HJR 28

Enrolled Copy  H.J.R. 28
1Joint Resolution Amending Court Rules Related to Capital Felony Cases
                                      2026 GENERAL SESSION
                                              STATE OF UTAH
                                Chief Sponsor: Candice B. Pierucci
                                    Senate Sponsor: Daniel McCay
2
3  LONG TITLE
4  General Description:
5      This resolution amends court rules related to capital felony cases.
6  Highlighted Provisions:
7      This resolution:
8      ▸ amends Utah Rules of Appellate Procedure, Rule 23B, to address remand of a capital
9  felony case for findings on ineffective assistance of counsel;
10      ▸ amends Utah Rules of Criminal Procedure, Rule 27, to address a stay of the execution of
11  a sentence; and
12      ▸ makes technical and conforming changes.
13  Money Appropriated in this Bill:
14      None
15  Other Special Clauses:
16      This resolution provides a special effective date.
17  Utah Rules of Appellate Procedure Affected:
18  AMENDS:
19      Rule 23B, Utah Rules of Appellate Procedure
20  Utah Rules of Criminal Procedure Affected:
21  AMENDS:
22      Rule 27, Utah Rules of Criminal Procedure
23
24  Be it resolved by the Legislature of the state of Utah, two-thirds of all members elected to each
25  of the two houses voting in favor thereof:
26As provided in Utah Constitution Article VIII, Section 4, the Legislature may amend rules of
27  procedure and evidence adopted by the Utah Supreme Court upon a two-thirds vote of all
28  members of both houses of the Legislature:
H.J.R. 28  Enrolled Copy
29Section 1. Rule 23B, Utah Rules of Appellate Procedure is amended to read:
30Rule 23B . Motion to remand for findings necessary to determination of
31   ineffective assistance of counsel claim.
32[(a) Grounds for motion; time.] (a) Grounds for motion; time. A party to an appeal in a
33   criminal case that is not a capital case with a sentence of death may move the court to remand
34   the case to the trial court for entry of findings of fact, necessary for the appellate court's
35   determination of a claim of ineffective assistance of counsel. The motion will be available only
36   upon a nonspeculative allegation of facts, not fully appearing in the record on appeal, which, if
37   true, could support a determination that counsel was ineffective.
38The motion must be filed before or at the time of the filing of the appellant's brief. Upon a
39   showing of good cause, the court may permit a motion to be filed after the filing of the
40   appellant's brief. After the appeal is taken under advisement, a remand pursuant to this rule is
41   available only on the court's own motion and only if the claim has been raised and the motion
42   would have been available to a party.
43[(b) Content of motion.] (b) Content of motion. The content of the motion must conform to
44   the requirements of Rule 23. The motion must include or be accompanied by affidavits or
45   declarations alleging facts not fully appearing in the record on appeal that show the claimed
46   deficient performance of the attorney. The affidavits or declarations must also allege facts that
47   show the claimed prejudice suffered by the appellant as a result of the claimed deficient
48   performance. The motion must also be accompanied by a proposed order of remand that
49   identifies the ineffectiveness claims and specifies the factual issues relevant to each such claim
50   to be addressed on remand.
51[(c) Orders of the court; response; reply.] (c) Orders of the court; response; reply. If a
52   motion under this rule is filed at the same time as appellant's principal brief, any response and
53   reply must be filed within the time for the filing of the parties' respective briefs on the merits,
54   unless otherwise specified by the court. If a motion is filed before appellant's brief, the court
55   may elect to defer ruling on the motion or decide the motion prior to briefing.
56(1) If the court defers the motion, the time for filing any response or reply will be the
57   same as for a motion filed at the same time as appellant's brief, unless otherwise specified by
58   the court.
59(2) If the court elects to decide the motion prior to briefing, it will issue a notice that any
60   response must be filed within 30 days of the notice or within such other time as the court may
61   specify. Any reply in support of the motion must be filed within 20 days after the response is
62   served or within such other time as the court may specify.
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63(3) If the requirements of [parts] paragraphs (a) and (b) of this rule have been met, the
64  court may order that the case be temporarily remanded to the trial court to enter findings of
65  fact relevant to a claim of ineffective assistance of counsel. The order of remand will identify
66  the ineffectiveness claims and specify the factual issues relevant to each such claim to be
67  addressed by the trial court. The order will also direct the trial court to complete the
68  proceedings on remand within 90 days of issuance of the order of remand, absent a finding by
69  the trial court of good cause for a delay of reasonable length.
