Peterka v. State, 2015 ND 156

Background

Shane Peterka was indicted on 119 counts of class C felony possession of visual representations of sexual conduct by a minor; he pled guilty and was sentenced in Jan 2013.
Peterka sought postconviction relief alleging improper prosecution (multiplicity/double jeopardy), ineffective assistance of trial counsel, and that a Rule 35(b) motion for reduction of sentence was not considered.
The district court treated the State’s motion as a summary-judgment motion, held the statute authorizes separate counts per image, denied relief on double jeopardy and ineffective-assistance claims, but found errors in consecutive probation and modified probation and sex-offender registration.
The district court declined to consider Peterka’s pro se Rule 35(b) motion (clerk rejected it for lack of proof of service); Peterka asserted the court therefore failed to act on a timely motion.
On appeal, the Supreme Court of North Dakota affirmed denial of relief on multiplicity/double jeopardy and ineffective-assistance claims, but reversed the denial regarding the Rule 35(b) motion and remanded for the sentencing court to consider it.

Issues

Issue	Peterka's Argument	State's Argument	Held
Whether N.D.C.C. § 12.1-27.2-04.1 permits separate prosecutions for each image	Counts are multiplicitous; convictions should be limited to devices, not images	Statute criminalizes possession of “any” visual representation; each image is a unit of prosecution	Statute unambiguous: each image is a separate offense; no double jeopardy violation
Whether charging/convicting on 119 counts violated double jeopardy	Multiple counts for images on same device equals multiple punishments for same offense	Legislature intended each visual representation to be punishable separately; Blockburger analyzed in light of statutory language	Double jeopardy claim rejected; multiple prosecutions permitted by statute
Whether trial counsel was ineffective for not challenging multiplicity, not filing/serving Rule 35 motion, and not seeking venue/judge changes	Counsel’s failures prejudiced proceedings and plea options	Statute authorizes separate counts so multiplicity challenge would fail; no competent evidence of prejudice or ongoing counsel duty on Rule 35; no proof that alternate venue/judge would change outcome	Ineffective-assistance claims denied for lack of prejudice and insufficient evidentiary support
Whether the sentencing court improperly failed to consider Peterka’s Rule 35(b) motion	Clerk rejected filing for lack of proof of service; court therefore never considered a timely- ripe motion	Court concluded the motion was untimely and procedural rules precluded consideration	Reversed as to Rule 35(b): the court erred — the motion was ripe and the sentencing court must consider the Rule 35(b) request on remand

Key Cases Cited

Blockburger v. United States, 284 U.S. 299 (establishes same-elements test for double jeopardy analysis)
State v. Moos, 758 N.W.2d 674 (N.D. 2008) (legislative intent governs whether multiple statutory violations are separately punishable)
State v. Zueger, 459 N.W.2d 235 (N.D. 1990) (interpretation of the word "any" in statutory context)
United States v. Hinkeldey, 626 F.3d 1010 (8th Cir. 2010) (federal statute construed to permit unit-of-prosecution analysis by medium)
DeCoteau v. State, 586 N.W.2d 156 (N.D. 1998) (summary-denial-of-postconviction-relief standards)
Coppage v. State, 807 N.W.2d 585 (N.D. 2011) (genuine-issue standard for postconviction summary disposition)
Osier v. State, 843 N.W.2d 277 (N.D. 2014) (Strickland standards and review scope for ineffective assistance)