Cody v. State
| Decision Date | 16 February 2017 |
| Docket Number | No. 20160138,20160138 |
| Citation | 889 N.W.2d 873 |
| Parties | Wesley Alan CODY, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee |
| Court | North Dakota Supreme Court |
Scott O. Diamond, 3523 45th St. S., Ste. 100, Fargo, ND 58104, for petitioner and appellant.
Brian D. Grosinger, Assistant State's Attorney, 210 Second Ave. N.W., Mandan, ND 58554, for respondent and appellee.
[¶ 1] Wesley Cody appeals from a district court's order denying his application for post-conviction relief. He argues the district court erred by not holding an evidentiary hearing before denying his application. We conclude the district court is not required to hold an evidentiary hearing unless requested by a party. Because the district court may deny a defendant's application for post-conviction relief on the merits after the defendant is provided notice and an opportunity to present evidence, we affirm.
[¶ 2] On August 16, 2013, Cody was charged with aggravated assault and reckless endangerment related to a stabbing incident in Morton County. The district court appointed counsel to defend Cody on those charges. On March 20, 2014, Cody pled guilty to reckless endangerment. As part of his plea agreement, the State dismissed a class C felony aggravated assault charge alleging Cody stabbed another person. Cody was sentenced to one year with the North Dakota Department of Corrections, suspended for a period of three years. He was placed on probation. On February 3, 2015, Cody's probation was revoked and he was sentenced to serve two years with the North Dakota Department of Corrections.
[¶ 3] On March 12, 2015, Cody filed an application for post-conviction relief. In his application, Cody claimed he had new evidence and alleged ineffective assistance of counsel. He claimed a witness, Jacob Scarberry, would provide testimony that someone else stabbed the victim in Morton County. Cody argued neither law enforcement nor his attorney ever interviewed Scarberry. Cody claimed he did not know about the content of Scarberry's potential testimony until after he pled guilty, and his attorney failed to counsel him on his plea agreement. The prayer for relief in Cody's application requested a new trial, but did not request an evidentiary hearing. The State answered, opposing Cody's application for post-conviction relief arguing Cody could not prove ineffective assistance of counsel. The State did not move for summary disposition.
[¶ 4] After the State filed its answer, the district court noted Cody's application was filed before he was appointed counsel for this post-conviction relief action. On April 23, 2015, the district court directed both Cody and the State to file briefs so it could determine whether an evidentiary hearing was necessary. The district court allowed Cody's counsel to file any supplemental brief or statement of issues and arguments in support of the application, allowing Cody until June 30, 2015, to respond. The district court granted Cody two extensions of time to respond. Cody responded by submitting a brief in support of the application, as well as nine exhibits including: (1) the criminal judgment, (2) appendix A of the criminal judgment, (3) the amended criminal judgment, (4) a letter and affidavit from Scarberry, (5) an incident report from Mandan Police Officer Haug, (6) an incident report from Mandan Police Officer Pynnonen, (7) a supplemental DNA report from the State Crime Laboratory Division, (8) a police report from Mandan Detective Jose, and (9) a police report from Mandan Police Officer Moos. Cody did not request an evidentiary hearing in his responsive brief. Rather, Cody indicated that if an evidentiary hearing is granted he would call Scarberry as a witness.
[¶ 5] The State responded to Cody's brief and did not object to Cody's submitted evidence. The State argued Cody was aware of Scarberry at the time he pled guilty, so it was not newly discovered evidence. The State further argued that Scarberry's testimony relates only to the aggravated assault charge that was dismissed. The district court did not hold an evidentiary hearing.
[¶ 6] In its order denying Cody's application for post-conviction relief, the district court did not state the statutory authority it relied on in denying Cody's application. The district court applied the two-part Strickland test and found Cody's counsel did not fail to meet an objective standard of reasonableness. The district court found, even if Cody's counsel's representation had fallen below an objective standard of reasonableness, Cody was not prejudiced. The district court found that while Cody claimed he was unaware Scarberry had information regarding Cody's arrest until after he pled guilty, based on Scarberry's affidavit, Cody knew Scarberry was at the scene because they "had a smoke break together." The district court concluded Scarberry could not have provided any additional information that Cody did not already know. In denying Cody's application for post-conviction relief, the district court found "Scarberry's testimony would have provided no information not known at the time and Cody has not established he would not have entered a plea of guilty." Cody appealed.
[¶ 7] Cody argues the district court erred by denying his application for post-conviction relief without conducting an evidentiary hearing. He contends the district court does not have authority to deny an application under N.D.C.C. § 29–32.1–09 after it relies on information outside an application, and neither party moves for summary dismissal. We agree. See Chisholm v. State, 2014 ND 125, ¶ 17, 848 N.W.2d 703. In Chisholm, this Court stated that when the district court considers matters outside the pleadings in summarily dismissing an application on its own motion, it is reversible error when an applicant was not provided notice and an opportunity to present evidence supporting his claim. 2014 ND 125, ¶ 12, 848 N.W.2d 703. However, Cody's argument that the district court erred by not holding a hearing is unpersuasive.
