Owens v. State

• Decision Date: 20 May 1998
• Docket Number: Nos. 970193,970241,s. 970193
• Citation: 578 N.W.2d 542,1998 ND 106
• Parties: Earl Leon OWENS, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee. Civil
• Court: North Dakota Supreme Court

Page 542

578 N.W.2d 542

1998 ND 106

Earl Leon OWENS, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.

Civil Nos. 970193, 970241.

Supreme Court of North Dakota.

May 20, 1998.

Earl L. Owens, Bismarck, pro se.

Bruce A. Romanick, Assistant State's Attorney, Bismarck, for respondent and appellee.

NEUMANN, Justice.

¶1 Earl Leon Owens appeals from two orders denying his applications for post-conviction relief. We conclude the trial court did not err in denying Owens' numerous applications and other connected motions, and we affirm.

I

¶2 On April 10, 1996, Owens was convicted of two class C felony counts of theft by deception, two class C felony counts of attempted theft by deception, and one class A misdemeanor count of giving false information to law enforcement officers. He was sentenced to serve a 17-year sentence at the State Penitentiary. Owens did not file a direct appeal from the conviction.

¶3 During April and May 1996, Owens filed various pro se motions with the court seeking relief from his conviction and sentence. In July 1996, Owens, acting pro se, filed his first formal application for post-conviction relief. Owens claimed he was denied his right to call witnesses on his behalf to impeach prosecution witnesses, who "gave false information to the Court and the prosecutor." Owens also asserted it would be in the interests of justice to grant the application because he was "now able to recall with clarity the facts and circumstances of this case and will be able to assist in his own defense." In a letter, the trial court informed Owens it had appointed an attorney for purposes of post-conviction relief proceedings. The court said:

"Once again, my review of the files shows that you did not serve on the State's Attorney the motions that you have recently filed.

"This letter will also serve as the Court's Order summarily denying all the pro-se motions that you have filed since the entry of the Judgments in the above cases.

"Confer and cooperate with your court appointed attorney."

¶4 In January 1997, Owens, through his post-conviction attorney, filed an "amended application for post-conviction relief" under N.D.C.C. Chapter 29-32.1, alleging ineffective assistance of counsel at his trial. Owens claimed the attorney appointed to represent him at his trial did not spend adequate time preparing for trial, did not give proper notice of potential alibi witnesses as required by N.D.R.Crim.P. 12.1, which prevented him from using an alibi defense, and did not subpoena witnesses Owens requested be called for his defense. Owens also asked the court to authorize preparation of a transcript of his jury trial.

¶5 The State argued Owens received effective assistance of counsel and requested summary disposition of the application under N.D.R.C. 3.2. The State also requested an additional 20 days to file an affidavit of Owens' trial counsel because that attorney had been hospitalized and was unable to provide an affidavit. The trial court did not sign the order granting the State's request for an additional 20 days to file the affidavit until January 23, 1997, one month after the request was made.

¶6 On March 13, 1997, Owens, through his post-conviction attorney, moved for summary disposition of his application for post-conviction relief. Owens argued his application should be granted because his trial attorney had not supplied an affidavit, and 78 days had passed since the State had sought the extension to file that affidavit. In its response, the State sought dismissal of the application, claiming it had not been able to obtain trial counsel's affidavit and Owens had failed to show the result of his criminal trial would have been different even assuming the truthfulness of his allegations. The State also requested and notified Owens of an April 7, 1997 hearing date for the application.

¶7 Eventually the State was able to obtain an affidavit from Owens' trial attorney, and moved on March 31, 1997, to withdraw its request for a hearing and asked the court to accept the affidavit in lieu of testimony and proceed under N.D.R.C. 3.2 as requested by Owens. A copy of the motion was served on Owens' post-conviction counsel. On April 4, 1997, the court agreed to rule on the application under Rule 3.2 "as requested by both parties."

¶8 The trial court denied Owens' application for postconviction relief, ruling he had failed to support his claim of ineffective assistance of counsel. The court held Owens had not shown his trial attorney's performance was defective, that Owens' defense was prejudiced by the alleged defective performance, or that the outcome of his trial would have been different.

