Bill Summary – FastDemocracy

Enrolled Copy                                                                        H.B. 330
                           CIVIL COMMITMENT AMENDMENTS
                                       2023 GENERAL SESSION
                                           STATE OF UTAH
                                 Chief Sponsor: Ryan D. Wilcox
                              Senate Sponsor: Michael S. Kennedy
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 LONG TITLE
 General Description:
        This bill modifies provisions relating to competency to stand trial.
 Highlighted Provisions:
        This bill:
        < defines terms and modifies definitions;
        < modifies procedures and requirements for finding a defendant incompetent to stand
 trial in a criminal proceeding, including provisions relating to:
            C   the court in which a petition to determine competency may be filed;
            C   the information and circumstances on which the forensic evaluation of a
 defendant may be based;
            C   the number of forensic evaluators required to evaluate a defendant;
            C   the court's findings regarding a defendant's competency; and
            C   commitment of an incompetent defendant for restoration treatment; and
        < makes technical changes.
 Money Appropriated in this Bill:
        None
 Other Special Clauses:
        None
 Utah Code Sections Affected:
 AMENDS:
        77-15-2, as last amended by Laws of Utah 2018, Chapter 147
        77-15-3.5, as enacted by Laws of Utah 2018, Chapter 147
       H.B. 330                                                                         Enrolled Copy
         77-15-5, as last amended by Laws of Utah 2018, Chapter 147
         77-15-6, as last amended by Laws of Utah 2018, Chapter 147
32
 Be it enacted by the Legislature of the state of Utah:
         Section 1. Section 77-15-2 is amended to read:
         77-15-2. Definitions.
         As used in this chapter:
         (1) "Competency evaluation" means an evaluation conducted by a forensic evaluator to
 determine if an individual is competent to stand trial.
         (2) "Competent to stand trial" means that a defendant has:
         (a) a rational and factual understanding of the criminal proceedings against the
 defendant and of the punishment specified for the offense charged; and
         (b) the ability to consult with the defendant's legal counsel with a reasonable degree of
 rational understanding in order to assist in the defense.
         (3) "Department" means the Department of Health and Human Services.
         (4) "Forensic evaluator" means a licensed mental health professional who [is]:
         (a) is not involved in the defendant's treatment; [and]
         (b) is trained and qualified by the department to conduct a competency evaluation, a
 restoration screening, and a progress toward competency evaluation[.], based on knowledge,
 experience, or education relating to:
         (i) intellectual functioning or psychopathology; and
         (ii) the legal system and the rights of a defendant in a criminal trial; and
         (c) if under contract with the department, demonstrates ongoing education and training
 relating to forensic mental health in accordance with rules established by the department in
 accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
         (5) "Incompetent to proceed" means that a defendant is not competent to stand trial[.]
 as a result of:
         (a) mental illness; or
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       Enrolled Copy                                                                            H.B. 330
         (b) intellectual disability.
         (6) "Intellectual disability" means an intellectual disability as defined in the current
 edition of the Diagnostic and Statistical Manual of Mental Disorders published by the
 American Psychiatric Association.
         (7) "Mental illness" means the same as that term is defined in Section 62A-15-602.
         [(6)] (8) "Petition" means a petition to request a court to determine whether a defendant
 is competent to stand trial.
         [(7)] (9) "Progress toward competency evaluation" means an evaluation to determine
 whether an individual who is receiving restoration treatment is:
         (a) competent to stand trial;
         (b) incompetent to proceed but has a substantial probability of becoming competent to
 stand trial in the foreseeable future; or
         (c) incompetent to proceed and does not have a substantial probability of becoming
 competent to stand trial in the foreseeable future.
         [(8) "Restoration screening" means an assessment of an individual determined to be
 incompetent to stand trial for the purpose of determining the appropriate placement and
 restoration treatment for the individual.]
         [(9)] (10) "Restoration treatment" means training and treatment that is:
         (a) provided to an individual who is incompetent to proceed;
         (b) tailored to the individual's particular impairment to competency; and
         (c) limited to the purpose of restoring the individual to competency.
         Section 2. Section 77-15-3.5 is amended to read:
         77-15-3.5. Incompetent to proceed in misdemeanor cases.
         (1) When a defendant charged with a misdemeanor [is] may be incompetent to
 proceed, [a] any petition [may] shall be filed in [the district court of the county where the
 charge is pending or where the defendant is confined] accordance with Section 77-15-3.
