Finlayson v. State

2015 UT App 31
_________________________________________________________

THE UTAH COURT OF APPEALS

JEFFERY RUSSELL FINLAYSON,
Petitioner and Appellant,
v.
STATE OF UTAH,
Respondent and Appellee.

Amended Opinion1
No. 20130151-CA
Filed February 12, 2015

Third District Court, Salt Lake Department
The Honorable Deno G. Himonas
No. 050901691

Landon A. Allred,2 Attorney for Appellant
Sean D. Reyes and Erin Riley, Attorneys
for Appellee

JUDGE JAMES Z. DAVIS authored this Opinion, in which JUDGE
STEPHEN L. ROTH and SENIOR JUDGE RUSSELL W. BENCH
concurred.3

1. This is the second Amended Opinion modifying the Opinion
issued October 23, 2014, and replaces both the original Opinion and
the first Amended Opinion. In this version, the discussion in
footnote 4 has been expanded.

2. On August 21, 2014, Landon A. Allred withdrew as counsel, at
Finlayson’s request.

3. The Honorable Russell W. Bench, Senior Judge, sat by special
assignment as authorized by law. See generally Utah R. Jud. Admin.
11-201(6).
 Finlayson v. State

DAVIS, Judge:

¶1 Jeffery Russell Finlayson appeals the district court’s order
dismissing his petition for post-conviction relief for failure to
prosecute. We affirm.

BACKGROUND

¶2 In 1995, Finlayson was convicted of rape, forcible sodomy,
and aggravated kidnapping. On January 27, 2005, Finlayson filed
a pro se petition for post-conviction relief. Over the course of the
next two years, Finlayson filed various motions related to his
petition. In April 2006, the State filed a motion for summary
judgment, to which Finlayson did not respond. In August 2006,
Finlayson asked the district court to appoint counsel for him. In
January 2007, pro bono counsel appeared on behalf of Finlayson.
In February 2008, Finlayson’s counsel obtained a court order to
examine and copy the handwritten notes referred to by the victim
during her trial testimony. Between February 2008 and June 2011,
Finlayson and his counsel allegedly met occasionally to research
the case, but during this time, counsel “did not file any materials
with the Court, nor did he have any contact with counsel for the
State.” In August 2008, Finlayson was paroled.

¶3 In June 2010, Finlayson was reincarcerated in connection
with new charges arising from another incident. In September 2011,
he was convicted on charges of aggravated kidnapping, aggravated
assault, and damage to or interruption of a communication device,
for which he was sentenced to six years to life in prison, up to five
years in prison, and 180 days in jail, respectively. These sentences
were to run concurrently with each other and with any other
sentences Finlayson was already serving.

¶4 In late 2010, Finlayson’s counsel allegedly obtained new
evidence pertaining to the post-conviction petition but did not
contact the State or file anything with the court. In June 2011,
Finlayson sent a letter to the district court requesting an update on

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the status of his case, at which point he learned that the case file
had been destroyed in February 2009. Nearly a year later, in May
2012, Finlayson requested a status hearing on his case, which was
held on June 1, 2012. Following the status hearing, the State moved
to dismiss the case for failure to prosecute. Subsequently, Finlayson
filed a motion to amend and an opposition to the State’s 2006
motion for summary judgment.

¶5 On November 9, 2012, the district court heard argument on
all pending motions. In a memorandum decision issued January 10,
2013, the court granted the State’s motion to dismiss for failure to
prosecute and denied the remaining motions as moot. Finlayson
appeals.

