917 N.W.2d 8
N.D.2018Background
- Roger Davies pleaded guilty in 2014 to continuous sexual abuse of a child pursuant to a binding plea agreement capping imprisonment at 15 years; he was sentenced to 15 years and lifetime supervised probation.
- Davies filed multiple post-conviction applications alleging defects in the charging instrument, Rule 11(b) (factual-basis/acknowledgment) failures at plea, judicial bias, prosecutorial misconduct, and ineffective assistance of counsel (pre-plea investigation, competence, failure to disclose lifetime probation, and sentencing mitigation failures).
- The State moved for summary disposition; Davies submitted a verified post-conviction application and supplemental affidavits and requested an evidentiary hearing; his appointed counsel later withdrew and he proceeded pro se at the summary-disposition hearing.
- The district court ruled there was no evidentiary opposition in affidavit form (erroneously noting Davies filed none), granted summary disposition, and dismissed the application; Davies appealed.
- The Supreme Court held the district court erred in not treating the verified application as evidence and in failing to consider some supplemental filings, but concluded some claims fail as a matter of law; it reversed and remanded on certain issues that raise genuine factual disputes.
Issues
| Issue | Plaintiff's Argument (Davies) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether Davies filed affidavits / whether verified application counts as affidavit evidence | Filed a verified application and supplemental affidavits that should be considered to resist summary disposition | No competent affidavit opposing summary disposition was before the court | Court: District erred by saying no affidavits filed; verified application must be treated as affidavit/evidence and should have been considered |
| Sufficiency of charging document (no specific date; victim unnamed) | Information defective for lacking a precise date and naming the victim | Charge alleges date range and references "Jane Doe" in affidavit; Davies knew victim | Court: Date need not be precise when time is not an element; naming requirement satisfied here; claim fails as matter of law |
| Rule 11(b) / factual basis for plea (did Davies agree to factual basis?) | The plea colloquy did not show Davies agreed with factual basis; silence may not satisfy Rule 11(b)(4) | The affidavit/information in file supplies a factual basis | Court: Record raises a genuine issue whether plea was properly obtained; reversed and remanded for evidentiary hearing on factual-basis/Rule 11 compliance |
| Ineffective assistance pre-plea (failure to disclose possibility of lifetime probation; failure to investigate) | Counsel did not inform Davies lifetime supervised probation was possible; counsel failed to investigate and obtain experts; would not have pled guilty if aware | Transcript shows plea cap on prison term; State argues probation was not part of the cap and record does not support Davies' claims | Court: Davies presented competent evidence creating a genuine factual issue about counsel failing to inform him about lifetime probation; summary disposition improper — remand for hearing on ineffective-assistance prejudice and whether rejecting plea would have been rational |
| Ineffective assistance at sentencing (failure to argue mitigating factors) | Counsel failed to present mitigating evidence that could have affected sentence | State relies on record/transcript and argues no basis for relief | Court: District did not adequately address this claim; remand to consider whether a genuine factual dispute exists and whether counsel was ineffective at sentencing |
Key Cases Cited
- Vandeberg v. State, 660 N.W.2d 568 (N.D. 2003) (moving party must show entitlement to judgment as a matter of law on summary disposition)
- Howard v. State, 863 N.W.2d 203 (N.D. 2015) (definition of genuine issue of material fact opposing summary disposition)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong test for ineffective assistance of counsel)
- Hill v. Lockhart, 474 U.S. 52 (U.S. 1985) (Strickland standard applied to guilty-plea challenges)
- Dominguez Benitez v. United States, 542 U.S. 74 (U.S. 2004) (standard for prejudice in plea-context ineffective-assistance claims)
- Bahtiraj v. State, 840 N.W.2d 605 (N.D. 2013) (prejudice inquiry requires showing a rational defendant would have rejected the plea)
- Yost v. State, 914 N.W.2d 508 (N.D. 2018) (Rule 11 compliance and requirement of substantial compliance)