Chisholm v. State

• Decision Date: 24 June 2014
• Docket Number: No. 20130406.,20130406.
• Citation: 848 N.W.2d 703,2014 ND 125
• Parties: Rodney CHISHOLM, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
• Court: North Dakota Supreme Court

848 N.W.2d 703

2014 ND 125

Rodney CHISHOLM, Petitioner and Appellant

v.STATE of North Dakota, Respondent and Appellee.

No. 20130406.

Supreme Court of North Dakota.

June 24, 2014.

Nicholas D. Thornton (argued), Fargo, N.D. and Erin M. Conroy (on brief), Bottineau, N.D., for petitioner and appellant.

M. Jason McCarthy, Assistant State's Attorney, and Jared J. Wall (on brief), third-year law student, under the Rule on Limited Practice of Law by Law Students, Grand Forks, N.D., for respondent and appellee.

VANDE WALLE, Chief Justice.

[¶ 1] Rodney Chisholm appealed from a district court order dismissing his application for post-conviction relief. Chisholm argues the court erred in summarily dismissing his application on its own motion without providing him with notice or an opportunity to be heard. He also claims the court erred in failing to rule on every issue raised in his application. We reverse and remand, concluding the court erred in summarily dismissing the application.

I

[¶ 2] In 2011, a jury found Chisholm guilty of murder. Chisholm appealed, and his conviction was affirmed. State v. Chisholm, 2012 ND 147, 818 N.W.2d 707.

[¶ 3] On August 26, 2013, Chisholm filed his own application for post-conviction relief. Chisholm claimed he received ineffective assistance of trial and appellate counsel because his attorney failed to present evidence about the victim's recent prior bad acts, his attorney had a drug addiction problem which affected his representation during the trial and the appeal, his attorney failed to challenge the admission of his confession, his attorney failed to adequately challenge the search of his property, and his attorney failed to object to instances of prosecutorial misconduct.

[¶ 4] On September 10, 2013, Chisholm, through an attorney, filed a brief in support of the application. The brief stated:

Mr. Chisholm now raises two main arguments in support of his claim of ineffective assistance of counsel in his application for post-conviction relief:

1) Trial counsel failed to object to the introduction of Mr. Chisholm's confession, despite the fact that it was obtained in violation of his Miranda rights, specifically the right to cut off questioning; and

2) Appellate counsel (Mr. Light, also the trial counsel) only raised the one evidentiary issue of the old firearms incident, neither noticing nor presenting for review the Miranda issue.

Chisholm argued his trial counsel's representation fell below the objective standard of reasonableness because the attorney failed to move to suppress his confession, which he alleged was obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and he was prejudiced by his counsel's deficient performance.

[¶ 5] On September 25, 2013, the State filed a brief responding to the issues raised in Chisholm's brief. The State did not request summary dismissal.

[¶ 6] On December 2, 2013, the district court entered an order summarily dismissing Chisholm's application. The court ruled the attorney's conduct did not fall below the objective standard of reasonable representation by failing to seek suppression of the confession because Chisholm did not clearly and unequivocally assert his right to end questioning before he confessed and any attempt to seek suppression of the confession would have been unsuccessful. The court also ruled Chisholm's claim that his appellate attorney was ineffective for failing to raise any issues related to the alleged Miranda violations failed for the same reason. The court concluded there were no genuine issues of material fact and Chisholm's assertions in his application were frivolous and wholly without merit when given the benefit of all favorable inferences reasonably made from the record.

II

[¶ 7] Chisholm argues the court erred in summarily dismissing his application on its own motion.

[¶ 8] An applicant has the burden of establishing grounds for post-conviction relief. Osier v. State, 2014 ND 41, ¶ 10, 843 N.W.2d 277. Section 29–32.1–09, N.D.C.C., governs summary disposition in post-conviction relief proceedings, and provides:

1. The court, on its own motion, may enter a judgment denying a meritless application on any and all issues raised in the application before any response by the state. The court also may summarily deny a second or successive application for similar relief on behalf of the same applicant and may summarily deny any application when the issues raised in the application have previously been decided by the appellate court in the same case.

