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Davies v. State

Supreme Court of North Dakota

September 13, 2018

Roger Lee Davies, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee

          Appeal from the District Court of McKenzie County, Northwest Judicial District, the Honorable Benjamen J. Johnson, Judge.

          Scott O. Diamond, Fargo, ND, for petitioner and appellant.

          Charles B. Neff, State's Attorney, Watford City, ND, for respondent and appellee.

          OPINION

          McEvers, Justice.

         [¶ 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.

         I

         [¶ 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 579.

         [¶ 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 evidentiary hearing.

         [¶ 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 judgment.

         II

         [¶ 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 N.W.2d 355).

         III

         [¶ 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 ...


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