IN THE SUPREME COURT
OF THE STATE OF NORTH DAKOTA
|Timothy Terrill Davis,|
|Appellant||Supreme Court No. 20130073|
|Cass Co. No. 09-2012-CV-03359|
|State of North Dakota,|
APPEAL FROM THE JUDGMENT SUMMARILY DISMISSING PETITIONER'S APPLICATION FOR POST-CONVICTION RELIEF BY THE DISTRICT COURT FOR THE EAST CENTRAL JUDICIAL DISTRICT, THE HONORABLE JOHN C. IRBY PRESIDING,
DATED JANUARY 17, 2013
BRIEF OF APPELLANT
|By: Mark T. Blumer|
|Attorney at Law|
|ND Bar ID#: 04669|
|P.O. Box 7340|
|Fargo, ND 58106|
|Telephone: (701) 893-5529|
|TABLE OF CONTENTS|
|Table of Contents..p.2|
|Table of Authoritiesp.3|
|Statement of the Issues...¶1,11|
|Statement of the Case..¶2|
|Facts of the Case..¶7|
|Law, Argument and Jurisdiction...¶10|
|1. Whether the Trial Court erred in summarily dismissing Timothy Terrill Davis'|
|Application for Post-Conviction Relief?.¶1,11|
|TABLE OF AUTHORITIES|
|Bell v. State, 2001 ND 188, 636 N.W.2d 438..¶15|
|Clark v. State, 2008 ND 234, 758 N.W.2d 900.¶13|
|DeCoteau v. State, 1998 ND 199, 586 N.W.2d 156)..¶12,22|
|Eagleman v. State, 2004 ND 6, 673 N.W.2d 241..¶16|
|Everett v. State, 2008 ND 199, 757 N.W.2d 530.¶15|
|Heyen v. State, 2001 ND 126, 630 N.W.2d 56¶15|
|Owens v. State, 1998 ND 106, 578 N.W.2d 542¶12|
|State v. Bender, 1998 ND 72, 576 N.W.2d 210....¶16,17,22,25|
|State v. Foster, 1997 ND 8, 560 N.W.2d 194..¶13|
|State v. Wilson, 466 N.W.2d 101 (N.D. 1991)..¶16,22,25|
|Syvertson v. State, 2000 ND 185, 620 N.W.2d 362¶15|
|STATUTORY MATERIALS AND RULES OF PROCEDURE|
|N.D.C.C. Sect. 29-28-03....¶10|
|N.D.C.C. Sect. 29-28-06..¶10|
|N.D.C.C. Sect. 12.1-32.1...¶14|
|N.D.C.C. Sect. 12.1-32.1-01(1).¶14|
|N.D.C.C. Sect. 12.1-32.1-01(2)....¶14|
|N.D.C.C. Sect. 12.1-32.1-09(1)..¶14|
|N.D.C.C. Sect. 12.1-32.1-09(2)¶14|
|N.D.C.C. Sect. 12.1-32.1-04..¶16|
|N.D.C.C. Sect. 12.1-32.1-10..¶23|
|N.D.C.C. Sect. 12.1-32.1-10(2)..¶24|
|N.D.C.C. Sect. 12.1-32.1-12(1)..¶15|
|N.D.C.C. Sect. 12.1-32.1-12(2)(a)..¶15|
STATEMENT OF THE ISSUES
[¶1] Whether the Trial Court erred in summarily dismissing Timothy Terrill Davis' Application for Post-Conviction Relief?
STATEMENT OF THE CASE
[¶2] This is an appeal from the Cass County Judgment summarily dismissing Timothy Terrill Davis' ("Davis") application for post-conviction relief entered by the Honorable John C. Irby filed January 17, 2013. (Appendix ("A") 6, Docket ("D") 56, A. 27-28).
[¶3] On December 2, 2011, Davis was charged in Cass County District Court, Court File No. 09-2011-CR-4231, with the crimes of Count 1: Theft of Property, a class C felony, and Count 2: Abuse or Neglect of a Child, a class C felony. (A. 3). Davis was appointed an attorney to represent him in District Court. On June 25, 2012, an Amended Complaint was filed and Davis entered a guilty plea to Count 1: Theft of Property, a class C felony and Count 2: Contributing to the Deprivation of a Minor, a class A misdemeanor. (A. 4). Davis was sentenced in Count 1 to serve two years, two hundred and seventy-eight (278) days with the North Dakota Department of Corrections and Rehabilitation (NDDOC), and in Count 2 to serve one (1) year with the NDDOC) with credit for thirty-six (36) days. The sentences were to run concurrently. (A. 5-6).