ISSUE AND STANDARD OF REVIEW

¶6 Finlayson asserts that the district court abused its discretion
by dismissing his petition for post-conviction relief for failure to
prosecute.4 “In reviewing a trial court’s decision to dismiss for
failure to prosecute, we accord the trial court broad discretion and

4. Finlayson raises several pro se arguments in addition to those
asserted by his appellate counsel. First, Finlayson repeats counsel’s
arguments asserting that the court should have conducted a
threshold interests of justice analysis and challenging the court’s
findings regarding the Westinghouse factors. Because we have
addressed counsel’s treatment of these issues, and Finlayson’s
arguments add nothing to the analysis, we need not separately
consider his arguments. Finlayson also argues that the district court
violated his constitutional rights and committed structural error by
destroying his case file and denying his requests for an evidentiary
hearing and other supplemental proceedings. We decline to
consider these arguments because they were not preserved for
appeal. See State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346 (“[T]he
preservation rule applies to every claim, including constitutional
questions . . . .”).

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 Finlayson v. State

do not disturb its decision absent an abuse of discretion and a
likelihood that an injustice has occurred.” Hartford Leasing Corp. v.
State, 888 P.2d 694, 697 (Utah Ct. App. 1994).

ANALYSIS

I. The District Court Was Not Required to Conduct a Threshold
Interests of Justice Analysis.

¶7 In Westinghouse Electric Supply Co. v. Paul W. Larsen
Contractor, Inc., 544 P.2d 876 (Utah 1975), our supreme court
identified five factors district courts should consider in determining
whether to dismiss an action for failure to prosecute:

(1) the conduct of both parties; (2) the opportunity
each party has had to move the case forward; (3)
what each party has done to move the case forward;
(4) the amount of difficulty or prejudice that may
have been caused to the other side; and (5) most
important, whether injustice may result from the
dismissal.

Meadow Fresh Farms, Inc. v. Utah State Univ. Dep’t of Agric. & Applied
Sci., 813 P.2d 1216, 1219 (Utah Ct. App. 1991) (internal quotation
marks omitted) (citing Westinghouse, 544 P.2d at 879). Although the
district court considered these factors in ruling on the State’s
motion to dismiss, see infra ¶¶ 11–21, Finlayson asserts that it did
not adequately “consider special circumstances or the interests of
justice in its decision.”

¶8 Finlayson argues that criminal defendants seeking post-
conviction relief should be “somewhat ‘insulated’ from motions
related to timeliness.” In support of this argument, he relies on our
supreme court’s interpretation of the “interests of justice” exception
to the Post-Conviction Remedies Act’s one-year statute of

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limitations.5 The supreme court’s analysis prioritizes “individual
rights” over “public interest in finality of judgments” and “costs to
reprosecution,” Adams v. State, 2005 UT 62, ¶ 23, 123 P.3d 400, and
establishes a sliding-scale test examining “both the meritoriousness
of the petitioner’s claim and the reason for an untimely filing,” id.
¶ 16. In light of this analysis, Finlayson asserts that a motion to
dismiss for failure to prosecute should be held to a higher standard
in the post-conviction context than in other contexts and that the
court should be required to consider whether the interests of justice
preclude dismissal.

¶9 We agree with Finlayson that district courts should not
disregard the importance of a defendant’s individual rights in
ruling on a motion to dismiss for failure to prosecute. However, the
Westinghouse factors already require the district court to consider
“whether injustice may result from the dismissal.” Westinghouse,
544 P.2d at 879. The Westinghouse court characterized this factor as
the “most important” of the five and cautioned that a district court
abuses its discretion by giving undue weight to expediency over

5. In 2008, the Utah Legislature replaced the interests of justice
exception with a provision tolling the statute of limitations “for any
period during which the petitioner was prevented from filing a
petition due to state action in violation of the United States
Constitution, or due to physical or mental incapacity,” Act of May
5, 2008, ch. 288, § 6, 2008 Utah Laws 1845, 1846 (codified at Utah
Code Ann. § 78B-9-107 (LexisNexis 2012)), and “during the
pendency of the outcome of a petition asserting” “exoneration
through DNA testing” or “factual innocence,” Act of May 5, 2008,
ch. 358, § 1, 2008 Utah Laws 2296, 2296 (codified at Utah Code Ann.
§ 78B-9-107). Although the interests of justice exception was in
effect at the time Finlayson filed his petition for post-conviction
relief, it has no direct application to his case because Finlayson’s
petition was dismissed for failure to prosecute, not denied as
untimely. The supreme court’s analysis of the exception is therefore
relevant only to the extent that it discusses the value we should
place on judicial economy when weighed against the individual
rights of criminal defendants.

