Pardons (Board Of), Administration

Rule R671-313

Commutation Hearings (Non-Death Penalty Cases)

Notice of Proposed Rule

(New Rule)

DAR File No.: 36555
Filed: 07/30/2012 02:15:48 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The Board previously did not have a rule which dealt with non-death penalty commutation hearings, so this rule establishes a procedure for handling these cases. Agency action, and this administrative rule, are authorized and required by Utah Constitution, Art VII, Sec 12; Subsection 63G-3-201(3); and Sections 77-27-1 et seq., 77-27-5, and 77-27-9. The Board has statutory authority to enact administrative rules, pursuant to Section 77-27-1 et seq. and Subsection 77-27-9(4)(a).

Summary of the rule or change:

This rules establishes hearing procedures for non-death penalty commutation hearing cases.

State statutory or constitutional authorization for this rule:

• Art VII, Sec 12
• Subsection 63G-3-201(3)
• Section 77-27-1 et seq.
• Section 77-27-5
• Section 77-27-9

Anticipated cost or savings to:

the state budget:

Enactment of this rule will have no fiscal impact and will impose no cost or savings to the state budget. The Board determined that there is no cost or savings because this rule is just a written articulation of an already-functioning internal Board procedure.

local governments:

Enactment of this rule will have no fiscal impact and will impose no cost or savings to local government. The Board determined that there is no cost or savings because this rule is just a written articulation of an already-functioning internal Board procedure.

small businesses:

Enactment of this rule will have no fiscal impact and will impose no cost or savings to small businesses. The Board determined that there is no cost or savings because this rule is just a written articulation of an already-functioning internal Board procedure.

persons other than small businesses, businesses, or local governmental entities:

Enactment of this rule have no fiscal impact and will impose no cost or savings to any other person. The Board determined that there is no cost or savings because this rule is just a written articulation of an already-functioning internal Board procedure.

Compliance costs for affected persons:

There is no compliance cost for affected persons. The Board determined that there is no cost or savings because this rule is just a written articulation of an already-functioning internal Board procedure.

Comments by the department head on the fiscal impact the rule may have on businesses:

The Chairman of the Board of Pardons and Parole has considered this proposed rule, and finds that there is no fiscal impact on businesses because of this rule. Interested persons may present their views on the rule pursuant to Division of Administrative Rules process and procedures. A public meeting was scheduled, noticed, and held regarding this rule on Monday, 07/16/2012, at 8:00 a.m. No person attended the hearing to comment on this proposed rule, and no comments have been received by the Board.

Clark A. Harms, Chairman

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Pardons (Board Of)
AdministrationRoom 300
448 E 6400 S
SALT LAKE CITY, UT 84107-8530

Direct questions regarding this rule to:

• John Green at the above address, by phone at 801-261-6464, by FAX at 801-261-6481, or by Internet E-mail at [email protected]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

09/14/2012

This rule may become effective on:

09/21/2012

Authorized by:

Clark Harms, Chairman

R671. Pardons (Board of), Administration.

R671-313. Commutation Hearings (Non-Death Penalty Cases).

R671-313-1. Applicability.

(1) For purposes of this Rule and the decisions, determinations and orders of the Utah Board of Pardons and Parole Board), acting under its powers as authorized by the Utah Constitution, commutation may mean the change or reduction of the severity of a crime; the change or reduction of an imposed sentence; or the change or reduction of the type or level of offense. Commutation is an act of clemency. Commutation is not a conditional or unconditional pardon.

(2) No person has a right, privilege or entitlement to commutation or clemency.

(3) Petitions for commutation of a death sentence shall be governed by applicable state constitutional provisions, statutes and Utah Administrative Code, Rule R671-312.

(4) All other petitions seeking commutation of a Utah conviction or sentence shall be governed by applicable state constitutional provisions and statutes, and by this administrative rule.

(5) As used in this Rule, "subject" means the person whose conviction(s) or sentence(s) are sought to be commuted by the filing of a commutation petition with the Board.