[¶4] On October 31, 2012, Davis filed a pro se application for post-conviction relief. (A.1, D. 1, A. 7-16). The grounds listed by Davis in his Application was that Petitioner's court appointed counsel's deficient performance prejudiced petitioner's defense. Davis' Application requested that the underlying verdict be reversed and the criminal judgment and Information be dismissed with prejudice. Davis also request that the District Court grant and convene a hearing at the nearest possible date [on his Application].
[¶5] Davis was appointed an attorney to assist him regarding the application for post-conviction relief. (A. 1, D. 7). The State's Response to Petitioner's Application for Post-Conviction Relief, which requested summary dismissal of the Application, was filed November 27, 2012. (A. 1, D. 8, A. 17-22) and filed an Exhibit to State's Response to Application for Post-Conviction Relief (A. 1, D. 10, A. 21) which was a recording of the guilty plea and sentencing. A Reply to the State's Response to Petitioner's Application for Post-Conviction Relief, and request for summary dismissal, was not filed on behalf of Davis.
[¶6] On January 4, 2013, the District Court filed its Order Summarily Dismissing Petitioner's Application for Post-Conviction Relief. (A. 1, D. 12, A. 22-25) and a Judgment was entered on January 17, 2013. (A. 1, D. 15, A. 26). Davis timely filed a Notice of Appeal. (A. 1, D. 16, A. 27).
STATEMENT OF THE FACTS
[¶7] On December 2, 2011, Davis was charged in Cass County District Court, Court File No. 09-2011-CR-4231, with the crimes of Count 1: Theft of Property, a class C felony, and Count 2: Abuse or Neglect of a Child, a class C felony. (A. 3). The allegations were that Davis had taken two car stereos and/or some clothing from WalMart without paying for them and that a child was present with Davis as he loaded the items into a shopping cart and/or ran out of the store with the items.
[¶8] On June 25, 2012, Davis an Amended Complaint was filed and Davis entered a guilty plea to Count 1: Theft of Property, a class C felony and Count 2: Contributing to the Deprivation of a Minor, a class A misdemeanor. (A. 4). Davis was sentenced in Count 1 to serve two years, two hundred and seventy-eight (278) days with the North Dakota Department of Corrections and Rehabilitation (NDDOC), and in Count 2 to serve one (1) year with the NDDOC) with credit for thirty-six (36) days. The sentences were to run concurrently. (A. 5-6).
[¶9] As noted above in the Statement of the Case, Davis filed an application for post-conviction relief. A hearing on the Application was not held and the District Court entered an Order and Judgment summarily dismissing the Application. Davis subsequently filed this appeal.
LAW AND ARGUMENT
[¶10] Jurisdiction. Appeals shall be allowed from decisions of lower courts to the Supreme Court as may be provided by law. Pursuant to constitutional provisions, the North Dakota legislature enacted Sections 29-28-03 and 29-28-06, N.D.C.C., which provides as follows:
"An appeal to the Supreme Court provided for in this chapter may be taken
as a matter of right. N.D.C.C. § 29-28-03. An appeal may be taken by the
1. A verdict of guilty;
2. A final judgment of conviction;
3. An order refusing a motion in arrest of judgment;
4. An order denying a motion for new trial; or
5. An order made after judgment affecting any substantial right of the
N.D.C.C. § 29-28-06.
[¶11] ISSUE: Whether the Trial Court erred in summarily dismissing Duane Steen's Application for Post-Conviction Relief?
[¶12] This Court has indicated that an appeal from the summary dismissal of an application for post-conviction relief will be reviewed in a manner similar to the review of an appeal from a summary judgment motion. DeCoteau v. State, 1998 ND 199, ¶4. 586 N.W.2d 156. Accordingly, "[t]he party opposing the motion for summary disposition is entitled to all reasonable inferences at the preliminary stages of post-conviction proceeding, and is entitled to an evidentiary hearing if a reasonable inference raises a genuine issue of material fact. Id. (citing Owens v. State, 1998 ND 106, ¶13, 578 N.W.2d 542).
[¶13] The North Dakota Supreme Court "applies the 'clearly erroneous' standard set forth in Rule 52(a), N.D.R.Civ.P., when reviewing a trial court's findings of fact on an appeal from a final judgment or order under the Uniform Post-Conviction Procedure Act." State v. Foster, 1997 ND 8, ¶18, 560 N.W.2d 194. The District Court's findings of fact will not be disturbed on appeal unless clearly erroneous. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if it is not supported by any evidence, or if, although there is some evidence to support the finding, a reviewing court is left with a definite and firm conviction a mistake has been made. Clark v. State, 2008 ND 234, ¶11, 758 N.W.2d 900. The decision of the district court to summarily dismiss the post-conviction application without development of the record was clearly erroneous as it is not support by case law. Further, Steen raised a material issue of fact and should have been allowed to present the testimony at an evidentiary hearing.