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 Finlayson v. State

justice. Id. Thus, where the Westinghouse factors are appropriately
applied, there is no danger that the “continued imprisonment of
one who has been deprived of fundamental rights” would be
justified by “the mere passage of time.” Julian v. State, 966 P.2d 249,
254 (Utah 1998). We are therefore not convinced that the district
court was required to conduct a separate interests of justice
analysis in ruling on the State’s motion to dismiss.

II. The District Court Was Not Required to Consider Other
Pending Motions Before Ruling on the Motion to Dismiss.

¶10 Finlayson next argues that the district court abused its
discretion by dismissing his petition for post-conviction relief while
other, related motions were pending. Because the district court
granted the motion to dismiss for failure to prosecute, it concluded
that the other motions were moot. The district court’s ruling on the
merits of the pending motions would have had no impact on its
ultimate determination to dismiss the case for failure to prosecute,
and we can therefore see no purpose in requiring the court to rule
on motions that dismissal would render moot. Furthermore, while
the dismissal may have “closed the courthouse doors” to Finlayson,
this did not occur before Finlayson was given notice and an
opportunity to be heard regarding the propriety of the dismissal.
See generally McBride v. Utah State Bar, 2010 UT 60, ¶ 16, 242 P.3d
769 (“Procedural due process requires, [a]t a minimum, timely and
adequate notice and an opportunity to be heard in a meaningful
way.” (alteration in original) (citations and internal quotation
marks omitted)). Thus, the district court did not abuse its discretion
in dismissing Finlayson’s petition for post-conviction relief without
ruling on the merits of the other pending motions.

III. The District Court Did Not Exceed Its Discretion in
Determining that the Westinghouse Factors Weighed in Favor of
Dismissal.

¶11 Finally, Finlayson asserts that the district court misapplied
the Westinghouse factors because (1) in analyzing the first three
factors, it considered only Finlayson’s dilatory actions, not the

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 Finlayson v. State

State’s; (2) it considered only prejudice to the State, not to
Finlayson; and (3) it gave insufficient weight to the injustice factor.
We address each of these arguments in turn.

A. Conduct of the Parties in Moving the Case Forward

¶12 The district court found that although the State had not
taken action to move the case along, it had done nothing to hinder
Finlayson from doing so. Although the Westinghouse factors
consider “the conduct of both parties” to be relevant to whether a
case should be dismissed for failure to prosecute, see Westinghouse
Elec. Supply Co. v. Paul W. Larsen Contractor, Inc., 544 P.2d 876, 879
(Utah 1975) (emphasis added), “[w]hat each party has done to
move the case forward can only be evaluated in light of each
party’s responsibility concerning the case,” Hartford Leasing Corp.
v. State, 888 P.2d 694, 698 n.2 (Utah Ct. App. 1994). “[T]he plaintiff,
as the party initiating the lawsuit, has the primary responsibility to
move the case forward,” while “[t]he defendant’s responsibility is
limited to responding timely to the action, expeditiously attending
to discovery, and moving any counterclaim along.” Id. Thus,
“inaction by the defendant to move the plaintiff’s claim along is
irrelevant unless that inaction constitutes some actual hindrance,
i.e., where the plaintiff can show that the defendant’s inaction
contributed to [the plaintiff’s] own delays.” Cheek v. Clay Bulloch
Constr., Inc., 2011 UT App 418, ¶ 8, 269 P.3d 964 (alteration in
original) (citation and internal quotation marks omitted).

