Greywind v. State, 2015 ND 231

Background

Greywind pled guilty to robbery while in possession of a dangerous weapon and later sought post-conviction relief alleging ineffective assistance of counsel, disparate sentencing compared to a co-defendant, and prosecutorial misconduct.
Ineffective assistance claims included counsel’s alleged failure to advise Greywind he would be required to serve 85% of his sentence before release, failure to inform him his co-defendant would receive a shorter sentence, and failure to zealously advocate during plea negotiations.
The district court dismissed Greywind’s application without a hearing or State response, concluding (1) counsel’s failure to advise re: 85% did not give rise to relief under Raulston and Sambursky, (2) disparate-sentence claim was meritless given co-defendant was sentenced later and Greywind’s role with the knife, and (3) no specific allegations of lack of zeal were pled.
The district court relied in part on facts outside the post-conviction pleading (e.g., admissions at sentencing) and therefore treated the filing as frivolous, denying relief and later denying Greywind’s motion to reconsider.
The Supreme Court reversed and remanded, holding the court improperly considered outside evidence and converted the dismissal into summary judgment without giving Greywind opportunity to submit briefing or supporting materials; Greywind is entitled to file a brief with supporting materials and, if warranted, an evidentiary hearing.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Summary dismissal of post-conviction application	Greywind: court erred by dismissing without notice or allowing submission of evidence; dismissal relied on outside facts	State: dismissal appropriate because claims were frivolous and unsupported by the record	Reversed — court improperly considered matters outside pleading and must allow Greywind to file brief/supporting materials; summary dismissal treated as summary judgment and was improper without notice and opportunity to respond
Ineffective assistance for failure to advise about 85% rule	Greywind: counsel failed to inform him he would have to serve 85% of sentence before release, affecting voluntariness of plea	State: Raulston/Sambursky support that failure to advise on 85% does not alone warrant relief	Court did not decide merits; remanded for opportunity to present supporting materials and factual development
Failure to zealously represent during plea/ proceedings	Greywind: counsel failed to zealously advocate (general allegation)	State: no specific allegations; record shows strong evidence and competent counsel	Reversed — whether counsel was zealous is a genuine issue of material fact; Greywind entitled to file supporting materials and potentially an evidentiary hearing
Disparate sentence / prosecutorial misconduct	Greywind: co-defendant got a shorter sentence and prosecutor violated due process in plea negotiations	State: co-defendant was sentenced later, Greywind’s greater role (knife) justified sentence; prosecutor discretion in charging/plea bargaining	Court did not resolve on merits; dismissal improper without allowing factual development; remanded

Key Cases Cited

State v. Raulston, 2005 ND 212, 707 N.W.2d 464 (N.D. 2005) (addressing effect of counsel’s advice about release eligibility)
Sambursky v. State, 2008 ND 133, 751 N.W.2d 247 (N.D. 2008) (same topic regarding post-conviction claims about release eligibility)
Chisholm v. State, 2014 ND 125, 848 N.W.2d 703 (N.D. 2014) (a court may only consider the application alone under § 29‑32.1‑09(1); notice and opportunity to respond required before dismissal)
Wong v. State, 2010 ND 219, 790 N.W.2d 757 (N.D. 2010) (summary dismissal of post-conviction relief analogous to Rule 12(b)(6); conversion to summary judgment requires treating pleadings in light most favorable to applicant)
Riak v. State, 2015 ND 120, 863 N.W.2d 894 (N.D. 2015) (standards for motions for reconsideration and Rule 60(b) relief)
Waslaski v. State, 2013 ND 70, 830 N.W.2d 228 (N.D. 2013) (standard for appellate review of denial of reconsideration)