Johnson v. State

• Decision Date: 01 June 2006
• Docket Number: No. 20060010.,20060010.
• Citation: 2006 ND 122,714 N.W.2d 832
• Parties: Robert L. JOHNSON, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
• Court: North Dakota Supreme Court

714 N.W.2d 832

2006 ND 122

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

No. 20060010.

Supreme Court of North Dakota.

June 1, 2006.

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Robert L. Johnson, pro se, Jamestown, N.D., petitioner and appellant; submitted on brief.

Frederick R. Fremgen, State's Attorney, Jamestown, N.D., for respondent and appellee; submitted on brief.

SANDSTROM, Justice.

[¶ 1] Robert Johnson appeals a district court judgment dismissing his application for post-conviction relief, denying his motion to amend his application for post-conviction relief, and denying his request for appointment of counsel. In his application, Johnson claims his trial attorney's representation was ineffective. He also seeks to amend his application to add a claim that his guilty plea was not entered intelligently, knowingly, and voluntarily. Johnson argues the district court erred when it granted the State's motion to amend its response to add the affirmative defense of laches. Holding that the doctrine of laches may be used as a defense in post-conviction proceedings and that Johnson was not denied effective assistance of counsel, we affirm.

I

[¶ 2] In 1996, Johnson pled guilty to endangering by fire. His plea was entered after the North Dakota State Hospital conducted a forensic evaluation finding that Johnson "did not lack the substantial capacity to comprehend the harmful nature or consequences of [his] conduct" and that he was fit to proceed in the case.

[¶ 3] In June 2005, Johnson applied for post-conviction relief. He argued, among other things, his counsel's representation was ineffective because the attorney did not request a second, independent mental evaluation. Johnson also requested a lawyer be appointed to represent him. The State moved to summarily dismiss the petition, arguing Johnson presented no genuine issues of fact in the case. The district court granted the State's motion before Johnson had an opportunity to respond. On appeal, this Court reversed in part, ordering Johnson be given an opportunity to respond to the State's motion. Johnson v. State, 2005 ND 188, 705 N.W.2d 830.

[¶ 4] On remand, Johnson responded to the State's motion for summary dismissal. He also renewed his request for counsel and moved to amend his petition for post-conviction relief. In his motion to amend his petition, Johnson wished to abandon his previous grounds for relief, except ineffective assistance of counsel, and to add a claim that his guilty plea was not made intelligently, knowingly, and voluntarily, as a result of mental incompetence, and was therefore invalid. The State resisted these motions, arguing that an appointment of counsel was not necessary because his petition had no merit and that the motion to amend was untimely. The State also moved to amend its response to Johnson's petition, claiming laches as a defense to Johnson's petition. The district court granted the State's request to amend its response. The district court dismissed Johnson's petition for post-conviction relief, denied his motion to amend his petition, and denied his request for counsel.

[¶ 5] On appeal, Johnson argues the district court abused its discretion when it dismissed his motion to amend his petition, contending laches does not apply to petitions for post-conviction relief, and the district court erred when it denied his petition for post-conviction relief without having made sufficient findings. The State argues the district court resolved the motions properly.

[¶ 6] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 29-32.1-03. Johnson's appeal was timely under N.D.R.App.P. 4(d). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 29-32.1-14.

II

[¶ 7] Johnson argues the district court erred when it denied his motion to amend his petition and granted the State's motion to amend its answer on a laches rationale. "Post-conviction relief proceedings are civil in nature and are governed by the North Dakota Rules of Civil Procedure." Garcia v. State, 2004 ND 81, ¶ 6, 678 N.W.2d 568. Rule 15(a), N.D.R.Civ.P., provides, "a party's pleading may be amended only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." "A decision on a motion to amend a pleading under N.D.R.Civ.P. 15(a) is addressed to the sound discretion of the trial court and will not be overturned on appeal absent an abuse of discretion." Sec. Nat'l Bank v. Wald, 536 N.W.2d 924, 928 (N.D.1995). A motion to amend may be denied if the proponent has unnecessarily delayed. Crosby v. Sande, 180 N.W.2d 164, 171 (N.D.1970). "Although not binding, federal court interpretations of a corresponding federal rule of civil procedure are highly persuasive in construing our rule." Thompson v. Peterson, 546 N.W.2d 856, 860 (N.D.1996). As the United States Supreme Court noted in Foman v. Davis, undue delay may justify a denial of a motion to amend. 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962).

