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Clark v. State

December 18, 2008

LARRY CLARK, PETITIONER AND APPELLANT
v.
STATE OF NORTH DAKOTA, RESPONDENT AND APPELLEE



Appeal from the District Court of McLean County, South Central Judicial District, the Honorable Gail H. Hagerty, Judge.

The opinion of the court was delivered by: VandeWalle, Chief Justice

AFFIRMED.

[¶1] Larry Clark appealed from an order denying his application for post-conviction relief based on his claim of ineffective assistance of counsel. We affirm, concluding the district court did not err in failing to hold an evidentiary hearing on his application and did not err in holding Clark failed to demonstrate he received ineffective assistance from his trial attorney.

I.

[¶2] In May 2003, a McLean County jury found Clark guilty of reckless endangerment for willfully creating a substantial risk of serious bodily injury or death to his daughter by stopping a motorcycle on which she was a passenger in front of a moving semi-truck. The jury also found Clark guilty of aggravated assault for willfully causing serious bodily injury to the driver of the truck. On the aggravated assault charge, the district court sentenced Clark to three years with the Department of Corrections with two years suspended for a period of three years. On the reckless endangerment charge, the court sentenced Clark to one year with the Department of Corrections, with the sentence to run concurrently with the sentence for aggravated assault. Represented by a different attorney than his trial attorney, Clark appealed to this Court and we affirmed the conviction in State v. Clark, 2004 ND 85, 678 N.W.2d 765.

[¶3] Clark was subsequently released from incarceration and placed on probation. In September 2006, the State petitioned to revoke Clark's probation, alleging he had committed aggravated assault in Minot. Following an evidentiary hearing in December 2006 during which Clark was represented by yet another attorney, the district court found Clark had violated the conditions of his probation and sentenced Clark to serve the remaining two years of his sentence on the 2003 reckless endangerment and aggravated assault conviction.

[¶4] On February 13, 2008, Clark, represented by the same attorney who represented him during the probation revocation proceedings, filed an application for post-conviction relief. Clark claimed he received ineffective assistance of counsel on the underlying conviction, citing 13 alleged instances of deficiencies in representation by his trial attorney. Clark requested the court "vacate the judgment of conviction against him and order a new trial on the merits." The application and brief were accompanied by an affidavit of a third party and copies of law enforcement reports about the incident leading to the conviction. In his brief in support of the application, Clark pointed out that "[t]he transcripts of the jury trial and sentencing can be found in the court's record" and he would "furnish a copy of that transcript to the court if the court deems it necessary." Clark did not request an evidentiary hearing on his application for post-conviction relief.

[¶5] In its March 3, 2008, response to the application for post- conviction relief, the State argued Clark had not received ineffective assistance of counsel and requested that "this petition be summarily dismissed." Clark did not respond to the State's brief, and on April 23, 2008, the district court denied Clark's application. In its decision, the court stated, "I have reviewed the transcript in this matter and recall the trial," and after addressing the alleged deficiencies in representation concluded, "Clark has not demonstrated that he received ineffective assistance from" his trial attorney.

II.

[¶6] Clark, represented by yet another attorney in this appeal, argues the district court erred in summarily dismissing his application for post-conviction relief without allowing him an opportunity for an evidentiary hearing.

[¶7] The Post-Conviction Procedure Act, N.D.C.C. ch. 29-32.1, does not require that an evidentiary hearing be held on an application for post- conviction relief when the parties do not request a hearing. In Owens v. State, 1998 ND 106, ¶ 15, 578 N.W.2d 542, the petitioner for post- conviction relief did not request an evidentiary hearing, but instead requested summary disposition in his favor. The State had requested an evidentiary hearing, but later withdrew its request and asked to have the matter decided without a hearing. Id. The district court ruled on the application under N.D.R.Ct. 3.2 "`as requested by both parties.'" Owens, at ¶ 15. On appeal, the petitioner argued the district court erred in failing to hold an evidentiary hearing after having granted the State's request for a hearing. Id. at ¶ 14. Relying on this Court's interpretation of N.D.R.Ct. 3.2 in Huber v. Oliver County, 529 N.W.2d 179, 183 (N.D. 1995), we said parties must make their own requests if they wish to be heard:

Owens did not request an evidentiary hearing on his first amended application. Instead, he specifically requested summary disposition in his favor. The State scheduled and notified Owens of a hearing date, but later withdrew the request, and served a copy of its withdrawal on Owens' post-conviction counsel. As in Huber, 529 N.W.2d at 183, Owens' "reliance upon that initial request by another party is misplaced, at best." We conclude the trial court did not err in failing to hold an evidentiary hearing on the first amended application when the parties, to the court's knowledge, had agreed no evidentiary hearing was necessary.

Owens, at ¶ 17.

[¶8] Neither Clark nor the State requested an evidentiary hearing on the application for post-conviction relief. New counsel on appeal inherits the strategies of prior counsel. See, e.g., State v. Wiest, 2001 ND 150, ¶ 6 n.2, 632 N.W.2d 812. Clark was "put to [his] proof" after the state moved for summary disposition. State v. Bender, 1998 ND 72, ¶ 22, 576 N.W.2d 210. The district court's decision was rendered six weeks after the State filed its response to the application and requested summary disposition. Clark does not identify what relevant evidence should have been presented or argue he was denied the right to present evidence to the district court. We conclude the district court did not err in failing to hold an evidentiary hearing when Clark did not request one and the State agreed no evidentiary hearing was necessary.

[¶9] We also reject Clark's assertion that the district court's denial of his application for post-conviction relief constituted a summary disposition under N.D.C.C. § 29-32.1-09(1). Under N.D.C.C. § 29-32.1- 11(2), "[i]f the court rules that the applicant is not entitled to relief, its order must indicate whether the decision is based upon the pleadings, is by summary disposition, or is the result of an evidentiary hearing." Although the State requested summary disposition, the district court's decision does not indicate that it was intended as a summary disposition or that it was based solely on the pleadings. Rather, the court's decision reflects that it was based on the court's consideration of the transcript of the criminal trial and the documentary evidence Clark chose to present with his application for post-conviction relief. The court made findings and conclusions on the various allegations of trial counsel's deficiencies. See N.D.C.C. § 29- 32.1-11(1) ("The court shall make explicit findings on material questions of fact and state expressly its conclusions of law relating to each issue presented."). In effect, the procedure used in this case was tantamount to an evidentiary hearing based solely on a review of documents, including the transcript. When the parties have indicated they have no other evidence to produce than what already exists in the court's file, no purpose would be served by scheduling an evidentiary hearing for the court to formally receive uncontested evidence accompanying the application for ...


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