State v. Lueder

• Decision Date: 07 April 1977
• Docket Number: Cr. N
• Parties: STATE of North Dakota, Appellee, v. Robert M. LUEDER, Appellant. o. 580.
• Court: North Dakota Supreme Court

Page 861

252 N.W.2d 861

STATE of North Dakota, Appellee, v. Robert M. LUEDER, Appellant.

Cr. No. 580.

Supreme Court of North Dakota.

April 7, 1977.

Syllabus by the Court

For the reasons stated in the opinion the district court's order summarily dismissing the petition for relief under the provisions of Chapter 29-32, N.D.C.C., is reversed, and the cause is remanded for acceptance of further evidence on certain issues and for a determination of whether issues of material fact exist sufficient to require an evidentiary hearing upon any such issues.

Robert M. Lueder, pro se.

David L. Drey, State's Atty., Minot, for appellee; submitted without oral argument.

ERICKSTAD, Chief Justice.

In this instance we have pending before us an appeal by Robert M. Lueder from an order of the district court of Ward County which denied his petition pro se to vacate a judgment and sentence of six months in the Ward County jail, imposed by the district court on January 7, 1965, after conviction for burglary of a laundromat in Minot.

Lueder asserts that he seeks relief under the provisions of Chapter 29-32, N.D.C.C., the Uniform Post-Conviction Procedure Act. He states that he seeks to collaterally attack the judgment and sentence and that he is entitled to relief therefrom, pursuant to the Uniform Post-Conviction Procedure Act because of constitutional infirmities in the proceedings and prejudice which resulted therefrom. As the six-month sentence was suspended by the district court so that Lueder could be transported to the county of Grand Forks for prosecution on two charges of robbery arising out of incidents involving two gasoline-filling stations there, one might have cause to wonder why, at this late date, he seeks to have a sentence, which he has not served and is likely never to serve, vacated.

The answer appears to relate to the fact that this conviction of burglary was used as one of three prior convictions to increase the sentence imposed by the United States District Court for the District of Oregon in conjunction with his violation of Title 18, United States Code, § 2113(a).

Pertinent thereto is the following from the forty-page motion and brief filed with the trial court.

"Petitioner is presently serving a twenty year sentence in the Atlanta Federal Penitentiary, in Atlanta, Georgia, for violation of Title 18, United States Code, Section 2113(a), imposed on August 30, 1972, in the United States District Court, District of Oregon, Portland, Oregon, by the Honorable J. M. Burns, U.S.D.J., and which sentence, although within statutory limits, was imposed on the assumption that petitioner had three prior convictions, one of which consists of Burglary, the conviction under attack in the instant case, and wherefore, the conviction of burglary emanating in Ward County District Court, Minot, North Dakota, Criminal File No. 5135, was used as a recidivist in order to enhance punishment in the District of Oregon."

We note that Title 18, § 2113(a), U.S.C.A., involving bank robbery and incidental crimes, permits a sentence of a fine of not more than $5,000 or imprisonment for not more than 20 years, or both. It would appear therefrom that the sentence which Lueder received was within the limits of the statute under which he was charged, irrespective of any previous record.

In light of the objectives of the petitioner in this case, for whatever significance they may have, we draw attention to Sections 12-01-07, 12-06-10, 12-06-13, 12-06-14, 12-35-02(9), 12-46-17, N.D.C.C., in effect in the years 1964 and 1965.

"Crimes or public offenses are either felonies or misdemeanors. A felony is a crime which is or may be punishable with death or imprisonment in the penitentiary. Every other crime is a misdemeanor. When a crime punishable by imprisonment in the penitentiary also is punishable by fine or imprisonment in a county jail, in the discretion of the court or jury, it is, except when otherwise specially declared by law to be a felony, a misdemeanor for all purposes after a judgment imposing a punishment other than imprisonment in the penitentiary." (Emphasis added.) § 12-01-07, N.D.C.C.

"Except in cases where a different punishment is prescribed by law, every offense declared to be a felony is punishable by a fine of not more than one thousand dollars, or by imprisonment in the penitentiary for not less than one year nor more than five years, or by both such fine and imprisonment." § 12-06-10, N.D.C.C.