[¶ 8] Rule 8(c), N.D.R.Civ.P., provides for the affirmative defense of laches. "Laches is a delay or lapse of time in commencing an action that works a disadvantage or prejudice to the adverse party because of a change in conditions during the delay." Williams County Soc. Servs. Bd. v. Falcon, 367 N.W.2d 170, 174 (N.D. 1985).

[¶ 9] For post-conviction relief, N.D.C.C. § 29-32.1-03(2) provides: "An application may be filed at any time." In the past, this Court has said that although laches may not be considered a defense to a constitutional attack of a conviction, long delays may be considered when deciding whether the defendant's claims have merit:

While laches will not bar an attack upon a judgment of conviction as being void on constitutional grounds, the long delay in challenging validity, during which the prosecuting attorney and sentencing judge died, may be considered as bearing on the question of waiver, the credibility of the petitioner's assertions, and the inferences that he seeks to draw from the showing that he has made.

State v. O'Neill, 117 N.W.2d 857, 863 (N.D. 1962). As Justice Sand noted, however, in State v. Lueder, the statute "seems to allow the filing of an application without regard to the time that may have elapsed since the conviction." 252 N.W.2d 861, 871 (N.D.1977) (Sand, J., concurring specially). Justice Sand warned that if this were permitted, the State could be put in a position in which it could not defend against a petition for post-conviction relief. Id. He reasoned that either a legislative amendment imposing a time limit or the court's application of the affirmative defense of laches would be appropriate. Id.

[¶ 10] The literal reading of N.D.C.C. § 29-32.1-03(2) allows a post-conviction petitioner to file an application at any time. As our current caselaw notes, however, an application may be denied if it is untimely. O'Neill, 117 N.W.2d at 863. By way of analogy, we will outright dismiss an appeal when it is filed after the deadline. See N.D.R.App.P. 4(d) ("A notice of appeal must be filed with the clerk of district court within 60 days of service of notice of entry of the judgment or order being appealed."). Therefore, although the statutes governing post-conviction procedures do not provide for a time bar allowing outright dismissal of an application for post-conviction relief, N.D.C.C. § 29-32.1-03(2) does not bar denial of an application if it is the product of undue delay.

[¶ 11] The Rhode Island Supreme Court recently decided a case involving Rhode Island's post-conviction relief statute and the affirmative defense of laches. Raso v. Wall, 884 A.2d 391, 395 (R.I.2005). As the court concluded, allowing petitions for post-conviction relief at any time without a reasonableness rule would lead to an absurd result:

Section 10-9.1-3 provides that "An application [for postconviction relief] may be filed at any time." Although on its face, this language provides that there is no statutory limitation on the time in which an applicant may file an application for postconviction relief, the existence of such language does not preclude the application of the doctrine of laches. In our judgment, it would be absurd to read "at any time" as constituting a limitless "Open Sesame" in which an applicant could file an application for postconviction relief at literally any time without weight being given to the possible prejudice to the state wrought by the passage of time. Accordingly, we construe the statutory term as meaning at any reasonable time.

Id. We are persuaded by the Rhode Island Supreme Court's reasoning.

[¶ 12] Other jurisdictions have applied either laches or a diligence rule to post-conviction cases. See United States v. Darnell, 716 F.2d 479, 480 (7th Cir.1983) ("There is no apparent reason why the same equitable considerations that prompted revision of the Rules Governing [28 U.S.C.] § 2254 and § 2255 Cases to incorporate the doctrine of `laches' should not apply with equal force to Rule 32(d) motions."); Gaulke v. State, 296 Minn. 487 206 N.W.2d 652, 652 (1973) ("We hold that the district court properly denied the petition on the ground that petitioner, who knew about the allegedly newly discovered evidence in late 1946 and yet did not petition for relief on that basis until 1971, did not act with due diligence in seeking relief."); McElrath v. State, 276 S.C. 282, 277 S.E.2d 890, 890 (1981) ("We concur with the trial judge's finding that laches bars appellant's claim for collateral relief from a conviction and sentence now more than twenty years old.").

[¶ 13] A laches defense alone does not destroy legitimate post-conviction applications for convictions that occurred many years in the past, because laches requires more than mere delay. Williams County Soc. Servs. Bd., 367 N.W.2d at 174; Oliver v. United States, 961 F.2d 1339, 1342 (7th...