Klose v. State

• Citation: 2008 ND 143,752 N.W.2d 192
• Decision Date: 21 July 2008
• Docket Number: No. 20070303.,20070303.
• Parties: Timothy Gene KLOSE, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
• Court: United States State Supreme Court of North Dakota

752 N.W.2d 192

2008 ND 143

Timothy Gene KLOSE, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.

No. 20070303.

Supreme Court of North Dakota.

July 21, 2008.

Chad Rory McCabe, Bismarck, N.D., for petitioner and appellant.

Frederick Russell Fremgen, State's Attorney, Jamestown, N.D., for respondent and appellee.

KAPSNER, Justice.

[¶ 1] Timothy Klose appeals from a district court judgment dismissing his second application for post-conviction relief, arguing the district court committed reversible error by failing to grant an evidentiary hearing to address his claim of ineffective assistance of post-conviction counsel. We affirm, concluding Klose's claims for post-conviction relief are barred by res judicata and misuse of process, and Klose failed to raise a genuine issue of material fact on his claim of ineffective assistance of post-conviction counsel.

I

[¶ 2] Klose was charged with burglary and with the murder of his neighbor, Raymond Schultes, in March 2001. Klose requested a bifurcated trial, stipulated the State had sufficient evidence to prove he killed Schultes, and waived the portion of the trial relating to the act of killing Schultes, but preserved the right to a trial on his mental state, arguing he lacked criminal responsibility. Although the district court and Klose referred to Klose's stipulation as an Alford plea, which is a guilty plea under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), a jury trial was held to decide whether Klose lacked criminal responsibility and was guilty of the offenses. Klose has never denied that he killed Schultes.

[¶ 3] The State and Klose agreed that in the early morning hours of March 22, 2001, Klose forced his way into Schultes' apartment, struggled with Schultes, fired shots from a shotgun, and killed Schultes. The parties disputed the amount of time that passed between Klose's entry into the apartment and Schultes' death, whether Klose cleaned up and changed clothes in between forcing his way into Schultes' apartment and killing Schultes, and whether Klose fired one or two guns during the incident. Klose argued he was suffering from delirium tremens at the time of the killing, he was experiencing hallucinations, and his conduct was the result of either a loss or a serious distortion of his capacity to recognize reality. Klose presented expert testimony supporting his theory. The State claimed that enough time passed between when Klose first forced his way into Schultes' apartment and when Schultes was killed that Klose was criminally responsible for the murder. The jury convicted Klose of murder, but acquitted him on the burglary charge, finding that he was not criminally responsible.

[¶ 4] Klose appealed his conviction, arguing the district court erred in denying his motion for a mistrial and his motions for a new trial because there was insufficient evidence to sustain his conviction for murder, the district court erred in admitting the State's exhibits into evidence, the court improperly communicated with the jury, and the court erred in concluding the jury did not render a compromised verdict. In State v. Klose, 2003 ND 39, 657 N.W.2d 276, this Court affirmed Klose's conviction, concluding the district court did not abuse its discretion in denying Klose's motion for a mistrial or his motions for a new trial, and there was substantial evidence supporting the jury's verdict.

[¶ 5] Klose applied for post-conviction relief, arguing his trial counsel was ineffective for failing to introduce evidence Klose believed would have aided his claim that he lacked criminal responsibility. The district court held a two-day evidentiary hearing and denied Klose's application. Klose appealed, representing himself, and argued his trial counsel was ineffective for not obtaining forensic testing of some of the evidence, for failing to obtain independent testing of a second shotgun the State alleged was fired during the incident, for failing to call witnesses who would have attacked the State's theory of how long the incident took, and for failing to show and discuss crime scene photos with Klose before trial. In Klose v. State, 2005 ND 192, 705 N.W.2d 809, this Court affirmed the district court's decision, concluding Klose failed to demonstrate that his counsel's representation was deficient or that a different result was probable. The review of Klose's appeal was limited because he failed to provide a copy of the transcript from the evidentiary hearing. Klose also argued he could not afford the cost of providing a transcript, but this Court refused to consider Klose's claims because he failed to properly preserve or raise the issue. Id. at ¶ 14.