¶13 Finlayson asserts that he was hindered in prosecuting his
case by the State’s representation that it “was in no hurry to resolve
the case” and by the court’s destruction of his case file. The district
court considered and rejected these arguments, concluding that
they had little to no impact on Finlayson’s three years of inactivity
in prosecuting his case. The district court found it “unreasonable to
conclude that the State’s comment hindered [Finlayson’s] ability to
prosecute the action or otherwise contributed to [Finlayson’s]
complete lack of action for several years.” It also found that
because neither Finlayson nor his attorney had made any attempt
to access the court’s files between February 2008 and June 2011, the

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 Finlayson v. State

destruction of the files in February 2009 could not have contributed
to the delay. We agree with the district court that the State’s and
the court’s actions do not appear to have affected Finlayson’s
ability to pursue his case.

¶14 Finlayson also asserts that the district court abused its
discretion in finding that he had been dilatory in pursuing his case
because he and his attorney “had been diligently working on
researching and drafting an amended petition.” However, the
district court found that between February 2008 and June 2011
Finlayson had no contact with either the State or the court and did
not file anything with the court; that his contact with the court
between June 2011 and May 2012 “related only to his information
requests”; and that he “failed to take any formal action to prosecute
his claim or amend his petition until May 2012.” We agree with the
district court that Finlayson’s continuing to work on the case with
his attorney was insufficient to constitute diligent prosecution of
his case where he made no effort to stay in touch with either the
State or the court. Cf. Cheek, 2011 UT App 418, ¶¶ 2, 14–15 (finding
it relevant that although “very little progress” was documented in
the court’s file for five years, the parties themselves had
“consistent,” if “infrequent,” contact throughout that time, and
observing that had the plaintiff “failed entirely to communicate
with either [the other party] or the court for an extensive period
immediately prior to the [defendant’s] motion [to dismiss], the
court would . . . have been more justified in dismissing”).
Accordingly, it was not an abuse of discretion for the district court
to conclude that the first three Westinghouse factors weighed against
Finlayson.

B. Prejudice

¶15 Finlayson next asserts that in analyzing the fourth
Westinghouse factor—“what difficulty or prejudice may have been
caused to the other side,” Westinghouse, 544 P.2d at 879—the district
court gave undue weight to the prejudice the State might suffer if
the motion were not granted. Finlayson also asserts that the district
court failed to consider the potential prejudice to Finlayson.

20130151-CA 8 2015 UT App 31
 Finlayson v. State

¶16 We reject Finlayson’s assertion that the district court should
have “favored protecting the innocent” and disregarded the
potential prejudice to the State caused by missing evidence and
faded witness memories. Finlayson relies on the supreme court’s
decision in State v. McClellan, 2009 UT 50, 216 P.3d 956, in support
of this assertion. See id. ¶¶ 27–29. However, Finlayson’s reliance on
McClellan is misplaced. McClellan presented an unusual set of
circumstances where a defendant’s appeal of right was delayed for
twenty years due to circumstances outside of his control. Id. ¶ 28.
The court expressed reluctance to reverse, noting that as a result of
the delay, much of the record and many of the exhibits were lost or
destroyed and that a retrial was not fair to the victim. Id. ¶¶ 27–29.
Nevertheless, because “our constitutional system is primarily
designed to protect the innocent, not punish the guilty,” the
supreme court determined that a new trial was warranted despite
the potential consequences to the State and the victim. Id. ¶ 29.

