State v. Atkins

• Decision Date: 24 May 2019
• Docket Number: No. 20180411,20180411
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Cody Michael ATKINS, Defendant and Appellant
• Court: North Dakota Supreme Court

928 N.W.2d 441

STATE of North Dakota, Plaintiff and Appellee

v.Cody Michael ATKINS, Defendant and Appellant

No. 20180411

Supreme Court of North Dakota.

Filed May 24, 2019

Corrected May 28, 2019

Meredith H. Larson, Assistant State’s Attorney, Grand Forks, ND, for plaintiff and appellee; submitted on brief.

Scott O. Diamond, Fargo, ND, for defendant and appellant; submitted on brief.

McEvers, Justice.

[¶1] Cody Michael Atkins appeals from a district court order denying his motion to withdraw his guilty plea and his motion for a new trial. Atkins argues the district court erred by (1) classifying his motion to withdraw his guilty plea as a postconviction relief proceeding, and (2) finding he was procedurally barred from raising his N.D.R.Crim.P. 11 claims under misuse of process and res judicata. Atkins also argues the district court abused its discretion by finding he did not meet the burden required to show the existence of newly discovered evidence in his motion for a new trial. We affirm.

I

[¶2] In March 2015, Atkins pleaded guilty to gross sexual imposition. In June 2015, Atkins was sentenced to 20 years imprisonment with the North Dakota Department of Corrections, with five years suspended for a period of 10 years of supervised probation with credit for time served.

[¶3] In July 2015, Atkins directly appealed the criminal judgment, seeking to withdraw his guilty plea, alleging (1) ineffective assistance of counsel, and (2) the district court’s failure to substantially comply with N.D.R.Crim.P. 11, resulting in a manifest injustice. This Court affirmed the criminal judgment in State v. Atkins , 2016 ND 13, ¶ 10, 873 N.W.2d 676, and declined to address Atkins’ argument that he should be permitted to withdraw his guilty plea, holding the issue was inappropriate for appeal because Atkins failed to move the district court to withdraw his guilty plea. Id. at ¶ 5. This Court addressed Atkins’ ineffective assistance of counsel claim, holding there was insufficient evidence in the record on direct appeal to show Atkins’ counsel was plainly defective and citing State v. Strutz , 2000 ND 22, ¶ 26, 606 N.W.2d 886, for the proposition: "When the record on direct appeal is inadequate to determine whether the defendant received ineffective assistance, the defendant may pursue the ineffectiveness claim at a post-conviction proceeding where an adequate record can be made." Atkins , at ¶ 9.

[¶4] In March 2016, Atkins filed his first application for post-conviction relief. He sought relief on three grounds: (1) evidence not previously heard, (2) denial of effective assistance of counsel, and (3) conviction obtained by use of coerced confession. The district court dismissed the action. Atkins did not appeal the dismissal.

[¶5] In September 2016, Atkins filed his second application for post-conviction relief, again alleging ineffective assistance of counsel. The State moved to dismiss the application, arguing Atkins failed to provide evidentiary support for his claim, and the district court granted the motion. Atkins appealed the court’s order, and this Court affirmed, concluding Atkins was put to his proof when the State moved for summary dismissal and that he failed to present any competent evidence raising an issue of material fact. Atkins v. State , 2017 ND 290, ¶ 11, 904 N.W.2d 738.

[¶6] In July 2017, Atkins filed a motion under N.D.R.Crim.P. 35(a), arguing he was entitled to relief because he was precluded from using the internet as part of his probationary conditions. The State opposed the motion, and the district court denied the motion, finding Atkins’ motion was his "third post-conviction request for relief," and the condition of his probation limiting his internet access was a "valid, reasonable condition which does not violate Atkins’ First Amendment rights."

[¶7] In November 2017, Atkins filed a motion to dismiss the gross sexual imposition charge because the prosecution failed to seize, try, and prosecute in accordance with constitutional law. The State opposed the motion, arguing Atkins’ motion was unsupported by facts or legal argument. The district court denied the motion.

[¶8] In February 2018, Atkins moved to "vacate" his guilty plea. Atkins alleged he was misinformed by his attorney when deciding to plead guilty. In March 2018, Atkins moved for a new trial, alleging the existence of newly discovered evidence, including: (1) text messages; (2) a sexual assault kit; (3) the credibility of the State’s witnesses; and (4) evidence tampering by the State. Atkins argued the newly discovered evidence was exculpatory. Atkins’ court-appointed counsel later filed a supplemental brief on both motions further outlining his grounds for relief, adding the allegation that the district court failed to comply with N.D.R.Crim.P. 11 in support of his motion to withdraw his guilty plea. Atkins submitted 7 exhibits along with his motions including a print-out of the alleged newly discovered text messages and transcripts from the 2015 hearings. A hearing was held on the motions and Atkins testified. On October 31, 2018, the court issued an order classifying Atkins’ motions as an action for post-conviction relief under this Court’s decision in State v. Gress , 2011 ND 233, 807 N.W.2d 567, and denying Atkins relief, concluding his attempt to withdraw his guilty plea was procedurally barred by abuse of process and res judicata, and his motion for a new trial based on claims of newly discovered evidence did not meet the four-part test to qualify as newly discovered evidence.

