Everett v. State, 20080063.

• Citation: 757 N.W.2d 530,2008 ND 199
• Decision Date: 19 November 2008
• Docket Number: No. 20080063.,20080063.
• Parties: Tilmer Paul EVERETT, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
• Court: United States State Supreme Court of North Dakota

757 N.W.2d 530

2008 ND 199

Tilmer Paul EVERETT, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.

No. 20080063.

Supreme Court of North Dakota.

November 19, 2008.

Tilmer Paul Everett, Bismarck, ND, pro se, petitioner and appellant.

Cynthia M. Feland, Assistant State's Attorney, Bismarck, ND, for respondent and appellee; submitted on brief.

MARING, Justice.

[¶ 1] Tilmer Paul Everett appeals a district court judgment summarily dismissing his application for post-conviction relief. In Everett's application for post-conviction relief, he alleged ineffective assistance of trial counsel, prosecutorial misconduct and the district court erred in granting a continuance of the trial. The district court summarily dismissed the application for post-conviction relief, concluding Everett's claims were without merit. We affirm the district court's judgment.

I

[¶ 2] Tilmer Paul Everett was charged with one count of gross sexual imposition. The district court initially appointed an attorney to represent Everett. The court released that attorney from her role as counsel, because it found Everett and the attorney were unable to work together. The court then appointed a new attorney to represent Everett. Everett subsequently fired that attorney and indicated he wished to represent himself. The attorney then moved to withdraw as counsel. The district court held a hearing on November 17, 2006, to consider the issue. The district court decided Everett could represent himself, but the attorney would serve as standby counsel in case Everett needed assistance during trial.

[¶ 3] At a November 27, 2006, pretrial conference, the court quashed a number of subpoenas Everett had served. The court reasoned that many of the witnesses Everett was calling could not provide relevant testimony.

[¶ 4] The trial was set for November 28, 2006. On the morning of trial, the State requested a continuance. The State informed the court that the victim was unable to travel to Bismarck for the trial because of vehicle mechanical problems. The State indicated that weather now precluded the State from transporting the victim. According to the State, the victim advocate had maintained contact with the victim, and the victim was prepared to testify. Everett opposed the continuance. The court granted the continuance, but requested the State provide an affidavit from the victim advocate, stating the victim was willing to come to Bismarck to testify. The State submitted an affidavit as requested. The court rescheduled the trial for one week later, December 5, 2006. The court asked Everett if he still wanted to represent himself. After warnings by the court about the "pitfalls" of proceeding pro se, Everett informed the court he wanted his standby attorney to represent him.

[¶ 5] On November 30, 2006, Everett's attorney again moved to withdraw as counsel, asserting Everett now wanted to represent himself. Everett's attorney also explained Everett was insisting on subpoenaing witnesses who could not provide admissible evidence and demanding the attorney call witnesses without providing a reason for calling the witnesses.

[¶ 6] A pretrial conference was held on December 4, 2006, to address the attorney's motion to withdraw as counsel. Everett informed the court he wanted to represent himself, but his attorney could serve as an advisor. The court found Everett had knowingly and intelligently waived his right to counsel and ordered the attorney to appear at trial as standby counsel.

[¶ 7] The trial began on December 5, 2006. Everett conducted voir dire, delivered his opening statement, and cross-examined a detective and the victim. Before cross-examination of the State's third witness, Everett requested his attorney complete the remainder of the trial. The court granted Everett's request.

[¶ 8] Upon completion of the trial, the jury found Everett guilty of gross sexual imposition. A sentencing hearing was held on March 6, 2007, with Everett representing himself. The court sentenced Everett to thirty years with the North Dakota Department of Corrections and Rehabilitation. A criminal judgment was entered on March 7, 2007.

[¶ 9] Everett appealed, arguing (1) the State's closing argument violated his constitutional right to remain silent; (2) the court erred by not admonishing the jury before taking two recesses during trial; and (3) there was insufficient evidence to support the conviction. This Court summarily affirmed the appeal on the grounds the evidence was sufficient to support the conviction and Everett's other arguments were without merit. State v. Everett, 2008 ND 126, ¶ 1, 756 N.W.2d 344.

