This opinion is subject to revision before final
publication in the Pacific Reporter.
2015 UT 13
IN THE
SUPREME COURT OF THE STATE OF UTAH
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STATE OF UTAH,
Appellant,
v.
JESUS EDGAR PEREZ,
Appellee.
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No. 20120716
Filed January 27, 2015
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Third District, Salt Lake
The Honorable Ryan Harris
No. 111909075
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Attorneys:
Simarjit S. Gill, D. Adam Miller, Salt Lake City, for appellant
David O. Drake, Midvale, for appellee
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JUSTICE LEE authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING,
JUSTICE DURHAM, AND JUSTICE PARRISH joined.
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JUSTICE LEE, opinion of the Court:
¶1 This is an interlocutory appeal in a pending criminal case
against Jesus Edgar Perez. In this case and in several others
related to it, we consider the applicability of legislative
amendments to the Indigent Defense Act (IDA), Utah Code
sections 77-32-101 through -704. The amended provisions override
this court’s construction of the prior version of the statute in State
v. Parduhn, 2011 UT 55, ¶¶ 23–30, 283 P.3d 488, by foreclosing an
indigent defendant in a criminal action from retaining private
STATE v. PEREZ
Opinion of the Court
counsel while requesting public defense resources from the
government. See UTAH CODE § 77-32-303(2). They do so by
generally conditioning an indigent defendant’s eligibility for such
resources on the retention of publicly funded counsel. Id.
¶2 The question in this and related cases 1 is the applicability
of these amendments to certain cases filed or pending around the
time the statute became effective (May 8, 2012). In the criminal
case against Perez, the district court granted his request for
government-funded defense resources on the ground that he was
“entitled to the law in effect” at the time he filed his motion. We
affirm. First, we identify the conduct being regulated by the
IDA—the exercise of a mature right to indigent defense resources.
And second, because the law in effect at the time that Perez
exercised that right was the unamended version of the IDA, we
affirm the district court’s decision granting Perez’s motion.
I
¶3 Perez stands charged with object rape, a first-degree felony.
The criminal information in this case was filed on December 2,
2011, and an amended information was filed on January 5, 2012.
Perez was declared indigent on December 29, 2011. Initially, he
was assigned a public defender as his counsel. But in March 2012,
he retained private counsel, and in April 2012, he filed a motion
for the provision of a private investigator and expert witnesses to
aid in his defense.
¶4 In support of his motion, Perez asserted that these
resources were necessary to his preparation of a complete and
adequate defense, that he had a constitutional right to the counsel
of his choice, and that the version of the IDA in effect at the time
of his motion was controlling. And because that version of the law
had been construed by this court to “expressly contemplate[] the
provision of defense resources to indigent defendants separate
and apart from the provision of counsel,” State v. Parduhn, 2011
UT 55, ¶ 26, 283 P.3d 488, Perez asserted a right to have defense
resources appointed to assist private counsel in his defense.
1 See State v. Earl, 2015 UT 12, __ P.3d __; State v. Folsom, 2015 UT
14 __ P.3d __; State v. Steinly, 2015 UT 15, __ P.3d __ State v. Rodri-
guez-Ramirez, 2015 UT 16, __ P.3d __.
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Opinion of the Court
¶5 Salt Lake County intervened and opposed the motion. The
County agreed that Perez was indigent, but asserted that the 2012
amendments to the IDA applied to this case and foreclosed the
request for resources unless Perez agreed to be represented by a
public defender. Thus, in Salt Lake County’s view, Salt Lake Legal
Defenders Association was the “exclusive source” from which
defendants could obtain defense counsel and resources absent a
“compelling reason” to assign “noncontracting” defense
providers, which could not be established here. And as long as
Perez was represented by private counsel, the County maintained
that the 2012 amendments prohibited the court from ordering the
provision of state-funded defense resources.
¶6 The district court granted Perez’s motion. It did so on the
ground that Perez was entitled to the version of the IDA in effect
at the time he filed his motion requesting defense resources.
Because he filed that motion before the 2012 amendments to the
IDA took effect (on May 8, 2012), the district court concluded that
the pre-amendment version of the IDA applied.
¶7 The County filed a petition for interlocutory appeal, which
we granted. We review the district court’s decision de novo,
according no deference to its legal determination of which version
of the IDA applies to Perez’s motion. See Vorher v. Henriod, 2013
UT 10, ¶ 6, 297 P.3d 614 (stating that the applicability of a statute
is a matter of statutory interpretation, and thus a question of law,
which we review de novo).
II
¶8 Salt Lake County challenges the district court’s decision
granting Perez’s motion under the unamended version of the
IDA. Its arguments are twofold. First, the County asserts that the
2012 amendments should apply retroactively under a principle
previously recognized in our caselaw—that a newly codified
“statute or amendment [that] deals only with clarification or
amplification as to how the law should have been understood
prior to its enactment” should be understood to apply
retroactively. Okland Constr. Co. v. Indus. Comm’n, 520 P.2d 208,
210–211 (Utah 1974). And second, the County contends that
“procedural statutes enacted subsequent to the initiation of a suit
which do not enlarge, eliminate, or destroy vested or contractual
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Opinion of the Court
rights apply not only to future actions, but also to accrued and
pending actions.” State v. Higgs, 656 P.2d 998, 1000 (Utah 1982).
