DELVO v. State , 2010 N.D. LEXIS 74 ( 2010 )

VANDE WALLE, Chief Justice.

[¶ 1] Jessica Delvo appealed from the district court’s order denying her application for post-conviction relief. We affirm. Summary dismissal of the application for post-conviction relief was appropriate because Delvo failed to supplement her application with affidavits or other evidence after being put on notice that the State requested summary disposition, and the State was entitled to judgment as a matter of law.

I.

[¶ 2] In 2005, Delvo pled guilty to possession of marijuana with intent to deliver and possession of drug paraphernalia. The district court deferred imposition of her sentence for three years and placed her on probation.

[¶ 3] In October 2008, the State filed a petition to revoke Delvo’s probation. The State made fourteen allegations, including that she was convicted of ingesting a controlled substance and forgery, used alcohol and marijuana, failed to report to her probation officer, failed to pay court fees, and committed a domestic violence-related simple assault. She was represented by counsel.

[¶ 4] The district court held a probation revocation hearing in November 2008. The district court informed Delvo of her rights. Delvo admitted to four allegations: that she had been convicted of ingesting a controlled substance and forgery, and that she had used marijuana on two occasions. She denied the remaining allegations. Delvo’s probation officer testified regarding the allegations to which Delvo did not admit. Delvo testified, as well. During Delvo’s testimony, the hearing concluded and was continued to March 2009.

[¶ 5] At the March hearing, the State dismissed the allegations to which Delvo had not admitted. On March 27, 2009, the district court issued its order revoking Delvo’s probation, based on Delvo’s admission to four of the allegations. The district court did not refer to the probation officer’s testimony in its order. The district court also issued an amended criminal judgment for Delvo’s previous conviction of possession of marijuana with intent to deliver, sentencing her to five years in the custody of the Department of Corrections and Rehabilitation.

[¶ 6] On June 30, 2009, Delvo applied for post-conviction relief from the amended criminal judgment. She first asserted her admissions at the probation revocation hearing were unlawfully induced or not made voluntarily with understanding of the nature of the charge and the consequences of the admissions. She argued the State dismissed numerous allegations for scheduling purposes, and her character and expert witnesses were unavailable due to flooding. Second, she claimed her admissions were obtained by the unconstitutional failure of the prosecution to disclose evidence favorable to her. She explained she had information, that the State also possessed, showing she had been sober for nine months. Finally, Delvo claimed she was denied effective assistance of counsel. She asserted her probation officer had committed perjury during the hearing, and her attorney did not pursue charges against him.

[¶ 7] On July 22, 2009, the district court scheduled a hearing on Delvo’s application for October 23, 2009. On August 5, 2009, the State filed its response to Delvo’s application. The State asked the district court to summarily dismiss Delvo’s application in its response. No separate motion was made by the State. The State argued, “In this case, even if all the allegations asserted by the Petitioner are valid, the claims do not rise to the level required for the Court to grant the Petitioner’s application.” Delvo did not amend her application with affidavits or any other evidence.

[¶ 8] The district court did not hold a hearing on Delvo’s application for post-conviction relief. On September 18, 2009, the district court summarily dismissed Delvo’s application. The district court found there were no genuine issues of material fact and the State was entitled to judgment as a matter of law.

II.

[¶ 9] On appeal, Delvo argues she was entitled to an evidentiary hearing and the district court erred by summarily dismissing her application. In response, the State argues there were no genuine issues of material fact and the State was entitled to judgment as a matter of law.

[¶ 10] “Post-conviction relief proceedings are civil in nature and governed by the North Dakota Rules of Civil Procedure.” Clark v. State, 2008 ND 234, ¶ 11, 758 N.W.2d 900 (quoting Sambursky v. State, 2008 ND 133, ¶7, 751 N.W.2d 247). This Court reviews a summary denial of an application for post-conviction relief similar to an appeal from a summary judgment. Henke v. State, 2009 ND 117, ¶ 9, 767 N.W.2d 881 (citing Berlin v. State, 2005 ND 110, ¶ 6, 698 N.W.2d 266). “The party opposing the motion for summary disposition is entitled to all reasonable inferences at the preliminary stages of a post-conviction proceeding and is entitled to an evidentiary hearing if a reasonable inference raises a genuine issue of material fact.” Id. (quoting Berlin, at ¶ 6).

[¶ 11] Section 29-32.1-04, N.D.C.C., describes the necessary contents of an application for post-conviction relief:

1. The application must identify the proceedings in which the applicant was convicted and sentenced, give the date of the judgment and sentence complained of, set forth a concise statement of each ground for relief, and specify the relief requested. Argument, citations, and discussion of authorities are unnecessary.

2. The application must identify all proceedings for direct review of the judgment of conviction or sentence and all previous postconviction proceedings taken by the applicant to secure relief from the conviction or sentence, the grounds asserted therein, and the orders or judgments entered. The application must refer to the portions of the record of prior proceedings pertinent to the alleged grounds for relief. If the cited record is not in the files of the court, the applicant shall attach that record or portions thereof to the application or state why it is not attached. Affidavits or other material supporting the application may be attached, but are unnecessary.

