Aune v. State

1

2024 ND 99

Steven Aune, Petitioner and Appellant v. State of North Dakota, Respondent and Appellee

No. 20230273

Supreme Court of North Dakota

May 16, 2024

Appeal from the District Court of Walsh County, Northeast Judicial District, the Honorable Barbara L. Whelan, Judge.

AFFIRMED.

Miguel A. Surun Santos, Bismarck, N.D., for petitioner and appellant; submitted on brief.

Kelley M. R. Cole, State's Attorney, Grafton, N.D., for respondent and appellee; submitted on brief.

OPINION

TUFTE JUSTICE

[¶1] Steven Aune appeals from district court orders dismissing his application for postconviction relief and denying his motion to reopen and reconsider his application for postconviction relief. He also appeals orders denying his motion for change of judge and his motion to reconsider the order denying his motion for change of judge. We affirm.

I

[¶2] Aune was convicted of manslaughter. He appealed, and this Court affirmed in State v. Aune, 2021 ND 7, 953 N.W.2d 601. This Court's judgment issued on January 13 2021. Aune applied for postconviction relief on April 28 2023. The district court dismissed the application before the State responded because it was untimely. After the dismissal Aune demanded a change of judge, which was denied. He moved to have his application and demand for change of judge reconsidered, and both motions were denied. Aune appeals.

II

[¶3] Aune argues the district court improperly summarily dismissed his application without an evidentiary hearing, because there is a genuine issue of material fact. The district court summarily dismissed the application. As discussed below, the proper standard is whether, if taken as true, the application alleges a sufficient basis on which relief could be granted.

[¶4] Whether a district court has the authority on its own motion to summarily dismiss a postconviction relief application for being untimely is a question of law we review de novo. State v. Dunn, 2023 ND 24, ¶ 4, 985 N.W.2d 644. This precise question is a matter of first impression. Postconviction relief is a civil proceeding, and the North Dakota Rules of Civil Procedure are applicable to the extent that they do not conflict with North Dakota's Uniform Postconviction Procedure Act, ch. 29-32.1. Burden v State, 2019 ND 178, ¶ 10, 930 N.W.2d 619.

[¶5] When an individual applies for postconviction relief, the application "must be filed within two years of the date the conviction becomes final." N.D.C.C. § 29-32.1-01(2). After two years, an applicant must satisfy one of the three exceptions in N.D.C.C. § 29-32.1-01(3) or the application is subject to dismissal under the two-year time bar.

[¶6] In postconviction proceedings, as in other civil proceedings, we have treated the statute of limitations as waived when a responsive pleading is filed without raising it. Lehman v. State, 2014 ND 103, ¶¶ 3, 8, 847 N.W.2d 119 (holding State waived affirmative defense of statute of limitations where it moved for summary disposition without asserting that defense). Affirmative defenses are governed by N.D.R.Civ.P. 8(c), which requires that "[i]n responding to a pleading, a party must affirmatively state any avoidance or affirmative defense." Rule 8(c) speaks only to how "a party" must raise (or waive) affirmative defenses. Lehman stands for the proposition that once the State responds, it waives any unasserted affirmative defenses, including the statute of limitations. Before the State responds, it has neither raised nor waived any affirmative defenses. The rule lists numerous affirmative defenses, including statute of limitations, but applies only once "a party" "respond[s] to a pleading"-it is silent on whether the court may raise a statute of limitations before a responsive pleading. N.D.R.Civ.P. 8(c)(1). In contrast, N.D.C.C. § 29-32.1-12(3) states: "Res judicata and misuse of process are affirmative defenses to be pleaded by the state." Conspicuously absent from this section is any reference to the statute of limitations as an affirmative defense that may be raised only by the State. Unlike in an ordinary civil case, in this postconviction case the court has statutory authority to dismiss on its own motion. The operative provision here is N.D.C.C. § 29-32.1-09,^[1] which governs what the court may do on its own motion, before any response by the State.

[¶7] To determine whether chapter 29-32.1, N.D.C.C., permits dismissal of untimely applications on the court's own motion, we must consider section 29-32.1-09 in the context of related provisions, by comparison to prior versions, and by reference to interpretations from other states that have adopted the uniform act. State v. Castleman, 2022 ND 7, ¶¶ 7, 13, 15, 969 N.W.2d 169; N.D.C.C. § 1-02-13. Under the Uniform Postconviction Procedure Act of 1966, adopted by North Dakota in 1969, a court could dismiss an application after providing notice of intent to dismiss and time to respond.

