State v. Atkins , 2019 ND 145 ( 2019 )


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  •  Corrected Opinion Page Filed 5/28/19 by Clerk of Supreme Court
    Filed 5/24/19 by Clerk of Supreme Court
    IN THE SUPREME COURT
    STATE OF NORTH DAKOTA
    
    2019 ND 145
    State of North Dakota,                                       Plaintiff and Appellee
    v.
    Cody Michael Atkins,                                      Defendant and Appellant
    No. 20180411
    Appeal from the District Court of Grand Forks County, Northeast Central
    Judicial District, the Honorable John A. Thelen, Judge.
    AFFIRMED.
    Opinion of the Court by McEvers, Justice.
    Meredith H. Larson, Assistant State’s Attorney, Grand Forks, ND, for plaintiff
    and appellee; submitted on brief.
    Scott O. Diamond, Fargo, ND, for defendant and appellant; submitted on brief.
    State v. Atkins
    No. 20180411
    McEvers, Justice.
    [¶1]   Cody Michael Atkins appeals from a district court order denying his motion
    to withdraw his guilty plea and his motion for a new trial. Atkins argues the district
    court erred by (1) classifying his motion to withdraw his guilty plea as a post-
    conviction relief proceeding, and (2) finding he was procedurally barred from raising
    his N.D.R.Crim.P. 11 claims under misuse of process and res judicata. Atkins also
    argues the district court abused its discretion by finding he did not meet the burden
    required to show the existence of newly discovered evidence in his motion for a new
    trial. We affirm.
    I
    [¶2]   In March 2015, Atkins pleaded guilty to gross sexual imposition. In June
    2015, Atkins was sentenced to 20 years imprisonment with the North Dakota
    Department of Corrections, with five years suspended for a period of 10 years of
    supervised probation with credit for time served.
    [¶3]   In July 2015, Atkins directly appealed the criminal judgment, seeking to
    withdraw his guilty plea, alleging (1) ineffective assistance of counsel, and (2) the
    district court’s failure to substantially comply with N.D.R.Crim.P. 11, resulting in a
    manifest injustice. This Court affirmed the criminal judgment in State v. Atkins, 
    2016 ND 13
    , ¶ 10, 
    873 N.W.2d 676
    , and declined to address Atkins’ argument that he
    should be permitted to withdraw his guilty plea, holding the issue was inappropriate
    for appeal because Atkins failed to move the district court to withdraw his guilty plea.
    Id. at ¶ 5. This Court addressed Atkins’ ineffective assistance of counsel claim,
    holding there was insufficient evidence in the record on direct appeal to show Atkins’
    counsel was plainly defective and citing State v. Strutz, 
    2000 ND 22
    , ¶ 26, 
    606 N.W.2d 886
    , for the proposition: “When the record on direct appeal is inadequate to
    1
    determine whether the defendant received ineffective assistance, the defendant may
    pursue the ineffectiveness claim at a post-conviction proceeding where an adequate
    record can be made.” Atkins, at ¶ 9.
    [¶4]   In March 2016, Atkins filed his first application for post-conviction relief. He
    sought relief on three grounds: (1) evidence not previously heard, (2) denial of
    effective assistance of counsel, and (3) conviction obtained by use of coerced
    confession. The district court dismissed the action. Atkins did not appeal the
    dismissal.
    [¶5]   In September 2016, Atkins filed his second application for post-conviction
    relief, again alleging ineffective assistance of counsel. The State moved to dismiss
    the application, arguing Atkins failed to provide evidentiary support for his claim, and
    the district court granted the motion. Atkins appealed the court’s order, and this Court
    affirmed, concluding Atkins was put to his proof when the State moved for summary
    dismissal and that he failed to present any competent evidence raising an issue of
    material fact. Atkins v. State, 
    2017 ND 290
    , ¶ 11, 
    904 N.W.2d 738
    .
    [¶6]   In July 2017, Atkins filed a motion under N.D.R.Crim.P. 35(a), arguing he was
    entitled to relief because he was precluded from using the internet as part of his
    probationary conditions. The State opposed the motion, and the district court denied
    the motion, finding Atkins’ motion was his “third post-conviction request for relief,”
    and the condition of his probation limiting his internet access was a “valid, reasonable
    condition which does not violate Atkins’ First Amendment rights.”
