Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Donald L. Jorgensen, Judge.
The opinion of the court was delivered by: Kapsner, Justice.
Opinion of the Court by Kapsner, Justice.
[¶1] Chadley Overlie appeals from a district court order dismissing his application for post-conviction relief. We conclude the court erred in summarily dismissing Overlie's application, and we reverse and remand for further proceedings.
[¶2] On September 14, 2009, Overlie pled guilty to one count of violation of a domestic violence protection order--second or subsequent offense. Under a binding plea agreement, the district court sentenced Overlie to one year and suspended all but thirteen days for two years, with supervised probation. Overlie's probation was later revoked when he violated the conditions of his probation. The district court then re-sentenced Overlie to two years of incarceration. In June 2010, Overlie moved to reduce his sentence under N.D.R.Crim.P. 35(b), and the district court denied his motion.
[¶3] On March 11, 2011, Overlie filed a pro se application for post-conviction relief, alleging "[e]vidence, not previously presented and heard, exists requiring vacation of the conviction or sentence in the interest of justice[.]" Overlie argued his conviction was "obtained by the unconstitutional failure of the prosecution to disclose evidence favorable to the defendant." Overlie claimed, "The prosecution prevented my wife (the pet[it]ioner for . . . the protection order) to testify on my behalf." Overlie also claimed he was denied the effective assistance of counsel, asserting, "My lawyer advised me to take the plea agreement and not call my wife as a witness[.]" On March 15, 2011, the State filed a response to Overlie's application, requesting a hearing on the ineffective assistance of counsel issue and asking that the application "be denied as the grounds the Defendant alleges to support his claim for post-conviction relief are inaccurate."
[¶4] On March 31, 2011, the court dismissed Overlie's application without holding an evidentiary hearing. The court found there was no evidence in the record that Overlie had requested to offer his wife's testimony; moreover, the court concluded no factual basis existed to suggest such testimony would have been relevant. The court added that no factual allegation supported Overlie's ineffective assistance of counsel claim and held that the record "clearly establishes the Defendant's affirmation of his comprehension of the plea agreement and his request for the Court to accept the same."
[¶5] Overlie argues the district court erred in dismissing his application for post-conviction relief because there were genuine issues of material fact, and he was not given the opportunity to develop his claims of prosecutorial misconduct and ineffective assistance of counsel at an evidentiary hearing.
[¶6] "Post-conviction relief proceedings are civil in nature and are governed by the North Dakota Rules of Civil Procedure." Wheeler v. State, 2008 ND 109, ¶ 5, 750 N.W.2d 446. This Court reviews an appeal from a summary dismissal of post-conviction relief as it would review an appeal from summary judgment. Berlin v. State, 2005 ND 110, ¶ 6, 698 N.W.2d 266. If there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, the district court may summarily dismiss an application for post-conviction relief. Sambursky v. State, 2006 ND 223, ¶ 7, 723 N.W.2d 524. "The 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." Berlin, at ¶ 6.
[¶7] A petitioner is not required to include, with an application for post-conviction relief, supporting evidentiary materials necessary to withstand a potential motion for summary dismissal. N.D.C.C. § 29-32.1-04; State v. Bender, 1998 ND 72, ¶ 19, 576 N.W.2d 210. If the State moves for summary dismissal, putting a petitioner to his proof, a minimal burden shifts to the petitioner to support his application with admissible evidence, by affidavit or other comparable means, to raise a genuine issue of material fact. Ude v. State, 2009 ND 71, ¶ 8, 764 N.W.2d 419; Steinbach v. State, 2003 ND 46, ¶ 17, 658 N.W.2d 355.
[¶8] The State argues its response shifted the burden to Overlie to provide evidentiary support for his allegations, which Overlie failed to do. Although the State submitted a document entitled, "State's Response to Defendant's Motion for Post-Conviction Relief," the State did not expressly ask the court to summarily dismiss Overlie's application. Instead, the State framed its response as a "written argument in opposition of" Overlie's application and requested a hearing on the ineffective assistance of counsel issue. The State argued Overlie's "grounds . . . are inaccurate." In support of his prosecutorial misconduct claim, Overlie alleged, "The prosecution prevented my wife (the pet[it]ioner for . . . the protection order) to testify on my behalf." The State responded that Overlie's wife was not called as a witness because Overlie waived his preliminary hearing and knowingly and voluntarily pled guilty to the charge against him. Further, the State claimed that if Overlie had gone to trial, his wife "would likely have been called as a witness[.]" Additionally, the State argued that testimony from Overlie's wife would have been irrelevant at his revocation hearing. The State argued Overlie did not support his ineffective assistance of counsel claim with an affidavit or any legal precedent, and he failed to provide an explanation of how he was prejudiced by his counsel's alleged failures. In response to Overlie's allegation that his counsel had advised ...