IN THE SUPREME COURT
STATE OF NORTH DAKOTA
|Paul Dean Oie,|
|Case No. 20090365|
|State of North Dakota,|
APPEAL FROM THE ORDER OF DISMISSAL OF APPLICATION FOR POST CONVICTION RELIEF ENTERED BY THE DISTRICT COURT FOR THE SOUTH EAST JUDICIAL DISTRICT THE HONORABLE RICHARD W. GROSZ, PRESIDING ON NOVEMBER 10, 2009
|Ronald W. McBeth|
|Richland County Assistant State's Attorney|
|Richland County, North Dakota|
|Attorney for Plaintiff|
|413 3rd Ave. N.|
|Law Enforcement Center|
|Wahpeton, North Dakota 58075|
|Telephone : (701) 642-7766|
|TABLE OF CONTENTS|
|Table of Contents . i|
|Table of Authorities . . . . .||ii|
|Statement of Issues . . . . .||1|
|Statement of Case . . . . . .||2|
|A. Nature of Case and Course of Proceedings . . . . .|
|B. Statement of Facts . . . .|
|Argument . . . . . .||3|
|Conclusion . . . . .||7|
|TABLE OF AUTHORITIES|
|Steen v.State, 2007 ND 123, 736 N.W.2d 457 3|
|Jensen v. State, 2004 ND 200, 688 N.W.2d 374 . . . . . 4|
|Johnson v. State, 2004 ND 130, 681 N.W.2d 769 . . .||4|
|Garcia v. State, 2004||4|
|Ungar v. North Dakota State Univ., 2006 ND 185, 721 N.W.2d 16 . .|
|State v. Oie, 2005 ND 160, 704 NW2d 573 . . . 6|
|Oie v. State, 2007 ND 172, 742 N.W.2d 839 . . 6|
Statutes, Codes and Rules
|N.D.C.C. §29-32.1-12 . . . .||3, 4|
|N.D.R.Crim.P. Rule 11(e) . . .4|
STATEMENT OF ISSUES
Did the trial court err in denying Oie the right to an evidentiary hearing on the Application for Post-Conviction Relief?
STATEMENT OF CASE
A. Nature of Case and Course of Proceedings
The Respondent/Appellee does not contest the nature of case and course of proceedings as set out by the Petitioner/Appellant, Paul Dean Oie (Oie).
B. Statement of Facts
The Respondent/Appellee does not dispute the facts as written by the Petitioner/Appellant except to point out that on June 23, 2004, Oie was charged with only one count of Gross Sexual Imposition and it wasn't until July 16, 2004, the complaint was amended to add the second count.
The trial court judge's (Judge Richard W. Grosz) dismissal on November 10, 2009, of Oie's Application for Post-Conviction Relief should be upheld. As Judge Grosz indicated in his denial of Oie's Motion to Dismiss Count II, which led to Oie's current application for post-conviction relief, " The gist of Defendant's claim is that there is no evidence (factual basis) to support Defendant's plea of guilty to Count II concerning the above- entitled matter. This issue was reviewed and resolved against the Defendant on Defendant's direct appeal to the North Dakota Supreme Court" Judge Grosz called this filing to be frivolous and dismissed the motion as a matter of law. See Order of Dismissal dated June 26, 2009. Oie then filed a Motion to Dismiss and Vacate Sentence of Count II, GSI of M.A. Judge Grosz, as a matter of law, also dismissed this motion, as it was frivolous, since it was the same in all relevant particulars to Oie's motion of June 24, 2009. See Order of Dismissal dated November 10, 2009. Oie then appealed this dismissal, which is basically a rehash of all of his arguments since his original sentence. Nothing new has been raised by Oie and therefore, Judge Grosz was correct in denying Oie's motion. As this Court stated in Steen v. State, 2007 ND 123, 736 N.W.2d 457 (2007):
[¶13] An application for post-conviction relief may be denied under N.D.C.C. § 29-32.1-12 on grounds of res judicata or misuse of process. Relief may be denied as res judicata under N.D.C.C. § 29-32.1-12(1) if the same claim or claims were "fully and finally determined in a previous proceeding." Under N.D.C.C. § 29-32.1-12(2), misuse of process occurs when a post-conviction relief applicant "[p]resents a claim for relief which the applicant inexcusably failed to raise either in a proceeding leading to judgment of conviction and sentence or in a previous postconviction proceeding," or if the applicant "[f]iles multiple applications containing a claim so lacking in factual support or legal basis as to be frivolous." See, e.g., Jensen v. State, 2004 ND 200, ¶9, 688 N.W.2d 374. "Post-conviction proceedings are not intended to allow defendants multiple opportunities to raise the same or similar issues, and defendants who inexcusably fail to raise all of their claims in a single post-conviction proceeding misuse the post-conviction process by initiating a subsequent application raising issues that could have been raised in the earlier proceeding." Id. (citing Johnson v. State, 2004 ND 130, ¶13, 681 N.W.2d 769). This Court has explained that "[d]efendants are not entitled to post-conviction relief when their claims are merely variations of previous claims that have been rejected." Id. (citing Garcia v. State, 2004 ND 81, ¶22, 678 N.W.2d 568). Generally, the applicability of res judicata is a question of law and is fully reviewable on appeal. See Ungar v. North Dakota State Univ., 2006 ND 185, ¶10, 721 N.W.2d 16.
