Gamboa v. State, No. 20040128.

• Court: United States State Supreme Court of North Dakota
• Writing for the Court: NEUMANN, Justice.
• Citation: 693 N.W.2d 21,2005 ND 48
• Parties: Michael GAMBOA, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
• Decision Date: 04 March 2005
• Docket Number: No. 20040128.

693 N.W.2d 21
2005 ND 48

Michael GAMBOA, Petitioner and Appellant
v.
STATE of North Dakota, Respondent and Appellee

No. 20040128.

Supreme Court of North Dakota.

March 4, 2005.

693 N.W.2d 22

Ruth A. Jenny, Grand Forks, N.D., for petitioner and appellant; submitted on brief

Thomas H. Falck, Jr., Assistant State's Attorney, Grand Forks, N.D., for respondent and appellee; submitted on brief.

NEUMANN, Justice.

[¶ 1] Michael Gamboa appeals from the district court's denial of his motion for default summary judgment and dismissal of his application for post-conviction relief without a hearing. We affirm.

I

[¶ 2] In October 1996, Gamboa was convicted of Delivery of Marijuana, a class B felony, under a plea agreement. In February 2000, Gamboa admitted to parole violations at a revocation hearing and was sentenced to sixty days. On March 24, 2003, Gamboa applied for post-conviction relief, arguing ineffective assistance of counsel regarding the 1996 conviction and requesting withdrawal of his guilty plea. Gamboa relied on the clerk of court to serve the State. The application was served on the State on July 1, 2003. The State responded on July 15, 2003. Gamboa moved for default summary judgment, arguing the State failed to timely respond to his application. The district court denied Gamboa's motion finding the State's response was timely. The court noted the delays were a result of a processing error in the clerk's office.

[¶ 3] In his post-conviction relief application, Gamboa argued ineffective assistance of counsel during his 1996 plea agreement, and requested an evidentiary hearing. Gamboa argued he failed to understand the proceedings, and his attorney had a conflict of interest due to involvement with the Federal Bureau of Investigation. The district court reviewed transcripts of Gamboa's bail hearing and subsequent hearings involving his 1996 plea and sentencing. The district court denied his request for an evidentiary hearing, finding he voluntarily pled guilty and understood the proceedings. The district court summarily dismissed his application for post-conviction relief. Gamboa appealed.

II

[¶ 4] Gamboa argues the district court abused its discretion in denying his motion for default summary judgment.

693 N.W.2d 23

[¶ 5] Gamboa relies on the State's alleged failure to comply with N.D.C.C. § 29-32.1-06(1), which provides: "Within thirty days after the docketing of an application or within any further time the court may allow, the state shall respond by answer or motion." Id. (emphasis added). This Court has stated, "Clearly, the statute gives the court discretion to allow more than thirty days for the State to respond." Bell v. State, 1998 ND 35, ¶ 23, 575 N.W.2d 211. The thirty-day time limit is not mandatory, but discretionary with the district court. Id. at ¶ 26

[¶ 6] A district court abuses its discretion when it acts arbitrarily, unconscionably, or unreasonably, or when its decision is not the product of a rational mental process leading to a reasoned determination. Forster v. West Dakota Veterinary Clinic, Inc., 2004 ND 207, ¶ 17, 689 N.W.2d 366. Absent proof a petitioner was prejudiced by the delay in proceedings, refusal to grant default judgment is not an abuse of discretion. Bell, 1998 ND 35, ¶ 30, 575 N.W.2d 211.

[¶ 7] The facts in Bell are similar to this case. In Bell, the clerk's office failed to promptly forward the application to the State's Attorney's office. Id. at ¶ 25. The State failed to respond within the statutorily prescribed thirty days and failed to timely respond to an extension granted by the court. Id. at ¶ 23. Bell moved for default judgment, which the trial court denied. Id. at ¶ 22. Like Gamboa, Bell asserted he was prejudiced by this delay because he remained incarcerated. Id. at ¶ 29. The Court found that because Bell's claim failed on the merits, he could not claim prejudice. Id. In Gamboa's case, the district court reviewed all of the transcripts from his prior proceedings involving his guilty plea and found no merit to his application. Likewise, Gamboa failed to show he suffered any prejudice by the State's failure to timely respond. We conclude it was not an abuse of discretion for the district court to deny Gamboa's request for default judgment.

III

[¶ 8] Gamboa argues his 1996 guilty plea was involuntary because of ineffective assistance of counsel and counsel's conflict of interest. The State argues Gamboa's application was properly denied because he knowingly and voluntarily pled guilty, he failed to establish his attorney's alleged conflict of interest, and his application was untimely.

[¶ 9] An application under the Post Conviction Procedure Act seeking to withdraw a guilty plea is generally treated as one made under Rule 32(d), N.D.R.Crim.P. Greywind v. State, 2004 ND 213, ¶ 7, 689 N.W.2d 390. Rule 32(d), N.D.R.Crim.P., requires a timely motion for withdrawal of a...