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

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).
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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).