State v. McMorrow
| Decision Date | 30 March 1983 |
| Docket Number | Cr. N |
| Citation | 332 N.W.2d 232 |
| Parties | STATE of North Dakota, Plaintiff and Appellee, v. Patrick T. McMORROW, Jr., Defendant and Appellant. o. 893. |
| Court | North Dakota Supreme Court |
Edwin Zuern, Asst. Atty. Gen., Bismarck, and Bruce D. Quick, Asst. State's Atty., Fargo, for plaintiff and appellee; argued by Edwin Zuern, Asst. Atty. Gen., Bismarck.
Patrick T. McMorrow, Jr., pro se.
Patrick T. McMorrow, Jr. appeals from the district court's denial of his application for post-conviction relief and accompanying motions. We affirm.
McMorrow was tried for the crime of arson, found guilty, and confined in the state penitentiary. He applied to the district court for relief pursuant to Chapter 29-32, NDCC, the Uniform Post-Conviction Procedure Act. Any person who has been convicted of or sentenced for a crime may institute a proceeding under the Act to secure relief if he 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 ...."
McMorrow alleged in his petition that he was held before trial because bail was excessive; that during his pretrial confinement he was harassed by jail personnel and denied privileges, reasonable medical treatment, and religious freedom; that his right to due process of law was violated by an erroneous presentence report; that he has suffered personal hardship since his incarceration; that he was denied his First Amendment right to worship during incarceration; that he has suffered cruel and unusual punishment because penitentiary officials denied him medical treatment; that he was denied due process during prison hearings; that the parole board denied him due process of law; and that he requested and was refused a transcript of his trial. In addition, McMorrow specifically requested a hearing and appointment of an attorney.
The district court considered McMorrow's application and determined there was no material issue of fact. The court also determined that the alleged due process violation by the parole board and the personal hardships allegedly not considered by the sentencing court were not the types of claims that the district court could consider under the Post-Conviction Procedure Act. The court considered McMorrow's allegations of violations of the First, Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution based upon prison conditions, a presentence report, excessive bail, court documents, and presentence trial confinement. Although the court believed the Act allowed it to consider all substantial issues raised, the court did not believe any substantial issue had been raised by McMorrow. The court found that McMorrow's counsel during his initial trial and appeal had been provided transcripts of all proceedings. The court concluded a hearing and appointment of counsel were not necessary. McMorrow's petition and motions were denied.
The original Uniform Post-Conviction Procedure Act was approved in 1955 and was adopted in Maryland, Montana, and Oregon. The revised Uniform Post-Conviction Procedure Act was approved in 1966 and was adopted in Idaho, Iowa, Minnesota, Nevada, North Dakota, Oklahoma, South Carolina, and South Dakota. Uniform laws adopted in North Dakota are to be interpreted to effectuate their general purpose. Section 1-02-13, NDCC. The Uniform Post-Conviction Procedure Act provides a remedy for all grounds for attacking the validity of a conviction or sentence in a criminal case. See Commissioners' Prefatory Note to the 1966 Revised Uniform Post-Conviction Procedure Act.
McMorrow prepared his petition without the aid of counsel; however his petition is intelligible. This court considers an appeal from a denial of an application for post-conviction relief by reviewing "the record as it was presented to the trial court to determine whether a material issue of fact existed, inasmuch as the trial court, in effect, granted a summary judgment of dismissal of the petitioner's application." State v. Lueder, 252 N.W.2d 861, 866 (N.D.1977). After reviewing the record in the instant case we conclude that the trial court correctly found that McMorrow's claims were either not proper under the Act or they did not raise substantial issues which could be considered. 1
In his appellate brief McMorrow emphasized his belief that the district court erred by not appointing him an attorney pursuant to Sec. 29-32-05, NDCC. This section provides:
Section 29-32-05, NDCC (emphasis added). 2
McMorrow asks this court to remand to the district court ordering the appointment of counsel.
As the trial court determined, McMorrow's claims are either not appropriate under the Post-Conviction Procedure Act or they are without merit. However, McMorrow does raise the important issue of whether or not Sec. 29-32-05, NDCC, requires that an indigent prisoner is entitled to court-appointed counsel for assistance in filling out his application for post-conviction relief and for assistance during any hearings and an appeal.
Only Idaho, Iowa, and South Carolina's post-conviction procedure acts contain sections concerning the prisoner's inability to pay costs which are similar to Sec. 29-32-05, NDCC and Sec. 5 of the Revised Uniform Act, and only Iowa courts have considered the section. According to the Commissioners' Prefatory Note, the Revised Uniform Act of 1966 "provides that the expenses of representation including legal services should be provided to applicants who are unrepresented and without funds to pay for their own lawyers even to the extent of legal aid in preparation of the application." In 1980 a new Uniform Post-Conviction Act was approved. Section 5(a) has been modified to state: "If an applicant requests appointment of counsel and the court is satisfied that the applicant is unable to obtain adequate representation, the court shall appoint counsel to represent the applicant."
Two ABA Criminal Justice Standards that discuss the appointment of counsel and post-conviction relief are cited in the Commissioners' Comment to Sec. 5 of the 1980 version of the Post-Conviction Procedure Act. Standard 22-3.1(a) provides:
"Every state should establish a system whereby persons who may have grounds for postconviction relief, and who are unable to afford adequate legal counsel, are provided with the assistance necessary to evaluate the possible merit of contemplated claims for post-conviction relief and to prepare and file applications stating claims upon which such relief may be granted...."
The commentary to ABA Criminal Justice Standard 22-3.1 states:
The commentary to Standard 22-4.3 notes:
In State v. Lueder, supra, 252 N.W.2d at 865-66, this court considered the North Dakota Act and held that the trial court should attempt to make post-conviction hearings meaningful by considering appointing counsel to represent an indigent prisoner unable to attend hearings because of his confinement.
In 1969 the United States Supreme Court considered a Tennessee prison regulation affecting "jailhouse lawyers," prisoners who assist other prisoners in legal matters. The Court noted that many states provide attorneys for prisoners through public defender programs, legal aid associations, senior law student programs, and...
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McMorrow v. State, 20030007.
...assertions that his bail was excessive, "the record contains no facts ... explaining why it was excessive." State v. McMorrow, 332 N.W.2d 232, 234 n. 1 (N.D.1983). We conclude the court properly determined McMorrow's bail "was within the discretion of the trial D [¶ 10] McMorrow contends th......
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State v. McClary, 20150218.
...proper for the trial court to deny the request for appointment of counsel. Woehlhoff v. State, 531 N.W.2d 566 (N.D.1995) ; State v. McMorrow, 332 N.W.2d 232 (N.D.1983).We have cautioned that "trial courts ordinarily would be well advised to appoint counsel for most indigent applicants seeki......
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Murchison v. State
...appointment of counsel is discretionary, applications should be read in the light most favorable to the applicant. State v. McMorrow, 332 N.W.2d 232, 237 (N.D.1983). When a substantial issue of law or fact may exist, counsel should be appointed. Id. ¶19 Murchison did not request court-appoi......
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Bell v. State
...reimbursed in the same manner as are costs and expenses incurred in the defense of criminal prosecutions. [¶ 16] In State v. McMorrow, 332 N.W.2d 232, 234-37, (N.D.1983), this Court discussed the appointment of counsel under the prior version of the Uniform Post-Conviction Procedure Act, se......