                 This opinion is subject to revision before final
                      publication in the Pacific Reporter

                                  2020 UT 8


                                    IN THE

       SUPREME COURT OF THE STATE OF UTAH

                              RONALD HAND,
                                Appellant,
                                       v.
                              STATE OF UTAH,
                                 Appellee.

                            No. 20180926
                       Heard December 9, 2019
                       Filed February 19, 2020


                            On Direct Appeal

                     Second District, Farmington
                    The Honorable John R. Morris
                           No. 170701002

                                 Attorneys:
     Scott K. Wilson, Benjamin C. McMurray, Nathan K. Phelps,
                     Salt Lake City, for appellant
   Sean D. Reyes, Att’y Gen., Aaron G. Murphy, Asst. Solic. Gen.,
                    Salt Lake City, for appellee

 ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in
 which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, JUSTICE PEARCE,
                   and JUSTICE PETERSEN joined.


   ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
    ¶1 Ronald Hand was convicted of aggravated sexual abuse of a
minor in August 2013. In 2017 he sought to challenge that conviction
in petitions submitted to both federal and state courts. As a pro se
inmate, Hand used a preprinted form approved by the federal courts
for petitions filed under 28 U.S.C. § 2254. He filed a federal petition
in the United States District Court for the District of Utah in May
2017. Then in June of the same year he submitted a substantially
                           HAND v. STATE
                        Opinion of the Court


similar petition in the Second District Court of Utah—again using
the federal form, but crossing out “United States” before “District
Court” and replacing it with a scrawled-in “Second.”
    ¶2 After the state court asked Hand to arrange for the payment
of the filing fee, Hand asked that his state petition be withdrawn.
The Second District Court granted that request, dismissing the
petition under rule 41(a)(1)(A) of the Utah Rules of Civil Procedure.
Thereafter, the federal district court reviewed Hand’s still-pending
federal petition and appointed counsel to represent him. With the
aid of counsel, Hand filed an amended petition in federal court and a
new petition in state court—again in the Second District Court.
    ¶3 The State challenged the viability of this new state petition
in a motion for summary judgment. Citing section 78B-9-106(1)(d) of
the Post-Conviction Remedies Act (PCRA), the State contended that
Hand’s petition was procedurally barred because it asserted claims
that were “raised or addressed in any previous request for
post-conviction relief” or that “could have been, but [were] not,
raised in a previous request for post-conviction relief.” UTAH CODE
§ 78B-9-106(1)(d). The district court granted the State’s motion,
concluding that Hand’s petition was barred because his initial June
2017 petition—the petition that had been withdrawn under civil rule
41(a)(1)(A)—was a “previous request for post-conviction relief.”
Hand then filed this appeal.
    ¶4 We reverse on the ground that the initial petition submitted
to the Second District Court does not count as a “previous request
for post-conviction relief.” That conclusion follows from the settled
view of the effect of a voluntary dismissal under civil rule
41(a)(1)(A). We have held that such a dismissal “render[s] the
proceedings a nullity and leave[s] the parties as if the action had
never been brought.” Barton v. Utah Transit Auth., 872 P.2d 1036, 1039
(Utah 1994) (alterations in original) (citation omitted). And if the
proceedings leading up to the dismissal were a legal nullity, then
there was no “previous request for post-conviction relief” to sustain
the procedural bar under Utah Code section 78B-9-106(1)(d).
    ¶5 The State objects that Hand’s reliance on civil rule
41(a)(1)(A) is “unpreserved.” And because a claimant’s right to
voluntary dismissal under rule 41(a)(1)(A) is “[s]ubject to . . . any
applicable statute,” and the PCRA states that the procedural bar is
triggered by “any previous request for post-conviction relief,” UTAH
CODE § 78B-9-106(1)(d) (emphasis added), the State contends that a
rule 41(a)(1)(A) dismissal is preclusive in the PCRA setting.

