State v. Jensen , 2021 ND 119 ( 2021 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
JULY 8, 2021
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2021 ND 119State of North Dakota, Plaintiff and Appellee
v.
Randy Scott Jensen, Defendant and Appellant
No. 20200295
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 Jensen, Chief Justice.
Kathryn Jund (argued), third-year law student, under the Rule on Limited
Practice of Law by Law Students, and Carmell F. Mattison (appeared),
Assistant State’s Attorney, Grand Forks, ND, for plaintiff and appellee.
Monty G. Mertz, Grand Forks, ND, for defendant and appellant.
State v. Jensen
No. 20200295
Jensen, Chief Justice.
[¶1] Randy Scott Jensen appeals from a district court order denying his
request to vacate the judgment and seek dismissal of the prosecution. We
conclude Jensen’s request to vacate and dismiss must be treated as an
application for post-conviction relief and is an appealable order. Because
Jensen’s application did not raise a genuine issue as to any material fact and
the State was entitled to a judgment as a matter of law, we affirm the district
court’s order.
I
[¶2] On December 27, 2017, the State charged Jensen with possession of
controlled substances, possession of drug paraphernalia, and the unlawful use
of motor vehicle license plates. Jensen’s trial was originally set for April 24,
2018. His trial was rescheduled twice, and the case was ultimately resolved
through a bench trial that started on August 7, 2018. Jensen was found guilty
on all charges.
[¶3] On October 2, 2018, Jensen was sentenced to four years of imprisonment
with credit for time served prior to his sentencing. Jensen appealed his
conviction to this Court. Jensen subsequently filed a motion to voluntarily
dismiss the appeal, and the appeal was dismissed. On February 6, 2019,
Jensen filed an application for post-conviction relief in district court. Jensen
later withdrew his application, and the post-conviction action was dismissed.
[¶4] On September 17, 2020, Jensen filed a request to vacate the judgment
and dismiss the prosecution arguing he was denied his right to a speedy trial.
The request was originally filed indicating it was a “motion” under
N.D.R.Crim.P. 18(b)(4) and refiled on October 23, 2020 as a “motion” under
N.D.R.Crim.P. 48(b)(4). On October 28, 2020, the district court denied Jensen’s
motion before the State had filed a response. The substance of the court’s order,
in its entirety, read as follows: “ORDER Rule 48 B-4 Motion/Request is denied.”
Jensen appeals from the October 28, 2020 order.
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[¶5] On appeal, Jensen argues the district court erred in denying his request
because the court did not have the opportunity to make factual determinations
on the issues he raised in his filing; the court did not issue any factual findings
or conclusions of law in its order; and the court’s order was entered
prematurely. Anticipating his request may be determined to have been an
application for post-conviction relief, Jensen argues he was entitled to an
evidentiary hearing on his claims. The State requests the appeal be dismissed
for lack of jurisdiction because the court order denying Jensen’s request is not
appealable and the State was not properly served with Jensen’s “motion.”
II
[¶6] The State requests the dismissal of this appeal arguing this Court lacks
jurisdiction over the appeal because the denial of a motion brought under
N.D.R.Crim.P. 48(b)(4) is not an appealable order. A court order denying a
criminal defendant’s motion to dismiss the prosecution is not appealable. See
State v. Gohl, 477 N.W.2d 205, 207 (N.D. 1991) (“Nothing in section 29–28–06
authorizes an appeal from a denial of a defendant’s motion to dismiss the
prosecution against him.”). Although the State concedes an order denying an
application for post-conviction relief is an appealable order, it contends
Jensen’s “motion” was not titled as an application for post-conviction relief and
should not be treated as an application for post-conviction relief.
[¶7] The Uniform Postconviction Procedure Act is the exclusive remedy for
collaterally challenging a judgment of a conviction. State v. Atkins, 2019 ND
145, ¶ 11, 928 N.W.2d 441 (relying on N.D.C.C. § 29-32.1-01(4)). When
considering successive applications for post-conviction relief, this Court has
held that, “[w]hen 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.’” State
v. Vogt, 2019 ND 236, ¶ 7, 933 N.W.2d 916 (quoting Chase v. State, 2019 ND
214, ¶ 4, 932 N.W.2d 529); see Atkins, at ¶ 11 (treating motion filed under the
Rules of Criminal Procedure as a post-conviction relief application after
defendant filed two previous post-conviction relief applications); State v. Gress,
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2011 ND 233, ¶ 6, 807 N.W.2d 567 (treating a motion filed under the Rules of
Criminal Procedure as a post-conviction relief application after defendant
previously filed a post-conviction relief application).
[¶8] “[T]he remedies under the Rules of Criminal Procedure and the Uniform
Postconviction Procedure Act provide similar remedies and co-exist for similar
purposes.” Atkins, 2019 ND 145, ¶ 11. A motion to dismiss the prosecution
under N.D.R.Crim.P. 48(b)(4) acts as a vehicle for enforcing the Sixth
Amendment right to a speedy trial. N.D.R.Crim.P. 48, Explanatory Note. A
similar remedy exists under the Uniform Postconviction Procedure Act where
a post-conviction applicant may seek relief upon the ground that their
conviction was obtained or sentence was imposed in violation of the state and
federal laws or constitutions. N.D.C.C. § 29-32.1-01(1)(a).
