Coppage v. State

• Decision Date: 13 December 2011
• Docket Number: No. 20110076.,20110076.
• Citation: 807 N.W.2d 585,2011 ND 227
• Parties: Ernest COPPAGE, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
• Court: North Dakota Supreme Court

2011 ND 227

807 N.W.2d 585

Ernest COPPAGE, Petitioner and Appellant

v.STATE of North Dakota, Respondent and Appellee.

No. 20110076.

Supreme Court of North Dakota.

Dec. 13, 2011.

Monty Grant Mertz (argued), Public Defender Office and Jonathan L. Voigt, legal intern (on brief), Fargo, N.D., for petitioner and appellant.

Lloyd Clayton Suhr (argued), Assistant State's Attorney, Pamela Ann Nesvig (on brief), Assistant State's Attorney, Bismarck, N.D., for respondent and appellee.

KAPSNER, Justice.

[¶ 1] Ernest Coppage appeals from an order dismissing his application for post-conviction relief. Coppage argues the district court erred in dismissing his application and he was entitled to an evidentiary hearing because there were genuine issues of material fact about his ineffective assistance of post-conviction counsel claim. We reverse and remand for an evidentiary hearing.

I

[¶ 2] In 2006, Coppage was charged with attempted murder. Before trial, the district court issued preliminary jury instructions to the parties including the essential elements of attempted murder and aggravated assault. Aggravated assault was characterized in the instructions as a lesser-included offense of attempted murder. The parties agreed these charges were the proper charges for the jury to consider. Coppage filed a pre-trial motion in limine to prevent the State from seeking to introduce testimony about prior incidents of domestic violence. The State did not object and the district court granted the motion. The jury found Coppage guilty of both attempted murder and aggravated assault.

[¶ 3] Coppage appealed his conviction, arguing there was not sufficient evidence to support his attempted murder conviction and the verdict form was logically and legally inconsistent because proof of attempted murder negates a necessary element of aggravated assault. See State v. Coppage, 2008 ND 134, ¶¶ 21, 24, 751 N.W.2d 254. We affirmed Coppage's conviction and held the jury's verdict was not legally inconsistent and there was sufficient evidence to support his conviction. Id. at ¶ 28. Coppage was represented by Kent Morrow at trial and on appeal.

[¶ 4] In 2009, Coppage filed an application for post-conviction relief, arguing his trial attorney was ineffective, the jury selection was biased, and the crime scene was tainted. Coppage was represented by Susan Schmidt at the hearing on his application. After a hearing, the district court denied Coppage's application. Coppage did not appeal the court's decision.

[¶ 5] In October 2010, Coppage filed a second application for post-conviction relief. Coppage claimed he was subjected to double jeopardy when he was convicted of both attempted murder and aggravated assault and he was denied due process because the State improperly introduced evidence of prior crimes as impeachment evidence, the State engaged in prosecutorial misconduct, and the district court erred in failing to return the jury for further deliberations after they returned a verdict finding him guilty of both attempted murder and aggravated assault. Coppage requested the court appoint an attorney to represent him and the court granted his request.

[¶ 6] The State moved to dismiss the application, arguing Coppage's claims should be summarily dismissed because they are barred by res judicata and misuse of process. Coppage responded to the State's motion and filed a memorandum in support of his argument, contending his claims are not barred by misuse of process because he relied on his appointed counsel and his counsel was not vigilant and failed to raise these claims and the State has the burden of proving he knew about the issues but did not raise them in a prior proceeding. Coppage later filed an affidavit in support of his application for post-conviction relief. In the affidavit, Coppage claimed he received ineffective assistance of trial, appellate, and post-conviction counsel. The district court dismissed Coppage's application, ruling his claims are barred by res judicata and misuse of process.

II

[¶ 7] Coppage argues the district court erred in summarily dismissing his application because there were genuine issues of material fact about his evidentiary, prosecutorial misconduct, and ineffective assistance of counsel claims.

[¶ 8] Under N.D.C.C. § 29–32.1–09, a party may move for summary disposition in post-conviction proceedings if the application, pleadings, previous proceedings, discovery, or other matters on the record show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Generally, this Court reviews an appeal from a summary denial of an application for post-conviction relief as we review an appeal from summary judgment. Henke v. State, 2009 ND 117, ¶ 9, 767 N.W.2d 881. The party opposing the motion 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. (quoting Berlin v. State, 2005 ND 110, ¶ 6, 698 N.W.2d 266).

