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Chase v. State

Supreme Court of North Dakota

July 31, 2017

Lorry Van Chase, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee

         Appeal from the District Court of Rolette County, Northeast Judicial District, the Honorable John C. McClintock, Jr., Judge.

          Ward K. Johnson III, Grand Forks, ND, for petitioner and appellant.

          Ryan J. Thompson, Rolette County State's Attorney, Rolla, ND, for respondent and appellee; submitted on brief.

          OPINION

          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.

         I

         [¶ 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.

         II

         [¶ 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 unnecessary."

         [¶ 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, ΒΆ 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 ...


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