Voisine v. State, No. 20070313.

CourtUnited States State Supreme Court of North Dakota
Writing for the CourtKapsner
Citation2008 ND 91,748 N.W.2d 429
Docket NumberNo. 20070313.
Decision Date15 May 2008
PartiesRaymond VOISINE, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
748 N.W.2d 429
2008 ND 91
Raymond VOISINE, Petitioner and Appellant
v.
STATE of North Dakota, Respondent and Appellee.
No. 20070313.
Supreme Court of North Dakota.
May 15, 2008.

[748 N.W.2d 431]

Raymond Voisine (argued), pro se, Jamestown, ND, petitioner and appellant.

Walter M. Lipp (argued), State's Attorney, McClusky, ND, for respondent and appellee.

KAPSNER, Justice.


[¶ 1] Raymond Voisine appeals a district court order denying his petition for post-conviction relief. We reverse the order of the district court and vacate the June 2, 2005, criminal judgment and commitment revoking Voisine's probation.

I

[¶ 2] In October 2004, Voisine pled guilty to one count of gross sexual imposition under a plea agreement. For this offense, the district court sentenced Voisine to serve five years' imprisonment, with four years suspended. The district court further ordered Voisine be placed on five years' supervised sex offender probation. During the suspended period of his sentence, Voisine's probation was subject to several conditions set forth in an attachment to the criminal judgment and commitment. The district court amended the criminal judgment and commitment in March 2005; the amended criminal judgment, like the original criminal judgment, provided that one of the conditions of Voisine's probation required Voisine successfully follow and complete a sex offender treatment program and admit responsibility for his offense as part of the treatment requirements. However, this condition did not specifically state the sex offender treatment program must be successfully completed prior to Voisine's release. At the sentencing hearing, the district court told Voisine:

You will serve the balance of your time at the North Dakota State Penitentiary. Upon your release you will have the following conditions of probation:

....

You shall attend, participate in, and cooperate with and successfully follow and complete all sex offender treatment program rules and requirements and you must admit responsibility for your offenses as part of the treatment requirements.

(Emphasis added).

[¶ 3] In May 2005, while Voisine was still imprisoned, the State petitioned the district court to revoke Voisine's probation, alleging Voisine had failed to comply with the probation condition related to successful completion of a sex offender treatment program. In particular, the State alleged Voisine failed to successfully complete treatment because he did not accept responsibility for or admit to the offense during the treatment program while in prison. The district court conducted a revocation hearing in June 2005.

[¶ 4] At the revocation hearing, Voisine stated he attended sex offender treatment while incarcerated, but admitted he failed to successfully complete the treatment while in prison. The district court revoked Voisine's probation at the hearing and resentenced Voisine to serve ten years' imprisonment, with five years suspended, and to five years' supervised probation following Voisine's release. Voisine did not appeal the criminal judgment and commitment that revoked his probation and resentenced him.

748 N.W.2d 432

[¶ 5] In November 2006, Voisine filed a petition for post-conviction relief, arguing his original sentence and probation were unlawfully revoked. Following the State's motion to dismiss Voisine's petition, the district court entered an order summarily denying Voisine's post-conviction relief petition.

[¶ 6] Voisine appeals the order denying his petition for post-conviction relief, arguing the district court erred when it revoked his probation for a probation violation that occurred while Voisine was in prison, rather than on probation.

II

[¶ 7] "Post-conviction relief proceedings are civil in nature and are governed by the North Dakota Rules of Civil Procedure." State v. Steen, 2004 ND 228, ¶ 8, 690 N.W.2d 239 (citing Heckelsmiller v. State, 2004 ND 191, ¶ 5, 687 N.W.2d 454; Ernst v. State, 2004 ND 152, ¶ 6, 683 N.W.2d 891). "The petitioner for post-conviction relief has the burden of establishing a basis for relief." Steen, at ¶ 9 (citing Ernst, at ¶ 6). Here, Voisine alleges the basis for relief is the unlawful revocation of his probation.

