Falcon v. State

• Decision Date: 21 October 1997
• Docket Number: No. 970097,970097
• Citation: 570 N.W.2d 719,1997 ND 200
• Parties: Robert John FALCON, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee. Civil
• Court: North Dakota Supreme Court

Page 719

570 N.W.2d 719

1997 ND 200

Robert John FALCON, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.

Civil No. 970097.

Supreme Court of North Dakota.

Oct. 21, 1997.

Lynn M. Boughey, Boughey Law Firm, Minot, for petitioner and appellant.

John P. Van Grinsven III, Assistant State's Attorney, Minot, for respondent and appellee.

SANDSTROM, Justice.

¶1 Robert Falcon appeals from a trial court memorandum decision and order denying his petition for post-conviction relief. We affirm, holding N.D.C.C. § 29-15-21 demand for change of judge does not apply to proceedings brought under the Uniform Post-Conviction Procedure Act, and Falcon's claim of ineffective assistance of counsel is without merit.

I

¶2 In February 1995, after a bench trial, Judge Olson found Robert Falcon guilty of simple assault. In July 1995, Robert Falcon was convicted by a jury of terrorizing and preventing arrest or discharge of other duties. Falcon appealed the jury convictions to this Court, "claiming he was denied effective assistance of counsel in violation of his constitutional rights." State v. Falcon, 546 N.W.2d 835, 836 (N.D.1996). This Court affirmed the judgment of the district court, but stated "the defendant may pursue the claim at a post-conviction proceeding where an adequate record can be developed." Falcon at 837.

¶3 In May 1996, Falcon filed an application for a postconviction hearing under N.D.C.C. ch. 29-32.1. At the same time, Falcon filed a motion for a change of judge under N.D.C.C. § 29-15-21. The request for a change of judge was denied on June 6, 1996. Amended requests for post-conviction relief were filed in October 1996. Another request for a change of judge was filed in November of 1996 and was denied on December 5, 1996. Judge Olson denied Falcon's post-conviction petition on March 20, 1997.

II

¶4 Falcon appeals from the June 6, 1996, order denying change of judge, the December 5, 1996, order denying change of judge, and the March 20, 1997, order denying post-conviction relief.

¶5 The Ward County District Court had jurisdiction under N.D. Const. Art. VI, § 8, and N.D.C.C. § 29-32.1-03. This Court has jurisdiction under N.D. Const. Art. VI, § 6, and N.D.C.C. § 29-32.1-14 to review a "final judgment" of decision under the Uniform Post-Conviction Procedure Act. The orders denying change of judge are interlocutory, and no final judgment was issued. This Court "will review an intermediate order on appeal from a final judgment," and under Kaiser v. State, 417 N.W.2d 175 (N.D.1987), it is proper to treat the appeal in this case as an appeal from a final judgment, because "the court intended the order to have the effect of a final judgment." Matter of Estate of Ketterling, 515 N.W.2d 158, 161 (N.D.1994); Kaiser at 177; see N.D.R.App.P. 35; Traynor v. Leclerc, 1997 ND 47, 561 N.W.2d 644.

III

¶6 Falcon argues the trial court erred in refusing to grant his demand for change of judge under N.D.C.C. § 29-15-21. The State contends, however, N.D.C.C. § 29-15-21 does not apply to post-conviction proceedings.

¶7 N.D.C.C. § 29-15-21 provides, in part:

"Demand for change of judge.

"1. Subject to the provisions of this section, any party to a civil or criminal action or proceeding pending in the district court may obtain a change of the judge before whom the trial or any proceeding with respect thereto is to be heard by filing with the clerk of the court in which the action or proceeding is pending a written demand for change of judge, executed in triplicate either:

* * * *

"3. ... In any event, no demand for a change of judge may be made after the judge sought to be disqualified has ruled upon any matter pertaining to the action or proceeding in which the demanding party was heard or had an opportunity to be heard. Any proceeding to modify an order for alimony, property division, or child support pursuant to section 14-05-24 or an order for child custody pursuant to section 14-05-22 must be considered a proceeding separate from the original action and the fact that the judge sought to be disqualified made any ruling in the original action does not bar a demand for a change of judge.

"4. The demand for change of judge must state that it is filed in good faith and not for the purposes of delay. It must indicate the nature of the action or proceeding, designate the judge sought to be disqualified, and certify that he has not ruled upon any matter pertaining to the action or proceeding in which the moving party was heard or had an opportunity to be heard."