70(4) If it appears to the appellate court that the appellant's attorney of record on the
71  appeal faces a conflict of interest upon remand, the court will direct that counsel withdraw and
72  that new counsel for the appellant be appointed or retained.
73      [(d) Effect on appeal.] (d) Effect on appeal. If a motion is filed at the same [timeas] time as
74  appellant's brief, the briefing schedule will not be stayed unless ordered by the court. If a
75  motion is filed before appellant's brief, the briefing schedule will be automatically stayed until
76  the court issues notice of whether it will defer the motion or decide the motion before briefing.
77      [(e) Proceedings before the trial court.] (e) Proceedings before the trial court. Upon remand
78  the trial court will promptly conduct hearings and take evidence as necessary to enter the
79  findings of fact necessary to determine the claim of ineffective assistance of counsel. Any
80  claim of ineffectiveness not identified in the order of remand will not be considered by the trial
81  court on remand, unless the trial court determines that the interests of justice or judicial
82  efficiency require consideration of issues not specifically identified in the order of remand.
83  Evidentiary hearings will be conducted without a jury and as soon as practicable after remand.
84  The burden of proving a fact will be upon the proponent of the fact. The standard of proof will
85  be a preponderance of the evidence. The trial court will enter written findings of fact
86  concerning the claimed deficient performance by counsel and the claimed prejudice suffered
87  by appellant as a result, in accordance with the order of remand. Proceedings on remand must
88  be completed within 90 days of entry of the order of remand, unless the trial court finds good
89  cause for a delay of reasonable length.
90      [(f) Preparation and transmittal of the record.] (f) Preparation and transmittal of the record.
91  At the conclusion of all proceedings before the trial court, the clerk of the trial court will
92  immediately prepare the record of the supplemental proceedings as required by these rules. If
93  the record of the original proceedings before the trial court has been transmitted to the
94  appellate court, the clerk of the trial court will immediately transmit the record of the
95  supplemental proceedings upon preparation of the supplemental record. If the record of the
96  original proceedings before the trial court has not been transmitted to the appellate court, the
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97   clerk of the court will transmit the record of the supplemental proceedings upon the
98   preparation of the entire record.
99[ (g) Appellate court determination.] (g) Appellate court determination. Errors claimed to
100   have been made during the trial court proceedings conducted pursuant to this rule are
101   reviewable under the same standards as the review of errors in other appeals. The findings of
102   fact entered pursuant to this rule are reviewable under the same standards as the review of
103   findings of fact in other appeals.
104(h) Capital case with death sentence. If a criminal case is a capital case with a sentence of
105   death, the court may not remand the criminal case under this rule to the trial court for entry of
106   findings of fact on a claim of ineffective assistance of counsel.
107Section 2. Rule 27, Utah Rules of Criminal Procedure is amended to read:
108Rule 27 . Stays of sentence pending motions for new trial or appeal from courts
109   of record.
110(a) Staying sentence terms other than incarceration.
111[(a)(1) A sentence of death is stayed if a motion for a new trial, an appeal or a petition
112   for other relief is pending.]
113(1) Stay of a sentence of death.
114(A) Except as provided in this paragraph (a)(1), a court may not stay or suspend the
115   execution of a sentence of death.
116(B) A court must issue a temporary stay of a sentence of death when:
117(i) a timely motion for a new trial is filed;
118(ii) the judgment is appealed;
119(iii) the judgment is automatically reviewed as described in Utah Code section
120   76-3-207;
121(iv) the individual sentenced to death files a first petition for postconviction relief
122   after a direct appeal;
123(v) the individual sentenced to death files a timely notice of appeal from a final
124   order of a first petition for postconviction relief;
125(vi) the individual sentenced to death is appointed counsel to represent the
126   individual in an action on a first petition for postconviction relief;
127(vii) counsel enters an appearance to represent the individual sentenced to death in
128   an action for a first petition for postconviction relief; or
129(viii) the court finds that an individual sentenced to death is pregnant.
130(C) (i) A court may only grant a temporary stay upon a petition to determine whether
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131  an individual sentenced to death is incompetent to be executed if there are circumstances
132  beyond the court's control that prevent the court from ruling on the petition before the
133  scheduled execution date.
134(ii) If a court finds an individual sentenced to death is incompetent to be executed
135  and the court has not issued a temporary stay under this rule, the court must issue a temporary
136  stay of the execution of the sentence of death.