When a court is satisfied, on the basis of the application, the answer or motion, and the record, that the applicant is not entitled to post-conviction relief and no purpose would be served by any further proceedings, it may indicate to the parties its intention to dismiss the application and its reasons for so doing. The applicant shall be given an opportunity to reply to the proposed dismissal. In light of the reply, or on default thereof, the court may order the application dismissed or grant leave to file an amended application or direct that the proceedings otherwise continue. Disposition on the pleadings and record is not proper if there exists a material issue of fact.

N.D.C.C. § 29-32-06(2), 1969 N.D. Sess. Laws ch. 304, § 6(2). Idaho adopted this provision from the Uniform Postconviction Procedure Act of 1966 and has interpreted it as allowing a district court to dismiss an application for failing to comply with the statute of limitations even if the State failed to raise it as a defense. See Martinez v. State, 130 Idaho 530, 533, 944 P.2d 127 (Ct. App. 1997) (reasoning that because the trial court may dismiss before the State has filed a response, "it was proper for the district court to consider the statute of limitation though this defense was not raised by the State"); see also State v. Ochieng, 147 Idaho 621, 625, 213 P.3d 406 (Ct. App. 2009) ("While the statute of limitations can be raised as an affirmative defense by the State pursuant to I.C. § 19-4906(b), it can also be raised sua sponte by the court.").

[¶8] In 1985, North Dakota replaced the Uniform Postconviction Procedure Act of 1966 with the 1980 revision published by the Uniform Law Commission. 1985 N.D. Sess. Laws ch. 366. The 1980 uniform act allowed a postconviction application to be filed at any time. N.D.C.C. § 29-32.1-03(2). The Editorial Board Comments explain this section of the act complies with ABA Standards 22-2.4(a) that a statute of limitations is inappropriate for postconviction relief. Without repealing this section, the legislature amended N.D.C.C. § 29-32.1-01 in 2013 to include a two-year statute of limitations with three narrow exceptions. 2013 N.D. Sess. Laws ch. 248, § 1. Several other states have also amended their uniform postconviction procedure acts to provide a statute of limitations. See, e.g., Hooley v. State, 537 P.3d 1267, 1273-74 (Idaho 2023) (affirming summary dismissal of untimely application under one-year statute of limitations); McCoy v. State, 737 S.E.2d 623, 626 (S.C. 2013) (reversing summary dismissal under one-year statute of limitations where the applicant alleged facts that would establish an exception under the statute of limitations); State v. Williamson, 969 A.2d 300, 303 (Md. 2009) (discussing 1995 amendment to impose ten-year statute of limitations on uniform postconviction procedure act). In the same legislation adding the statute of limitations, the Legislative Assembly amended N.D.C.C. § 29-32.1-09 to allow summary dismissal of meritless claims by the court before any response by the State. 2013 N.D. Sess. Laws ch. 248, § 2. These amendments both indicate an intent to narrow the opportunity for postconviction relief by limiting the time for filing an application and expediting dismissal of meritless applications.

[¶9] The district court has limited authority under chapter 29-32.1, N.D.C.C., to summarily dismiss a claim on its own motion. Under section 29-32.1-09(1) 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." Rule 8(c) N.D.R.Civ.P., provides rules for pleading affirmative defenses by a party. It does not limit the court's authority under N.D.C.C. § 29-32.1-09 to consider the statute of limitations. Section 29-32.1-12, N.D.C.C., lists two other affirmative defenses "to be pleaded by the state" but does not include the statute of limitations as an affirmative defense. The timeliness (or lack of timeliness) is an issue raised in every application for relief. N.D.C.C. § 29-32.1-01(2) ("an application for relief under this chapter must be filed within two years of the date the conviction becomes final"). The criminal judgment challenged in the application, including the date of judgment and sentence, must be identified in the application. N.D.C.C. § 29-32.1-04(1). If finality is delayed by an appeal to this Court or a petition for review in the United States supreme court, N.D.C.C. § 29-32.1-01(2)(b)&(c), the necessary information must also be included in the application. N.D.C.C. § 29-32.1-04(2). It will thus be apparent whether the application has been filed within two years of when the conviction became final and, if not, whether the application contains any allegation supporting a statutory exception to the statute of limitations. ...