Kratz v. State , 2022 ND 188 ( 2022 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
NOVEMBER 10, 2022
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 188Ryan Walter Kratz, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee
No. 20220087
Appeal from the District Court of Stutsman County, Southeast Judicial
District, the Honorable Mark T. Blumer, Judge.
AFFIRMED.
Opinion of the Court by Jensen, Chief Justice, in which Justices VandeWalle,
McEvers, and Tufte joined. Justice Crothers filed an opinion concurring
specially.
Kiara C. Kraus-Parr, Grand Forks, ND, for petitioner and appellant.
Frederick R. Fremgen, State’s Attorney, Jamestown, ND, for respondent and
appellee.
Kratz v. State
No. 20220087
Jensen, Chief Justice.
[¶1] Ryan Kratz appeals from a judgment after the district court denied his
motion seeking to correct an illegal sentence and dismissed his application for
post-conviction relief. The court held Kratz had failed to sufficiently support
his application and found it would not be equitable for the application to be
heard pursuant to the fugitive disentitlement doctrine. We affirm the dismissal
of the application for post-conviction relief.
I
[¶2] In 2018 Kratz pled guilty to terrorizing, a class C felony, and was
sentenced to one year and one day of incarceration. The sentence required him
to serve 20 days of the incarceration with the balance suspended for 18 months
during which time Kratz was ordered to participate in supervised probation.
[¶3] In 2019 the State petitioned to revoke Kratz’s probation. In November
2020 Kratz admitted to some of the petition’s allegations, the district court
revoked his probation, and Kratz was resentenced. The new sentence imposed
18 months of incarceration and Kratz was given credit for 23 days of prior
incarceration. Following his resentencing, Kratz failed to report to the
correctional center to serve the period of incarceration. The court issued a
warrant for his arrest, which remains active.
[¶4] Kratz appealed the revocation of his probation. See State v. Kratz, Dist.
Ct. No. 47-2018-CR-00454 (S. Ct. No. 20200334). The State moved to dismiss
the appeal asserting it would not be equitable for Kratz to proceed while still
a fugitive, citing to the fugitive disentitlement doctrine. Before this Court ruled
on the State’s motion to dismiss, Kratz voluntarily dismissed his appeal.
[¶5] In March 2021 Kratz filed an application for post-conviction relief
asserting two claims. First, Kratz claimed he had received ineffective
assistance of counsel during his probation revocation hearing when, after the
district court imposed an illegal sentence following the revocation of his
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probation, his attorney failed to preserve the issue of the illegal sentence.
Second, he claimed his guilty plea was not voluntary because he was not told,
upon revocation of his probation, he could receive a sentence greater than the
suspended sentence under this Court’s pre-Dubois interpretation of N.D.C.C.
§ 12.1-32-07(6). See Dubois v. State, 2021 ND 153, 963 N.W.2d 543.
[¶6] In April 2021 the State moved to dismiss the post-conviction relief
proceedings based on misuse of process and on the fugitive disentitlement
doctrine. The State also moved for summary dismissal of Kratz’s application.
In late April 2021 Kratz filed responses opposing the State’s motions to dismiss
and for summary dismissal and also requested the district court to abstain
from holding an evidentiary hearing until after this Court’s then-pending
decision in the Dubois case.
[¶7] Subsequent to Kratz’s probation revocation and resentencing and after
he had filed his post-conviction relief application, this Court issued its decision
in Dubois, 2021 ND 153. Our decision in Dubois held that N.D.C.C. § 12.1-32-
07(6) unambiguously restrained a district court’s authority in probation
revocation cases to the imposition of the sentence initially imposed but
suspended. We note the legislature has amended N.D.C.C. § 12.1-32-07(6) to
remove that restraint. See 2021 N.D. Sess. Laws ch. 111, § 1 (effective August
1, 2021).
[¶8] In September 2021 Kratz moved for “summary judgment” in his post-
conviction relief case arguing the district court, in resentencing him after
revoking his probation, had imposed an illegal sentence under this Court’s
decision in Dubois, 2021 ND 153. The State opposed his motion while conceding
the resentencing following the revocation of Kratz’s probation imposed an
illegal sentence. In November 2021 the district court held a hearing on his
motion. Kratz was absent from the hearing and unavailable to give sworn
support for his allegations.
