DeCoteau v. State, s. 920280

• Decision Date: 11 May 1993
• Docket Number: Nos. 920280,920316,s. 920280
• Citation: 499 N.W.2d 894
• Parties: Alvin R. DeCOTEAU, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 894

499 N.W.2d 894

Alvin R. DeCOTEAU, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.

Civ. Nos. 920280, 920316.

Supreme Court of North Dakota.

May 11, 1993.

Alvin R. DeCoteau (argued), pro se.

Paul A. Temanson (argued), Minot, for petitioner and appellant.

Timothy C. Wilhelm (argued), Asst. State's Atty., Minot, for respondent and appellee.

MESCHKE, Justice.

We remand an appeal of the denial of application for post-conviction relief to the trial court to determine whether there was excusable neglect for a late-filed notice of appeal.

On April 12, 1989, Alvin DeCoteau pled guilty to charges of theft of property and aggravated assault, under a plea agreement. The trial court sentenced DeCoteau to two consecutive five-year terms.

Acting pro se, DeCoteau filed a writ of habeas corpus on September 30, 1989, arguing that his sentence violated the terms of the plea agreement for two five-year terms to be served concurrently. The trial court denied the writ. On December 27, 1989, again acting pro se, DeCoteau filed an application for post-conviction relief, opposed by the State. Without hearing, the trial court issued an order denying DeCoteau's application.

DeCoteau appealed, arguing that the trial court committed error by not informing him of his right to apply for court-appointed counsel to assist him in the post-conviction proceedings. In State v. DeCoteau, 464 N.W.2d 605, 606-07 (N.D.1990), we held that "failure of the clerk to notify DeCoteau that assistance of counsel may be available and to inform him of the procedure for obtaining counsel affected DeCoteau's statutory right to such information and constitutes reversible error."

On remand, the trial court appointed counsel for DeCoteau. Arguing denial of due process, ineffective assistance of counsel, and that his plea agreement had been breached, DeCoteau again applied to the trial court for post-conviction relief. On September 10, 1992, after an examination of the record without a hearing, the trial court denied the application. DeCoteau appeals.

Section 29-32.1-14 of the Uniform Post-Conviction Procedure Act says, "[a] final judgment entered under this chapter may be reviewed by the supreme court of this state upon appeal filed ... by the applicant within ten days ... after the entry of judgment." In this case, the trial court issued its memorandum opinion and judgment on September 10, 1992. However, again acting pro se, DeCoteau filed his notice of appeal in the office of the Clerk of the Supreme Court on September 22, 1992, and in the office of the Clerk of District Court on September 24, 1992. In either case, the notice was filed too late to give us jurisdiction of the appeal.

While the Uniform Post-Conviction Procedure Act contains no remedy for late filing, the Comment to section 14 of the Act says, "[t]his section contemplates that the ordinary processes of appellate review will be followed in post-conviction proceedings." Unif. Post-Conviction Procedure Act Sec. 14, 11 U.L.A. 263 (1992). Therefore, we apply the North Dakota Rules of Appellate Procedure.

NDRAppP 4(b)(3) says:

Upon a...