State of North Dakota, Plaintiff and Appellee v. Cody Michael Atkins, Defendant and Appellant
No. 20180411
IN THE SUPREME COURT STATE OF NORTH DAKOTA
2019 ND 145, Filed 5/24/19
Corrected Opinion Page Filed 5/28/19 by Clerk of Supreme Court
Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable John A. Thelen, Judge.
AFFIRMED.
Opinion of the Court by McEvers, Justice.
Meredith H. Larson, Assistant State‘s Attorney, Grand Forks, ND, for plaintiff and appellee; submitted on brief.
Scott O. Diamond, Fargo, ND, for defendant and appellant; submitted on brief.
[¶1] Cody Michael Atkins appeals from a district court order denying his motion to withdraw his guilty plea and his motion for a new trial. Atkins argues the district court erred by (1) classifying his motion to withdraw his guilty plea as a post-conviction relief proceeding, and (2) finding he was procedurally barred from raising his
I
[¶2] In March 2015, Atkins pleaded guilty to gross sexual imposition. In June 2015, Atkins was sentenced to 20 years imprisonment with the North Dakota Department of Corrections, with five years suspended for a period of 10 years of supervised probation with credit for time served.
[¶3] In July 2015, Atkins directly appealed the criminal judgment, seeking to withdraw his guilty plea, alleging (1) ineffective assistance of counsel, and (2) the district court‘s failure to substantially comply with
[¶4] In March 2016, Atkins filed his first application for post-conviction relief. He
[¶5] In September 2016, Atkins filed his second application for post-conviction relief, again alleging ineffective assistance of counsel. The State moved to dismiss the application, arguing Atkins failed to provide evidentiary support for his claim, and the district court granted the motion. Atkins appealed the court‘s order, and this Court affirmed, concluding Atkins was put to his proof when the State moved for summary dismissal and that he failed to present any competent evidence raising an issue of material fact. Atkins v. State, 2017 ND 290, ¶ 11, 904 N.W.2d 738.
[¶6] In July 2017, Atkins filed a motion under
[¶7] In November 2017, Atkins filed a motion to dismiss the gross sexual imposition charge because the prosecution failed to seize, try, and prosecute in accordance with constitutional law. The State opposed the motion, arguing Atkins’ motion was unsupported by facts or legal argument. The district court denied the motion.
[¶8] In February 2018, Atkins moved to “vacate” his guilty plea. Atkins alleged he was misinformed by his attorney when deciding to plead guilty. In March 2018, Atkins moved for a new trial, alleging the existence of newly discovered evidence, including: (1) text messages; (2) a sexual assault kit; (3) the credibility of the State‘s witnesses; and (4) evidence tampering by the State. Atkins argued the newly discovered evidence was exculpatory. Atkins’ court-appointed counsel later filed a supplemental brief on both motions further outlining his grounds for relief, adding the allegation that the district court failed to comply with
II
[¶9] Atkins argues the district court erred by applying civil post-conviction affirmative defenses to his criminal law motions filed in his criminal case. The State argues the court correctly relied upon Gress, 2011 ND 233, in finding Atkins’ motions should be treated as a post-conviction relief proceeding.
[¶10] In Gress, 2011 ND 233, the defendant pleaded guilty to two counts of aggravated assault and two years later, applied for post-conviction relief. Id. at ¶ 2. The district court denied his application, and the defendant did not appeal. Id. Three years later, the defendant moved “to suspend his sentence pursuant
[¶11]
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.
A plain reading of this provision is that the Uniform Postconviction Procedure Act is to be used exclusively in place of other remedies collaterally challenging the judgment of conviction. 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
III
[¶12] Having concluded the district court properly treated Atkins’ motions as an application for post-conviction relief, we next review whether the court erred in finding Atkins’ claims were procedurally barred. We have stated:
Post-conviction relief proceedings are civil in nature and governed by the North Dakota Rules of Civil Procedure. The petitioner bears the burden of establishing grounds for post-conviction relief. When we review a district court‘s decision in a post-conviction proceeding, questions of law are fully reviewable. The district court‘s findings of fact in a post-conviction proceeding will not be disturbed on appeal unless they are clearly erroneous under
N.D.R.Civ.P. 52(a) . A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if it is not supported by any evidence, or if, although there is some evidence to support the finding, a reviewing court is left with a definite and firm conviction a mistake has been made.
Curtiss v. State, 2016 ND 62, ¶ 7, 877 N.W.2d 58 (internal citations and quotations omitted). “Post-conviction proceedings are not intended to allow defendants multiple opportunities to raise the same or similar issues, and defendants who inexcusably fail to raise all of their claims in a single post-conviction proceeding misuse the post-conviction process by initiating a subsequent application raising issues that could have been raised in the earlier proceeding.” Steen v. State, 2007 ND 123, ¶ 13, 736 N.W.2d 457 (quoting Jensen v. State, 2004 ND 200, ¶ 9, 688 N.W.2d 374). “Generally, the applicability of res judicata is a question of law and is fully reviewable on appeal.” Id.
A
[¶13] Under
[¶14] With respect to Atkins’ allegations of the district court‘s
B
[¶15] Atkins also claimed he should be allowed to withdraw his plea
[¶16] In the direct appeal of his criminal judgment, Atkins alleged ineffective assistance of trial counsel which this Court addressed, holding he had failed to show counsel was plainly defective. Atkins, 2016 ND 13, ¶ 9. We left open the possibility that Atkins could pursue his claim in a post-conviction proceeding. Id. Following the direct appeal, Atkins claimed ineffective assistance of counsel in his March 2016 and September 2016 applications for post-conviction relief. We agree with the district court that Atkins’ claim of ineffective assistance of counsel is barred by res judicata, and to the extent his specific allegations differ from those previously argued, misuse of process.
