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Riak v. State

Supreme Court of North Dakota

May 27, 2015

Riak Riak, Petitioner and Appellant
State of North Dakota, Respondent and Appellee

Page 895

Appeal from the District Court of Cass County, East Central Judicial District, the Honorable John Charles Irby, Judge.

Benjamin C. Pulkrabek, Mandan, N.D., for petitioner and appellant.

Ryan J. Younggren, Assistant State's Attorney, Fargo, N.D., for respondent and appellee.

Gerald W. VandeWalle, C.J., Carol Ronning Kapsner, Lisa Fair McEvers, Daniel J. Crothers. Opinion of the Court by VandeWalle, Chief Justice. Sandstrom, Justice, dissenting.


Page 896

VandeWalle, Chief Justice.

[¶1] Riak Riak appealed from an order denying his motion to reopen his application for post-conviction relief, which the district court had dismissed on its own motion in an earlier order. Under the narrow circumstances of this case, we conclude the district court abused its discretion in denying the motion because Riak filed his application under prior law and had not yet been put to his proof when the court dismissed his application. We reverse and remand for further proceedings.


[¶2] In 2009, Riak pleaded guilty to a charge of gross sexual imposition, a class A felony, and was sentenced to twenty years in prison with three years suspended for ten years while on supervised probation. In 2010, Riak applied for post-conviction relief claiming ineffective assistance of counsel on the part of his trial attorney, but he subsequently withdrew that application by stipulation.

[¶3] In February 2013, Riak filed another application for post-conviction relief, asserting he received ineffective assistance of his trial counsel and that his sentence was too long. In March 2013, the State filed a request for additional time to respond, and the court granted the State's request. In May 2013, the parties jointly filed a stipulation requesting an additional 60 days for the State to file an answer or response motion, which the court again granted. The State did not file a response within the following 60 days.

[¶4] On November 8, 2013, the district court's " Electronic Court Recorder" mailed a " Notification of Dismissal and Order of Dismissal" to the parties. This notice stated, " The Court has been advised that the above-entitled case has been settled or tried. To date closing documents have not been filed." The notice further stated the case would be dismissed without prejudice after 14 days unless the court received " the required documents." Neither the State nor Riak's attorney filed any response to the notification. On November 22, 2013, the district court entered an order dismissing Riak's February 2013 application without prejudice. No notice of entry of the order was filed after the court entered its dismissal order.

[¶5] In a letter dated February 4, 2014, and filed on February 12, 2014, Riak on his own behalf informed the district court that he was filing a disciplinary complaint against his appointed counsel and requested the court to appoint different counsel for him. In a letter to the court dated February 18, 2014, and filed February 24, 2014, he was aware his application had been dismissed in November 2013 and was " very confused" by the dismissal. He requested his post-conviction relief application be reopened, a hearing be scheduled, and new counsel be appointed for him.

[¶6] In a February 25, 2014, letter, the district court judge informed Riak that the court was unable to act on the request in his February 4 letter, that his application had been dismissedenclosing a copy of the November 2013 order, and that Riak would need to make and serve " an appropriate motion." On March 7, 2014, Riak moved to reopen his dismissed post-conviction relief application, asserting complaints against his appointed post-conviction counsel. The district court denied Riak's motion, and Riak appealed from the order denying his motion.

Page 897


[¶7] Riak argues his motion to reopen the dismissed post-conviction relief application and his appeal from the order denying his motion to reopen were timely.

[¶8] This Court has treated motions for reconsideration as either motions to alter or amend a judgment under N.D.R.Civ.P. 59(j), or as motions for relief from a judgment or order under N.D.R.Civ.P. 60(b). See Waslaski v. State, 2013 ND 70, ¶ 7, 830 N.W.2d 228; Bay v. State, 2003 ND 183, ¶ 4, 672 N.W.2d 270; see also Palmer v. State, 2012 ND 237, ¶ ¶ 5-9, 824 N.W.2d 406. Here, Riak moved the district court to reopen his application on March 7, 2014, after the court dismissed the application " without prejudice" on November 22, 2013. Riak contends that his motion was appropriate to provide relief from the November 2013 dismissal order under N.D.R.Civ.P. 60(b)(1) (" mistake, inadvertence, surprise, or excusable neglect" ) and N.D.R.Civ.P. 60(b)(6) (" any other reason that justifies relief" ).

[¶9] Rule 60(b), N.D.R.Civ.P., permits the district court to provide relief to a party from a final judgment, order, or proceeding. Generally, an order dismissing an action " without prejudice" is not considered appealable as a " final" order under N.D.C.C. § 28-27-02. See Runck v. Brakke, 421 N.W.2d 487, 488 (N.D. 1988). This Court has explained, however, that a dismissal without prejudice may be considered final, and therefore appealable, when a plaintiff cannot cure the defect leading to dismissal, or when the dismissal has " the practical effect of terminating the litigation in the plaintiff's chosen forum." Rodenburg v. Fargo-Moorhead YMCA, 2001 ND 139, ¶ 12, 632 N.W.2d 407 (citations omitted); see also Jaskoviak v. Gruver, 2002 ND 1, ¶ 8, 638 N.W.2d 1 (dismissal without prejudice was final and appealable when plaintiff would be barred by two-year statute of limitations from bringing another medical malpractice action).

[¶10] In this case, although the district court's November 2013 order of dismissal was without prejudice, any new application for post-conviction relief filed by Riak would be subject to dismissal under the recently enacted two-year statute of limitations governing such applications. See N.D.C.C. § 29-32.1-01(2) (effective August 1, 2013) (providing two-year limitation from date conviction becomes final, subject to certain exceptions); Murphy v. State, 2014 ND 84, ¶ 6, 845 N.W.2d 327 (applying two-year statute of limitations to application filed after the statute's effective date, relating to a conviction that became final before the effective date). The court's order, therefore, has the " practical effect" of being a dismissal " with prejudice" and was a " final" order for purposes of seeking Rule 60(b) relief in the district court. Cf. Jaskoviak, 2002 ND 1, ¶ 8, 638 N.W.2d 1.

[¶11] A Rule 60(b) motion must be made " within a reasonable time, and for reasons (1), (2), and (3) no more than a year after notice of entry of the judgment or order in the action or proceeding if the opposing party appeared, but not more than one year after a default judgment has been entered." N.D.R.Civ.P. 60(c). Here, no notice of entry of the November 22, 2013, order appears in the record, but Riak expressed actual knowledge of the order in his letter to the court dated February 18, 2014, and filed on February 24, 2014. After the district court invited Riak to make " an appropriate motion," in its February 25, ...

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