Smestad v. State, 801 N.W.2d 691

In December 2003 Smestad pled guilty to theft by deception and forgery and was sentenced to three years in jail with all but eighteen months suspended, plus a three-year probation period.
In May 2008 a petition to extend probation for five years was filed due to restitution nonpayment, resulting in an order extending probation.
In September 2009 Smestad’s probation was revoked after a hearing, and he was sentenced to three years in jail; this revocation was summarily affirmed in State v. Smestad, 2010 ND 53.
Smestad applied for post-conviction relief asserting he did not sign documents extending his probation; the State asserted res judicata and misuse of process as defenses.
The district court denied relief, holding the signature-extended-probation issue was barred by res judicata and misuse of process because it was resolved or could have been raised in prior proceedings.
Smestad’s post-conviction appeal challenges the district court’s reliance on res judicata to bar the signature issue and, separately, argues ineffective assistance of post-conviction counsel about investigating the signature.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is the signature-authenticity claim barred by res judicata?	Smestad argues he could not have raised the issue earlier because he didn’t know of the documents extending probation.	State contends the claim is a variation of a previously addressed issue and is barred by res judicata.	Yes; claim barred by res judicata.
Was misuse of process properly raised as a defense?	Smestad asserts misuse of process defense; State must plead it.	State asserts misuse of process is a proper affirmative defense and was raised.	Yes; misuse of process is handled as an affirmative defense and was appropriately raised, but res judicata governs the claim.
Does res judicata bar Smestad’s ineffective assistance of counsel claim regarding signature investigation?	Smestad claims trial counsel failed to investigate the signature issue.	State argues the claim is barred by res judicata since the underlying probation-length issue is resolved.	Yes; cannot establish prejudice because underlying claim is barred.

Flanagan v. State, 712 N.W.2d 602 (2006 ND) (res judicata applies to variations of previous post-conviction claims)
Johnson v. State, 790 N.W.2d 741 (2010 ND) (court may not dismiss post-conviction claims on res judicata grounds on its own motion)
State v. Smestad, 789 N.W.2d 731 (2010 ND) (summary affirmance of probation revocation)
Heckelsmiller v. State, 687 N.W.2d 454 (2004 ND) (ineffective assistance standard and prejudice analysis framework)