Berlin v. State

• Decision Date: 22 June 2005
• Docket Number: No. 20050030.,20050030.
• Citation: 698 N.W.2d 266,2005 ND 110
• Parties: David C. BERLIN, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
• Court: North Dakota Supreme Court

698 N.W.2d 266

2005 ND 110

David C. BERLIN, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.

No. 20050030.

Supreme Court of North Dakota.

June 22, 2005.

Jeff A. Bredahl (argued) and Tracy Andrew Gompf (on brief), Bredahl, Frisk & Gompf, Fargo, ND, for petitioner and appellant.

Aaron Grayson Birst, Assistant State's Attorney, Fargo, ND, for respondent and appellee.

VANDE WALLE, Chief Justice.

[¶ 1] David Berlin appealed from an order summarily dismissing his application for post-conviction relief. We hold Berlin has raised genuine issues of material fact entitling him to an evidentiary hearing on his post-conviction application. We, therefore, reverse and remand for further proceedings.

I

[¶ 2] At a hearing on November 13, 2003, Berlin, with the assistance of court-appointed counsel, pled guilty to class C felony theft of property in violation of N.D.C.C. § 12.1-23-02 and class A misdemeanor fleeing or attempting to elude a police officer in violation of N.D.C.C. § 39-10-71. In an amended criminal judgment, entered on December 22, 2003, Berlin was sentenced to two years incarceration on the theft of property violation and was sentenced to one year incarceration on the conviction for fleeing a police officer, with the sentences to run concurrently.

[¶ 3] On July 21, 2004, Berlin filed a pro se application for post-conviction relief. The State submitted a response, and indigent defense counsel was appointed and filed a notice of appearance on August 19, 2004. Through appointed counsel, Berlin requested additional time to supplement the application for post-conviction relief, which was granted by the district court.¹ A supplemental application for post-conviction relief was filed with the assistance of counsel, which included a request for an evidentiary hearing and the same three allegations on the merits as contained in the original pro se petition: (1) the prosecution failed to disclose evidence favorable to Berlin, because a complaint by the alleged victim was never filed; (2) Berlin was compelled to be a witness against himself in pleading guilty to the charges; and (3) Berlin received ineffective assistance of counsel, because his attorney told Berlin he would receive a four-month sentence rather than the two-year sentence imposed by the court. The district court, on its own motion and without granting an evidentiary hearing, summarily denied Berlin's application for post-conviction relief.

II

[¶ 4] On appeal, Berlin asserts the district court committed error by denying his petition without first granting him an evidentiary hearing. Berlin claims there are genuine issues of material fact, especially regarding his ineffective assistance of counsel claim, for which he should be given an evidentiary hearing:

It has been suggested by various individuals, including the District Court Judges, prosecutors, and defense attorneys, as well as officials at Thompkins Center that treatment at Thompkins can result in a reduction of time served on a sentence. However, this is not based on any statute, rule, or policy known to counsel. Therefore, it would be speculation that Appellant Berlin would actually serve four (4) months on a two (2) year straight-time sentence. An evidentiary hearing would shed light on this issue to determine if, in fact, Appellant Berlin was told that he would serve four (4) months, which he relied upon as an inducement to plead guilty.

[¶ 5] The State asserts Berlin's issues are without merit, and the district court did not err in summarily dismissing the petition.

[¶ 6] The explicit purpose of the Uniform Post-Conviction Procedure Act under N.D.C.C. ch. 29-32.1 is to provide a method to develop a complete record to challenge a criminal conviction. Eagleman v. State, 2004 ND 6, ¶ 4, 673 N.W.2d 241. Under N.D.C.C. § 29-32.1-09, the district court may summarily dismiss an application for post-conviction relief if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law:

1. The court may grant a motion by either party for summary disposition if the application, pleadings, any previous proceeding, discovery, or other matters of record show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.

2. If an evidentiary hearing is necessary, the court may determine which issues of material fact are in controversy and appropriately restrict the hearing.

We review an appeal from a summary denial of post-conviction relief as we review an appeal from a summary judgment. Whiteman v. State, 2002 ND 77, ¶ 7, 643 N.W.2d 704. 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. Id.

[¶ 7] The statute does not expressly allow the court to dismiss on its own motion an application for post-conviction relief. It says the court "may grant a motion by either party for summary disposition." However, a summary dismissal of a post-conviction application is analogous to dismissal of a civil complaint under N.D.R.Civ.P. 12(b) for failure to state a claim upon which relief can be granted. In such cases, we have held that a trial court may, on its own initiative, and in the cautious exercise of its discretion, dismiss a complaint for failure to state a valid claim under Rule 12(b). Isaac v. State Farm Mut. Auto. Ins., 547 N.W.2d 548, 550 (N.D.1996). We have warned this power must be exercised sparingly and with great care to protect the rights of the parties, and the court should dismiss under Rule 12(b) only when certain it is impossible for the plaintiff to prove a claim for which relief can be granted. Ennis v. Dasovick, 506 N.W.2d 386, 389 (N.D.1993). The power of the court to dismiss a claim on its own motion under Rule 12(b) derives from the court's inherent authority to dismiss a meritless claim. See Albrecht v. First Fed. Sav. & Loan Ass'n, 372 N.W.2d 893, 894 (N.D.1985). We hold the trial court possesses the same inherent authority under N.D.C.C. § 29-32.1-09 to summarily dismiss an application for post-conviction relief when the statutory triggering conditions are met, i.e., there is no genuine issue as to any material fact and the party in whose favor the dismissal is entered is entitled to judgment as a matter of law.

[¶ 8] Ordinarily, a claim of ineffective assistance of counsel should be resolved in a post-conviction relief proceeding so the parties can fully develop a record on the issue of counsel's performance and its impact on the defendant's case. State v. Palmer, 2002 ND 5, ¶ 12, 638 N.W.2d 18. An applicant for post-conviction relief need not provide evidence or proof with the application, but must set forth a concise statement for each ground of relief and specify the relief requested. Eagleman, 2004 ND 6, ¶ 11, 673 N.W.2d 241. For the court to summarily dismiss the application under N.D.C.C. § 29-32.1-09, there must be no dispute as to either the material facts or the inferences to be drawn from undisputed facts and the State must be entitled to judgment as a matter of law. Id.

[¶ 9] Berlin's claims present a problem for summary dismissal because the district court did not conclude they were facially invalid. In its order denying relief the district court stated:

Berlin claims relief because the prosecution failed to disclose evidence favorable to petitioner in that a complaint by the alleged

...