Van Chase v. State

• Decision Date: 17 November 2021
• Docket Number: No. 20200315,20200315
• Citation: 966 N.W.2d 557
• Parties: Lorry Van CHASE, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee
• Court: North Dakota Supreme Court

966 N.W.2d 557

Lorry Van CHASE, Petitioner and Appellant

v.STATE of North Dakota, Respondent and Appellee

No. 20200315

Supreme Court of North Dakota.

FILED NOVEMBER 17, 2021

Lorry Van Chase, self-represented, Bismarck, N.D., petitioner and appellant; submitted on brief.

Brian D. Grosinger, State's Attorney, Rolla, N.D., for respondent and appellee; submitted on brief.

Tufte, Justice.

[¶1] Lorry Van Chase appeals from a district court order summarily denying his application for postconviction relief. Chase argues the district court erred by summarily denying his application without requiring the State to file a motion for summary disposition. We conclude the district court erred in treating the State's answer as the motion required by statute and rule, and overrule Delvo v. State , 2010 ND 78, 782 N.W.2d 72, and Chisholm v. State , 2020 ND 19, 937 N.W.2d 520, which had allowed the State to request summary disposition in its answer. We reverse and remand for further proceedings.

I

[¶2] In 2014, a jury convicted Chase of gross sexual imposition. He appealed and the conviction was affirmed. State v. Chase , 2015 ND 234, ¶¶ 1, 13, 869 N.W.2d 733. In March 2020, Chase filed a third application for postconviction relief, alleging ineffective assistance of counsel and newly discovered evidence. The State answered the application, and requested summary dismissal within its answer. The district court scheduled oral argument on the application. No response to the request for summary dismissal was filed by Chase. After oral argument, the court summarily denied the application for postconviction relief.

II

[¶3] Chase argues the district court erred in summarily denying his claim for postconviction relief.

Section 29-32.1-09, N.D.C.C., allows the district court to summarily dispose of an application for postconviction relief, providing:

1. The court, on its own motion, may enter a judgment denying a meritless application on any and all issues raised in the application before any response by the state. The court also may summarily deny a second or successive application for similar relief on behalf of the same applicant and may summarily deny any application when the issues raised in the application have previously been decided by the appellate court in the same case.

2. The court, on its own motion, may dismiss any grounds of an application which allege ineffective assistance of postconviction counsel. An applicant may not claim constitutionally ineffective assistance of postconviction counsel in proceedings under this chapter.

3. The court may grant a motion by either party for summary disposition if the application, pleadings, any previous proceeding, discovery, or other matters of record show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.

Under N.D.C.C. § 29-32.1-09(1), the district court may only summarily dismiss an application on its own motion before the State responds. State v. Vogt , 2019 ND 236, ¶ 8, 933 N.W.2d 916. "If the court grants summary disposition after the State responds, it must do so on the motion of either party under N.D.C.C. § 29-32.1-09(3)." Id.

[¶4] In its answer, the State requested "[s]ummary dismissal of the Claim; the State is asking this Answer serve as notice of this request." The State also filed a brief in support of its answer, stating, in part, the facts most favorable to the applicant "do not yield an issue of material fact," and providing the summary judgment standard of review. The district court summarily denied the application, citing N.D.C.C. § 29-32.1-09(1), (2), and (3). The transcript of oral argument and the district court's order make clear that the court was treating the State's request for summary dismissal in the State's answer as a motion for summary disposition.

[¶5] Chase asserts the district court erred by allowing the State in its answer to request summary dismissal of the application, instead of filing a motion for summary disposition as required by N.D.C.C. § 29-32.1-09(3). On appeal from a postconviction proceeding, questions of law are fully reviewable. Wacht v. State , 2015 ND 154, ¶ 6, 864 N.W.2d 740. Our review of an appeal from summary denial of postconviction relief is similar to reviewing an appeal from a summary judgment. Id. "The party opposing the motion for summary dismissal is entitled to all reasonable inferences to be drawn from the evidence and is entitled to an evidentiary hearing if a reasonable inference raises a genuine issue of material fact." Id.

[¶6] In Delvo v. State , 2010 ND 78, ¶ 7, 782 N.W.2d 72, the State requested summary dismissal in its answer to the application for postconviction relief, without filing a motion. The district court summarily dismissed the application. Id. at ¶ 8. A majority of the Court affirmed, holding the State's request for summary disposition contained in its answer was sufficient to put the applicant on notice that she had been put to her proof. Id. at ¶ 13. In Chisholm , 2020 ND 19, ¶ 11, 937 N.W.2d 520, we noted the State had requested summary disposition in its answer. Because there had been no request to reconsider Delvo , we considered the threshold question to be whether the applicant was on notice of the request. Id. Chase asks us to reconsider Delvo , asserting that no statute or rule provides for making a request for summary disposition in the answer to an application for postconviction relief.

