Bevan v. State

2018 UT App 237
THE UTAH COURT OF APPEALS
JOHN DEAN BEVAN ,
Appellant,
v.
S TATE OF U TAH ,
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 M ICHELE M. C HRISTIANSEN F ORSTER , DAVID N.
M ORTENSEN , and R YAN 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
20180786-CA 	2 	2018 UT App 237
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).

Bevan v. State
20180786-CA 	3 	2018 UT App 237
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).