Peterka v. StatePeterka v. State
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[¶ 1] Shane Philip Peterka appeals from a district court order granting summary judgment and denying in part Peter-ka’s application for postconviction relief. Peterka argues the district court erred in summarily denying the application for postconviction relief, in determining that
I
[¶ 2] Peterka was charged with 119 counts of unlawful possession of images of sexual conduct by a minor, class C felonies. Peterka retained counsel. After a pre-sentence investigation, the parties presented a plea agreement to the district court, which was rejected. Peterka later entered an open plea of guilty and was sentenced in January 2013. In May 2013, Peterka attempted to file a motion for reduction of sentence under
[¶ 3] In November 2013, Peterka filed an application for postconviction relief alleging his due process rights were violated
[¶4] The State moved to dismiss the amended application. The district court filed notice that the State’s motion would be considered a motion for summary judgment under
[¶ 5] The district court granted summary judgment in part to the State and in part to Peterka, finding
II
[¶ 6] “Post-conviction relief proceedings are civil in nature and are governed by the North Dakota Rules of Civil Procedure.” Burke v. State, 2012 ND 169, ¶ 10, 820 N.W.2d 349.
“We review an appeal from a summary denial of post-conviction relief like we review an appeal from a summary judgment. The party opposing the motion for summary disposition is entitled to all reasonable inferences at the preliminary stages of a post-conviction proceeding, and is entitled to an evidentiary hearing if a reasonable inference raises a genuine issue of material fact. Once the moving party has initially shown there is no genuine issue of material fact, the burden shifts to the opposing party to present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact.”
DeCoteau v. State,
1998 ND 199, ¶ 4, 586 N.W.2d 156 (citations omitted). “The
[¶ 7] The State’s summary dismissal motion puts the applicant to his proof and the burden shifts to the applicant to support his claims with competent and admissible evidence raising a genuine issue of fact. Coppage, 2011 ND 227, ¶ 9, 807 N.W.2d 585.
“Generally, summary disposition is not appropriate when there are claims of ineffective - assistance of counsel. In most cases claims of ineffective assistance of counsel are based on matters occurring outside the court record or transcript, and therefore the record and transcripts are not adequate to decide the claims and an evidentiary hearing may be required to consider other evidence beyond the record.”
Id. at ¶ 14 (internal citation omitted).
Ill
[¶ 8] Peterka argues he was improperly charged for and convicted of 119 counts of possession of certain materials in violation of
[¶ 9] The constitutional guarantee against double jeopardy provides protection against multiple punishments for the same offense.
State v. Moos,
2008 ND 228, ¶ 13, 758 N.W.2d 674. “When the same conduct violates more than one statutory provision, the first step in the double jeopardy analysis is to determine whether the legislature intended that each violation be a separate offense.”
Id.
We analyze whether the statute constitutes a different offense when analyzed under the same-elements test formulated in
Blockburger v. United States,
284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). “The
Blockburger
rule is premised upon the presumption that the legislature ordinarily does not intend to punish the same offense under two different statutes, and [a]ccordingly, where two statutory provisions proscribe the same offense, they are construed not to authorize cumulative punishments in the absence of a clear indication of contrary legislative intent.”
Moos,
at ¶ 16 (citations and quotation marks omitted). “Under
Blockburger,
the court analyzes each offense to determine whether each offense contains an element not contained in the other; if not, they are the same offence [sic] and double jeopardy bars additional punishment and successive prosecution.”
Id.
(citation and quotation marks omitted).
