Utah Code » Title 78B, Chapter 9 — Postconviction Remedies Act; part 78B-9-1 — General Provisions
Utah Code

Utah Code § 78B-9-105 (2026)

Burden of proof

✓ current as of May 2026
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Except for claims raised under Subsection 78B-9-104(1)(h), the petitioner has the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief.
For claims raised under Subsection 78B-9-104(1)(h), the petitioner has the burden of pleading and proving by clear and convincing evidence the facts necessary to entitle the petitioner to relief.
The court may not grant relief without determining that the petitioner is entitled to relief under the provisions of this chapter and in light of the entire record, including the record from the criminal case under review.
The respondent has the burden of pleading any ground of preclusion under Section 78B-9-106, but once a ground has been pled, the petitioner has the burden to disprove its existence by a preponderance of the evidence.
Notes of Decisions
Cited in 18 cases (7 in the last 5 years), 2009–2025 · leading case: Gardner v. State, 2010 UT 46 (Utah 2010).
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Gardner v. State, 2010 UT 46 (Utah 2010). · cites it 2× “Gardner points out, the PERA permits petitions to be filed within one year of "the entry of the denial of the petition for writ of certiorari.”
Patterson v. State, 2021 UT 52 (Utah 2021). · cites it 2× “‖ UTAH CODE § 78B-9-105(1)(a). And once the respondent has pled a time bar to the claims ―the petitioner has the burden to disprove its existence by a preponderance of the evidence.”
Nicholls v. State, 2009 UT 12 (Utah 2009). · cites it 2× “Utah Code Ann. § 78B-9-105(1) (2008). 8 .”
Honie v. State, 2014 UT 19 (Utah 2014). “" Urax CopE § 78B-9-105(1). As stated above, Mr. Honie challenges three of the postconviction court's rulings: (1) the court's dismissal of his claims of ineffective assistance of counsel, (2) the court's denial of his motion for additional funding under the PCRA, and (8) the…”
Gordon v. State, 2016 UT 11 (Utah 2016). · cites it 2× “Utag Cope § 78B-9-105(2) (placing "the burden of pleading" other "ground{s] of preclusion" on the respondent to a PCRA petition}.”
Bevan v. State, 2021 UT App 107 (Utah Ct. App. 2021). · cites it 2× “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…”
Jones v. State, 2020 UT App 125 (Utah Ct. App. 2020). · cites it 2× “State, 2020 UT 37, ¶ 12 ; see also Utah Code Ann. § 78B-9-105(1)(a) (LexisNexis 2018).”
Pinder v. State, 2015 UT 56 (Utah 2015). “Urax Cong § 78B-9-105(2). Thus, it falls on Pinder to show that his due process claims are not ones that "could have been .”
Garcia v. State, 2018 UT App 129 (Utah Ct. App. 2018). “Accordingly, the State moved for summary judgment on these claims, invoking the procedural bar.”
Martin v. State, 2024 UT App 89 (Utah Ct. App. 2024). · cites it 2× “(cleaned up); see also Utah Code § 78B-9-105(1)(a) (“[T]he petitioner has the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief.”
Coggeshell v. State, 265 P.3d 818 (Utah Ct. App. 2011). · cites it 2× “" *820 Utah Code Ann. § 78B-9-105(1) (2008); see also id.”
Newton v. State, 2025 UT 50 (Utah 2025). · cites it 4× “17 UTAH CODE § 78B-9-105(1)(a). We cite to the newest version of this statute because the updates since Newton filed his PCRA claim were not substantive.”
Show all 18 citing cases →
— Utah Code § 78B-9-105(1) — 5 cases
Nicholls v. State, 2009 UT 12 (Utah 2009). “Utah Code Ann. § 78B-9-105(1) (2008). 8 .”
Honie v. State, 2014 UT 19 (Utah 2014). “" Urax CopE § 78B-9-105(1). As stated above, Mr. Honie challenges three of the postconviction court's rulings: (1) the court's dismissal of his claims of ineffective assistance of counsel, (2) the court's denial of his motion for additional funding under the PCRA, and (8) the…”
Gardner v. State, 2010 UT 46 (Utah 2010). “Gardner points out, the PERA permits petitions to be filed within one year of "the entry of the denial of the petition for writ of certiorari.”
Coggeshell v. State, 265 P.3d 818 (Utah Ct. App. 2011). “" *820 Utah Code Ann. § 78B-9-105(1) (2008); see also id.”
Wamsley v. State, 2012 UT App 57 (Utah Ct. App. 2012).
— Utah Code § 78B-9-105(1)(a) — 6 cases
Bevan v. State, 2021 UT App 107 (Utah Ct. App. 2021). “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…”
Jones v. State, 2020 UT App 125 (Utah Ct. App. 2020). “State, 2020 UT 37, ¶ 12 ; see also Utah Code Ann. § 78B-9-105(1)(a) (LexisNexis 2018).”
Patterson v. State, 2021 UT 52 (Utah 2021). “‖ UTAH CODE § 78B-9-105(1)(a). And once the respondent has pled a time bar to the claims ―the petitioner has the burden to disprove its existence by a preponderance of the evidence.”
Martin v. State, 2024 UT App 89 (Utah Ct. App. 2024). “(cleaned up); see also Utah Code § 78B-9-105(1)(a) (“[T]he petitioner has the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief.”
Bryant v. State, 2021 UT App 30 (Utah Ct. App. 2021).
— Utah Code § 78B-9-105(2) — 10 cases
Gordon v. State, 2016 UT 11 (Utah 2016). “Utag Cope § 78B-9-105(2) (placing "the burden of pleading" other "ground{s] of preclusion" on the respondent to a PCRA petition}.”
Gardner v. State, 2010 UT 46 (Utah 2010). “Gardner points out, the PERA permits petitions to be filed within one year of "the entry of the denial of the petition for writ of certiorari.”
Patterson v. State, 2021 UT 52 (Utah 2021). “‖ UTAH CODE § 78B-9-105(1)(a). And once the respondent has pled a time bar to the claims ―the petitioner has the burden to disprove its existence by a preponderance of the evidence.”
Pinder v. State, 2015 UT 56 (Utah 2015). “Urax Cong § 78B-9-105(2). Thus, it falls on Pinder to show that his due process claims are not ones that "could have been .”
Garcia v. State, 2018 UT App 129 (Utah Ct. App. 2018). “Accordingly, the State moved for summary judgment on these claims, invoking the procedural bar.”
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