New trial based on actual innocence.

2017
STATE OF WYOMING
17LSO-0311
Introduced
1.2

HOUSE BILL

NO.

HB0144

New trial based on actual innocence.

Sponsored by:
Representative(s) Pelkey, Baker, Blake, Gierau and Pownall and Senator(s) Case

A BILL

for

AN ACT relating to criminal procedure; allowing a motion for a new trial for persons convicted of a felony based upon newly discovered evidence of actual innocence; specifying requirements, procedures and conditions; 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
‑
40
8

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 engage in any of the following:

(A)

Conduct for which the movant was convicted;

(B)

Conduct in connection with the offense for which the movant was convicted that would constitute a lesser included offense or another felony;

(C)

Conduct that would constitute aiding and abetting, attempt or conspiracy to commit the offense for which the movant was originally convicted or any lesser included offense thereof.

(ii)

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

(iii)

"False evidence" means evidence that is material or probative on the issue of guilt or punishment that was introduced against a
movant to prove the offense for which the movant was originally convicted
that
has
been repudiated by the expert who originally provided the opinion
or
that
ha
s
been undermined by later scientific research or technological advances
;

(i
v
)

"This act" mean
s W.S. 7
‑
12
‑
401 through 7
‑
12
‑
408
.

7
‑
12
‑
402
.

Motion for new trial based on actual innocence; conduct of proceedings.

(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
for
which the person was convicted.

(b)

The motion shall:

(
i
)

Identify with specificity newly discovered material evidence
or
false evidence
,
which if proven would establish by
a reasonable probability
that

the movant is actually innocent;

(ii)

Be supported by affidavit based on personal knowledge of the affiant or similar credible evidence showing that the movant is actually innocent;
and

(i
ii
)

Be supported by evidence other
than impeachment
evidence.

(c)

The motion shall state:

(i
)

That neither 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; or

(ii)

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.

(d)

Unless otherwise inconsistent with the provisions of this act, proceedings under this act shall be conducted pursuant to the Wyoming Rules of 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 one hundred twenty (120) days after receipt of the motion, or within any extension of time the court allows for good cause shown.

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 satisfie
d, 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
a reasonable probability

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. The motion for a new trial shall be considered and determined and a dispositive order entered within thirty (30) days after the date the district attorney responds to the motion. The court may extend the thirty (30) days for entering a dispositive order provided that the time for entering a dispositive order shall not extend
one hundred fifty (150) days after the date the district at
torney responds to the motion.

(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 the state's motion for dismissal of the original charges against the movant, the court
shall
vacate the movant's conviction
, issue an order of actual innocence and exoneration
and order expungement
of the records of the original conviction.

(f)

In the event a retrial is conducted and the movant is acquitted at the retrial, the court shall issue
an order of actual innocence and exoneration and order expungement of the records of the original conviction
.

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, nonfrivolous
,
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 W.S. 7
‑
12
‑
402, the district attorney shall make reasonable efforts to 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 subject to waiver; 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 gra
nted a new trial under this act
any offense that was dismissed or not charged

may be refiled by the state
, except
no charges shall be filed
in violation
of the terms
of
a plea agreement
.

7
‑
12
‑
408
.

Appeal.

An order granting or denying a motion for a new trial under this act is appealable.

Section
2
.

W.S. 7
‑
6
‑
104(c
)(
vii) is amended to read:

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
7
.

(END)

1
HB0144