2018 UT App 237



### T HE 

### U TAH 

### C OURT O F 

### A PPEALS

J OHN D EAN B EVAN , Appell ant , v. S TATE OF U TAH , Appell ee

.
Per Curiam Opinion

N o. 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 , Attorney s for Appellee

Before J UDGE S M ICHELE M. C HRISTIANSEN F ORSTER , D AVID N. M ORTENSEN , and R YAN M. H ARRIS

.

PER CURIAM:

¶1 John D ean 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 circumstan ces. 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 cla ims 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 notic e to the parties that it was considering theBevan v. State

20180786

- CA 2 2018 UT App 237 procedural bar as required under the Post

- Conviction Re medies Act (PCRA). See Utah Code Ann. § 78B

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- 106(2)(b) (LexisNexis 2012).

¶3 The PCRA lists procedur al and time bars in Utah Code sectio n 78B

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- 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

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- 106(1). In 2008, the statute was amended to allow courts to

cons ider 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, provi ded that it gives the parties notice and an opportunity to be heard.” Utah Code Ann. § 78B

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- 106(2)(b).

¶4 Utah Rule of Civil Procedure 65C was promulgated specifically to implement procedures for seeking relief under the PCRA. Utah R. C iv. 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 app eal 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 pro ceeding, 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

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- 106. See Utah Code Ann. § 78 B

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- 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

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- 106(2)(b)

c onstitutes 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

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- 106(2)(b).