Appeal from the District Court of Ramsey County, Northeast Judicial District, the Honorable Lee A. Christofferson, Judge.
Travis W. Finck, Bismarck, ND, for petitioner and appellant; submitted on brief.
Lonnie Olson, State's Attorney, Devils Lake, ND, for respondent and appellee; submitted on brief.
Gerald W. VandeWalle, C.J., Carol Ronning Kapsner, Lisa Fair McEvers, Daniel J. Crothers. Opinion of the Court by VandeWalle, Chief Justice. I concur in the result. Dale V. Sandstrom.
Gerald W. VandeWalle, Chief Justice.
[¶1] John Willard Greywind appealed from a district court order denying his application for post-conviction relief and
subsequent motion for reconsideration. We reverse and remand.
[¶2] Greywind previously pled guilty to committing robbery while in possession of a dangerous weapon. He filed an application for post-conviction relief on the grounds of ineffective assistance of counsel, imposition of a longer sentence than a co-defendant, and alleged the prosecuting attorney violated his due process rights. The claim of ineffective assistance of counsel alleged a failure of his attorney to inform Greywind he would be required to serve 85% of his sentence before release, failure to inform him that his co-defendant would receive a shorter sentence, and failure to zealously represent him during the proceeding and plea agreement.
[¶3] The district court denied the application without a hearing or response from the State. Citing State v. Raulston, 2005 ND 212, 707 N.W.2d 464, and Sambursky v. State, 2008 ND 133, 751 N.W.2d 247, the district court held that a claim of ineffective assistance of counsel does not arise by virtue of the fact that counsel did not inform Greywind prior to entry of his plea that his conviction would result in serving 85% of his sentence. The court also held that the claims of ineffective assistance of counsel and disparate sentence were not grounds for post-conviction relief because Greywind's co-defendant was sentenced after him and he did not possess the knife used in the robbery.
[¶4] Greywind's claim that his attorney failed to zealously represent him during the proceedings was denied because the court found no specific allegation was made in the application and the record established his guilt and competency of counsel. The court also held the claim of prosecutorial misconduct was without merit as the discretion to initiate charges and negotiate plea agreements rests with the prosecutor, and the sentence was consistent with the facts, law, and prior criminal history.
[¶5] Greywind filed a motion to reconsider the denial of his application for post-conviction relief. He argued that it was error to deny his application for failure to make a specific allegation under claim of ineffective assistance of counsel as he was not required to include supporting materials or evidence in his application until given notice he was being put on his proof. Because his claim was found frivolous based on information outside of his application for post-conviction relief, he alleged the district court's dismissal of his claim without a hearing was in error. The district court denied the motion for reconsideration and amended the order ...