[¶ 8] Voisine premises his post-conviction relief claim upon the argument that his revocation was unlawfully revoked. Voisine did not appeal the order revoking his probation. Instead, he appeals the order denying his petition for post-conviction relief. Under N.D.C.C. § 29-32.1-12(2), the State may raise, as an affirmative defense, misuse of process. Misuse of process occurs in three situations, one of which is relevant here:

[F]ailure to take a direct appeal bars relief in a post-conviction action under Chapter 29-32, N.D.C.C., on the ground of abuse of process as to factual and legal contentions that the post-conviction applicant raised and litigated at the time of the original trial court proceedings and which he deliberately or inexcusably failed to pursue on direct appeal.

Clark v. State, 1999 ND 78, ¶ 16, 593 N.W.2d 329 (quoting State v. Willey, 381 N.W.2d 183, 186...

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11 practice notes
  • Darby v. North Dakota, Case No. 1:11-cv-071
    • United States
    • United States District Courts. 8th Circuit. United States District Court of North Dakota
    • February 12, 2013
    ...and the court has previously held that misuse of process is an affirmative defense that must be asserted by the State. Voisine v. State, 2008 ND 91, ¶ 9, 748 N.W.2d 429.• The court simply overlooked the non-ineffective-assistance claims. This too seems doubtful given Darby's briefing and th......
  • Erickson v. Voisine (In re Interest of Voisine), No. 20190155
    • United States
    • United States State Supreme Court of North Dakota
    • December 18, 2019
    ...treatment while incarcerated. In a post-conviction proceeding, his probation revocation was reversed. [936 N.W.2d 547 Voisine v. State , 2008 ND 91, ¶ 17, 748 N.W.2d 429. The State petitioned to commit Voisine for treatment as a sexually dangerous individual, which the district court subseq......
  • Voisine v. Voisine (In re Interest of Voisine), No. 20190155
    • United States
    • United States State Supreme Court of North Dakota
    • December 18, 2019
    ...sex offender treatment while incarcerated. In a post-conviction proceeding, his probation revocation was reversed. Voisine v. State, 2008 ND 91, ¶ 17, 748 N.W.2d 429. The State petitioned to commit Voisine for treatment as a sexually dangerous individual, which the district court subsequent......
  • Byers v. Voisine (In re Interest of Voisine), No. 20160061
    • United States
    • United States State Supreme Court of North Dakota
    • December 30, 2016
    ...to his civil commitment as a sexually dangerous individual, have resulted in six previous appeals to this Court. See Voisine v. State , 2008 ND 91, 748 N.W.2d 429 (reversing and vacating revocation of probation in postconviction proceeding); Matter of Voisine , 2010 ND 17, 777 N.W.2d 908 (r......
  • Request a trial to view additional results
11 cases
  • Darby v. North Dakota, Case No. 1:11-cv-071
    • United States
    • United States District Courts. 8th Circuit. United States District Court of North Dakota
    • February 12, 2013
    ...and the court has previously held that misuse of process is an affirmative defense that must be asserted by the State. Voisine v. State, 2008 ND 91, ¶ 9, 748 N.W.2d 429.• The court simply overlooked the non-ineffective-assistance claims. This too seems doubtful given Darby's briefing and th......
  • Erickson v. Voisine (In re Interest of Voisine), No. 20190155
    • United States
    • United States State Supreme Court of North Dakota
    • December 18, 2019
    ...treatment while incarcerated. In a post-conviction proceeding, his probation revocation was reversed. [936 N.W.2d 547 Voisine v. State , 2008 ND 91, ¶ 17, 748 N.W.2d 429. The State petitioned to commit Voisine for treatment as a sexually dangerous individual, which the district court subseq......
  • Voisine v. Voisine (In re Interest of Voisine), No. 20190155
    • United States
    • United States State Supreme Court of North Dakota
    • December 18, 2019
    ...sex offender treatment while incarcerated. In a post-conviction proceeding, his probation revocation was reversed. Voisine v. State, 2008 ND 91, ¶ 17, 748 N.W.2d 429. The State petitioned to commit Voisine for treatment as a sexually dangerous individual, which the district court subsequent......
  • Byers v. Voisine (In re Interest of Voisine), No. 20160061
    • United States
    • United States State Supreme Court of North Dakota
    • December 30, 2016
    ...to his civil commitment as a sexually dangerous individual, have resulted in six previous appeals to this Court. See Voisine v. State , 2008 ND 91, 748 N.W.2d 429 (reversing and vacating revocation of probation in postconviction proceeding); Matter of Voisine , 2010 ND 17, 777 N.W.2d 908 (r......
  • Request a trial to view additional results

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