II

[¶9] Atkins argues the district court erred by applying civil post-conviction affirmative defenses to his criminal law motions filed in his criminal case. The State argues the court correctly relied upon Gress , 2011 ND 233, 807 N.W.2d 567, in finding Atkins’ motions should be treated as a post-conviction relief proceeding.

[¶10] In Gress , 2011 ND 233, 807 N.W.2d 567, the defendant pleaded guilty to two counts of aggravated assault and two years later, applied for post-conviction relief. Id. at ¶ 2. The district court denied his application, and the defendant did not appeal. Id . Three years later, the defendant moved "to suspend his sentence pursuant to N.D.R.Civ.P. Rule 60(b)(6)... [a]lternatively, ... to withdraw his unconstitutional plea-agreement," and the court denied the motion. Id . at ¶ 3. On appeal this Court held that although the motion was not titled as an application for post-conviction relief, the defendant had already previously filed an application for post-conviction relief and therefore this Court considered the motion as a second application for post-conviction relief. Id. at ¶ 6. Similar to the defendant in Gress , Atkins did not title his motion as an application for post-conviction relief, but he had already previously filed two applications for post-conviction relief prior to filing the motion to withdraw his guilty plea.

[¶11] Rule 11(d)(2), N.D.R.Crim.P., provides: "[u]nless the defendant proves that withdrawal is necessary to correct a manifest injustice, the defendant may not withdraw a plea of guilty after the court has imposed sentence." "When a defendant applies for post-conviction relief seeking to withdraw a guilty plea, the application is treated as one made under N.D.R.Crim.P. 11(d)." Mackey v. State , 2012 ND 159, ¶ 11, 819 N.W.2d 539 (relying on Eaton v. State , 2011 ND 35, ¶ 5, 793 N.W.2d 790 (quoting Patten v. State , 2008 ND 29, ¶ 14, 745 N.W.2d 626 )). We have previously held the remedies under the Rules of Criminal Procedure and the Uniform Postconviction Procedure Act provide similar remedies and co-exist for similar purposes. See State v. McClary , 2016 ND 31, ¶ 7, 876 N.W.2d 29 (comparing remedies under N.D.R.Crim.P. 35(a) to correct an illegal sentence to similar provision under N.D.C.C. § 29-32.1-01(1)(a) ). We have also held that even when a motion following conviction is denominated as a motion under the North Dakota Rules of Criminal Procedure, the provisions of the Uniform Postconviction Procedure Act, N.D.C.C. ch. 29-32.1, are applicable. McClary , at ¶ 7 (relying on State v. Johnson , 571 N.W.2d 372, 374-75 (N.D. 1997) holding second Rule 35(a) motion to correct an illegal sentence was barred by misuse of process). The parallel statutory provision to Rule 11(d) is N.D.C.C. § 29-32.1-01(1)(h), which provides relief when: "[t]he conviction or sentence is otherwise subject to collateral attack upon any ground of alleged error before July 1, 1985, under any common law, statutory or other writ, motion, proceeding, or remedy." A defendant, prior to 1985, could move to withdraw a guilty plea under N.D.R.Crim.P. 32(d) to correct a manifest injustice. While the provisions have been modified and moved to N.D.R.Crim.P. 11(d) in 2010, the remedy itself remains the same. Section 29-32.1-01(4), N.D.C.C., further provides:

A proceeding under this chapter is not a substitute for and does not affect any remedy incident to the prosecution in the trial court or direct review of the judgment of conviction or sentence in an appellate court. Except as otherwise provided in this chapter, a proceeding under this chapter replaces all other common law, statutory, or other remedies available before July 1, 1985, for collaterally challenging the validity of the judgment of conviction or sentence. It is to be used exclusively in place of them. A proceeding under this chapter is not available to provide relief for disciplinary measures, custodial treatment, or other violations of civil rights of a convicted person occurring after the imposition of sentence.

A plain reading of this provision is that the Uniform Postconviction Procedure Act is to be used exclusively in place of other remedies collaterally challenging the judgment of conviction. We hold that a defendant may not avoid the procedures of the Uniform Postconviction Procedure Act by designating his motion under a rule of criminal procedure or by filing his motion in his criminal file, rather...