Posted: April 2, 2019
Rules of Criminal Procedure – Comment Period Closed May 17, 2019
URCrP022. The proposed change will allow a defendant to file a motion to correct a sentence when the sentence becomes unconstitutional based on a rule established by the U.S. Supreme Court, Utah Supreme Court, or Utah Court of Appeals after sentencing, and the rule was not dictated by precedent existing at the time of sentencing. Associate Chief Justice Thomas Lee has included a comment raising the question of whether there should be time limits for such motions. Associate Chief Justice Lee asks practitioners to comment on that issue.
No. A motion pursuant to the proposed change should be permitted to be filed at any time subsequent to the sentence having become unconstitutional, in any manner, including any of those specified.
No. There should not be any time limits on rectifying justice when mercy so permits. The reality is, many of our incarcerated are mentally deficient, due to illness, scarcity mind set, or brain injuries. And, many are not vigorously represented by legal counsel, due to our overburdened, though valiant, public defenders. For these reasons, persons imprisoned in Utah all too often do not receive adequate notice sufficient for him/her to be able to act upon opportunities that are beneficial for them.
If mercy is available by the rule of law, then it should remain so, because it needs be aware of the abilities of those to whom it is extended to avail themselves of such kindness.
Many, if not most, of those who will avail themselves of this chance to obtain justice will be filing pro se. If a time limit is to be set on considering relief, then the time ought to reflect the reality of the circumstances of the pro se applicant. I would suggest that either no time be set, or a five-year time be set. After all, if the sentence becomes unjust it does not cease to be so only because of the passage of time.
I am not sure I grasp Associate Chief Justice Lee’s concern. He may be looking above me.
My only concern relating failure to impose a time limit is that it may invite burdensome expense upon our system every time a sentencing term in Utah Courts is found to be unconstitutional. I imagine the burden could be large in some instances.
Such a concern should be weighed against the burden upon every convicted citizen who suffers from the unconstitutional sentencing term. How burdensome is it to ask them to ‘timely’ motion for relief?
This may also be considered in the context of legislative action, where if a sentencing term were found unconstitutional, the legislature is best positioned to provide statutory relief to affected convicted citizens, and avoid the cost burden to our courts, and individual burden to our convicted citizens.
I believe this burden manifests largest if courts ever strike down sentences imposing permanent status’ by conviction, examples are felon and sex offender registries and/or restrictions permanently imposed upon those listed on them.
Again, each convicted citizen would benefit greatly from relief, and a time bar for such a motion would be difficult to imagine. But the burden upon the courts is also difficult to imagine. One must trust the legislature would intervene as the best actor suited to relieve the burden on both parties by amending applicable statutes–as they must do anyway- to reflect changes in the law.
Consequently, when I balance the interests involved, I believe any interest in imposing the burden upon citizens of a time limit to exercise a constitutional right is presently unfounded. If the balance shifts, and such limit is ever needed, it should be considered once time has shown the need is obvious.
The Attorney General’s Office presumes that this proposed rule is designed to reach constitutional status exemptions from certain sentences, such as those imposed in Atkins v. Virginia, 536 U.S. 304 (2002) (proscribing death sentences for the intellectually disabled); and Roper v. Simmons, 543 U.S. 551 (2005) (proscribing death sentences for persons who were under 18 when they committed their crimes). The Attorney General’s Office does not dispute the desirability of a state remedy when later-decided United States Supreme Court or Utah Supreme Court constitutional authority excludes a class of persons from the sentences imposed on them. But this proposed amendment raises two issues, one fundamental, and the other practical.
The fundamental issue is whether the Court has the constitutional authority to adopt such a rule at all. The amendment would create a substantive cause of action for relief from an allegedly unconstitutional sentence. But under the Utah Constitution, creating substantive causes of action is the Legislature’s domain, not the Court’s. The proposed amendment, if adopted, would therefore be unconstitutional. This proposal should be made to the Legislature as an amendment to the Post-Conviction Remedies Act (PCRA), not to the Utah Supreme Court as an amendment to the rules of criminal procedure.
The Utah Constitution grants the Utah Supreme Court power to adopt only procedural rules, not substantive ones. The Utah Constitution directs the Court to “adopt rules of procedure and evidence to be used in the courts of the state.” UTAH CONST. Art. VIII, §4 (emphasis added).
The proposed amendment creates a substantive right, not a procedural one. “Substantive law ‘creates, defines and regulates the rights and duties of the parties … which may give rise to a cause for action.’” State v. Drej, 2010 UT 35, ¶26, 233 P.3d 476 (quoting Petty v. Clark, 192 P.2d 589, 593-94 (Utah 1948)). In contrast, “[p]rocedural law … ‘prescribes the practice and procedure or the legal machinery by which the substantive law is determined or made effective.’” Id. (quoting Petty, 192 P.2d at 593).
The proposed amendment to Rule 22(e) is substantive because it creates a new cause of action for raising a constitutional challenge to a sentence. “[T]he establishment of a new legal remedy” is “a quintessential matter of substance.” State v. Rettig, 2017 UT 83, ¶53, 416 P.3d 520. Enacting new remedies is therefore “clearly within the power of the legislature.” Id. (citing Petty, 192 P.2d at 593). Adopting the proposed rule amendment would thus be an unconstitutional incursion into the Legislature’s exclusive authority to create causes of action.
