Rоdney Harold Friesz, Petitioner and Appellant v. State of North Dakota, Respondent and Appellee
No. 20200169
IN THE SUPREME COURT STATE OF NORTH DAKOTA
Corrected Opinion Filed 3/4/21
2021 ND 37
Appeal from the District Court of Morton County, South Central Judicial District, the Honorable David E. Reich, Judge.
Opinion of thе Court by Jensen, Chief Justice, in which Justices VandeWalle, Crothers, McEvers, and Tufte joined. Justice Crothers filed a concurring opinion, in which Chief Justice Jensen joined. Justice McEvers filed a concurring opinion, in which Justice VandeWalle joined.
Kiara C. Kraus-Parr, Grand Forks, ND, for petitioner and appellant.
Gabrielle J. Goter, Assistant State’s Attorney, Mandan, ND, for respondent and appellee.
[¶1] Rodney Harold Friesz appeals from a district court order denying his application for post-conviction relief. The court summarily dismissed Friesz’s application subsequent to receiving a request for dismissal from the State, but prior to the expiration of time allowed for Friesz to respond. Because
I
[¶2] In October 2014, Friesz was charged with murder, a class AA felony, and arson, a class B felony. A jury trial was held in February 2016 and Friesz was found guilty of manslaughtеr and arson, both class B felony offenses. Friesz appealed the case asserting insufficient evidence to support the conviction, and the court erred denying his motion to suppress. This Court affirmed the conviction and remanded with instructions for the district court to correct a clerical error in the criminal judgment. State v. Friesz, 2017 ND 177, 898 N.W.2d 688.
[¶3] On May 2, 2018, Friesz filed his first application for post-conviction relief. Friesz argued: his conviction was based on a coerced confession; the evidence admitted was obtained by an unlawful search and seizure; his arrest was unlawful; he was denied the right to call witnesses to testify on his behalf; the State failed to disclose certain evidence; he was denied effective assistance of counsel; and he was denied his right to appeal. The district court denied his application and this Court summarily affirmed the denial of the application. Friesz v. State, 2020 ND 2, 937 N.W.2d 285.
[¶4] On May 1, 2020, Friesz filed a second application for post-conviction relief. Friesz alleged: ineffective assistance of trial counsel; denial of effective assistance of counsel on his post-conviction appeal with appellate counsel; insufficiency of evidence to sustain a conviction; denial of his fourth amendment rights regarding the warrantless search of the residence, the
[¶5] On June 3, 2020, two days after the State’s request for summary dismissal, the district court dismissed Friesz’s application after finding the two-year statute of limitations in
II
[¶6] Friesz argues, in part, the district court acted prematurely in dismissing his application two days after the State’s request for dismissal and prior to receiving a response from him. This Court has applied
[¶7] Having concluded the district court erred, our next step is to determine whether the mistake was prejudicial. This Court’s standard for harmless error provides:
Unless justice requires otherwise, no error in admitting or excluding evidence, or any other error by the court or a party, is ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order. At every stage of the proceeding, the court must disregard all errors and defects that do not affect any party’s substantial rights.
[¶8] This Court has recently held that “[u]nless clear from the record that any response a party could make would be futile, justice requires a party be granted the opportunity to respond as required under
IV
[¶9] The State argues there is a statutory distinction between a first application and subsequent applications, and because this was a second application, the district court could summarily dismiss on its own motion despite the State having filed a response to the application. In distinguishing between a first application and subsequent applications, the State initially
[¶10] This Court has previously reversed the summary dismissal of a subsequent application following the State’s response and before the applicant had been provided with fourteen days to respond. Atkins, 2019 ND 146. In Atkins, we reversed the summary dismissal of a fourth application for post-conviction relief where thе district court acted after the State had responded to the application and before the expiration of the fourteen-day response period provided by
V
[¶11] The district court summarily dismissed Friesz’s application for post-conviction relief after thе State had responded but prior to the expiration of the time for a response by Friesz. We reverse and remand.
[¶12] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
[¶13] I agree with the majority opinion and have signed it. I concur specially consistent with positions I havе articulated in Whetsel v. State, 2021 ND 28, ¶¶ 11-15 (Crothers, concurring specially), and Davis v. Davis, 2021 ND 24, ¶ 12 (Crothers, concurring specially).
[¶14] I write separately to emphasize the following:
“Absent the parties’ compliance with the requirements of
N.D.R.Ct. 3.2 , this Court should conclude a request for relief was not ripe for consideration by the district court. SeeN.D.R.Ct. 3.2(a)(2) (‘Upon the filing of briefs, or upon expiration of the time for filing, the motion is considered submitted to the cоurt unless counsel for any party requests oral argument on the motion.’). On any appeal from a district court’s dispositive action where the requirements ofN.D.R.Ct. 3.2 were not followed, we should summarily reverse unless it is clear from thе record that any response a party could make would be futile.N.D.R.App.P. 35.1(b) (‘In any case in which the court determines after argument, unless waived, that a previous controlling appellate decision is dispositive of the аppeal, the court may reverse by an opinion citing this rule and the controlling appellate decision.’); Davis v. Davis, 2021 ND 24, ¶ 12, (‘Unless clear from the record that any response a party could make would be futile, justice requires a party be granted the opportunity to respond as required underN.D.R.Ct. 3.2 .’).”
[¶15] Daniel J. Crothers
Jon J. Jensen, C.J.
McEvers, Justice, concurring specially.
[¶16] I agree with the majority that the district court erred in prematurely ruling. Majority, at ¶ 6. I am also troubled by the rising number of cases where the court is ruling without giving a party аn opportunity to respond. See Davis v. Davis, 2021 ND 24, ¶ 11. Here, the court did not give Friesz an opportunity to respond to the State’s answer and motion for summary judgment.
[¶18] Unlike Whetsel, where the only allegation was about a jury instruction, Friesz’s application for post-conviction relief alleged еight separate grounds for relief, including an allegation that DNA evidence was not disclosed by the police. Friesz requested counsel, and counsel was appointed. His attorney requested discovery from the Statе prior to the State moving for summary judgment. While the application for post-conviction relief did not mention on its face an allegation of “newly discovered” evidence, Friesz did allege the police withheld DNA еvidence, raising an inference that there was or may be evidence to be discovered. Under these circumstances, I cannot say that his application for post-conviction relief was necessarily futilе, therefore, I too conclude the district court’s error is not harmless. While the alleged evidence may not ultimately meet the requirement under
[¶19] Lisa Fair McEvers
Gerald W. VandeWalle