Daniel J. Myers, Petitioner and Appellant
State of North Dakota, Respondent and Appellee
from the District Court of Burleigh County, South Central
Judicial District, the Honorable David E. Reich, Judge.
A. Gereszek for petitioner and appellant.
K. Steiner for respondent and appellee.
1] Daniel Myers appeals from a district court order summarily
dismissing his application for postconviction relief. We
affirm, concluding Myers' postconviction relief
application was a misuse of process.
2] In April 2012, Myers pled guilty to aggravated assault
domestic violence, a class C felony. The district court
sentenced Myers to five years' imprisonment, with five
years suspended and five years of supervised probation. In
August 2012, Myers pled guilty in three additional criminal
cases involving theft of property, possession of drug
paraphernalia, carrying a concealed weapon, hindering law
enforcement, and driving while license suspended. The
district court sentenced Myers to five years'
imprisonment, with five years suspended and three years of
supervised probation. The August 2012 judgments stated the
sentences for all of the crimes would run concurrent to each
other. The August 2012 judgments did not state whether the
sentences would run concurrent or consecutive to Myers'
April 2012 aggravated assault sentence.
3] In April 2013, the State petitioned to revoke Myers'
probation in all four criminal cases after Myers tested
positive for methamphetamine. The district court revoked
Myers' probation and entered amended criminal judgments
sentencing him to ten years' imprisonment through a
variation of concurrent and consecutive sentences in all of
4] Myers applied for postconviction relief in August 2013,
claiming the court failed to advise him that revocation of
his probation could result in additional prison time. The
district court denied the application after holding an
evidentiary hearing. Myers appealed and argued he received an
illegal sentence and the district court improperly extended
his sentence after revoking his probation. This Court
summarily affirmed in Myers v. State, 2015 ND 54,
¶ 1, 861 N.W.2d 172, concluding Myers did not raise the
issue regarding the legality of his sentence in his
postconviction relief application.
5] In April 2015, Myers filed another application for
postconviction relief, claiming his sentence after revocation
was not authorized by law and the district court should have
sentenced him to five years' imprisonment instead of ten
years. The State moved to dismiss Myers' application for
postconviction relief, arguing Myers misused the
postconviction relief process by inexcusably failing to raise
his grounds for relief in his earlier application for
postconviction relief. The district court summarily dismissed
his application without a hearing.
6] Myers argues the district court erred in summarily
dismissing his application for postconviction relief. He
argues the court failed to address the issues raised in his
7] "Post-conviction relief proceedings are civil in
nature and governed by the North Dakota Rules of Civil
Procedure." Wacht v. State, 2015 ND 154, ¶
6, 864 N.W.2d 740 (quoting Haag v. State, 2012 ND
241, ¶ 4, 823 N.W.2d 749). A district court may
summarily dismiss an application for postconviction relief if
there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. N.D.C.C.
§ 29-32.1-09(3). A court may also summarily dismiss
"a second or successive application for similar relief
on behalf of the same applicant." N.D.C.C. §
29-32.1-09(1). This Court reviews an appeal from summary
dismissal of postconviction relief as it would review an
appeal from a summary judgment. Wacht, at ¶ 6.
"The party opposing the motion for summary dismissal ...