IN THE SUPREME COURT
STATE OF NORTH DAKOTA
|Edward Dean Waslaski,|
|Supreme Court No. 20120342|
|Petitioner and Appellant,|
|Stark County Case No. 45-00-K-00599|
|The State of North Dakota,|
|Respondent and Appellee.|
APPEAL FROM ORDER
FROM THE DISTRICT COURT
STARK COUNTY, NORTH DAKOTA
SOUTHWEST JUDICIAL DISTRICT
HONORABLE H. PATRICK WEIR
|State Bar ID #06020|
|ND Public Defender=s Office|
|135 Sims St Suite 221|
|Dickinson, ND 58601|
|Attorney for Petitioner|
|TABLE OF CONTENTS|
|Table of Authorities . ¶1|
|Statement of the Issues .... ¶3|
|Statement of the Case . ¶5|
|Statement of the Facts||¶7|
|Law and Argument .||¶11|
|Certificate of Service ...||¶18|
|[¶1] TABLE OF AUTHORITIES|
|Flattum-Riemers v. Flattum-Riemers, 2003 ND 70, ¶ 7, 660 N.W.2d 558||¶12|
|Schaefer v. Souris River Telecomm. Coop., 2000 ND 187, 618 N.W.2d 175.||¶12|
[¶3] STATEMENT OF THE ISSUES
[¶4] Under North Dakota Rules and case law, does the District Court abuse its discretion in denying a Petitioner's Motion for Reconsideration, when:
a. The District Court denied the original Motion for Post Conviction Relief because "of the temporal distance from the events in question and the lack of any supporting evidence beyond one party's recollection"; and
b. The Petitioner's Motion for Reconsideration included new evidence (in the form of affidavits) that clearly alleviated the Court prior misgivings.
[¶5] STATEMENT OF THE CASE
[¶6] This is an appeal from the Stark County District Court Order Denying Motion for Reconsideration dated August 28, 2012. (Attached as Appendix page 27). Petitioner filed a Brief for Post-Conviction Relief on February 24, 2012. (Attached as pages 5-11). The State responded on March 26, 2012. A hearing on Post-Conviction Relief was held at the Stark County Courthouse on April 17, 2012. Following post-hearing briefing on the subject of presumptions, the Court issued its Memorandum Opinion on May 29, 2012 denying Petitioner's request for Post-Conviction Relief. (Attached as Appendix pages 12-19). Petitioner then moved for the Court to reconsider its prior ruling in light of new evidence. (Attached as Appendix pages 20-26). The Court denied that Motion for Reconsider and Petitioner has appealed. In this filing, the Petitioner argues that the Court's failure to reconsider its ruling in light of newly-offered evidence was an abuse of discretion. Petitioner prays that the ruling be overturned and remanded for further proceedings.
[¶7] STATEMENT OF THE FACTS
[¶8] On July 15, 2011 the petitioner filed a motion for post-conviction relief alleging that his constitutional rights were violated in that he was not properly informed of his rights to counsel, to jury trial, to confrontation, to be told of the maximum and minimum jail terms possible and to appeal. Petitioner alleged that because he did not know of his rights prior to entering his guilty plea, that he did not voluntarily and knowingly waive said rights when he did so. In making his motion, Petitioner requested that the appropriate transcripts of the sentencing hearing be produced. Shortly thereafter, the undersigned was appointed to assist the Petitioner in getting those transcripts and in preparing any supplemental motions. The undersigned also requested that transcripts be made of the hearings in question. In late December, 2011 the undersigned was informed by the Court's reporter that the transcripts were no longer available and could not be reproduced.
[¶9] The District Court denied the Motion for Post Conviction Relief. (Appendix pages 12-19). In doing so, it was quite apparent that the District Court agreed with the Petitioner's method of recreating an unavailable record but did not find Mr. Waslaski's own recollection either support or persuasive.
[¶10] Petitioner received supplemental affidavits in support of the Petitioner's original Motion for Post Conviction relief shortly after the District Court's denial. This new evidence appeared to remedy the District Court's reasons for its denial. The Petitioner therefore filed a Motion for Reconsideration and included this new evidence. (Appendix pages 20-26). The District Court denied the Petitioner's Motion for Reconsideration on August 28, 2012. (Appendix page 27).
 LAW AND ARGUMENT
[¶12] The District Court abused its discretion in denying the Petitioner's Motion for Reconsideration. An abuse of discretion by the district court is never assumed, and the burden is on the party seeking relief affirmatively to establish it. Flattum-Riemers v. Flattum-Riemers, 2003 ND 70, ¶ 7, 660 N.W.2d 558. The district court abuses its discretion only when it acts in an arbitrary, unreasonable, or unconscionable manner, or when its decision is not the product of a rational mental process leading to a reasoned determination. Schaefer v. Souris River Telecomm. Coop., 2000 ND 187, ¶ 10, 618 N.W.2d 175. The party seeking relief must show more than the district court made a "poor" decision, but that it positively abused the discretion it has under the rule. Flattum-Riemers, at ¶7.
[¶13] It appears clear that while the Court agreed with the Petitioner's method of reconstructing a hearing for which a transcript is unavailable, it did not find Mr. Waslaski's own recollection either supportive or persuasive. Indeed, in the Court's Opinion denying the Petitioner's request for relief, it stated that "petitioner's bare assertions based on twelve-year-old memories are insufficient to reconstruct the record." (Appendix page 17). This, I cannot alleviate. I venture to guess that any judge, faced with having to piece together a decade-old record, would be uncomfortable in relying only on the account of the Petitioner. However, the Court also stated that "because of the temporal distance from the events in question and the lack of any supporting evidence beyond one party's recollection, the reconstruction offered in this case fails to meet the required burden." (Appendix pages 17-18). This would seem to suggest that the Court's decision hinged quite heavily on the failure of the Petitioner to call witnesses to corroborate his account. This I can remedy. Since the opinion was filed, the undersigned was contacted by two individuals with personal knowledge of the events of that day. In its motion for reconsidering, the Petitioner provided the Court with Affidavits confirming the Petitioner's account. (Appendix pages 23-26).
[¶14] In their affidavits, both witnesses explained their inability to be present at the prior Court hearing. One had secured a new job and the other was unable to get time off from his current one. They also both explain very clearly that Mr. Waslaski was made aware of his right by neither the judge nor his Defense counsel. This certainly remedies the lack of corroboration the Court found so damning in its original Opinion.
[¶15] In denying the Petitioner's Motion for Reconsideration, in light of this new evidence, the District Court acted in an unreasonable, unconscionable and arbitrary manner. There is no logical reason, once faced with a solution to the problems outlined in its original decision, to deny Petitioner's Motion to Reconsider. And in doing so despite this fact, the Court abused its discretion.
[¶17] Petitioner respectfully requests that this Court reverse the District Court's order denying the Motion for Reconsideration and remand the case for further proceedings.
|Dated: November 19, 2012.||ND PUBLIC DEFENDER'S OFFICE|
|Attorneys for Petitioner|
|135 Sims Street - Suite 221|
|Dickinson, ND 58601|
|State Bar ID #06020|