Steinbach v. State, No. 20020322.

• Court: United States State Supreme Court of North Dakota
• Writing for the Court: KAPSNER, Justice.
• Citation: 658 N.W.2d 355,2003 ND 46
• Parties: Mark STEINBACH, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.
• Docket Number: No. 20020322.
• Decision Date: 26 March 2003

658 N.W.2d 355
2003 ND 46

Mark STEINBACH, Petitioner and Appellant,
v.
STATE of North Dakota, Respondent and Appellee

No. 20020322.

Supreme Court of North Dakota.

March 26, 2003.

Rehearing Denied April 15, 2003.

658 N.W.2d 357

Steven M. Light, Larivee & Light, Grand Forks, ND, for petitioner and appellant

Travis S. Peterson, State's Attorney, New Rockford, ND, for respondent and appellee.

KAPSNER, Justice.

[¶ 1] Mark Steinbach appealed from a judgment summarily dismissing his application for post-conviction relief.¹ We conclude the trial court did not err in summarily dismissing, under N.D.C.C. § 29-32.1-12, claims 1, 2, 3, 5, 6, 7, and 8 in Steinbach's post-conviction relief application, or in summarily dismissing claim 4 for ineffective assistance of counsel when Steinbach was put to his proof and failed to provide any evidentiary support for his allegations. We affirm.

I

[¶ 2] In April 1997, a jury found Steinbach guilty of murder, physical obstruction of a government function, and tampering with physical evidence. Steinbach was sentenced to life imprisonment, without the opportunity of parole. In May 1997, Steinbach appealed his conviction, arguing the trial court abused its discretion by allowing the State to introduce certain photographs of the victim; by allowing a coroner to testify as to the cause of the victim's death when the coroner had no knowledge of the length of the shotgun that killed the victim; by denying Steinbach's motion for judgment of acquittal; by denying Steinbach's motion for a new trial based upon newly discovered evidence; and by impermissibly considering acts of domestic violence perpetrated by Steinbach against the victim during sentencing. In State v. Steinbach, 1998 ND 18, 575 N.W.2d 193, we affirmed the judgment on all convictions and the order denying Steinbach's motion for a new trial.

[¶ 3] In May 1999, Steinbach filed an application for post-conviction relief. The attorney filing Steinbach's post-conviction relief application was not Steinbach's trial attorney, but represented Steinbach in his direct appeal to this Court. In September 2001, Steinbach hired a different attorney to represent him. Steinbach's application for post-conviction relief was dismissed without prejudice² in April 2002 because Steinbach failed to comply with the deadline set in the scheduling order for filing his brief.

658 N.W.2d 358

[¶ 4] In June 2002, Steinbach filed another application for post-conviction relief. In his application, Steinbach listed eight separate grounds for relief, including: (1) a reasonable likelihood the jury misunderstood the trial court's jury instructions, particularly the instruction on proof beyond a reasonable doubt; (2) the trial court's jury instruction regarding the presumption a witness told the truth conflicted with Steinbach's presumption of innocence; (3) the trial court failed to instruct the jury on the effect of intoxication and culpability; (4) Steinbach received ineffective assistance of counsel; (5) the trial court abused its discretion during sentencing; (6) prosecutorial misconduct; (7) prevalent abuse of judicial discretion; (8) Steinbach was denied his right to review his presentence investigation report prior to sentencing. The trial court summarily dismissed Steinbach's application for post-conviction relief, finding Steinbach failed to provide evidentiary support for claims 1, 2, 3, 5, 6, 7, and 8; and these claims were issues the applicant inexcusably failed to raise in a proceeding leading to judgment of conviction. The trial court dismissed claim 4, ineffective assistance of counsel, finding Steinbach failed to provide any evidentiary support demonstrating how Steinbach's trial counsel's conduct fell below a standard of objective reasonableness and how Steinbach was prejudiced by his counsel's conduct when Steinbach had the deposition of his trial counsel available to him. Steinbach appeals the trial court's summary denial of his application for post-conviction relief

II

[¶ 5] Steinbach argues the trial court erred when it determined Steinbach misused process, under N.D.C.C. ch. 29-32.1, by raising issues in his application for post-conviction relief which were not raised during the criminal trial, sentencing, and the subsequent appeal.

[¶ 6] The affirmative defense of misuse of process is set out in N.D.C.C. § 29-32.1-12(2):

2. A court may deny relief on the ground of misuse of process. Process is misused when the applicant:

a. Presents a claim for relief which the applicant inexcusably failed to raise either in a proceeding leading to judgment of conviction and sentence or in a previous postconviction proceeding; or

b. Files multiple applications containing a claim so lacking in factual support or legal basis as to be frivolous.

The State moved to dismiss Steinbach's application for post-conviction relief under N.D.C.C. § 29-32.1-06(2), (3) which provides:

2. The state may move to dismiss an application on the ground that it is evident from the application that the applicant is not entitled to postconviction relief and no purpose would be served by any further proceedings. In considering the motion, the court shall take account of substance regardless of defects of form.

3. The following defenses may be raised by answer or motion:

a. The claim has been fully and finally determined in a previous proceeding in accordance with subsection 1 of section 29-32.1-12; or

b. The application constitutes misuse of process in accordance with subsection 2 of section 29-32.1-12.

[¶ 7] The district court, in summarily dismissing Steinbach's post-conviction application, found that "[n]one of the above issues [in claims 1, 2, 3, 5, 6, 7, and 8] were raised before the trial court, and Steinbach

658 N.W.2d 359

has shown no excuse for his failure to raise the issues."

[¶ 8] In Clark v. State, 1999 ND 78, ¶ 23, 593 N.W.2d 329, we held:

[M]isuse of process under N.D.C.C. ch. 29-32.1 occurs (1) if the defendant has inexcusably failed to raise an issue in a proceeding leading to judgment of conviction and now seeks review in a first application for post-conviction relief; (2) if the defendant inexcusably fails to pursue an issue on appeal which was raised and litigated in the original trial court proceedings, see, e.g., State v. Willey [,] 381 N.W.2d 183 (N.D.1986); and finally, (3) if a defendant inexcusably fails to raise an issue in an initial post-conviction application, see, e.g., Silvesan v. State, 1999 ND 62[, 591 N.W.2d 131].

The claims in Steinbach's application for post-conviction relief fall in the category of issues an applicant inexcusably failed to raise in a proceeding leading to judgment of conviction and now seeks review in a first application for post-conviction relief. We agree with the trial court that Steinbach has failed to present any excuse for his failure to raise and pursue claims 1, 2, 3, 5, 6, 7, and 8 in the criminal proceeding and on direct appeal. N.D.C.C. § 29-32.1-12(3). We conclude claims 1, 2, 3, 5, 6, 7, and 8 are barred by misuse of process under N.D.C.C. § 29-32.1-12.

III

[¶ 9] Steinbach argues the trial court erred in summarily dismissing his claim of ineffective assistance of counsel without an evidentiary hearing. Steinbach contends, because the trial court erroneously treated the State's motion to dismiss as a motion for summary judgment, he was never adequately put "upon his proof" or afforded an opportunity to submit evidence to support the claims asserted in his application for post-conviction relief.

[¶ 10] We have outlined our...