This opinion is subject to revision before final
p ublication in the Pacific Reporter

20 20 UT 8

IN THE 

## S UPREME 

## C OURT OF THE 

## S TATE OF 

## U TAH

R ONALD H AND , Appellant

,

v.
S TATE OF U TAH , 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

A SSOCIATE C HIEF J USTICE L EE au thored the opinion of the Court
, in which C HIEF J USTICE D URRANT , J USTICE H IMONAS , J USTICE P EARCE ,

and J USTICE P ETERSEN joined.

A SSOCIATE C HIEF J USTICE L EE , 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 substantiallyH AND v. S TATE Opinion of the Court

2 similar petition in the Second Di strict Court of Utah

— again using the federal form, but crossing out “ United States” before “District Court” and replac ing 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¶2 After the state court asked Hand to arrange for the payment of the filing fee, Hand asked that his state petition be withdrawn

. T he Second District Court granted that request, dismiss ing 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 Di strict 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

- C onviction Remedies Act (PCRA) , the State contended that Hand’s petition was procedurally barred becaus e 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.” U TAH C ODE § 78B

- 9

- 106(1)(d). The district court granted the State’s motion, concluding that Hand’s petition w a s 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. , 8 72 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 b ecause 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 procedur al bar is triggered by “ any previous request for post

- conviction relief,” U TAH C ODE § 78B

- 9

- 106(1)(d) (emphasis added)
, the State contends that a rule 41(a)(1)(A) dismissal is preclusive in the PCRA setting.Cite as: 20 20 UT 8 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 sustain s the procedural bar under Utah Code section 78B

- 9

- 106(1)(d) . And our case s 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.” U TAH R. C IV

. P. 41(a)(1)(A). But our rule’s cross

- reference to the c od e is not a n endorsement of statutory limit s on the procedural eff ect of a voluntary dismissal . I t is a n acknowledgment of the possibility of statutory limits on a plainti ff’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: “ S ubject 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” sta nds as a qualification or limit on a plaintiff’s right to “dismiss an action without a court order.” The reference to c ivil rule 23( e ) confirms that conclusion . Rule 23 deals with class actions

— representative suits, whose dismissal affect s not just the pla intiff but represented members of a class

. For that reason a named plaintiff’s right to voluntary dismissal is circumscribed by rule 23. U TAH R. C IV

. P. 23(e) (“A class action shall not be dismissed or compromised without the approval of the court, and not ice 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 th e right to voluntary dismissal without a court order

. ¶8 By contrast, t he PCRA does not prescribe limits on a plaintiff’s right to seek voluntary dismissal. It sets the terms andH AND v. S TATE Opinion of the Court

4 conditions of a procedural bar

— the precl usive effect of a “ previous request for post

- conviction relief.” U TAH C ODE § 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 U tah Code s ection 78B

- 9

- 106(1)(d) (emphasis added) ties the procedural bar to “ any previous request for post

- conviction relief.” And t he 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 th e statutory bar extend s to an action initiated by a plaintiff but voluntarily d ismissed 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 dis missal 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 v oluntarily 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 claim s 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, bar ring not only claims that were “raised or addressed” in a previou s request , but also those that “could have been, but w[ere] not, raised in a previous req uest for post

- conviction relief. ” U TAH C ODE § 78B

- 9

- 106 (1)(d) (emphasis added)

.Cite as: 20 20 UT 8 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 th e constitutional question and identifying threshold considerations that a party would need to address to rais e it ).