Utah 2023 Regular Session

Utah House Bill HB0380 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New		Differences
1		-	Enrolled Copy H.B. 380
	1	+	4th Sub. H.B. 380
	2	+	LEGISLATIVE GENERAL COUNSEL
	3	+	6 Approved for Filing: M. Cipriano 6
	4	+	6 02-27-23 12:44 PM 6
	5	+	H.B. 380
	6	+	4th Sub. (Green)
	7	+	Senator Ronald M. Winterton proposes the following substitute bill:
2	8		1 COMPETENCY TO STAND TRI AL AMENDMENTS
3	9		2 2023 GENERAL SESSION
4	10		3 STATE OF UTAH
5		-	4 Chief Sponsor: ~~Casey Snider~~
	11	+	4 Chief Sponsor: Christine F. Watkins
6	12		5 Senate Sponsor: Ronald M. Winterton
7	13		6
8	14		7LONG TITLE
9	15		8General Description:
10	16		9 This bill addresses petitions to find a defendant incompetent to stand trial in a criminal
11	17		10action.
12	18		11Highlighted Provisions:
13	19		12 This bill:
14	20		13 <requires a court to consider certain factors when determining whether a defendant is
15	21		14incompetent;
16	22		15 <prohibits a court from granting a petition of incompetency based solely on the
17	23		16defendant having previously been released from custody due to incompetency in an
18	24		17unrelated criminal action, if the release occurred more than a year before the
19	25		18petition is filed; and
20	26		19 <makes technical and conforming changes.
21	27		20Money Appropriated in this Bill:
22	28		21 None
23	29		22Other Special Clauses:
24	30		23 This bill provides a coordination clause.
25	31		24Utah Code Sections Affected:
26	32		25AMENDS:
	33	+	HB0380S04 4th Sub. (Green) H.B. 380 02-27-23 12:44 PM
	34	+	- 2 -
27	35		26 77-15-5, as last amended by Laws of Utah 2018, Chapter 147
28	36		27Utah Code Sections Affected by Coordination Clause:
29		-	28 77-15-5, Utah Code Annotated 1953 H.B. 380
30		-	Enrolled Copy
31		-	- 2 -
	37	+	28 77-15-5, Utah Code Annotated 1953
32	38		29
33	39		30Be it enacted by the Legislature of the state of Utah:
34	40		31 Section 1. Section 77-15-5 is amended to read:
35	41		32 77-15-5. Order for hearing -- Stay of other proceedings -- Examinations of
36	42		33defendant -- Scope of examination and report.
37	43		34 (1) A court in which criminal proceedings are pending shall stay all criminal
38	44		35proceedings, if:
39	45		36 (a) a petition is filed under Section 77-15-3 or 77-15-3.5; or
40	46		37 (b) the court raises the issue of the defendant's competency under Section 77-15-4.
41	47		38 (2) The court in which the petition described in Subsection (1)(a) is filed:
42	48		39 (a) shall inform the court in which criminal proceedings are pending of the petition, if
43	49		40the petition is not filed in the court in which criminal proceedings are pending;
44	50		41 (b) shall review the allegations of incompetency;
45	51		42 (c) may hold a limited hearing solely for the purpose of determining the sufficiency of
46	52		43the petition, if the court finds the petition is not clearly sufficient on its face;
47	53		44 (d) shall hold a hearing, if the petition is opposed by either party;
48	54		45 (e) may not order an examination of the defendant or order a hearing on the mental
49	55		46condition of the defendant unless the court finds that the allegations in the petition raise a bona
50	56		47fide doubt as to the defendant's competency to stand trial; and
51	57		48 (f) if the court finds that the allegations raise a bona fide doubt as to the defendant's
52	58		49competency to stand trial, shall order:
53	59		50 (i) the department to have the defendant evaluated by one forensic evaluator, if:
54	60		51 (A) the most severe charge against the defendant is a misdemeanor; or
55	61		52 (B) the defendant is charged with a felony but is not charged with a capital felony, and
56	62		53the court determines, based upon the allegations in the petition, that a second competency
57	63		54evaluation is not necessary;
58		-	55 (ii) the department to have the defendant evaluated by two forensic evaluators, if: Enrolled Copy H.B. 380
	64	+	55 (ii) the department to have the defendant evaluated by two forensic evaluators, if:
	65	+	56 (A) the defendant is charged with a capital felony; or 02-27-23 12:44 PM 4th Sub. (Green) H.B. 380
59	66		- 3 -
60		-	56 (A) the defendant is charged with a capital felony; or
61	67		57 (B) the defendant is charged with a felony but is not charged with a capital felony, and
62	68		58the court determines, based upon the allegations in the petition, that a second competency
63	69		59evaluation is necessary; and
64	70		60 (iii) the defendant to be evaluated by an additional forensic evaluator, if requested by a
65	71		61party, who shall:
66	72		62 (A) select the additional forensic evaluator; and
67	73		63 (B) pay for the costs of the additional forensic evaluator.