[¶7] A postconviction relief proceeding is commenced by filing an application. N.D.C.C. § 29-32.1-03(1). The application must "set forth a concise statement of each ground for relief, and specify the relief requested," but "[a]rgument, citations, and discussion of authorities are unnecessary" and "[a]ffidavits or other material supporting the application may be attached, but are unnecessary." N.D.C.C. § 29-32.1-04(1) and (2). The State "shall respond by answer or motion." N.D.C.C. § 29-32.1-06(1). Section 29-32.1-09(3), N.D.C.C., allows the court to grant a motion for summary disposition if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.

[¶8] "Post-conviction relief proceedings are civil in nature and governed by the North Dakota Rules of Civil Procedure." Wacht , 2015 ND 154, ¶ 6, 864 N.W.2d 740. Rule 5(a)(1)(D), N.D.R.Civ.P., requires "a written motion, except one that may be heard ex parte," to be served on every party. "A request for a court order must be made by motion." N.D.R.Civ.P. 7(b)(1). This motion must: "(A) be in writing, unless made during a hearing or trial"; "(B) state with particularity the grounds for seeking the order"; and "(C) state the relief sought." Id. Under N.D.R.Ct. 3.2(a)(1), "Notice must be served and filed with a motion." "Upon serving and filing a motion, the moving party must serve and file a brief and other supporting papers and the opposing party must have 14 days after service of a brief within which to serve and file an answer brief and other supporting papers." N.D.R.Ct. 3.2(a)(2); see also N.D.R.Civ.P. 56(c)(1) (providing opposing party 30 days to respond to a motion for summary judgment); Burden v. State , 2019 ND 178, ¶ 19, 930 N.W.2d 619 (applying Rule 56 in the context of an application for postconviction relief).

[¶9] These procedures were not followed in this case. Although the State filed a brief in support of its answer, it did not file a motion for summary disposition, a brief in support of its motion, or a notice of motion. Despite Justice VandeWalle's assertion to the contrary, a change to the title of the State's answer to call it a motion would not have satisfied the requirements of Rule 3.2. Neither dissent defends Delvo on its merits. By requiring litigants to follow procedural requirements enacted in statute and adopted in this Court's rules, we enhance predictability and fairness in our courts. Under the plain language of the North Dakota Rules of Civil Procedure and Rules of Court, the State did not properly move for summary disposition.

[¶10] This Court's decision in Delvo was not only wrong on the merits, but it seems to have encouraged the State to relax its normal motion practice, confusing applicants and the district court as to when or if to act upon a request for summary disposition, which, as Justice Crothers has pointed out, leads to unnecessary litigation:

Since the Delvo decision, this Court has had many cases where the State has not filed a proper motion, no notice of motion was served and filed under N.D.R.Ct. 3.2, and the district court often ruled prematurely before allowing the post-conviction relief applicant sufficient time to respond. See, e.g., State v. Jensen , 2020 ND 31, ¶¶ 4, 6, 939 N.W.2d 1 ("the district court misapplied the law in denying Jensen an opportunity to respond under N.D.R.Ct. 3.2(a)(2)"); Chisholm v. State , 2020 ND 19, ¶ 25, 937 N.W.2d 520 (Crothers, J., concurring specially) ("Both before and since Delvo , the State's failure in post-conviction relief proceedings to serve and file a separate motion has caused considerable extra work for the litigants, the district courts and this Court. See, e.g., Burden v. State , 2019 ND 178, 930 N.W.2d 619 and the cases cited therein. That extra work would be greatly reduced if not eliminated by requiring the State, consistent with all other civil proceedings, to file a motion and brief identifying the grounds for relief and citing support for that relief. Id. at ¶ 10 (‘We have said post-conviction proceedings are civil in nature and the rules and statutes applicable to civil proceedings are applicable to those proceedings.’); N.D.R.Civ.P. 7(b)(1) (‘A request for a court order must be made by motion.’); N.D.R.Ct. 3.2(a)(1) [motions] and 3.2(a)(2) [briefs]."); Burden , at ¶ 19 (order dismissing post-conviction relief application reversed due to prematurely ruling on State's motion); State v. Vogt , 2019 ND 236, ¶¶ 9-10, 933 N.W.2d 916 (district court's

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