Appeal from the District Court of Stark County, Southwest Judicial District, the Honorable H. Patrick Weir, Judge.
The opinion of the court was delivered by: Kapsner, Justice.
N.D. Supreme CourtWaslaski
State, 2013 ND 70 This opinion is subject to petition for rehearing. [Go to Documents]
[Download as WordPerfect]
AFFIRMED. Opinion of the Court by Kapsner, Justice.
Waslaski v. StateNo. 20120342
[¶1] Edward Waslaski, Jr., appeals from a district court order denying his motion for reconsideration of the district court's denial of his post-conviction relief application. We conclude the district court did not abuse its discretion in denying Waslaski's motion. We affirm.
[¶2] In 2000, Waslaski was convicted of aggravated assault under a negotiated guilty plea. In 2011, Waslaski applied for post-conviction relief alleging that prior to entering his guilty plea, he was not properly informed of his rights to counsel, jury trial, confrontation, maximum and minimum jail terms, and the right to appeal. Waslaski sought a transcript of the plea and sentencing hearing, but the record no longer exists. Waslaski filed an affidavit documenting his recollection of the hearing and urged the district court to accept the affidavit in lieu of a verbatim record because the presiding district court judge is unavailable, Waslaski's then-defense attorney is deceased, and the State's Attorney cannot recall the specifics of the hearing.
[¶3] In a May 29, 2012, memorandum opinion, the district court denied Waslaski's petition because he failed to carry his burden. The court noted the lapse of time in bringing his petition, the unavailability of Waslaski's original attorney and presiding judge, and Waslaski's inability to fully recall the sentencing hearing all created substantial questions of credibility and accuracy. On May 30, 2012, Waslaski appealed the petition denial, but he later voluntarily withdrew the appeal on June 20, 2012. This Court then dismissed the appeal. On July 9, 2012, Waslaski filed a "motion for reconsideration" asserting he had "new evidence." In support of his motion, he submitted affidavits from two witnesses, his wife and brother-in-law, who were present at the sentencing hearing, supporting Waslaski's contention he was not properly informed of his rights. The State moved to amend the pleadings to raise the affirmative defense of laches. The district court denied the motions.
[¶4] On September 7, 2012, Waslaski filed a notice of appeal from the memorandum opinion denying his petition and the order denying the motions for reconsideration and to amend. On September 27, 2012, this Court: (1) ordered Waslaski's appeal from the memorandum opinion not appealable; (2) ordered Waslaski's appeal from the order denying the motions for reconsideration and to amend may proceed; and (3) directed counsel to include briefing on whether the order denying Waslaski's motion for reconsideration was appealable and whether his motion was timely. The State's brief addressed timeliness and appealability, but Waslaski's brief did not.
[¶5] Waslaski appealed the original order denying post-conviction relief. In an apparent attempt to get more information before the trial judge, Waslaski dismissed the appeal rather than seeking a ...