Whetsel v. State, 955 N.W.2d 57

Background

Byron Whetsel was convicted in 2017 of murder (class AA) and two child neglect/abuse felonies; this Court affirmed his convictions on direct appeal.
He filed a first post-conviction application in December 2017 alleging ineffective assistance; the district court denied it and this Court affirmed in 2019.
In September 2020 Whetsel filed a second post-conviction application alleging the jury instruction on mens rea was improper.
The State filed an answer on Sept. 9, 2020 defending the instructions and a supplemental reply on Sept. 10 asserting the application was untimely under N.D.C.C. § 29-32.1-01(2).
The district court summarily dismissed Whetsel’s second application on Sept. 15, 2020 without a motion from the State and without giving Whetsel an opportunity to reply; the Supreme Court reversed and remanded.
The majority held the court erred by ruling before Whetsel had the reply time required by N.D.R.Ct. 3.2(a)(2); a concurrence urged stricter motion practice in post-conviction proceedings; a dissent would have affirmed as any reply would be futile given the untimeliness defense.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court could summarily dismiss after the State filed an answer/supplemental reply without allowing applicant a chance to respond	Whetsel: court erred by denying his opportunity to respond to the State’s assertions	State: maintained the instructions were correct and argued untimeliness; did not file a formal motion for dismissal	Court: reversal — once the State responds, the court may not summarily dismiss sua sponte without giving applicant the Rule 3.2 response opportunity or the State moving for dismissal
Whether the State must file a separate motion for summary disposition (vs. embedding request in its answer)	Whetsel: entitled to the Rule 3.2 response period if a request for dismissal is made or effectively made	State: relied on its pleadings and supplemental reply; historically courts have treated some answers as motions under Delvo	Court: emphasized that after a State response, the State must move for summary disposition (or at least a recognizable request), and the applicant must be given the Rule 3.2 response time; concurrence urges strict motion/notice/brief practice
Timeliness of the post-conviction application under N.D.C.C. § 29-32.1-01(2)	Whetsel: meritorious claim on jury instruction; challenged the procedure used to dismiss	State: application was filed more than two years after conviction became final, so barred; no exceptions alleged	Court: did not resolve on merits — remanded to allow Whetsel opportunity to respond to the State’s timeliness argument; dissent would have found the untimeliness fatal and any error harmless

Key Cases Cited

Delvo v. State, 782 N.W.2d 72 (N.D. 2010) (answer treated as request for summary disposition in prior decisions)
Atkins v. State, 928 N.W.2d 438 (N.D. 2019) (applied N.D.R.Ct. 3.2 response timing to post-conviction motions)
State v. Acker, 871 N.W.2d 603 (N.D. 2015) (explaining harmless-error standard under Rule 61)
State v. Whetsel, 902 N.W.2d 924 (N.D. 2017) (direct appeal affirming convictions)
Whetsel v. State, 933 N.W.2d 466 (N.D. 2019) (prior appeal of post-conviction denial)
Burden v. State, 930 N.W.2d 619 (N.D. 2019) (example of reversal where district court prematurely ruled on post-conviction matter)