IN THE UTAH COURT OF APPEALS

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Carl McClellan,

Petitioner and Appellant,

v.

State of Utah,

Respondent and Appellee. )

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) MEMORANDUM DECISION

Case No. 20100979

‐ CA

F I L E D

(November 8, 2012)

2012 UT App 316

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Fourth District, Provo Department, 100403404

The Honorable Samuel D. McVey

Attorneys: Michael P. Studebaker, Ogden, for Appellant

Mark L. Shurtleff and Christopher D. Ballard, Salt Lake City, for

Appellee

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Before Judges Thorne, McHugh, and Christiansen.

McHUGH, Judge:

¶1 Carl McClellan claims that the trial court erred in dismissing his petition for

postconviction relief without first conducting a hearing or permitting him to respond to

the State’s motion to dismiss. We dismiss his appeal for lack of subject matter

jurisdiction.

¶2 McClellan was convicted of first degree felony rape on August 30, 1988, and was

sentenced shortly thereafter to five years to life in prison. For reasons not relevant here,

McClellan was resentenced in October 2005, which allowed him to file a timely direct

appeal. By that time, McClellan had been released from prison and was on parole. This1 Rule 65C provides that a petitioner for postconviction relief is entitled to a

hearing only after the trial court reviews the petition to determine if “any claim has

been adjudicated in a prior proceeding, or if any claim in the petition appears frivolous

on its face.” See Utah R. Civ. P. 65C(h)–(i), (l).

20100979

‐ CA 2 court affirmed McClellan’s 1988 conviction, see generally State v. McClellan

, 2008 UT App

48, 179 P.3d 825, but the Utah Supreme Court reversed our decision in part and

remanded to the trial court for a new trial, see State v. McClellan

, 2009 UT 50, 216 P.3d

956. Rather than retry McClellan, the State dismissed the charge.

¶3 On August 11, 2010, McClellan filed a civil petition against the State for a

determination of factual innocence under the Postconviction Determination of Factual

Innocence statute (the Factual Innocence Statute), seeking compensation for the years he

had spent in prison. See Utah Code Ann. §§ 78B

‐ 9

‐ 401 to

‐ 405 (LexisNexis 2008 & Supp.

2012). In his petition, McClellan identified three pieces of evidence that he claimed had

been newly discovered and supported a finding of factual innocence. The evidence

included the supreme court’s opinion vacating his sentence, the State’s decision not to

retry him, and his representation that a DNA expert was prepared to testify that there

was no physical or DNA evidence to support the allegation of rape.

¶4 Without being asked to respond, the State filed a motion to dismiss the petition

on November 4, 2010. See Utah R. Civ. P. 65C(h)–(i) (providing that the State is not

served until the trial court reviews a petition for postconviction relief to determine if it

raises any nonfrivolous issues). The following day, the trial court issued an order

dismissing the petition, which also stated that the State’s motion was premature.

McClellan filed a timely appeal of that decision.

¶5 On appeal, McClellan claims that the trial court erred by dismissing the petition

because it was required to hold a hearing before determining that it was frivolous. 1 The

State contends that we should not consider this argument because the trial court’s order

is not final and, therefore, this court lacks subject matter jurisdiction. See Utah R. App.

P. 3(a) (“An appeal may be taken from a district or juvenile court to the appellate court

with jurisdiction over the appeal from all final orders and judgments

. . . .”). Whether

we have subject matter jurisdiction is a threshold issue, which can be raised at any time

and must be addressed before the merits of other claims. See Housing Auth. v. Snyder

, 2002 UT 28, ¶ 11, 44 P.3d 724. “Whether this court has jurisdiction to hear an appeal is a

question of law.” Pearson v. South Jordan Emp. Appeals Bd.

, 2009 UT App 204, ¶ 8, 216

P.3d 996 (citation and internal quotation marks omitted).2 McClellan does not challenge those determinations on appeal.

3 The trial court indicated that McClellan had not provided an affidavit from the

unidentified DNA expert, had not explained how this evidence was newly discovered,

and had not clarified the precise theory that such an expert would advance.

20100979

‐ CA 3 ¶6 Therefore, we begin our analysis with an examination of whether the trial court’s

order is final and appealable. The Factual Innocence Statute requires the assigned judge

to “conduct an initial review of the petition” and provides that, “[i]f it is apparent to the

court that the petitioner is

. . . presenting issues that appear frivolous or speculative on

their face, the court shall dismiss the petition

. . . .” See Utah Code Ann. § 78B

‐ 9

‐ 402(9)(b) (LexisNexis Supp. 2012); see also Utah R. Civ. P. 65C(h) (same). In its

November 5, 2010 decision dismissing the petition, the trial court considered each of the

grounds advanced by McClellan as evidence of his factual innocence. The trial court

rejected McClellan’s claims that the supreme court’s opinion vacating his sentence and

the State’s decision not to retry him were evidence of his factual innocence, finding

those claims to be frivolous. 2 The trial court also dismissed McClellan’s third claim that

“‘[a] DNA expert is prepared to testify about the fact that the destroyed evidence from

the State would support the fact there [was] no physical or DNA evidence to support

any claims that [McClellan] is guilty of the crime charged,’” because it lacked the

specificity required by statute and rule. 3 See Utah Code Ann. § 78B

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‐ 402(2)–(3) (setting

forth the required contents of the petition); Utah R. Civ. P. 65C(d)–(e) (same). Therefore,

the trial court dismissed McClellan’s petition as frivolous, “with the exception that the

DNA expert claim [was] dismissed without prejudice as speculative.”

