Johnson v. State, 20050230.

• Decision Date: 09 November 2005
• Docket Number: No. 20050230.,20050230.
• Citation: 705 N.W.2d 830,2005 ND 188
• Parties: Robert L. JOHNSON, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
• Court: North Dakota Supreme Court

705 N.W.2d 830

2005 ND 188

Robert L. JOHNSON, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.

No. 20050230.

Supreme Court of North Dakota.

November 9, 2005.

Robert L. Johnson, pro se, Jamestown, N.D., submitted on brief.

Frederick R. Fremgen, State's Attorney, Jamestown, N.D., submitted on brief.

MARING, Justice.

[¶ 1] Robert L. Johnson appeals from a July 7, 2005, trial court judgment summarily dismissing his application for post-conviction relief. On appeal, Johnson argues the trial court erred by not allowing him the time required by N.D.R.Ct. 3.2 to respond to the State's motion to dismiss his application. Johnson also argues the trial court erred by not appointing counsel to represent him in his post-conviction relief application. We reverse in part, affirm in part, and remand to the trial court to allow Johnson to respond to the State's motion.

I

[¶ 2] On March 21, 1996, Johnson was charged with endangering by fire. The charges arose after Johnson started a fire at the Doerr Jewelry building in Jamestown. Johnson pled guilty to the charges, and the trial court ordered a judgment of conviction on December 10, 1996. Johnson was sentenced to five years in prison, to run consecutive with his sentence on another conviction.

[¶ 3] On May 2, 1997, Johnson moved for a psychological evaluation to determine if, at the time of his plea, he was mentally and emotionally capable of entering a plea. In support of the motion, Johnson's attorney enclosed his own affidavit stating that Johnson displayed dramatic changes in mood and personality that made him unpredictable and difficult to work with during his case. The trial court denied Johnson's motion on May 16, 1997.

[¶ 4] On June 24, 2005, Johnson filed an application for post-conviction relief and a motion for the appointment of counsel. In his application, Johnson alleged he was denied effective assistance of counsel, his conviction was obtained by a coerced confession, he did not realize his statement given to law enforcement could be used against him, he was under stress when giving his statement to law enforcement, and the States Attorney failed to give him discovery materials. The State's response, including a motion for summary disposition, was filed on July 1, 2005. The trial court issued its order summarily denying Johnson's application for post-conviction relief and his motion for the appointment of counsel on July 5, 2005.

[¶ 5] Johnson appeals raising two issues. First, the trial court erred in dismissing his motion because the summary order denying post-conviction relief was entered before the expiration of his statutory time to respond under N.D.R.Ct. 3.2. Second, the trial court erred by not appointing an attorney to represent him before entering the order for summary disposition.

II

[¶ 6] A post-conviction relief proceeding is civil in nature. Johnson v. State, 2004 ND 130, ¶ 6, 681 N.W.2d 769. Because it is civil in nature, all rules and statutes applicable in civil proceedings are available to the parties. Id. Therefore, the North Dakota Rules of Civil Procedure govern. Id. The North Dakota Rules of Court are also applicable. N.D.R.Ct. 1.1 (Providing "these rules apply to all trial courts of this state in all civil and criminal cases"); see Johnson v. State, 2005 ND 19, ¶¶ 3-6, 691 N.W.2d 288 (applying Rule 3.2's ten-day answer period to a motion for summary disposition on an application for post-conviction relief).

[¶ 7] In his appeal, Johnson correctly argues that Rule 3.2, N.D.R.Ct., is applicable. He is incorrect, however, in asserting that, under the terms of the rule, he should have been given ten days to respond to the State's motion for summary disposition. Johnson's misapplication is likely based in part on his reliance on the State's notice of motion, which was inaccurate. In its July 1, 2005, notice of motion, the State provided Johnson with the following information:

[P]ursuant to Rule of Court 3.2, you are hereby notified . . . (ii) that your answer brief and supporting papers, if any, must be served and filed within 10 days of the date this notice and motion was served upon you. . . .

For most motions, this notice would be correct. It is not correct, however, under the facts presented here. In this case, the State's motion asked the court to go beyond the face of Johnson's application; therefore, it was analogous to a motion for summary judgment under Rule 56, N.D.R.Civ.P. Accordingly, Johnson should have been given thirty days to respond, which is allowed for a response to a motion for summary judgment.

