Bevan v. State

2021 UT App 107

THE UTAH COURT OF APPEALS

JOHN DEAN BEVAN,
Appellant,
v.
STATE OF UTAH,
Appellee.

Amended Opinion1.
No. 20190773-CA
Filed October 7, 2021

Third District Court, Tooele Department
The Honorable Matthew Bates
No. 180300743

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.

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

1. This Amended Opinion replaces the Opinion in Case No.
20190773-CA issued on August 12, 2021. After issuance, the State
filed a petition for rehearing and we called for a response. We
grant the petition for the purpose of amending one word in ¶ 12,
as agreed upon by the parties.
 Bevan v. State

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.

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 Bevan v. State

¶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

2. A federal habeas petition provides a criminal defendant a
means to challenge a state court conviction in federal court “on
the ground that [the defendant] is in custody in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a).

3. The Utah Supreme Court clarified the process for providing a
criminal defendant a means to reinstate a direct appeal in
Manning v. State, 2005 UT 61, 122 P.3d 628. While “Manning has
been supplanted by rule 4(f)” of the Utah Rules of Appellate
Procedure, see State v. Brown, 2021 UT 11, ¶ 13, 489 P.3d 152, a
motion to reinstate a direct criminal appeal is often colloquially
referred to as “a Manning motion,” see, e.g., Garcia v. State, 2018
UT App 129, ¶ 15, 427 P.3d 1185; see also Utah R. App. P. 4(f)
(“Upon a showing that a criminal defendant was deprived of the
right to appeal, the trial court shall reinstate the thirty-day
period for filing a direct appeal. A defendant seeking such
reinstatement shall file a written motion in the sentencing court
and serve the prosecuting entity. . . . If the trial court finds by a
preponderance of the evidence that the defendant has
demonstrated that the defendant was deprived of the right to
appeal, it shall enter an order reinstating the time for appeal.”).

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 Bevan v. State

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.”

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 Bevan v. State

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

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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).

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 Bevan v. State

¶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 plain meaning, the term “raise” in this
context means “to bring up for consideration” or “introduce
into discussion.” See Raise, Webster’s Third New Int’l
Dictionary (2002); see also Raise, Black’s Law Dictionary (11th
ed. 2019) (defining raise as “[t]o bring up for discussion
or consideration; to introduce or put forward,” as illustrated
in the phrase, “the party raised the issue in its pleading”). The
term “address” means “to deal with.” Address, Merriam-
Webster, https://www.merriam-webster.com/dictionary/address
[https://perma.cc/BMS5-BP2N]. The two terms are not
synonymous; there exists a “meaningful distinction,” see Jeffries,
2009 UT 57, ¶¶ 9, 11 (explaining that we read statutes
with “meaningful distinction, such that each provision is
attributed a significant and operative purpose”). A party can
“raise” an issue by introducing it to a court even if the court does
not ultimately engage in “discussion or consideration” of the
issue. See Raise, Webster’s Third New Int’l Dictionary (2002);

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 Bevan v. State

Raise, Black’s Law Dictionary (11th ed. 2019). Conversely, an
issue is not “addressed” unless it is dealt with by the court,
which implies ruling on the issue. See Address,
Merriam-Webster, https://www.merriam-webster.com/dictionar
y/address [https://perma.cc/BMS5-BP2N]. Our supreme court
illustrated this dichotomy when discussing a criminal
defendant’s post-conviction claims in Archuleta v. State, 2020 UT
62, 472 P.3d 950. There, the court differentiated issues “raised”
by the petitioner in post-conviction proceedings from issues that
were “addressed”—issues determined on the merits by the court
in a written opinion. See id. ¶¶ 71–72, 75–76. And this distinction
is made clearer when looking at the plain text of the statute;
implicit in barring hypothetical claims that “could have been”
raised is the notion that these claims are procedurally barred by
Section 106(1)(d) despite the fact that they have never been
addressed on the merits.

¶14 Further support for this interpretation of Section 106(1)(d)
can be found in other appellate precedent. Without considering
the specific interpretation question presented here, the Utah
Supreme Court acknowledged “that an individual claim need
not itself be adjudicated or ‘addressed on [its] merits’ to be
barred under the PCRA. The statute clearly sweeps more
broadly than that.” Hand v. State, 2020 UT 8, ¶ 10 n.1, 459 P.3d
1014 (quoting Utah Code § 78B-9-106(1)(d)).4 Thus, in accordance

4. In Hand v. State, 2020 UT 8, 459 P.3d 1013, the court declined to
delineate how broadly the PCRA procedural bars sweep. See id.
¶ 10 nn.1–2. The court did, however, exclude voluntary
dismissals from Section 106(1)(d)’s procedural bar because
settled caselaw establishes that a voluntary dismissal “renders
the proceedings a nullity and leaves the parties as if the action
had never been brought.” Id. ¶ 4 (quotation simplified). Our
interpretation of this procedural bar is consistent with Hand.
Because a voluntarily dismissed claim is treated as if it were
(continued…)

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 Bevan v. State

with the plain language of the statute and controlling caselaw,
we conclude that the Section 106(1)(d) procedural bar applies
under any of these circumstances: (1) where the post-conviction
claims were previously raised by the petitioner and not
voluntarily dismissed; (2) where the post-conviction claims
could have been, but were not, previously brought in a previous
request for post-conviction relief; and (3) where the post-
conviction claims were previously decided on the merits.

