Post-conviction actual innocence.

WORKING DRAFT
2014
STATE OF
WYOMING
14LSO-0035.E1

SENATE FILE
NO.
SF0028

Post-conviction actual innocence.

Sponsored by:
Joint Judiciary Interim Committee

A BILL

for

AN ACT relating to
criminal procedure;
allowing a motion for new trial for
persons convicted of a felony upon a showing of actual innoce
nce based on non-DNA evidence;
specif
ying requirements and conditions
;
providing for compensation;
specifying retention of governmental immunity;
conforming provisions;
and providing for an effective date.

Be It Enacted by the Legislature of the State of Wyoming:

Section 1.
W.S. 7
‑
12
‑
401 through 7
‑
12
‑
410
are created to read:

ARTICLE 4
NEW TRIAL BASED ON ACTUAL INNOCENCE

7
‑
12
‑
401
.

Definitions.

(a)

As used in this act:

(i)

"A
ctu
ally innocent" means a
movant

did not:

(A)

Engage in the conduct for which
the movant
was convicted;

(B)

Engage in conduct
in connection with the
offense for which the movant was
convicted

which would
constitute a lesser included offense or another felony
arising out of the same conduct; or

(C)

Engage in any conduct which would constitute aiding and abetting, attempt or conspiracy to commit the offense of conviction or any lesser
included
offense thereof.

(ii)

"Movant" means
the person fili
ng a motion under W.S. 7
‑
12
‑
402;

(
i
ii
)

"This act" means W.S.
7
‑
12
‑
401 through 7
‑
12
‑
410
.

7
‑
12
‑
402.

Motion
for
new trial based on
actual innocence.

(a)

Notwithstanding any law or rule of procedure
that bars a motion for a new tr
i
a
l as untimely, a
person who has been convicted of a felony offense may file a motion in the district court in which the person was convicted for
a
new trial based on newly discovered evidence
that the person is actually innocent of the crime or crimes of which the person was convicted.

(b)

The
motion
shall
:

(i)

Identify
w
ith specificity newly discovered
material
evidence
, other than DNA evidence,

which
if proven would
e
stablish
by clear and convincing evidence

the
movant
is
actually
innocent
;

(ii)

B
e
supported by affidavit
based on personal knowledge of the affiant

or similar credible evidence showing t
hat the
movant
is
actually innocent
;

(iii)

Show

there
is an absence of available
s
tate corrective process

to
establish
the movant is
actual
ly innocent
;
and

(iv
)

B
e
supported by
evidence
other than
recantation
s
of testimony or
statements
or impeachment evidence
.

(
c
)

The motion
shall
state
:

(i)

Whether the movant has previously moved for a new trial under this act for the conviction from which the movant seeks relief; and

(
i
i
)

That n
either the movant nor his counsel knew of the evidence at the time of trial or sentencing and the evidence could not have been discovered by the movant or his counsel through the exercise of
due
diligence
within two (2) years of the final judgment
; or

(
ii
i
)

That

a
court has found ineffective assistance of counsel for failing to exercise
due
dil
ige
nce to discover the evidence
by entry of a final order that is not subject to appeal
.

7
‑
12
‑
403.

Service of process; response by state.

(a)

Notice of the motion filed under W.S. 7
‑
12
‑
402 shall be served upon the district attorney in the county i
n which the conviction occurred.

(b)

The district attorney shall
respond to the motion
within
one hundred twenty (120)
days after receipt of the motion
.

7
‑
12
‑
404.

Review by the court; hearing on motion;
preservation of evidence
.

(
a
)

If the court finds that the requirements of
W.S. 7
‑
12
‑
40
2
(b) have not been satisfied, it shall dismiss the motion.

(
b
)

If the court finds that the
requirements of
W.S. 7
‑
12
‑
402
(c)

have not been
satisfied
,
the court may
dismiss the motion
. The
court
, however,
may
waive the requirements of
W.S.
7
‑
12
‑
40
2
(
c)
if the court finds clear and convincing evidence of actual innocence exists
.

(c)

If t
he requirements of W.S. 7
‑
12
‑
402
(b) have been met and t
he requirements of W.S. 7
‑
12
‑
402
(c) have been met or waived, the court shall
set
a hearing on the motion for a new trial.

