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.

Chase v. State

Supreme Court of North Dakota

August 22, 2019

Lorry Van Chase, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee

          Appeal from the District Court of Rolette County, Northeast Judicial District, the Honorable Michael P. Hurly, Judge.

          Lorry Van Chase, self-represented, Bismarck, ND, petitioner and appellant; submitted on brief.

          Ryan J. Thompson, State's Attorney, Devils Lake, ND, for respondent and appellee; submitted on brief.

          OPINION

          MCEVERS, JUSTICE.

         [¶1] Lorry Van Chase appeals from a district court order denying his requested relief. On appeal, Chase argues the district court erred by (1) considering his motion citing N.D.R.Civ.P. 60(b) as an application for post-conviction relief in order to deny it without a hearing, (2) denying his motion on grounds of misuse of process and res judicata, (3) finding no corroborating evidence was presented to support Chase's claim his attorney directed him to lie, (4) finding Chase is bound by the unethical actions of his former counsel, and (5) denying his motion without appointing counsel as requested. We affirm in part, reverse in part, and remand for further proceedings.

         I

         [¶2] In 2014, a jury convicted Chase of gross sexual imposition. He appealed to the North Dakota Supreme Court and the conviction was affirmed. State v. Chase, 2015 ND 234, ¶¶ 1, 13, 869 N.W.2d 733. In September 2016, Chase filed an application for post-conviction relief with the assistance of post-conviction counsel, alleging ineffective assistance of trial counsel. Specifically, Chase claimed he received ineffective assistance of counsel because his trial attorney: (1) failed to file a N.D.R.Ev. 412 motion; (2) failed to conduct pretrial investigation and discovery; (3) failed to develop critical witness testimony at trial; (4) failed to disclose a conflict of interest; and (5) instructed Chase to lie under oath. In November 2016, the district court denied Chase's requested relief. Chase appealed the court's order, and this Court reversed the order and remanded for an evidentiary hearing. Chase v. State, 2017 ND 192, ¶ 16, 899 N.W.2d 280. After an evidentiary hearing, the court denied Chase's application on December 21, 2017, making findings on each specific allegation of ineffective assistance of counsel. Chase appealed to the North Dakota Supreme Court and the order was summarily affirmed based on Chase's failure to supply a transcript of the evidentiary hearing. Chase v. State, 2018 ND 154, ¶ 1, 913 N.W.2d 774.

         [¶3] On November 13, 2018, Chase filed a N.D.R.Civ.P. 60(b) motion for relief from judgment, seeking relief from the district court's December 21, 2017 order denying post-conviction relief, alleging his post-conviction counsel: (1) provided ineffective assistance of counsel; (2) coached Chase to lie at the evidentiary hearing; (3) violated ethics rules; (4) violated the rules of appellate procedure; and (5) attempted to cover up his errors by advising Chase not to file a federal habeas corpus petition; and (6) attempted to convince Chase to lie in a N.D.R.Crim.P. 35 motion. Chase also applied for court-appointed counsel. On November 21, 2018, the State responded, asserting the affirmative defenses of res judicata and misuse of process. In December 2018, Chase's previously retained attorney moved to withdraw as counsel. In January 2019, the court denied relief on the N.D.R.Civ.P. 60(b) motion, finding the motion was actually an application for post-conviction relief and was therefore barred by res judicata and misuse of process. Chase appeals from the court's order.

         II

         [¶4] Central to the disposition of this appeal is whether Chase's N.D.R.Civ.P. 60(b) motion was properly classified as a motion, or instead, as the district court found, as an application for post-conviction relief. We have, on occasion, considered defendants' motions as applications for post-conviction relief when the defendant has already filed at least one prior application for post-conviction relief. See State v. Atkins, 2019 ND 145, ¶ 10, 928 N.W.2d 441 (holding defendant's motion to withdraw his guilty plea was actually his third application for post-conviction relief when he had previously filed two applications for post-conviction relief); State v. Gress, 2011 ND 233, ¶ 6, 807 N.W.2d 567 (holding defendant's motion to withdraw his guilty plea was actually his second application for post-conviction relief when he had already filed one application for post-conviction relief). We have encountered parties seeking to evade the boundaries of post-conviction proceedings by filing motions under the Rules of Criminal Procedure under the guise of motion practice:

We hold that a defendant may not avoid the procedures of the Uniform Postconviction Procedure Act by designating his motion under a rule of criminal procedure or by filing his motion in his criminal file, rather than filing as a new action for post-conviction relief.

Atkins, 2019 ND 145, ¶ 11, 928 N.W.2d 441 (relying on N.D.C.C. § 29-32.1-01(4)). Section 29-32.1-01(4), N.D.C.C, states:

A proceeding under this chapter is not a substitute for and does not affect any remedy incident to the prosecution in the trial court or direct review of the judgment of conviction or sentence in an appellate court. Except as otherwise provided in this chapter, a proceeding under this chapter replaces all other common law, statutory, or other remedies available before July 1, 1985, for collaterally challenging the validity of the judgment of conviction or sentence. It is to be used exclusively in place of them. A proceeding under this chapter is not available to provide relief for disciplinary measures, custodial treatment, or other violations of civil rights of a convicted person occurring after the imposition of sentence.

         Even reading his documents generously, Chase's only allegation conceivably appropriate for a N.D.R.Civ.P. 60(b) motion is his argument that his attorney's representation amounted to fraud under N.D.R.Civ.P. 60(b)(3). However, his claim that N.D.R.Civ.P. 60(b)(3) applies is meritless because ...


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.