    [¶7]   In November 2017, Atkins filed a motion to dismiss the gross sexual
    imposition charge because the prosecution failed to seize, try, and prosecute in
    accordance with constitutional law. The State opposed the motion, arguing Atkins’
    motion was unsupported by facts or legal argument. The district court denied the
    motion.
    [¶8]   In February 2018, Atkins moved to “vacate” his guilty plea. Atkins alleged he
    was misinformed by his attorney when deciding to plead guilty. In March 2018,
    Atkins moved for a new trial, alleging the existence of newly discovered evidence,
    2
    including: (1) text messages; (2) a sexual assault kit; (3) the credibility of the State’s
    witnesses; and (4) evidence tampering by the State. Atkins argued the newly
    discovered evidence was exculpatory. Atkins’ court-appointed counsel later filed a
    supplemental brief on both motions further outlining his grounds for relief, adding the
    allegation that the district court failed to comply with N.D.R.Crim.P. 11 in support of
    his motion to withdraw his guilty plea. Atkins submitted 7 exhibits along with his
    motions including a print-out of the alleged newly discovered text messages and
    transcripts from the 2015 hearings. A hearing was held on the motions and Atkins
    testified. On October 31, 2018, the court issued an order classifying Atkins’ motions
    as an action for post-conviction relief under this Court’s decision in State v. Gress,
    
    2011 ND 233
    , 
    807 N.W.2d 567
    , and denying Atkins relief, concluding his attempt to
    withdraw his guilty plea was procedurally barred by abuse of process and res judicata,
    and his motion for a new trial based on claims of newly discovered evidence did not
    meet the four-part test to qualify as newly discovered evidence.
    II
    [¶9]   Atkins argues the district court erred by applying civil post-conviction
    affirmative defenses to his criminal law motions filed in his criminal case. The State
    argues the court correctly relied upon Gress, 
    2011 ND 233
    , in finding Atkins’ motions
    should be treated as a post-conviction relief proceeding.
    [¶10] In Gress, 
    2011 ND 233
    , the defendant pleaded guilty to two counts of
    aggravated assault and two years later, applied for post-conviction relief. Id. at ¶ 2.
    The district court denied his application, and the defendant did not appeal. Id. Three
    years later, the defendant moved “to suspend his sentence pursuant to N.D.R.Civ.P.
    Rule 60(b)(6) . . . [a]lternatively, . . . to withdraw his unconstitutional plea-
    agreement,” and the court denied the motion. Id. at ¶ 3. On appeal this Court held
    that although the motion was not titled as an application for post-conviction relief, the
    defendant had already previously filed an application for post-conviction relief and
    therefore this Court considered the motion as a second application for post-conviction
    3
    relief. Id. at ¶ 6. Similar to the defendant in Gress, Atkins did not title his motion as
    an application for post-conviction relief, but he had already previously filed two
    applications for post-conviction relief prior to filing the motion to withdraw his guilty
    plea.
