from the District Court of Rolette County, Northeast Judicial
District, the Honorable John C. McClintock, Jr., Judge.
K. Johnson III, Grand Forks, ND, for petitioner and
J. Thompson, Rolette County State's Attorney, Rolla, ND,
for respondent and appellee; submitted on brief.
VandeWalle, Chief Justice.
1] Lorry Van Chase appealed from an order denying his
application for post-conviction relief. We conclude the
district court erred in summarily dismissing his application,
claiming ineffective assistance of trial counsel, because
genuine issues of material fact exist precluding summary
disposition. We reverse and remand for the court to hold an
evidentiary hearing on his application.
2] In 2013, Chase was charged with one count of gross sexual
imposition in violation of N.D.C.C. § 12.1-20-03(1)(a),
a class AA felony, for an assault occurring in 2007. In 2014,
a jury convicted Chase of the charge, and this Court affirmed
his conviction on appeal. State v. Chase, 2015 ND
234, ¶¶ 1, 13, 869 N.W.2d 733.
3] In September 2016, Chase filed an application for
post-conviction relief, asserting grounds of ineffective
assistance of his trial counsel. Chase also filed a sworn
affidavit supporting his claims. On October 17, 2016, the
State filed its response and exhibits, including an unsworn
statement from Chase's trial counsel. In its response,
the State opposed Chase's claims and also requested
summary dismissal with proper notice provided to Chase if the
district court did not dismiss the application on its own
motion. On November 3, 2016, without further notice or an
evidentiary hearing, the district court entered an order
denying the application.
4] Chase argues the district court erred in summarily
dismissing his application for post-conviction relief
claiming ineffective assistance of trial counsel.
5] Generally, "[a]n applicant has the burden of
establishing grounds for post-conviction relief."
Greywind v. State, 2015 ND 231, ¶ 6, 869 N.W.2d
746 (quoting Chisholm v. State, 2014 ND 125, ¶
8, 848 N.W.2d 703). Section 29-32.1-04(1), N.D.C.C., states:
"The application must... set forth a concise statement
of each ground for relief, and specify the relief requested.
Argument, citations, and discussion of authorities are
6] This Court has explained that summary dismissal of an
application "is analogous to dismissal of a civil
complaint under N.D.R.Civ.P. 12(b) for failure to state a
claim upon which relief can be granted."
Greywind, 2015 ND 231, ¶ 7, 869 N.W.2d 746. The
court may, on its own motion, dismiss a complaint for failure
to state a valid claim. Id.; see also
N.D.C.C. § 29-32.1-09(1). On appeal from a N.D.R.Civ.P.
12(b)(6) dismissal, we will construe the application in the
light most favorable to the applicant, accepting the
well-pleaded allegations as true. Greywind, at
¶ 7; Wong v. State, 2010 ND 219, ¶ 9, 790
N.W.2d 757. This Court will affirm a dismissal for failure to
state a claim "if it would be impossible for the
applicant to prove a claim for which relief can be
granted." Greywind, at ¶ 7 (quoting
Wong, ¶ 9).
7] When, however, matters outside the pleading are
considered, the motion must be treated as a summary judgment
motion under N.D.R.Civ.P. 56. Wong, 2010 ND 219,
¶ 12, 790 N.W.2d 757. "A court may summarily
dismiss an application for post-conviction relief under
N.D.C.C. § 29-32.1-09, which is analogous to summary
judgment, if there are no genuine issues of material fact and
the moving party is entitled to judgment as a matter of
law." Greywind, 2015 ND 231, ¶ 8, 869
N.W.2d 746. Section 29-32.1-09(3), N.D.C.C., provides that
"[t]he court may grant a motion by either party for
summary disposition if the application, pleadings, any
previous proceeding, discovery, or other matters of record
show that there is no genuine issue as to any material fact
and the moving party is entitled to a judgment as a matter of