2. The court, on its own motion, may dismiss any grounds of an application which allege ineffective assistance of postconviction counsel. An applicant may not claim constitutionally ineffective assistance of postconviction counsel in proceedings under this chapter.

3. 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.

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

The statute was amended in 2013, adding the provisions in subsections (1) and (2) to the provisions in subsections (3) and (4), which were included in the prior version of the statute. 2013 N.D. Sess. Laws ch. 248, § 2. The current version of the statute became effective on August 1, 2013. Because Chisholm applied for post-conviction relief on August 26, 2013, the current version of the statute applies.

[¶ 9] Words in any statute are to be understood in their ordinary sense, unless a contrary intention plainly appears. N.D.C.C. § 1–02–02. Statutes are construed as a whole and are harmonized to give meaning to related provisions. In re M.H.P., 2013 ND 61, ¶ 18, 830 N.W.2d 216. “We presume the legislature did not intend an absurd or ludicrous result or unjust consequences, and we construe statutes in a practical manner, giving consideration to the context of the statutes and the purpose for which they were enacted.” State v. Meador, 2010 ND 139, ¶ 11, 785 N.W.2d 886 (quoting State v. Brown, 2009 ND 150, ¶ 15, 771 N.W.2d 267).

[¶ 10] Before N.D.C.C. § 29–32.1–09 was amended, this Court held the statute did not expressly allow a court to dismiss an application on its own accord. See Overlie v. State, 2011 ND 191, ¶ 11, 804 N.W.2d 50. The statute expressly authorized the court to grant either party's motion for summary disposition if the application, pleadings, previous proceedings, discovery, or other matters in the record showed there was no genuine issue of material fact and the moving party was entitled to judgment as a matter of law. See Parizek v. State, 2006 ND 61, ¶ 4, 711 N.W.2d 178. The statute still includes this provision, N.D.C.C. § 29–32.1–09(3), and the language was not amended in 2013. See 2013 N.D. Sess. Laws ch. 248, § 2. In summarily dismissing an application under this provision, we have said:

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. Berlin [v. State ], 2005 ND 110, ¶ 6, 698 N.W.2d 266. 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. A party responding to a motion for summary judgment must be given 30 days to file an answer brief and supporting papers in opposition to the request for summary disposition. N.D.R.Civ.P. 56(c).

Wong v. State, 2010 ND 219, ¶ 12, 790 N.W.2d 757 (quotations omitted); see also State v. Bender, 1998 ND 72, ¶ 18, 576 N.W.2d 210 (the procedure to summarily dispose of an application under this provision is “akin to” summary judgment). We held a court may not dismiss an application under this provision unless there is no dispute as to the material facts or the inferences to be drawn from the undisputed facts. Wong, at ¶ 13. We further held the applicant must be given notice and an opportunity to respond and submit evidence to demonstrate there is a genuine issue of material fact before the court may dismiss the application. Id. at ¶¶ 13–14; see also Overlie, at ¶ 12.

[¶ 11] We also recognized the court has inherent authority to dismiss an application,on its own motion, for failure to state a valid claim. See, e.g., Wong, 2010 ND 219, ¶ 8, 790 N.W.2d 757. We said 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 and a court may dismiss a complaint for failure to state a valid claim on its own initiative. Wong, at ¶ 8; Berlin, 2005 ND 110, ¶ 7, 698 N.W.2d 266. We recognized that the court's power to dismiss a claim on its own motion for the failure to state a valid claim is derived from the court's inherent authority to dismiss a meritless claim. Berlin, at ¶ 7. We held the court has authority to dismiss an application if it would be impossible for the applicant to prove a claim for which relief could be granted relying only on the face of the claims made in the application. Wong, at ¶ 9.

[¶ 12] When the court considered matters outside the pleading in summarily dismissing an application on its own motion, we have treated the court's summary dismissal as a summary judgment and held the procedural requirements apply. Overlie, 2011 ND 191, ¶ 12, 804 N.W.2d 50. We have held the court's decision was reversible error when the applicant was not provided with notice and an opportunity to present evidence supporting his claims. See, e.g., ...