Uden v. State

• Decision Date: 25 August 2020
• Docket Number: S-20-0054
• Citation: 470 P.3d 560
• Parties: Gerald Lee UDEN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

470 P.3d 560

Gerald Lee UDEN, Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

S-20-0054

Supreme Court of Wyoming.

August 25, 2020

Representing Appellant: Gerald Lee Uden, Pro Se.

Representing Appellee: Bridget L. Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney General; Joshua C. Eames, Senior Assistant Attorney General; Timothy P. Zintak, Assistant Attorney General.

Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

BOOMGAARDEN, Justice.

[¶1] Gerald Lee Uden pleaded guilty to three counts of first degree murder in 2013, and, six years later, sought exoneration under the Post-Conviction Determination of Factual Innocence Act (the Factual Innocence Act or the Act), Wyo. Stat. Ann. §§ 7-12-401 through 407 (LexisNexis 2019). The district court dismissed his petition as deficient under the Act, and Mr. Uden appealed. Concluding we lack jurisdiction because the court's order dismissing Mr. Uden's petition is not a final appealable order, we dismiss.

ISSUE

[¶2] The State's jurisdictional issue is dispositive: whether we lack jurisdiction because the court's order dismissing Mr. Uden's petition is not a final appealable order.

BACKGROUND

[¶3] In 2013, Mr. Uden pleaded guilty to three counts of first degree murder. Mr. Uden testified to the underlying facts of each count at his arraignment and sentencing hearing. He testified as follows.

[¶4] On September 12, 1980, Mr. Uden met his ex-wife, Virginia, and two adopted sons, Reagan and Richard, at an agreed location in Fremont County after Richard's medical appointment. They drove further North to "a place where there's an irrigation canal that the road goes by really close." Reagan and Richard wished to shoot a rifle and, once there, Virginia removed a .22 rifle from her vehicle.

[¶5] Mr. Uden initially tested the rifle, and then turned it on Virginia, Reagan, and Richard. He first shot Virginia "in the back of her head." He then "shot [Richard] behind the ear" as Richard stood near the rear of the vehicle. Reagan ran away after watching Mr. Uden shoot his mother and brother but tripped and fell in a ditch. As Reagan lay in the ditch, Mr. Uden approached him "very quietly, and [ ] shot him behind the ear."

[¶6] Mr. Uden then embarked on an elaborate process to hide the bodies. Initially, he left the bodies in "the old gold mines in Lewiston." About one month later, Mr. Uden decided to recover the bodies from the gold mines and sink them to the bottom of Fremont Lake. To do so, he placed Virginia in a 55-gallon drum and Reagan and Richard in a 35-gallon drum, sealed the drums, and then drilled holes in the sides of each drum. He navigated to a point in the lake deeper than his drop line could measure—"it was at least 450 feet deep"—and dropped the drums into the lake. "They sank rapidly."

[¶7] Now, over six years after pleading guilty, Mr. Uden filed a petition for postconviction determination of factual innocence among various other pro se motions regarding his convictions and sentence. He alleged in his petition that he found newly discovered evidence proving his factual innocence in transcripts of his guilty plea—namely, errors caused by the court and defense counsel. The court dismissed Mr. Uden's petition, finding it failed to meet the Factual Innocence Act's statutory requirements. Mr. Uden appeals that dismissal, pro se.

DISCUSSION

[¶8] Mr. Uden raises several issues; however, our threshold concern is whether we have jurisdiction to hear his appeal. See Inman v. Inman (In re Est. of Inman ), 2016 WY 101, ¶ 9, 382 P.3d 67, 69 (Wyo. 2016). "The existence of jurisdiction is a question of law" which we review de novo. Id. (citing Brown v. City of Casper , 2011 WY 35, ¶ 8, 248 P.3d 1136, 1139 (Wyo. 2011) ).

[¶9] The Act expressly provides that "[a]n order granting or denying a petition under this [A]ct is appealable by either party[,]" but it does not address whether a dismissal order is appealable. Wyo. Stat. Ann. § 7-12-407. This is the first time the State asserts we lack jurisdiction to hear such an appeal—the State took no issue with the finality of similar dismissal orders in prior appeals. See Sullivan v. State , 2019 WY 71, 444 P.3d 1257 (Wyo. 2019) ; Parkhurst v. State , 2019 WY 63, 443 P.3d 834 (Wyo. 2019) ; Goetzel v. State , 2019 WY 27, 435 P.3d 865 (Wyo. 2019). With the issue whether a district court's order dismissing a factual innocence petition for statutory noncompliance is a final appealable order squarely before us, we conclude it is not.