(6) Any person, individually or through counsel, who has been convicted of any felony, Class A misdemeanor or Class B misdemeanor offense in this State, may petition the Board for commutation of such conviction(s) or sentence(s) entered or imposed in this state, except for cases of treason or impeachment.

(7) The Utah Attorney General; Assistant Attorneys General, as authorized by the Attorney General; any County Attorney or District Attorney; or any Deputy County or District Attorney as authorized by their elected County or District Attorney; may petition the Board, on behalf of any convicted person, for commutation of any such conviction or sentence entered or imposed in this state, except for cases of treason or impeachment.

(8) Any document, pleading, notice, attachment or other item which is submitted as part of the commutation petition, response, or subsequent pleadings shall be delivered to and filed with the Board's Administrative Coordinator, at the Board's offices.

(9) A commutation petition, any response thereto, and any subsequent pleading, submission or document submitted to the Board for consideration in relation to a commutation petition are considered public documents, unless the document is determined by the Board to be controlled, protected or private, pursuant to any other statute, law, rule or prior case law.

(10) Any order issued by the Board relating to a commutation petition is a public document.

 

R671-313-2. Eligibility.

(1) No commutation petition regarding a traffic citation, an infraction or a Class C misdemeanor will be considered by the Board.

(2) No petition seeking a posthumous commutation of any offense will be considered by the Board.

(3) A petition for commutation may be filed with the Board anytime after the sentencing court has issued a Judgment and Commitment; a Sentence; or a Conviction. The Board may delay it's consideration of any petition where there is or remains pending any appeal or post-conviction litigation regarding the conviction(s) or sentence(s) which are the subject of the commutation petition.

(4) Failure of any petitioner or counsel to comply with this Rule, any other Board rule or any Board directive or order, may result in the summary denial of the petition and cancellation of any scheduled hearing.

 

R671-313-3. Petition Requirements.

(1)(a) The commutation petition shall be signed under oath. If the petitioner is not the subject of the petition, the subject of the petition shall also sign the petition.

(b) If the petitioner is represented by counsel, the petitioner's counsel shall also sign the petition.

(c) If the petitioner is represented by counsel, counsel shall comply in all respects with Utah Administrative Code, Rule R671-103 - Attorneys.

(2) The commutation petition shall include:

(a) the petitioner's name, address, telephone number and e-mail address;

(b) the subject's name, address, telephone number and e-mail address;

(c) the name, address, telephone number and e-mail address of any counsel representing the petitioner in the commutation proceeding;

(d) a certified copy of the Judgment, Conviction and Sentence for which commutation is petitioned;

(e) a statement specifying whether or not the conviction for which commutation is petitioned was appealed; and if so, a copy of any applicable appellate decision;

(f) a statement specifying whether or not the conviction for which commutation is petitioned was the subject of any complaint, petition or other court filing or litigation seeking collateral remedies, post-conviction relief, a writ of habeus corpus or any other extraordinary relief; and if so, a copy of all applicable final orders, rulings, determinations and appellate decisions regarding such litigation.

(g) a copy of all police reports, pre-sentence reports, post-sentence reports and court dockets for the convictions and/or sentence for which commutation is petitioned;

(h) a certified copy of the subject's Utah and NCIC criminal history reports (obtained from the Utah Department of Public Safety);

(i) a statement wherein the subject and petitioner certify that no criminal cases or charges are pending against the subject in any court. If the subject has any pending criminal cases or charges, the statement shall identify and explain all criminal cases or charges pending in any State, Federal or local court and the nature of the cases pending. If such proceedings are pending, the statement must identify the court in which such cases are pending; explain the nature of the proceedings and charges; and note the status of the proceedings.

(j) a statement of the reasons and grounds which petitioner believes support commutation.

(k) copies of all written evidence upon which petitioner intends to rely at the hearing, along with the names of all witnesses whom petitioner intends to call and a summary of their anticipated testimony.