¶9 Owens, acting pro se, appealed to this Court. Before the appeal could be heard, Owens requested the appeal be held in abeyance so he could present to the trial court additional issues his attorney failed to present. We "temporarily remanded to the trial court for the limited purpose of the trial court's consideration of further motions which may be made in this case."

¶10 Further motions were made. On July 1, 1997, Owens, acting pro se, filed another "amended application for postconviction relief." Owens again claimed ineffective assistance of counsel, but this time set forth no less than 20 different pretrial and trial incidents which allegedly showed his trial attorney's performance was defective. Owens sought a new trial and again asked the court to authorize preparation of the trial transcript. Owens also filed separate motions with the court seeking the trial transcript and requesting a "disposition hearing."

¶11 The State opposed the most recent application, arguing the "application, although longer than his previous filings, essentially alleges the same issue of ineffective assistance of counsel." The State asserted Owens' claims were fully and finally determined in the previous post-conviction proceeding and, to the extent they were not, Owens inexcusably failed to present them in the previous application. The State also asserted the claims were, in any event, without substance and did not entitle Owens to any relief.

¶12 The trial court denied the application, reasoning its prior May 1997 decision and order were "still applicable. Petitioner's claims are still meritless." The court did not address Owens' requests for a "disposition hearing" and for preparation of the trial transcript. Owens, acting pro se, appealed.

II

¶13 Under N.D.C.C. § 29-32.1-09(1), a trial 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. The procedure is akin to summary judgment under N.D.R.Civ.P. 56, and our review of a summary denial of post-conviction relief is like the review of an appeal from a summary judgment. See Hoffarth v. State, 515 N.W.2d 146, 148 (N.D.1994). The party opposing the motion for summary disposition is entitled to all reasonable inferences at the preliminary stages of a post-conviction proceeding, and is entitled to an evidentiary hearing if a reasonable inference raises a genuine issue of material fact. See DeCoteau v. State, 504 N.W.2d 552, 556 (N.D.1993). However, once the moving party has initially shown there is no genuine issue of material fact, the burden shifts to the opposing party to demonstrate there is a genuine issue of material fact. See Kummer v. City of Fargo, 516 N.W.2d 294, 296-297 (N.D.1994). The party opposing the motion may not merely rely upon the pleadings or upon unsupported, conclusory allegations, but must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact. See Mertz v. State, 535 N.W.2d 834, 836 (N.D.1995).

A

¶14 Owens asserts the trial court erred in failing to hold an evidentiary hearing after having granted the State's request for one. We disagree.

¶15 This argument relates to Owens' first amended application for post-conviction relief filed in January 1997 through his post-conviction attorney. The problem with Owens' argument is he did not request an evidentiary hearing regarding the first amended application, but instead requested summary disposition granting his application under N.D.C.C. § 29-32.1-09 because his trial attorney had not yet provided an affidavit. Although the State requested an evidentiary hearing and notified Owens of its date, after it received Owens' trial attorney's affidavit the State withdrew its request for a hearing and asked to have the matter decided without a hearing. The trial court agreed to rule on the application under N.D.R.C. 3.2 "as requested by both parties."

¶16 These circumstances parallel those in Huber v. Oliver County, 529 N.W.2d 179 (N.D.1995). In Huber, the appellants claimed they were entitled to rely on the appellee's N.D.R.C. 3.2 request for oral argument to guarantee them an opportunity to be heard on their own and the appellee's motions. In rejecting this argument, we noted not only had the appellee failed to properly complete its initial request for oral argument and the appellants explicitly waived oral argument, but "[p]arties seeking oral argument under Rule 3.2 should make their own request, if they wish to be heard." Huber, 529 N.W.2d at 183.

¶17 The same rationale applies here. Owens did not request an evidentiary hearing on his first amended application. Instead, he specifically requested summary disposition in his favor. The State scheduled and notified Owens of a hearing date, but later withdrew the request, and served a copy of its withdrawal on Owens' post-conviction counsel. As in Huber, 529 N.W.2d at 183, Owens' "reliance upon that initial request by another party is misplaced, at best." We conclude the trial court did not err in failing to hold an evidentiary hearing on the first amended application when the parties, to the court's knowledge, had agreed no evidentiary hearing was necessary....