    [¶11] Rule 11(d)(2), N.D.R.Crim.P., provides: “[u]nless the defendant proves that
    withdrawal is necessary to correct a manifest injustice, the defendant may not
    withdraw a plea of guilty after the court has imposed sentence.” “When a defendant
    applies for post-conviction relief seeking to withdraw a guilty plea, the application is
    treated as one made under N.D.R.Crim.P. 11(d).” Mackey v. State, 
    2012 ND 159
    , ¶
    11, 
    819 N.W.2d 539
     (relying on Eaton v. State, 
    2011 ND 35
    , ¶ 5, 
    793 N.W.2d 790
    (quoting Patten v. State, 
    2008 ND 29
    , ¶ 14, 
    745 N.W.2d 626
    )). We have previously
    held the remedies under the Rules of Criminal Procedure and the Uniform
    Postconviction Procedure Act provide similar remedies and co-exist for similar
    purposes. See State v. McClary, 
    2016 ND 31
    , ¶ 7, 
    876 N.W.2d 29
     (comparing
    remedies under N.D.R.Crim.P. 35(a) to correct an illegal sentence to similar provision
    under N.D.C.C. § 29-32.1-01(1)(a)). We have also held that even when a motion
    following conviction is denominated as a motion under the North Dakota Rules of
    Criminal Procedure, the provisions of the Uniform Postconviction Procedure Act,
    N.D.C.C. ch. 29-32.1, are applicable. McClary, at ¶ 7 (relying on State v. Johnson,
    
    571 N.W.2d 372
    , 374-75 (N.D. 1997) holding second Rule 35(a) motion to correct an
    illegal sentence was barred by misuse of process). The parallel statutory provision to
    Rule 11(d) is N.D.C.C. § 29-32.1-01(1)(h), which provides relief when: “[t]he
    conviction or sentence is otherwise subject to collateral attack upon any ground of
    alleged error before July 1, 1985, under any common law, statutory or other writ,
    motion, proceeding, or remedy.” A defendant, prior to 1985, could move to withdraw
    a guilty plea under N.D.R.Crim.P. 32(d) to correct a manifest injustice. While the
    provisions have been modified and moved to N.D.R.Crim.P. 11(d) in 2010, the
    remedy itself remains the same. Section 29-32.1-01(4), N.D.C.C., further provides:
    4
    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.
    A plain reading of this provision is that the Uniform Postconviction Procedure Act is
    to be used exclusively in place of other remedies collaterally challenging the judgment
    of conviction. 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. We agree with the district court and consider this motion
    as a third application for post-conviction relief.
    III
    [¶12] Having concluded the district court properly treated Atkins’ motions as an
    application for post-conviction relief, we next review whether the court erred in
    finding Atkins’ claims were procedurally barred. We have stated:
    Post-conviction relief proceedings are civil in nature and governed by
    the North Dakota Rules of Civil Procedure. The petitioner bears the
    burden of establishing grounds for post-conviction relief. When we
    review a district court’s decision in a post-conviction proceeding,
    questions of law are fully reviewable. The district court’s findings of
    fact in a post-conviction proceeding will not be disturbed on appeal
    unless they are clearly erroneous under N.D.R.Civ.P. 52(a). A finding
    of fact is clearly erroneous if it is induced by an erroneous view of the
    law, if it is not supported by any evidence, or if, although there is some
    evidence to support the finding, a reviewing court is left with a definite
    and firm conviction a mistake has been made.
    5
    Curtiss v. State, 
    2016 ND 62
    , ¶ 7, 
    877 N.W.2d 58
     (internal citations and quotations
    omitted). “Post-conviction proceedings are not intended to allow defendants multiple
    opportunities to raise the same or similar issues, and defendants who inexcusably fail
    to raise all of their claims in a single post-conviction proceeding misuse the post-
    conviction process by initiating a subsequent application raising issues that could have
    been raised in the earlier proceeding.” Steen v. State, 
    2007 ND 123
    , ¶ 13, 
    736 N.W.2d 457
     (quoting Jensen v. State, 
    2004 ND 200
    , ¶ 9, 
    688 N.W.2d 374
    ).
    “Generally, the applicability of res judicata is a question of law and is fully
    reviewable on appeal.” 
    Id.
    A
    [¶13] Under N.D.C.C. § 29-32.1-12(2)(a), a court may deny post-conviction relief
    on the ground of misuse of process when the applicant “[p]resents a claim for relief
    which the applicant inexcusably failed to raise either in a proceeding leading to
    judgment of conviction and sentence or in a previous postconviction proceeding.”
    Misuse of process is an affirmative defense to be pleaded by the State. N.D.C.C. §
    29-32.1-12(3). The State raised the issue of misuse of process in its supplemental
    brief in opposition to Atkins’ motion.
    [¶14] With respect to Atkins’ allegations of the district court’s N.D.R.Crim.P. 11
    violations, we agree with the district court that this claim is barred by misuse of
    process. Atkins attempted to raise the issue of the district court’s alleged Rule 11
    violations in his first appeal to this Court but we declined to address the argument due
    to his failure to so argue before the district court. Atkins, 
    2016 ND 13
    , ¶ 5.
    Thereafter, Atkins filed two applications for post-conviction relief, and two post-
    sentencing motions; however, he did not renew the district court’s alleged Rule 11
    violations claim until this most recent February 2018 post-conviction application.
