Post-conviction actual innocence.

2015
STATE OF WYOMING
15LSO-0440
Numbered
2.1

HOUSE BILL

NO.
HB0211

Post-conviction actual innocence.

Sponsored by:
Representative(s) Pelkey and Lindholm and Senator(s) Rothfuss

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 innocence based on non-DNA evidence; specifying requirements and conditions; specifying retention of governmental immunity; conforming related 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
‑
409

are
created to read:

ARTICLE 4
NEW TRIAL BASED ON ACTUAL INNOCENCE

7
‑
12
‑
401
.

Definitions.

(a)

As used in this act:

(i)

"Ac
tually 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 of
fense thereof.

(ii)

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

(iii)

"This act" mean
s W.S. 7
‑
12
‑
401 through 7
‑
12
‑
409
.

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 trial 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 with specificity newly discovered material evidence, other than DNA evidence, which if proven would establish by clear and convincing evidence
that
the movant is actually innocent;

(ii)

Be supported by
one (1) or more
affidavit
s
based on
the
personal knowledge of the affiant or similar
credible evidence showing that the movant is actually innocent;

(iii)

Show there is an absence of
any
available process to establish
under state law that
the movant is actually innocent; and

(iv)

Be su
pported by evidence other than
recantations 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

(ii)

That neither the movant nor his counsel knew of the
newly discovered material
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

(iii)

That a court has found ineffective assistance of counsel for failing to exercise due diligence 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 in 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
‑
402(b) have not been satisfied, it shall dismiss the motion
filed under W.S. 7
‑
12
‑
402
.

(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
filed under W.S. 7
‑
12
‑
402.
The court, however, may waive the requirements of W.S. 7
‑
12
‑
402(c) if the court finds
clear and convincing evidence that
actual innocence exists.

(c)

If the requirements of W.S. 7
‑
12
‑
402(b) have been met and the 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
or control
of the state or its agents, upon request of the movant, the court shall order the state to preserve all evidence in the state's possession or control during t
he 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;

(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.

The court may appoint counsel for a movant upon a determination that the motion for a new trial presents a nonfrivolous prima facie showing of actual innocenc
e 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
W.S. 7
‑
12
‑
402
, 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
W.S. 7
‑
12
‑
402
.

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
.

This
act is effective July 1,
2015
.

(END)

1
HB0211