Blockburger
does not apply if the legislative intent is clear from the language of
[¶ 10] Under Blockburger, we must first determine whether the legislature intended that each violation be a separate offense. Moos, 2008 ND 228, ¶ 13, 758 N.W.2d 674. This Court’s standard of review for interpreting a statute is well established:
“The interpretation of a statute is a question of law, which is fully reviewable on appeal. The primary objective in interpreting a statute is to determine the legislature’s intent, and we look at the language of the statute first to determine intent. Words in a statute are given their plain, ordinary, and commonly understood meaning, unless they are defined by statute or unless a contrary intention plainly appears.N.D.C.C. § 1-02-02 . The letter of a statute cannot be disregarded under the pretext of pursuing its spirit when the language of the statute is clear and unambiguous.N.D.C.C. § 1-02-05 . A statute is ambiguous if it is susceptible to different, rational meanings. Statutes ai’e construed as a whole and are harmonized to give meaning to related provisions.”
State v. Clark, 2011 ND 157, ¶ 11, 801 N.W.2d 732 (quoting State v. Martin, 2011 ND 6, ¶ 5, 793 N.W.2d 188).
[¶ 11]
“Words in a statute are to be understood in their ordinary sense.N.D.C.C. § 1-02-02 . The word ‘any’ is a general word and may have a diversity of meanings, its meaning in any particular case depending largely on the context and subject matter of the statute or instrument in which it is used. However, the word ‘any’ in statutes is generally used in the sense of ‘all’ or ‘every’ and its meaning is comprehensive in scope and inclusive in range.”
459 N.W.2d 235, 237 (N.D.1990) (citations omitted). Generally, when the term “any” is followed by words in the singular, the clear indication is that the legislature intended prosecution be authorized for each differing conduct.
See e.g., Williams v. Commonwealth,
178 S.W.3d 491, 495 (Ky. 2005) (“The singular form of ‘photograph’ read in conjunction with the term ‘any’ clearly indicates that the Legislature intended prosecution for each differing photograph.”);
State v. Cobb,
143 N.H. 638, 732 A.2d 425, 433-34 (1999) (relying on the use of the word “any” finds the statutory language shows the legislature intended each photo be a separate offense);
State v. Fussell,
974 So.2d 1223, 1235 (La.2008) (finding producing or reproducing “any sexual performance involving a child” constitutes a separate offense for “any single sexual performance”);
State v. Morrison,
31 P.3d 547, 555-56 (Utah 2001) (finding possession of “any visual representation” of child pornography to be a separate offense);
State v. Gillespie,
155 Idaho 714, 316 P.3d 126, 133 (Ct.App.2013) (explaining “our Supreme Court has not viewed the word ‘any’ as a collective term limiting prosecution to a single possession charge but has, quite to the contrary, determined that multiple charges are appropriate under a statute that prohibits the possession of ‘any’ of the singular items described”);
State v. Mather,
264 Neb. 182, 646 N.W.2d 605, 610-11 (2002) (“The singular form of ‘photographic representation’ covered under the statute read in conjunction with the term ‘any1 indicates that the Legisla
[¶ 12] The statute itself uses singular language, indicating separate offenses for each individual violation. The statute refers to a “motion picture,” not pictures, “photograph,” not photographs, or “other visual representation,” not representations. The statute criminalizes these depictions that include “sexual conduct by a minor,” not minors. The singular form of visual depictions utilized in conjunction with the term “any” clearly indicates that the legislature intended prosecution for each differing visual representation.
[¶ 13] Peterka argues prosecution is authorized for each device that contains the visual representation, not each individual visual representation itself. Peter-ka’s interpretation of the statute and double jeopardy argument relies upon the Eighth Circuit’s interpretation of a similar federal statute in
United States v. Hinkeldey,
626 F.3d 1010 (8th Cir.2010). The federal statute provides for punishment for a person who “knowingly possesses ... any book, magazine, periodical, film, videotape, computer disk, or any other material
that contains
an image of child pornography....”
[¶ 14] Hinkeldey argued his six possession counts listed in the indictment were multiplicitious because they charged the same crime, resulting in more than one sentence for the same offense.
