Bevan v. State

Citation499 P.3d 191
Decision Date07 October 2021
Docket NumberNo. 20190773-CA,20190773-CA
Parties John Dean BEVAN, Appellant, v. STATE of Utah, Appellee.
CourtCourt of Appeals of Utah

Emily Adams, Freyja Johnson, and Cherise Bacalski, Attorneys for Appellant

Sean D. Reyes and Aaron Murphy, Attorneys for Appellee

Judge Michele M. Christiansen Forster authored this Opinion, in which Judges Gregory K. Orme and Diana Hagen concurred.

Amended Opinion1 .

CHRISTIANSEN FORSTER, Judge:

¶1 After pleading guilty and being sentenced to prison for murder, John Dean Bevan filed a petition for post-conviction relief, but the petition was dismissed as untimely. Four years later, pursuant to a stipulation between Bevan and the county prosecutor, the district court reinstated Bevan's right to a direct appeal. On direct appeal, Bevan's claims were dismissed for lack of jurisdiction. He subsequently filed a new petition for post-conviction relief, which the district court dismissed after concluding the petition was both procedurally barred and time-barred. Bevan now appeals that decision, and we affirm.

BACKGROUND

¶2 In 2007, Bevan pleaded "guilty and mentally ill" to murdering his girlfriend. The district court sentenced Bevan to five years to life in the Utah State Prison.

¶3 Bevan did not appeal the conviction but instead, nearly two years later, filed a pro se petition for post-conviction relief (2010 Petition). After the appointment of post-conviction counsel, Bevan amended the 2010 Petition and requested the court vacate his conviction and grant him a new trial on three grounds: (1) defense counsel (Counsel) rendered ineffective assistance in a variety of ways, most notably by failing to investigate as a possible defense the side effects of Bevan's prescription sleeping pills (Lunesta

); (2) police violated Bevan's Miranda rights by questioning him while he was sedated and under the influence of Lunesta ; and (3) newly discovered evidence indicated that medications and "a severe psychotic episode" interfered with Bevan's ability to assist with his defense. The district court dismissed the 2010 Petition as time-barred, see Utah Code Ann. § 78B-9-107(1)(2) (LexisNexis 2018) (requiring petitions for post-conviction relief to be "filed within one year after the cause of action has accrued" and listing accrual-triggering events), and this court summarily affirmed due to inadequate briefing.

¶4 Bevan continued to pursue post-conviction relief and in 2013 filed a federal habeas petition.2 See 28 U.S.C. § 2254. This petition was dismissed with prejudice as "time-barred under the applicable statutory one-year limitation period." (Citing 28 U.S.C. § 2244(d)(1).) The United States Court of Appeals for the Tenth Circuit denied Bevan's request to appeal the dismissal of his federal habeas petition.

¶5 Returning again to state court to seek relief, Bevan sought to reinstate his direct criminal appeal right under Manning v. State , 2005 UT 61, 122 P.3d 628, superseded by rule as stated in State v. Brown , 2021 UT 11, 489 P.3d 152.3 Pursuant to a stipulation between Bevan and the county attorney's office, the district court issued an order reinstating Bevan's right to direct appeal in July 2017. But on direct appeal, Bevan's claims were again summarily dismissed, this time for jurisdictional reasons. Because Bevan's requested relief was to set aside his plea—relying on the allegation that Counsel provided ineffective assistance for failing to research the side effects of Lunesta—this court dismissed the appeal without prejudice on the basis that plea challenges must be raised "in an appropriate postconviction proceeding" rather than on direct appeal.

¶6 Bevan subsequently filed a second petition for post-conviction relief (2018 Petition), this time asserting four grounds for relief: (1) Counsel rendered ineffective assistance by failing to investigate as a possible defense the side effects of Lunesta, (2) police violated Bevan's Miranda rights by questioning him while sedated and under the influence of Lunesta, (3) Counsel further rendered ineffective assistance by failing to request a hearing to evaluate Bevan's mental competency after he entered the plea, and (4) Counsel had a conflict of interest that interfered with his representation of Bevan. The district court dismissed the petition as procedurally barred, but on appeal we vacated the dismissal because the parties were not given the statutorily "required notice and an opportunity to be heard" on the procedural bar issue. See Bevan v. State , 2018 UT App 237, ¶ 5, 434 P.3d 516 (per curiam). On remand, after briefing and oral argument, the district court again dismissed the 2018 Petition as both procedurally barred and time-barred.

ISSUES AND STANDARD OF REVIEW

¶7 Bevan now appeals, contending the district court erred in dismissing the 2018 Petition on both procedural and timeliness grounds. "We review an appeal from an order dismissing or denying a petition for post-conviction relief for correctness without deference to the lower court's conclusions of law." Archuleta v. State , 2020 UT 62, ¶ 20, 472 P.3d 950 (quotation simplified).