    Atkins has provided no reasons for failing to make this claim in his previous
    proceedings post-appeal. Therefore, Atkins has inexcusably failed to raise this claim
    6
    in his previous post-conviction proceedings and is barred from doing so now. See
    Silvesan v. State, 
    1999 ND 62
    , ¶ 13, 
    591 N.W.2d 131
    .
    B
    [¶15] Atkins also claimed he should be allowed to withdraw his plea under
    N.D.R.Crim.P. 11 because his counsel was ineffective. Under N.D.C.C. § 29-32.1-
    12(1), “[a]n application for postconviction relief may be denied on the ground that the
    same claim or claims were fully and finally determined in a previous proceeding.”
    Res judicata is also an affirmative defense under N.D.C.C. § 29-32.1-12(3) and was
    raised by the State.
    [¶16] In the direct appeal of his criminal judgment, Atkins alleged ineffective
    assistance of trial counsel which this Court addressed, holding he had failed to show
    counsel was plainly defective. Atkins, 
    2016 ND 13
    , ¶ 9. We left open the possibility
    that Atkins could pursue his claim in a post-conviction proceeding. 
    Id.
     Following the
    direct appeal, Atkins claimed ineffective assistance of counsel in his March 2016 and
    September 2016 applications for post-conviction relief. We agree with the district
    court that Atkins’ claim of ineffective assistance of counsel is barred by res judicata,
    and to the extent his specific allegations differ from those previously argued, misuse
    of process.
    IV
    [¶17] Atkins argues the district court erred by denying relief based on his allegations
    of newly discovered evidence.        “Post-conviction relief may be granted when
    ‘[e]vidence, not previously presented and heard, exists requiring vacation of the
    conviction or sentence in the interest of justice.’” Kovalevich v. State, 
    2018 ND 184
    ,
    ¶ 4, 
    915 N.W.2d 644
     (quoting N.D.C.C. § 29-32.1-01(1)(e)). When an applicant
    alleges the existence of newly discovered evidence, we review the application as a
    motion for a new trial using the standard for newly discovered evidence under
    7
    N.D.R.Crim.P. 33. Kovalevich, at ¶ 5. Our standard for granting a new trial on that
    basis is well established:
    Under N.D.R.Crim.P. 33(a), the trial court may grant a
    new trial to the defendant if required in the interests of
    justice. To prevail on a motion for a new trial on the
    ground of newly discovered evidence, the defendant
    must show (1) the evidence was discovered after trial, (2)
    the failure to learn about the evidence at the time of trial
    was not the result of the defendant’s lack of diligence,
    (3) the newly discovered evidence is material to the
    issues at trial, and (4) the weight and quality of the newly
    discovered evidence would likely result in an acquittal.
    A motion for new trial based upon newly discovered
    evidence rests within the discretion of the trial court, and
    we will not reverse the court’s denial of the motion
    unless the court has abused its discretion. If the newly
    discovered evidence is of such a nature that it is not
    likely to be believed by the jury or to change the results
    of the original trial, the court’s denial of the new trial
    motion is not an abuse of discretion.
    A trial court abuses its discretion if it acts arbitrarily, unreasonably,
    unconscionably, or when its decision is not the product of a rational
    mental process leading to a reasoned decision.
    Id. (internal citations omitted). “The task of weighing the evidence and judging the
    credibility of witnesses belongs exclusively to the trier of fact, and we do not reweigh
    credibility or resolve conflicts in the evidence.” Greywind v. State, 
    2004 ND 213
    , ¶
    22, 
    689 N.W.2d 390
    .
    [¶18] Atkins argues he satisfied the four-part test for reviewing a motion for a new
    trial based on newly discovered evidence. In his motion before the district court,
    Atkins asserted the existence of four items of newly discovered evidence: (1)
    exculpatory text messages; (2) a sexual assault kit showing no residua of sexual abuse
    of the alleged victim; (3) the credibility of the State’s witnesses; and (4) evidence
    tampering. On appeal, Atkins only argues the text messages and the sexual assault
    kit as the basis for his motion for a new trial.