68	74		64 (3) (a) If the petition or other information sufficiently raises concerns that the
69	75		65defendant may have intellectual or developmental disabilities, at least one forensic evaluator
70	76		66who is experienced in intellectual or developmental disability assessments shall conduct a
71	77		67competency evaluation.
72	78		68 (b) The petitioner or other party, as directed by the court, shall provide to the forensic
73	79		69evaluator information and materials relevant to a determination of the defendant's competency,
74	80		70including the charging document, arrest or incident reports pertaining to the charged offense,
75	81		71known criminal history information, and known prior mental health evaluations and treatments.
76	82		72 (c) For purposes of a competency evaluation, a court may order that custodians of
77	83		73mental health records pertaining to the defendant provide those records to a forensic evaluator
78	84		74without the need for consent of the defendant.
79	85		75 (d) An order for a competency evaluation may not contain an order for any other
80	86		76inquiry into the mental state of the defendant.
81	87		77 (4) Pending a competency evaluation, unless the court or the department directs
82	88		78otherwise, the defendant shall be retained in the same custody or status that the defendant was
83	89		79in at the time the examination was ordered.
84	90		80 (5) In the conduct of a competency evaluation, a progress toward competency
85	91		81evaluation, and in a report to the court, a forensic evaluator shall consider and address, in
86		-	82addition to any other factors determined to be relevant by the forensic evaluator: H.B. 380
87		-	Enrolled Copy
88		-	- 4 -
	92	+	82addition to any other factors determined to be relevant by the forensic evaluator:
89	93		83 (a) the defendant's present ability to:
90	94		84 (i) rationally and factually understand the criminal proceedings against the defendant;
91	95		85 (ii) consult with the defendant's legal counsel with a reasonable degree of rational
92	96		86understanding in order to assist in the defense;
93		-	87 (iii) understand the charges or allegations against the defendant;
	97	+	87 (iii) understand the charges or allegations against the defendant; 4th Sub. (Green) H.B. 380 02-27-23 12:44 PM
	98	+	- 4 -
94	99		88 (iv) communicate facts, events, and states of mind;
95	100		89 (v) understand the range of possible penalties associated with the charges or allegations
96	101		90against the defendant;
97	102		91 (vi) engage in reasoned choice of legal strategies and options;
98	103		92 (vii) understand the adversarial nature of the proceedings against the defendant;
99	104		93 (viii) manifest behavior sufficient to allow the court to proceed; and
100	105		94 (ix) testify relevantly, if applicable;
101	106		95 (b) the impact of the mental disorder or intellectual disability, if any, on the nature and
102	107		96quality of the defendant's relationship with counsel;
103	108		97 (c) if psychoactive medication is currently being administered:
104	109		98 (i) whether the medication is necessary to maintain the defendant's competency; and
105	110		99 (ii) whether the medication may have an effect on the defendant's demeanor, affect, and
106	111		100ability to participate in the proceedings; and
107	112		101 (d) whether the defendant is exhibiting false or exaggerated physical or psychological
108	113		102symptoms relevant to the defendant's capacity to stand trial.
109	114		103 (6) If the forensic evaluator's opinion is that the defendant is incompetent to proceed,
110	115		104the forensic evaluator shall indicate in the report to the court:
111	116		105 (a) the factors that contribute to the defendant's incompetency, including the nature of
112	117		106the defendant's mental disorder or intellectual or developmental disability, if any, and its
113	118		107relationship to the factors contributing to the defendant's incompetency; and
114	119		108 (b) whether there is a substantial probability that restoration treatment may, in the
115		-	109foreseeable future, bring the defendant to competency to stand trial, or that the defendant Enrolled Copy H.B. 380
116		-	- 5 -
	120	+	109foreseeable future, bring the defendant to competency to stand trial, or that the defendant
117	121		110cannot become competent to stand trial in the foreseeable future.
