889 N.W.2d 873
N.D.2017Background
- Cody pleaded guilty to reckless endangerment in 2014 after an aggravated-assault charge was dismissed as part of a plea agreement; he was later incarcerated following probation revocation.
- In March 2015 Cody filed a post-conviction relief (PCR) application alleging ineffective assistance of counsel and newly discovered evidence: an affidavit from witness Jacob Scarberry saying someone else stabbed the victim.
- The State answered opposing relief but did not move for summary disposition; it contended Scarberry was known at the time of the plea and his testimony would concern the dismissed aggravated-assault charge.
- The district court invited supplemental briefs to decide whether an evidentiary hearing was necessary; Cody submitted exhibits (including Scarberry’s affidavit) but did not request a hearing, only said Scarberry would testify if one were held.
- The district court denied PCR on the merits applying Strickland, finding defense counsel reasonable and that Scarberry could not have offered information Cody did not already know; no evidentiary hearing was held.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court erred by denying PCR without an evidentiary hearing | Cody: Court lacked authority to decide under §29-32.1-09 after considering matters outside the pleadings without a hearing | State: No hearing requested; evidence before court sufficient; Scarberry known to Cody | Court: No error—PCR statutes do not require a hearing unless a party requests one and Cody had notice and opportunity to present evidence |
| Whether the district court improperly relied on materials outside the pleadings without summary-disposition motion | Cody: Reliance on extra-pleading materials without State motion violated Chisholm | State/District Ct.: Invited briefing and considered transcript and affidavit as record evidence | Court: While Chisholm requires notice/opportunity when considering outside materials, here Cody had notice and opportunity through the court’s briefing order and submitted evidence |
| Whether the court failed to state the basis of its decision under §29-32.1-11(2) | Cody: Order didn’t indicate if decision was on pleadings, summary disposition, or evidentiary hearing | State: Court’s findings show it relied on transcript and submitted documents, i.e., decision on the record | Court: Not reversible—basis can be discerned from order and record; decision was based on transcript and the documents provided |
| Whether Scarberry’s affidavit established prejudice under Strickland to vacate plea | Cody: Scarberry’s testimony would show someone else stabbed the victim and would have affected plea decision | State: Scarberry’s affidavit adds nothing Cody didn’t already know; relates to dismissed charge | Court: No prejudice shown—Scarberry would not have changed Cody’s decision to plead guilty |
Key Cases Cited
- Chisholm v. State, 848 N.W.2d 703 (N.D. 2014) (requiring notice and opportunity to present evidence when court considers matters outside the pleadings)
- Clark v. State, 758 N.W.2d 900 (N.D. 2008) (no requirement for evidentiary hearing when neither party requests one; court may decide on submitted record)
- Cue v. State, 663 N.W.2d 637 (N.D. 2003) (appellate court will not reverse where basis of decision can be discerned from record)
- Howard v. State, 863 N.W.2d 203 (N.D. 2015) (applicant must be put to proof in response to motion for summary disposition)
- Delvo v. State, 782 N.W.2d 72 (N.D. 2010) (discussing what suffices to put applicant to proof)