[¶ 6] In November 2006, Klose filed his second application for post-conviction relief. Klose argued his "Alford plea" was a guilty plea, he did not understand he was pleading guilty, and his guilty plea was improperly handled by the district court, trial counsel, and his first post-conviction counsel; his trial counsel and first post-conviction counsel should have reviewed the case photographs with him, called more witnesses, and more effectively questioned the witnesses to support Klose's argument of how the murder occurred; his trial counsel and first post-conviction counsel should have called more witnesses in support of his claim that he was suffering from delirium tremens at the time of the murder; he should have received a transcript of his first post-conviction evidentiary hearing; and his first post-conviction counsel was ineffective for failing to provide appellate representation and for not securing a transcript for the appeal. Klose requested an evidentiary hearing. The State moved for summary disposition and dismissal.

[¶ 7] The district court summarily dismissed Klose's second application for post-conviction relief. The court concluded Klose's arguments that his trial counsel was ineffective because he failed to call enough witnesses to disprove the State's theory of how long the incident took and to support his claim that he was suffering from delirium tremens at the time of the murder were fully and fairly litigated in Klose's first application for post-conviction relief and dismissed the claims on the grounds of res judicata, and concluded any arguments based upon new witnesses are variations of the arguments made during his first post-conviction application and are a misuse of process. The court ruled Klose did not plead guilty, he only admitted he committed the act and a jury trial was held to determine his guilt; Klose knowingly and voluntarily stipulated to certain factual elements of the offenses; and it is a misuse of process to raise these issues now because they could have been raised in his motions for mistrial and a new trial, in his direct appeal, and in his first application for post-conviction relief. The court also concluded Klose was not entitled to a free transcript for his first post-conviction appeal, Klose did not object to the district court's decision not to provide a free transcript, it is a misuse of process to raise this argument now because Klose had previous opportunities to raise the issue, and to the extent the issue was raised in previous proceedings Klose's claim is barred by res judicata. The court concluded Klose's claim that he was entitled to counsel for his first post-conviction appeal was also a misuse of process because Klose did not request new counsel for his appeal after his post-conviction counsel informed him he would not be working on the appeal and Klose did not explain why he did not develop this claim earlier.

II

[¶ 8] Klose argues he should be allowed to plead and prove all claims that could have been brought during his first post-conviction proceeding because his post-conviction counsel was so ineffective he has not received at least one substantive review of the issues relating to his conviction. Klose argues his first post-conviction counsel was ineffective because he failed to: claim that a manifest injustice had occurred and that trial counsel was ineffective because the trial court failed to substantially comply with N.D.R.Crim.P. 11; claim that a manifest injustice had occurred and that his trial counsel was ineffective because Klose's guilty plea was not knowing and voluntary, or intelligently made, and Klose did not know or understand what an Alford plea was and did not know or understand that he was pleading guilty to the charge of murder; claim that Klose's trial counsel failed to review the crime scene photographs with Klose; claim that Klose's trial counsel failed to effectively cross examine Donald Martin, Klose's neighbor who was a witness to the incident; claim that Klose's trial counsel failed to interview and subpoena a specific defense witness, who Klose contends would have testified Klose was still suffering from delirium tremens hours after the murder; cross-examine Martin in the first post-conviction evidentiary hearing; and provide representation and secure a transcript in Klose's first post-conviction appeal. Klose also argues a manifest injustice occurred when the court failed to provide him with representation and secure a transcript for his first post-conviction appeal.

[¶ 9] A person convicted of and sentenced for a crime may apply for post-conviction relief under N.D.C.C. § 29-32.1-01. A court may summarily dismiss an application for post-conviction relief:

if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. We review an appeal from summary denial of post-conviction relief as we would review an appeal from a summary judgment. The party opposing the motion for summary dismissal is entitled to all reasonable inferences to be drawn from the evidence and is entitled to an evidentiary hearing if a reasonable inference raises a genuine issue of material fact. For summary judgment purposes, the evidentiary assertions of ...