Leverson v. Leverson
2011 ND 158
| N.D. | 2011Background
- Smestad pled guilty in Dec 2003 to theft by deception and forgery; sentenced to three years with all but eighteen months suspended and three years of probation following incarceration.
- In May 2008 the State filed a petition to extend Smestad's probation for five years due to unpaid restitution.
- In Sept 2009 the district court revoked Smestad's probation and sentenced him to three years in jail; this revocation was summarily affirmed on appeal in State v. Smestad, 2010 ND 53.
- Smestad applied for post-conviction relief under N.D.C.C. ch. 29-32.1, claiming he did not sign documents extending probation.
- The district court denied post-conviction relief, ruling the signature issue was barred by res judicata and misuse of process because it was a variation of issues already raised and adjudicated.
- The supreme court affirmed, holding the signature authenticity claim was barred by res judicata and that Smestad could not prove ineffective assistance of post-conviction counsel as a result.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether signature authenticity is barred by res judicata | Smestad argues he could not have raised signature issue earlier. | State contends issue is a variation of previous claims and barred. | Barred by res judicata |
| Whether res judicata and misuse of process were properly raised as defenses | Smestad asserts these defenses were not properly raised by State. | State argues res judicata and misuse of process were pleaded in response to the petition. | Affirmed as properly raised defenses |
| Whether Smestad preserved signature issue for post-conviction review | Smestad claims lack of opportunity to address documents extending probation. | Issue was already addressed on appeal regarding probation extension. | Preserved issue found precluded by res judicata |
| Whether ineffective assistance of post-conviction counsel was proven | Counsel failed to investigate signature authenticity. | No prejudice since the signature issue is res judicata. | Not proven; no prejudice shown |
Key Cases Cited
- Flanagan v. State, 2006 ND 76 (ND 2006) (claim preclusion and variations of prior claims barred)
- Johnson v. State, 2010 ND 213 (ND 2010) (affirmative defenses must be pleaded by State)
- Heckelsmiller v. State, 2004 ND 191 (ND 2004) (ineffective assistance standard and prejudice requirement)
- State v. Smestad, 2010 ND 53 (ND 2010) (prior probation revocation affirmed on appeal)