Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kovalevich v. State

Supreme Court of North Dakota

August 5, 2019

Sean Michael Kovalevich, 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 John A. Thelen, Judge.

          Sean M. Kovalevich, self-represented, Bismarck, ND, petitioner and appellant; submitted on brief.

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

          OPINION

          VandeWalle, Chief Justice.

         [¶1] Sean Kovalevich appealed from district court orders summarily dismissing: (1) a motion for relief from an order denying an application for post-conviction relief, and (2) an application for post-conviction relief on the grounds of newly discovered evidence. The court concluded Kovalevich could have raised the arguments presented in his motion and application in earlier proceedings. We affirm.

         I

         [¶2] In October 2013, a jury found Kovalevich guilty of two counts of gross sexual imposition and one count of corruption of a minor. The conviction resulted from sexual acts occurring in 2012 at the Canad Inn in Grand Forks. Kovalevich was sentenced to 30 years in prison and 10 years of supervised probation. Kovalevich appealed and his conviction was affirmed on appeal. State v. Kovalevich, 2015 ND 11, 858 N.W.2d 625.

         [¶3] In November 2015 and April 2017, Kovalevich filed applications for post-conviction relief. The applications were denied and affirmed on appeal. Kovalevich v. State, 2017 ND 40, 891 N.W.2d 778; Kovalevich v. State, 2018 ND 184, 915 N.W.2d 644.

         [¶4] In September 2018, Kovalevich filed a motion for relief under N.D.R.Civ.P. 60(b) relating to the denial of his April 2017 application for post-conviction relief. He alleged the prosecuting attorney engaged in misrepresentation and misconduct in the post-conviction proceeding. He claimed the attorney assisted a BCI agent in falsely testifying at the evidentiary hearing.

         [¶5] In November 2018, Kovalevich filed another application for post-conviction relief. He argued newly discovered evidence, specifically, information contained in Canad Inn receipts from February and August 2012, showed he did not engage in the charged conduct. His application also claimed newly discovered evidence showed the affidavit supporting the issuance of a search warrant for his residence contained false and intentionally misleading statements, and the BCI lacked jurisdiction to investigate him. In response, the State argued Kovalevich was relitigating claims he raised in earlier proceedings and sought summary dismissal of Kovalevich's motion for relief and application for post-conviction relief.

         [¶6] The district court summarily dismissed both the motion and the November 2018 application for post-conviction relief. The court treated Kovalevich's Rule 60(b) motion as an application for post-conviction relief and concluded Kovalevich was attempting to relitigate issues he raised in earlier proceedings. With regard to the application for post-conviction relief, the court held the February and August 2012 Canad Inn receipts could have been presented in earlier proceedings, and the weight and quality of the additional evidence Kovalevich presented would not likely result in Kovalevich's acquittal.

         II

         [¶7] Post-conviction relief is governed by N.D.C.C. ch. 29-32.1. "Post-conviction relief proceedings are civil in nature and governed by the North Dakota Rules of Civil Procedure." Wacht v. State, 2015 ND 154, ¶ 6, 864 N.W.2d 740 (quoting Haag v. State, 2012 ND 241, ¶ 4, 823 N.W.2d 749); see also Burden v. State, 2019 ND 178, ¶ 10, (stating the rules of civil procedure apply to the extent they are not inconsistent with statutory requirements for post-conviction proceedings). On appeal from a post-conviction relief proceeding, questions of law are fully reviewable. Wacht, at ¶ 6.

         [¶8] A district court may summarily dismiss an application for post-conviction relief "if the application, pleadings, any previous proceeding, discovery, or other matters of record show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." N.D.C.C. § 29-32.1-09(3). We review an appeal from summary dismissal of post-conviction relief as we would review an appeal from a summary judgment. Wacht, 2015 ND 154, ¶ 6, 864 N.W.2d 740. The party resisting the motion for summary dismissal is entitled to all reasonable ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.