Hinkeldey,
626 F.3d at 1012. The Eighth Circuit explained, “Where, as here, an indictment includes more than one count charging the same statutory violation, the question is whether Congress intended the facts underlying each count to constitute a separate unit of prosecution. A unit of prosecution is ‘the aspect of criminal activity that Congress intended to punish.’ ”
Id.
at 1013 (quoting
United States v. Chipps,
410 F.3d 438, 448 (8th Cir.2005)) (internal citation omitted);
see also Moos,
2008 ND 228, ¶ 13, 758 N.W.2d 674 (“When the same conduct violates more than one statutory provision, tbe first step in the double jeopardy analysis is to determine whether the legislature intended that each violation be a separate offense.”). After analyzing
[¶ 15] Our reading of the statute is in accord with other jurisdictions with similar statutory language. A majority of jurisdictions presented with this issue found the clear meaning of the statutory language that is identical or similar to North Dakota’s language authorizes multiple prosecutions and convictions where multiple pornographic images of children are located on a single computer. See State v. Rhoades, 690 N.W.2d 135, 140 (Minn.Ct.App.2004) (authorizing multiple convictions for multiple images); State v. McKinney, 699 N.W.2d 460, 468 (S.D.2005) (concluding “each act of downloading an image of child pornography is a separate offense”); Commonwealth v. Davidson, 595 Pa. 1, 938 A.2d 198, 221 (2007) (concluding each photograph or computer depiction was a distinct occurrence of offensive conduct and finding “[a]ppellant is not entitled to a volume discount”); State v. Multaler, 252 Wis.2d 54, 643 N.W.2d 437, 449 (2002) (explaining each image constituted a separate offense and that “[e]very time [the defendant] downloaded a new file, he recommitted himself to additional criminal conduct” and “[e]ach decision to download more child pornography represented a new volitional departure”); State v. Gillespie, 155 Idaho 714, 316 P.3d 126, 131-34 (Ct. App.2013) (noting that the statutory language including the definition referred to imaging media in the singular and referred to the victim as “a child” in the singular, multiple prosecutions and punishments was authorized by the statute); State v. Morrison, 31 P.3d 547, 555-56 (Utah 2001) (concluding the statute which created a criminal offense for “knowingly ... possessing] ... material ... depicting a nude or partially nude minor for the purpose of causing sexual arousal of any person or any person’s engagement in sexual conduct with the minor” to mean that each individual “representation” of child pornography that is knowingly possessed by an offender constitutes the basis for a. separate offense under the statute); State v. McPherson, 228 Ariz. 557, 269 P.3d 1181, 1184 (Ct.App.2012) (concluding “separate convictions and punishments for different images on the same DVD are constitutionally permissible because the legislature intended the unit of prosecution to be each individual ‘depiction’ ”); Fink v. State, 817 A.2d 781, 788 (Del.2003) (concluding each individual depiction of child pornography constituted a separate offense); Vineyard v. State, 958 S.W.2d 834, 840 (Tex.Crim.App.1998) (possession of each item of child pornography is an allowable unit of prosecution for purposes of double jeopardy analysis); State v. Mather, 264 Neb. 182, 646 N.W.2d 605, 610-11 (2002) (concluding no violation of double jeopardy existed because each photograph possessed represented a separate offense). Several jurisdictions hold otherwise. See, e.g., State v. Liberty, 370 S.W.3d 537, 553-55 (Mo.2012) (reversing the remaining seven counts under one statute and explaining the legislature did not unambiguously express an intent to permit multiple prosecutions for possession of multiple images and the rule of lenity must apply); People v. Sedelsky, 375 Ill.Dec. 353, 997 N.E.2d 664, 670 (Ill.App.Ct.2013) (concluding “on the limited facts present in this case, only one conviction of possessing child pornography can be entered for defendant’s possession of the same digital image stored in the same digital medium”).
[¶ 16} The plain language of
IV
[¶ 17] Peterka argues the district court erred in not granting postcon-viction relief for the sentencing court’s failure to consider his motion for
[¶ 18] “Our appellate review of a criminal sentence is very limited.”