118	122		111 (7) (a) A forensic evaluator shall provide an initial report to the court and the
119	123		112prosecuting and defense attorneys within 30 days of the receipt of the court's order. The report
120	124		113shall inform the court of the examiner's opinion concerning the competency of the defendant to
121	125		114stand trial.
122	126		115 (b) (i) If the forensic evaluator is unable to complete the report in the time specified in
123	127		116Subsection (7)(a), the forensic evaluator shall give written notice to the court.
124	128		117 (ii) A forensic evaluator who provides the notice described in Subsection (7)(b)(i) shall
125		-	118receive a 15-day extension, giving the forensic evaluator a total of 45 days after the day on
	129	+	118receive a 15-day extension, giving the forensic evaluator a total of 45 days after the day on 02-27-23 12:44 PM 4th Sub. (Green) H.B. 380
	130	+	- 5 -
126	131		119which the forensic evaluator received the court's order to conduct a competency evaluation and
127	132		120file a report.
128	133		121 (iii) The court may further extend the deadline for completion of the evaluation and
129	134		122report if the court determines that there is good cause for the extension.
130	135		123 (iv) Upon receipt of an extension described in Subsection (7)(b)(iii), the forensic
131	136		124evaluator shall file the report as soon as reasonably possible.
132	137		125 (8) Any written report submitted by a forensic evaluator shall:
133	138		126 (a) identify the case ordered for evaluation by the case number;
134	139		127 (b) describe the procedures, techniques, and tests used in the examination and the
135	140		128purpose or purposes for each;
136	141		129 (c) state the forensic evaluator's clinical observations, findings, and opinions on each
137	142		130issue referred for examination by the court, and indicate specifically those issues, if any, on
138	143		131which the forensic evaluator could not give an opinion; and
139	144		132 (d) identify the sources of information used by the forensic evaluator and present the
140	145		133basis for the forensic evaluator's clinical findings and opinions.
141	146		134 (9) (a) Any statement made by the defendant in the course of any competency
142	147		135examination, whether the examination is with or without the consent of the defendant, any
143		-	136testimony by a forensic evaluator based upon the statement, and any other fruits of the H.B. 380
144		-	Enrolled Copy
145		-	- 6 -
	148	+	136testimony by a forensic evaluator based upon the statement, and any other fruits of the
146	149		137statement may not be admitted in evidence against the defendant in any criminal proceeding
147	150		138except on an issue respecting mental condition on which the defendant has introduced
148	151		139evidence. The evidence may be admitted, however, where relevant to a determination of the
149	152		140defendant's competency.
150	153		141 (b) Before examining the defendant, the forensic evaluator shall specifically advise the
151	154		142defendant of the limits of confidentiality as provided under Subsection (9)(a).
152	155		143 (10) (a) Upon receipt of the forensic evaluators' reports, the court shall set a date for a
153	156		144competency hearing. The hearing shall be held not less than 5 and not more than 15 days after
154	157		145the day on which the court received the forensic evaluators' reports, unless for good cause the
155	158		146court sets a later date.
156	159		147 (b) Any person directed by the department to conduct the competency evaluation may
157	160		148be subpoenaed to testify at the hearing.
158		-	149 (c) The court may call any forensic evaluator to testify at the hearing who is not called
	161	+	149 (c) The court may call any forensic evaluator to testify at the hearing who is not called 4th Sub. (Green) H.B. 380 02-27-23 12:44 PM
	162	+	- 6 -
159	163		150by the parties. If the court calls a forensic evaluator, counsel for the parties may cross-examine
160	164		151the forensic evaluator.
161	165		152 (d) If the forensic evaluators are in conflict as to the competency of the defendant, all
162	166		153forensic evaluators should be called to testify at the hearing if reasonably available. A conflict
163	167		154in the opinions of the forensic evaluators does not require the appointment of an additional
164	168		155forensic evaluator unless the court determines the appointment to be necessary.
165	169		156 (11) (a) A defendant shall be presumed competent to stand trial unless the court, by a
166	170		157preponderance of the evidence, finds the defendant incompetent to proceed. The burden of
167	171		158proof is upon the proponent of incompetency at the hearing.
