Bell v. State

• Decision Date: 12 February 1998
• Docket Number: No. 970212,970212
• Citation: 575 N.W.2d 211,1998 ND 35
• Parties: Kyle Kenneth BELL, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee. Civil
• Court: North Dakota Supreme Court

Page 211

575 N.W.2d 211

1998 ND 35

Kyle Kenneth BELL, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.

Civil No. 970212.

Supreme Court of North Dakota.

Feb. 12, 1998.

Joe A. Johnson, Fargo, for petitioner and appellant.

Stephen R. Dawson, Assistant State's Attorney, for respondent and appellee.

NEUMANN, Justice.

¶1 Kyle Bell appeals from an order of the Cass County District Court denying his application for default judgment and an order dismissing an amended application for post-conviction relief. We affirm.

I

¶2 Kyle Bell was convicted of two counts of gross sexual imposition and two counts of use of a minor in sexual performance, class B felonies, and sentenced under an amended criminal judgment and commitment dated June 16, 1995. Bell appealed the conviction and sentence; both were affirmed. State v. Bell, 540 N.W.2d 599 (N.D.1995). Bell applied for post-conviction relief on his own behalf; his application was dated January 19, 1996. Bell also made an application for court-appointed counsel dated January 19, 1996. Both applications were filed in the Cass County Clerk of District Court's office on January 22, 1996, as shown by date stamp. On February 7, 1996, Bell's requests for post-conviction relief and court-appointed counsel were summarily denied.

¶3 On February 23, 1996, Bell again applied for courtappointed counsel and filed an amended application for post-conviction relief. Both applications were filed with the clerk of court on February 28, 1996. On April 2, 1996, Bell made yet another application for court-appointed counsel, along with a petition for writ of mandamus, filed in the clerk of court's office April 4, 1996. Bell's applications for court-appointed counsel were all accompanied by applications requesting to proceed in forma pauperis. Apparently, though not reflected in the record, counsel was appointed for Bell on approximately June 27, 1996.

¶4 On July 1, 1996, the State moved for an extension of time to respond to Bell's application for post-conviction relief. The State's Attorney claimed its office was not notified by the clerk of court's office of Bell's application until June 13, 1996. ¹ On July 8, 1996, the trial court granted the State an extension until August 1, 1996, to respond to Bell's application.

¶5 The State failed to respond by August 1, 1996. On October 10, 1996, Bell's counsel filed a Notice and Application for Default Judgment. The court scheduled a hearing on the application for default judgment on October 21, 1996. On October 18, 1996, the State resisted the default and moved to dismiss.

¶6 For some unexplained reason, the hearing on Bell's application for default judgment did not occur until March 10, 1997. Due to his incarceration, Bell was not present at the hearing and his attorney did not request Bell be allowed to attend. The trial court denied Bell's motion for default judgment and proceeded to hear the State's motion to dismiss Bell's application. Bell's application for post-conviction relief was dismissed on March 27, 1997. This appeal followed.

¶7 During oral argument on appeal, the State acknowledged the statutory requirement for the clerk of court to forward each application for post-conviction relief to the State's Attorney's office. ² The State also acknowledged N.D.C.C. § 29-32.1-06(1) requires the State to respond to applications within thirty days after the application is docketed with the clerk of court.

II

¶8 Bell argues the trial court erred in denying his motion for default judgment on his application for post-conviction relief. He bases the argument on Rule 55, N.D.R.Civ.P., and also on the language of N.D.C.C. § 29-32.1-06.

A

¶9 Bell initially contends the trial court abused its discretion in denying his motion for default judgment on his application for post-conviction relief when the State twice failed to respond in a timely manner. His contention is based on the premise that because post-conviction relief is treated as a civil action, and because the State failed to respond to his application within the required time, his application should be deemed meritorious under Rule 55, N.D.R.Civ.P. We disagree.

¶10 Proceedings for post-conviction relief are civil in nature. McMorrow v. State, 516 N.W.2d 282, 283 (N.D.1994). We have stated, in post-conviction relief proceedings, "all rules and statutes applicable in civil proceedings, including pretrial and discovery procedures, are available to the parties." State v. Wilson, 466 N.W.2d 101, 103 (N.D.1991); see also State v. Skjonsby, 417 N.W.2d 818, 820 (N.D.1987) (recognizing rules and statutes for civil proceedings apply in post-conviction relief cases). This Court has not yet applied Rule 55, N.D.R.Civ.P., to cases involving post-conviction relief.

