Jаson James Vogt, Petitioner and Appellant v. State of North Dakota, Respondent and Appellee
No. 20220058
IN THE SUPREME COURT STATE OF NORTH DAKOTA
AUGUST 18, 2022
2022 ND 163
Appeal from the District Court of Cass County, East Central Judicial District, the Honorable John Charles Irby, Judge.
AFFIRMED.
Opinion of the Court by McEvers, Justice.
Kiara C.
Vogt v. State
No. 20220058
McEvers, Justice.
[¶1] Jason Vogt appeals from a judgment dismissing his application for post-conviction relief. He argues the district court erred when it dismissed his petition because the State waived its affirmative defenses and its motion for dismissal was untimely; the court erred when it held his application was barred by the statute of limitations; and, equitable estoppel should apply because the State fraudulently induced him into agreeing to a continuance. We affirm.
I
[¶2] Vogt pled guilty to gross sexual imposition. See 09-2013-CR-3705. His first application for post-conviction relief was summarily affirmed in Vogt v. State, 2016 ND 48, 876 N.W.2d 485. He filed a second application that was dismissed and not appealed. See 09-2017-CV-3345. He then filed a motion in his criminal case to vacate the judgment and withdraw his guilty plea. See State v. Vogt, 2019 ND 236, ¶ 7, 933 N.W.2d 916. On appeal, we treated the motion as a third application for post-conviction relief. Id. We reversed and remanded concluding Vogt had not been given proper notice before his application was summarily dismissed. Id. at 10.
[¶3] Vogt‘s present application for post-conviction relief сlaims he is innocent, his counsel was ineffective, his guilty plea was involuntary, and his confession was coerced. The State asserted defenses of res judicata, misuse of process, and the statute of limitations. Vogt responded with a psychological assessment that he claims is newly discovered evidence. The psychological assessment was prepared after his application was filed. The assessment opines Vogt may have involuntarily waived his rights and he may have falsely сonfessed.
[¶4] The State filed a “Motion to Dismiss or Motion for Summary Disposition.” Vogt responded arguing the State‘s motion was untimely and his application was not barred by the statute of limitations because the psychological assessment is newly discovеred evidence. The district court held a motion hearing. Ruling from the bench, the court dismissed the application holding: “none of this was timely here. I don‘t consider this report, as interesting as it is, as newly discovered evidence . . . We‘re way outside of that twо-year statute of limitations.” The court entered a written order and a dismissal judgment.
II
[¶5] In post-conviction relief cases, the petitioner bears the burden of establishing grounds for relief. Morris v. State, 2019 ND 166, ¶ 6, 930 N.W.2d 195.
When we review a district court‘s decision in a post-conviction рroceeding, 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 аn 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.
Id. (quoting Curtiss v. State, 2016 ND 62, ¶ 7, 877 N.W.2d 58). The North Dakota Rules of Civil Procedurе and the North Dakota Rules of Court are applicable in
III
[¶6] Vogt argues the district court erred when it dismissed his petition because the State waived its affirmative defenses and its motion was untimely.
A
[¶7] Vogt claims the State waived its affirmative defenses by failing to assert them in a timely manner. The State asserted defenses of res judicata, misuse of process, and the statute of limitations. Under
[¶8] Here, Vogt filed his application on November 3, 2020. The State filed its answer on November 12, 2020. The State‘s answer was filed within 30 days of Vogt‘s application and is therefore within the deadline set out by the Uniform Postconviction Procedure Act. The State‘s answer explicitly asserted the defenses of res judicata, misuse of proсess, and the
B
[¶9] Vogt claims the State‘s motion was untimely. Different timing requirements apply depending on the type of motion. To decide this issue, we must first identify the aрpropriate rule.
[¶10] Under
[¶11] Because
[¶12] In this case, before any motions were filed, the district court set a “Post-Conviction Hearing” for May 14, 2021. The parties agreed to a continuance after Vogt filed his psychological assessment. The court reset the hearing for September 17, 2021. On September 14, 2021, the State served notice of its motion and brief. The State‘s motion requested that if Vogt “needs additional time to respond, the State requests both the motion and post-conviction hearing be rescheduled allowing an extended time to respond.” The court held the hearing, noted the timing issue, and asked Vogt‘s counsel how she preferred to proceed. She stated she intended to present evidence that day, but if the court chose not to hear evidence:
[T]hen I would like my 30 days to respond to the motion properly. The State can then time tо reply to that brief that I filed. The Court can then decide whether to dismiss the case or not dismiss the case, and then have our evidentiary hearing after that. That is technically, procedurally how it should go.
