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State v. Atkins

Supreme Court of North Dakota

May 24, 2019

State of North Dakota, Plaintiff and Appellee
v.
Cody Michael Atkins, Defendant and Appellant

          Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable John A. Thelen, Judge.

          Meredith H. Larson, Assistant State's Attorney, Grand Forks, ND, for plaintiff and appellee; submitted on brief.

          Scott O. Diamond, Fargo, ND, for defendant and appellant; submitted on brief.

          OPINION

          MCEVERS, JUSTICE.

         [¶1] Cody Michael Atkins appeals from a district court order denying his motion to withdraw his guilty plea and his motion for a new trial. Atkins argues the district court erred by (1) classifying his motion to withdraw his guilty plea as a post-conviction relief proceeding, and (2) finding he was procedurally barred from raising his N.D.R.Crim.P. 11 claims under misuse of process and res judicata. Atkins also argues the district court abused its discretion by finding he did not meet the burden required to show the existence of newly discovered evidence in his motion for a new trial. We affirm.

         I

         [¶2] In March 2015, Atkins pleaded guilty to gross sexual imposition. In June 2015, Atkins was sentenced to 20 years imprisonment with the North Dakota Department of Corrections, with five years suspended for a period of 10 years of supervised probation with credit for time served.

         [¶3] In July 2015, Atkins directly appealed the criminal judgment, seeking to withdraw his guilty plea, alleging (1) ineffective assistance of counsel, and (2) the district court's failure to substantially comply with N.D.R.Crim.P. 11, resulting in a manifest injustice. This Court affirmed the criminal judgment in State v. Atkins, 2016 ND 13, ¶ 10, 873 N.W.2d 676, and declined to address Atkins' argument that he should be permitted to withdraw his guilty plea, holding the issue was inappropriate for appeal because Atkins failed to move the district court to withdraw his guilty plea. Id. at ¶ 5. This Court addressed Atkins' ineffective assistance of counsel claim, holding there was insufficient evidence in the record on direct appeal to show Atkins' counsel was plainly defective and citing State v. Strutz, 2000 ND 22, ¶ 26, 606 N.W.2d 886, for the proposition: "When the record on direct appeal is inadequate to determine whether the defendant received ineffective assistance, the defendant may pursue the ineffectiveness claim at a post-conviction proceeding where an adequate record can be made." Atkins, at ¶ 9.

         [¶4] In March 2016, Atkins filed his first application for post-conviction relief. He sought relief on three grounds: (1) evidence not previously heard, (2) denial of effective assistance of counsel, and (3) conviction obtained by use of coerced confession. The district court dismissed the action. Atkins did not appeal the dismissal.

         [¶5] In September 2016, Atkins filed his second application for post-conviction relief, again alleging ineffective assistance of counsel. The State moved to dismiss the application, arguing Atkins failed to provide evidentiary support for his claim, and the district court granted the motion. Atkins appealed the court's order, and this Court affirmed, concluding Atkins was put to his proof when the State moved for summary dismissal and that he failed to present any competent evidence raising an issue of material fact. Atkins v. State, 2017 ND 290, ¶ 11, 904 N.W.2d 738.

         [¶6] In July 2017, Atkins filed a motion under N.D.R.Crim.P. 35(a), arguing he was entitled to relief because he was precluded from using the internet as part of his probationary conditions. The State opposed the motion, and the district court denied the motion, finding Atkins' motion was his "third post-conviction request for relief," and the condition of his probation limiting his internet access was a "valid, reasonable condition which does not violate Atkins' First Amendment rights."

         [¶7] In November 2017, Atkins filed a motion to dismiss the gross sexual imposition charge because the prosecution failed to seize, try, and prosecute in accordance with constitutional law. The State opposed the motion, arguing Atkins' motion was unsupported by facts or legal argument. The district court denied the motion.

         [¶8] In February 2018, Atkins moved to "vacate" his guilty plea. Atkins alleged he was misinformed by his attorney when deciding to plead guilty. In March 2018, Atkins moved for a new trial, alleging the existence of newly discovered evidence, including: (1) text messages; (2) a sexual assault kit; (3) the credibility of the State's witnesses; and (4) evidence tampering by the State. Atkins argued the newly discovered evidence was exculpatory. Atkins' court-appointed counsel later filed a supplemental brief on both motions further outlining his grounds for relief, adding the allegation that the district court failed to comply with N.D.R.Crim.P. 11 in support of his motion to withdraw his guilty plea. Atkins submitted 7 exhibits along with his motions including a print-out of the alleged newly discovered text messages and transcripts from the 2015 hearings. A hearing was held on the motions and Atkins testified. On October 31, 2018, the court issued an order classifying Atkins' motions as an action for post-conviction relief under this Court's decision in State v. Gress, 2011 ND 233, 807 N.W.2d 567, ...


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