from the District Court of Grand Forks County, Northeast
Central Judicial District, the Honorable John A. Thelen,
Benjamin C. Pulkrabek, Mandan, N.D., for petitioner and
appellant; submitted on brief.
Meredith Huseby Larson, Assistant State's Attorney, Grand
Forks, N.D., for respondent and appellee; submitted on brief.
1] Sean Kovalevich appeals from district court orders
summarily dismissing in part and denying the balance of his
application for post-conviction relief. We affirm.
2] In 2013, a jury found Kovalevich guilty of two counts of
gross sexual imposition and one count of corruption of a
minor. Kovalevich engaged in sexual acts with a minor female
at Canad Inns, a hotel in Grand Forks, in February and August
of 2012. Kovalevich appealed, and we affirmed the criminal
judgment. See State v. Kovalevich, 2015 ND 11, 858
N.W.2d 625. Kovalevich applied for post-conviction relief and
moved for a new trial. These were denied by the district
court, and this Court affirmed the district court. See
Kovalevich v. State, 2017 ND 40, 891 N.W.2d 778. In
April 2017, he again applied for post-conviction relief. At
the evidentiary hearing, the district court summarily
disposed of three of the issues, and proceeded only on the
claim of newly discovered evidence. Kovalevich argued that a
new receipt, which he received from Canad Inns after writing
them several letters in April 2017, showed he stayed at Canad
Inns in July 2012 ("July receipt") and qualified as
newly discovered evidence. The district court disagreed that
the evidence was newly discovered and denied Kovalevich
3] Post-conviction relief proceedings are civil in nature and
governed by the North Dakota Rules of Civil Procedure.
Wilson v. State, 2013 ND 124, ¶ 9, 833 N.W.2d
492. Under N.D.R.Civ.P. 52(a), the district court's
findings of fact in a post-conviction proceeding will not be
disturbed on appeal unless they are clearly erroneous.
Wilson, at ¶ 9. A finding of fact is clearly
erroneous if it is induced by an erroneous view of the law,
if it is not supported by any evidence, or if, although there
is some evidence to support the finding, we are left with a
definite and firm conviction a mistake has been made.
4] Kovalevich argues the district court erred in concluding
he did not present newly discovered evidence in his
application for post-conviction relief. Post-conviction
relief may be granted when "[e]vidence, not previously
presented and heard, exists requiring vacation of the
conviction or sentence in the interest of justice."
N.D.C.C. § 29-32.1-01(1)(e).
5] Kovalevich was convicted of two counts of gross sexual
imposition under N.D.C.C. § 12.1-20-03(1)(d), which
requires the victim to be less than fifteen years old, and
N.D.C.C. § 12.1-20-03(3)(a), which increases the offense
to a class AA felony if § 12.1-20-03(1)(d) is violated
and the offender was at least twenty-two years of age.
According to the Information, Kovalevich was twenty-six years
old and the victim was fourteen years old. Kovalevich argues
that the victim was actually fifteen years old when he
committed the offenses and thus he could not have been
convicted of two class AA felonies (instead, he argues, they
should have been class C felonies). He attempts to
substantiate this argument through the July receipt.
Kovalevich argues that the victim told law enforcement she
had taken three trips with him to Canad Inns, of which only
the second and third trips resulted in sexual assault. He
argues that the February trip was the first trip (not the
second trip, as it was depicted at trial), the July trip was
the second trip (where the first two counts of sexual assault
occurred), and the August trip was the third trip (where the
corruption of a minor offense occurred). Kovalevich contends
that because the victim was fifteen years old by the July
trip, he could not have been convicted of the class AA
We review post-conviction relief applications based on newly
discovered evidence as a motion for a new trial based on
newly discovered evidence under N.D.R.Crim.P. 33.
Greywind [v. State], [2004 ND 213');">2004 ND 213, ] ¶ 18, [689
N.W.2d 390]. The standard for granting a new trial is
"Under N.D.R.Crim.P. 33(a), the trial court may grant a
new trial to the defendant if required in the interests of
justice. To prevail on a motion for a new trial on the ground
of newly discovered evidence, the defendant must show (1) the
evidence was discovered after trial, (2) the failure to learn
about the evidence at the time of trial was not the result of
the defendant's lack of diligence, (3) the newly
discovered evidence is material to the issues at trial, and
(4) the weight and quality of the newly discovered evidence
would likely result in an acquittal. A motion for new trial
based upon newly discovered evidence rests within the
discretion of the trial court, and we will not reverse the
court's denial of the motion unless the court has abused
its discretion. If the newly discovered evidence is of such a
nature that it is not likely to be believed by the jury or to
change the results of the original trial, the court's
denial of the new trial motion is not an abuse of
Id. (quoting State v. Steinbach, 1998 ND
18, ¶ 22, 575 N.W.2d 193). A trial court abuses its
discretion if it acts arbitrarily, unreasonably,
unconscionably, or when its decision is not the product of a
rational mental process leading to a reasoned decision.