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Dominguez v. State

Supreme Court of North Dakota

December 19, 2013

Esteban F. DOMINGUEZ, Petitioner and Appellant
v.
STATE of North Dakota, Respondent and Appellee.

Page 597

[Copyrighted Material Omitted]

Page 598

Thomas V. Omdahl, Grand Forks, N.D., for petitioner and appellant.

Barbara L. Whelan, State's Attorney, Grafton, N.D., for respondent and appellee, submitted on brief.

SANDSTROM, Justice.

[¶ 1] Esteban Dominguez appeals from a district court order denying his application for post-conviction relief. Dominguez argues his attempted murder conviction is illegal because N.D.C.C. § 12.1-16-01(1)(b), murder under circumstances manifesting an extreme indifference to the value of human life, cannot be the underlying charge for an attempt offense. We conclude attempted murder under N.D.C.C. §§ 12.1-06-01 and 12.1-16-01(1)(b) is not a cognizable offense, because attempt requires an intent to complete the commission of the underlying crime and a majority of this Court has held that murder under circumstances manifesting an extreme indifference to the value of human life results in an unintentional death. We reverse and remand.

I

[¶ 2] Dominguez was charged with attempted murder under N.D.C.C. §§ 12.1-06-01 and 12.1-16-01(1)(a) and (b) and terrorizing under N.D.C.C. § 12.1-17-04. The complaint alleged Dominguez threatened David Nelson with a .22 caliber rifle and shot at Nelson four times when Nelson ran away.

[¶ 3] In February 2012, a jury found Dominguez guilty of attempted murder and terrorizing. The verdict form did not require the jury to specify whether they found Dominguez guilty of attempted murder under N.D.C.C. § 12.1-16-01(1)(a), intentional or knowing murder, or under N.D.C.C. § 12.1-16-01(1)(b), murder under circumstances manifesting an extreme indifference to the value of human life.

[¶ 4] In March 2012, Dominguez moved to set aside the verdict and requested a new trial. He argued the jury instructions and jury verdict were improper. The State resisted the motion, arguing the motion was untimely. In April 2012, the district court denied Dominguez's motion on the merits. In May 2012, the district court entered judgments of conviction. Dominguez appealed the order denying his motion for a new trial. This Court held his motion for a new trial was untimely and the district court lacked jurisdiction. State v. Dominguez, 2012 ND 243, ¶ 6, 823 N.W.2d 753. The order denying his motion was vacated, and his appeal was dismissed. Id. at ¶ 8.

[¶ 5] In December 2012, Dominguez applied for post-conviction relief, requesting his conviction for attempted murder be set aside and he be given a new trial. He argued his conviction is illegal because N.D.C.C. § 12.1-16-01(1)(b), murder under circumstances manifesting an extreme indifference to the value of human life, requires the accused cause the death of another and cannot be charged as an attempt crime. He also argued attempted murder under N.D.C.C. § 12.1-16-01(1)(b) is not a crime because murder under circumstances manifesting an extreme indifference to the value of human life is a general intent crime, while attempted murder requires a specific intent to kill. The State responded to Dominguez's application and requested summary dismissal under N.D.C.C. § 29-32.1-06(2). The State argued there was no basis upon which Dominguez would be entitled to post-conviction relief and no purpose would be served by any further proceedings, because Dominguez raised these same issues in his March 2012 motion for a new trial and the district court entered a decision on those issues. The State did not argue the application constituted a misuse of process.

Page 599

[¶ 6] In March 2013, the district court denied Dominguez's application for post-conviction relief. The court ruled a hearing was not necessary because the only issues raised were legal issues and summary resolution was appropriate. The court agreed with the State that Dominguez's argument was identical to his argument in his March 2012 motion for a new trial and his subsequent appeal, but the court denied the State's motion to dismiss, stating the Supreme Court held the district court lacked jurisdiction to decide the motion on its merits and the State cited no other grounds to ignore the merits of the issues raised in Dominguez's application. The court denied Dominguez's application, concluding attempted murder under circumstances manifesting an extreme indifference to the value of human life is an offense under North Dakota law and Dominguez's conviction does not violate any laws.

[¶ 7] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 29-32.1-03. Dominguez's appeal is timely under N.D.R.App.P. 4(d). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 29-32.1-14.

II

[¶ 8] When we review a district court's decision in a post-conviction proceeding, questions of law are fully reviewable. Haag v. State, 2012 ND 241, ¶ 4, 823 N.W.2d 749. Our standard for reviewing a summary denial of an application for post-conviction relief is similar to our standard for reviewing an appeal from summary judgment. Id. The district court may summarily dispose of an application if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id.

III

[¶ 9] Dominguez argues his conviction is illegal and must be vacated because attempted murder under N.D.C.C. § 12.1-16-01(1)(b) is not a cognizable crime. Dominguez contends murder under circumstances manifesting an extreme indifference to the value of human life cannot be charged as an attempt crime because it is a general intent crime, which does not require an intent to kill, and attempt requires an intent to commit the underlying crime.

A

[¶ 10] Dominguez was charged with attempted murder under N.D.C.C. §§ 12.1-06-01 and 12.1-16-01(1)(a) and (b). Section 12.1-06-01(1), N.D.C.C., the criminal attempt statute, provides:

A person is guilty of criminal attempt if, acting with the kind of culpability otherwise required for commission of a crime, he intentionally engages in conduct which, in fact, constitutes a substantial step toward commission of the crime. A " substantial step" is any conduct which is strongly corroborative ...

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