[¶9] The district court resolved the pending motions by denying Kratz’s
motion for summary judgment, determining Kratz had failed to adequately
support his claims, and subsequently dismissing Kratz’s application due to
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fugitive disentitlement. In applying the fugitive disentitlement doctrine, the
court found Kratz remains a fugitive from justice and it was not equitable to
allow Kratz to proceed with his application for post-conviction relief while he
continued to be a fugitive.
II
[¶10] Kratz argues the district court erred in dismissing his application for
post-conviction relief by finding he had failed to provide sufficient support in
his pleadings to prevail on his claims. He also argues the court erred in denying
his motion for summary judgment seeking to correct the illegal sentence. Kratz
argues his sentence following the revocation of probation is illegal under our
decision in Dubois, the State concedes the sentence is illegal, and the district
court was compelled to correct the illegal sentence.
A
[¶11] Kratz asserted the following two specific grounds for relief in his
application for post-conviction relief:
a. Mr. Kratz did not receive effective assistance of counsel
when his attorney, Scott Sandness, did not preserve the issue
of an illegal sentence during his probation revocation
hearing.
b. Mr. Kratz’s plea of guilty was not made voluntarily because
he did not understand the consequences of the plea. Mr.
Kratz was not represented by counsel and was not informed
by the Court that he could be resentenced to up to five years
if he plead [sic] guilty upon a finding that he violated his
probation.
Although permissible under N.D.C.C. § 29-32.1-01(1)(a) and (d), Kratz’s
application did not assert the sentence imposed following the revocation was
imposed in violation of the law or not authorized by law. The first assertion is
that his counsel was ineffective during the revocation proceedings and the
second assertion is that his plea of guilty was not made voluntarily. Kratz did
not move to amend his post-conviction relief application to directly attack his
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sentence following the revocation of his probation, and he has not filed a
request for relief to correct the illegal sentence in State v. Kratz, No. 47-2018-
CR-00454, the underlying criminal case. In September 2021 he moved for
“summary judgment” on the application, asserting what is a new claim for
relief, not previously pled within his application, based on this Court’s decision
in Dubois, 2021 ND 153.
[¶12] Our review of a claim of ineffective assistance of counsel is well
established: “To prevail on a claim for ineffective assistance of counsel, the
applicant must show: (1) counsel’s representation fell below an objective
standard of reasonableness, and (2) there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Thomas v. State, 2021 ND 173, ¶ 7, 964 N.W.2d 739 (citing
Strickland v. Washington, 466 U.S. 668 (1984)). “The question of ineffective
assistance of counsel is a mixed question of law and fact and is fully reviewable
on appeal.” Thomas, at ¶ 7.
[¶13] At the time Kratz pled guilty and at the time of his revocation hearing,
this Court had not yet issued its opinion in Dubois holding that N.D.C.C. §
12.1-32-07(6) unambiguously restrained a district court’s authority in
probation revocation cases to the imposition of the sentence initially imposed
but suspended. To the contrary, before our decision in Dubois, this Court had
“long held that the current provisions of N.D.C.C. § 12.1-32-07(6) allow a
district court to impose any sentence available at the initial time of
sentencing.” State v. Dubois, 2019 ND 284, ¶ 9, 936 N.W.2d 380.
[¶14] Kratz’s first claim for post-conviction relief is an assertion his revocation
counsel should have prospectively anticipated this Court’s decision in Dubois
by asserting the sentence imposed after his probation was revoked was illegal.
However, this Court has previously recognized “[c]ounsel’s failure to raise a
novel or groundbreaking legal claim does not constitute ineffective assistance
of counsel.” Dubois, 2021 ND 153, ¶ 8 (citing Yoney v. State, 2021 ND 132, ¶
12, 962 N.W.2d 617 (counsel’s submission of jury instruction that was
consistent with precedent was not ineffective assistance)); accord Ragland v.
United States, 756 F.3d 597, 601 (8th Cir. 2014) (counsel’s failure to raise a
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“novel argument” did not render his performance constitutionally ineffective);
Brown v. United States, 311 F.3d 875, 878 (8th Cir. 2002) (counsel’s decision to
not raise issue unsupported by precedent did not constitute ineffective
assistance). Therefore, the district court did not err in finding Kratz failed to
sufficiently support his claim for ineffective assistance of counsel when that
claim was premised on his counsel’s failure to argue an interpretation of
N.D.C.C. § 12.1-32-07(6) not yet recognized by this Court and contrary to its
prior precedent.