137(iii) If a court finds an individual sentenced to death is competent to be executed,
138  the Utah Supreme Court may not issue a temporary stay of an execution unless a stay is
139  necessary to rule on an appeal or a petition for extraordinary relief before the scheduled
140  execution date.
141(iv) If the court issues a stay under this paragraph (a)(1)(C), the stay is
142  automatically lifted upon a finding that the individual is competent to be executed.
143(D) A court may not issue a temporary stay of a sentence of death when the
144  individual sentenced to death files a petition for postconviction relief, or a timely notice of
145  appeal from a final order on the petition, after a first petition of postconviction relief has been
146  denied or dismissed, unless the court finds all of the following:
147(i) the claims would not be barred under Utah Code section 78B-9-106;
148(ii) the claims are potentially meritorious; and
149(iii) the petition or appeal may not be reasonably disposed of before the execution
150  date.
151(E) If a court issued a temporary stay under paragraph (a)(1)(B)(iii), the court must
152  vacate the stay when the automatic review of the defendant's sentence is concluded.
153(F) If a court issued a temporary stay under paragraph (a)(1)(B)(vi) or (vii), the court
154  must vacate the stay if a petition for postconviction relief is not filed before the statute of
155  limitations passes under Utah Code section 78B-9-107.
156(G) If a court issued a temporary stay under paragraph (a)(1)(B)(viii), the court must
157  vacate the stay when the court finds that the individual is no longer pregnant.
158(H) Except as provided in paragraph (a)(1)(F) or (G), a stay issued by a court under
159  this paragraph (a)(1) automatically expires upon the entry of a final order disposing of the
160  action that triggered the stay.
161(I) [The] Upon any stay issued under this paragraph (a)(1), the defendant shall remain
162  in the custody of the warden of the Utah State Prison until the appeal or petition for other relief
163  is resolved.
164[(a)](2) Stay upon an appeal by the prosecution. When an appeal is taken by the
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165   prosecution, a stay of any order of judgment in favor of the defendant may be granted by the
166   court upon good cause pending disposition of the appeal.
167[(a)](3) Stay for a new trial or appeal. Upon the filing of a motion for a new trial or a
168   notice of appeal, and upon motion of the defendant, the court may stay any sentenced amount
169   of fines, conditions of probation (other than incarceration) pending disposition of the motion
170   for a new trial or appeal, upon notice to the prosecution and a hearing if requested by the
171   prosecution.
172[(a)](4) Appeal. A party dissatisfied with the trial court's ruling on such a motion may
173   petition for relief in the court with appellate jurisdiction.
174(b) Staying sentence terms of incarceration. A defendant sentenced, or required as a term of
175   probation, to serve a period of incarceration in jail or in prison, shall be detained, unless
176   released by the court in conformity with this rule.
177[(b)](1) In general. Before a court may release a defendant after the filing of a motion for
178   a new trial or notice of appeal, the court must:
179[(b)(1)](A) issue a certificate of probable cause; and
180[(b)(1)](B) determine by clear and convincing evidence that the defendant:
181[(b)(1)(B)](i) is not likely to flee; and
182[(b)(1)(B)](ii) does not pose a danger to the physical, psychological, or financial
183   and economic safety or well-being of any other individual or the community if released under
184   any conditions as set forth in [subsection] paragraph (c).
185[(b)](2) A defendant shall file a written motion in the trial court requesting a stay of the
186   sentence term of incarceration.
187[(b)(2)](A) That motion shall be accompanied by a copy of the filed motion for a new
188   trial or notice of appeal; a written application for a certificate of probable cause; and a
189   memorandum of law. The memorandum shall identify the issues to be presented in the motion
190   for a new trial proceedings or on appeal and support the defendant's position that those issues
191   raise a substantial question of law or fact reasonably likely to result in reversal, an order for a
192   new trial or a sentence that does not include a term of incarceration in jail or prison. The
193   memorandum shall also address why clear and convincing evidence exists that the defendant is
194   not a flight risk and that the defendant does not pose a danger as outlined in paragraph
195   (b)(1)(B)(ii).
196[(b)(2)](B) A copy of the motion, the application for a certificate of probable cause
197   and supporting memorandum shall be served on the prosecuting attorney. An opposing
198   memorandum may be filed within 14 days after receipt of the application, or within a shorter
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199  time as the court deems necessary. A hearing on the application shall be held within 14 days
200  after the court receives the opposing memorandum, or if no opposing memorandum is filed,
201  within 14 days after the application is filed with the court.
