Rule 65C. Post-convictionrelief.
(a) Scope. This rule governs proceedings in allpetitions for post-conviction relief filed under the Post-Conviction RemediesAct, Utah Code Title 78B, Chapter 9. The Act sets forth the manner and extentto which a person may challenge the legality of a criminal conviction andsentence after the conviction and sentence have been affirmed in a directappeal under Article I, Section 12 of the Utah Constitution, or the timeto file such an appeal has expired.
(b) Procedural defenses and merits review. Except as provided in paragraph (h),if the court comments on the merits of a post-conviction claim, it shall firstclearly and expressly determine whether that claim is independently precludedunder Section 78B-9-106.
(c) Commencement and venue. The proceeding shall be commenced byfiling a petition with the clerk of the district court in the county in whichthe judgment of conviction was entered. The petition should be filed on formsprovided by the court. The court may order a change of venue on its own motionif the petition is filed in the wrong county. The court may order a change ofvenue on motion of a party for the convenience of the parties or witnesses.
(d) Contents of the petition. The petition shall set forth allclaims that the petitioner has in relation to the legality of the conviction orsentence. The petition shall state:
(1) whether the petitioner is incarcerated and, if so, theplace of incarceration;
(2) the name ofthe court in which the petitioner was convicted and sentenced and the dates ofproceedings in which the conviction was entered, together with the court's casenumber for those proceedings, if known by the petitioner;
(3) in plain and concise terms, all of the facts that formthe basis of the petitioner's claim to relief;
(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;
(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
(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, thepetitioner shall attach to the petition:
(1) affidavits, copies of records and other evidence in supportof the allegations;
(2) a copy of or a citation to any opinion issued by anappellate court regarding the direct appeal of the petitioner's case;
(3) a copy ofthe pleadings filed by the petitioner in any prior post-conviction or othercivil proceeding that adjudicated the legality of the conviction or sentence;and
(4) a copy of all relevant orders and memoranda of thecourt.
(f) Memorandum of authorities. The petitioner shall not set forthargument or citations or discuss authorities in the petition, but these may beset out in a separate memorandum, two copies of which shall be filed with thepetition.
(g) Assignment. On the filing of the petition, theclerk shall promptly assign and deliver it to the judge who sentenced thepetitioner. If the judge who sentenced the petitioner is not available, theclerk shall assign the case in the normal course.
(h)Summary dismissal ofclaims.
(1) The assignedjudge shall review the petition, and, if it is apparent to the court that anyclaim has been adjudicated in a prior proceeding, or if any claim in thepetition appears frivolous on its face, the court shall forthwith issue anorder dismissing the claim, stating either that the claim has been adjudicatedor that the claim is frivolous on its face. The order shall be sent by mail tothe petitioner. Proceedings on the claim shall terminate with the entry of theorder of dismissal. The order of dismissal need not recite findings of fact orconclusions of law.
(2) A claim is frivolouson its face when, based solely on the allegations contained in the pleadingsand attachments, it appears that:
(A) the facts alleged do not support a claim for relief asa matter of law;
(B) the claim has no arguable basis in fact; or
(C) the claim challenges the sentence only and the sentencehas expired prior to the filing of the petition.
(3) If a claimis not frivolous on its face but is deficient due to a pleading error orfailure to comply with the requirements of this rule, the court shall return acopy of the petition with leave to amend within 21 days. The court may grantone additional 21-day period to amend for good cause shown.
(4) The courtshall not review for summary dismissal the initial post-conviction petition ina case where the petitioner is sentenced to death.
(i) Service of petitions. If, on review of the petition, thecourt concludes that all or part of the petition should not be summarilydismissed, the court shall designate the portions of the petition that are notdismissed and direct the clerk to serve upon the respondent a copy of thepetition, attachments, memorandum, and an electroniccourt record of the underlying criminal case being challenged, including allnon-public documents. ?If an electronicappellate record of the underlying case has notalready been created, the clerk will create the record.
(1) If thepetition is a challenge to a felony conviction or sentence, the respondent isthe state of Utah represented by the Attorney General. Service on the AttorneyGeneral shall be by mail at the following address:
Utah AttorneyGeneral?s Office
160 East 300South, 6th Floor
P.O. Box 140854
Salt Lake City,UT 84114-0854
(2) In all othercases, the respondent is the governmental entity that prosecuted thepetitioner.
(j) Appointment of pro bono counsel. If any portion of the petition is notsummarily dismissed, the court may, upon the request of an indigent petitioner,appoint counsel on a pro bono basis to represent the petitioner in thepost-conviction court or on post-conviction appeal. In determining whether toappoint 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 acopy of the petition upon the respondent, or within such other period of timeas the court may allow, the respondent shall answer or otherwise respond to theportions of the petition that have not been dismissed and shall serve theanswer or other response upon the petitioner in accordance 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 courtshall promptly set the proceeding for a hearing or otherwise dispose of thecase. The court may also order a prehearing conference, but the conferenceshall not be set so as to delay unreasonably the hearing on the merits of thepetition. At the prehearing conference, the court may:
(1) consider the formation and simplification of issues;
(2) require the parties to identify witnesses and documents;and
(3) require the parties to establish the admissibility ofevidence expected to be presented at the evidentiary hearing.
(m) Presence of the petitioner at hearings. The petitioner shall be present atthe prehearing conference if the petitioner is not represented by counsel. Theprehearing 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 the proceeding.The court may conduct any hearing at the correctional facility where thepetitioner is confined.
(n) Discovery; records.
(1) Discoveryunder Rules 26 through 37 shallbe allowed by the court upon motion of a party and a determination that thereis good cause to believe that discovery is necessary to provide a party withevidence that is likely to be admissible at an evidentiary hearing.
(2) The courtmay order either the petitioner or the respondent to obtain any relevanttranscript or court records.
(3) All recordsin the criminal case under review, including the records in an appeal of thatconviction, are deemed part of the trial court record in the petition forpost-conviction relief. A record from the criminal case retains the securityclassification that it had in the criminal case.
(o) Orders; stay.
(1) If the courtvacates the original conviction or sentence, it shall enter findings of factand conclusions of law and an appropriate order. If the petitioner is serving asentence for a felony conviction, the order shall be stayed for 7 days. Withinthe stay period, the respondent shall give written notice to the court and thepetitioner that the respondent will pursue a new trial, pursue a new sentence,appeal the order, or take no action. Thereafter the stay of the order isgoverned by these rules and by the Rules of Appellate Procedure.
(2) If therespondent fails to provide notice or gives notice that no action will betaken, the stay shall expire and the court shall deliver forthwith to thecustodian of the petitioner the order to release the petitioner.
(3) If therespondent gives notice that the petitioner will be retried or resentenced, thetrial court may enter any supplementary orders as to arraignment, trial,sentencing, custody, bail, discharge, or other matters that may be necessaryand proper.
(p) Costs. The court may assign the costs of theproceeding, 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 Title 78A, Chapter 2, Part 3 governs the manner and procedure bywhich the trial court shall determine the amount, if any, to charge for feesand costs.
(q) Appeal. Any final judgment or order enteredupon the petition may be appealed to and reviewed by the Court of Appeals orthe Supreme Court of Utah in accord with the statutes governing appeals tothose courts.
Effective May 1, 2021