(l) a statement specifying whether any of the stated reasons or grounds for commutation have been reviewed by a court(s); and shall include copy of any court decision entered or made by such a reviewing court;

(m) if the grounds for commutation are based upon post-conviction, newly discovered evidence, the petition shall include a statement explaining why such evidence is considered new, why the purportedly new evidence was not or could not have been reviewed during the judicial, appellate or post-conviction process, and why the purportedly new evidence is not currently subject to judicial review.

(3) If subject is currently on probation or parole, the petition shall include, as an attachment, a report from Adult Probation and Parole which summarizes and explains the subject's progress while under supervision; and which includes a detailed report of progress toward completing all supervision requirements, treatment requirements, alternative events while under supervision, and fulfillment of restitution, fine, fee and other financial obligations.

(4) If the subject is currently incarcerated, the petition shall include, as an attachment, an updated and current Institutional Progress Report from the Department of Corrections, which summarizes and explains the subjects progress while under supervision; and which includes a detailed report of progress toward completing all supervision requirements, treatment requirements, alternative events while under supervision, and fulfillment of restitution, fine, fee and other financial obligations.

(5) If the subject has ever applied for and been denied commutation, the petition shall set forth what, if any, new, significant and previously unavailable information exists which supports commutation and the reasons this information was not previously submitted to the Board, and why this information supports commutation.

(6) At any time following submission of a commutation petition, the Board may seek additional information from the petitioner, the subject or counsel.

 

R671-313-4. Petition Procedures.

(1)(a) Within six months of receipt of the petition, the Board may either deny the commutation petition without a hearing; request a response from the original prosecuting agency, Attorney General's Office, or the person whose conviction(s) or sentence(s) are sought to be commuted; or grant a commutation hearing in order to further consider the petition. The Board may, on it's own motion, extend the time for preliminary consideration of the petition.

(b) There is no right to a commutation hearing, and the Board retains complete and absolute discretion to determine whether to grant a hearing on the commutation petition.

(2) The Board, after considering the commutation petition, may deny the petition without further pleadings, response, hearing or submissions. If the Board denies a commutation petition without hearing, it shall notify the petitioner and counsel, if represented, and the original prosecuting agency, either by mail or electronic mail.

(3) Upon receipt of a commutation petition, filed by the subject or counsel, the Board may request a response to the petition from the Attorney General, District Attorney, County Attorney or City Attorney whose office or agency originally prosecuted the count(s), charge(s) or case resulting in the conviction and sentence for which commutation is sought; and from any Attorney General, District Attorney, County Attorney or City Attorney whose office represented the prosecuting agency or office in relation to any appeal or post-conviction litigation regarding any conviction or sentence which is the subject of the commutation petition (hereinafter referred to as the "State's response").

(4) If requested prior to the Board scheduling a commutation hearing, the State's response shall be filed with the Board within sixty (60) days of the Board's request, and shall clearly specify whether the responding agency opposes or supports the relief requested in the petition. The State's response shall also include all statements and arguments which form the basis of any opposition to the petition; and shall include all written evidence; the names of all witnesses; and a summary of the anticipated testimony upon which the responding agency intends to rely to challenge or oppose the petition. Following receipt of the State's response, the Board may request either the subject or the State to provide additional information.

(5) The Board, after considering the original commutation petition, and any requested response, may grant a commutation hearing, or may deny the petition without further pleadings, response, hearing or submissions. If after receiving the State's response, the Board denies a commutation petition without hearing, it shall notify the petitioner, counsel, and responding counsel, either by mail or electronic mail.

(6) If the Board grants a commutation hearing:

(a) Within ten calendar days of receiving the Board's order granting a commutation hearing, the subject or his counsel shall serve a copy of the commutation petition and all attachments upon the Attorney General, District Attorney, County Attorney or City Attorney whose office or agency originally prosecuted the count(s), charge(s) or case resulting in the conviction for which commutation is sought.

(b) If any appeal from the conviction was filed, the subject or his counsel shall also serve a copy of the commutation petition and all attachments upon the Attorney General, District Attorney, County Attorney or City Attorney whose office represented the prosecuting agency or office in relation to the appeal.

