from the District Court of Cass County, East Central Judicial
District, the Honorable John C. Irby, Judge.
E. Hines, Assistant State's Attorney, Fargo, ND, for
plaintiff and appellee; submitted on brief.
James Vogt, self-represented, Jamestown, ND, defendant and
appellant; submitted on brief.
VandeWalle, Chief Justice.
Jason James Vogt appealed from a district court's orders
summarily dismissing his motion to vacate judgment and
withdraw guilty plea. Vogt argues the district court erred by
denying his motion before allowing him time to respond
pursuant to N.D.R.Ct. 3.2(a)(2). We reverse and remand for
In 2014, Vogt pleaded guilty to one felony count of gross
sexual imposition and was sentenced. In 2015, Vogt applied
for post-conviction relief alleging ineffective assistance of
counsel. The district court denied Vogt's application.
Vogt appealed and this Court affirmed. Vogt v.
State, 2016 ND 48, 876 N.W.2d 485. In 2017, Vogt filed a
second application for post-conviction relief. The
application was denied, and Vogt did not appeal.
On March 7, 2019, Vogt filed a N.D.R.Ct. 3.2 motion to vacate
judgment and withdraw guilty plea under N.D.R.Crim.P. 11(d).
Vogt alleged: (1) his confession was coerced; (2) his
attorney misinformed him of the sentence he would receive if
he pleaded guilty; and (3) his plea was not entered into
voluntarily, knowingly, or intelligently.
On March 11, 2019, the State answered. Without explicitly
asserting them, the State raised the affirmative defenses of
res judicata and misuse of process. The State argued that
Vogt's claims were barred because the basis for his
claims had already been litigated in his previous
applications for post-conviction relief. The State did not
move for summary disposition.
On March 13, 2019, without a response from Vogt, the district
court issued its order denying Vogt's motion. The court
found that Vogt entered a knowing and voluntary plea. The
court also determined that Vogt's motion argued
ineffective assistance of counsel, which was the basis for
his previous applications for post-conviction relief.
On March 25, 2019, Vogt filed a reply brief responding to the
State's arguments. On the same day, the district court
issued an "Order Confirming Order Denying
Defendant's Motion to Withdraw Guilty Plea AND Order
Vogt moved to vacate the criminal judgment and withdraw his
guilty plea under N.D.R.Crim.P. 11(d). Vogt's motion was
not titled as an application for post-conviction relief, but
he has previously filed two post-conviction relief
applications. When a defendant has previously filed an
application for post-conviction relief, a subsequent motion
filed under the Rules of Criminal Procedure will be treated
as an application for post-conviction relief when the motion
"seek[s] to evade the boundaries of post-conviction
proceedings." Chase v. State, 2019 ND 214,
¶ 4; State v. Atkins, 2019 ND 145, ¶ 11,
928 N.W.2d 441; State v. Gress, 2011 ND 233, ¶