This opinion is subject to revision before final
publication in the Pacific Reporter.
2015 UT 14
IN THE
SUPREME COURT OF THE STATE OF UTAH
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STATE OF UTAH,
Appellee,
v.
DANIEL J. FOLSOM,
Appellant.
———————
No. 20120532
Filed January 27, 2015
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Third District, Salt Laket
The Honorable William B. Barrett
No. 111909566
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Attorneys:
Bernadette M. Gomez, D. Adam Miller, Salt Lake City,
for appellees
Craig L. Pankratz, David M. Corbett, Salt Lake City, for appellant.
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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.
———————
JUSTICE LEE, opinion of the Court:
¶1 This is an interlocutory appeal in a pending criminal case
against Daniel J. Folsom. 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
STATE v. FOLSOM
Opinion of the Court
defendant in a criminal action from retaining private 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 cases1 is the applicability of
these amendments to certain cases filed or pending at the time the
statute became effective (May 8, 2012). In the criminal case against
Folsom, the district court denied his request for government-
funded defense resources on the ground that the 2012
amendments were ―procedural‖ and accordingly deemed to
apply retroactively to this case.
¶3 We reverse. 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
Folsom exercised that right was the pre-amended version of the
IDA, we reverse the district court‘s decision applying the 2012
amendment.
I
¶4 Folsom stands charged with murder. The criminal
information in this case was filed on December 19, 2011. On the
following day, Folsom was declared indigent and was appointed
counsel through the Salt Lake Legal Defender Association
(SLLDA). On the day after that, however, Folsom elected to retain
private counsel instead.
¶5 Folsom proceeded with trial preparation with private
counsel for several months. Then, on May 3, 2012, he filed a
motion asking the district court to order the provision of
government-funded defense resources. Folsom asked, specifically,
that the state provide funding for: (1) defense investigative
services, (2) a forensic toxicologist, (3) DNA testing, (4) a forensic
pathologist, (5) transcripts, (6) a wound-identification expert, and
(7) a neurosurgeon. In Folsom‘s view, all of these resources were
essential in light of the complexity of the case and seriousness of
the charges. And because the IDA amendments were not to go
1 See State v. Earl, 2015 UT 12, __ P.3d __; State v. Perez, 2015 UT
13, __ 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
into effect until five days after the motion was filed (on May 8),
Folsom insisted that they did not apply.
¶6 The district court denied Folsom‘s motion. It did so on the
basis of its conclusion that the IDA regulated a matter of
―procedure‖ and thus that the statute applied retroactively to
cases pending on its effective date. Folsom then asked us to
review the district court‘s decision on an interlocutory appeal. We
agreed to do so, granting Folsom‘s petition as well as several
others raising similar questions. We review the district court‘s
decision de novo, according no deference to its legal
determination of which version of the IDA applies to Folsom‘s
motion. See Vorher v. Henriod, 2013 UT 10, ¶ 6, 297 P.3d 614 (stat-
ing that the applicability of a statute is a matter of statutory
interpretation, and thus a questions of law, which we review de
novo).
II
¶7 The question before us concerns which version of the IDA
applies to Folsom‘s motion for government-funded defense
resources. Before the 2012 amendments, the IDA was interpreted
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. Under the 2012 amendments, however, the government ―may
not provide defense resources for a defendant who has retained
private counsel,‖ except in limited circumstances not implicated
on this appeal. UTAH CODE § 77-32-303(2).
¶8 Folsom‘s appeal challenges the district court‘s retroactive
application of the 2012 amendment to the resolution of his
motion. He characterizes the IDA‘s regulation of defense
resources as a ―substantive‖ matter, in that it dictates a
defendant‘s eligibility ―to receive State-paid defense resources
while being represented by a private attorney.‖ And because he
conceives of the right to such resources as both significant and
―vested,‖ Folsom finds error in the district court‘s decision
deeming the IDA‘s amendments as matters of procedure subject
to retroactive application. See State v. Johnson, 2012 UT 68, ¶¶ 12–
13, 290 P.3d 21 (characterizing as ―substantive‖ statutes that ―en-
large, eliminate, . . . destroy, . . . [or] govern[] the scope of a
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Opinion of the Court
[party‘s] vested or contractual rights‖ (internal quotation marks
omitted)).
¶9 The State, for its part, defends the district court‘s decision.
It asserts that the terms and conditions of the defense resources
provided by the government to an indigent defendant is
―procedural‖ in the sense of constituting an element of the
―practice and procedure or the legal machinery by which the
substantive law is . . . made effective.‖ See Harvey v. Cedar Hills
City, 2010 UT 12, ¶ 14, 227 P.3d 256 (internal quotation marks
omitted). And it argues, alternatively, that the statute should
apply retroactively as a provision that merely ―clarifies‖ an earlier
legislative pronouncement. See Johnson, 2012 UT 68, ¶ 16.
¶10 We reverse, but on grounds somewhat distinct from those
advanced by Folsom. 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
newly amended intervention rule in her prior
motions.
Id.
¶12 This framework dictates a reversal of the district court‘s
decision in this case. The key question is the identification of the
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Opinion of the Court
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 Folsom that
gave rise to the murder charge against him. The IDA, after all,
does not define the elements of murder 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 Folsom‘s activity in 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
defense resources, typically by the filing of a formal motion
2 See 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 determining in-
digency, and stating that ―[e]ach county, city, and town shall pro-
vide for the legal defense‖ of a defendant who is an ―indigent in
[a] criminal case[]‖).
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Opinion of the Court
requesting such resources.4 When these three elements come
together, the 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 Folsom to 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, Folsom 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 reverse on that basis. Folsom filed his motion
requesting the provision of defense resources on May 3, 2012. And
on that date, his right to request those resources was fully vested,
as the information charging him with murder had previously
been filed and he also had been determined to be indigent.
Folsom was entitled to the benefit of the law in place on May 3,
and subsequent changes to the law could not be applied
retroactively to undermine his motion.
¶16 We accordingly reverse the district court‘s decision
applying the amended version of the IDA to Folsom‘s request for
defense resources. And we remand for further proceedings not
inconsistent with this opinion.
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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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