Further, it is the Attorney General Office’s view that the Legislature has already exercised its constitutional authority to create under the Post-Conviction Remedies Act a cause of action for a person in the class covered by a later-decided constitutional status exemption from their sentence. The State recently briefed that argument in an appeal still pending before this Court. If that view is correct, there is no reason for the Court to try to use its rulemaking authority to create a cause of action that is already created by statute.
But if the PCRA does not provide a cause of action, then the fix would be an amendment to the PCRA, which the State would fully endorse and advocate for.
Further, if the Attorney General’s Office is correct that the rule is meant to target later-created constitutional status exemptions, the proposed rule does not cut so precisely. As written, the rule would allow relief for any constitutionally based new rule affecting a sentence. For example, if later case law were to hold as a matter of constitutional law that a sentence could no longer be based on hearsay, then nearly every inmate would be entitled to relief from their sentences. Whether an eradication of finality that sweeping is sound policy is a question better left to the Legislature.
If the Court disagrees, the new cause of action raises practical problems. The new rule-made cause of action would provide a means to challenge a sentence outside of the PCRA. But removing the cause of action from the PCRA also removes it from the finality protections built into the PCRA. So if the Court presses forward, it should impose at least some procedural protections for the citizenry and crime victims. In particular, the remedy should be subject to a time limit that is no longer than one year from discovery of the supporting evidence or the date on which the new rule is announced—the same limits that apply to other challenges to a sentence under Rule 22(e) and the PCRA (Utah Code §78B-9-107(e), (f)).
Constitutional challenges to a sentence based on a new rule would often depend on extra-record evidence, and evidence rarely ages well. And late-filed, fact-intensive sentencing challenges may be used to improperly derail the execution of some sentences.
The PCRA requires all challenges to convictions or sentences to be brought within one year of discovery or within one year of the date of the new rule that makes the sentence unconstitutional. See. Likewise, Rule 22(e) requires sentencing challenges that depend on extra-record evidence to be brought within a year of discovery. See Utah R. Crim. P. 22(e)(2). These limitations make sense because the longer the time between sentencing and the sentencing challenge, the less likely it is that all of the evidence necessary to resolve the challenge will be available, or still be in a state that is useful.
A challenge to a death sentence under Atkins v. Virginia, 536 U.S. 304 (2002), is one clear example. Atkins made it unconstitutional to impose capital punishment on those who suffer from intellectual disability. But whether someone qualifies for that exclusion requires a fact-intensive inquiry that will include, among other things, a search of the inmate’s school and mental health records, and interviews with persons who have known him over his life. The longer the inmate waits to raise the claim, the greater the likelihood that the bank of evidence necessary to an accurate assessment will be materially diminished.
And this Court has recognized that overuse of Rule 22(e) for unlimited challenges to sentences creates the potential for abuse. See State v. Prion, 2012 UT 15, ¶20, 274 P.3d 919. And again, by way of example, it has been recognized that a challenge based on Atkins may be used for just such abuse. That is, allowing an Atkins claim untethered from reasonable procedural limits would allow a person subject to an otherwise constitutional death sentence to delay raising the claim until the eve of execution, then derail the execution perhaps for years while the parties litigate whether he is intellectually disabled. Five federal circuits have recognized this potential for abuse and have subjected Atkins claims to the federal habeas time bar and procedural default rules to prevent that abuse. See, e.g., Henderson v. Thaler, 626 F.3d 773, 777 (5th Cir. 2010) (recognizing that Henderson’s Atkins claim first raised in a 2006 petition would be time-barred unless equitable tolling sufficiently extended the limitations period); Beaty v. Schriro, 554 F.3d 780, 784 (9th Cir. 2009) (denying leave to file a successive petition to raise an Atkins claim; the claim would be time barred because Beaty did not bring it within one year of the Atkins decision); Woods v. Buss, 234 Fed. Appx. 409, 411, 2007 WL 1302114 (7th Cir. 2007) (denying a certificate of appealability on Woods’ Atkins claim because he did not bring it within 1 year of the Atkins decision); In re: Hill, 437 F.3d 1080, 1083 (11th Cir. 2006) (denying leave to file a successive petition to raise an Atkins claim; the claim would be time barred even taking into consideration the applicable tolling period); Davis v. Norris, 423 F.3d 868, 878 (8th Cir. 2005) (denying a remand or leave to file a successive petition because Atkins was decided while Davis was litigating his first habeas petition in the district court so he could have raised the Atkins claim then).
Again, the Attorney General’s Office fully supports providing a state cause of action for those within a class whose sentences have become unconstitutional under a later-decided status exemption. And again, the State believes that the PCRA already provides that cause of action. But if it does not, the PCRA should be amended to create the cause of action. The Court should not attempt to create a new cause of action under its rule-making authority.
Tyler Green
Utah Solicitor General
Thomas B. Brunker
Deputy Solicitor General
Director, Criminal Appeals Division
Christopher D. Ballard
Assistant Solicitor General
Deputy Director, Criminal Appeals Division
Andrew S. Peterson
Assistant Solicitor General
Director, Post-Conviction Section
Criminal Appeals Division