¶17 The unusual circumstances faced by the supreme court in
McClellan are simply not comparable to those we face today. First,
unlike the McClellan defendant, who was not responsible for the
delays in that case, Finlayson is primarily responsible for failing to
move his petition forward. Second, a post-conviction proceeding
is ultimately civil in nature, see Utah Code Ann. § 78B-9-102(1)
(LexisNexis 2012), and does not implicate the same constitutional
protections as do criminal prosecutions, cf. Hutchings v. State, 2003
UT 52, ¶ 20, 84 P.3d 1150 (holding that a defendant does not have
the right to be represented by counsel in post-conviction
proceedings, which are civil proceedings). Finally, the question
before us is not whether the State would be prejudiced in retrying
the criminal case, but whether it would be prejudiced in defending
against the civil petition for post-conviction relief. We are
unconvinced that potential prejudice to the State in this context
should be disregarded by a district court ruling on a motion to
dismiss for failure to prosecute.

¶18 As to Finlayson’s assertion that the district court did not
adequately consider the potential prejudice to him, we observe that
the prejudice factor focuses on prejudice “caused to the other side.”

20130151-CA 9 2015 UT App 31
 Finlayson v. State

See Westinghouse Elec. Supply Co. v. Paul W. Larsen Contractor, Inc.,
544 P.2d 876, 879 (Utah 1975) (emphasis added). Presumably any
dismissal for failure to prosecute would be prejudicial to the
petitioner whose case is dismissed, but the injustice factor
adequately guards against any unfair prejudice that may result to
the petitioner. Thus, we reject Finlayson’s assertion that the fourth
Westinghouse factor required the district court to examine the
potential prejudice to him.6

C. Injustice

¶19 Finally, Finlayson asserts that the district court failed to give
proper weight to the “most important” Westinghouse
factor—“whether injustice may result from the dismissal.” See id.
Finlayson argues that injustice will result from the dismissal
because he will be precluded from presenting newly discovered
evidence and because dismissal could increase the time he spends
in prison.

¶20 First, as the district court observed, Finlayson’s claims based
on newly discovered evidence were never formally asserted
because the court denied his petition to amend as moot after
dismissing the case. Thus, to the extent that “a new petition would
be timely or otherwise well-taken,” Finlayson “would be free to
seek to raise those claims in a new petition for post-conviction
relief.” Finlayson asserts that he would face additional barriers if he
filed a new petition for post-conviction relief, citing the State’s
argument below that his post-conviction claims were barred
because they were previously addressed at trial or on appeal.

6. Even if the district court were required to consider prejudice to
Finlayson, the potential prejudice Finlayson raises in his brief is
irrelevant. Finlayson asserts that, like the State, he will be
prejudiced by missing evidence if he is permitted to pursue his
petition. But Finlayson’s assertion of prejudice in this context does
nothing to tip the scale toward denying the State’s motion to
dismiss because such a denial would not avoid the prejudice
Finlayson asserts.

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 Finlayson v. State

However, the State’s argument is based on the merits of
Finlayson’s post-conviction claims, and we fail to see how this
argument, if meritorious, would do any more to defeat a new post-
conviction petition based on newly discovered evidence than it
would to defeat Finlayson’s existing petition.

¶21 Finlayson’s argument that the dismissal will increase the
time he spends in prison is likewise unpersuasive. Finlayson is
currently serving a sentence based on new convictions that is to run
concurrently to any sentence he may still be serving in connection
with this case.7 Thus, even if Finlayson’s petition for post-
conviction relief were ultimately granted, and even if his conviction
were ultimately overturned, he would not be released from prison
by reason thereof. For these reasons, the district court did not err
in determining that injustice would not result from dismissal of the
petition.

CONCLUSION

¶22 We determine that the district court did not exceed its
discretion by granting the State’s motion to dismiss for failure to
prosecute. The district court was not required to conduct an
interests of justice analysis independent of its analysis of the
Westinghouse factors, and it was not required to rule on other
pending motions prior to ruling on the State’s motion to dismiss.
Furthermore, the district court appropriately analyzed the
Westinghouse factors. Accordingly, we affirm.

7. In subsequent pleadings before this court, Finlayson has
suggested that the Board of Pardons has effectively extended his
sentence. We are not aware of any support for this assertion in the
record.

20130151-CA 11 2015 UT App 31