         (2) If the most severe charge against a defendant is a misdemeanor and the defendant is
 adjudicated by a court as incompetent to proceed:
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        H.B. 330                                                                             Enrolled Copy
         (a) the department shall provide restoration treatment to the defendant; and
         (b) the court may refer the defendant to pretrial diversion services, upon agreement of
 the prosecution and defense counsel.
         (3) Unless the prosecutor or another individual indicates that civil commitment
 proceedings will be initiated under Subsection 77-15-6(5)(c), a court shall release a defendant
 who is incompetent to proceed if:
         (a) the most severe charge against the defendant is [no more severe than] a class B
 misdemeanor;
         (b) more than 60 days have passed after the day on which the court adjudicated the
 defendant incompetent to proceed; and
         (c) the defendant [has not been] is not restored to competency.
         (4) The department shall provide restoration treatment to the defendant within the
 timeframe described in Subsection (3)(b).
         [(4)] (5) [A] The court may, but is not required to, dismiss the charges against a
 defendant who was released under Subsection (3).
         Section 3. Section 77-15-5 is amended to read:
         77-15-5. Order for hearing -- Stay of other proceedings -- Examinations of
 defendant -- Scope of examination and report.
         (1) A court in which criminal proceedings are pending shall stay all criminal
 proceedings, if:
         (a) a petition is filed under Section 77-15-3 or 77-15-3.5; or
         (b) the court raises the issue of the defendant's competency under Section 77-15-4.
         (2) The court in which the petition described in Subsection (1)(a) is filed:
         (a) shall inform the court in which criminal proceedings are pending of the petition, if
 the petition is not filed in the court in which criminal proceedings are pending;
         (b) shall review the allegations of incompetency;
         (c) may hold a limited hearing solely for the purpose of determining the sufficiency of
 the petition, if the court finds the petition is not clearly sufficient on its face;
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        Enrolled Copy                                                                             H.B. 330
        (d) shall hold a hearing, if the petition is opposed by either party; and
        (e) may not order an examination of the defendant or order a hearing on the mental
 condition of the defendant unless the court finds that the allegations in the petition raise a bona
 fide doubt as to the defendant's competency to stand trial[; and].
        [(f) if] (3) (a) If the court finds that [the allegations raise] there is a bona fide doubt as
 to the defendant's competency to stand trial, the court shall order[:] the department to have one
 or two forensic evaluators complete a competency evaluation for the defendant in accordance
 with Subsection (3)(b) and provide a report to the court regarding the competency of the
 defendant to stand trial.
        [(i) the department to have the defendant evaluated by one forensic evaluator, if:]
        [(A) the most severe charge against the defendant is a misdemeanor; or]
        [(B) the defendant is charged with a felony but is not charged with a capital felony, and
 the court determines, based upon the allegations in the petition, that a second competency
 evaluation is not necessary;]
        [(ii) the department to have the defendant evaluated by two forensic evaluators, if:]
        [(A) the defendant is charged with a capital felony; or]
        [(B) the defendant is charged with a felony but is not charged with a capital felony, and
 the court determines, based upon the allegations in the petition, that a second competency
 evaluation is necessary; and]
        [(iii) the defendant to be evaluated by an additional forensic evaluator, if requested by a
 party, who shall:]
        [(A) select the additional forensic evaluator; and]
        [(B) pay for the costs of the additional forensic evaluator.]
        (b) The court shall order the department to have the defendant evaluated by one
 forensic evaluator unless:
        (i) the defendant is charged with a capital felony; or
        (ii) the defendant is charged with a felony that is not a capital felony, and the court
 determines, based on the allegations in the petition, that good cause exists to order two
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        H.B. 330                                                                          Enrolled Copy
 competency evaluations.
         (c) (i) This section does not prohibit a party from seeking an additional forensic
 evaluator to conduct a competency evaluation of the defendant.
         (ii) If a party seeks an additional competency evaluation under this Subsection (3)(c),
 the party shall:
         (A) select the additional forensic evaluator; and
         (B) pay the costs of the additional forensic evaluator.
         (d) The stipulation by parties to a bona fide doubt as to the defendant's competency to
 stand trial alone may not take the place of a competency evaluation ordered under this
 Subsection (3).
         [(3)] (4) (a) If the petition or other information sufficiently raises concerns that the
 defendant may have [intellectual or developmental disabilities] an intellectual disability, at
 least one forensic evaluator who is experienced in [intellectual or developmental disability]
 assessments of intellectual disabilities shall conduct a competency evaluation.
         (b) The petitioner or other party, as directed by the court or requested by the
 department, shall provide to the forensic evaluator nonmedical information and materials
 relevant to a determination of the defendant's competency, including the charging document,
 arrest or incident reports pertaining to the charged offense, known criminal history information,
 and known prior mental health evaluations and treatments.