168	172		159 (b) An adjudication of incompetent to proceed does not operate as an adjudication of
169	173		160incompetency to give informed consent for medical treatment or for any other purpose, unless
170	174		161specifically set forth in the court order.
171	175		162 (12) In determining the defendant's competency to stand trial, the court shall consider
172		-	163the totality of the circumstances, [which may include] including: Enrolled Copy H.B. 380
173		-	- 7 -
	176	+	163the totality of the circumstances, [which may include] including:
174	177		164 (a) the petition;
175	178		165 (b) the defendant's criminal and arrest history;
176	179		166 (c) prior mental health evaluations and treatments provided to the court by the
177	180		167defendant;
178	181		168 (d) subject to Subsection (14), whether the defendant was found incompetent to
179	182		169proceed in a criminal action unrelated to the charged offense for which the petition is filed;
180	183		170 (e) the testimony of lay witnesses[, in addition to], if any;
181	184		171 (f) the forensic evaluator's report, testimony, and studies[.]; and
182	185		172 (g) any other relevant evidence bearing on the competency of the defendant.
183	186		173 (13) If the court finds the defendant incompetent to proceed:
184	187		174 (a) the court shall issue the order described in Subsection 77-15-6(1), which shall:
185	188		175 (i) include findings addressing each of the factors in Subsection (5)(a);
186	189		176 (ii) include a transportation order, if necessary;
187	190		177 (iii) be accompanied by the forensic evaluators' reports, any psychiatric, psychological,
188	191		178or social work reports submitted to the court relative to the mental condition of the defendant,
189	192		179and any other documents made available to the court by either the defense or the prosecution,
190		-	180pertaining to the defendant's current or past mental condition; and
	193	+	180pertaining to the defendant's current or past mental condition; and 02-27-23 12:44 PM 4th Sub. (Green) H.B. 380
	194	+	- 7 -
191	195		181 (iv) be sent by the court to the department; and
192	196		182 (b) the prosecuting attorney shall provide to the department:
193	197		183 (i) the charging document and probable cause statement, if any;
194	198		184 (ii) arrest or incident reports prepared by law enforcement and pertaining to the
195	199		185charged offense; and
196	200		186 (iii) additional supporting documents.
197	201		187 (14) The court may not find the defendant incompetent to proceed based solely on a
198	202		188court having ordered the release of the defendant under Section 77-15-3.5 or Section 77-15-6 in
199	203		189an unrelated criminal action, if the court in the unrelated criminal action ordered the release
200		-	190more than one year before the day on which the petition described in Subsection (12)(a) is H.B. 380
201		-	Enrolled Copy
202		-	- 8 -
	204	+	190more than one year before the day on which the petition described in Subsection (12)(a) is
203	205		191filed.
204	206		192 [(14)] (15) The court may make any reasonable order to ensure compliance with this
205	207		193section.
206	208		194 [(15)] (16) Failure to comply with this section does not result in the dismissal of
207	209		195criminal charges.
208	210		196 Section 2. Coordinating H.B. 380 with H.B. 330 -- Substantive and technical
209	211		197amendments.
210	212		198 If this H.B. 380 and H.B. 330, Civil Commitment Amendments, both pass and become
211	213		199law, it is the intent of the Legislature that the Office of Legislative Research and General
212	214		200Counsel shall prepare the Utah Code database for publication by amending
213	215		201Subsection 77-15-5(12) in this H.B. 380 to read:
214	216		202 "(12) In determining the defendant's competency to stand trial, the court shall consider
215	217		203the totality of the circumstances, [which may include] including:
216	218		204 (a) the petition;
217	219		205 (b) the defendant's criminal and arrest history;
218	220		206 (c) prior mental health evaluations and treatments provided to the court by the
219	221		207defendant;
220	222		208 (d) subject to Subsection (14), whether the defendant was found incompetent to
221	223		209proceed in a criminal action unrelated to the charged offense for which the petition is filed;
222	224		210 (e) the testimony of lay witnesses[, in addition to] , if any;
223		-	211 (f) the forensic evaluator's [report, testimony, and studies] testimony and report;
	225	+	211 (f) the forensic evaluator's [report, testimony, and studies] testimony and report; 4th Sub. (Green) H.B. 380 02-27-23 12:44 PM
	226	+	- 8 -
224	227		212 (g) the materials on which the forensic evaluator's report is based; and
225	228		213 (h) any other relevant evidence or consideration bearing on the competency of the
226	229		214defendant.".