[¶9] This Court has held that “[w]e are not bound by a party’s label and may
look at the substance [of a filing] to determine proper classification.” Tuhy v.
Tuhy, 2018 ND 53, ¶ 20, 907 N.W.2d 351. Prior to filing his current request to
vacate and dismiss, Jensen filed an application for post-conviction relief in
February 2019. Even though the February 2019 post-conviction application
was later withdrawn by Jensen, we do not disregard the previously filed
application. Additionally, within his request, Jensen argued he was entitled to
relief under N.D.C.C. § 29-32.1-01(1)(a). While we agree with the State’s
assertion that a district court order denying a criminal defendant’s motion to
dismiss the prosecution is not appealable, we conclude Jensen’s request to
vacate and dismiss the prosecution is properly treated as an application for
post-conviction relief even though the title of the filing indicated it was a
“motion” under N.D.R.Crim.P. 48(b)(4). Because we determine his filing is
properly treated as an application for post-conviction relief, we conclude this
Court has jurisdiction over Jensen’s appeal.
III
[¶10] In his filing, Jensen argued he was denied his statutory and
constitutional right to a speedy trial. The district court, on its own initiative,
summarily dismissed Jensen’s application without providing findings of fact or
conclusions of law. On appeal, Jensen argues the court erred in summarily
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dismissing his application without issuing findings of fact or conclusions of law,
and failing to hold an evidentiary hearing on his claim.
[¶11] Chapter 29-32.1, N.D.C.C., provides the district court authority to
dismiss frivolous post-conviction relief applications on its own initiative. State
v. Holkesvig, 2015 ND 105, ¶ 9, 862 N.W.2d 531. Section 29-32.1-09(1),
N.D.C.C., provides:
The court, on its own motion, may enter a judgment denying a
meritless application on any and all issues raised in the
application before any response by the state. The court also may
summarily deny a second or successive application for similar
relief on behalf of the same applicant and may summarily deny
any application when the issues raised in the application have
previously been decided by the appellate court in the same case.
“The plain language of N.D.C.C. § 29-32.1-09(1) authorizes a court to dismiss
an application for post-conviction relief before the State responds and before
the applicant presents any evidence supporting his claims if the claims are
meritless.” Riak v. State, 2015 ND 120, ¶ 16, 863 N.W.2d 894 (quoting
Chisholm v. State, 2014 ND 125, ¶ 14, 848 N.W.2d 703).
[¶12] A district court’s summary dismissal of an application for post-conviction
relief before a response by the State “is analogous to dismissal of a civil
complaint under N.D.R.Civ.P. 12(b) for failure to state a claim upon which
relief can be granted.” Atkins v. State, 2021 ND 83, ¶ 9, 959 N.W.2d 588, reh’g
denied (quoting Chase v. State, 2017 ND 192, ¶ 6, 899 N.W.2d 280). On appeal
from a N.D.R.Civ.P. 12(b)(6) dismissal, this Court construes the application in
the light most favorable to the applicant and accepts the well-pleaded
allegations as true. Atkins, at ¶ 9. “We will affirm a dismissal for failure to
state a claim ‘if it would be impossible for the applicant to prove a claim for
which relief can be granted.’” State v. Shipton, 2019 ND 188, ¶ 4, 931 N.W.2d
220 (quoting Chase, at ¶ 6). A court’s dismissal under N.D.R.Civ.P. 12(b)(6) is
reviewed de novo on appeal. Gaede v. Bertsch, 2017 ND 69, ¶ 9, 891 N.W.2d
760.
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[¶13] Jensen’s application seeks post-conviction relief for an alleged violation
of his right to a speedy trial. A criminal defendant has the right to a speedy
trial under Article I, Section 12, of the North Dakota Constitution, N.D.C.C. §
29-19-02, and the Sixth Amendment to the United States Constitution. If a
defendant claims they were not afforded their right to a speedy trial, the
defendant may present their claim in a motion to dismiss the case under
N.D.R.Crim.P. 48(b). Generally, after a defendant files a motion to dismiss the
case, courts apply the four-factor balancing test from Barker v. Wingo, 407 U.S.
514, 530 (1972), to determine whether the right to a speedy trial has been
denied. State v. Borland, 2021 ND 52, ¶ 10, 956 N.W.2d 412.
[¶14] A defendant may waive their speedy trial claim in four ways: “(1) by
failing to present the claim prior to or at the trial, (2) by entering a voluntary
plea of guilty, (3) by failing to demand a prompt trial, or (4) by expressly
consenting to the delay.” N.D.R.Crim.P. 48 (explanatory note); see State v.