[¶ 9] If the State moves for summary dismissal and puts the applicant to his proof, a minimal burden shifts to the petitioner and he must support his application with evidence that raises a genuine issue of material fact:

A petitioner is not required to provide evidentiary support for his petition until he has been given notice he is being put on his proof. At that point, the petitioner may not merely rely on the pleadings or on unsupported, conclusory allegations, but must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact. If the petitioner presents competent evidence, he is then entitled to an evidentiary hearing to fully present that evidence.

Henke, 2009 ND 117, ¶ 11, 767 N.W.2d 881 (quoting Ude v. State, 2009 ND 71, ¶ 8, 764 N.W.2d 419). The district court may summarily dismiss the application if the State shows there are no genuine issues of material fact. Henke, at ¶ 12.

[¶ 10] In this case, the State argued the application should be summarily dismissed because Coppage's claims were barred by res judicata and misuse of process. An application for post-conviction relief may be denied on the grounds of res judicata if the claim or a variation of the claim has been fully and finally determined in a prior proceeding. N.D.C.C. § 29–32.1–12(1). The applicability of res judicata is a question of law, which is fully reviewable on appeal. Klose v. State, 2008 ND 143, ¶ 10, 752 N.W.2d 192. A court may deny relief on the grounds of misuse of process if the applicant raises an issue which the applicant inexcusably failed to raise in a proceeding leading to the judgment of conviction, inexcusably failed to pursue on appeal having raised the issue in the trial court, or inexcusably failed to raise in a prior post-conviction proceeding. N.D.C.C. § 29–32.1–12(2); Murchison v. State, 2003 ND 38, ¶ 10, 658 N.W.2d 320.

[¶ 11] Coppage's evidentiary and prosecutorial misconduct claims could have been raised in prior proceedings. However, Coppage argued the claims were not previously raised because his prior post-conviction counsel was ineffective. Claims of ineffective assistance of post-conviction counsel may be raised in successive post-conviction proceedings and may be an excuse for an applicant's failure to raise an issue in a prior proceeding. See Klose, 2008 ND 143, ¶¶ 12–13, 752 N.W.2d 192; see also Jones v. State, 545 N.W.2d 313, 314 (Iowa 1996) (ineffective assistance of post-conviction counsel can provide “sufficient reason” for a successive post-conviction application raising new issues). Whether counsel is ineffective is a mixed question of fact and law, and is fully reviewable on appeal. Klose, at ¶ 13.

[¶ 12] The State argues Coppage's claim of ineffective assistance of post-conviction counsel was not properly raised in his application for post-conviction relief and it should not be addressed on appeal. In Coppage's response to the State's motion to dismiss and its argument that some of Coppage's claims were barred by misuse of process, Coppage argued “[he] relied on the care and vigilance of counsel. Appointed counsel was not vigilant enough to find the current grounds for relief, this does not constitute misuse of process.” Coppage filed a separate memorandum of law on the res judicata and misuse of process issues, and he argued ineffective assistance of counsel is a defense to a charge of misuse of process. Before the hearing on the State's motion, Coppage filed an affidavit to supplement his filings supporting his petition for post-conviction relief and to set out his factual assertions. In the affidavit, Coppage states:

I have received ineffective assistance of counsel by both of the attorneys appointed to represent me previously in this matter, namely Kent Morrow and Susan Schmidt. Mr. Morrow's performance fell below acceptable standards both during the trial stage and the appeal of my case. Ms. Schmidt's performance fell below acceptable standards as to my first petition for post conviction relief, because she failed to develop an evidentiary record to support my claims, resulting directly in the State's claims that my second petition is barred by both res judicata and abuse of process.

Coppage also made specific allegations about how his trial counsel's performance was ineffective. The affidavit outlines the evidence that Coppage's first post-conviction counsel failed to develop in the record and supports his argument that his failure to raise his current claims in previous proceedings is excused because his counsel was ineffective. Coppage's argument about ineffective assistance of counsel was properly raised before the district court.

[¶ 13] The State also argues that if the issue of ineffective assistance of counsel was properly raised it is barred by res judicata because Coppage argued he received ineffective...