[¶15] Kratz’s second claim for post-conviction relief was a request to withdraw
his guilty plea asserting he was not made aware at the time of his guilty plea
that he could be resentenced to a period of incarceration greater than the
suspended sentence. Like his first claim, Kratz did not seek relief from an
illegal sentence under N.D.C.C. § 29-32.1-01(1)(a) and (d) in the post-conviction
relief application. In its order denying Kratz summary disposition, the district
court held Kratz had provided no support for his claim of an involuntary guilty
plea as the basis for a withdrawal of his guilty plea. The court also noted that
his application for post-conviction relief had not been verified by Kratz or
anyone else. The court explained:
The court has been unable to find and neither party has pointed to
an affidavit that was supplied in support of Kratz’s allegations in
his application for post[-]conviction relief. Kratz did not appear in
person or by reliable electronic means at the hearing on the motion
for summary judgment and was therefore not able to clarify or
provide any sworn support for his application.
[¶16] Almost three months later, in its subsequent order granting the State’s
motion to dismiss due to fugitive disentitlement, the district court again found
Kratz had failed in the intervening time to provide any evidentiary support for
his application’s claims and failed to file any supporting affidavit and that his
absence hampered the court’s ability to fairly adjudicate his claims. Moreover,
we note that two days before the order dismissing on fugitive disentitlement,
Kratz filed an “unsworn declaration,” which, despite the court’s prior order
denying summary disposition, fails to provide any factual support for his
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application’s claims and “contingent[ly]” waives the two claims if the illegal
sentence is resolved.
III
[¶17] Because Kratz failed to provide any evidentiary support for his
application, we cannot conclude the district court abused its discretion in
dismissing the two specific claims raised in the application. See Ude v. State,
2009 ND 71, ¶ 15, 764 N.W.2d 419 (“because Ude did not submit any testimony,
affidavits, or supporting evidence of ineffective assistance of counsel, the
district court did not err in denying Ude’s application for post-conviction
relief.”). We affirm the dismissal of Kratz’s petition for post-conviction relief.
Having concluded Kratz failed to provide sufficient evidentiary support for the
application, it is unnecessary to determine whether or not the district court
properly applied the fugitive disentitlement doctrine.
[¶18] Kratz failed to adequately support his assertions that his probation
revocation counsel was ineffective and that his plea was not voluntarily made.
The judgment dismissing his application for post-conviction relief is affirmed.
[¶19] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Lisa Fair McEvers
Jerod E. Tufte
Crothers, Justice, specially concurring.
[¶20] I fully agree with the majority opinion. Application of the fugitive
disentitlement doctrine or the fugitive dismissal rule also could be dispositive
in this appeal.
[¶21] The district court used the rule to dismiss the underlying postconviction
relief proceeding. Majority opinion, ¶ 9. Both Kratz and the majority only
mention the rule in passing. The entirety of Kratz’s argument was:
The court dismissed the petition for post-conviction relief
under the fugitive dismissal rule, rather than simply fix the illegal
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sentence[.] There is no precedent to dismiss the case under that
doctrine in a post-conviction case in this State or justification to do
so when the issue is one of correcting an illegal sentence. To
dismiss this case without fixing the illegal sentence was an abuse
of the court’s discretion, which requires this Court’s reversal and
remand to correct.
The majority concludes, “it is unnecessary to determine whether or not the
district court properly applied the fugitive disentitlement doctrine.” Majority
opinion, ¶ 17. See id. at ¶¶ 1 and 9.
[¶22] This Court only decides issues that are “thoroughly briefed and argued,”
and “a party waives an issue by not providing adequate supporting argument.”
Weeks v. N.D. Workforce Safety & Ins. Fund, 2011 ND 188, ¶ 9, 803 N.W.2d 601(quoting Olson v. Workforce Safety & Ins., 2008 ND 59, ¶ 26, 747 N.W.2d 71).
Here, Kratz did not argue on appeal that the district court erred by dismissing
his postconviction relief claims based on the fugitive disentitlement doctrine.
While I have reservations about whether the fugitive disentitlement doctrine
is available for use in the district court, that issue has not been presented to
us for decision. Therefore, because Kratz did not brief or argue that the district
court erred in denying him relief under the fugitive disentitlement doctrine,
this case could be affirmed on that basis alone.
[¶23] Daniel J. Crothers
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