¶7 While a dismissal without prejudice is typically not “a final, appealable order,”

see Hales v. Oldroyd

, 2000 UT App 75, ¶ 1 n.2, 999 P.2d 588, that is not the case where

“the effect of the ruling is to finally resolve the issues,” see Bowles v. State ex rel. Utah

Dep’t of Transp.

, 652 P.2d 1345, 1346 (Utah 1982) (per curiam). Likewise, the dismissal of

a postconviction petition without prejudice is generally not a final order. See Finlayson v.

State

, 2006 UT App 95U, para. 3 (per curiam) (holding that an order dismissing a

postconviction petition without prejudice to the petitioner’s right to file an amended

petition within thirty days was not final and appealable). This is because the petitioner

can “proceed farther” in the action by filing an amended petition. See Bowles

, 652 P.2d at

1346 (stating that, if “in order to proceed farther with regard to the same subject

‐ matter,

a new action or proceeding must be commenced, then, as a general rule, the judgment

. . . is final for purposes of an appeal” (internal quotation marks omitted)). Where that is

not the case, however, the reasoning of Bowles supports the conclusion that the order is

final and appealable. Therefore, to determine whether the trial court’s order dismissing20100979

‐ CA 4 McClellan’s postconviction petition without prejudice is final, we consider “not only the

language, but also the effect of [the] dismissal order.” See Barton v. Utah Transit Auth.

, 872 P.2d 1036, 1038 n.3 (Utah 1994). If it effectively “‘ends the controversy between the

parties,’” it is a final order. See York v. Performance Auto, Inc.

, 2011 UT App 257, ¶ 4, 264

P.3d 212 (quoting Bradbury v. Valencia

, 2000 UT 50, ¶ 9, 5 P.3d 649). McClellan claims

that the trial court’s order dismissing the petition is such a final order.

¶8 “[O]rders which dismiss a [petition] without prejudice with leave to amend are

not deemed final until

. . . the plaintiff has announced its intention to stand on its

[petition].” Brennan v. Kulick

, 407 F.3d 603, 606 (3rd Cir. 2005). Once the time for filing

an amended petition has expired, such an intention is evident. See Mecham v. Labor

Comm’n

, 2010 UT App 283, ¶ 6 n.3, 241 P.3d 1217 (stating that a dismissal without

prejudice of an administrative claim became final when the petitioner did not take

further action in that proceeding). Thus, we now consider whether McClellan can still

amend his petition.

¶9 The Factual Innocence Statute provides that a petition for factual innocence is

generally governed by rule 65C of the Utah Rules of Civil Procedure. See Utah Code

Ann. § 78B

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‐ 402(7). In turn, rule 65C states,

If a claim is not frivolous on its face but is deficient due to a

pleading error or failure to comply with the requirements of

this rule, the court shall return a copy of the petition with

leave to amend within 20 days. The court may grant one

additional 20 day period to amend for good cause shown.

See Utah R. Civ. P. 65C(h)(3). Under the rule, the petitioner has twenty days from the

date that the trial court returns a copy of the petition to amend or to seek an extension

of the time to amend. See id

. Where a petitioner declines the court’s invitation to amend

the petition and that time expires, the motion to dismiss has effectively become final

because the petitioner can no longer move forward in the action. Under these

circumstances, the petitioner has chosen to stand on the original petition and a timely

appeal from the dismissal without prejudice may be treated as final.

¶10 Although the trial court here dismissed the claim of factual innocence based on

the unnamed DNA expert without prejudice, there is nothing in the record which

indicates that it returned a copy of the petition to McClellan with notice that he had

leave to amend it within twenty days. Nor is there anything in the record that reflects

McClellan’s intention to stand on the complaint. Cf. Bonneville Tower Condo. Mgmt.4 The State conceded at oral argument that McClellan is not barred from

amending his petition to provide the specificity required under the statute, which could

include actual test results confirming the presence or absence of DNA on a cushion or

clothing, see Utah Code Ann. § 78B

‐ 9

‐ 301(2) (LexisNexis Supp. 2012) (providing for

postconviction testing of DNA); an affidavit from an identified, rather than a

hypothetical, expert interpreting those results; and an explanation of how this evidence

proves McClellan’s factual innocence, see id

. § 78B

‐ 9

‐ 402(2)(a); Utah R. Civ. P. 65C(e)(1).

20100979

‐ CA 5 Comm. v. Thompson Michie Assocs., Inc.

, 728 P.2d 1017, 1019 (Utah 1986) (per curiam)

(indicating that the plaintiff “chose to stand on its complaint” rather than amend it to

add an indispensable party after a dismissal without prejudice, resulting in the trial

court’s entry of a second order dismissing the complaint with prejudice). Thus, the time

limitation on McClellan’s right to file an amended petition did not commence, and he is

not barred from filing an amended petition. 4 As a result, the trial court’s dismissal

without prejudice of the factual innocence claim based on DNA evidence is not a final,

appealable order because it did not adjudicate the claim’s merits or prevent McClellan

from moving forward in the proceeding. Because McClellan’s appeal is not from a final

order, we do not have jurisdiction to consider it. See Bradbury v. Valencia

, 2000 UT 50,

¶ 11, 5 P.3d 649. We “retain[] only the authority to dismiss the action.” See Varian

‐ Eimac,

Inc. v. Lamoreaux

, 767 P.2d 569, 570 (Utah Ct. App. 1989).

¶11 Appeal dismissed.

____________________________________ Carolyn B. McHugh, Judge

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¶12 WE CONCUR:

____________________________________ William A. Thorne Jr., Judge

____________________________________ Michele M. Christiansen, Judge