[¶14] North Dakota law provides that "[a] person who has been convicted of and sentenced for a crime may institute a proceeding applying for relief" under Chapter 29-32.1 of the North Dakota Century Code (Uniform Post-Conviction Procedure Act) upon 8 enumerated grounds. N.D.C.C. 29-32.1-01(1). A post-conviction proceeding "is not a substitute for and does not affect any remedy incident to the prosecution in the trial court or direct review of the judgment of conviction or sentence in an appellate court." N.D.C.C. 29-32.1-01(2). North Dakota law provides that a "court may grant a motionfor summary disposition if the application, pleadings, any previous proceeding, discovery, or other matters of record show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." N.D.C.C. 29-32.1-09(1). "If an evidentiary hearing is necessary, the court may determine which issues of material fact are in controversy and appropriately restrict the hearing." N.D.C.C. 29-32.1-09(2).
[¶15] Additionally, North Dakota law states "[a]n application for post-conviction relief may be denied on the ground that the same claim or claims were fully and finally determined in a previous proceeding." N.D.C.C. 29-32.1-12(1). "A court may deny relief on the ground of misuse of process. Process is misused when the 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 post-conviction proceeding." N.D.C.C. 29-32.1-12(2)(a). The North Dakota Supreme Court has held that a misuse of process occurs in the following situations:
"1. if the defendant has inexcusably failed to raise an issue in a proceeding leading to judgment of conviction and now seeks review in a first application for post-conviction relief;
2. if the defendant inexcusably fails to pursue an issue on appeal which was raised and litigated in the original trial court proceedings, and finally[;]
3. if a defendant inexcusably fails to raise an issue in an initial post-conviction application."
Bell v. State, 2001 ND 188, ¶7, 636 N.W.2d 438. "[W]hen claims have been raised previously on direct appealthey cannot be raised again in a subsequent post-conviction application." Heyen v. State, 2001 ND 126, ¶9, 630 N.W.2d 56. Further, the North Dakota Supreme Court has held that it is a misuse of process when issues appropriate for review on direct appeal are not raised on direct appeal and no reason is given to the Court in the post-conviction relief application as to why those issues were not raised in the direct appeal. Syvertson v. State, 2000 ND 185, ¶17, 620 N.W.2d 362. Finally, the North Dakota Supreme Court has held that summary dismissal of post-conviction claims of ineffective assistance of counsel is generally not appropriate. Everett v. State, 2008 ND 199, ¶21, 757 N.W.2d 530.
[¶16] Applicants for post-conviction relief are not required to include all supporting evidentiary matter in their original post-conviction application. The State of North Dakota has adopted the Uniform Post-Conviction Procedure Act to control this matter. N.D.C.C. §29-32.1-04 provides the rules to follow regarding post-conviction applications:
"1. The application must identify the proceedings in which the applicant was convicted and sentenced, give the date of the judgment and sentence complained of, set forth a concise statement of each ground for relief, and specify the relief requested. Argument, citations, and discussion of authorities are unnecessary.
2. The application must identify all proceedings for direct review of the judgment of conviction or sentence and all previous post-conviction proceedings taken by the applicant to secure relief from the conviction or sentence, the grounds asserted therein, and the orders or judgments entered. The application must refer to the portions of the record of prior proceedings pertinent to the alleged grounds for relief. If the cited record is not in the files of the court, the applicant shall attach that record or portions thereof to the application or state why it is not attached. Affidavits or other material supporting the application may be attached, but are unnecessary."
"The statute does not require the applicant to include in the original application all supporting evidentiary matter necessary." State v. Bender, 1998 ND 72, ¶19, 576 N.W.2d 210. Davis "must set forth a concise statement for each ground of relief and specify the relief requested." Eagleman v. State, 2004 ND 6, ¶11, 673 N.W.2d 241. Davis did set for a concise statement for each ground of relief and did specify the relief requested in his application.
[¶17] When considering Davis' post-conviction application, the District Court relied strictly on the materials set out in Davis' application. "It would be blatantly unfair to subject a defendant's post-conviction application to summary dismissal for failure to provide evidentiary support not available in the record of prior proceedings, when the statute explicitly provides such additional evidentiary support is 'unnecessary' in the original application." Wilson v. State, 1999 ND 222, ¶15, 603 N.W.2d 47 (citing Bender, at ¶20).
