DAR File No. 38875

Pardons (Board Of), Administration

Rule R671-514

Waiver and Pleas of Guilt

Notice of Proposed Rule

(Amendment)

DAR File No.: 38875
Filed: 09/22/2014 10:53:40 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The current rule does not clearly enumerate the rights of an individual during the parole violation hearing process. The proposed changes will clarify the rights of the individual and give the right to withdraw the waiver.

Summary of the rule or change:

When an individual is returned to prison for alleged parole violations that individual is entitled to an evidentiary hearing to determine if the allegations are true. The individual may however choose to admit guilt and waive the hearing. The rule changes clarify the rights of the individual including the right to withdraw the waiver.

State statutory or constitutional authorization for this rule:

• Subsection 77-27-9(4)
• Section 77-27-11
• Section 77-13-6

Anticipated cost or savings to:

the state budget:

The proposed changes affect the Board, Board staff, Adult Probation and Parole, and individuals under the jurisdiction of the Board. The parole violation hearing process is already in place. These changes do not add cost or create savings for the state budget.

local governments:

Local governments are not involved in the parole revocation process. The proposed changes do not impact local governments.

small businesses:

The proposed changes affect the Board, Board staff, and individuals under the jurisdiction of the Board. The rule describes the waiver process for parole violations. There is no impact for small business.

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

The proposed changes affect Adult Probation and Parole and the parolee however the fundamental process of revoking parole after a violation remains the same.

Compliance costs for affected persons:

There is no cost to the individual parolee. The proposed changes elaborate the right of an individual to waive an evidentiary hearing and enter a plea of guilt. The changes also allow an individual to withdraw a waiver.

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

The parole revocation process involves the parolee and Adult Probation and Parole. There is no fiscal impact to businesses.

Angela Micklos, Board Chair

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:

• Greg Johnson at the above address, by phone at 801-261-6454, by FAX at 801-261-6481, or by Internet E-mail at gregjohnson@utah.gov

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:

11/14/2014

This rule may become effective on:

11/21/2014

Authorized by:

Angela Micklos, Chair

R671. Pardons (Board of), Administration.

R671-514. Waiver and Pleas of Guilt.

R671-514-1. Waiver and Pleas of Guilt.

After executing a Board warrant, the [agent]Department of Corrections employee shall inform the [parolee]offender of the opportunity to plead guilty to any or all of the alleged parole violations and that such a plea waives the right to a further hearing on any allegation admitted in the waiver. The Department of Corrections employee shall also inform the offender that a plea of guilty is voluntary, and there is no requirement to plead guilty or waive the offender's right to a parole violation hearing.

 

R671-514-2. Guilty Pleas Before Hearing.

(1) If [a parolee]an offender wishes to plead guilty or no contest to any alleged parole violation before a parole violation hearing, the [agent]Department of Corrections employee shall provide the [parolee]offender with an Affidavit of Waiver and Plea of Guilt form.[If the parolee is functionally illiterate, or suffers from a mental disability, the agent shall explain the contents of the affidavit and waiver.]

(2) If the agent believes the [parolee]offender is unable to understand the affidavit and waiver and appreciate the consequences of signing it for any [other reason, the agent shall not execute the waiver. The agent shall promptly inform the Board, which may assign counsel to the parolee or take any other action that will assist the parolee understand the parolee's rights.]reason,

(a) The Department of Corrections employee may not execute the waiver.

(b) The Department of Corrections employee shall promptly inform the Board, which may assign counsel to the offender or take other action the Board deems appropriate to assist the offender with understanding the parole violation process or the offender's rights.

 

R671-514-3. Multiple Pleas Before Hearing.

[A parolee]An offender may plead guilty or no contest to some of the allegations and plead not guilty to others. The Board may decide to dismiss the allegations to which the [parolee]offender pled not guilty and enter a disposition based solely on the pleas of guilt[.] or no contest. If the Board chooses to make a disposition based solely on pleas of guilt or no contest, it [need]will not hold[either] an evidentiary or parole revocation hearing. However, at its discretion, the Board may schedule a hearing to interview the [parolee]offender or take victim testimony, if the Board determines that doing so would assist the Board in its decision.

 

R671-514-4. [Entry ]Acceptance of Pleas[ at Any Time].

[A parolee](1) An offender may enter a plea of [guilt]guilty or no contest at any time.[If the parolee]

(2) Before an offender pleads guilty or no contest at a revocation or evidentiary hearing, the hearing official shall explain to the [parolee]offender that a no contest plea, if offered, will be treated for dispositional purposes and revocation as a guilty plea; that a revocation of parole may result in the offender being ordered to serve their full sentences to expiration; and that such a plea waives the offender's rights [being waived and ]to:

(a) a hearing at which the state would be required to prove parole violation allegations by a preponderance of the evidence;

(b) the appointment of an attorney to assist the offender at an evidentiary hearing;

(c) hear and see the evidence and testimony supporting the allegations;

(d) confront and cross-examine any witnesses who testify regarding the violation allegations;

(e) call witnesses and testify themselves regarding the violation allegations.

(3) The hearing official shall receive an admission and plea from the offender on the record.

(4) The hearing official may then receive information, statements, testimony or recommendations to assist the Board in its final determination and disposition of the revocation proceedings.

 

R671-514-5. [Acceptance]Withdrawal of Pleas.

[If the parolee pleads](1) A plea of guilty [to all]or no contest may be withdrawn by an offender prior to the entry of the [allegations, the Board may accept the plea(s)]Board's revocation order and [take any action it considers appropriate for ]disposition[. The Board need not hold a ] based upon the plea.

(2) A plea of guilty or no contest may be withdrawn only upon leave of the Board and a showing that the plea was not knowingly and voluntarily made.

(3) A request to withdraw a plea of guilty or no contest shall:

(a) be made in writing;

(b) clearly state that it is a motion or request to withdraw a parole revocation [or evidentiary hearing. However, the Board may schedule a hearing to interview]plea;

(c) be addressed to the [parolee or take victim testimony if]Board Chair;

(d) clearly state the [Board determines that doing so would assist]reasons supporting the withdrawal; and

(e) be delivered to the Board within 10 days of the guilty or no contest plea.

(4) The Board need not hold a hearing prior to ruling on the request to withdraw a plea.

(5) The Board [in ]shall rule on the request to withdraw a plea of guilty or no contest within thirty days of receipt, and shall promptly notify the offender of its decision.

 

KEY: parole, allegations, pleas

Date of Enactment or Last Substantive Amendment: [May 22, 2013]2014

Notice of Continuation: February 15, 2013

Authorizing, and Implemented or Interpreted Law: 77-27-9(4); 77-27-11; 77-13-6.