Schwenke v. State

2014 UT App 103
_________________________________________________________
THE UTAH COURT OF APPEALS
ALAPATI PAUL SCHWENKE,
Petitioner and Appellant,
v.
STATE OF UTAH,
Respondent and Appellee.
Per Curiam Decision
No. 20140192-CA
Filed May 8, 2014
Third District Court, Salt Lake Department
The Honorable Denise P. Lindberg
No. 130906000
Alapati Paul Schwenke, Appellant Pro Se
Before JUDGES GREGORY K. ORME, STEPHEN L. ROTH, and
MICHELE M. CHRISTIANSEN.
PER CURIAM:
¶1 Alapati Paul Schwenke appeals the dismissal of his petition
for post-conviction relief. This matter is before the court on a sua
sponte motion for summary disposition. We reverse and remand.
¶2 Schwenke was convicted of securities fraud in 2005. In the
intervening years Schwenke filed a direct appeal of his conviction
and various petitions for post-conviction relief. On September 9,
2013, Schwenke filed his most recent petition for post-conviction
relief. The district court dismissed the petition because it deter-
mined that all issues raised in the petition had previously been
“presented and rejected by the Court and the Appellate Courts on
direct review, and on post-conviction relief.” See Utah Code Ann.
§ 78B-9-106(1)(b), (d) (LexisNexis 2012) (stating that a person is not

Schwenke v. State
20140192-CA 2 2014 UT App 103
eligible for relief if the issue raised in the petition was or could have
been raised on direct appeal or in a previous petition for post-
conviction relief). However, prior to dismissing the case, the district
court failed to provide notice to Schwenke that it was considering
dismissing the case based upon the procedural bar.
¶3 Utah Code section 78B-9-106(2)(b) states 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.” Id.
§ 78B-9-106(2)(b). Because the record indicates that the district court
dismissed the case based on a procedural bar, i.e., the issue had
been adjudicated on direct appeal or in previous post-conviction
petitions, Schwenke was entitled to notice and an opportunity to be
heard as to whether his petition should have been dismissed on this
ground.
¶4 Accordingly, the district court’s order of dismissal is
reversed. We remand this matter so the district court can afford
Schwenke his notice and opportunity to be heard in accordance
with Utah Code section 78B-9-106(2)(b).