State v. Ennis,
464 N.W.2d 378, 382 (N.D.1990) (footnote omitted). Peterka’s
[¶ 19] Generally, the sentencing court’s ruling on a
“Even if the Clerk had accepted the motion, under Rule 3.2, N.D.R.Ct., the State would have had 14 days plus an additional mailing time to respond to that motion. Further, under Rule 47, N.D.R.Cr.P.(c), parties serving a written motion must do so within 21 days prior to any hearing. Under either rule and absent a request to reduce the response time, the petitioner’s motion was too late to allow a fair and timely response by the State before this Court lost jurisdiction to even considerRule 35(b) relief.”
“(1) Time for Reduction. The sentencing court may reduce a sentence:
(A) within 120 days after the court imposes sentence or revokes probation; or
(B) within 120 days after the court receives the mandate issued upon af-firmance of the judgment or dismissal of the appeal; or
(C) within 120 days after the Supreme Court of the United States enters any order or judgment denying review of, or having the effect of upholding a judgment of conviction or probation revocation.”
The explanatory note to
[¶ 21] The problem with the district court’s finding is that the State filed its response to Peterka’s
[¶ 22] The State’s submission of its response before the 120-day deadline provided the district court with time to decide the motion if the motion had been filed by the clerk of court. Under these facts, we must examine whether Peterka’s motion submitted in his underlying criminal proceeding should have been filed by the clerk of court and considered by the sentencing court. Relying on
[¶ 23] The explanatory note to
“Ordinarily a court is not required to hear testimony or arguments on a motion for reduction of sentence. This is discretionary with the court. If the court does decide to reduce the sentence, the defendant need not be present nor need he be allowed to make a statement in his behalf before the reduced sentence is imposed. A motion for reduction of sentence must comply withRule 47 , but in the case of pro se requests by prisoners, the court will entertain the request although contained in an informal letter from the prisoner to the sentencing judge.”
[¶ 24]
V
[¶ 25] Peterka makes several claims of ineffective assistance of counsel. A person charged with a crime is entitled to effective assistance of counsel at critical stages of criminal proceedings under the Sixth Amendment of the United States Constitution. See Adams v. Illinois, 405 U.S. 278, 279, 92 S.Ct. 916, 31 L.Ed.2d 202 (1972). An applicant for postconviction relief claiming ineffective assistance of counsel:
“must establish both prongs of the Strickland test and demonstrate (1) counsel’s representation fell below an objective standard of reasonableness, and (2) he was prejudiced by counsel’s deficient performance. Whether a defendant received ineffective assistance of counsel is a mixed question of law and fact which is fully reviewable on appeal.”
Osier v. State, 2014 ND 41, ¶ 10, 843 N.W.2d 277 (internal citations omitted). To meet the first prong, “the petitioner must prove that the attorney’s performance fell below an objective standard of reasonableness” measured by “the prevailing professional norms.” Sambursky v. State, 2006 ND 223, ¶ 13, 723 N.W.2d 524. The petitioner must “overcome the strong presumption that counsel’s representation fell within the wide range of reasonable professional assistance.” Id.
“To meet the ‘prejudice’ prong of the Strickland test the defendant carries the heavy burden of establishing a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. The defendant must prove not only that counsel’s assistance was ineffective, but must specify how and where trial counsel was incompetent and the probable different result. Unless counsel’s errors are so blatantly and obviously prejudicial that they would in all cases, regardless of the other evidence presented, create a reasonable probability of a different result, the prejudicial effect of counsel’s errors must be assessed within the context of the remaining evidence properly presented and the overall conduct of the trial.”
Laib v. State, 2005 ND 187, ¶10, 705 N.W.2d 845 (internal citations omitted).
