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Cody v. State

Supreme Court of North Dakota

February 16, 2017

Wesley Alan Cody, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee

         Appeal from the District Court of Morton County, South Central Judicial District, the Honorable James S. Hill, Judge. AFFIRMED.

          Scott O. Diamond, for petitioner and appellant.

          Brian D. Grosinger, Assistant State's Attorney, for respondent and appellee.

          OPINION

          McEvers, Justice.

         [¶ 1] Wesley Cody appeals from a district court's order denying his application for post-conviction relief. He argues the district court erred by not holding an evidentiary hearing before denying his application. We conclude the district court is not required to hold an evidentiary hearing unless requested by a party. Because the district court may deny a defendant's application for post-conviction relief on the merits after the defendant is provided notice and an opportunity to present evidence, we affirm.

         I

         [¶ 2] On August 16, 2013, Cody was charged with aggravated assault and reckless endangerment related to a stabbing incident in Morton County. The district court appointed counsel to defend Cody on those charges. On March 20, 2014, Cody pled guilty to reckless endangerment. As part of his plea agreement, the State dismissed a class C felony aggravated assault charge alleging Cody stabbed another person. Cody was sentenced to one year with the North Dakota Department of Corrections, suspended for a period of three years. He was placed on probation. On February 3, 2015, Cody's probation was revoked and he was sentenced to serve two years with the North Dakota Department of Corrections.

         [¶ 3] On March 12, 2015, Cody filed an application for post-conviction relief. In his application, Cody claimed he had new evidence and alleged ineffective assistance of counsel. He claimed a witness, Jacob Scarberry, would provide testimony that someone else stabbed the victim in Morton County. Cody argued neither law enforcement nor his attorney ever interviewed Scarberry. Cody claimed he did not know about the content of Scarberry's potential testimony until after he pled guilty, and his attorney failed to counsel him on his plea agreement. The prayer for relief in Cody's application requested a new trial, but did not request an evidentiary hearing. The State answered, opposing Cody's application for post-conviction relief arguing Cody could not prove ineffective assistance of counsel. The State did not move for summary disposition.

         [¶ 4] After the State filed its answer, the district court noted Cody's application was filed before he was appointed counsel for this post-conviction relief action. On April 23, 2015, the district court directed both Cody and the State to file briefs so it could determine whether an evidentiary hearing was necessary. The district court allowed Cody's counsel to file any supplemental brief or statement of issues and arguments in support of the application, allowing Cody until June 30, 2015, to respond. The district court granted Cody two extensions of time to respond. Cody responded by submitting a brief in support of the application, as well as nine exhibits including: (1) the criminal judgment, (2) appendix A of the criminal judgment, (3) the amended criminal judgment, (4) a letter and affidavit from Scarberry, (5) an incident report from Mandan Police Officer Haug, (6) an incident report from Mandan Police Officer Pynnonen, (7) a supplemental DNA report from the State Crime Laboratory Division, (8) a police report from Mandan Detective Jose, and (9) a police report from Mandan Police Officer Moos. Cody did not request an evidentiary hearing in his responsive brief. Rather, Cody indicated that if an evidentiary hearing is granted he would call Scarberry as a witness.

         [¶ 5] The State responded to Cody's brief and did not object to Cody's submitted evidence. The State argued Cody was aware of Scarberry at the time he pled guilty, so it was not newly discovered evidence. The State further argued that Scarberry's testimony relates only to the aggravated assault charge that was dismissed. The district court did not hold an evidentiary hearing.

         [¶ 6] In its order denying Cody's application for post-conviction relief, the district court did not state the statutory authority it relied on in denying Cody's application. The district court applied the two-part Strickland test and found Cody's counsel did not fail to meet an objective standard of reasonableness. The district court found, even if Cody's counsel's representation had fallen below an objective standard of reasonableness, Cody was not prejudiced. The district court found that while Cody claimed he was unaware Scarberry had information regarding Cody's arrest until after he pled guilty, based on Scarberry's affidavit, Cody knew Scarberry was at the scene because they "had a smoke break together." The district court concluded Scarberry could not have provided any additional information that Cody did not already know. In denying Cody's application for post-conviction relief, the district court found "Scarberry's testimony would have provided no information not known at the time and Cody has not established he would not have entered a plea of guilty." Cody appealed.

         II

         [¶ 7] Cody argues the district court erred by denying his application for post-conviction relief without conducting an evidentiary hearing. He contends the district court does not have authority to deny an application under N.D.C.C. § 29-32.1-09 after it relies on information outside an application, and neither party moves for summary dismissal. We agree. See Chisholm v. State, 2014 ND 125, ¶ 17, 848 N.W.2d 703. In Chisholm, this Court stated that when the district court considers matters outside the pleadings in summarily dismissing an application on its own motion, it is reversible error when an applicant was not provided notice and an opportunity to present evidence supporting his claim. 2014 ND 125, ¶ 12, 848 N.W.2d 703. However, Cody's argument that the district court erred by not holding a hearing is unpersuasive.

         [¶ 8] The purpose of the Post-Conviction Procedure Act is to provide a "method to develop a complete record to challenge a criminal conviction." Chisholm, at ΒΆ 15 (quotation marks ...


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