¶15 Bevan disputes this interpretation of “raise,” arguing that
“he has never actually raised any claims” and “[h]e could not
have raised any of these claims,” because he “has never had the
opportunity of testing the merits of any of his claims.” According
to Bevan, “we should consider the issues raised” only when the
“court can actually consider” a post-conviction claim.5 But under

(…continued)
never introduced to the court, it does not trigger Section
106(1)(d); this is so because the claim was not “raised” and it
necessarily follows that it could not have been “addressed.” See
Utah Code Ann. § 78B-9-106(1)(d) (LexisNexis 2018). Bevan’s
claims are not exempt from Section 106(1)(d) under Hand
because they were not voluntarily dismissed; rather, the 2010
Petition was dismissed for being untimely. See supra ¶ 3.

5. Bevan also argues that he did not actually raise his claims
because “no court heard” the 2010 Petition due to it being time-
barred. In making this argument, Bevan compares the time bar
in Utah Code section 78B-9-107(1) to Utah’s plea withdrawal
statute, which bars direct appeals challenging pleas after
sentencing, see Utah Code Ann. § 77-13-6(2)(b) (LexisNexis 2017).
But the two are quite dissimilar. The plea withdrawal statute
establishes a jurisdictional bar “preclud[ing] consideration of the
merits of [a plea] issue on appeal.” See, e.g., State v. Rettig, 2017
UT 83, ¶¶ 43–44, 416 P.3d 520. In contrast, the time bar in the
(continued…)

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 Bevan v. State

the plain language of Section 106(1)(d), the procedural bar
applies even where a claim is not considered and is merely
brought to the court for consideration. Contrary to Bevan’s
assertion, “testing the merits” of post-conviction claims is not
required for the procedural bar to apply.6 See Utah Code Ann.
§ 78B-9-106(1)(d). Such an interpretation would disregard the
use of the disjunctive and the plain meaning of “raise,”
rendering that clause superfluous. See Jeffries, 2009 UT 57, ¶¶ 9–
11. This reading of the statute is untenable.

(…continued)
PCRA is a “statute of limitations,” Winward v. State, 2012 UT 85,
¶ 29, 293 P.3d 259, and “statutes of limitations are . . . not
jurisdictional in the civil context,” In re S.O., 2005 UT App 393,
¶ 8, 122 P.3d 686 (quotation simplified); see also Utah Code Ann.
§ 78B-9-102(1)(a) (LexisNexis 2018) (explaining that post-
conviction proceedings are civil).

6. Bevan offers federal caselaw to support his claim that the
Section 106(1)(d) procedural bar is inapplicable here. These cases
are readily distinguishable. As noted, in Utah’s state courts, a
right to direct criminal appeal is reinstated through a so-called
Manning motion. See Garcia, 2018 UT App 129, ¶ 15. Once
reinstated, a defendant proceeds to file an appeal seeking relief.
See Utah R. App. P. 4(f). In federal courts, the same procedural
motion is used for both the reinstatement of the right to appeal
and post-conviction relief. See, e.g., Shepeck v. United States, 150
F.3d 800, 801 (7th Cir. 1998) (per curiam). In those circumstances,
once a defendant’s direct appeal right has been reinstated, the
petitioner starts afresh with a new motion for post-conviction
relief only because the prior request for post-conviction relief
“merely reinstated the right to a direct appeal” and never raised
issues with the conviction itself. United States v. Scott, 124 F.3d
1328, 1330 (10th Cir. 1997) (per curiam).

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 Bevan v. State

¶16 Bevan also contends that to “raise” claims sufficient to
trigger Section 106(1)(d)’s procedural bar, the claims must have
accrued and been procedurally proper. Given Bevan received a
new direct appeal in 2017 with his Manning motion, see supra ¶ 5,
he now argues he never actually “raised,” or could have raised,
any issues in his 2010 Petition because post-conviction relief is
only available, and does not accrue, until all other legal remedies
are exhausted. See Johnson v. State, 2006 UT 21, ¶ 22, 134 P.3d
1133 (“Relief under the PCRA is available only to a ‘person who
challenges a conviction or sentence for a criminal offense and
who has exhausted all other legal remedies.’” (quoting Utah
Code Ann. § 78B-9-102(1)(a))); see also Utah Code Ann. § 78B-9-
107. Therefore, Bevan asserts, he “was procedurally unable to
raise any PCRA claims” prior to 2018.7 But Section 106(1)(d)
applies to “any” post-conviction issues previously “raised,” or
that “could have been . . . raised,” by being introduced to the
court. See supra ¶¶ 12–14. And in interpreting the plain language,
no extra-statutory exceptions will be inserted without a solid
basis in the law. See Winward v. State, 2012 UT 85, ¶¶ 43–44, 293
P.3d 259 (Lee, J., concurring); cf. Belnap v. Howard, 2019 UT 9, 437
P.3d 355 (declining to read a bad faith exception in a statute
where no basis for it existed in the plain language). Nothing in