¶11 Rule 55 allows entry of judgment against a party who has defaulted by his failure "to plead or otherwise appear." Rule 55(a), N.D.R.Civ.P. However, default alone is not enough to obtain judgment under the rule. See 10 CHARLES ALAN WRIGHT, ARTHUR R. MILLER AND MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2685 (2d ed.1983). Under Rule 55, the party requesting the judgment by default is required to offer proof showing entitlement to the relief sought. Rule 55(a)(2) and (c), N.D.R.Civ.P. The entry of default judgment rests within the discretion of the trial court. 10 WRIGHT, A. MILLER, § 2685, supra. While other jurisdictions ³ have recognized or considered default judgment proceedings in post-conviction relief actions, we need not decide today whether Rule 55 applies to post-conviction proceedings in this state. Even if Rule 55 does apply, the petitioner has not shown he is entitled to relief under the rule. Rule 55(a)(2), which applies to claims that are not for a set sum of money, states: "the court, before directing the entry of judgment, shall require such proof as may be necessary to enable it to determine and grant the relief, if any, to which the plaintiff may be entitled." Under subsection c: "No judgment by default may be entered against the state ... unless the claimant establishes a claim or right to relief by evidence satisfactory to the court." The trial court has broad discretion in determining the quality of proof necessary to support granting a default judgment. Overboe v. Odegaard, 496 N.W.2d 574, 578 (N.D.1993).

¶12 In his motion for default judgment, Bell asserted the State had failed to respond within the time frame under N.D.C.C. § 29-32.1-06 or within the extension of time granted by the trial court. The fact the State failed to respond within thirty days of the initial application or within the extension granted by the trial court is not in dispute.

¶13 Bell's motion for default judgment had no affidavits or other offers of proof attached. Bell's motion asked the trial court to grant the relief Bell had sought in his application for post-conviction hearing; in effect, Bell relied on his earlier application to prove his default judgment claim. Bell supported his application for post-conviction relief only with his own allegations. Bell did not offer other affidavits, records, or evidence. Bell's application, because it was subscribed and sworn to, serves as an affidavit. ⁴ 2A C.J.S., Affidavits, § 5 (1972). Bell's sworn statement contains numerous conclusory allegations of prosecutorial misconduct, misconduct by the attorney who represented him at sentencing, and judicial misconduct, along with a laundry list of other alleged wrongs. Bell, however, has not offered anything in addition to this sworn statement to support his claim, and that statement is convoluted, confused, and confusing.

¶14 We review Bell's "affidavit" to determine if he has asserted any factual bases to support his claims. Bell claims the prosecutor made false statements at the preliminary hearing and disclosed confidential and false information to the media. Those claims are conclusory in nature and are not supported with facts.

Bell claims his counsel failed to file a motion for change of venue as he requested. Even if this assertion is true, it is irrelevant, because Bell could not be prejudiced by his attorney's failure to file a motion for change of venue, when he had voluntarily pled guilty. As we have often stated, generally, voluntarily pleading guilty waives all nonjurisdictional defects allegedly occurring before the guilty plea. See State v. Olson, 544 N.W.2d 144, 146 (N.D.1996); State v. Keyes, 536 N.W.2d 358, 360 (N.D.1995); State v. Slapnicka, 376 N.W.2d 33, 35 (N.D.1985). By pleading guilty, Bell effectively waived any possible venue defect.

¶15 Bell claims he should not have received the maximum sentence because he had pled guilty, he had requested mercy of the court, he had found other similar cases without such harsh sentences, and Bell had been told by an officer that he would try to get Bell a break. All of these allegations are irrelevant. Bell was sentenced to the maximum authorized by law. He is not entitled to any relief for such sentence under N.D.C.C. ch. 29-32.1. Section 29-32.1-01(1)(d) states: "A person who has been convicted of and sentenced for a crime may institute a proceeding applying for relief under this chapter upon the ground that: ... (d) The sentence is not authorized by law." Even if Bell's allegations regarding sentencing are true, they are not a basis for relief under the statute.

¶16 Bell claims the trial court failed to acknowledge a state hospital report in sentencing him. He also claims he has new witnesses that would benefit his case. Both claims are conclusory in nature, giving no factual basis of what information the report would have provided or the names of any witness he would call.

¶17 Bell claims other inmates mistreated him by inflicting physical, mental, and emotional abuse on him. He further claimed the treatment program at the state penitentiary was inadequate. These claims are also irrelevant. Section 29-32.1-01(2), N.D.C.C., specifically...