State v. Steen, 2007 ND at ¶13.
Oie's claims are nothing more than "merely variations of previous claims that have been rejected." Steen at ¶13, citing Garcia v. State, 2004 ND 81, ¶22, 678 N.W.2d 568.
A review of this file shows that Oie's claims are merely variations of his previous claims, all of which have been rejected. On September 1, 2004, Oie waived preliminary hearing and pled guilty under an open plea to two counts of Gross Sexual Imposition. There was no plea agreement in this case. (See TT. September 1, 2004, page 4, lines 2 13). Rule 11(e) N.D.R.Crim.P. requires the court to establish a factual basis for a plea of guilty and the trial court judge made that request. (See TT. September 1, 2004, page 6, line 5). Granted the factual basis given by the State was somewhat confusing, as victim two is the Oie's step-daughter, not daughter, and both victims were approximately the same age. However, a factual basis was established to the trial court's satisfaction and the trial court accepted Oie's guilty pleas to both Counts on an Alford basis and allowed Oie the right to withdraw his guilty plea to either or both counts after the pre-sentence investigation was completed and at time of sentencing. (See TT. September 1, pages 16, 17, and 18).
Oie is not contesting the factual basis as to Count 1. As to Count 2, it first appeared that the touching of M.A. only occurred in Cass County, based on what the social worker told the trial court. (See TT. September 1, 2004, page 11, lines10 - 17). At the time the trial court was hesitant to accept the Oie's guilty plea to Count 2. Further inquiry revealed that Oie told his wife that he touched the victim as set out in Count 2 and also that the victim in Count 1 indicated that Oie had also touched the victim in Count 2 the same day. (See TT. September 1, 2004, page 10, lines 6 19; page 11, line 19 through page 12, line 5; and page 14, line 2 through 17).
At sentencing on December 27, 2004, Oie did not withdraw his guilty pleas to either or both counts and as indicated in the pre-sentence report, Oie admitted the allegation in Count 1 and had no recollection of Count 2, claiming he was intoxicated at the time. The trial court accepted his guilty pleas and Oie was sentenced accordingly. The trial court cleared up any issues concerning a factual basis before Oie was sentenced and the trial court was satisfied that there was a factual basis for the Oie's pleas. (See TT. December 27, 2004, page 36, line 11 25). Oie appealed this conviction claiming that there wasn't sufficient evidence for a factual basis for Count II. Oie's conviction was upheld by this Court in State v. Oie, 2005 ND 160, 704 N.W.2d 573. Oie subsequently filed for post-conviction relief claiming ineffectiveness of counsel, all relating to Count II. This Court upheld the trial court's denial of post-conviction relief in Oie v. State, 2007 ND 172, 742 N.W.2d 839. Oie then file a Motion to Dismiss Count II on June 25, 2009, raising the same issues, which had already been previously litigated. Judge Grosz dismissed this motion on June 26, 2009, and Oie then filed this post-conviction relief application on November 11, 2009, and again raised the same issues previously litigated. Judge Grosz dismissed this post-conviction relief application because the filing was frivolous as Oie's claims were nothing more variations of his previous claims. Thus, a review of Oie's claims shows that they all concerned Count II of the charges against him and all of the allegations he raised in his current post-conviction relief application were all raised and discussed in those earlier claims to the trial court and to this Court.
The trial court was correct in denying Oie the right to an evidentiary hearing on the Application for Post-Conviction Relief
|Dated this _ day of January, 2010.|
|Ronald W. McBeth, (ND#03538)|
|Assistant State's Attorney|
|Richland County State's Attorney's Office,|
|L.E.C., 413 3rd Ave. N.|
|Wahpeton, ND 58075|