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Burden v. State

Supreme Court of North Dakota

July 3, 2019

James Ryan Burden, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee

          Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Lolita G. Hartl Romanick, Judge.

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

          Thomas A. Gehrz (argued), and Meredith H. Larson (on brief), Grand Forks County State's Attorney Office, Grand Forks, ND, for respondent and appellee.

          OPINION

          VandeWalle, Chief Justice.

         [¶1] James Burden appealed from orders summarily dismissing his application for post-conviction relief and denying his motion for relief from that dismissal. We conclude that the district court applied the wrong standard in dismissing Burden's application on the pleadings and that he was not given the required time to respond to a dismissal by summary judgment. We reverse and remand for further proceedings.

         I

         [¶2] In March 2017, Burden, with assistance of counsel, pled guilty to contributing to the deprivation of a minor and also admitted the allegations in a separate petition to revoke his probation for a 2013 conviction for simple assault. The district court sentenced Burden to a term of incarceration on the criminal charge and on the probation revocation. After a March 2017 hearing at which Burden was given an opportunity to address the court, the court refused to reconsider his sentence. In September 2017, the court denied Burden's motion to withdraw his guilty plea and his admission to the probation violation.

         [¶3] In November 2017, Burden filed a self-represented application for post-conviction relief, claiming ineffective assistance of counsel relating to the guilty plea and to the probation revocation. In November 2017, the State answered, generally "den[ying] each and every allegation contained therein," and "put[ting Burden] to his proof.” The State's answer asserted the affirmative defense of misuse of process and "move[d] for summary disposition" on Burden's claim for post-conviction relief under N.D.C.C. § 29-32.1-01(1)(e), which provides that "evidence, not previously presented and heard, exists requiring vacation of the conviction or sentence in the interest of justice."

         [¶4] Burden was appointed counsel, and in February 2018, he filed an amended application for post-conviction relief, again claiming ineffective assistance of counsel. Burden alleged his trial counsel failed to adequately prepare a defense and review discovery documents with him in the criminal case and failed to obtain and review discovery in the probation revocation. Burden also alleged his counsel failed to timely and adequately prepare for trial, only worked for a plea deal in the criminal case, and failed to apprise him of delays and obtained continuances without notifying him. Burden further alleged his counsel failed to timely notify him of the details of the plea agreement and failed to adequately investigate false statements in an affidavit for an arrest warrant. Burden alleged he was prejudiced by counsel's representation and, but for counsel's errors, he would not have pled guilty and would have insisted on going to trial. The State filed an amended answer, generally denying Burden's allegations and seeking to put him to his proof on each and every allegation not admitted.

         [¶5] Burden requested a hearing on his application, and the district court scheduled a hearing for July 23, 2018. On July 5, 2018, the State moved for summary dismissal of Burden's application, alleging there were no genuine issues of material fact. The State argued Burden had been put to his proof and failed to provide any competent admissible evidence to raise an issue of material fact supporting his conclusory allegation of ineffective assistance of counsel. The State's notice of motion under N.D.R.Ct. 3.2 said oral argument was not requested and the motion would be decided on the briefs unless oral argument was timely requested.

         [¶6] On July 23, 2018, the district court granted the State's motion for summary dismissal without an evidentiary hearing, stating Burden "failed to respond to the motion," and "failed to provide competent, admissible evidence to support his application."

         [¶7] Burden moved for relief from the summary dismissal under N.D.R.Civ.P. 60 and submitted an accompanying affidavit. Burden's affidavit described sporadic meetings with counsel to discuss a defense to the criminal charge and alleged false and misleading statements in an affidavit of probable cause for the criminal charge. Burden's affidavit also said the allegations about two missed probation meetings were "unjustified" because he had made up both meetings. Burden claimed he was apprised of the details of the plea agreement only minutes before signing the agreement and going into court and his counsel used undue influence to push for acceptance of the plea deal without giving him time to think about it or to talk to his family. While Burden's motion for relief from the summary dismissal was pending, he appealed the summary dismissal to this Court and we issued a limited remand to the district court for disposition of his pending motion.

         [¶8] On remand, the district court denied Burden's motion for relief from the summary dismissal, stating "he failed to provide competent admissible evidence for over eight months after being put on notice of the State's request for summary dismissal and being 'placed on his proof.'" The court explained the State's November 2017answer was sufficient to put Burden on notice to provide competent admissible evidence to avoid summary dismissal and he failed to do so before the State's July 5, 2018motion for summary dismissal. The court also explained the State's motion for summary dismissal did not rely on matters outside the pleadings and the 14-day time period for response in N.D.R.Ct. 3.2(a)(2) applied to the motion. The court said Burden failed to respond within 14 days after the State filed its motion for summary dismissal and failed for eight months to provide any competent admissible evidence in response to ...


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