[¶ 12] Section 29-32.1-09(1), N.D.C.C., allows for summary dismissal of an application for post-conviction relief:

The court may grant a motion by either party for summary disposition if the application, pleadings, any previous proceeding, discovery, or other matters of record show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.

A petitioner must support his or her application with evidence if the State moves for summary dismissal. Henke, 2009 ND 117, ¶ 11, 767 N.W.2d 881 (citing State v. Bender, 1998 ND 72, ¶ 20, 576 N.W.2d 210). We have explained:

A petitioner is not required to provide evidentiary support for his petition until he has been given notice he is being put on his proof. At that point, the petitioner may not merely rely on the pleadings or on unsupported, conclusory allegations, but must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact. If the petitioner presents competent evidence, he is then entitled to an evidentiary hearing to fully present that evidence.

Id. (quoting Ude v. State, 2009 ND 71, ¶ 8, 764 N.W.2d 419). If the State shows there is no genuine issue of material fact, then the district court can summarily dismiss the application. Id. at ¶ 12 (citing Vandeberg v. State, 2003 ND 71, ¶ 5, 660 N.W.2d 568). “A genuine issue of material fact exists if reasonable minds could draw different inferences and reach different conclusions from the undisputed facts.” Id. (quoting Vandeberg, at ¶ 5).

III.

[¶ 13] Delvo argues the district court erred by summarily dismissing her application for post-conviction relief and not allowing her an evidentiary hearing to develop evidence for her claims. Delvo cites State v. Bender for the proposition that a hearing should be held when a post-conviction relief applicant alleges ineffective assistance of counsel, especially when counsel’s deficiency relates to events off the record. State v. Bender, 1998 ND 72, ¶ 21, 576 N.W.2d 210. Our case law requires, however, that when a post-eonvietion relief applicant is put to his or her proof, he or she must supplement the application with affidavits or other evidence. Henke, 2009 ND 117, ¶ 11, 767 N.W.2d 881 (citing Ude, 2009 ND 71, ¶ 8, 764 N.W.2d 419) (requiring a petitioner present competent admissible evidence after being put to his or her proof). Although the district court cancelled the hearing on Delvo’s application after the State requested summary disposition, Delvo does not dispute she was put on notice the State was putting her to her proof. Delvo also does not argue the State should have requested summary disposition by motion, rather than in its response. See N.D.C.C. § 29-32.1-09(1) (stating a district court can grant a motion by either party for summary disposition of a post-conviction relief application). Delvo was required to supplement her application. Because she did not supplement her application to show there was a genuine issue of material fact, summary disposition was appropriate.

IV.

[¶ 14] The district court found the State was entitled to judgment as a matter of law. Delvo claimed in her petition that the State “[dismissed numerous allegations to avoid rescheduling.” This claim does not address whether her admissions to four of the allegations were voluntary. The district court verified that no one had made any threats or promises to Delvo in return for her admissions, she was not under the influence of alcohol or drugs, and her admissions were made voluntarily. The district court properly determined the State was entitled to judgment as a matter of law with regard to this claim.

[¶ 15] Delvo also claimed the State had access to information that showed she had been sober for nine months. She also asserted she possessed the information. The district court noted, “The State correctly argues that information was available to Ms. Delvo at the time of the hearing. The State did not withhold it.” The district court correctly stated the State was entitled to judgment as a matter of law with regard to this claim.

[¶ 16] Finally, Delvo argued in her application that she received ineffective assistance of counsel because her attorney did not pursue perjury charges against her probation officer. This Court has explained a petitioner’s “heavy burden” when claiming ineffective assistance of counsel:

A defendant claiming ineffective assistance of counsel has a heavy burden of proving (1) counsel’s representation fell below an objective standard of reasonableness, and (2) the defendant was prejudiced by counsel’s deficient performance. Effectiveness of counsel is measured by an objective standard of reasonableness considering prevailing professional norms. The defendant must first overcome the strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Trial counsel’s conduct is presumed to be reasonable and courts consciously attempt to limit the distorting effect of hindsight.

Clark, 2008 ND 234, ¶ 12, 758 N.W.2d 900 (quoting Patten v. State, 2008 ND 29, ¶ 9, 745 N.W.2d 626) (internal alterations, citations, and quotations omitted). The district court noted Delvo “voluntarily made the admissions which caused her probation to [be] revoked.” The probation officer’s testimony did not contribute to Delvo’s probation being revoked, because the allegations to which he was testifying were dismissed by the State. The district court properly determined the State was entitled to judgment as a matter of law with regard to this claim.

V.

[¶ 17] We affirm the district court’s order summarily dismissing Delvo’s application for post-conviction relief.

[¶ 18] DALE V. SANDSTROM, and MARY MUEHLEN MARING, JJ., concur.