A
[¶ 26] Peterka argues he received ineffective assistance of counsel because his attorney did not challenge the charging documents alleging-119 offenses in violation of the double jeopardy clause for images or videos found on the same device. Peterka argues his options at the time of the pleas and subsequent grounds for appeal would have been different if his attorney made the argument. The district court found since the statute unambiguously allows multiple prosecutions and punishments based on the number of prohibited images possessed rather than on the number of computers containing the images, Peterka’s convictions do not constitute a violation of the double jeopardy clauses of the United States or North Dakota Constitution. The district court found Peterka’s claim that his attorney failed to hire an investigator to determine if there was a factual basis for 119 counts or a legal basis for the prosecutor to proceed with the 119 counts against him was not warranted.
B
[¶ 28] Peterka argues his attorney provided ineffective assistance of counsel by failing to assist in the preparation, filing or service of a
C
[¶ 29] Peterka argues he was provided ineffective assistance of counsel because his attorney failed to demand a change of venue or change of judge. He argues that an evidentiary hearing would have provided sufficient evidence to show the outcome would have been different and that he was prejudiced by the lack of request. The district court found:
“Peterka has offered no evidence that any decision to not seek a change of venue was so blatantly and obviously prejudicial that it would create a reasonable probability of a different result. To the contrary, Peterka ultimately decided to enter pleas of guilty. Whether he did that in Walsh County or some other county would not have altered the events that transpired. The State pointed out the absence of any evidentiary support for this claim. Once it did so, the burden shifted to Peterka to offer some evidence to support it. Steinbach v. State, 2003 ND 46, ¶ 18, 658 N.W.2d 355. He cannot merely reply [sic] on his pleadings or conclusory allegations. Id. Therefore, as a matter of law, the State is entitled to summary dismissal of this claim.”
[¶ 30] Addressing the issue for a demand for change of judge, the district court found:
“As with the prior issue, Peterka has offered no evidence that would support a conclusion that the failure to file a demand for change of judge was so blatantly and obviously prejudicial that it would have regardless of other evidence presented created a reasonable probability of a different result for the defendant. See Osier v. State, [2014 ND 41, 843 N.W.2d 277]. Consequently, this issue is subject to the same fate as the previous one. See Steinbach v. State, [2003 ND 46, 658 N.W.2d 355]. Having failed to establish an issue of fact regarding this, it is unnecessary for the Court to address whether his trial attorney’s representation in this regard fell below an objective standard of reasonableness. Consequently, as a matter of law, Peterka cannot prevail on his claim that he was denied effective assistance of counsel by his trial attorney’s failure to make a demand for change of judge. The State is entitled to summary dismissal of this claim.”
[¶ 31] “To avoid summary dismissal of an ineffective assistance of counsel claim, the post-conviction applicant must present some evidence that his counsel’s performance fell below an objective standard of reasonableness, and he must overcome the presumption that his counsel’s performance was within the broad range of reasonableness.” Klose v. State, 2008 ND 143, ¶ 13, 752 N.W.2d 192. The petitioner “must specify how and where counsel was incompetent and the probable different result.” Id. (citation and quotation marks omitted). “A petitioner’s failure to ‘show how, but for the attorneys’ errors, the results of the proceedings would have been different’ justifies a district court’s decision to summarily dismiss the ineffective assistance of counsel claims.” Ude v. State, 2009 ND 71, ¶9, 764 N.W.2d 419 (quoting Hughes v. State, 2002 ND 28, ¶ 7, 639 N.W.2d 696). Peterka failed to present competent evidence showing how the results in his underlying case would have been different. The district court did not err in granting summary dismissal of Pe-terka’s application for postconviction relief based upon ineffective assistance of counsel for failure to demand a change of venue or change of judge.
VI
[¶ 32] The district court did not err by granting summary judgment and denying in part Peterka’s application for‘postcon-viction relief, finding
[¶ 33] We affirm in part and reverse in part the district court order granting summary judgment and denying in part Pe-terka’s application for postconviction relief. We affirm the district court’s denial of relief based on improper prosecution, finding