Leftbear v. State, No. 20060244.

CourtUnited States State Supreme Court of North Dakota
Writing for the CourtKapsner
Citation2007 ND 14,727 N.W.2d 252
PartiesJohn Joseph LEFTBEAR, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
Decision Date01 February 2007
Docket NumberNo. 20060244.
727 N.W.2d 252
2007 ND 14
John Joseph LEFTBEAR, Petitioner and Appellant
v.
STATE of North Dakota, Respondent and Appellee.
No. 20060244.
Supreme Court of North Dakota.
February 1, 2007.

[727 N.W.2d 253]

William Kirschner (argued), Fargo, ND, for petitioner and appellant.

Lonnie Olson (argued), State's Attorney, Devils Lake, ND, for respondent and appellee.

KAPSNER, Justice.


[¶ 1] John Leftbear appeals from the district court's denial of a motion to extend the time for filing a notice of appeal. We affirm, concluding Leftbear failed to show excusable neglect or an abuse of discretion.

I

[¶ 2] Leftbear was charged with aggravated assault on February 17, 2004, in Ramsey County. Leftbear was appointed counsel, and a jury trial was set. In open court, Leftbear waived his right to a jury trial. The district court heard the matter on November 18, 2004, and found Leftbear guilty of aggravated assault. The court concluded Leftbear was a habitual offender and sentenced him to prison for ten years. Leftbear appealed, claiming there was insufficient evidence to convict him. We summarily affirmed the conviction. State v. Leftbear, 2005 ND 163, 704 N.W.2d 573.

[¶ 3] Leftbear filed a pro se application for post-conviction relief. The district court summarily denied Leftbear's application on January 25, 2006. Leftbear wrote a letter to the district court on February 27, 2006, asking it to reconsider its ruling. The court denied Leftbear's request. Eighty-eight days after filing his letter, Leftbear filed a notice of appeal from the order denying his application for post-conviction relief. Leftbear was informed his notice of appeal was untimely and that he must request an extension of time from the district court. The district court denied his motion for an extension of time on August 11, 2006.

II

[¶ 4] On appeal, Leftbear argues the district court abused its discretion in failing to grant his motion for an extension of time to file a notice of appeal and that the court erred in summarily dismissing his application for post-conviction relief. Leftbear claims his failure to timely file the application was attributable to excusable

727 N.W.2d 254

neglect. The State argues the district court did not abuse its discretion when it denied Leftbear's motion and that Leftbear's second issue is not properly before this Court. The determinative issue is the denial of the extension of time to file a notice of appeal. Because we hold the district court did not abuse its discretion in denying Leftbear's motion for an extension of time to file his appeal, we decline to address whether the district court erred when it summarily denied Leftbear's application for post-conviction relief.

III

[¶ 5] The time limit for filing a notice of appeal is jurisdictional. McMorrow v. State, 516 N.W.2d 282, 283 (N.D. 1994). "An extension of time to file an appeal based upon excusable neglect is addressed to the sound discretion of the trial court, and the court's determination will not be set aside on appeal absent an abuse of discretion." State v. Latendresse, 450 N.W.2d 781, 782 (N.D.1990). A district court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, or when its decision is not the product of a rational mental process leading to a reasoned determination. Gamboa v. State, 2005 ND 48, ¶ 6, 693 N.W.2d 21. Post-conviction actions are civil in nature and are governed by the rules of civil and appellate procedure. See Greywind v. State, 2004 ND 213, ¶ 5, 689 N.W.2d 390. Rule 4(d), N.D.R.App.P.,1 prescribes a sixty-day time limit for filing a notice of appeal from a post-conviction relief proceeding, which may be extended upon a showing of excusable neglect. See id. However, an extension of time to file a notice of appeal may not exceed thirty days beyond the sixty-day general rule. See id.

