Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable James S. Hill, Judge.
Thomas J. Glass, Bismarck, ND, for petitioner and appellant.
Dawn M. Deitz, Bismarck, ND, for respondent and appellee.
Lisa Fair McEvers, Daniel J. Crothers, Dale V. Sandstrom, Carol Ronning Kapsner, Gerald W. VandeWalle, C.J. Opinion of the Court by McEvers, Justice. VandeWalle, Chief Justice, concurring and dissenting.
Lisa Fair McEvers, Justice.
[¶1] Brandon Keller appeals a district court order dismissing his application for post-conviction relief. Keller argues his conspiracy to commit murder and attempted murder convictions are illegal because N.D.C.C. § § 12.1-06-01 and 12.1-16-01(1)(b), attempted murder under circumstances manifesting an extreme indifference to the value of human life, and N.D.C.C. § § 12.1-06-04 and 12.1-16-01(1)(b), conspiracy to commit murder under circumstances manifesting an extreme indifference to the value of human life, are incognizable offenses. We affirm the district court's dismissal because Keller has failed to establish a new interpretation of law applies to his case, and his application is therefore barred by the statute of limitations.
[¶2] In 2003, a jury found Keller guilty of conspiracy to commit murder, attempted murder, and reckless endangerment. On February 20, 2004, the district court sentenced Keller to twenty years in prison on each count for the conspiracy to commit murder and the attempted murder convictions to run concurrently and, thereafter, to five years in prison for the reckless endangerment conviction. Keller appealed the criminal judgment arguing the district court erred in failing to instruct the jury on lesser-included offenses and the evidence was insufficient to support the jury's verdicts. This Court affirmed in State v. Keller, 2005 ND 86, 695 N.W.2d 703.
[¶3] On May 19, 2014, Keller moved to correct an illegal sentence arguing he was convicted of an incognizable offense, attempted murder under circumstances manifesting extreme indifference to human life. The district court denied Keller's motion. Keller did not appeal the district court's denial of his motion to correct an illegal sentence.
[¶4] On August 8, 2014, Keller applied for post-conviction relief arguing new interpretations of law apply retroactively to his case. Specifically, Keller argued his attempted murder and conspiracy to commit murder convictions were based on incognizable offenses and should be vacated. In support, Keller relied primarily on this Court's 2013 decisions in Dominguez v. State, 2013 ND 249, ¶ 22, 840 N.W.2d 596, holding an attempted murder conviction, under N.D.C.C. § § 12.1-06-01 and 12.1-16-01(1)(b), under circumstances manifesting extreme indifference to the value of human life is not a cognizable offense; and in State v. Borner, 2013 ND 141, ¶ 20, 836 N.W.2d 383, holding " conspiracy to commit extreme indifference murder, under N.D.C.C. § § 12.1-06-04 and 12.1-16-01(1)(b), is not a cognizable offense." The State responded requesting the district court dismiss the application because the two-year statute of limitations had expired and, alternatively, argued Keller's claims were barred by res judicata and misuse of process. On November 20, 2014, the district court dismissed the application as barred by the statute of limitations on the grounds Keller " failed to establish that the new interpretation of law is retroactively applicable to his case." Keller appealed.
[¶5] As a preliminary matter, we first address the State's assertions that Keller's arguments on appeal are barred by res judicata and misuse of process. The district court did not dismiss the post-conviction relief application on these bases, but the issues were raised below and are therefore preserved on appeal. See Rakowski v. City of Fargo, 2010 ND 16, ¶ 15, 777 N.W.2d 880.
[¶6] The State contends Keller's argument that the new interpretation of law is retroactively applicable to his case is barred by res judicata because Keller raised the argument in his motion to correct an illegal sentence, which the district court denied.
[¶7] In his May 19, 2014, motion to correct an illegal sentence, Keller argued he was convicted of the incognizable offense of attempted murder under circumstances manifesting an extreme indifference to human life. At that time, Keller did not raise the issue of whether his conspiracy to commit murder conviction was based on an incognizable offense. Keller made the same arguments and relied primarily on the same legal authorities in his motion to correct an illegal sentence as he made in his petition for post-conviction relief.
[¶8] Under N.D.C.C. § 29-32.1-12(1), " [a]n application for postconviction relief may be denied on the ground that the same claim or claims were fully and finally determined in a previous proceeding." The district court denied Keller's motion to correct an illegal sentence on the grounds Keller's argument was improperly brought under a N.D.R.Crim.P. 35(a) motion:
The Defendant's motion may only be considered by the Court for purposes of correcting an illegal sentence as set forth within Rule 35(a)(2) by virtue of the time limitations. The Defendant's motion seeks not to correct an illegal sentence due to an error in arithmetic, technical, or other clerical error, but rather seeks to cause this Court to now reconsider and to retroactively apply subsequent Supreme Court decisions.
