Syvertson v. State

• Decision Date: 26 October 2000
• Docket Number: No. 20000100.,20000100.
• Citation: 620 N.W.2d 362,2000 ND 185
• Parties: Charles E. SYVERTSON, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.
• Court: North Dakota Supreme Court

620 N.W.2d 362

2000 ND 185

Charles E. SYVERTSON, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.

No. 20000100.

Supreme Court of North Dakota.

October 26, 2000.

Rehearing Denied December 21, 2000.

Charles E. Syvertson (submitted on brief), pro se, North Dakota State Penitentiary, Bismarck, ND, petitioner and appellant.

Wade L. Webb (submitted on brief), Assistant State's Attorney, Cass County Courthouse, Fargo, ND, for respondent and appellee.

MARING, Justice.

[¶ 1] Charles E. Syvertson appeals from a judgment denying his application for post-conviction relief. We affirm the judgment.

I.

[¶ 2] In January of 1998, Syvertson was convicted of two class B felony counts of gross sexual imposition. Syvertson appealed his conviction to the North Dakota Supreme Court, where it was affirmed. State v. Syvertson, 1999 ND 134, 597 N.W.2d 652.

[¶ 3] On January 20, 2000, Syvertson, acting pro se, applied for post-conviction relief.¹ In his application, Syvertson states seven grounds for post-conviction relief. He claims: (1) he was denied due process of law and fair hearings because the State failed to comply with discovery requests; (2) he was denied effective assistance of counsel; (3) his Fifth Amendment rights to counsel and against self-incrimination were violated; (4) certain testimony given at trial violated his rights to due process of law and confrontation; (5) the December 23, 1997, Order granting partial suppression was void; (6) he was denied his Sixth Amendment right to confrontation; and (7) he was denied due process of law by the "State's deception on Rule 16 Discovery." Syvertson filed a "Notice of Motions For Hearing," dated January 17, 2000. His motion stated that oral arguments would proceed "at a time and date that Syvertson will set and notify the respondents of...."

[¶ 4] On January 31, 2000, Syvertson filed a demand for a change of judge. In his brief to support the change of judge demand, he argued a change of judge was necessary because in his application for post-conviction relief he claimed errors of law. That same day, the State filed its response to Syvertson's demand for change of judge. On February 2, 2000, the trial court denied Syvertson's demand for a change of judge, reasoning that under Falcon v. State, 1997 ND 200, 570 N.W.2d 719, Syvertson was not entitled to a new judge because the post-conviction judge was also the trial judge.

[¶ 5] Syvertson filed a "Motion to Remove Judge/Affidavit of Prejudice/Brief," on February 8, 2000, alleging the trial judge was biased against him throughout the original proceedings. The State did not file a response to this motion. In its final judgment, the trial court denied Syvertson's motion to remove the judge.

[¶ 6] On February 22, 2000, the State filed its response to Syvertson's post-conviction relief application, opposing Syvertson's seven stated grounds for relief. Syvertson filed a response to the State's motion for summary disposition on March 2, 2000. Accompanying that response was Syvertson's cross motion for summary disposition in his favor. On that same date, Syvertson filed a "Notice for Motions for Hearing," stating a hearing on the state's motion for dismissal and Syvertson's cross motion for judgment would be set "at a time and date set by the calander [sic] clerk and which will be notifyed [sic] in the futire [sic]."

[¶ 7] Syvertson sent a letter to the court, on March 23, 2000, requesting it rule on his motion to remove the judge based on prejudice. The court filed a three page memorandum and opinion denying Syvertson's post-conviction relief application on March 24, 2000. In its opinion, the court stated all matters in support of Syvertson's post-conviction relief were fully and fairly determined in previous post-conviction proceedings and a previous appeal to the Supreme Court. Specifically, the trial court stated that Syvertson's issues 1, 3, 4, 5, 6, and 7 were raised in a previous post-conviction application and appeal and were fully adjudicated. The court went on to state that "[Syvertson's] issue number 2, ineffective assistance of counsel, appear[ed] to be simply a means by which [Syvertson] raise[d] issues previously fully adjudicated upon the basis of ineffective assistance of counsel." The court noted that Syvertson failed to raise this issue in both his previous application and his appeal to this Court. The trial court further stated that Syvertson's current application for post-conviction relief was a misuse of process, "including, but not limited to, that it arises from an inexcusable failure of the applicant to raise a claim for relief in other proceedings and that it is frivolous both on factual and legal grounds."

