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Gonzalez v. State

Supreme Court of North Dakota

February 21, 2019

Garron Gonzalez, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee

          Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable James S. Hill, Judge.

          Kiara C. Kraus-Parr, Grand Forks, ND, for petitioner and appellant.

          Julie A. Lawyer, Assistant State's Attorney, Bismarck, ND, for respondent and appellee.

          OPINION OF THE COURT

          McEvers, Justice.

         [¶1] 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.

         I

         [¶2] 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 recent application.

         [¶3] 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.

         [¶4] 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).

         [¶5] In its order denying Gonzalez's application, the district court noted:

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.

         [¶6] 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.

         [¶7] 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 ...


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