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: VandeWalle, Chief Justice.
2012 ND 241 This opinion is subject to petition for rehearing. [Go to Documents]
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Opinion of the Court by VandeWalle, Chief Justice.
[¶1] Christopher Haag appealed from an order denying his application for post-conviction relief from criminal convictions entered after he pled guilty to drug-related charges involving JWH-018 1-Pentyl-3 (1-naphthoyl) indole ("JWH-018"). We affirm, concluding JWH-018 was a prohibited controlled substance when Haag committed the acts alleged in the criminal complaint in November 2010.
[¶2] Haag was charged with possession of a controlled substance, JWH-018, with intent to deliver to another and with possession of drug paraphernalia for using a controlled substance, JWH-018, for acts alleged to have occurred on November 12, 2010. JWH-018 has been identified as a synthetic cannabinoid, and the parties have referred to it as "Spark." Haag pled guilty to the charges in May 2011. In November 2011, Haag petitioned for post-conviction relief, claiming JWH-018 was not a prohibited controlled substance when he committed the acts alleged in the criminal complaint. The State resisted Haag's petition and moved for summary disposition, arguing the North Dakota Board of Pharmacy's final rule delineating JWH-018 as a prohibited controlled substance was in effect when Haag committed the acts alleged in the criminal complaint on November 12, 2010.
[¶3] The district court summarily denied Haag's petition for post-conviction relief, ruling there were no disputed facts that JWH-018 became a prohibited controlled substance in October 2010, when an administrative rule adopted by the Board had been approved and was published in N.D. Admin. Code ch. 61-13-01 and became effective as a final rule. The district court explained this Court's decision in State v. Nickel, 2011 ND 200, 806 N.W.2d 155, invalidated convictions under an emergency interim final rule and applied only to the Board's attempted adoption of an emergency interim final rule identifying JWH-018 as a prohibited controlled substance. The district court said Nickel did not affect the adoption of a final rule designating JWH-018 as a prohibited controlled substance, which became effective in October 2010 before the acts alleged in the criminal complaint occurred.
[¶4] "'Post-conviction relief proceedings are civil in nature and governed by the North Dakota Rules of Civil Procedure.'" Wong v. State, 2011 ND 201, ¶ 4, 804 N.W.2d 382 (quoting Delvo v. State, 2010 ND 78, ¶ 10, 782 N.W.2d 72). "'Questions of law are fully reviewable on appeal of a post-conviction proceeding.'" Wong, at ¶ 4 (quoting Syvertson v. State, 2005 ND 128, ¶ 4, 699 N.W.2d 855). Our standard for reviewing a summary denial of a petition for post-conviction relief is similar to our standard for reviewing an appeal from a summary judgment. Henke v. State, 2009 ND 117, ¶ 9, 767 N.W.2d 881. A district court may summarily dispose of a petition for post-conviction relief if there ...