[¶ 8] Explaining the process and requirements of filing an application for post-conviction relief, we have said:

While our case law requires a petitioner to establish a basis for post-conviction relief, a petitioner need not provide evidence or proof with an application. N.D.C.C. § 29-32.1-04. A petitioner meeting the required conditions and applying for post-conviction relief must "set forth a concise statement of each ground for relief, and specify the relief requested. Argument, citations, and discussion of authorities are unnecessary." N.D.C.C. § 29-32.1-04(1). "Affidavits or other material supporting the application may be attached, but are unnecessary." N.D.C.C. § 29-32.1-04(2).

Vandeberg v. State, 2003 ND 71, ¶ 4, 660 N.W.2d 568 (citations omitted).

[¶ 9] The Post-Conviction Procedure Act also provides the State can respond and move to dismiss an application.

The state may move to dismiss an application on the ground that it is evident from the application that the applicant is not entitled to post-conviction relief and no purpose would be served by any further proceedings. In considering the motion, the court shall take account of substance regardless of defects of form.

N.D.C.C. § 29-32.1-06(2). This language is analogous to a motion for dismissal for failure to state a claim upon which relief may be granted and a motion for judgment on the pleadings. N.D.R.Civ.P. 12(b)(vi) and (c).

[¶ 10] The Post-Conviction Procedure Act also provides that a trial court may act summarily on a motion for summary disposition made by either party.

The court may grant a motion by either party for summary disposition if the application, pleadings, any previous proceeding, discovery, or other matters of record show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.

N.D.C.C. § 29-32.1-09(1).

[¶ 11] When describing the process the trial court must follow in considering a motion for summary disposition, we have said:

The procedure followed for a motion for the summary disposition of a petition for post-conviction relief is similar to that followed for a motion for summary judgment. Proceedings for post-conviction relief are civil in nature and all rules and statutes applicable in civil proceedings are available to the parties. Our review of a summary denial of post-conviction relief is like the review of an appeal from a summary judgment. A trial court may summarily dismiss an application for post-conviction relief if there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. The initial burden is on the moving party to show there is no genuine issue of material fact. If the movant initially shows there is no genuine issue of material fact, the burden shifts to the non-movant to demonstrate there is a genuine issue of material fact. For the summary disposition of a petition for post-conviction relief, the moving party bears the burden of showing there is no dispute as to either the material facts or the inferences to be drawn from undisputed facts, and that the movant is entitled to judgment as a matter of law. N.D.C.C. § 29-32.1-09(1). A genuine issue of material fact exists if reasonable minds could draw different inferences and reach different conclusions from the undisputed facts.

Vandeberg, 2003 ND 71, ¶ 5, 660 N.W.2d 568 (internal citations omitted).

[¶ 12] Our language stating that the "procedure followed for a motion for the summary disposition of a petition for post-conviction relief is similar to that followed for a motion for summary judgment," and that "[o]ur review of a summary denial of post-conviction relief is like the review of an appeal from a summary judgment" must be read in conjunction with our statements that "[p]roceedings for post-conviction relief are civil in nature and all rules and statutes applicable in civil proceedings are available to the parties." Id.

[¶ 13] When a court, acting on its own motion, summarily dismisses an application for post-conviction relief, we have said it is analogous to the dismissal of a complaint for failure to state a claim upon which relief can be granted under N.D.R.Civ.P. 12(b)(vi). Berlin v. State, 2005 ND 110, ¶ 7, 698 N.W.2d 266.

[¶ 14] When the State's motion for summary disposition asks the court to rely solely on the pleadings, it should be treated like a N.D.R.Civ.P. 12(b) motion and, under N.D.R.Ct. 3.2(a), a ten-day response time should be provided the applicant before the trial court rules. Rule 3.2(a), N.D.R.Ct. 3.2, provides:

Submission of motion. Notice must be served and filed with a motion. The notice must indicate the time of oral argument, or that the motion will be decided on briefs unless oral argument is timely requested. Upon serving and filing a motion, the moving party shall serve and file a brief and other supporting papers and the adverse party shall have 10 days after service of a brief within which to serve and file an answer brief and other supporting papers.

See Berlin, 2005 ND 110, ¶ 7, 698 N.W.2d 266; Johnson v. State, 2005 ND 19, ¶¶ 3-6, 691 N.W.2d 288 (holding, when the State moved for summary disposition, the non-moving party must be allowed ten days to respond under N.D.R.Ct. 3.2).

[¶ 15] If the State's motion requesting summary disposition asks the trial court to go beyond the...