over a claim for ineffective assistance of counsel in an appeal from, or upon an automatic review of, a conviction or sentence for a capital felony where the sentence is death.

[(5)] (6)(6)(a) (a) The Supreme Court has sole discretion in granting or denying a petition for writ of certiorari for the review of a Court of Appeals adjudication.

78A-5-102.78A-5-102 .

- 43 - HB0495 compared with HB0495S02 (2) A district court judge may:

(a) issue all extraordinary writs and other writs necessary to carry into effect the district court- judge's39 orders,- judgments,H.B. and decrees;

495 Enrolled Copy court judge's orders, judgments, and decrees;

- 4440 - HB0495Enrolled comparedCopy withH.B. HB0495S02 (8) Notwithstanding Section 78A-7-106, the district court has original jurisdiction over a class B misdemeanor, a class C misdemeanor, an infraction, or a violation of an ordinance for which a justice court has original jurisdiction under Section 78A-7-106 if:

495 (8) Notwithstanding Section 78A-7-106, the district court has original jurisdiction over a class B misdemeanor, a class C misdemeanor, an infraction, or a violation of an ordinance for which a justice court has original jurisdiction under Section 78A-7-106 if:

(11)(11)(a) (a) The district court has subject matter jurisdiction over a criminal action that the justice court transfers to the district court.

(12) The district court has no subject matter jurisdiction over a claim for ineffective assistance forof counsel in a criminal case involving a charge of a capital felony.

78B-9-202.78B-9-202 .

[(1) A person who has been sentenced to death and whose conviction and sentence has been affirmed on appeal shall be advised in open court, on the record, in a hearing scheduled no less than 30 days - 45 - HB0495 compared with HB0495S02 prior to the signing of the death warrant, of the provisions of this chapter- allowing41 challenges- toH.B. the conviction and death sentence and the appointment of counsel for indigent petitioners.] [(2) (a) If a petitioner requests the court to appoint counsel, the court shall determine whether the petitioner is indigent and make findings on the record regarding the petitioner's indigency.

495 Enrolled Copy chapter allowing challenges to the conviction and death sentence and the appointment of counsel for indigent petitioners.] [(2)(a) If a petitioner requests the court to appoint counsel, the court shall determine whether the petitioner is indigent and make findings on the record regarding the petitioner's indigency.

Counsel who represented the petitioner at trial or on the direct appeal may not be appointed to represent the petitioner under this section.] [(b) A petitioner who wishes to reject the offer of counsel shall be advised on the record by the court of the consequences of the rejection before the court may accept the rejection.] (1)(1)(a) (a) Within 30 days after the day on which the Supreme Court remits a case after affirming an individual's conviction and sentence of death, the sentencing court shall:

(a)- based42 on- newlyEnrolled discoveredCopy evidenceH.B. as defined in Subsection 78B-9-104(1)(e)(i);

or495 -(a) 46 - HB0495 compared with HB0495S02 (b) based on Subsectionnewly 78B-9-104(1)(g)discovered thatevidence couldas notdefined have been raised in anySubsection previously78B-9-104(1)(e)(i); filed post trial motion or postconviction proceeding.

(3)or (a)(b) Attorneybased feeson andSubsection litigation78B-9-104(1)(g) expensesthat incurredcould innot providinghave thebeen representationraised provided for in thisany sectionpreviously andfiled thatpost thetrial courtmotion hasor determinedpostconviction areproceeding. reasonable shall be paid from state funds by the Division of Finance according to rules established pursuant to Title 63G, Chapter 3, Utah Administrative Rulemaking Act.

(3)(a) Attorney fees and litigation expenses incurred in providing the representation provided for in this section and that the court has determined are reasonable shall be paid from state funds by the Division of Finance according to rules established pursuant to Title 63G, Chapter 3, Utah Administrative Rulemaking Act.

[(b)] (c)(c)(i) (i) The court may authorize payment of attorney fees at a rate of [$125] $250 per hour up to a maximum of [$60,000] $120,000.

[(c)] (d)(d)(i) (i) The court may authorize litigation expenses up to a maximum of [$20,000] $40,000.

[(d)] (e)(e)(i) (i) The court may authorize the petitioner to apply ex parte for the funds permitted in Subsections [(3)[(3)(b) (b) and (c)] (3)(c) and (d) upon a motion to proceed ex parte and if the petitioner establishes the need for confidentiality.

- 4743 - HB0495H.B. compared with HB0495S02 (ii) The motion to proceed ex parte must be served on counsel representing the state[, and the ] .

495 Enrolled Copy (ii) The motion to proceed ex parte must be served on counsel representing the state[, and the ] .

(i) if the court has granted a motion to file ex parte applications under Subsection [(3)(d)][ (3)(d)] (3)(e), the petitioner [shall serve] serves the motion to exceed the maximum amounts on an assistant attorney general employed in a division other than the one in which the attorney is employed who represents the state in the postconviction case;

(4)(4)(a) (a) Nothing in this chapter shall be construed as creating the right to the effective assistance of postconviction counsel[, and relief ] .

(b)- Relief44 may- notEnrolled beCopy grantedH.B. on any claim that postconviction counsel was ineffective.

495 (b) Relief may not be granted on any claim that postconviction counsel was ineffective.

- 48 - HB0495 compared with HB0495S02 [(5) If within 60 days of the request for counsel the court cannot find counsel willing to accept the appointment, the court shall notify the petitioner and the state's counsel in writing.

This Bill Repeals:

Effective date.

3-3-26 1:29 PM - 4945 -