    8
    A
    [¶19] Atkins argues he discovered exculpatory text messages in 2017, after his
    conviction. At the motion hearing, Atkins testified he did not know the text messages
    existed at the time he entered his plea. He stated he became aware of the text
    messages through his mother. He also testified he was talking to his mother while
    incarcerated and she revealed she possessed the messages. He admitted he did not
    need a court order, search warrant, or subpoena to get the text messages from his
    mother. He further admitted he never previously asked his mother for any evidence
    related to his case. In finding the text messages were not newly discovered evidence,
    the district court noted Atkins failed to call either his mother or his attorney to support
    his argument the messages were unknown to him prior to his guilty plea. The court
    stated Atkins’ failure to learn about the text messages was due to a lack of diligence
    on his part since his mother had the messages prior to his guilty plea.
    [¶20] In Syvertson v. State, 
    2005 ND 128
    , ¶ 9, 
    699 N.W.2d 855
    , this Court held that
    information that was publicly disseminated and easily accessible was not newly
    discovered evidence when the defendant failed to establish that his failure to learn
    about the evidence at the time of trial was not due to his own lack of diligence. Here,
    Atkins also failed to show his failure to learn about the text messages was not due to
    his own lack of diligence. He admitted he did not ask his mother for any information
    she might have regarding his case prior to pleading guilty. He does not allege she
    concealed the information from him or that she was unavailable at the time of his
    plea. The district court did not abuse its discretion in finding the text messages were
    not newly discovered and that even if they were, Atkins’ failure to learn about them
    was due to his own lack of diligence.
    [¶21] The district court further found “the weight and quality of the text messages,
    when considering the totality of the evidence brought against Atkins, would likely not
    result in an acquittal.” The text messages show that a potential witness may not have
    thought Atkins committed the alleged acts, but also stated she did not know what
    happened, and acknowledged she left the victim with Atkins and another person for
    9
    about 10 minutes. The court did not abuse its discretion finding the text messages
    would not likely result in acquittal, and therefore do not qualify as newly discovered
    evidence.
    B
    [¶22] Next, Atkins argues the results of a sexual assault kit are newly discovered
    evidence because his attorney never provided him with a copy of the results. He
    argues the results are exculpatory because they show a lack of evidence supporting
    the allegations against him. At the motion hearing, the State introduced a document
    listing the discovery Attorney Morrow received. When introducing the exhibit, the
    State described it as “the discovery Mr. Atkins received from Mr. Morrow,” and
    Atkins did not object to its admission. Atkins testified at the motion hearing at one
    point admitting he “didn’t really read the discovery.” He admitted it was possible he
    missed the results of the sexual assault kit when he did receive the discovery because
    he just skimmed through it. The district court found:
    Clearly, the alleged exculpatory information connected to the Sexual
    Assault Kit would have been provided to Atkins and his legal counsel
    as part of the discovery process. Therefore, Atkins had the Sexual
    Assault Kit report prior to pleading guilty and being sentenced and such
    is not newly discovered evidence.
    The court’s findings are not clearly erroneous. We conclude the court did not abuse
    its discretion by denying relief based on Atkins’ claims of newly discovered evidence.
    V
    [¶23] In his supplemental brief, Atkins argues the attorney for the alleged victim in
    his gross sexual imposition case works in the same law firm as his post-conviction
    counsel. He also argues the entire Grand Forks Public Defender’s office has a
    conflict of interest with his case because they represented several of the State’s
    witnesses. It appears he is raising these arguments for the first time on appeal, and
    10
    we decline to address them. See State v. Kieper, 
    2008 ND 65
    , ¶ 16, 
    747 N.W.2d 497
    (issues not raised in the district court cannot be raised for the first time on appeal).
    [¶24] It is unnecessary to address other issues raised on appeal because they are
    either without merit or unnecessary to the decision.
    VI
    [¶25] We affirm the district court order denying Atkins’ motions applying the
    procedures under the Uniform Postconviction Procedure Act.
    [¶26] Lisa Fair McEvers
    Daniel J. Crothers
    Jerod E. Tufte
    Gary H. Lee, D.J.
    Gerald W. VandeWalle, C.J.
    [¶27] The Honorable Gary H. Lee, D.J., sitting in place of Jensen, J., disqualified.
    11