Flemming v. Flemming
2010 ND 212
| N.D. | 2010Background
- Wong pled guilty in December 2009 to gross sexual imposition (class AA) and aggravated assault (class C).
- He was sentenced and a criminal judgment entered; he did not appeal the judgment.
- On April 12, 2010, Wong filed a post-conviction relief application alleging ineffective assistance of counsel, incompetence to stand trial, and prosecutorial failure to disclose prior incompetence.
- The State responded May 12, 2010 arguing effective counsel, no ineffective assistance, and waiver of mental-capacity issue; no summary disposition motion was made.
- May 25, 2010, the district court sua sponte dismissed Wong’s post-conviction application under N.D.C.C. §29-32.1-06(2) on pleadings alone.
- Wong appeals, and this Court has jurisdiction; the appeal is timely under N.D.R.App.P. 4(d).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court could summarily dismiss Post-Conviction relief without notice | Wong contends dismissal without notice was improper | State notes no formal motion for summary disposition was filed | No; dismissal without notice and opportunity to respond was improper |
| Whether Wong’s claims were facially sufficient to survive dismissal | Wong’s application alleged ineffective assistance and incompetence issues that could be developed | Claims were insufficient or barred as a matter of law | The court erred in assuming no viable claim could be proven |
| Whether improper summary dismissal violated post-conviction procedures for ineffective assistance claims | Henke requires full post-conviction development for such claims | Summary disposition may be appropriate where no genuine issues exist | Ineffective-assistance claims generally not suited for summary disposition and require fuller development |
| Whether due process required notice, response opportunity, and proof before dismissal | Wong must be put to proof and allowed to present evidence | Court could rely on record; no need for evidentiary process | District court failed to provide notice and an evidentiary opportunity; error |
| Whether the court properly applied the procedural rules governing post-conviction dismissals | Procedural safeguards in 29-32.1-09 and related rules were not followed | Court acted within discretion to dismiss on pleadings | Court erred; remand for further proceedings |
Key Cases Cited
- Berlin v. State, 698 N.W.2d 266 (2005 ND) (summary-dismissal standards; reliance on pleadings)
- Henke v. State, 767 N.W.2d 881 (2009 ND) (ineffective-assistance claims require full post-conviction development)
- Kaiser v. State, 693 N.W.2d 26 (2005 ND) (treatment of 12(b)(6) dismissals and summary judgment analogies)
- Parizek v. State, 711 N.W.2d 178 (2006 ND) (need for notice and opportunity before summary disposition; inherent authority limits)
- Ude v. State, 764 N.W.2d 419 (2009 ND) (consideration of evidence beyond the record in certain claims)
- Vandeberg v. State, 660 N.W.2d 568 (2003 ND) (filing requirements; evidence not required with application)
- Weaver v. State, 658 N.W.2d 352 (2003 ND) (structure of post-conviction pleading requirements)
- Johnson v. State, 681 N.W.2d 769 (2004 ND) (pleadings treated for purposes of dismissal; res judicata/misuse of process notes)