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Morales v. State

Supreme Court of North Dakota

May 16, 2019

Edward Reynaldo Morales, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee

          Appeal from the District Court of Williams County, Northwest Judicial District, the Honorable Joshua B. Rustad, Judge.

          Matthew J. Arthurs, Bismarck, N.D., for petitioner and appellant.

          Nathan K. Madden, Assistant State's Attorney, Williston, N.D., for respondent and appellee.

          OPINION

          TUFTE, JUSTICE.

         [¶1] Edward Morales appeals from a district court order summarily dismissing his application for post-conviction relief. Morales conditionally pled guilty to causing his wife's death while operating a motor vehicle while under the influence of alcohol in violation of N.D.C.C. § 39-08-01.2(1). He applied for post-conviction relief, alleging ineffective assistance of counsel. The district court summarily dismissed the application, reasoning that Morales had raised only conclusory allegations and generic claims. We affirm the district court's order.

         I

         [¶2] Morales was driving a mini-van in an RV park when he collided with a goose-neck trailer. His wife, a passenger in the mini-van, died as a result of this collision. A blood test indicated Morales had a 0.209 percent blood alcohol concentration. Morales was charged with a class A felony of causing a death while operating a motor vehicle while under the influence of alcohol in violation of N.D.C.C. § 39-08-01.2(1). Nicole Foster was appointed as his attorney. Before trial the State learned Morales had been convicted in Florida of causing a death while driving under the influence, which would require a ten year mandatory minimum sentence on conviction for the pending charge. Morales conditionally pled guilty and was sentenced to ten years' imprisonment, with three years to be suspended for three years after his release. The plea agreement preserved Morales' right to appeal a suppression issue and avoided a mandatory minimum sentence of ten years in prison followed by probation subject to a mandatory 24/7 testing condition. Morales unsuccessfully appealed his criminal judgment. See State v. Morales, 2015 ND 230, 869 N.W.2d 417.

         [¶3] Morales filed a pro se post-conviction relief application. The district court appointed counsel for Morales. Through counsel, Morales filed an amended application and attached his affidavit. The State moved to dismiss the application. Morales responded to the State's motion to dismiss but did not provide further evidence. In support of his opposition to summary dismissal, he referenced his affidavit, the plea hearing transcript, and the disciplinary actions and opinions against Foster. The district court summarily granted the State's motion to dismiss the application, concluding Morales had raised only conclusory allegations insufficient to defeat the motion for summary dismissal. Morales appeals.

         II

         [¶4] "The issue of ineffective assistance of counsel is a mixed question of law and fact and is fully reviewable by this Court." Brewer v. State, 2019 ND 69, ¶ 5, 924 N.W.2d 87. "[C]laims of ineffective assistance of counsel are ordinarily unsuited to summary disposition without an evidentiary hearing." Horvath v. State, 2018 ND 24, ¶ 8, 905 N.W.2d 734. "A district court may summarily dismiss an application for post-conviction relief if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Stein v. State, 2018 ND 264, ¶ 5, 920 N.W.2d 477. We review an appeal from a summary dismissal of post-conviction relief under the same analysis as a summary judgment, id., particularly when "matters outside the pleadings are considered." Horvath, at ¶ 6.

The party opposing a motion for summary dismissal is entitled to all reasonable inferences to be drawn from the evidence and is entitled to an evidentiary hearing if a reasonable inference raises a genuine issue of material fact. For summary judgment purposes, the evidentiary assertions of the party opposing the motion are assumed to be true.

Stein, at ¶ 5 (internal citation omitted). A "genuine issue of material fact" is present if "reasonable minds could draw different inferences and reach different conclusions from the undisputed facts." Leavitt v. State, 2017 ND 173, ¶ 5, 898 N.W.2d 435. But, summary dismissal is proper only after applicants are "put to their proof, and . . . then fail[] to provide some evidentiary support for their allegations." Horvath, at ¶ 8.

         [¶5] The State "has the initial burden of showing an absence of a genuine issue of material fact." Klose v. State, 2008 ND 143, ¶ 9, 752 N.W.2d 192. The State can discharge this burden by showing an absence of evidence to support the applicant's claim. Id. The State must first put the applicant to its proof by showing, "based on reasonable inferences drawn from undisputed facts, that reasonable minds could reach but one conclusion regarding the allegations." Horvath, 2018 ND 24, ¶ 8, 905 N.W.2d 734. The State put Morales to his proof by its motion to dismiss. Once the State put the petitioner to his proof by moving for summary dismissal and showing it is "entitled to a judgment as a matter of law," Horvath, a t ¶ 8; Lindsey v. State, 2014 ND 174, ¶ 15, 852 N.W.2d 383; Klose, at ¶ 9, the burden shifted to the applicant, who must "provide some competent evidence to support his claim." Horvath, at ¶ 8. However, an applicant cannot "merely rely on the pleadings or on unsupported, conclusory allegations, but must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact." Leavitt, 2017 ND 173, ¶ 5, 898 N.W.2d 435. If the applicant succeeds in providing competent evidence, he is entitled to an evidentiary hearing. Horvath, at ¶ 8.

         [¶6] When arguing ineffective assistance of counsel, the applicant has the burden to establish grounds for relief. Brewer, 2019 ND 69, ¶ 4, 924 N.W.2d 87. The applicant must meet both prongs of the Strickland test. Id. a t ¶ 5; Booth v. State, 2017 ND 97, ¶ 7, 893 N.W.2d 186; Bahtiraj v. State, 2013 ND 240, ¶ 9, 840 N.W.2d 605; see Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). Prong one is to "show that counsel's representation fell below an objective standard of reasonableness," and prong two is to "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Brewer, at ¶ 5 (quoting Strickland, at 688, 694). The showings "must specify how and where counsel was incompetent and the ...


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