I am working on a paper for the fall edition of Utah Journal of Criminal Law, with a preview article appearing in the summer issue of The Defender, regarding indigent defense funding. I have outlined the basic idea below. A sample motion to appoint sentencing specialist is available upon request.
I welcome your comments, questions, and suggestions regarding indigent defense resources in Utah.
When defense counsel reasonably believes that a sentencing specialist is necessary for a complete defense and requests funding in accordance with the Indigent Defense Act, if the government interferes with the request it amounts to a denial of counsel under Strickland.
Some of the reasons defense counsel might reasonably a sentencing specialist is necessary include:
- Defendant has the burden of proof (preponderance of evidence) for mitigating circumstances
- Defendant has the burden to establish eligibility for probation (preponderance of evidence) with select sexual offenses
- Based on the history, character, and rehabilitative needs of the defendant – although it is explicitly stated as such, defendant bears the burden to establish appropriateness of concurrent sentences
- Based on the nature and circumstances of the offense and the history and character of the defendant, defendant has the burden to establish the interest of justice exception under 76-3-402(1) for a one level offense level reduction
- To insure the sentencing decision is based on accurate information
- Specialized training and knowledge associated with risk assessments – fundamental role risk assessment results have in establishing the need for conditions of release
- Historically, presentence reports were prepared by probation officers in the Department of Health and Human Services (DHHS). DHHS was restructured in 1985 at which time the Corrections became its own department. In 1993 the legislature passed a bill requiring all probation officers to be peace officer certified (prior to 1993 it was optional although officers were required to attend the corrections academy). These changes correspond with a philosophical realignment with the prosecution. The trend of the past 30 years has been away from defendant-based presentence reports (like those prepared by probation officers in DHHS) toward offense-based reports which deprive the court of necessary information about the history, character, and rehabilitative needs of the defendant.
- Counsel reasonably believes that a sentencing specialist is necessary to assist with the “focused, adversarial development of the factual and legal issues.”
77-18-1(5) (a) Before the imposition of any sentence, the court may, with the concurrence of the defendant, continue the date for the imposition of sentence for a reasonable period of time for the purpose of obtaining a presentence investigation report from the department or information from other sources about the defendant.
The ABA Standards for Criminal Justice Sentencing require the development of “adequate information … through presentence investigations or other means, to enable sentencing courts and members of the bar to perform their sentencing responsibilities.”
The National Legal Aid & Defender Association, Performance Guidelines for Criminal Defense Representation Guideline 8.1(6) “to consider the need for and availability of sentencing specialists, and to seek the assistance of such specialists whenever possible and warranted.”
Indigent Defense Act
Defendant must be indigent
Defendant must be represented by public defender or conflict counsel
Defendant must establish necessity (reasonableness) “if the resources are necessary for a complete defense, the court must approve them” (regardless of cost) (State v. Carreno, 144 P.3d 1152, 2006 U.T. 59 (Utah 2006))
Protected State’s Interest
The State has recourse to obtain financial relief for expenses associated with providing a complete defense under U.C.A. 77-32a-1 “the court may require a convicted defendant to pay costs”