Peterka v. State, 20140425.

• Court: United States State Supreme Court of North Dakota
• Writing for the Court: CROTHERS, Justice.
• Citation: 864 N.W.2d 745
• Parties: Shane Philip PETERKA, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
• Docket Number: No. 20140425.,20140425.
• Decision Date: 11 June 2015

864 N.W.2d 745

Shane Philip PETERKA, Petitioner and Appellant
v.
STATE of North Dakota, Respondent and Appellee.

No. 20140425.

Supreme Court of North Dakota.

June 11, 2015.

864 N.W.2d 748

Mark Taylor Blumer, Fargo, ND, for petitioner and appellant.

Barbara L. Whelan, State's Attorney, Walsh County Courthouse, Grafton, ND, for respondent and appellee.

Opinion

CROTHERS, Justice.

¶ 1] Shane Philip Peterka appeals from a district court order granting summary judgment and denying in part Peterka's application for postconviction relief. Peterka argues the district court erred in summarily denying the application for postconviction relief, in determining that N.D.C.C. § 12.1–27.2–04.1 unambiguously authorizes multiple prosecutions and punishments based on the number of prohibited child pornographic images possessed rather than on the number of computers he possessed containing those images and in denying Peterka's claims of ineffective assistance of counsel, double jeopardy and denial of relief under N.D.R.Crim.P. 35. We affirm the district court's denial of postconviction relief, finding N.D.C.C. § 12.1–27.2–04.1 unambiguously authorizes multiple prosecutions and punishments. We affirm the district court's denial of postconviction relief based on Peterka's claims of ineffective assistance of counsel and double jeopardy. We reverse the district court's denial of postconviction relief on Peterka's N.D.R.Crim.P. 35 claim.

I

[¶ 2] Peterka was charged with 119 counts of unlawful possession of images of sexual conduct by a minor, class C felonies. Peterka retained counsel. After a pre-sentence investigation, the parties presented a plea agreement to the district court, which was rejected. Peterka later entered an open plea of guilty and was sentenced in January 2013. In May 2013, Peterka attempted to file a motion for reduction of sentence under N.D.R.Crim.P. 35(b), and the State responded. The clerk of court rejected the motion for failure to also file proof of service.

[¶ 3] In November 2013, Peterka filed an application for postconviction relief alleging his due process rights were violated

[864 N.W.2d 749

when the prosecutor obtained a wrongful conviction by charging him with 119 counts when he only possessed or had two devices containing the prohibited materials. Peterka also alleged ineffective assistance of counsel because his attorney failed to properly investigate whether he committed 119 separate acts, because the attorney failed to investigate whether it was prosecutorial misconduct to charge him with 119 separate offenses and because his attorney failed to file and serve motions for change of venue and change of judge. After appointment of counsel for his postconviction relief claim, Peterka filed an amended application alleging that his probation exceeds the time allowed by statute, that he should not be required to register as a sex offender for the duration of his life and that his request for reduction in sentence should have been accepted by the sentencing court for review. The amended application also alleged Peterka's attorney failed to object to the sentence, inform the court of the lack of authority to issue such a sentence, advise Peterka in writing of his rights to appeal the sentence and challenge the sentencing portions regarding excessive probation and the requirement to register as a sex offender.

¶ 4] The State moved to dismiss the amended application. The district court filed notice that the State's motion would be considered a motion for summary judgment under N.D.R.Civ.P. 56. The State filed an affidavit. Peterka filed an affidavit of Shane Peterka, an affidavit of Diane Peterka and a supplemental brief summarizing his arguments and stating the proceedings contain purely legal questions or questions based on undisputed facts. An evidentiary hearing was not held.

