This opinion is subject to revision before final

publication in the Pacific Reporter

2020 UT 8

IN THE

SUPREME COURT OF THE STATE OF UTAH

RONALD HAND,

Appellant,

v.

STATE OF UTAH,

Appellee.

No. 20180926

Heard December 9, 2019

Filed February 19, 2020

On Direct Appeal 

Second District, Farmington

The Honorable John R. Morris

No. 170701002

Attorneys:

Scott K. Wilson, Benjamin C. McMurray, Nathan K. Phelps, 

Salt Lake City, for appellant

Sean D. Reyes, Att’y Gen., Aaron G. Murphy, Asst. Solic. Gen., 

Salt Lake City, for appellee

ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in 

which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, JUSTICE PEARCE,

and JUSTICE PETERSEN joined.

ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:

¶1 Ronald Hand was convicted of aggravated sexual abuse of a 

minor in August 2013. In 2017 he sought to challenge that conviction 

in petitions submitted to both federal and state courts. As a pro se

inmate, Hand used a preprinted form approved by the federal courts 

for petitions filed under 28 U.S.C. § 2254. He filed a federal petition 

in the United States District Court for the District of Utah in May 

2017. Then in June of the same year he submitted a substantially 
HAND v. STATE

Opinion of the Court

2

similar petition in the Second District Court of Utah—again using 

the federal form, but crossing out “United States” before “District 

Court” and replacing it with a scrawled-in “Second.”

¶2 After the state court asked Hand to arrange for the payment 

of the filing fee, Hand asked that his state petition be withdrawn. 

The Second District Court granted that request, dismissing the 

petition under rule 41(a)(1)(A) of the Utah Rules of Civil Procedure.

Thereafter, the federal district court reviewed Hand’s still-pending 

federal petition and appointed counsel to represent him. With the 

aid of counsel, Hand filed an amended petition in federal court and a 

new petition in state court—again in the Second District Court.

¶3 The State challenged the viability of this new state petition 

in a motion for summary judgment. Citing section 78B-9-106(1)(d) of 

the Post-Conviction Remedies Act (PCRA), the State contended that 

Hand’s petition was procedurally barred because it asserted claims 

that were “raised or addressed in any previous request for 

post-conviction relief” or that “could have been, but [were] not, 

raised in a previous request for post-conviction relief.” UTAH CODE 

§ 78B-9-106(1)(d). The district court granted the State’s motion,

concluding that Hand’s petition was barred because his initial June 

2017 petition—the petition that had been withdrawn under civil rule 

41(a)(1)(A)—was a “previous request for post-conviction relief.”

Hand then filed this appeal.

¶4 We reverse on the ground that the initial petition submitted 

to the Second District Court does not count as a “previous request 

for post-conviction relief.” That conclusion follows from the settled 

view of the effect of a voluntary dismissal under civil rule 

41(a)(1)(A). We have held that such a dismissal “render[s] the 

proceedings a nullity and leave[s] the parties as if the action had 

never been brought.” Barton v. Utah Transit Auth., 872 P.2d 1036, 1039 

(Utah 1994) (alterations in original) (citation omitted). And if the 

proceedings leading up to the dismissal were a legal nullity, then 

there was no “previous request for post-conviction relief” to sustain 

the procedural bar under Utah Code section 78B-9-106(1)(d).

¶5 The State objects that Hand’s reliance on civil rule 

41(a)(1)(A) is “unpreserved.” And because a claimant’s right to 

voluntary dismissal under rule 41(a)(1)(A) is “[s]ubject to . . . any 

applicable statute,” and the PCRA states that the procedural bar is 

triggered by “any previous request for post-conviction relief,” UTAH 

CODE § 78B-9-106(1)(d) (emphasis added), the State contends that a 

rule 41(a)(1)(A) dismissal is preclusive in the PCRA setting.
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Opinion of the Court

3

¶6 We disagree on both counts. As to preservation, our case 

law draws a distinction between new “issues” (like distinct claims or 

legal theories) and new “arguments” in support of preserved issues

(such as the citation of new legal authority). See State v. Johnson, 2017 

UT 76, ¶ 14 n.2, 416 P.3d 443. Here, Hand is raising the latter. He

clearly preserved the issue in question—whether his earlier petition 

counted as the kind of “previous request for post-conviction relief” 

that sustains the procedural bar under Utah Code section 

78B-9-106(1)(d). And our cases endorse his right to cite additional 

authority (here, the terms of rule 41(a)(1)(A) and the case law 

describing the effect of a dismissal under this rule) in support of his 

position on this issue. See Johnson, 2017 UT 76, ¶ 14 n.2; Patterson v. 