IV
[¶17] Atkins argues the district court erred by denying relief based on his allegations of newly discovered evidence. “Post-conviction relief may be granted when ‘[e]vidence, not previously presented and heard, exists requiring vacation of the conviction or sentence in the interest of justice.‘” Kovalevich v. State, 2018 ND 184, ¶ 4, 915 N.W.2d 644 (quoting
Under
N.D.R.Crim.P. 33(a) , the trial court may grant a new trial to the defendant if required in the interests of justice. To prevail on a motion for a new trial on the ground of newly discovered evidence, the defendant must show (1) the evidence was discovered after trial, (2) the failure to learn about the evidence at the time of trial was not the result of the defendant‘s lack of diligence, (3) the newly discovered evidence is material to the issues at trial, and (4) the weight and quality of the newly discovered evidence would likely result in an acquittal. A motion for new trial based upon newly discovered evidence rests within the discretion of the trial court, and we will not reverse the court‘s denial of the motion unless the court has abused its discretion. If the newly discovered evidence is of such a nature that it is not likely to be believed by the jury or to change the results of the original trial, the court‘s denial of the new trial motion is not an abuse of discretion.A trial court abuses its discretion if it acts arbitrarily, unreasonably, unconscionably, or when its decision is not the product of a rational mental process leading to a reasoned decision.
Id. (internal citations omitted). “The task of weighing the evidence and judging the credibility of witnesses belongs exclusively to the trier of fact, and we do not reweigh credibility or resolve conflicts in the evidence.” Greywind v. State, 2004 ND 213, ¶ 22, 689 N.W.2d 390.
[¶18] Atkins argues he satisfied the four-part test for reviewing a motion for a new trial based on newly discovered evidence. In his motion before the district court, Atkins asserted the existence of four items of newly discovered evidence: (1) exculpatory text messages; (2) a sexual assault kit
A
[¶19] Atkins argues he discovered exculpatory text messages in 2017, after his conviction. At the motion hearing, Atkins testified he did not know the text messages existed at the time he entered his plea. He stated he became aware of the text messages through his mother. He also testified he was talking to his mother while incarcerated and she revealed she possessed the messages. He admitted he did not need a court order, search warrant, or subpoena to get the text messages from his mother. He further admitted he never previously asked his mother for any evidence related to his case. In finding the text messages were not newly discovered evidence, the district court noted Atkins failed to call either his mother or his attorney to support his argument the messages were unknown to him prior to his guilty plea. The court stated Atkins’ failure to learn about the text messages was due to a lack of diligence on his part since his mother had the messages prior to his guilty plea.
[¶20] In Syvertson v. State, 2005 ND 128, ¶ 9, 699 N.W.2d 855, this Court held that information that was publicly disseminated and easily accessible was not newly discovered evidence when the defendant failed to establish that his failure to learn about the evidence at the time of trial was not due to his own lack of diligence. Here, Atkins also failed to show his failure to learn about the text messages was not due to his own lack of diligence. He admitted he did not ask his mother for any information she might have regarding his case prior to pleading guilty. He does not allege she concealed the information from him or that she was unavailable at the time of his plea. The district court did not abuse its discretion in finding the text messages were not newly discovered and that even if they were, Atkins’ failure to learn about them was due to his own lack of diligence.
[¶21] The district court further found “the weight and quality of the text messages, when considering the totality of the evidence brought against Atkins, would likely not result in an acquittal.” The text messages show that a potential witness may not have thought Atkins committed the alleged acts, but also stated she did not know what happened, and acknowledged she left the victim with Atkins and another person for about 10 minutes. The court did not abuse its discretion finding the text messages would not likely result in acquittal, and therefore do not qualify as newly discovered evidence.
B
[¶22] Next, Atkins argues the results of a sexual assault kit are newly discovered evidence because his attorney never provided him with a copy of the results. He argues the results are exculpatory because they show a lack of evidence supporting the allegations against him. At the motion hearing, the State introduced a document listing the discovery Attorney Morrow received. When introducing the exhibit, the State described it as “the discovery Mr. Atkins received from Mr. Morrow,” and Atkins did not object to its admission. Atkins testified at the motion hearing at one point admitting he “didn‘t really read the discovery.” He admitted it was possible he missed the results of the sexual assault kit when he did receive the discovery because he just skimmed through it. The district court found:
Clearly, the alleged exculpatory information connected to the Sexual Assault Kit would have been provided to Atkins and his legal counsel as part of the discovery process. Therefore, Atkins had the Sexual Assault Kit report prior to pleading guilty and being sentenced and such is not newly discovered evidence.
The court‘s findings are not clearly erroneous. We conclude the court did not abuse its discretion by denying relief based on Atkins’ claims of newly discovered evidence.
V
[¶23] In his supplemental brief, Atkins argues the attorney for the alleged victim in his gross sexual imposition case works in the same law firm as his post-conviction counsel. He also argues the entire Grand Forks Public Defender‘s office has a conflict of interest with his case because they represented several of the State‘s witnesses. It appears he is raising these arguments for the first time on appeal, and we decline to address them. See State v. Kieper, 2008 ND 65, ¶ 16, 747 N.W.2d 497 (issues not raised in the district court cannot be raised for the first time on appeal).
[¶24] It is unnecessary to address other issues raised on appeal because they are either without merit or unnecessary to the decision.
VI
[¶25] We affirm the district court order denying Atkins’ motions applying the procedures under the Uniform Postconviction Procedure Act.
[¶26] Lisa Fair McEvers
Daniel J. Crothers
Jerod E. Tufte
Gary H. Lee, D.J.
Gerald W. VandeWalle, C.J.
[¶27] The Honorable Gary H. Lee, D.J., sitting in place of Jensen, J., disqualified.