from the District Court of McKenzie County, Northwest
Judicial District, the Honorable Benjamen J. Johnson, Judge.
O. Diamond, Fargo, ND, for petitioner and appellant.
Charles B. Neff, State's Attorney, Watford City, ND, for
respondent and appellee.
1] Roger Davies appeals from an order granting summary
disposition and the district court judgment dismissing his
application for post-conviction relief. We affirm in part,
reverse in part, and remand for further proceedings
consistent with this opinion.
2] In 2014, Roger Davies was charged with continuous sexual
abuse of a child. In November 2014, Davies pleaded guilty.
During the change of plea, the district court advised Davies
that as a part of the binding plea agreement, the court would
not sentence him to more than 15 years imprisonment. After a
presentence investigation, Davies was sentenced to a term of
15 years imprisonment and supervised probation for life.
3] In November 2015, Davies petitioned the district court
requesting his conviction be set aside. The petition was
treated as an application for post-conviction relief, denied
by the district court in December 2015, and affirmed on
appeal. Davies v. State, 2016 ND 178, 885 N.W.2d
4] In March 2017, Davies filed a pro se application for
post-conviction relief and a written request for a hearing.
Davies' application included several exhibits, including
a page from his risk assessment, two pages from the
sentencing transcript, two pages from his presentence
investigation, a victim impact statement, two pages of the
transcript from the change of plea hearing, and a copy of the
information charging him. Davies requested and received a
court-appointed attorney to represent him. Davies'
application alleged multiple legal errors leading to his
conviction. Davies also alleged he received ineffective
assistance of counsel on multiple grounds. Davies'
application also claimed judicial bias, deficiencies with the
charging document, an unduly harsh sentence, and
prosecutorial misconduct. Davies' application included a
verification stating he signed it as both the affiant and
petitioner, and his signature was notarized.
5] The State answered, moved for summary disposition, and
filed a brief pointing to citations in the record, arguing
Davies' application did not raise a genuine issue of
material fact. Davies requested a hearing on the application
for post-conviction relief through his attorney, and
personally responded to the State's motion for summary
disposition. In an affidavit dated September 30, 2017, Davies
complained that communications had broken down with his
attorney. On October 7, 2017, Davies' attorney filed an
affidavit resisting summary disposition and requesting an
6] On October 10, 2017, Davies filed a supplemental affidavit
alleging facts regarding the sufficiency of the change of
plea procedure. On October 23, 2017, Davies filed a second
supplemental affidavit alleging facts regarding his
attorney's failure to argue mitigating factors at the
sentencing hearing. In November 2017, Davies' attorney
moved to withdraw and the district court granted the motion.
7] In December 2017, the district court held a hearing on the
State's motion for summary disposition. At the hearing,
Davies elected to represent himself. The court inquired of
Davies whether he filed an affidavit in response to the
State's motion for summary disposition. Davies responded
that he did not file an affidavit. The State's attorney
also commented that he did not believe an affidavit was
filed. The court noted the affidavit Davies' attorney
filed on October 7, 2017, but did not give the attorney's
affidavit any evidentiary weight based on lack of personal
knowledge. The court proceeded with arguments on the
State's summary disposition motion. No additional
evidence was presented. The court stated on the record there
was no evidence presented in affidavit form by Davies. The
court granted the State's motion and summarily dismissed
the application for post-conviction relief.
8] In January 2018, the district court issued an order
granting summary disposition along with a judgment dismissing
Davies' application. Davies appeals the order and
9] Post-conviction relief proceedings are civil in nature and
are governed by the North Dakota Rules of Civil Procedure.
Burke v. State, 2012 ND 169, ¶ 10, 820 N.W.2d
349. This Court has held "the purpose of the Uniform
Postconviction Procedure Act, N.D.C.C. ch. 29-32.1, is to
'furnish a method to develop a complete record to
challenge a criminal conviction.'" Chisholm v.
State, 2014 ND 125, ¶ 15, 848 N.W.2d 703 (citations
omitted). Summary disposition in a post-conviction relief
proceeding is akin to summary judgment under N.D.R.Civ.P. 56.
State v. Bender, 1998 ND 72, ¶ 18, 576 N.W.2d
210. "An applicant has the burden of establishing
grounds for post-conviction relief." Chisholm,
at ¶ 8. "The party opposing the motion for summary
disposition is entitled to all reasonable inferences at the
preliminary stages of a post-conviction proceeding, and is
entitled to an evidentiary hearing if a reasonable inference
raises a genuine issue of material fact." Owens v.
State, 1998 ND 106, ¶ 13, 578 N.W.2d 542 (citations
omitted). "An applicant for post-conviction relief must
"set forth a concise statement of each ground for
relief, and specify the relief requested." N.D.C.C.
§ 29-32.1-04(1). Affidavits or other material supporting
the application may be attached, but are unnecessary."
N.D.C.C. § 29-32.1-04(2). Section 29-32.1-09(3),
N.D.C.C., governs summary disposition in post-conviction
relief proceedings, and provides:
The 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 law.
10] If the State carries its burden of showing no genuine
issue of material fact exists, the district court may
summarily dismiss the application for post-conviction relief.
"A genuine issue of material fact exists if reasonable
minds could draw different inferences and reach different
conclusions from the undisputed facts." Howard v.
State, 2015 ND 102, ¶ 10, 863 N.W.2d 203 (citations
omitted). "A motion for summary disposition puts the
burden on the defendant to provide competent evidence to
support his claim, and the defendant is only entitled to an
evidentiary hearing if that burden is met." Atkins
v. State, 2017 ND 290, ¶ 8, 904 N.W.2d 738 (citing
Steinbach v. State, 2003 ND 46, ¶ 17, 658
11] Davies argues the district court erred by making a
"factual finding" that he did not file an affidavit
in response to the State's motion for summary
disposition. Davies argues the record contains affidavits
made in response to the State's motion, and his verified
application also should have been considered evidence to
resist summary disposition.
12] We agree with Davies the district court erred by stating
that Davies did not file affidavits after the State's
motion for summary disposition; however, both the State and
Davies contributed to the court's erroneous statement.
13] When asked by the district court whether he filed any
affidavits, Davies not only failed to draw the court's
attention to the responsive affidavits he had filed, but he
affirmatively told the court no affidavits were filed. The
State contributed to the confusion by stating an incorrect
belief that no affidavit was filed. Although the court was
incorrect in stating that Davies had not filed responsive
affidavits, the record reflects the court considered his
first supplemental affidavit. The court's failure to
consider Davies' second supplemental affidavit makes no
difference here, because it largely reiterates the arguments
made in his verified application.
14] In regard to the verified application, we agree with
Davies that a verified application for post-conviction relief
may be treated as an affidavit to provide evidence to resist
summary disposition. See Howard, 2015 ND 102,
¶¶ 13-14, 863 N.W.2d 203 (discussing use of
verified application as evidence opposing summary
disposition). A verified application must present competent
admissible evidence and may not rely on the pleadings or
unsupported conclusory allegations to raise a genuine issue
of material fact. Id. at ¶ 10 (relying on
Ude v. State, 2009 ND 71, ¶ 8, 764 N.W.2d 419).
While many of Davies' statements in the application were
conclusory, Davies' application included some admissible
evidence in the form of his own statements based on personal
knowledge and specific references to the record. Therefore,
the district court erred by not considering Davies'
verified application as evidence. However, we will not set
aside a correct result merely because the court's
reasoning is incorrect, if the result would be the same under
the correct law and reasoning. Lindsey v. State,
2014 ND 174, ¶ 15, 852 ...