Utah Code
Utah Code § 78B-9-109 (2026)
Appointment of pro bono counsel or counsel from Indigent Appellate Defense Division
✓ current as of May 2026
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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 75E-10-602, to represent the petitioner in the postconviction court or on postconviction appeal.
Counsel who represented the petitioner at trial or on the direct appeal may not be appointed to represent the petitioner under this section.
In determining whether to appoint counsel, the court may consider:
whether the petitioner is incarcerated;
the likelihood that an evidentiary hearing will be necessary;
the likelihood that an investigation will be necessary;
the complexity of the factual and legal issues; and
any other factor relevant to the particular case.
An allegation that counsel appointed under this section was ineffective cannot be the basis for relief in any subsequent postconviction petition.
Notes of Decisions
Cited in 16
cases (6 in the last 5 years), 2008–2026 · leading case: State v. Gailey, 2016 UT 35 (Utah 2016).
State v. Gailey, 2016 UT 35 (Utah 2016). “We have no briefing on the standard for appointment of pro bono counsel under Utah Code section 78B-9-109. For these reasons I would not opine on Gailey’s need for pro bono counsel even if I agreed with the balance of the court’s analysis.”
Bennett v. Bigelow, 2016 UT 54 (Utah 2016). “And because we reverse the grant of summary judgment, the court on remand should consider whether counsel should be appointed for future proceedings under Utah Code section 78B-9-109. 13 We turn now to the issue of whether Mr.”
Ross v. State, 293 P.3d 345 (Utah 2012). “Ross filed his Petition, he also filed a motion requesting that the post-conviction court appoint pro bono counsel for him under section 78B-9-109 of the Utah Code. And following the court's decision to partially dismiss his claims and grant him leave to file an amended…”
Zaragoza v. State, 2017 UT App 215 (Utah Ct. App. 2017). “” ■ Utah Code Ann. § 78B-9-109(2) (emphasis added).”
Carrell v. State, 2023 UT App 93 (Utah Ct. App. 2023). “” Utah Code § 78B-9-109(1) (2020) (emphasis added).”
Peterson v. State, 2024 UT App 159 (Utah Ct. App. 2024). “” Utah Code § 78B-9-109(1)(a). 5 The statute then states that “in determining whether to appoint counsel, the court may consider” several factors, including “whether the petitioner is incarcerated,” “the likelihood that an evidentiary hearing will be necessary,” “the likelihood…”
Gardner v. Galetka, 568 F.3d 862 (10th Cir. 2009). “” Utah Code Ann. § 78B-9-109(2). Utah Rule of Criminal Procedure 8(e) sets forth the requirements of counsel appointed in these circumstances.”
Tillman v. State, 2012 UT App 289 (Utah Ct. App. 2012). “§ 78B-9-109 (2008))). The district court did not exceed its discretion by declining to appoint counsel to represent Tillman in his fourth state petition for postconviction relief, which the district court correctly concluded contained only claims that were procedurally or time…”
State v. Nicholls, 2017 UT App 60 (Utah Ct. App. 2017). “” Id\ see also Utah Code Ann. § 78B-9-109(l) (Lexis-Nexis 2012) (stating that “the court may, upon the request of an indigent petitioner, appoint counsel on a pro bono basis to represent the petitioner in the post-conviction court”).”
State v. Crutcher, 2023 UT App 53 (Utah Ct. App. 2023). “” That request is not within our prerogative to grant because under Utah Code section 78B-9-109, which authorizes the appointment of counsel to assist with post-conviction proceedings, “the ultimate decision about whether to appoint counsel rests with the district court.”
State v. Stone, 2013 UT App 148 (Utah Ct. App. 2013). “§ 78B-9-109(1) ("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 to represent the petitioner in the post-conviction court or on post-convietion appeal.”
State v. Rippey, 2024 UT 45 (Utah 2024). “8 And the court upheld the district court’s dismissal of Rippey’s ineffective assistance of counsel claims.”
— Utah Code § 78B-9-109(1) — 8 cases
State v. Gailey, 2016 UT 35 (Utah 2016). “We have no briefing on the standard for appointment of pro bono counsel under Utah Code section 78B-9-109. For these reasons I would not opine on Gailey’s need for pro bono counsel even if I agreed with the balance of the court’s analysis.”