Wunderlich, 338 N.W.2d 658, 661 (N.D. 1983). Waiver by failing to present a
speedy trial claim prior to or at trial is a procedural rule designed to give
finality to criminal convictions and has no relevance to the reasonableness of
the delay in bringing the defendant to trial. N.D.R.Crim.P. 48 (explanatory
note); see Koenig v. State, 2018 ND 59, ¶ 14, 907 N.W.2d 344 (“[U]nder federal
law, a defendant’s claim that his Sixth Amendment right to speedy trial was
violated must be brought before the trial court by a timely motion to dismiss
the charges.”) (quotation marks and citation omitted).
[¶15] This Court has previously examined speedy trial claims in the absence
of a timely motion to dismiss the case for violating a defendant’s right to a
speedy trial. In Koenig, 2018 ND 59, ¶¶ 2, 14-24, we reviewed a defendant’s
speedy trial claim in the absence of a timely motion to dismiss when the claim
was first presented in a post-conviction relief action for ineffective assistance
of counsel. We concluded the defendant was not denied effective assistance of
counsel because his right to a speedy trial was not violated. Id. at ¶ 24.
[¶16] In State v. Hamre, 2019 ND 86, ¶¶ 6, 14-15, 924 N.W.2d 776, we reviewed
a speedy trial claim where the defendant moved to dismiss the case under
N.D.R.Crim.P. 48 even though the motion did not assert a denial of the right
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to a speedy trial. In Hamre, the State did not assert the right to a speedy trial
had been waived by the defendant. Id. at ¶ 7. The defendant had filed multiple
letters with the court, prior to trial and while unrepresented by counsel,
asserting his right to a speedy trial. Id. at ¶ 5-8. However, the defendant did
not file a motion to dismiss the case prior to or at trial specifically alleging he
was denied his right to a speedy trial. Id. at ¶ 8. We expressly reaffirmed our
holding in Koenig as follows:
We have also recognized that under federal law, “a defendant’s
claim that his Sixth Amendment right to speedy trial was violated
must be brought before the trial court by a timely motion to
dismiss the charges.” Koenig, 2018 ND 59, ¶ 14, 907 N.W.2d 344(citing 5 Wayne R. LaFave et al., Criminal Procedure § 18.1(d) (4th
ed. 2015)). In Koenig, we said that if a defendant fails to move to
dismiss and instead either pleads guilty or submits to trial, the
speedy trial claim cannot be raised for the first time on appeal.
Koenig, at ¶ 14 (citing LaFave, at § 18.1(d)). Professor LaFave
explains that the failure to raise a speedy trial claim in a motion
to dismiss may constitute ineffective assistance of counsel and
appellate courts have assessed speedy trial claims in the absence
of a timely motion to dismiss in the trial court. LaFave, at § 18.1(d).
In Koenig, at ¶¶ 2, 14-24, the defendant filed speedy trial requests,
but did not move to dismiss the charges for a claimed speedy trial
violation; rather, he raised the issue in a post-conviction claim for
ineffective assistance of counsel. We concluded the defendant was
not denied effective assistance of counsel, because his speedy trial
rights were not violated. Id. at ¶ 24.
Id. at ¶ 13. Our decision in Hamre did not abrogate our prior decisions in
Koenig or Wunderlich recognizing that a defendant who fails to move to dismiss
and submits to trial, waives their claim asserting a violation of their right to a
speedy trial.
[¶17] In this case, the State and Jensen agree Jensen demanded a speedy trial
during his arraignment hearing. However, Jensen did not object to the two
trial continuances nor did he file a motion to dismiss the case prior to or at his
trial. The first time Jensen presented a claim that his right to a speedy trial
was violated was approximately two years after the criminal judgment was
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entered. Furthermore, while his “motion” under N.D.R.Crim.P. 48(b)(4) is
considered an application for post-conviction relief, the sole basis for the
application is the allegation he was denied a speedy trial. Unlike the appellant
in Koenig, Jensen did not allege ineffective assistance of counsel. Because
Jensen waived his speedy trial claim by failing to present the claim prior to or
at the trial and there was no allegation of ineffective assistance of counsel,
Jensen’s application for post-conviction relief fails as a matter of law. Under
our de novo review, we conclude Jensen waived his speedy trial claim, and it
would be impossible for Jensen to prove a claim for which relief can be granted.
As such, an evidentiary hearing on his post-conviction application was
unnecessary, and summary dismissal was appropriate.
IV
[¶18] Jensen’s motion under N.D.R.Crim.P. 48(b)(4) is properly treated as a
second application for post-conviction relief, and we have jurisdiction over the
district court’s order entered on October 28, 2020. Because his application for
post-conviction relief was meritless and failed to assert a claim for which relief
can be granted, the court did not err in summarily dismissing Jensen’s
application on its own initiative. We have considered all remaining issues
raised, and we conclude they are either without merit or do not affect the
outcome of the appeal. We affirm the district court’s order summarily
dismissing Jensen’s second application for post-conviction relief.
[¶19] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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