"Whenever any person under the age of twenty-one years is convicted of an offense punishable by imprisonment in the penitentiary, the court before which such conviction was had, in its discretion, may sentence the person so convicted to imprisonment in the county jail of the county in which such conviction was had or commit the person so convicted to the state training school as provided in this title." § 12-06-13, N.D.C.C.

"Except in cases where a different punishment is prescribed by law, every offense declared to be a misdemeanor is punishable by imprisonment in a county jail for not more than one year, or by a fine of not more than five hundred dollars, or by both such fine and imprisonment." § 12-06-14, N.D.C.C.

"Any person who:

9. Breaks into and enters at any time any building or any part of a building, booth, tent, railroad car, motor vehicle or trailer, vessel, or other structure or erection in which any property is kept, with intent to steal or to commit a felony,

is guilty of burglary and shall be punished by imprisonment in the penitentiary for not less than one year nor more than ten years." § 12-35-02(9), N.D.C.C.

"If any person who has been convicted of a felony and committed to the state training school shall be or become incorrigible and manifestly or persistently dangerous to the good order, government, and welfare of such school or the students thereof, the board of administration must order such person returned and delivered to the sheriff of the county from which he was committed, and the proceedings against such person thereafter shall be resumed and continued as though no order or warrant of commitment to the state training school had been made." § 12-46-17, N.D.C.C.

Because the petitioner requests that the trial court's order denying his motion to vacate the judgment of sentence be reversed or, in the alternative, that the matter be remanded for an evidentiary hearing so that an adequate record may be formulated, we think it important to review the pertinent provisions of the Uniform Post-Conviction Procedure Act.

To qualify for relief, one must bring himself within the provisions of Section 29-32-01, N.D.C.C. It reads:

"1. Any person who has been convicted of, or sentenced for, a crime and who claims:

a. That the conviction or the sentence was in violation of the constitution, laws, or treaties of the United States or the constitution or laws of this state;

b. That the court was without jurisdiction to impose sentence;

c. That the sentence exceeds the maximum authorized by law;

d. That there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice;

e. That his sentence has expired, that his probation, parole, or conditional release has been unlawfully revoked, or that he is otherwise unlawfully held in custody or other restraint; or

f. That the conviction or sentence is otherwise subject to collateral attack upon any ground of alleged error heretofore available under any common law, statutory or other writ, motion, petition, proceeding, or remedy;

may institute, without paying a filing fee, a proceeding under this chapter to secure relief." § 29-32-01(1), N.D.C.C.

It would appear that he is attempting to invoke parts a., d., and f. of subsection (1).

Sections 29-32-03 and 29-32-04, N.D.C.C., provide for the commencement of proceedings through a verified application and for the contents of the application.

The pertinent parts of those sections follow:

"A proceeding is commenced by filing an application verified by the applicant with the clerk of the court in which the conviction took place. An application may be filed at any time. Facts within the personal knowledge of the applicant and the authenticity of all documents and exhibits included in or attached to the application must be sworn to affirmatively as true and correct. . . ." (Emphasis added.) § 29-32-03, N.D.C.C.

"The application shall identify the proceedings in which the applicant was convicted, give the date of the entry of the judgment and sentence complained of, specifically set forth the grounds upon which the application is based, and clearly state the relief desired. Facts within the personal knowledge of the applicant shall be set forth separately from other allegations of facts and shall be verified as provided in section 29-32-03. . . ." (Emphasis added.) § 29-32-04, N.D.C.C.

Although petitioner in his application has not affirmatively sworn that the facts contained in the application are true and correct as required by Section 29-32-04, N.D.C.C., as he has signed the petition before a parole officer authorized to administer oaths who certifies that the petition was sworn and subscribed to before him, we shall consider that sufficient compliance, especially in light of the admonition in subsection (1) of Section 29-32-06, N.D.C.C., that the court in considering the application should take account of substance regardless of defects of form.

The pertinent parts of Section 29-32-06, N.D.C.C., read "1. Within thirty days after the docketing of the application, or within any further time the court may fix, the state shall respond by answer or by motion which may be supported by affidavits. . . . In considering the application the court shall take account of substance regardless of defects of form. . . . (Emphasis added.)

"2. When a court is satisfied, on the basis of the application, the answer or motion, and the record, that the...