The State agreed and moved for a continuance. Vogt objected. The court granted the State‘s motion and reset the hearing giving Vogt an additional 30 days to respond.
[¶13] On this record, we are not convinced the district court abused its discretion when it granted the continuance. It is not clear whether a deadline had passed at the time the State requested the continuance. There is no scheduling order in the record, nor was there any indication of the intended scope of the September hearing at the time the State filed its motion. In any event, Vogt was on notice, for almost a year, of the defenses the State raised in its motion. And the court gave Vogt 30 days to respond as required by
IV
[¶14] Vogt argues the district court erred when it held his application is barred by the statute of limitations. Vogt claims a psychological assessment proves law enforcement elicited “coerced statements” from him and therefore his plea of guilty was not “voluntarily, knowingly, or intelligently made because of the newly discovered evidence.”
[¶15] We apply the following standard for summary disposition of an application fоr post-conviction relief upon a motion:
A court may summarily dismiss an application for post-conviction relief under
N.D.C.C. § 29-32.1-09 , which is analogous to summary judgment, if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. 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.
Chisholm, 2014 ND 125, ¶ 10 (internal citations omitted) (quoting Wong v. State, 2010 ND 219, ¶ 12, 790 N.W.2d 757).
[¶16] Under
The petition alleges the existence of newly discovered evidence, including DNA evidence, which if proved and reviewed in light of the evidence as a whole, would establish that the petitioner did not engage in the criminal conduct for which the petitioner wаs convicted[.]
We apply a four-pronged test to a petition for post-conviction relief based on newly discovered evidence following a guilty plea. See Bridges v. State, 2022 ND 147, ¶ 13, ___ N.W.2d ___ (modifying our prior test). The petitioner must prove: (1) the evidence was discovered after his or her guilty plea; (2) failure to discover the evidence prior to the plea was not the result of his or her lack of diligence; (3) the newly discovered evidence is material to what would have been the issues at trial; and (4) “if proved and reviewed in light of the evidence as a whole the newly discovered evidence would establish that the petitioner did not engage in the criminal conduct for which the petitioner was convicted.” Id. at ¶¶ 9, 13 (internal quotations omitted).
[¶17] Even taking as true the assertions in thе psychological assessment Vogt relies on, his argument fails as a matter of law. Vogt is attempting to use the assessment to prove his plea of guilty was involuntary. He does not claim the assessment establishes his innocence. At the motion hearing, his counsel argued: “[W]hat Mr. Vogt is saying is that if he had had this report, prior to his change of plea; that he wouldn‘t have changed his plea because they would have made a motion to suppress.” Vogt has not explained how the psychologicаl assessment would establish he did not commit the crime to which he pled guilty. Under both our prior test and the test we announced in Bridges, Vogt has not demonstrated the newly discovered evidence exception to the
V
[¶18] Vogt invites us to apply the principles of equitable estoppel we discussed in Ellis v. North Dakota State University, 2009 ND 59, ¶ 18, 764 N.W.2d 192 and Burr v. Trinity Medical Center, 492 N.W.2d 904, 908 (N.D. 1992). He argues the State fraudulently induced him into a stipulated continuanсe under a pretense that it was reviewing the psychological assessment. He claims that because of the State‘s representations, “he essentially forfeited his evidentiary hearing in this matter.” However, in the district court, Vogt implied the State‘s request for a continuance was in bad faith, but he did not assert principles of equitable estoppel entitled him to an evidentiary hearing. We therefore will not address this argument on appeal. See State v. Kelly, 2022 ND 112, ¶ 2, 974 N.W.2d 634 (“This Court does not address issues raised for the first time on appeal.“)
VI
[¶19] We affirm the judgment.
[¶20] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Jerod E. Tufte