Utah Code § 78B-9-202 — Utah Code / Title 78B / Chapter 78B-9 / § 78B-9-202
§ 78B-9-202. Appointment and payment of counsel in a death penalty case.
Status: in_force

(1) (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: (i) advise the individual, in open court and on the record, of the provisions of this chapter allowing challenges to the individual's conviction and sentence; and (ii) appoint counsel to represent the individual on a petition for postconviction relief in accordance with this section and Rule 8 of the Utah Rules of Criminal Procedure. (b) Subject to Subsection (1)(c), Subsection (1)(a)(ii) does not prevent an individual from obtaining private counsel or waiving the appointment of counsel. (c) If an individual wishes to reject the appointment of counsel under Subsection (1)(a)(ii), the sentencing court shall make a finding regarding the individual's understanding of the legal consequences of proceeding without the appointment of postconviction counsel. (d) The sentencing court may not appoint counsel who represented the individual at trial, or on the direct appeal, under Subsection (1)(a)(ii). (e) For purposes of Subsection (1)(a)(ii), the Supreme Court shall maintain a list of postconviction counsel qualified to represent an individual who has been sentenced to death on a petition for postconviction relief. (2) For a second or successive petition for postconviction relief, a court may not appoint postconviction counsel for an individual sentenced to death at the expense of the public, except for a claim: (a) based on newly discovered evidence as defined in Subsection 78B-9-104(1)(e)(i); or (b) based on Subsection 78B-9-104(1)(g) that could not have been raised in any previously filed post trial motion or postconviction proceeding. (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) In determining whether the requested funds are reasonable, the court should consider: (i) the extent to which the petitioner requests funds to investigate and develop evidence and legal arguments that duplicate the evidence presented and arguments raised in the criminal proceeding; and (ii) whether the petitioner has established that the requested funds are necessary to develop evidence and legal arguments that are reasonably likely to support postconviction relief. (c) (i) The court may authorize payment of attorney fees at a rate of $250 per hour up to a maximum of $120,000. (ii) The court may exceed the maximum amount described in Subsection (3)(c)(i) only upon a showing of good cause as established in Subsections (3)(f) and (g). (d) (i) The court may authorize litigation expenses up to a maximum of $40,000. (ii) Litigation expenses under Subsection (3)(d)(i) may include payment for an investigator, a mitigation specialist, a mental health and forensic science expert, and support personnel. (iii) The court may exceed the maximum amount described in Subsection (3)(d)(i) only upon a showing of good cause as established in Subsections (3)(f) and (g). (e) (i) The court may authorize the petitioner to apply ex parte for the funds permitted in Subsections (3)(c) and (d) upon a motion to proceed ex parte and if the petitioner establishes the need for confidentiality. (ii) The motion to proceed ex parte must be served on counsel representing the state. (iii) The court may not grant the motion without giving the state an opportunity to respond. (f) In determining whether good cause exists to exceed the maximum sums established in Subsections (3)(c) and (d), the court shall consider: (i) the extent to which the work done to date and the further work identified by the petitioner duplicates work and investigation performed during the criminal case under review; and (ii) whether the petitioner has established that the work done to date and the further work identified is reasonably likely to develop evidence or legal arguments that will support postconviction relief. (g) The court may permit payment in excess of the maximum amounts established in Subsections (3)(c) and (d) only on the petitioner's motion, provided that: (i) if the court has granted a motion to file ex parte applications under Subsection (3)(e), the petitioner 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; (ii) if the court has not granted a motion to file ex parte applications, the petitioner serves the attorney representing the state in the postconviction matter with the motion to exceed the maximum funds; (iii) if the motion proceeds under Subsection (3)(g)(i), the designated assistant attorney general does not disclose to the attorney representing the state in the postconviction matter any material the petitioner provides in support of the motion except upon a determination by the court that the material is not protected by or that the petitioner has waived the attorney client privilege or work product doctrine; and (iv) the court gives the state an opportunity to respond to the request for funds in excess of the maximum amounts provided in Subsections (3)(c) and (d). (4) (a) Nothing in this chapter shall be construed as creating the right to the effective assistance of postconviction counsel. (b) Relief may not be granted on any claim that postconviction counsel was ineffective. (5) The appointment of counsel under this section does not constitute an application for postconviction or other collateral review and does not toll the statute of limitations under Section 78B-9-107.