Rule 65C. Post-convictionrelief.
(a) Scope.This rule governs proceedings in all petitions for post-conviction relief filedunder the Post-Conviction Remedies Act, Utah Code Title78B, Chapter 9. The Act sets forth the mannerand extent to which a person may challenge the legality of a criminalconviction and sentence after the conviction and sentence have been affirmed ina direct appeal under Article I,Section 12 of the Utah Constitution, or the time to file such an appeal hasexpired.
(b) Procedural defenses andmerits review. Except as provided in paragraph(h), if the court comments on the merits of a post-conviction claim, it shallfirst clearly and expressly determine whether that claim is independentlyprecluded under Section 78B-9-106.
(c) Commencement and venue.The proceeding shall be commenced by filing a petition with the clerk of thedistrict court in the county in which the judgment of conviction was entered.The petition should be filed on forms provided by the court. The court mayorder a change of venue on its own motion if the petition is filed in the wrongcounty. The court may order a change of venue on motion of a party for theconvenience of the parties or witnesses.
(d) Contents of the petition.The petition shall set forth all claims that the petitioner has in relation tothe legality of the conviction or sentence. The petition shall state:
(d)(1)whether the petitioner is incarcerated and, if so, theplace of incarceration;
(d)(2)the name of the court in which the petitioner was convicted and sentenced andthe dates of proceedings in which the conviction was entered, together with thecourt's case number for those proceedings, if known by the petitioner;
(d)(3)in plain and concise terms, all of the facts that formthe basis of the petitioner's claim to relief;
(d)(4)whether the judgment of conviction, the sentence, orthe commitment for violation of probation has been reviewed on appeal, and, ifso, the number and title of the appellate proceeding, the issues raised onappeal, and the results of the appeal;
(d)(5)whether the legality of the conviction or sentence hasbeen adjudicated in any prior post-conviction or other civil proceeding, and,if so, the case number and title of those proceedings, the issues raised in thepetition, and the results of the prior proceeding; and
(d)(6)if the petitioner claims entitlement to relief due tonewly discovered evidence, the reasons why the evidence could not have beendiscovered in time for the claim to be addressed in the trial, the appeal, orany previous post-conviction petition.
(e) Attachments to the petition.If available to the petitioner, the petitioner shall attach to the petition:
(e)(1)affidavits, copies of records and other evidence insupport of the allegations;
(e)(2)a copy of or a citation to any opinion issued by anappellate court regarding the direct appeal of the petitioner's case;
(e)(3)a copy of the pleadings filed by the petitioner in any prior post-conviction orother civil proceeding that adjudicated the legality of the conviction orsentence; and
(e)(4)a copy of all relevant orders and memoranda of thecourt.
(f) Memorandum of authorities.The petitioner shall not set forth argument or citations or discuss authoritiesin the petition, but these may be set out in a separate memorandum, two copiesof which shall be filed with the petition.
(g) Assignment.On the filing of the petition, the clerk shall promptly assign and deliver itto the judge who sentenced the petitioner. If the judge who sentenced thepetitioner is not available, the clerk shall assign the case in the normalcourse.
(h)(1) Summary dismissal ofclaims. The assigned judge shall reviewthe petition, and, if it is apparent to the court that any claim has beenadjudicated in a prior proceeding, or if any claim in the petition appearsfrivolous on its face, the court shall forthwith issue an order dismissing theclaim, stating either that the claim has been adjudicated or that the claim isfrivolous on its face. The order shall be sent by mail to the petitioner.Proceedings on the claim shall terminate with the entry of the order ofdismissal. The order of dismissal need not recite findings of fact orconclusions of law.
(h)(2)A claim is frivolous on its face when, based solely on the allegationscontained in the pleadings and attachments, it appears that:
(h)(2)(A)the facts alleged do not support a claim for relief asa matter of law;
(h)(2)(B)the claim has no arguable basis in fact; or
(h)(2)(C)the claim challenges the sentence only and thesentence has expired prior to the filing of the petition.
(h)(3)If a claim is not frivolous on its face but is deficient due to a pleadingerror or failure to comply with the requirements of this rule, the court shallreturn a copy of the petition with leave to amend within 21 days. The court maygrant one additional 21-day period to amend for good cause shown.
(h)(4)The court shall not review for summary dismissal the initial post-convictionpetition in a case where the petitioner is sentenced to death.