[¶10] We begin by recapping the nature of a district court's initial review under the Factual Innocence Act and the statutory requirements a petition must satisfy in order to survive that review. In Sullivan , we read sections 403(b), (c), and 404(b) in pari materia to mandate an initial review process whereby the district court assesses a petition's compliance with the combined requirements of those sections. Sullivan , ¶¶ 11–12, 444 P.3d at 1260. Section 403(b) and (c) require:

(b) The petition shall contain an assertion of factual innocence under oath by the petitioner and shall aver, with supporting affidavits or other credible documents, that:

(i) Newly discovered evidence exists that, if credible, establishes a bona fide issue of factual innocence; (ii) The specific evidence identified by the petitioner establishes innocence and is material to the case and the determination of factual innocence;

(iii) The material evidence identified by the petitioner is not merely cumulative of evidence that was known, is not reliant solely upon recantation of testimony by a witness against the petitioner and is not merely impeachment evidence;

(iv) When viewed with all other evidence in the case, whether admitted during trial or not, the newly discovered evidence demonstrates that the petitioner is factually innocent; and

(v) Newly discovered evidence claimed in the petition is distinguishable from any claims made in prior petitions.

(c) The court shall review the petition in accordance with the procedures in W.S. 7-12-404, and make a finding whether the petition has satisfied the requirements of subsection (b) of this section. If the court finds the petition does not meet all the requirements of subsection (b) of this section, it shall dismiss the petition without prejudice and send notice of the dismissal to the petitioner, the district attorney, and the attorney general.

Wyo. Stat. Ann. § 7-12-403 ; see also Sullivan , ¶ 11, 444 P.3d at 1260. Section 404(b) further requires that "[t]he assigned district judge shall conduct an initial review of the petition. If it is apparent to the court that the petitioner is merely relitigating facts, issues or evidence presented in previous proceedings or presenting issues that appear frivolous or speculative on their face, the court shall dismiss the petition[.]" Wyo. Stat. Ann. § 7-12-404(b) ; see also Sullivan , ¶ 12, 444 P.3d at 1260.

[¶11] The district court dismissed Mr. Uden's petition after reviewing it in this manner and against these statutory requirements. Specifically, the district court noted how Mr. Uden's petition "improperly attempt[ed] to assert a deprivation of rights claim via the Factual Innocence Act." Recognizing that the scope of the Factual Innocence Act is plainly limited to claims of factual innocence based on newly discovered evidence, the court found the petition "frivolous on its face," under section 404(b), and noncompliant with section 403(b) because the petition failed to assert a factual innocence claim based on newly discovered evidence.

[¶12] The district court determined that Mr. Uden's petition was noncompliant with both 403(b) and 404(b) but did not specify whether it dismissed the petition with, or without, prejudice. In Sullivan , we did not address that 403(c) directs the court to dismiss a noncompliant petition without prejudice, but 404(b) is silent as to the nature of the dismissal. Reading those sections in pari materia , however, it is clear the crux of any dismissal following the court's initial review under 403(c) and 404(b) is the petitioner's failure to assert factual innocence or to support his assertion with credible documentation of "newly discovered evidence"¹ sufficient to establish "a bona fide issue of factual innocence." Wyo. Stat. Ann. § 7-12-403(b)(i). Though a noncompliant petition must be dismissed, the Act does not foreclose a petitioner from filing a later, compliant petition.² We therefore conclude the district court dismissed Mr. Uden's petition without prejudice.

[¶13] "Our jurisdiction ‘is limited to appeals from final appealable orders.’ " Painter v. Stefka ex rel. Wyo. Bd. of Med. , 2019 WY 108, ¶ 10, 450 P.3d 1243, 1245 (Wyo. 2019) (quoting In re Est. of Inman , ¶ 9, 382 P.3d at 69 ). Dismissals without prejudice often are considered non-final, and therefore non-appealable.³ When applying Rule 1.05, however, we put substance (the effect the order has on the parties’ rights) over form (without prejudice). Stone v. Stone , 842 P.2d 545, 548 (Wyo. 1992) (citation omitted) ("Most appellate courts, in addressing finality, agree that the substance should be elevated over the form of the order."); Painter , ¶ 13, 450 P.3d at 1246 (citation omitted) ("Instead of emphasizing the name given to an action below, we ... concentrate on the effect the order has on the parties’ rights.").

[¶14] An "appealable order" is "[a]n order affecting a substantial right in an action, when such order, in effect, determines the action and prevents a judgment[.]" W.R.A.P. 1.05(a) ; see also Escobedo v. State , 601 P.2d 1028, 1029 (Wyo. 1979) ; In re Est. of Hibsman , 2012 WY 139, ¶ 17, 287 P.3d 757, 761 (Wyo. 2012) ("The more rigorous requirement of W.R.A.P. 1.05 ... is that the order affects a ‘substantial right.’ "); Inman v. Williams , 2008 WY 81, ¶¶ 11, 17–18, 187 P.3d 868, 875, 876 (Wyo. 2008) (concluding the trial court's order was not appealable because it did not affect a substantial right). "To be...