Keller did not appeal from the district court's denial of his Rule 35(a) motion to correct an illegal sentence. At first glance, it may appear that Keller's claim is barred by res judicata. However, N.D.R.Crim.P. 35(a) may only be used to correct an illegal sentence. It cannot be used to attack the underlying conviction. State v. Ertelt, 1997 ND 15, ¶ ¶ 5-6, 558 N.W.2d 860 (quoting the N.D.R.Crim.P. 35, Explanatory Note, indicating " it is presupposed that the conviction upon which the sentence has been imposed is valid" ). " 'Res judicata, or claim preclusion, prevents relitigation of claims that were raised, or could have been raised, in prior actions between the same parties or their privies.'" Riverwood Commercial Park v. Standard Oil Company, 2007 ND 36, ¶ 13, 729 N.W.2d 101 (quoting Ungar v. North Dakota State Univ., 2006 ND 185, ¶ 11, 721 N.W.2d 16). Res judicata is inapplicable when a statute, or in this case a rule, explicitly prohibits claims in the original actions. Riverwood Commercial Park, at ¶ 17; see also State v. Kopperud, 2015 ND 124, ¶ 4, 863 N.W.2d 852 (explaining that our review of rules and statutes is the same: " When we interpret a rule or a statute, we apply the rules of statutory construction and look at the language of the rule or statute to determine its meaning." ). Here, Keller could not collaterally attack the conviction in the Rule 35 proceeding. Therefore, Keller is not barred by res judicata from raising this argument in a post-conviction relief application because the issue was not determined in Keller's Rule 35(a) motion. Keller's argument regarding the conspiracy charge could not be appropriately raised in his Rule 35(a) motion; therefore, it is not barred by res judicata.
[¶9] The State also contends Keller's argument is barred by misuse of process because Keller could have raised the arguments in the original proceeding leading to judgment or in a previous post-conviction relief application.
[¶10] Under N.D.C.C. § 29-32.1-12(2)(a), " [a] court may deny relief on the ground of misuse of process. Process is misused when the applicant . . . [p]resents a claim for relief which the applicant inexcusably failed to raise either in a proceeding leading to judgment of conviction and sentence or in a previous postconviction proceeding." The State's assertion that Keller inexcusably failed to raise the issue of incognizable convictions on his own in the proceeding leading to the judgment of conviction or in his direct appeal to this Court ignores that the essence of Keller's argument centers on this Court's interpretations of law made after his judgment of conviction and direct appeal. Keller's arguments rely heavily on Dominguez and Borner, opinions issued after the change to N.D.C.C. § 29-32.1-01(2) limiting the time to apply for post-conviction relief. As such, we cannot conclude Keller's raising the arguments now in a post-conviction relief application qualifies as a misuse of process because it involves new interpretations of law that were not adopted at the time he was convicted or when he could have previously applied for post-conviction relief.
[¶11] On appeal, Keller argues the district court erred in dismissing his application for post-conviction relief because he asserted new interpretations of statutory law that are retroactively applicable to his case and fall within an exception to the two-year statute of limitations for filing a post-conviction relief application.
[¶12] " Post-conviction relief proceedings are civil in nature and governed by the North Dakota Rules of Civil Procedure."
Kinsella v. State, 2013 ND 238, ¶ 4, 840 N.W.2d 625. When this Court reviews a district court's decision in a post-conviction proceeding, questions of law are fully reviewable. Dominguez, 2013 ND 249, ¶ 8, 840 N.W.2d 596. This Court's standard for reviewing a summary denial of an application for post-conviction relief is similar to the 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.
[¶13] Under N.D.C.C. § 29-32.1-01(2), a petitioner must file an application for post-conviction relief within two years of the date the conviction becomes final. The conviction becomes final when:
a. The time for appeal of the conviction to the North Dakota supreme court expires;
b. If an appeal was taken to the North Dakota supreme court, the time for petitioning the United States supreme court for review expires; or
c. If review was sought in the United States supreme court, the date the supreme court issues a final order in the case.
N.D.C.C. § 29-32.1-01(2). However, courts may consider a post-conviction relief application, after the two years have elapsed, if any of the following exceptions apply:
(1) The petition alleges the existence of newly discovered evidence, including DNA evidence, which if proved and reviewed in light of the evidence as a whole, would establish that the petitioner did not engage in the criminal conduct for which the petitioner was convicted;
(2) The petitioner establishes that the petitioner suffered from a physical disability or mental disease that precluded timely ...