[¶ 8] In denying Syvertson's post-conviction application, the trial court mistakenly quoted the wrong appeal to this Court. It considered Syvertson's appeal to the North Dakota Supreme Court of Criminal Nos., 980269, 980270, 980340. State v. Syvertson, 1999 ND 137, 597 N.W.2d 644. The issues in that appeal stem from an incident in West Fargo on July 10, 1997. That case is not applicable to the issues in this case. The issues in this case stem from two incidents involving a minor girl in Fargo in late 1993. Although Syvertson has not previously applied for post-conviction relief regarding his conviction stemming from these incidents he has brought a direct appeal. Syvertson, 1999 ND 134, 597 N.W.2d 652. Syvertson filed his notice of appeal from the trial court's order denying post-conviction relief on March 31, 2000.

II.

[¶ 9] Syvertson first contends that he was denied due process of law because the trial court erred in denying him oral arguments with respect to certain motions. Specifically, Syvertson argues he requested oral arguments on January 20, 2000, and again on March 2, 2000, and twice he was denied such arguments. We disagree.

[¶ 10] North Dakota Rule of Court 3.2(a)² provides that timely requests for oral argument must be granted to any requesting party, including a prison inmate, who has timely served and filed a brief. Walbert v. Walbert, 1997 ND 164, ¶ 9, 567 N.W.2d 829. The Rule, however, also provides that "[t]he party requesting oral argument shall secure a time for the argument and serve notice upon all other parties." N.D.R.Ct. 3.2(a). A request is rendered incomplete if one fails to secure a time for oral argument. Huber v. Oliver County, 529 N.W.2d 179, 183 (N.D.1995).

[¶ 11] In this case, Syvertson's requests for oral arguments are incomplete. The first request, filed January 20, 2000, stated oral arguments would proceed "at a time and date that Syvertson will set and notify the respondents of...." The second request, filed March 2, 2000, stated oral arguments would be set "at a time and date set by the calander [sic] clerk and which will be notifyed [sic] in the futire [sic]." Syvertson made no further attempts to secure a time for oral arguments, thus, his requests are rendered incomplete.

III.

[¶ 12] Syvertson next contends that the trial court made erroneous findings of fact. He argues the trial court's findings correspond to his application for post-conviction relief concerning the West Fargo case and not the case involving the incidents in Fargo in 1993. We agree. However, with the exception of issue number two, we conclude Syvertson's stated grounds for relief have either been fully and fairly determined in his previous direct appeal or he inexcusably failed to raise them in that appeal. Syvertson, 1999 ND 134, 597 N.W.2d 652.

[¶ 13] North Dakota Century Code § 29-32.1-09(1), provides that a trial court may summarily dismiss an application for post-conviction relief if there is no genuine issue of fact and the moving party is entitled to judgment as a matter of law. Abdi v. State, 2000 ND 64, ¶ 8, 608 N.W.2d 292 (citation omitted). Our review of a summary denial of post-conviction relief is similar to our review of an appeal of a summary judgment. Owens v. State, 1998 ND 106, ¶ 13, 578 N.W.2d 542. A "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." DeCoteau v. State, 1998 ND 199, ¶ 4, 586 N.W.2d 156. If the moving party establishes there is no genuine issue of material fact the burden shifts to the nonmoving party to show a genuine issue of fact exists. Wilson v. State, 1999 ND 222, ¶ 14, 603 N.W.2d 47 (citation omitted). The resisting party may not merely rely on pleadings or unsupported conclusory allegations. Clark v. State, 1999 ND 78, ¶ 5, 593 N.W.2d 329. Rather, the resisting party must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact. Id.

[¶ 14] The State's motion to dismiss Syvertson's application asserted the affirmative defenses of res judicata and misuse of process under N.D.C.C. § 29-32.1-12(1) and (2). In summarily dismissing Syvertson's application, the trial court relied on both affirmative defenses. Although it relied on the wrong opinion, we conclude Syvertson's claims for post-conviction relief are subject to the affirmative defenses set forth in N.D.C.C. § 29-32.1-12(1) and (2).

[¶ 15] Section 29-32.1-12(1), N.D.C.C., authorizes the denial of post-conviction applications if the same claim or claims have been fully and finally determined in a previous proceeding. Clark, 1999 ND 78, ¶ 8, 593 N.W.2d 329. Claims that have been previously raised on direct appeal cannot subsequently be raised again in a post-conviction application. Id.

[¶ 16] Following a thorough examination of the record, we find that several of Syvertson's issues fall within the doctrine of res judicata. N.D.C.C. § 29-32.1-12(1). Post-conviction applicants are not entitled to avoid the res judicata rule by raising contentions in an application which are "simply...