[¶ 10] Everett applied for post-conviction relief. In response, the State requested Everett's application be summarily dismissed. Everett amended his application for post-conviction relief, alleging twelve counts of prosecutorial misconduct and fourteen counts of ineffective assistance of counsel. Everett moved for summary disposition of the application for post-conviction relief. Everett stated he was entitled to summary disposition because the State acquired a continuance based on false pretenses and false testimony. Specifically, Everett argued the victim advocate had filed an affidavit on November 28, 2006, stating she had talked to the victim that day, but at trial, Everett asked the victim if she had spoken to the victim advocate on November 28 and the victim responded she had not.

[¶ 11] The State filed a second response to Everett's application for post-conviction relief and motion for summary dismissal. The State argued the application should be dismissed because of misuse of process. According to the State, Everett's claims of prosecutorial misconduct should have been raised on direct appeal. Further, even if Everett had correctly brought the claims of prosecutorial misconduct, Everett's petition contained only unsupported assertions. The State also contended the remaining allegations regarding ineffective assistance of counsel were also without merit because Everett elected to represent himself at trial. Again, the State argued that Everett's claim was not supported by an affidavit or legal precedent. Finally, the State concluded Everett had not shown how he was prejudiced by the ineffective assistance of counsel.

[¶ 12] Everett filed an amended motion for summary disposition. In that motion, Everett noted the State had admitted the continuance was wrongfully obtained and reasserted the arguments he had previously made in his original motion for summary disposition.

[¶ 13] The district court denied Everett's application for post-conviction relief. The court determined no genuine issues as to any material facts existed, and the State was entitled to a judgment as a matter of law. In its order, the court stated Everett's allegations of prosecutorial misconduct were mere allegations and lacked legal support. The district court also found Everett was responsible for his own representation, because he decided which witnesses to call and was responsible for his trial strategy. Everett appeals, arguing (1) prosecutorial misconduct; (2) ineffective assistance of counsel; and, (3) the trial court erred in granting a continuance of trial.

II Prosecutorial Misconduct

[¶ 14] Everett argues the State committed prosecutorial misconduct by intentionally lying, misleading the court and jury, and permitting a number of witnesses to lie under oath.

[¶ 15] The State argues Everett should have raised any claims of prosecutorial misconduct in his direct appeal. The State notes Everett argued in his direct appeal that statements in the prosecutor's closing argument constituted prosecutorial misconduct. The State asserts Everett should have also included his allegations related to the prosecutor's opening argument and suborning perjury. The State contends that raising these arguments now constitutes a misuse of process.

[¶ 16] Under N.D.C.C. § 29-32.1-12(2), a court may deny an application for post-conviction relief on the ground of misuse of process. Noorlun v. State, 2007 ND 118, ¶ 7, 736 N.W.2d 477. Misuse of process occurs:

(1) if the defendant has inexcusably failed to raise an issue in a proceeding leading to judgment of conviction and now seeks review in a first application for post-conviction relief; (2) if the defendant inexcusably fails to pursue an issue on appeal which was raised and litigated in the original trial court proceedings; and finally, (3) if a defendant inexcusably fails to raise an issue in an initial post-conviction application.

Id. (citations omitted).

[¶ 17] In Everett's direct appeal, he argued prosecutorial misconduct relating to the prosecutor's comments during its closing argument. Everett's claims of prosecutorial misconduct relating to the prosecutor intentionally lying, misleading the court and jury, and suborning perjury also could have been raised in his direct appeal. Everett has not provided any reason why he did not raise them then. We therefore conclude Everett's present attempt to raise claims of prosecutorial misconduct, after failing to pursue these claims in his direct appeal, constitutes a misuse of process.

III Ineffective Assistance of Counsel

[¶ 18] Everett raises claims of ineffective assistance of counsel, arguing (1) his appellate counsel failed to raise new allegations of prosecutorial misconduct; and (2) his trial counsel failed to call all of the witnesses Everett wanted to testify, conspired with the prosecutor to convict Everett, and allowed the prosecutor to manipulate and lie to the court.

A. Appellate Counsel

[¶ 19] At oral argument, Everett asserted his appellate counsel provided ineffective assistance of counsel by not raising allegations that the prosecutor intentionally lied, mislead the court, and suborned perjury in his direct appeal. Everett did not present this argument in his appellate brief. Rather, Everett only asserted his trial counsel provided ineffective...