¶8 Falcon argues our previous decisions labeling post-conviction proceedings civil in nature--not criminal, like the underlying action--indicates a post-conviction proceeding is a new proceeding for the purposes of N.D.C.C. § 29-15-21. Falcon argues under N.D.C.C. § 29-15-21 he had the right to peremptorily remove Judge Olson because Judge Olson had not ruled upon any post-conviction matter at the time Falcon filed his motion for change of judge.

A

¶9 "[A] motion under the Uniform Post-Conviction Procedure Act is treated as an independent civil action...." State v. Jensen, 333 N.W.2d 686, 690 (N.D.1983). While we have repeatedly said proceedings under the Uniform Post-Conviction Procedure Act are civil in nature, we have never interpreted whether such a proceeding is to be considered separate from the underlying criminal action so as to allow the peremptory removal of a judge under N.D.C.C. § 29-15-21. The interpretation of a statute is a fully reviewable question of law, "and our primary objective is to ascertain the intent of the legislature by looking at the language of the statute itself and giving it its plain, ordinary and commonly understood meaning. Consideration should be given to the context of the statutes and the purposes for which they were enacted." Van Klootwyk v. Arman, 477 N.W.2d 590, 591-92 (N.D.1991) (citations omitted). "[W]hen a statute is not clear on its face, we look to extrinsic aids, such as legislative history, to determine the legislature's intent." State v. Eldred, 1997 ND 112, p 19, 564 N.W.2d 283.

B

¶10 In Estate of Ketterling, this Court addressed whether to allow a change of judge when a formal probate proceeding was initiated after informal probate proceedings had begun. In Ketterling, the appellant contended "because each proceeding before the court in an unsupervised administration is independent of any other proceeding involving the same estate, the judge in the informal proceedings has not, in effect, already participated in the case." Ketterling at 166 (citations omitted). This Court stated:

"A trial judge is assigned to preside over estate proceedings whether they are formal or informal in nature. Although portions may be separate and independent for some purposes, they relate to the same estate. It is the estate, rather than the nature of the proceedings involved, that we believe should govern application of NDCC 29-15-21. Adopting Lloyd's argument would jeopardize the express objectives of speed and efficiency in the handling of estates sought to be attained by the Uniform Probate Code. Therefore, we decline to adopt Lloyd's argument that a person is entitled to peremptorily disqualify an assigned judge every time a formal proceeding is commenced during the probate of an estate."

Ketterling at 166 (citations omitted).

¶11 The logic of Ketterling and a similar policy determination apply equally to this case. In Ketterling, both informal and formal probate proceedings were brought concerning one estate. Similarly, this case involves a direct appeal and a post-conviction proceeding, both concerning one criminal case. Just as the objectives of the Uniform Probate Code--speed and efficiency--were considered in Ketterling, the objectives of the Uniform Post-Conviction Procedure Act are relevant to this case.

¶12 N.D.C.C. § 29-32.1-03(1) of the Uniform Post-Conviction Procedure Act provides "[a] proceeding is commenced by filing an application with the clerk of the court in which the conviction and sentence took place." In McGuire v. Warden of the State Farm, 229 N.W.2d 211, 215 (N.D.1975), this Court cited the commentary of the Commissioners on Uniform State Laws, which stated filing with the clerk of court in which the defendant was convicted and sentenced is advantageous because " 'the convicting court is more familiar with the background and facts of the case.' " Only if the case were also returned to the same judge would this advantage be realized. Compare Johnson v. State, 486 N.W.2d 825, 828 (Minn.Ct.App.1992) ("The trial judge's familiarity with the facts of this case enhanced his evaluation of the probative value of the alleged newly discovered evidence.").

¶13 In 1985 when the legislature adopted the revised Uniform Post-Conviction Procedure Act, Judge Eugene Burdick, a Uniform State Laws Commissioner, testified in favor of the bill and submitted a written statement. In his written statement, Judge Burdick stated the revisions to the Uniform Post-Conviction Procedure Act "reflect the latest ABA Criminal Justice Standards."

¶14 The American Bar Association's Standards for Criminal Justice (1980), the standards referred to by Judge Burdick, characterized the nature of post-conviction proceedings:

"The procedural characteristics of the postconviction remedy should be appropriate to the purposes of the remedy. While the postconviction proceeding is separate from the original prosecution proceeding, the postconviction stage is an extension of the original proceeding and should be related to it insofar as feasible."

(emphasis added). See Johnson at 827 (citing same). Standard 22-1.4(c), addressing the assignment of judges, provides:

"(c) Neither a general rule favoring nor one disfavoring submission of a postconviction application to the same trial judge who originally presided is clearly preferable. If by rule or practice ordinary assignment to the same judge is adopted, there should be...