Kratz v. State, 981 N.W.2d 891

Background

In 2018 Kratz pled guilty to terrorizing (class C felony) and was sentenced to 1 year and 1 day, with 20 days to serve and the balance suspended on 18 months probation.
In 2019 the State petitioned to revoke probation; in Nov. 2020 Kratz admitted some allegations, probation was revoked, and he was resentenced to 18 months incarceration with 23 days credit.
Kratz failed to report to serve the sentence; an arrest warrant remains outstanding and he did not appear at later proceedings (treated as a fugitive). He voluntarily dismissed an earlier appeal after the State invoked the fugitive-disentitlement doctrine.
In March 2021 Kratz filed a post-conviction relief (PCR) application alleging (1) ineffective assistance of probation-revocation counsel for failing to preserve an illegal-sentence claim and (2) his guilty plea was involuntary because he was not told he could receive a greater sentence on revocation under the pre-Dubois view of N.D.C.C. § 12.1-32-07(6).
After this Court’s decision in Dubois v. State (2021)—which held § 12.1-32-07(6) limited resentencing to the originally suspended sentence—Kratz moved for summary judgment asserting his resentencing was illegal; the State conceded the sentence was illegal.
Kratz failed to provide affidavits or sworn testimony, did not appear at the district-court hearing, filed an unsworn declaration, and the district court denied his motion and dismissed the PCR for lack of evidentiary support and under the fugitive-disentitlement doctrine. The Supreme Court affirmed, holding Kratz failed to adequately support his claims.

Issues

Issue	Kratz's Argument	State's Argument	Held
1) Ineffective assistance for failing to preserve an illegal-sentence claim at revocation	Counsel should have argued the sentence was illegal under the interpretation later adopted in Dubois	Counsel’s failure to raise a novel claim is not ineffective; prevailing precedent at the time supported the sentence	Court: No ineffective assistance—counsel not required to anticipate a novel change in law
2) Guilty plea involuntary because he wasn’t told he could be resentenced above the suspended sentence	Plea was not voluntary because he was not informed he could receive a greater sentence on revocation under pre-Dubois understanding	PCR lacked verified affidavit or sworn evidence to support withdrawal of plea; no factual support presented	Court: Denied—Kratz failed to provide evidentiary support for involuntary-plea claim
3) District court’s duty to correct an illegal sentence despite Kratz’s fugitive status	Court should correct the illegal resentencing (Dubois) rather than dismiss PCR under fugitive-disentitlement	Kratz was a fugitive, provided no sworn support, and dismissal was equitable; court need not reach the fugitive doctrine because claims lacked support	Court: Affirmed dismissal of PCR for lack of evidentiary support; unnecessary to decide fugitive-disentitlement application

Key Cases Cited

Dubois v. State, 2021 ND 153, 963 N.W.2d 543 (held N.D.C.C. § 12.1-32-07(6) limited resentencing to the originally suspended sentence)
Thomas v. State, 2021 ND 173, 964 N.W.2d 739 (standards for ineffective-assistance review)
Strickland v. Washington, 466 U.S. 668 (established two-prong ineffective-assistance standard)
Ude v. State, 2009 ND 71, 764 N.W.2d 419 (PCR may be denied without evidentiary support)
Yoney v. State, 2021 ND 132, 962 N.W.2d 617 (counsel not ineffective for following then-prevailing precedent)
Ragland v. United States, 756 F.3d 597 (8th Cir. rule that failure to raise novel argument is not ineffective assistance)
Brown v. United States, 311 F.3d 875 (counsel’s decision not to raise an issue unsupported by precedent does not constitute ineffective assistance)