Lorry Van Chase, Petitioner and Appellant v. State of North Dakota, Respondent and Appellee
No. 20190023
IN THE SUPREME COURT STATE OF NORTH DAKOTA
Filed 8/22/19
2019 ND 214
McEvers, Justice.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Opinion of the Court by McEvers, Justice.
Lorry Van Chase, self-represented, Bismarck, ND, petitioner and appellant; submitted on brief.
Ryan J. Thompson, State‘s Attorney, Devils Lake, ND, for respondent and appellee; submitted on brief.
[¶1] Lorry Van Chase appeals from a district court order denying his requested relief. On appeal, Chase argues the district court erred by (1) considering his motion citing
I
[¶2] In 2014, a jury convicted Chase of gross sexual imposition. He appealed to the North Dakota Supreme Court and the conviction was affirmed. State v. Chase, 2015 ND 234, ¶¶ 1, 13, 869 N.W.2d 733. In September 2016, Chase filed an application for post-conviction relief with the assistance of post-conviction counsel, alleging ineffective assistance of trial counsel. Specifically, Chase claimed he received ineffective assistance of counsel because his trial attorney: (1) failed to file a
[¶3] On November 13, 2018, Chase filed a
II
[¶4] Central to the disposition of this appeal is whether Chase‘s
We hold that a defendant may not avoid the procedures of the Uniform Postconviction Procedure Act by designating his motion under a rule of criminal procedure or by filing his motion in his criminal file, rather than filing as a new action for post-conviction relief.
Atkins, 2019 ND 145, ¶ 11, 928 N.W.2d 441 (relying on
A proceeding under this chapter is not a substitute for and does not affect any remedy incident to the prosecution in the trial court or direct review of the judgment of conviction or sentence in an appellate court. Except as otherwise provided in this chapter, a proceeding under this chapter replaces all other common law, statutory, or other remedies available before July 1, 1985, for collaterally challenging the validity of the judgment of conviction or sentence. It is to be used exclusively in place of them. A proceeding under this chapter is not available to provide relief for disciplinary measures, custodial treatment, or other violations of civil rights of a convicted person occurring after the imposition of sentence.
Even reading his documents generously, Chase‘s only allegation conceivably appropriate for a
(b) Grounds for Relief From a Final Judgment or Order. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:
. . . .
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party.
(Emphasis added.) See also Gajewski v. Bratcher, 240 N.W.2d 871, 889 (N.D. 1976) (“The burden is on the movant to establish, by clear and convincing evidence, that the adverse party obtained the judgment through fraud, misrepresentation, or misconduct.“) (emphasis added). Chase‘s attorney was not an adverse party. The court found Chase was trying to circumvent the post-conviction process by masking
[¶5] If we were to agree with Chase‘s reasoning that his
III
[¶6] Having determined the district court did not err in treating Chase‘s motion as his second application for post-conviction relief, we turn to his argument that the court erred by denying his application without a hearing. Chase argues under
[¶7] “An applicant for post-conviction relief is only ‘entitled to an evidentiary hearing if a reasonable inference raises a genuine issue of material fact.‘” St. Claire v. State, 2002 ND 10, ¶ 19, 638 N.W.2d 39 (quoting Crumley v. State, 2000 ND 110, ¶ 12, 611 N.W.2d 165). Usually it is the State‘s summary dismissal motion that puts the applicant to his proof and shifts the burden to the applicant to support his claims with competent and admissible evidence raising a genuine issue of fact. Peterka v. State, 2015 ND 156, ¶ 7, 864 N.W.2d 745. Here, the State‘s reply did not request summary dismissal.
[¶8] We have recognized that “[a] dismissal of an application for post-conviction relief without a hearing is a summary denial, whether based on
[¶9] Even assuming the district court considered the State‘s response as a request for dismissal, Chase was not put on notice his application would be summarily dismissed when the district court provided no notice. We conclude summary dismissal was not appropriate and remand to the district court.
IV
[¶10] Chase argues the district court abused its discretion by not granting his request for court-appointed counsel. We have stated:
The appointment of post-conviction counsel is a matter of trial court discretion, and we will not reverse a trial court‘s refusal to appoint counsel absent an abuse of that discretion. Crumley v. State, 2000 ND 110, ¶ 11, 611 N.W.2d 165. A trial court should read applications for post-conviction relief in the light most favorable to the applicant, and when a substantial issue of law or fact may exist, the trial court should appoint counsel. Id. However, a trial court does not abuse its discretion in refusing to appoint counsel when the application for relief is completely without merit. Id.
Jensen v. State, 2004 ND 200, ¶ 13, 688 N.W.2d 374.
[¶11] At the time Chase applied for court-appointed counsel, he still had an attorney of record. While his application was pending, his attorney moved to withdraw as
V
[¶12] We have reviewed all other issues and have determined they are either without merit or unnecessary to the disposition of this appeal.
VI
[¶13] We affirm the district court‘s order in part, reverse in part, and remand for proceedings consistent with this opinion.
[¶14] Lisa Fair McEvers
Daniel J. Crothers
Jerod E. Tufte
Jon J. Jensen
Gerald W. VandeWalle, C.J.
Lisa Fair McEvers
Daniel J. Crothers
Jerod E. Tufte
Jon J. Jensen
Gerald W. VandeWalle, C.J.