from the District Court of Stutsman County, Southeast
Judicial District, the Honorable John E. Greenwood, Judge.
A. Gereszek, East Grand Forks, MN, for petitioner and
Frederick R. Fremgen, State's Attorney, Jamestown, ND,
for respondent and appellee.
VandeWalle, Chief Justice.
1] Charles Phillip Koenig appealed a district court order
denying his motion for entry of default judgment and
summarily dismissing his application for post-conviction
relief without an evidentiary hearing. We affirm.
2] On November 13, 2015, a criminal complaint was filed
against Koenig, alleging two counts of possession of a
controlled substance and two counts of possession of drug
paraphernalia. On December 15, 2015, Koenig filed a speedy
trial request. On January 6, 2016, a preliminary hearing was
held. Probable cause was found on all counts followed by
arraignment where a criminal information mirroring the
complaint with the addition of a witness list was filed. On
that same date, the prosecuting attorney recognized and
informed the court of Koenig's December 15, 2015 request
for speedy trial. Koenig made a second request for speedy
3] On April 1, 2016, a jury trial was held and Koenig was
found guilty on all counts. On July 22, 2016, Koenig was
sentenced to a total of eighteen months and two years of
supervised probation commencing upon release from
incarceration. On January 13, 2017, Koenig filed an
application for post-conviction relief under N.D.C.C. ch.
29-32.1 alleging ineffective assistance of counsel and
prosecutorial misconduct because he was denied his right to
speedy trial. Koenig also argued his conviction on count 1
(possession of a controlled substance) was obtained through
circumstantial evidence. The application was docketed January
19, 2017, and served on the state's attorney's office
on January 23, 2017.
4] On February 22, 2017, Koenig filed a notice, motion,
brief, and affidavit for default judgment. On February 23,
2017, the State filed an answer to Koenig's application
for post-conviction relief. On February 24, 2017, the State
filed a response to the motion for default judgment and a
motion to dismiss for misuse of process. On March 20, 2017,
Koenig filed a response to the State's motion to dismiss.
On May 9, 2017, the district court filed a memorandum
containing an order denying Koenig's motion for entry of
default judgment, an order denying the State's motion to
dismiss for misuse of process, and an order for summary
disposition of Koenig's application for post-conviction
5] Koenig argues he is entitled to default judgment because
the State's response to his application for
post-conviction relief was untimely.
6] Section 29-32.1-06, N.D.C.C., provides "[w]ithin
thirty days after the docketing of an application [for
post-conviction relief] or within any further time the court
may allow, the state shall respond by answer or motion."
"If a party against whom a judgment for affirmative
relief is sought has failed to plead or otherwise appear and
the failure is shown by affidavit or otherwise, the court may
direct the clerk to enter an appropriate default judgment in
favor of the plaintiff and against the defendant."
N.D.R.Civ.P. 55(a). Rule 55(b) provides "[a] default
judgment may be entered against the state, its officers, or
its agencies only if the claimant establishes a claim or
right to relief by evidence that satisfies the court."
7] We have previously stated the thirty-day time limit is not
mandatory and "[c]learly, the statute gives the court
discretion to allow more than thirty days for the State to
respond." Bell v. State, 1998 ND 35, ¶ 24,
575 N.W.2d 211. "A district court abuses its discretion
when it acts arbitrarily, unconscionably, or unreasonably, or
when its decision is not the product of a rational mental
process leading to a reasoned determination." Gamboa
v. State, 2005 ND 48, ¶ 6, 693 N.W.2d 21.
"Absent proof a petitioner was prejudiced by the delay
in proceedings, refusal to grant default judgment is not an
abuse of discretion." Id.
8] It is undisputed that (1) Koenig's application for
post-conviction relief was docketed on January 19, 2017; (2)
Koenig moved for default judgment on February 22, 2017; and
(3) the State filed an answer to the application for
post-conviction relief on February 23, 2017. Koenig argues,
and the State concedes, the State failed to timely respond.
However, based on this Court's calculations, the
State's reply was timely.
9] Thirty days from January 19, 2017, the day Koenig's
application was docketed, is Saturday, February 18, 2017.
Under the rules for computing any specified time period, if a
filing deadline is a Saturday, Sunday, or legal holiday, the
period continues to run until the end of the next day that is
not a Saturday, Sunday, or legal holiday. N.D.R.Civ.P
(6)(a)(1)(C). Because day thirty fell on a Saturday, and the
following Monday, February 20, 2017, was President's Day,
the period continued to run until Tuesday, February 21, 2017.
Because service was made electronically,  an additional three
days are added to the period calculated under N.D.R.Civ.P.
6(a). N.D.R.Civ.P. 6(e)(1). Accordingly, the State had until
February 24, 2017, to respond by answer or motion. Because
the State responded to Koenig's application on February
23, 2017, its response was timely.
10] Nevertheless, even if the State's response was
untimely, we have recognized N.D.C.C. § 29-32.1-06
clearly "gives the court discretion to allow more than
thirty days for the State to respond." Bell,
1998 ND 35, ¶ 24, 575 N.W.2d 211. In Bell, the
State was several months late in responding to the
petitioner's application for post-conviction relief.
Id. at ¶¶ 2-6. The petitioner argued he
was prejudiced because he remained incarcerated throughout
the pendency of the matter. Id. at ¶ 29. We
held the State's failure to respond within 30 days after
the application was docketed, although serious and
distressing, did not entitle the petitioner to default
judgment because he was unable to show he suffered any
prejudice from the State's untimely response.
Id. at ¶¶ 22-24. Additionally, we held it
was not an abuse of discretion for the district court to