         (c) For purposes of a competency evaluation, a [court may order that custodians]
 custodian of mental health records pertaining to the defendant [provide those records to a
 forensic evaluator without the need for consent of the defendant.], including the defendant's
 prior mental health evaluations or records relating to the defendant's substance use disorder,
 may provide the records to:
         (i) with the defendant's consent, a forensic evaluator or the department on the
 department's request; or
         (ii) a forensic evaluator by court order.
         (d) A court order under Subsection (4)(c) shall include a protective order that expires
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        Enrolled Copy                                                                           H.B. 330
 180 days after the day on which:
        (i) the defendant is found guilty;
        (ii) the defendant enters a guilty plea;
        (iii) the court sentences the defendant; or
        (iv) if the case is appealed, the day on which the final appeal is resolved.
        (e) (i) Except as otherwise provided by law and in Subsections (4)(e)(ii) and (4)(f), the
 court shall order the forensic evaluator to destroy all records subject to the protective order
 within the 180 day period described in Subsection (4)(d).
        (ii) A forensic evaluator is not required to destroy the records subject to the protective
 order if destroying the records is a violation of ethical standards to which the forensic evaluator
 is subject for occupational licensing.
        (f) The court may extend the protective order described in Subsection (4)(d) if:
        (i) the court finds the defendant incompetent to proceed without a substantial
 probability that the defendant will become competent in the foreseeable future;
        (ii) the prosecutor or another individual indicates to the court that the prosecutor or
 other individual will seek civil commitment of the defendant under Section 77-15-6; and
        (iii) the court orders the records be maintained and used only for the purposes of
 examining the defendant in connection with the petition for civil commitment.
        [(d)] (g) An order for a competency evaluation may not contain an order for any other
 inquiry into the mental state of the defendant that is not described in this Subsection (4).
        [(4)] (5) Pending a competency evaluation, unless the court or the department directs
 otherwise, the defendant shall be retained in the same custody or status that the defendant was
 in at the time the examination was ordered.
        [(5)] (6) In the conduct of a competency evaluation[, a progress toward competency
 evaluation,] and in a report to the court, a forensic evaluator shall consider and address, in
 addition to any other factors determined to be relevant by the forensic evaluator:
        (a) (i) the impact of the defendant's mental illness or intellectual disability on the
 defendant's present ability to:
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        H.B. 330                                                                           Enrolled Copy
         [(i)] (A) rationally and factually understand the criminal proceedings against the
 defendant; and
         [(ii)] (B) consult with the defendant's legal counsel with a reasonable degree of rational
 understanding in order to assist in the defense;
         (b) in making the determinations described in Subsection (6)(a), the forensic evaluator
 shall consider, as applicable:
         (i) the defendant's present ability to:
         [(iii)] (A) understand the charges or allegations against the defendant;
         [(iv)] (B) communicate facts, events, and states of mind;
         [(v)] (C) understand the range of possible penalties associated with the charges or
 allegations against the defendant;
         [(vi)] (D) engage in reasoned choice of legal strategies and options;
         [(vii)] (E) understand the adversarial nature of the proceedings against the defendant;
         [(viii)] (F) manifest behavior sufficient to allow the court to proceed; and
         [(ix)] (G) testify relevantly, if applicable; and
         [(b) the impact of the mental disorder or intellectual disability, if any, on the nature and
 quality of the defendant's relationship with counsel;]
         [(c) if psychoactive medication is currently being administered:]
         [(i) whether the medication is necessary to maintain the defendant's competency; and]
         [(ii) whether the medication may have an effect on the defendant's demeanor, affect,
 and ability to participate in the proceedings; and]
         [(d)] (c) whether the defendant is exhibiting false or exaggerated physical or
 psychological symptoms relevant to the defendant's capacity to stand trial.
         [(6)] (7) [If the forensic evaluator's opinion is] Upon a determination that the defendant
 is incompetent to proceed, the forensic evaluator shall indicate in the report to the court:
         (a) the factors that contribute to the defendant's incompetency, including the nature of
 the defendant's mental [disorder or intellectual or developmental disability] illness or
 intellectual disability, if any, and its relationship to the factors contributing to the defendant's
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        Enrolled Copy                                                                              H.B. 330
 incompetency; [and]
         (b) whether there is a substantial probability that:
         (i) restoration treatment may[, in the foreseeable future,] bring the defendant to
 competency to stand trial[, or that] in the foreseeable futu