[¶ 8] The purpose of the Post–Conviction Procedure Act is to provide a "method to develop a complete record to challenge a criminal conviction." Chisholm, at ¶ 15 (quotation marks omitted) (citations omitted). In Chisholm, we said:
Without confinement to the transcript, post-conviction procedures allow development of additional evidence to evaluate claims. Use of the record from the trial does not preclude a defendant from offering other evidence about facts and occurrences not recorded during the trial. Summary denial of a post-conviction application forecloses that opportunity. When that happens, the post-conviction procedure becomes no better than direct review on appeal.
Id.(citations omitted). "The Post–Conviction Procedure Act, N.D.C.C. ch. 29–32.1, does not require that an evidentiary hearing be held on an application for post-conviction relief when the parties do not request a hearing." Clark v. State, 2008 ND 234, ¶ 7, 758 N.W.2d 900. In Clark, neither Clark nor the State requested an evidentiary hearing. Clark, 2008 ND 234, ¶ 8, 758 N.W.2d 900.
[¶ 9] Here, similar to Clark, neither Cody nor the State requested an evidentiary hearing. However, in Clark, the State had moved for summary disposition putting Clark to his proof. Id. Here, the State did not move for summary disposition; rather, the district court invited the parties' arguments to explain whether an evidentiary hearing was necessary. Cody submitted arguments and evidence regarding post-conviction relief, but did not request a hearing. In its order requesting supplemental briefing, the district court stated "[u]pon receipt of supplemental briefs by the parties, the court will determine whether the Petitioner is entitled to an evidentiary hearing on any stated issue." The district court granted Cody two extensions to file a supplemental brief or arguments, giving him a period of nearly two months to respond. Cody provided the district court with additional evidence but made no argument that a hearing was necessary to further develop the evidence. "New Counsel on appeal inherits the strategies of prior counsel." Clark, 2008 ND 234, ¶ 8, 758 N.W.2d 900. Cody had notice that the district court was considering whether an evidentiary hearing was necessary and was put to his proof by the district court's scheduling order.
[¶ 10] Cody does not identify any additional relevant evidence he would have presented at a hearing. Cody does not argue the district court's findings are erroneous, only that the district court lacked authority to decide Cody's application without holding a hearing. When, like here, a party has no other evidence to produce than that already provided to the court uncontested, "no purpose would be served by scheduling an evidentiary hearing for the court to formally receive uncontested evidence accompanying the application for post-conviction relief." Clark, at ¶ 9. We conclude the district court did not err in failing to hold an evidentiary hearing when neither party requested a hearing, and Cody was given notice and an opportunity to present evidence.
[¶ 11] Cody also argues the district court's order fails to comply with N.D.C.C. § 29–32.1–11(2), because it does not indicate the basis of the district court's decision. Section 29–32.1–11(2), N.D.C.C., provides: "If the court rules that the applicant is not entitled to relief, its order must indicate whether the decision is based upon the pleadings, is by summary disposition, or is the result of an evidentiary hearing." While Cody is correct that the district court did not explicitly state the basis for its decision under N.D.C.C. § 29–32.1–11(2), this Court will not reverse if we are able to discern the basis of the district court's decision. See Cue v. State, 2003 ND 97, ¶ 8, 663 N.W.2d 637.
[¶ 12] By relying on the transcript of the sentencing hearing and the evidence Cody provided in Scarberry's affidavit, it is obvious the district court's decision...
To continue reading
Request your trial
-
Van Chase v. State
...inappropriate because he was not provided notice and an opportunity to be heard under N.D.R.Ct. 3.2); Cody v. State , 2017 ND 29, ¶ 22, 889 N.W.2d 873 ("I have disagreed with a majority of this Court about what the State must do to put an applicant to his proof. [See Delvo , at ¶ 22 ] (Crot......
-
Whetsel v. State
...inappropriate because he was not provided notice and an opportunity to be heard under N.D.R.Ct. 3.2); Cody v. State , 2017 ND 29, ¶ 22, 889 N.W.2d 873 ("I have disagreed with a majority of this Court about what the State must do to put an applicant to his proof. [See Delvo , at ¶ 22 ] (Crot......
-
Caster v. State, 20190043
...discern the rationale for the result reached by the district court through inference or deduction. See Cody v. State , 2017 ND 29, ¶ 13, 889 N.W.2d 873 ; see also Moen v. State , 2003 ND 17, ¶ 7, 656 N.W.2d 671. We may rely on the implied reasoning or findings of fact when the record enable......
- Snider v. Brinkman, 20160145