Lead Opinion
[¶ 1] Dаle Gress appealed from a district court order denying his motion to
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[¶ 2] In 2006, Gress pled guilty to two counts of aggravated assault, one count of burglary, two cоunts of violating a domestic violence protection order, and one count of simple assault. In 2008, Gress applied for post-conviсtion relief. After a hearing, this district court denied his application for post-conviction relief. Gress never appealed.
[¶ 3] On January 24, 2011, Grеss moved to suspend his sentence “pursuant to N.D.R.Civ.P. Rule 60(b)(6) ... in the interest of Justice. Alternatively, ... to withdraw his unconstitutional plea-agreement.” Gress argued his рlea was coerced and unconstitutional, he did not knowingly enter into the plea agreement and waive his federal constitutional rights, he was not guilty of the charges, and the withdrawal of his plea was in the interests of justice. The State responded to Gress’s motion, arguing the rules of civil procedure did not apply, the motion was untimely if it was interpreted as a motion to reduce a sentence under N.D.R.Crim.P. 35, and his motion to withdraw his pleа was conclusory and without factual support or legal argument. On February 7, 2011, the district court denied Gress’s motion by writing the word “DENIED” on the motion and signing and dating it.
[¶ 4] In Gress,
[¶ 5] The district court thereafter sent this Court a letter explaining the bаsis for its decision. The court stated it did not recall the case or the reason for its decision, but based on the file and record, the court stated it would have denied Gress’s request to suspend his sentence because it was unable to ascertain the basis for the request. The court also stated it would have denied Gress’s request to withdraw his guilty plea because Gress never asserted during the plea hearing or sentencing that he was not guilty of the charges and the court substantially complied with the requirements for accepting a guilty plea under NJD.R.Crim.P. 11(b).
II
[¶ 6] Gress moved to withdraw his guilty plea, аnd he did not move to correct an illegal sentence or to reduce his sentence under N.D.R.Crim.P. 35. Gress’s motion was not titled as an application for post-conviction relief, but he previously filed an application for post-conviction relief. We will consider his motion as a second application for post-conviction relief.
[¶ 7] “ ‘When a defendant applies for post-conviction relief seeking tо withdraw a guilty plea, the application is treated as one made under N.D.R.Crim.P. 11(d).’” Eaton v. State,
[¶ 8] The State has not argued Gress’s claim was barred by a misuse of process or res judicata, and therefore we will not address those issues on appеal. See N.D.C.C. § 29-32.1-12(3) (res judicata and misuse of process are affirmative defenses that must be pleaded by the State). The State also did not move for summary dismissal under N.D.C.C. §§ 29-32.1-06(2) or 29-32.1-09; rather, the district court summarily denied Gress’s motion on its own initiative.
[¶9] Summary dismissal under N.D.C.C. § 29-32.1-06(2) is analogous to dismissal of a civil complaint under what is now denominated as N.D.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted, and a court may dismiss an application on its own initiativе for failure to state a valid claim. See Wong v. State,
[¶ 10] In the district court’s letter to this Court еxplaining the basis for its decision, the court said it denied Gress’s request to withdraw his plea because Gress did not state he was not guilty of the charges whеn the court accepted his guilty plea or sentenced him, and the court substantially complied with the requirements for accepting a plea under N.D.R.Crim.P. 11. The court considered matters outside the pleadings in denying Gress’s motion. Therefore, Gress was entitled to be given notice and an оpportunity to respond and submit evidence supporting his claim. A claim that withdrawal is necessary to correct a manifest injustice may be based on matters outside the record, and the court must give the petitioner an opportunity to respond and present evidence. See State v. Pixler,
Ill
[¶ 11] We conclude the district court erred in denying Gress’s motion to withdraw his guilty plea. Wе reverse the district court’s order and remand for further proceedings consistent with this opinion.
Concurrence Opinion
concurring specially.
[¶ 13] I would note that the district court aсted to dismiss this case on its own before the State could move for summary dismissal. On the return of this case to district court, the State is not precluded from moving for summary dismissal.
[¶ 14] DALE V. SANDSTROM