(d)

If the court
sets
a hearing
on the motion for a new trial
and evidence is in the custody of the state or its agents, upon request of the movant, the court shall order the state to preserve all material and relevant evidence in the state's possession or control
during the pendency of the proceeding
.

(e
)

Upon the stipulation of
the
parties or a motion for dismissal of the original charges against the movant by the state in lieu of a retrial, the court shall:

(i)

Vacate the movant's conviction consistent with the evidence demonstrating the movant's actual innocence;

(ii)

Issue an order of actual innocence and exoneration; and

(iii)

Issue an order of expungement.

(f
)

In the event a retrial is conducted and the movant is acquitted at the retrial, the court shall:

(i)

Issue an order of actual innocence and exoneration; and

(ii)

Issue an order of expungement.

7
‑
12
‑
405.

Appointment of counsel.

T
he court
may
appoint counsel for
a movant
upon a
determination that the motion

for a new trial
p
resents a
nonfrivolous prima facie
showing of
actual innocence and the petitioner is needy.
Counsel shall be appointed as
provided in W.S. 7
‑
6
‑
104(c)(vii
).

7
‑
12
‑
406.

Victim notification.

Following any motion filed under this act, the district attorney shall provide notice to the victim that the motion has been filed, the time and place for any hearing that may be held as a result of the motion, and the disposition of the motion. For purposes of this section, "victim" means as defined in W.S. 1
‑
40
‑
202(a)(ii).

7
‑
12
‑
407
.

Rights not waived; refiling of uncharged offenses.

(a)

Notwithstanding any other provision of law, the right to file a motion under W.S.
7
‑
12
‑
402 shall not be waived
as part of an agreement resulting in a plea of guilty or nolo contendere
or in any other manner
.

(b)

If a movant is granted a new trial under this act, any offense that was dismissed or not charged pursuant to a plea agreement that resulted in the
original
conviction may be refiled by the state.

7
‑
12
‑
408
.

Appeal.

An order granting or denying a motion for a new trial under this act is not appealable.

7
‑
12
‑
409
.

Subsequent motions.

The court shall not be required to entertain a second or subsequent motion under
this act.

7
‑
12
‑
410.

Compensation.

If the court enters an order of actual innocence and exoneration pursuant to W.S. 7
‑
12
‑
4
04
, the movant shall be eligible
for
co
mpensation

subject to the appropriation of funds by the legislature. The compensation shall be
awarded
in the
same
amount and subject to the same
terms,
conditions and requirements
as awarded
under W.S. 7
‑
12
‑
316(b) through (n)
for persons exonerated based on DNA testing.

Section. 2.
W.S.
1
‑
39
‑
104(a),
1
‑
39
‑
120
by creating a new subsection
(b) and
7
‑
6
‑
104
(c)(vii) are
amended to read:

1-39-104.

Granting immunity from tort liability; liability on contracts; exceptions.

(a)

A governmental entity and its public employees while acting within the scope of duties are granted immunity from liability for any tort except as provided by W.S. 1
‑
39
‑
105 through 1
‑
39
‑
112 and limited by W.S. 1
‑
39
‑
121. Any immunity in actions based on a contract entered into by a governmental entity is waived except to the extent provided by the contract if the contract was within the powers granted to the entity and was properly executed and except as provided in W.S.
1
‑
39
‑
120(b) and

1
‑
39
‑
121. The claims procedures of W.S. 1
‑
39
‑
113 apply to contractual claims against governmental entities.

1
‑
39
‑
120.

Exclusions from waiver of immunity.

(b)

Notwithstanding the waiver of immunity for tort liability provided by W.S. 1
‑
39
‑
105 through 1
‑
39
‑
112 or the waiver of immunity in actions based on contract provided by W.S. 1
‑
39
‑
104, a governmental entity and its public employees while acting within the scope of duties are immune from a civil action in tort, contract or otherwise alleging, in whole or in part, improper
denial of compensation provided for in W.S. 7
‑
12
‑
410
.

7
‑
6
‑
104.

Representation of needy persons.

(c)

A needy person who is entitled to be represented by an attorney under subsection (a) of this section is entitled:

(vii)

To be represented by the public defender in a motion brought in accordance with the provisions of the Post-Conviction DNA Testing Act

or
in
accordance with W.S. 7
‑
12
‑
405
.

Section. 3.
Th
is act is effective July 1, 2014.

(END)

1
SF0028