(i) Service of petitions.If, on review of the petition, the court concludes that all or part of the petitionshould not be summarily dismissed, the court shall designate the portions ofthe petition that are not dismissed and direct the clerk to serve a copy of thepetition, attachments and memorandum by mail upon the respondent. If thepetition is a challenge to a felony conviction or sentence, the respondent isthe state of Utah represented by the Attorney General. In all other cases, therespondent is the governmental entity that prosecuted the petitioner.
(j) Appointment of pro bonocounsel. If any portion of the petitionis not summarily dismissed, the court may, upon the request of an indigentpetitioner, appoint counsel on a pro bono basis to represent the petitioner inthe post-conviction court or on post-conviction appeal. In determining whetherto appoint counsel the court shall consider whether the petition or the appealcontains factual allegations that will require an evidentiary hearing andwhether the petition involves complicated issues of law or fact that requirethe assistance of counsel for proper adjudication.
(k) Answer or other response.Within 30 days after service of a copy of the petition upon the respondent, orwithin such other period of time as the court may allow, the respondent shallanswer or otherwise respond to the portions of the petition that have not beendismissed and shall serve the answer or other response upon the petitioner inaccordance with Rule 5(b).Within 30 days (plus time allowed for service by mail) after service of anymotion to dismiss or for summary judgment, the petitioner may respond bymemorandum to the motion. No further pleadings or amendments will be permittedunless ordered by the court.
(l) Hearings.After pleadings are closed, the court shall promptly set the proceeding for ahearing or otherwise dispose of the case. The court may also order a prehearingconference, but the conference shall not be set so as to delay unreasonably thehearing on the merits of the petition. At the prehearing conference, the courtmay:
(l)(1)consider the formation and simplification of issues;
(l)(2)require the parties to identify witnesses anddocuments; and
(l)(3)require the parties to establish the admissibility ofevidence expected to be presented at the evidentiary hearing.
(m) Presence of the petitioner athearings. The petitioner shall be presentat the prehearing conference if the petitioner is not represented by counsel.The prehearing conference may be conducted by means of telephone or videoconferencing. The petitioner shall be present before the court at hearings ondispositive issues but need not otherwise be present in court during theproceeding. The court may conduct any hearing at the correctional facilitywhere the petitioner is confined.
(n) Discovery; records.
(n)(1)Discovery under Rules 26through 37shall be allowed by the court upon motion of a party and a determination thatthere is good cause to believe that discovery is necessary to provide a partywith evidence that is likely to be admissible at an evidentiary hearing.
(n)(2)The court may order either the petitioner or the respondent to obtain anyrelevant transcript or court records.
(n)(3)All records in the criminal case under review, including the records in anappeal of that conviction, are deemed part of the trial court record in thepetition for post-conviction relief. A record from the criminal case retainsthe security classification that it had in the criminal case.
(o) Orders; stay.
(o)(1)If the court vacates the original conviction or sentence, it shall enterfindings of fact and conclusions of law and an appropriate order. If thepetitioner is serving a sentence for a felony conviction, the order shall bestayed for 7 days. Within the stay period, the respondent shall give writtennotice to the court and the petitioner that the respondent will pursue a newtrial, pursue a new sentence, appeal the order, or take no action. Thereafterthe stay of the order is governed by these rules and by the Rules of AppellateProcedure.
(o)(2)If the respondent fails to provide notice or gives notice that no action willbe taken, the stay shall expire and the court shall deliver forthwith to thecustodian of the petitioner the order to release the petitioner.
(o)(3)If the respondent gives notice that the petitioner will be retried orresentenced, the trial court may enter any supplementary orders as toarraignment, trial, sentencing, custody, bail, discharge, or other matters thatmay be necessary and proper.
(p) Costs.The court may assign the costs of the proceeding, as allowed under Rule 54(d),to any party as it deems appropriate. If the petitioner is indigent, the courtmay direct the costs to be paid by the governmental entity that prosecuted thepetitioner. If the petitioner is in the custody of the Department ofCorrections, Utah Code Title78A, Chapter 2, Part 3 governs the manner and procedureby which the trial court shall determine the amount, if any, to charge for feesand costs.
(q) Appeal.Any final judgment or order entered upon the petition may be appealed to andreviewed by the Court of Appeals or the Supreme Court of Utah in accord withthe statutes governing appeals to those courts.
Advisory Committee Notes
EffectiveMay 1, 2017