7. In making this argument, Bevan intertwines Section
106(1)(d)’s procedural bar with the time bar, essentially arguing
that a court turns to a procedural bar only after determining the
propriety of claims under the time bar. Yet in statute and
caselaw, the PCRA procedural and time bars are treated as two
distinct inquiries. See, e.g., Utah Code Ann. § 78B-9-106(2);
Gardner v. State, 2010 UT 46, ¶¶ 59–60, 234 P.3d 1115. And we
regularly affirm dismissal of cases based on a procedural bar
without addressing the propriety of the case under the time bar.
See Kissell v. State, 2010 UT App 123U, para. 4 (“We do not
further address the time bar because the procedural bar is
dispositive.”).

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 Bevan v. State

the plain language creates an exception allowing a party to
reintroduce issues that were not properly or timely raised. Thus,
the propriety of the 2010 Petition is inconsequential to our
application of the procedural bar.

¶17 Applying our interpretation of Section 106(d)(1) to the
facts of the case, we hold that the claims presented in the 2018
Petition are procedurally barred. The 2010 Petition qualifies as a
“previous request for post-conviction relief” that “raised” three
grounds for review.8 See Utah Code Ann. § 78B-9-106(1)(d). The
first two claims in the 2018 Petition (that Counsel was ineffective
for failing to investigate Lunesta and that police violated Bevan’s
Miranda rights) are barred because they are nearly identical to
those raised in the 2010 Petition. Id. (precluding from review

8. Citing rule 41 of the Utah Rules of Civil Procedure, the State
urges us to go further and hold the three issues in the 2010
Petition were “addressed” for the purposes of the PCRA. See
Utah R. Civ. P. 41(b) (“Unless the dismissal order otherwise
states, . . . any dismissal not under this rule, other than a
dismissal for lack of jurisdiction, improper venue, or failure to
join a party . . . , operates as an adjudication on the merits.”). We
note that some questions remain regarding whether a dismissal
under the PCRA’s procedural bar represents an involuntary
dismissal on the merits under rule 41 or if it operates as a
“precondition to suit” for which a “party’s failure to satisfy . . .
results in an adjudication for lack of jurisdiction” and not an
adjudication on the merits. See McBride-Williams v. Huard, 2004
UT 21, ¶¶ 12–13, 94 P.3d 175 (quotation simplified). In
particular, some PCRA caselaw implies that a dismissal on the
procedural bar is not an adjudication on the merits. See, e.g.,
Gardner, 2010 UT 46, ¶¶ 90–97. Because the parties did not brief
this issue and we can readily affirm on the grounds that the 2010
Petition previously “raised” issues in a post-conviction
proceeding, we need not reach this argument.

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 Bevan v. State

“any ground that . . . was raised . . . in any previous request for
post-conviction relief”). Compare supra ¶ 3, with supra ¶ 6. See
generally Myers v. State, 2004 UT 31, ¶ 14 & n.1, 94 P.3d 211
(explaining that new arguments that are “nearly identical” or
“closely related” to arguments previously raised in post-
conviction proceedings are procedurally barred under the
PCRA).

¶18 As to his second two claims (that Counsel rendered
ineffective assistance by failing to request a hearing to evaluate
Bevan’s mental capacity and that Counsel had a conflict of
interest), Bevan has not carried his burden to explain why he
was unable to raise these claims in the 2010 Petition. See Utah
Code Ann. § 78B-9-105(1)(a), (2) (LexisNexis 2018) (placing the
burden of proof on the petitioner to prove “by a preponderance
of the evidence the facts necessary to entitle the petitioner to
relief”); see also Archuleta, 2020 UT 62, ¶¶ 80, 83 (explaining that
to avoid Section 106(1)(d)’s procedural bar, a petitioner must
provide “facts” or “new evidence or information” explaining
why the claim could not have been previously raised). Indeed, in
support of this position Bevan relies solely on his statutory
interpretation argument—that “[h]e could not have raised
[either] of these claims because he has never actually raised
claims.” Because we have rejected this interpretation, Bevan is
left without evidence or facts to explain why these claims should
not be procedurally barred from review as claims that “could
have been, but [were] not raised, in a previous request for post-
conviction relief.” See Utah Code Ann. § 78B-9-106(1)(d).

¶19 As noted, Bevan also challenges the district court’s
dismissal of the 2018 petition as time-barred under section 78B-
9-107(1) of the Utah Code. In deciding Bevan’s 2018 Petition on
the procedural bar, we have no occasion to consider the merits of
his time-bar argument.

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 Bevan v. State

CONCLUSION

¶20 We conclude that for the purposes of the PCRA Section
106(1)(d) procedural bar, a claim is “raised” where it is
introduced to the court for review. Thus, Bevan’s 2018 Petition is
procedurally barred because the claims presented were “raised”
or “could have been . . . raised,” see Utah Code Ann. § 78B-9-
106(1)(d), in the 2010 Petition. Accordingly, we affirm the district
court’s dismissal of the 2018 Petition.

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