Bevan v. State

2018 UT App 237

THE UTAH COURT OF APPEALS

JOHN DEAN BEVAN,
Appellant,
v.
STATE OF UTAH,
Appellee.

Per Curiam Opinion
No. 20180786-CA
Filed December 20, 2018

Third District Court, Tooele Department
The Honorable Matthew Bates
No. 180300743

Scott David Goodwin, Attorney for Appellant
Sean D. Reyes and Thomas Brunker, Attorneys
for Appellee

Before JUDGES MICHELE M. CHRISTIANSEN FORSTER, DAVID N.
MORTENSEN, and RYAN M. HARRIS.

PER CURIAM:

¶1 John Dean Bevan appeals the trial court’s order
dismissing his petition for postconviction relief under rule
65C(h)(1) of the Utah Rules of Civil Procedure, which allows for
summary dismissal of claims under certain circumstances. This
matter is before the court on its own motion for summary
reversal due to manifest error. See Utah R. App. P. 10(e).

¶2 The trial court summarily dismissed Bevan’s claims as
procedurally barred because it determined that the claims had
previously been adjudicated. Under rule 65C(h)(1), if the trial
court finds that a claim had been adjudicated in a prior
proceeding, the court “shall forthwith issue an order dismissing
the claim.” Utah R. Civ. P. 65C(h)(1). However, the trial court
did not provide notice to the parties that it was considering the
Bevan v. State

procedural bar as required under the Post-Conviction Remedies
Act (PCRA). See Utah Code Ann. § 78B-9-106(2)(b) (LexisNexis
2012).

¶3 The PCRA lists procedural and time bars in Utah Code
section 78B-9-106. Among other things, relief is precluded if the
ground for relief has been raised in prior proceedings, whether
at trial, on appeal, or in a prior petition for relief. Id. § 78B-9-
106(1). In 2008, the statute was amended to allow courts to
consider sua sponte whether grounds for relief may be
precluded. See Post-Conviction Remedies Act Revisions, ch. 288,
§ 106(2)(b), 2008 Utah Laws 1845, 1846. Now the statute provides
that “[a]ny court may raise a procedural or time bar on its own
motion, provided that it gives the parties notice and an
opportunity to be heard.” Utah Code Ann. § 78B-9-106(2)(b).

¶4 Utah Rule of Civil Procedure 65C was promulgated
specifically to implement procedures for seeking relief under the
PCRA. Utah R. Civ. P. 65C(a). Although the rule provides the
procedures, the PCRA “sets forth the manner and extent to
which a person may challenge the legality of a criminal
conviction and sentence after the conviction and sentence have
been affirmed” or the time to appeal has expired. Id. The rules of
civil procedure “apply to all special statutory proceedings,
except insofar as such rules are by their nature clearly
inapplicable.” Id. R. 81(a). To supercede a rule of civil procedure
in regard to a special statutory proceeding, a statute must
“clearly counter and thus override” the rule. Maxfield v. Herbert,
2012 UT 44, ¶ 17, 284 P.3d 647. Here, the statute requiring notice
when a court raises the procedural bar that a claim for relief has
been previously adjudicated is clearly counter to the summary
dismissal permitted in rule 65C for the same procedural bar.1

1. Notably, if a trial court finds that the petition is frivolous on its
face the petition may be dismissed without notice. Utah R. Civ.
P. 65C(h)(1). Frivolousness is not a procedural bar requiring
notice listed in section 78B-9-106. See Utah Code Ann.
§ 78B-9-106(1) (LexisNexis 2012).

20180786-CA 2 2018 UT App 237
Bevan v. State

Accordingly, the statute supercedes this provision of the rule,
and the trial court must give the parties notice and an
opportunity to be heard.

¶5 In this case, the record establishes that the trial court
dismissed Bevan’s petition as procedurally barred without
providing the required notice and opportunity to be heard. The
lack of compliance with the provisions of section 78B-9-106(2)(b)
constitutes manifest error requiring reversal. See Utah R. App. P.
10(e). Therefore, the trial court’s order is vacated and this matter
is remanded to the trial court for further proceedings in
compliance with section 78B-9-106(2)(b).

20180786-CA 3 2018 UT App 237