(c) If any post-conviction litigation was pursued on behalf of the petitioner or which challenged the conviction or sentence for which commutation is petitioned, the subject or his counsel shall also serve a copy of the commutation petition and all attachments upon the Attorney General, District Attorney, County Attorney or City Attorney whose office represented State, county or municipality in relation to the post-conviction litigation.

(d) Proof and verification of all service of pleadings as required herein shall be filed with the Board within seven calendar days of accomplishing such service.

(7)(a) The original prosecuting agency, and any other office which represented the State, a county or a municipality in relation to the conviction, sentence, appeal or post-conviction litigation regarding the conviction or sentence which are the subject of the commutation petition may, within sixty (60) days of receiving a copy of the petition, file a response to the commutation petition with the Board.

(b) The State's response shall be delivered, either by mail, electronic mail or hand delivery to the petitioner and his counsel, if represented. Proof of such service shall be filed with the Board within seven calendar days of accomplishing such service.

(c) The State's response to the petition shall clearly specify if the responding agency opposes or supports the relief requested in the commutation petition. The response shall also include all statements and arguments which form the basis of any opposition to the commutation petition; and shall include all written evidence; the names of all witnesses; and a summary of the anticipated testimony upon which the responding agency intends to rely to challenge or oppose the petition. Following receipt of the State's response, the Board may request either the petitioner or the State to provide additional information.

(8) If the Board grants a commutation hearing, the Board Chair or designee will schedule and hold a pre-hearing conference at which time the Board, after hearing from the parties, will schedule the commutation hearing; identify and set the witnesses to be called; clarify the issues to be addressed; and take any other action deemed necessary and appropriate to conduct the commutation proceedings.

 

R671-313-5. Commutation Hearing.

(1) Pursuant to Utah Constitution, Art. VII, Section 12, and Utah Code Ann., Section 77-27-5, a commutation hearing must be held before the full Board.

(2) Notice of the commutation hearing shall be sent to the victim of, and the police agency which investigated the offenses for which commutation has been petitioned, pursuant to applicable statutes, rules or practices of the Board. Public notice of the commutation hearing will also be made via the Board's internet website, and the State of Utah Public Meeting and Notice website.

(3) If not otherwise called as a witness, a victim representative, as defined by Utah Administrative Code, Rule R671-203-1, shall be afforded the opportunity to attend the commutation hearing, and to present testimony regarding the commutation petition, in accordance with, and subject to the provisions of Administrative Rule R671-203-4(A-C, and F).

(4) The commutation hearing is not adversarial and neither side is allowed to cross-examine the other party's witnesses. However, the Board may ask questions freely of any witness, the petitioner, the petitioner's counsel, the subject of the petition and the subject's counsel. The Utah Rules of Evidence do not apply to a commutation hearing.

(5) In conducting the commutation hearing:

(a) The Board will place all witnesses under oath and may impose a time limit on each party for presenting its case.

(b) The Board will record the commutation hearing in accordance with Utah Code Ann. Subsection 77-27-8(2).

(c) Administrative Rule R671-302 "News Media and Public Access to Hearings" will govern media and public access to the hearing.

(d) The Board may take any action it considers necessary and appropriate to maintain the order, decorum, and dignity of the hearing.

 

R671-313-6. Commutation Decision.

(1) The Board shall determine by majority decision whether and under what conditions, if any, to grant the petition, in whole or in part, and to commute a conviction or sentence.

(2) The decision of the Board regarding the grant or denial of commutation following a hearing shall be delivered by mail or electronic mail to the parties, and published by the Board in the same manner as other Board decisions.

(3) The decision of the Board will also be filed with the court which entered the sentence or conviction which are the basis of the commutation petition.

(4) If a sentence or conviction is commuted, the Board will also cause a copy of the commutation order to be delivered to the Utah Department of Public Safety -- Bureau of Criminal Information and the Federal Bureau of Investigation.

 

KEY: commutation, pardons, punishment

Date of Enactment or Last Substantive Amendment: 2012

Authorizing, and Implemented or Interpreted Law: Art. VII, Sec. 12; 63G-3-201(3); 77-27-1 et seq.; 77-27-5; 77-27-9