202[(b)](3) The court shall issue a certificate of probable cause if it finds that the motion for
203  a new trial or appeal:
204[(b)(3)](A) is not being taken for the purpose of delay; and
205[(b)(3)](B) raises substantial issues of law or fact reasonably likely to result in
206  reversal, an order for a new trial or a sentence that does not include a term of incarceration in
207  jail or prison.
208[(b)](4) If the court issues a certificate of probable cause it shall order the defendant
209  released if it finds that clear and convincing evidence exists to demonstrate that the defendant
210  is not a flight risk and does not pose a danger as outlined in paragraph (b)(1)(B)(ii) if released
211  under any of the conditions set forth in [subsection] paragraph (c).
212[(b)](5) The court ordering release pending determination of a motion for a new trial or
213  appeal under [subsection] paragraph (b)(4) shall order release on the least restrictive reasonably
214  available condition or combination of conditions set forth in [subsection] paragraph (c) that the
215  court determines will reasonably ensure the appearance of the defendant as required and the
216  safety of any other individual, property, and the community.
217[(b)](6) Review of trial court's order. A party dissatisfied with the relief granted or
218  denied under this [subsection] paragraph (b) may petition the court with appellate jurisdiction
219  in which the appeal is pending.
220[(b)(6)](A) If the petition is filed by the defendant, a copy of the petition, the affidavit
221  and papers filed in support of the original motion shall be served on the Utah Attorney General
222  if the case involves any felony charge, and on the prosecuting attorney if the case involves
223  only misdemeanor charges.
224[(b)(6)](B) If the petition is filed by the prosecution, a copy of the petition and
225  supporting papers shall be served on defense counsel, or the defendant if the defendant is not
226  represented by counsel.
227      (c) Conditions of release. If the court determines that the defendant may be released
228  pending motion for a new trial proceedings or an appeal, [it] the court may release the
229  defendant on the least restrictive reasonably available condition or combination of conditions
230  that the court determines will reasonably ensure the appearance of the defendant as required
231  and the safety of any other individual, property, and the community. The conditions may
232  include, without limitation, that the defendant:
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233[(c)](1) is admitted to appropriate bail;
234[(c)](2) not commit a federal, state or local crime during the period of release;
235[(c)](3) remain in the custody of a designated person who agrees to assume supervision
236   of the defendant and who agrees to report any violation of a release condition to the court, if
237   the designated person is reasonably able to assure the court that the defendant will appear as
238   required and will not pose a danger to the safety of any other person, property, or the
239   community;
240[(c)](4) maintain employment, or if unemployed, actively seek employment;
241[(c)](5) maintain or commence an educational program;
242[(c)](6) abide by specified restrictions on personal associations, place of abode or travel;
243[(c)](7) avoid all contact with the victim or victims of the crime(s), any witness or
244   witnesses who testified against the defendant and any potential witnesses who might testify
245   concerning the offenses if the appeal results in a reversal or an order for a new trial;
246[(c)](8) report on a regular basis to a designated law enforcement agency, pretrial
247   services agency or other agency;
248[(c)](9) comply with a specified curfew;
249[(c)](10) refrain from possessing a firearm, destructive device or other dangerous
250   weapon;
251[(c)](11) refrain from possessing or using alcohol, or any narcotic drug or other
252   controlled substance except as prescribed by a licensed medical practitioner;
253[(c])(12) undergo available medical, psychological or psychiatric treatment, including
254   treatment for drug or alcohol abuse or dependency;
255[(c)](13) execute an agreement to forfeit, upon failing to appear as required, such
256   designated property, including money, as is reasonably necessary to assure the appearance of
257   the defendant as required, and post with the court such indicia of ownership of the property or
258   such percentage of the money as the court may specify;
259[(c)](14) return to custody for specified hours following release for employment,
260   schooling or other limited purposes; and
261[(c)](15) satisfy any other condition that is reasonably necessary to ensure the
262   appearance of the defendant as required and the safety of any other individual, property, and
263   the community.
264(d) Amended conditions of release. The court may at any time for good cause shown amend
265   the order granting release to impose additional or different conditions of release.
266Section 3. Effective Date.
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267  As provided in Utah Constitution, Article VIII, Section 4, this resolution takes effect
268  upon a two-thirds vote of all members elected to each house.
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