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Myers v. State

Supreme Court of North Dakota

March 30, 2017

Daniel J. Myers, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee

         Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable David E. Reich, Judge.

         AFFIRMED.

          Samuel A. Gereszek for petitioner and appellant.

          Derek K. Steiner for respondent and appellee.

          OPINION

          Tufte, Justice.

         [¶ 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.

         I

         [¶ 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 the cases.

         [¶ 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.

         II

         [¶ 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 application.

         [¶ 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 ΒΆ 6. "The party opposing the motion for summary dismissal ...


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