Patterson, 2011 UT 68, ¶ 18, 266 P.3d 828 (“[W]e routinely consider 

new authority relevant to issues that have properly been preserved,

and we have never prevented a party from raising controlling 

authority that directly bears upon a properly preserved issue.”

(footnote omitted)).

¶7 We also reject the State’s view of the interaction between 

civil rule 41(a)(1)(A) and Utah Code section 78B-9-106(1)(d). The rule 

is concededly “[s]ubject to . . . any applicable statute.” UTAH R. CIV.

P. 41(a)(1)(A). But our rule’s cross-reference to the code is not an 

endorsement of statutory limits on the procedural effect of a 

voluntary dismissal. It is an acknowledgment of the possibility of 

statutory limits on a plaintiff’s right to voluntary dismissal without a 

court order. This is clear from the text and structure of the rule. The 

operative sentence is the following: “Subject to Rule 23(e) and any 

applicable statute, the plaintiff may dismiss an action without a 

court order . . . .” Id. In this structure, “[s]ubject to” stands as a 

qualification or limit on a plaintiff’s right to “dismiss an action 

without a court order.” The reference to civil rule 23(e) confirms that 

conclusion. Rule 23 deals with class actions—representative suits, 

whose dismissal affects not just the plaintiff but represented 

members of a class. For that reason a named plaintiff’s right to

voluntary dismissal is circumscribed by rule 23. UTAH R. CIV. P. 23(e)

(“A class action shall not be dismissed or compromised without the 

approval of the court, and notice of the proposed dismissal or 

compromise shall be given to all members of the class in such 

manner as the court directs.”). Thus, rule 41’s reference to “any 

applicable statute,” in context, is just a recognition of the possibility 

that the legislature may place limitations on the right to voluntary 

dismissal without a court order.

¶8 By contrast, the PCRA does not prescribe limits on a 

plaintiff’s right to seek voluntary dismissal. It sets the terms and 
HAND v. STATE

Opinion of the Court

4

conditions of a procedural bar—the preclusive effect of a “previous 

request for post-conviction relief.” UTAH CODE § 78B-9-106(1)(d).

This provision, moreover, does not speak to the procedural effect of 

a voluntary dismissal under civil rule 41(a)(1)(A). The statute is 

silent on that question.

¶9 Utah Code section 78B-9-106(1)(d) (emphasis added) ties the 

procedural bar to “any previous request for post-conviction relief.”

And the term “any” is admittedly broad and encompassing. See

Graves v. N. E. Servs., Inc., 2015 UT 28, ¶ 52, 345 P.3d 619 (“The term 

any is broadening and inclusive.” (emphasis in original)). But the 

statute doesn’t speak to what counts as “a” (or “any”) “request for 

post-conviction relief,” much less whether the statutory bar extends

to an action initiated by a plaintiff but voluntarily dismissed under 

rule 41(a)(1)(A). Only rule 41(a)(1)(A), as interpreted in our case law,

answers that last question. The rule accordingly controls, as the 

statute is silent on the effect of a voluntary dismissal and properly 

interpreted as having been enacted against the backdrop of rule 41.

¶10 We reverse the dismissal of Hand’s PCRA claim on this 

basis. We hold that there is no “previous request for post-conviction 

relief” where the action was initiated but voluntarily dismissed 

under rule 41(a)(1)(A).

1 We base this holding on well-settled case 

_____________________________________________________________

1 In so concluding, we decline to rule on a broader premise 

advanced by Hand—that a prior filing counts as a “previous request 

for post-conviction relief” only if it contained claims that were 

“addressed on their merits.” We do note, however, that an 

individual claim need not itself be adjudicated or “addressed on [its] 

merits” to be barred under the PCRA. The statute clearly sweeps 

more broadly than that, barring not only claims that were “raised or

addressed” in a previous request, but also those that “could have 

been, but w[ere] not, raised in a previous request for post-conviction 

relief.” UTAH CODE § 78B-9-106(1)(d) (emphasis added). 
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Opinion of the Court

5

law, which is not altered by the terms of Utah Code section 

78B-9-106(1)(d).2

_____________________________________________________________

2 In so holding, we decline to consider a range of other questions 

raised by Hand—such as the effect of a dismissal “without 

prejudice” outside the context of rule 41(a)(1)(A) and whether and to 

what extent a court may retain statutory or constitutional power to 

consider the merits of a post-conviction petition purporting to seek 

review outside the terms and conditions of the PCRA. See Winward v. 

State, 2012 UT 85, ¶¶ 17–18, 293 P.3d 259 (declining to reach the 

constitutional question and identifying threshold considerations that 

a party would need to address to raise it).