¶9 We disagree on both points and affirm. The first point is
easily disposed of. Although our past cases have occasionally
alluded to a “clarification” exception to the general rule against
retroactivity, we have never actually applied that principle as a
freestanding exception. See Gressman v. State, 2013 UT 63, ¶ 16, 323
P.3d 998 (noting that “when our cases discuss the ‘clarifying
amendment exception,’ it is always in tandem with or as a
counterpart to our analysis of the . . . distinction between
substance and procedure”). And our recent cases expressly
repudiate the notion of an exception for clarifying amendments,
emphasizing that “[t]he sole exception spelled out explicitly by
statute requires an express provision for retroactivity.” Id.; see also
Waddoups v. Noorda, 2013 UT 64, ¶ 9, 321 P.3d 1108 (confirming
that Gressman “repudiated” this exception).
¶10 As to the County’s second point, we also disagree, but on
grounds somewhat distinct from those advanced in the district
court. In our prior decisions in this field, we have “sometimes”
suggested that “amendments to procedural statutes
are . . . retroactive because they apply presently to cases whose
causes of action arose in the past.” State v. Clark, 2011 UT 23, ¶ 13,
251 P.3d 829. But our cases ultimately stand for a “simpler
proposition”—that “we apply the law as it exists at the time of the
event regulated by the law in question.” Id.
¶11 The point we made in Clark is that the line between
substance and procedure is not ultimately an exception to the rule
against retroactivity. It is simply a tool for identifying the relevant
“event” being regulated by the law in question:
Thus, if a law regulates a breach of contract or a tort,
we apply the law as it exists when the alleged breach
or tort occurs—i.e., the law that exists at the time of
the event giving rise to a cause of action. Subsequent
changes to contract or tort law are irrelevant.
Similarly, if the law regulates a motion to intervene,
we apply the law as it exists at the time the motion is
filed. A change in the procedural rule would not
apply retroactively to prior motions to intervene. We
would not expel a party for failure to conform to a
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Opinion of the Court
newly amended intervention rule in her prior
motions.
Id.
¶12 This framework dictates an affirmance of the district
court’s decision in this case. The key question is the identification
of the relevant “event” being regulated by the law in question.
And here that event is the assertion of a mature request for
government-funded defense resources.
¶13 The event at issue is not the alleged conduct of Perez that
gave rise to the criminal charge against him. The IDA, after all,
does not define the elements of object rape or dictate a sentence
for, or other consequence of, such conduct. See See Landgraf v. USI
Film Prods., 511 U.S. 244, 269–70 (1994) (explaining that a law is
understood as retroactive if it “attaches new legal consequences to
events completed before its enactment”). Instead, the IDA
regulates Perez’s activity occurring within the course of the
criminal proceedings against him. It prescribes, specifically, the
terms and conditions of the provision of government-funded
defense resources long guaranteed as an adjunct to the right to
counsel under the Sixth Amendment of the United States
Constitution. See Britt v. North Carolina, 404 U.S. 226, 227 (1971)
(stating that the indigent defendant has a Sixth Amendment right
to “the basic tools of an adequate defense”).
¶14 The assertion of that right requires the confluence of three
elements: (a) the legal right to counsel and associated defense
resources, which is generally triggered by the filing of formal
criminal charges; 2 (b) the legal right to have those defense
resources provided by the government, which is implicated by a
determination of indigency; 3 and (c) the assertion of a request for
2See Kirby v. Illinois, 406 U.S. 682, 688 (1972) (stating the Sixth
Amendment right to counsel attaches “at or after the time that
adversary judicial proceedings have been initiated against him”).
3 See Gideon v. Wainwright, 372 U.S. 335, 342–44 (1963) (holding
that state courts are required under the Fourteenth Amendment to
provide counsel in criminal cases to represent defendants who are
unable to afford to retain their own counsel); see also UTAH CODE
§§ 77-32-202 & -301 (2012) (outlining procedure for determination
of indigency, and stating that “[e]ach county, city, and town shall
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Opinion of the Court
defense resources, typically by the filing of a formal motion
requesting such resources. 4 When these three elements come
together, a defendant’s assertion of his right to government-
funded defense resources has matured or vested. And as of that
date, the defendant is entitled to the benefit of the law in place at
that time. See Clark, 2011 UT 23, ¶ 13 (explaining that “we apply
the law as it exists at the time” of the event being regulated). Just
as “[w]e would not expel a party for failure to conform to a newly
amended intervention rule in her prior motions,” id., we cannot
subject Perez to a law amended after he became entitled to
government-funded defense resources and filed his motion
requesting their provision. On the date he asserted a matured
right to defense resources by filing his motion, he was entitled to
the benefit of the law as it then stood, and the general rule against
retroactivity protects his reliance interests as of that date.
¶15 We affirm on that basis. Perez filed his motion requesting
the provision of defense resources in April 2012. And at that time
his right to request those resources was fully vested, as the
information charging him with object rape had previously been
filed and he also had been determined to be indigent. Thus, Perez
was entitled to the benefit of the law in place in April, and
subsequent changes to the law could not be applied retroactively
to undermine his motion.
¶16 We accordingly affirm the district court’s decision applying
the unamended version of the IDA to this case. And we remand
for further proceedings not inconsistent with this opinion.
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provide for the legal defense” of a defendant who is an “indigent
in [a] criminal case[]”).
4 See UTAH CODE § 77-32-302(1)(a) (2012) (providing that a de-
fense services provider “shall be assigned to represent each indi-
gent” upon “the indigent[‘s] request[] [for] legal defense”).
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