from the District Court of Burleigh County, South Central
Judicial District, the Honorable James S. Hill, Judge.
C. Kraus-Parr, Grand Forks, ND, for petitioner and appellant.
A. Lawyer, Assistant State's Attorney, Bismarck, ND, for
respondent and appellee.
OPINION OF THE COURT
Garron Gonzalez appeals from an order summarily denying his
application for post-conviction relief and an order denying
his motion for reconsideration and to conduct discovery.
Gonzalez argues the district court abused its discretion by
denying his application for post-conviction relief, his
motion for reconsideration and his motion for leave to
conduct discovery. We reverse and remand, concluding the
court erred by summarily denying his application sua sponte
and the error was not rectified by the district court's
order on reconsideration.
In 2004, Garron Gonzalez pleaded guilty to two counts of
gross sexual imposition and was sentenced. On February 27,
2018, after six prior applications for post-conviction
relief, Gonzalez, acting pro se, filed his seventh
application for post-conviction relief alleging the existence
of newly discovered evidence. In his application, Gonzalez
claimed newly discovered DNA analysis results were available
at the time of the preliminary hearing on the gross sexual
imposition charge even though the detective testifying said
he had not received the results. Gonzalez also claimed the
State withheld a related police report of gross sexual
imposition filed by the sister of one of the State's
witnesses. Finally, Gonzalez claims the State withheld the
results of the physical examination of the victim in the
case, the results of which he claims would not have supported
the accusations. Gonzalez argues that had he known about
these three pieces of evidence, he would have elected to
proceed to trial instead of pleading guilty. He attached no
supporting affidavits or documentation to supplement his most
On February 28, 2018, the State answered, raising the
affirmative defenses of statute of limitations, laches,
misuse of process, and res judicata. Arguing misuse of
process, the State noted Gonzalez's application was
barred because he failed to raise the claims in any of his
six prior applications for post-conviction relief. The State
did not move for summary disposition.
On March 13, 2018, without a response from Gonzalez, the
district court sua sponte summarily denied his
application, finding his seventh application for
post-conviction relief was barred as a misuse of process
under N.D.C.C. § 29-32.1-12(2).
In its order denying Gonzalez's application, the district
Upon review of the latest petition, and in light of the
procedural history of the multiple petitions filed by
Gonzalez, the Court concludes that Petitioner Gonzalez had
opportunities to bring the matter set forth in his
seventh petition before the Court but chose not to.
The Court concludes that Gonzalez should have brought up
these issues at trial or during other proceedings before this
date, but did not do so, and the Court therefore concludes
that this present (and seventh) application is
barred as a misuse of process.
Gonzalez applied for court-appointed counsel after the
State's answer, but was not appointed an attorney until
March 26, 2018. After Gonzalez was appointed an attorney, he
moved the district court to reconsider the denial of his
application for post-conviction relief, arguing the results
of the DNA analysis would have been material to the probable
cause determination at the preliminary hearing and to his
decision to change his plea. Gonzalez attached a facsimile of
the allegedly withheld DNA analysis results and a portion of
the transcript from the preliminary hearing as exhibits to
his motion to reconsider. He requested the court hold a
hearing on the application to address its merits. He also
moved the court for leave to conduct discovery.
The district court denied the motion for reconsideration,
noting the motion was untimely, but basing its ruling on the
substance of the motion, holding the allegedly newly
discovered evidence would not have been material to the
finding of probable cause at the preliminary hearing. The
court did not address whether the DNA analysis would have
been material to Gonzalez's decision ...