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                         Opinion of the Court


    ¶6 We disagree on both counts. As to preservation, our case
law draws a distinction between new “issues” (like distinct claims or
legal theories) and new “arguments” in support of preserved issues
(such as the citation of new legal authority). See State v. Johnson, 2017
UT 76, ¶ 14 n.2, 416 P.3d 443. Here, Hand is raising the latter. He
clearly preserved the issue in question—whether his earlier petition
counted as the kind of “previous request for post-conviction relief”
that sustains the procedural bar under Utah Code section
78B-9-106(1)(d). And our cases endorse his right to cite additional
authority (here, the terms of rule 41(a)(1)(A) and the case law
describing the effect of a dismissal under this rule) in support of his
position on this issue. See Johnson, 2017 UT 76, ¶ 14 n.2; Patterson v.
Patterson, 2011 UT 68, ¶ 18, 266 P.3d 828 (“[W]e routinely consider
new authority relevant to issues that have properly been preserved,
and we have never prevented a party from raising controlling
authority that directly bears upon a properly preserved issue.”
(footnote omitted)).
    ¶7 We also reject the State’s view of the interaction between
civil rule 41(a)(1)(A) and Utah Code section 78B-9-106(1)(d). The rule
is concededly “[s]ubject to . . . any applicable statute.” UTAH R. CIV.
P. 41(a)(1)(A). But our rule’s cross-reference to the code is not an
endorsement of statutory limits on the procedural effect of a
voluntary dismissal. It is an acknowledgment of the possibility of
statutory limits on a plaintiff’s right to voluntary dismissal without a
court order. This is clear from the text and structure of the rule. The
operative sentence is the following: “Subject to Rule 23(e) and any
applicable statute, the plaintiff may dismiss an action without a
court order . . . .” Id. In this structure, “[s]ubject to” stands as a
qualification or limit on a plaintiff’s right to “dismiss an action
without a court order.” The reference to civil rule 23(e) confirms that
conclusion. Rule 23 deals with class actions—representative suits,
whose dismissal affects not just the plaintiff but represented
members of a class. For that reason a named plaintiff’s right to
voluntary dismissal is circumscribed by rule 23. UTAH R. CIV. P. 23(e)
(“A class action shall not be dismissed or compromised without the
approval of the court, and notice of the proposed dismissal or
compromise shall be given to all members of the class in such
manner as the court directs.”). Thus, rule 41’s reference to “any
applicable statute,” in context, is just a recognition of the possibility
that the legislature may place limitations on the right to voluntary
dismissal without a court order.
   ¶8 By contrast, the PCRA does not prescribe limits on a
plaintiff’s right to seek voluntary dismissal. It sets the terms and

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                            HAND v. STATE
                         Opinion of the Court


conditions of a procedural bar—the preclusive effect of a “previous
request for post-conviction relief.” UTAH CODE § 78B-9-106(1)(d).
This provision, moreover, does not speak to the procedural effect of
a voluntary dismissal under civil rule 41(a)(1)(A). The statute is
silent on that question.
    ¶9 Utah Code section 78B-9-106(1)(d) (emphasis added) ties the
procedural bar to “any previous request for post-conviction relief.”
And the term “any” is admittedly broad and encompassing. See
Graves v. N. E. Servs., Inc., 2015 UT 28, ¶ 52, 345 P.3d 619 (“The term
any is broadening and inclusive.” (emphasis in original)). But the
statute doesn’t speak to what counts as “a” (or “any”) “request for
post-conviction relief,” much less whether the statutory bar extends
to an action initiated by a plaintiff but voluntarily dismissed under
rule 41(a)(1)(A). Only rule 41(a)(1)(A), as interpreted in our case law,
answers that last question. The rule accordingly controls, as the
statute is silent on the effect of a voluntary dismissal and properly
interpreted as having been enacted against the backdrop of rule 41.
    ¶10 We reverse the dismissal of Hand’s PCRA claim on this
basis. We hold that there is no “previous request for post-conviction
relief” where the action was initiated but voluntarily dismissed
under rule 41(a)(1)(A).1 We base this holding on well-settled case




_____________________________________________________________
   1  In so concluding, we decline to rule on a broader premise
advanced by Hand—that a prior filing counts as a “previous request
for post-conviction relief” only if it contained claims that were
“addressed on their merits.” We do note, however, 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, barring not only claims that were “raised or
addressed” in a previous request, but also those that “could have
been, but w[ere] not, raised in a previous request for post-conviction
relief.” UTAH CODE § 78B-9-106(1)(d) (emphasis added).

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                        Opinion of the Court


law, which is not altered by the terms of Utah Code section
78B-9-106(1)(d).2




_____________________________________________________________
   2  In so holding, we decline to consider a range of other questions
raised by Hand—such as the effect of a dismissal “without
prejudice” outside the context of rule 41(a)(1)(A) and whether and to
what extent a court may retain statutory or constitutional power to
consider the merits of a post-conviction petition purporting to seek
review outside the terms and conditions of the PCRA. See Winward v.
State, 2012 UT 85, ¶¶ 17–18, 293 P.3d 259 (declining to reach the
constitutional question and identifying threshold considerations that
a party would need to address to raise it).


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