ANALYSIS

¶8 In Utah, "[a]ny challenge to a guilty plea" made after sentencing "shall be pursued" through the Postconviction Remedies Act (PCRA) as governed by rule 65C of the Utah Rules of Civil Procedure. See Utah Code Ann. § 77-13-6(2)(c) (LexisNexis 2017). See generally id. §§ 78B-9-101 to -405 (LexisNexis 2018) (Post-Conviction Remedies Act); Utah R. Civ. P. 65C (rule governing PCRA proceedings). The PCRA provides "the sole remedy for any person who challenges a conviction or sentence for a criminal offense." Utah Code Ann. § 78B-9-102(1)(a). "[A] person who has been convicted and sentenced for a criminal offense" may move "to vacate or modify the conviction or sentence" under the grounds provided within the PCRA by proving entitlement to relief. Id. §§ 78B-9-104(1), -105. But the PCRA lists several exclusions barring relief, two of which are relevant here. See id. § 78B-9-106(1). First, an individual is procedurally barred from post-conviction relief based on "any ground that ... was raised or addressed in any previous request for post-conviction relief or could have been, but was not, raised in a previous request for post-conviction relief." Id. § 78B-9-106(1)(d) [hereinafter Section 106(1)(d)]. Second, an individual is time-barred from relief if the post-conviction petition is filed more than "one year after the cause of action has accrued." Id. §§ 78B-9-106(1)(e), -107(1).

¶9 In this case, the district court concluded Bevan's 2018 Petition was barred on both procedural and timeliness grounds. Because Bevan "knew, or could have known, about all of his claims by the time he filed his 2010 [Petition,] ... all of [his] claims either were, or could have been, raised in the 2010 [Petition]" and, according to the district court, were "therefore barred by Section 106(1)(d)." Additionally, the court held that the 2018 Petition was untimely because the PCRA's one-year limitations period was triggered in May 2008 and consequently expired in 2009. On appeal, Bevan contends the district court erred on both accounts. We agree that the 2018 Petition was procedurally barred and affirm on those grounds without reaching the question of timeliness.

¶10 Bevan contends that Section 106(1)(d) is inapplicable to his 2018 Petition because the dismissal of his 2010 Petition on timeliness grounds does not qualify as "rais[ing] or address[ing]" claims "in any previous request for post-conviction relief." See Utah Code Ann. § 78B-9-106(1)(d) (LexisNexis 2018). The State contends that "[t]he expansive language" of Section 106(1)(d) "evidences clear legislative intent to broadly apply the successive petition bar beyond ... requir[ing] an adjudication on the merits." We first interpret the statutory language in question and conclude that the State's interpretation is correct. We then evaluate whether the 2018 Petition was properly denied under a correct interpretation of Section 106(1)(d) and conclude that the district court did not err.

¶11 For all questions of statutory interpretation, we begin by looking at the plain language. Bryner v. Cardon Outreach, LLC , 2018 UT 52, ¶ 9, 428 P.3d 1096. In doing so, "we assume that the legislature used each term advisedly according to its ordinary and usually accepted meaning," Muddy Boys, Inc. v. Department of Com. , 2019 UT App 33, ¶ 12, 440 P.3d 741 (quotation simplified), and interpret the language in such a way "that no part or provision will be inoperative or superfluous, void or insignificant," State v. Jeffries , 2009 UT 57, ¶ 9, 217 P.3d 265 (quotation simplified). Should we conclude the language is "unambiguous and provides a workable result," our analysis is complete. Torrie v. Weber County , 2013 UT 48, ¶ 11, 309 P.3d 216 (quotation simplified).

¶12 First, by using the disjunctive "or" in Section 106(1)(d), the legislature "clearly mandate[d]" that there exist three alternative ways an issue may be precluded from post-conviction review. See Calhoun v. State Farm Mutual Auto. Ins. Co. , 2004 UT 56, ¶ 20, 96 P.3d 916 (explaining that the legislature's use of "or" mandates alternative options); Mike's Smoke, Cigar & Gifts v. St. George City , 2017 UT App 20, ¶ 24, 391 P.3d 1079. Accordingly, the Section 106(1)(d) procedural bar applies if (1) the petitioner previously "raised" an issue for post-conviction review, (2) the petitioner "could have ... raised" an issue "in a previous request for post-conviction relief," or (3) the issue was "addressed in any previous request for post-conviction relief." Utah Code Ann. § 78B-9-106(1)(d). To successfully invoke Section 106(1)(d), the State need plead that only one of the above scenarios exists. See id. ; see also Berger v. Minnesota Mutual Life Ins. Co. of St. Paul, Minn. , 723 P.2d 388, 390 (Utah 1986) (per curiam) (explaining that a party need only prove one statutory alternative is applicable when expressed in the disjunctive).

¶13 By its...

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