Bennett v. Bigelow, 2016 UT 54 (Utah 2016). “And because we reverse the grant of summary judgment, the court on remand should consider whether counsel should be appointed for future proceedings under Utah Code section 78B-9-109. 13 We turn now to the issue of whether Mr.”
Tillman v. State, 2012 UT App 289 (Utah Ct. App. 2012). “§ 78B-9-109 (2008))). The district court did not exceed its discretion by declining to appoint counsel to represent Tillman in his fourth state petition for postconviction relief, which the district court correctly concluded contained only claims that were procedurally or time…”
Ross v. State, 293 P.3d 345 (Utah 2012). “Ross filed his Petition, he also filed a motion requesting that the post-conviction court appoint pro bono counsel for him under section 78B-9-109 of the Utah Code. And following the court's decision to partially dismiss his claims and grant him leave to file an amended…”
State v. Stone, 2013 UT App 148 (Utah Ct. App. 2013). “§ 78B-9-109(1) ("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 to represent the petitioner in the post-conviction court or on post-convietion appeal.”
— Utah Code § 78B-9-109(1)(a) — 2 cases
Peterson v. State, 2024 UT App 159 (Utah Ct. App. 2024). “” Utah Code § 78B-9-109(1)(a). 5 The statute then states that “in determining whether to appoint counsel, the court may consider” several factors, including “whether the petitioner is incarcerated,” “the likelihood that an evidentiary hearing will be necessary,” “the likelihood…”
Carrell v. State, 2023 UT App 93 (Utah Ct. App. 2023). “” Utah Code § 78B-9-109(1) (2020) (emphasis added).”
— Utah Code § 78B-9-109(2) — 9 cases
Carrell v. State, 2023 UT App 93 (Utah Ct. App. 2023). “” Utah Code § 78B-9-109(1) (2020) (emphasis added).”
Zaragoza v. State, 2017 UT App 215 (Utah Ct. App. 2017). “” ■ Utah Code Ann. § 78B-9-109(2) (emphasis added).”
Gardner v. Galetka, 568 F.3d 862 (10th Cir. 2009). “” Utah Code Ann. § 78B-9-109(2). Utah Rule of Criminal Procedure 8(e) sets forth the requirements of counsel appointed in these circumstances.”
Bennett v. Bigelow, 2016 UT 54 (Utah 2016). “And because we reverse the grant of summary judgment, the court on remand should consider whether counsel should be appointed for future proceedings under Utah Code section 78B-9-109. 13 We turn now to the issue of whether Mr.”
Ross v. State, 293 P.3d 345 (Utah 2012). “Ross filed his Petition, he also filed a motion requesting that the post-conviction court appoint pro bono counsel for him under section 78B-9-109 of the Utah Code. And following the court's decision to partially dismiss his claims and grant him leave to file an amended…”
— Utah Code § 78B-9-109(2)(a) — 3 cases
Bennett v. Bigelow, 2016 UT 54 (Utah 2016). “And because we reverse the grant of summary judgment, the court on remand should consider whether counsel should be appointed for future proceedings under Utah Code section 78B-9-109. 13 We turn now to the issue of whether Mr.”
Peterson v. State, 2024 UT App 159 (Utah Ct. App. 2024). “” Utah Code § 78B-9-109(1)(a). 5 The statute then states that “in determining whether to appoint counsel, the court may consider” several factors, including “whether the petitioner is incarcerated,” “the likelihood that an evidentiary hearing will be necessary,” “the likelihood…”
Washington v. State, 2026 UT App 27 (Utah Ct. App. 2026).
— Utah Code § 78B-9-109(l) — 2 cases
Zaragoza v. State, 2017 UT App 215 (Utah Ct. App. 2017). “” ■ Utah Code Ann. § 78B-9-109(2) (emphasis added).”
State v. Nicholls, 2017 UT App 60 (Utah Ct. App. 2017). “” Id\ see also Utah Code Ann. § 78B-9-109(l) (Lexis-Nexis 2012) (stating that “the court may, upon the request of an indigent petitioner, appoint counsel on a pro bono basis to represent the petitioner in the post-conviction court”).”
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