[¶18] In his Application, Davis provided supporting facts regarding the allegations. Davis alleged that his trial attorney failed to prepare the defense competently in that he did not obtain legally relevant facts from Davis; failed to pursue obvious leads provided by Davis; failed to interview or attempt to interview key witnesses; failed to properly review the trial exhibits made available by the States [attorney]; failed to depose key witnesses; failed to develop or discuss a trial strategy with Davis; failed to ask a qualified expert to investigate which property was actually in [Davis'] possession or effects, and have this qualified expert report his/her expert opinions as to the value of stolen property which was in [Davis'] possession; failed to hire a private investigator; failed to make a tactical trial strategy, which first requires an investigation.
[¶19] Davis also argues in his Application that he was prejudiced by his trial attorney's failure to perform the acts stated above. Had it not been for this ineffective assistance the outcome would have been different.
[¶20] In its Order, The District Court, without a hearing on the Application, concluded that "[Davis] had failed to show his plea of guilty was not voluntary or intelligent, or that he was denied effective assistance of counsel, no manifest injustice exists to necessitate withdrawal of the plea" (A. 25).
[¶21] Davis was fully prepared to present any and all evidence in support of his application at an evidentiary hearing. However, Davis was not allowed to testify or present testimony, examine his trial attorney, or present other evidence, on the issues raised to further develop a record to consider effectiveness of counsel and post-conviction was denied on the record.
[¶22] A post-conviction proceeding affords an opportunity to establish a record for review on appeal. "The express purpose of the Uniform Post-Conviction Procedure Act, as codified in N.D.C.C. 29-32.1, is to furnish a method to develop a complete record to challenge a criminal conviction." Bender, at ¶20 (citing State v. Wilson, 466 N.W.2d 101, 103 (N.D. 1991)). The post-conviction hearing allows the parties to "fully develop a record on the issue of counsel's performance and its impact on the defendant's case and to challenge a criminal conviction and sentence." DeCoteau at ¶7. The District Court rendered its decision based upon the record of the sentencing and the assertions made by counsel in pleadings not allowing other evidence to be presented.
[¶23] N.D.C.C. §29-32.1-10 sets forth what evidence may be heard at a post-conviction hearing. N.D.C.C. §29-32.1-10 provides:
"1. Evidence must be presented in open court, recorded, and preserved as part of the record of the proceedings.
2. A certified record of previous proceedings may be used as evidence of facts and occurrences established therein, but use of that record does not preclude either party from offering additional evidence as to those facts and occurrences.
3. The deposition of a witness may be received in evidence, without regard to the availability of the witness, if written notice of intention to use the deposition was given in advance of the hearing and the deposition was taken subject to the right of cross-examination."
Davis was not given the opportunity to present his evidence in open court or to proffer information needed to create an adequate record. The record does not show occurrences that happen outside of the courtroom nor did it allow Davis to expand the points cited in his application for post-conviction.
[¶24] Davis properly made assertions that Counsel's performance was ineffective in his application for post-conviction relief. However, the District Court failed to allow him to develop those arguments. N.D.C.C. §29-32.1-10(2) allows either party to develop additional facts as to the occurrences that appear in the record. The District Court failed to allow for this development of potential ineffectiveness in representation.
[¶25] A different procedural environment exists to explore the question of effectiveness of counsel in a post-conviction proceeding. Without confinement to the transcript, post-conviction procedures allow development of additional evidence to evaluate claims. Bender at ¶21. When confinement to a transcript to decide an application for post-conviction occurs, like in this case, "the post-conviction procedure becomes no better than direct review on appeal." State v. Wilson 466 N.W.2d 101 (N.D. 1991).
[¶26] All of the allegations set forth in Davis' application and the provided a sufficient basis which required that an evidentiary hearing be held. The District Court erred in denying Davis the opportunity to fully develop his allegations through witness testimony at an evidentiary hearing. It is necessary that this matter be remanded to the District Court for development of such assertions.
[¶27 The District Court erred in not providing Petitioner Timothy Davis with an evidentiary hearing. Therefore, Davis prays the Court reverse the lower court's decision and remand this matter for a post-conviction hearing.
|Respectfully submitted this 10th of July, 2013.|
|Mark T. Blumer, ND Bar ID #: 04669|
|Attorney at Law|
|P.O. Box 7340|
|Fargo, ND 58106|
|Telephone: (701) 893-5529|