Section 109 – Appointment of pro bono counsel or counsel from Indigent Appellate Defense Division.

• (1)
  • (a) If any portion of the petition is not summarily dismissed, the court may, upon the request of an indigent petitioner, appoint counsel on a pro bono basis or from the Indigent Appellate Defense Division, created in Section 78B-22-902, to represent the petitioner in the postconviction court or on postconviction appeal.
  • (b) Counsel who represented the petitioner at trial or on the direct appeal may not be appointed to represent the petitioner under this section.

• (2) In determining whether to appoint counsel, the court may consider:
  • (a) whether the petitioner is incarcerated;
  • (b) the likelihood that an evidentiary hearing will be necessary;
  • (c) the likelihood that an investigation will be necessary;
  • (d) the complexity of the factual and legal issues; and
  • (e) any other factor relevant to the particular case.

• (3) An allegation that counsel appointed under this section was ineffective cannot be the basis for relief in any subsequent postconviction petition.

Amended by Chapter 295, 2022 General Session