[¶ 5] The district court granted summary judgment in part to the State and in part to Peterka, finding N.D.C.C. § 12.1–27.2–04.1 unambiguously authorizes multiple prosecutions and punishments based on the number of prohibited images possessed rather than on the number of computers possessed containing those images, and multiple prosecutions do not constitute double jeopardy. The district court also found the sentencing court improperly imposed consecutive probationary terms in counts 4 through 119 under N.D.R.Crim.P. 35(a)(1) and resentenced Peterka to five years probation. The court further found it was appropriate to modify the judgments and sentences under N.D.R.Crim.P. 35(a)(1), directing that Peterka be required to register as a sexual offender for not less than 15 years and up to the duration of his life. Lastly, the court found Peterka was not denied effective assistance of counsel regarding the Rule 35 motion and for issues relating to change of venue and change of judge. Peterka appeals.

II

[¶ 6] “Post-conviction relief proceedings are civil in nature and are governed by the North Dakota Rules of Civil Procedure.” Burke v. State, 2012 ND 169, ¶ 10, 820 N.W.2d 349.

“We review an appeal from a summary denial of post-conviction relief like we review an appeal from a summary judgment. 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. Once the moving party has initially shown there is no genuine issue of material fact, the burden shifts to the opposing party to present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact.”

DeCoteau v. State, 1998 ND 199, ¶ 4, 586 N.W.2d 156 (citations omitted). “The

[864 N.W.2d 750

court may grant a motion ... [if] 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(3). “A genuine issue of material fact exists if reasonable minds could draw different inferences and reach different conclusions from the undisputed facts.” Coppage v. State, 2011 ND 227, ¶ 14, 807 N.W.2d 585 (citation and quotation marks omitted). “[I]neffective assistance of counsel is a mixed question of law and fact [that] is fully reviewable on appeal.” Clark v. State, 2008 ND 234, ¶ 11, 758 N.W.2d 900 (quoting Sambursky v. State, 2008 ND 133, ¶ 7, 751 N.W.2d 247). “Statutory interpretation is a question of law, fully reviewable on appeal.” State v. Stavig, 2006 ND 63, ¶ 12, 711 N.W.2d 183.

[¶ 7] The State's summary dismissal motion puts the applicant to his proof and the burden shifts to the applicant to support his claims with competent and admissible evidence raising a genuine issue of fact. Coppage, 2011 ND 227, ¶ 9, 807 N.W.2d 585.

“Generally, summary disposition is not appropriate when there are claims of ineffective assistance of counsel. In most cases claims of ineffective assistance of counsel are based on matters occurring outside the court record or transcript, and therefore the record and transcripts are not adequate to decide the claims and an evidentiary hearing may be required to consider other evidence beyond the record.”

Id. at ¶ 14 (internal citation omitted).

III

[¶ 8] Peterka argues he was improperly charged for and convicted of 119 counts of possession of certain materials in violation of N.D.C.C. § 12.1–27.2–04.1 and, therefore, should be granted postconviction relief because the prosecutor violated his due process rights by using improper methods to produce a wrongful conviction. Peterka argues his prosecution and conviction for 119 counts of the same statutory violation constitutes multiple prosecutions and convictions in violation of the Fifth Amendment's double jeopardy clause. The district court summarily rejected Peterka's argument, finding the statute was not ambiguous and permits charging each visual representation as a separate count.

[¶ 9] The constitutional guarantee against double jeopardy provides protection against multiple punishments for the same offense. State v. Moos, 2008 ND 228, ¶ 13, 758 N.W.2d 674. “When the same conduct violates more than one statutory provision, the first step in the double jeopardy analysis is to determine whether the legislature intended that each violation be a separate offense.” Id. We analyze whether the statute constitutes a different offense when analyzed under the same-elements test formulated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). “The Blockburger rule is premised upon the presumption that the legislature ordinarily does not intend to punish the same offense under two different statutes, and [a]ccordingly, where two statutory provisions proscribe the same offense, they are construed not to authorize cumulative punishments in the absence of a clear indication of contrary legislative intent.” Moos, at ¶ 16 (citations and quotation marks omitted). “Under Blockburger, the court analyzes each offense to determine whether each offense contains an element not contained in the other; if not, they are the same offence [sic] and double jeopardy bars additional punishment and successive prosecution.” Id. (citation and quotation marks omitted). Blockburger does not apply if the legislative intent is clear from the language of

...