[¶ 1] Lоrry Van Chase appealed from an order denying his application for post-conviction relief. We conclude the district court erred in summarily dismissing his application, claiming ineffective аssistance of trial counsel, because genuine issues of material fact exist precluding summary disposition. We reverse and remand for the court to hold an evidentiary hearing on his applicаtion.
I
[¶ 2] In 2013, Chase was charged with one count of gross sexual imposition in violation of N.D.C.C. § 12.1-20-03(l)(a), a class AA felony, for an assault occurring in 2007. In 2014, a jury convicted Chase of the charge, and this Court affirmed his conviction on appeal.
State v. Chase,
[¶ 3] In September 2016, Chase filed an application for post-conviction relief, asserting grounds of ineffective assistance of his trial counsel. Chase also filed a sworn affidavit supporting his claims. On October 17, 2016, the State filed its response and exhibits, including an unsworn statement from Chase’s trial counsel. In its response, the State opposed Chase’s claims and also requested summary dismissal with proper
II
[¶'4] Chase argues the district court erred in summarily dismissing his application for post-conviction relief claiming ineffective assistance of trial counsel.
[¶ 5] Genеrally, “[a]n applicant has the burden of establishing grounds for post-conviction relief.”
Greywind v. State,
[¶ 6] This Court has explained that summary dismissal of an application “is analogous to dismissal of a civil cоmplaint under N.D.R.Civ.P. 12(b) for failure to state a claim upon which relief can be granted.”
Greywind,
[¶ 7] When, however, matters outside the pleading are considered, the motion must be treated as a summary judgment motion under N.D.R.Civ.P. 56.
Wong,
Ill
[¶ 8] Chase raises two main issues on appeal with a myriad of supporting arguments. First, Chase argues his trial counsel’s deficient triаl performance “descended” to the level of ineffective assistance of counsel. He claims his trial counsel committed multiple errors that unfairly prejudiced him, including: his trial counsel’s failurе to file an alleged “critical” motion under N.D.R.Ev. 412,
see Chase,
[¶ 9] Second, Chase argues -the district court erred in denying his post-conviction relief application without granting a new
[¶ 10] The State responds that the district court did not err when it summarily dismissed Chase’s application without an evidentiary hearing because he failed to provide competent evidence to support his application. The State argues the application “does not provide any competent evidence to support a finding that the Jury would have returned a different verdict.” The State contends that Chase’s statements in the application are “complete fabricаtions and simply untrue.” The State also asserts that, after receiving its response, Chase offered no further proof to necessitate an evidentiary hearing.
[¶ 11] The State further argues that the district cоurt did not err in “finding” Chase failed to show ineffective assistance of counsel or resulting prejudice. The State makes a number of arguments that purport to weigh evidence or reflect a factuаl finding, including that Chase’s trial counsel’s cross-examination of the State’s witnesses reflected sufficient preparation, that abundant evidence supports his trial counsel’s diligence and attention, and that no evidence shows his trial counsel was aware of the proposed “alibi witnesses.” The State disputes Chase’s argument that a formal motion under N.D.R.Ev. 412 would have resulted in any different information admittеd at trial, and, therefore, there could be no finding of prejudice by the failure to file the motion.
[¶ 12] Here, the district court’s order denying Chase’s application is problematic in that it appeаrs to deny the application on the merits. After the State filed its response and supporting exhibits on October 17, 2016, the district court filed its order on November 3, 2016, and there is no notice in the record to Chаse that the court would be resolving this case on summary disposition as requested by the State. Moreover, in denying the application, the court relies on disputed facts outside of the pleadings, inсluding trial counsel’s statement submitted with the State’s response. This statement provides his former counsel’s version of relevant events, opines against Chase’s claims, and asserts he did a “superb” or “excellent” job representing Chase. The trial counsel’s statement also concedes, however, that Chase’s “best argument” is that he should have “filed the Rule 412 disclosure.” In its order denying the application, the court merely recites the parties’ various factual assertions and arguments and resolves the ultimate factual issue, “finding Chase] did not show (1) counsel’s representation fell below an objectivе standard of reasonableness and (2) [Chase] was NOT prejudiced by any deficient performance” regarding his trial counsel’s performance.
[¶ 13] In
Chisholm,
[¶ 14] This Court has also held summary dismissal is normally inappropriate for post-сonviction relief claims arguing ineffective assistance of counsel because such claims typically require development of a record in an evidentiary hearing.
Abdi v. State,
[¶ 15] Setting aside whether Chase received sufficient notice of the summary disposition, we nevertheless conclude the district court erred in its order summarily disposing of Chase’s ineffective assistance claims. In its order, the court considered evidence outside of the application so we treat the court’s summary dismissal аs a summary judgment. Chase alleged, supported by his affidavit, that his counsel’s performance was deficient, and asserts he failed to file a critical motion, to contest the statute of limitations, to сonduct critical pretrial investigation and discovery, to develop critical witness testimony at trial, and to disclose a conflict of interest. As shown by Chase’s and his trial counsel’s competing assеrtions, we conclude reasonable inferences have raised genuine issues of material fact. We conclude Chase’s and his trial counsel’s contradictory and varying accounts, on their fаce, raise fact issues regarding his counsel’s pretrial preparation and trial performance, in addition to purported conflict of interest claims.
[¶ 16] We therefore conclude Chase is entitled to an evidentiary hearing on all the claims in his post-conviction relief application. At the evidentiary hearing on remand, both Chase and his former trial counsel may appear and give testimony. The parties may also submit any other relevant testimony or evidence to assist the district court in resolving the factual issues surrounding Chase’s ineffective assistance claims.
IV
[¶ 17] The order is reversed, and the case is remanded for an evidentiary hearing.