Post-conviction actual innocence.

2016
State of Wyoming
16LSO-0199
Introduced
1.2

SENATE FILE

NO.

SF0051

Post-conviction actual innocence.

Sponsored by:
Senator(s) Esquibel, F., Craft and Landen and Representative(s) Byrd, Lockhart and Pelkey

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, procedures 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
)

"
Actually 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
for which the movant was convicted
or any lesser included offense thereof.

(ii)

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

(iii)

"
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 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 innoce
nt of the crime or crimes for
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 the movant is actually innocent;

(ii)

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

(iii)

Show there is an absence of available state corrective process to establish 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 for the conviction from which the movant seeks relief; and

(ii)

That n
either the movant nor his counsel knew of the evidence at the time of trial
,
sentencing
or appeal
and the evidence could not have been discovered by the movant or his counsel through the exercise of
reasonable
diligence; or

(ii
i)

That a
court has found ineffective assistance of counsel for failing to exercise due diligence to discover the evidence.

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 sixty (60) 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.

(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
‑
402(c) if the court finds
that the motion for a new trial presents a colorable showing of actual innocence
.

(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 material and relevant 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 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.

The court may appoint counsel for a movant upon a determination that the motion for a new trial presents a colorable showing of actual innocence and the
movant
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.

(a)

If the court enters an order of actual innocence and exoneration pursuant to W.S. 7
‑
12
‑
404, the movant shall be eligible for compensation subject to the appropriatio
n of funds by the legislature an
d
other limitations of this section.

(b)

A movant who meets the eligibility criteria in subsection (a) of this section shall be provided compensation in the amount of one hundred dollars ($100.00) per day while actually incarcerated not to exceed a total of five hundred thousand dollars ($500,000.00).

(c)

The office of attorney general shall administer the provision of compensation provided for in this section and may promulgate rules as it deems necessary to implement this section.

(d)

A movant who meets the eligibility criteria established in subsection (a) of this section may present an application not more than two (2) years from entry of the order of actual innocence and exoneration, regardless of whether the order of actual innocence and exoneration was entered before or after July 1, 2016, to the office of the attorney general
. If the attorney general determines the movant is eligible for compensation under this section and the amount of the compensation under subsection (b) of this section is equal to or less than fifty thousand dollars ($50,000.00), payment to the movant shall be made in a lump sum. If the movant is determined eligible for compensation under subsection (b) of this section in excess of fifty thousand dollars ($50,000.00), the movant shall receive an initial payment of fifty thousand dollars ($50,000.00) and the remaining amount shall be provided by distributing funds appropriated for purposes of this section to the state treasurer to annuitize the remaining
balance. The annuity shall provide equal payments to the movant of fifty thousand dollars ($50,000.00) annually until the balance has been paid. The annuity shall provide that it shall not be sold, discounted or used as securitization for loans or mortgages. The annuity may include a beneficiary designated by the movant. In the event the movant dies before the expiration of the two (2) year period for presenting an application, the movant
'
s estate or person claiming to be the
distributee
of the movant
'
s property as established by affidavit pursuant to W.S. 2
‑
1
‑
201 or district court decree pursuant to W.S. 2
‑
1
‑
205 may present an application for the compensation which is authorized to be provided under subsection (b) of this section provided the application is presented within the time specified in this subsection. The estate or distributee shall not be eligible for compensation unless the estate or distributee complies with all provisions and requirements of this section which would have applied to the movant.

(e)

A movant shall not receive compensation under this section if he has any action pending, has obtained a judgment or has settled an action or claim against a
governmental entity or an employee of any governmental entity involving the conviction for which the order of actual innocence and exoneration was entered.

(f)

Compensation to a movant under this section may not be offset by any expenses incurred by a governmental entity, including expenses to secure custody of the movant and expenses to feed, clothe, house and provide medical care for the movant.

(g)

A movant who receives compensation under this section may not bring any action against any governmental entity or an employee of any governmental entity involving the conviction for which the order of actual innocence and exoneration was entered.

(h)

A movant shall not receive compensation under this section unless the movant signs a release and waiver on behalf of himself and his heirs, successors and assigns, forever releasing all governmental entities and their employees in the employees
'
official and individual capacit
ies
from all present and future claims involving the conviction for which the order of actual innocence and
exoneration was entered. The release shall provide that any payment to the movant does not constitute a waiver of sovereign immunity.

(j)

The provisions of the Wyoming Administrative Procedure Act are not applicable to the grant or denial of compensation under this section.

(k)

The payment of compensation under this section does not constitute a waiver of sovereign immunity.

(m)

A movant is not entitled to compensation unless sufficient
funds have been appropriated to the
office of the attorney general to provide compensation authorized under this section.

(n)

Any interest in payment of compensation under this section is not subject to execution or attachment by trustee process or otherwise, in law or equity, or under any other process whatsoever.

Section 2
.

W.S. 1
‑
39
‑
104(
a), 1
‑
39
‑
120 by creating a new subsection (b)
, 1
‑
40
‑
203(b)(xvii), (xviii) and by
creating a new paragraph (xix)
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,
an
improper
denial of compensation
pursuant to
W.S. 7
‑
12
‑
410.

1
‑
40
‑
203
.

Victim and witness bill of rights.

(b)

Crime victims, key witnesses and, upon request, other witnesses shall have the following rights:

(xvii)

To be notified about the opportunity to make an impact statement at sentencing as provided in W.S. 7
‑
21
‑
102(
a);
and

(xviii)

To be notified of the time and place of the sentencing proceeding and any changes thereof as provided in W.S. 7
‑
21
‑
102(
a)(vii)
;
.

and

(xix)

To be notified of a motion for a new trial as provided in W.S. 7
‑
12
‑
406.

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,
201
6
.

(END)

1
SF0051