[¶ 6] Leftbear argues the set of circumstances surrounding his notice of appeal are extraordinary. He argues his neglect should be excused because he was pro se when he filed his post-conviction relief application, he was ignorant of the law, he was being given anti-psychotic medications, and he was in prison. Leftbear also claims he has limited literacy and "he has little or no experience with the legal system or how to get an attorney or file an appeal." As support, Leftbear relies solely upon his assertions and a short affidavit. Leftbear's affidavit, in pertinent part, provides:

3. I am not a lawyer and did not have the...

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5 practice notes
  • State v. Fischer, No. 20060153.
    • United States
    • North Dakota Supreme Court
    • February 28, 2007
    ...extraordinary circumstances caused the delay in filing the notice of appeal. Redfield, at ¶ 7, 620 N.W.2d 570; see also Leftbear v. State, 2007 ND 14, ¶ 9, 727 N.W.2d 252 (explaining the excusable neglect standard). 727 N.W.2d 753 [¶ 9] However, we have never addressed the "good cause" stan......
  • State v. Ripley, No. 20080290.
    • United States
    • United States State Supreme Court of North Dakota
    • June 17, 2009
    ...and, without 766 N.W.2d 473 supportive reasoning or citations to relevant authorities, an argument is without merit.'" Leftbear v. State, 2007 ND 14, ¶ 7, 727 N.W.2d 252 (quoting Riemers v. City of Grand Forks, 2006 ND 224, ¶ 9, 723 N.W.2d 518). Therefore, we hold Ripley waived this [¶ 30] ......
  • Nuveen v. Nuveen, No. 20120080.
    • United States
    • United States State Supreme Court of North Dakota
    • August 30, 2012
    ...of the district court, and the court's decision will not be set aside on appeal absent an abuse of discretion. Leftbear v. State, 2007 ND 14, ¶ 5, 727 N.W.2d 252;Redfield v. Bitterman, 2000 ND 217, ¶ 7, 620 N.W.2d 570. A district court abuses its discretion if it acts in an arbitrary, unrea......
  • State v. Grzeskowiak, No. 20140126.
    • United States
    • United States State Supreme Court of North Dakota
    • September 23, 2014
    ...(N.D.1995) ; Nastrom v. Nastrom, 1998 ND 75, ¶ 8, 576 N.W.2d 215 ; State v. Jones, 2002 ND 163, ¶ 7, 652 N.W.2d 369 ; Leftbear v. State, 2007 ND 14, ¶¶ 6, 10, 727 N.W.2d 252. We conclude the district court's denial of the motion did not constitute an abuse of discretion. We summarily affirm......
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5 cases
  • State v. Fischer, No. 20060153.
    • United States
    • North Dakota Supreme Court
    • February 28, 2007
    ...extraordinary circumstances caused the delay in filing the notice of appeal. Redfield, at ¶ 7, 620 N.W.2d 570; see also Leftbear v. State, 2007 ND 14, ¶ 9, 727 N.W.2d 252 (explaining the excusable neglect standard). 727 N.W.2d 753 [¶ 9] However, we have never addressed the "good cause" stan......
  • State v. Ripley, No. 20080290.
    • United States
    • United States State Supreme Court of North Dakota
    • June 17, 2009
    ...and, without 766 N.W.2d 473 supportive reasoning or citations to relevant authorities, an argument is without merit.'" Leftbear v. State, 2007 ND 14, ¶ 7, 727 N.W.2d 252 (quoting Riemers v. City of Grand Forks, 2006 ND 224, ¶ 9, 723 N.W.2d 518). Therefore, we hold Ripley waived this [¶ 30] ......
  • Nuveen v. Nuveen, No. 20120080.
    • United States
    • United States State Supreme Court of North Dakota
    • August 30, 2012
    ...of the district court, and the court's decision will not be set aside on appeal absent an abuse of discretion. Leftbear v. State, 2007 ND 14, ¶ 5, 727 N.W.2d 252;Redfield v. Bitterman, 2000 ND 217, ¶ 7, 620 N.W.2d 570. A district court abuses its discretion if it acts in an arbitrary, unrea......
  • State v. Grzeskowiak, No. 20140126.
    • United States
    • United States State Supreme Court of North Dakota
    • September 23, 2014
    ...(N.D.1995) ; Nastrom v. Nastrom, 1998 ND 75, ¶ 8, 576 N.W.2d 215 ; State v. Jones, 2002 ND 163, ¶ 7, 652 N.W.2d 369 ; Leftbear v. State, 2007 ND 14, ¶¶ 6, 10, 727 N.W.2d 252. We conclude the district court's denial of the motion did not constitute an abuse of discretion. We summarily affirm......
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