State v. DeLeon ( 2012 )

Filed 6/7/12 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2012 ND 108

Dale Allen Gress, Petitioner and Appellant

v.

State of North Dakota, Respondent and Appellee

No. 20120129

Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Bruce B. Haskell, Judge.

AFFIRMED.

Per Curiam.

Dale Gress, self-represented, J.R.C.C., 2521 Circle Drive, Jamestown, N.D. 58401, petitioner and appellant; on brief.

Jacob T. Rodenbiker, Assistant State’s Attorney, Courthouse, 514 E. Thayer Ave., Bismarck, N.D. 58501, for respondent and appellee; on brief.

Gress v. State

No. 20120129

Per Curiam.

[¶1] Dale Gress appeals from the trial court’s order granting the State’s motion for summary disposition.

[¶2] In January of 2011, Gress moved to suspend his sentence.  The motion was treated as a second application for post-conviction relief.  In the motion, Gress claimed he did not knowingly enter into his plea agreement, and he is innocent of the charges set forth therein.  The State moved for summary dismissal.  Based on res judicata principles, the trial court summarily dismissed Gress’s motion, explaining the issues had been previously addressed.  Gress appealed.

[¶3] On appeal, Gress argues the State did not raise the defense of res judicata in its motion for summary disposition and did not present evidence demonstrating it was entitled to summary disposition.

[¶4] We affirm under N.D.R.App.P. 35.1(a)(6) and (7); see also Everett v. State , 2010 ND 4, ¶ 1, 789 N.W.2d 282 (citing Klose v. State , 2008 ND 143, ¶ 10, 752 N.W.2d 192 (explaining res judicata precludes claims or variations of claims raised in previous proceedings)).

[¶5] Gerald W. VandeWalle, C.J.

Mary Muehlen Maring

Daniel J. Crothers

Dale V. Sandstrom

Carol Ronning Kapsner