Hamilton v. State

890 N.W.2d 810

Adam Scott HAMILTON, Petitioner and Appellant

v.STATE of North Dakota, Respondent and Appellee

No. 20160276

Supreme Court of North Dakota.

Filed March 7, 2017

Rehearing Denied March 30, 2017

Benjamin C. Pulkrabek, 402 First St. N.W., Mandan, ND 58554–3118, for petitioner and appellant.

Haley L. Wamstad (argued) and Meredith H. Larson (on brief), Grand Forks County State's Attorney, P.O. Box 5607, Grand Forks ND 58206–5607, for respondent and appellee.

Crothers, Justice.

[¶ 1] Adam Hamilton appeals from the district court judgment denying him post-conviction relief. Hamilton argues the district court erred in denying his application for post-conviction relief because he did not have the ability at the hearing to communicate and transmit documents with his attorney. Hamilton also argues the district court erred in denying his transport order because he had a right to be personally present at the hearing. We affirm.

I

[¶ 2] Hamilton pled guilty to continuous sexual abuse of a child and was sentenced to 30 years in prison. This Court summarily affirmed the criminal judgment. State v. Hamilton , 2013 ND 113, ¶ 3, 837 N.W.2d 159. Hamilton applied for post-conviction relief, arguing he received ineffective assistance of counsel, violations of N.D.R.Crim.P. 11 and his attorney failed to object to a coerced confession that led to his conviction. Hamilton requested a transport order to allow him to personally appear at the evidentiary hearing. The district court denied his request, stating Hamilton provided no authority establishing his right to personally appear at the hearing. Hamilton's attorney filed an "affidavit" requesting an order allowing Hamilton to testify in compliance with the North Dakota Department of Corrections' policy for telephonic hearings in civil cases. The district court entered the requested order, allowing Hamilton to testify by telephone for no more than 30 minutes.

[¶ 3] At the hearing held on February 10, 2016, Hamilton participated and testified by telephone. Hamilton immediately objected to the hearing, citing N.D. Sup. Ct. Admin. R. 52, § 2(D) and (E), because he was not allowed to privately confer with his attorney and he had no means of exchanging documents with his attorney. The district court overruled his objection, stating the rules did not apply to the hearing because it was not an interactive television proceeding.

[¶ 4] During Hamilton's testimony he sought to introduce a 290–page exhibit consisting of documents regarding the effects of medication he was taking at the time of his arrest. Hamilton's attorney was not aware of the documents prior to the hearing. The district court allowed Hamilton's attorney to obtain the documents after the hearing and file them with the district court, subject to the State's objections. The State objected to the document. Written closing arguments were filed by Hamilton. The district court entered an order denying Hamilton's application for post-conviction relief. A judgment was entered denying Hamilton post-conviction relief. Hamilton appeals.

II

[¶ 5] Hamilton argues the district court erred in denying his application for post-conviction relief. "Post-conviction relief proceedings are civil in nature and are governed by the North Dakota Rules of Civil Procedure. In post-conviction relief proceedings, a district court's findings of fact will not be disturbed unless they are clearly erroneous under N.D.R.Civ.P. 52(a)." Patterson v. State , 2016 ND 212, ¶ 6, 886 N.W.2d 684 (quoting Syvertson v. State , 2005 ND 128, ¶ 4, 699 N.W.2d 855 ).

[¶ 6] Hamilton argues the district court erred because he could not confer with his counsel or exchange documents during the evidentiary hearing. Specifically, Hamilton contends had he been able to consult with his attorney during the hearing he would have presented an exhibit he deemed relevant to his case. At the hearing Hamilton objected under N.D. Sup. Ct. Admin. R. 52, § 2(D) and (E), arguing he did not have the ability to consult with his counsel and he was unable to transmit documents. The district court overruled his objection, stating:

"The Court has before it North Dakota Administrative Rule 52, Subpart 2(D) and (E) and that rule reads as follows. Subpart (D) reads: Each interactive television site must provide a facility for a confidential attorney-client conference. There are two reasons that subpart does not apply today. This is not an interactive television site. Secondly, this is not an attorney-client conference. Subpart (E) provides: A method for electronic transmission of documents must be available at each interactive television site for use in conjunction with an interactive television proceeding. Because this is not an interactive television proceeding, the Court rules that does not apply in this case, and we will proceed with this hearing."

[¶ 7] The district court erred in its construction and application of N.D. Sup. Ct. Admin. R. 52. The district court erroneously cited the rule prior to the amendments effective March 2015. The correct version of Rule 52, § 2(D) and (E) reads:

"(D) Each site where reliable electronic means are used in a court proceeding must provide equipment or facilities for confidential attorney-client communication.

(E) A method for electronic transmission of documents must be available at each site where reliable electronic means are used in a court proceeding for use in conjunction with the proceeding."

N.D. Sup. Ct. Admin. R. 52, § 2(D) and (E) requires confidential communications and document transmission at each site where reliable electronic means are used. This requirement is not limited to interactive television proceedings. The requirements applied to Hamilton's hearing. In applying the obsolete version of N.D. Sup. Ct. Admin. R. 52, § 2(D) and (E), the district court erroneously determined the requirements did not apply to the proceeding.

[¶ 8] Because the district court erred construing the Administrative Rule, we next determine whether Hamilton was prejudiced by the error. This Court's standard for harmless error states:

"Unless justice requires otherwise, no error in admitting or excluding evidence, or any other error by the court or a party, is ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order. At every stage of the proceeding, the court must disregard all errors and defects that do not affect any party's substantial rights."

N.D.R.Civ.P. 61. This Court defines harmless error as "any error, defect, irregularity or variance which does not affect substantial rights. Stated simply, harmless error is error that is not prejudicial...." State v. Acker , 2015 ND 278, ¶ 12, 871 N.W.2d 603.

[¶ 9] At the evidentiary hearing Hamilton sought to introduce an exhibit he deemed relevant to his case. Hamilton's attorney was not aware of the exhibit at the time of the hearing. The district court allowed Hamilton's attorney to obtain the documents contained in the exhibit and file them following the hearing, subject to the State's objection. The district court referenced the exhibit in its order denying Hamilton's application for post-conviction relief. Because the district court allowed the record to stay open following the hearing and Hamilton's attorney filed the exhibit, any prejudicial effect of the district court's application of N.D. Sup. Ct. Admin. R. 52 was minimal. We conclude the district court's erroneous construction and application of N.D. Sup. Ct. Admin. R. 52, § 2(D) and (E) was harmless.

III

[¶ 10] Hamilton argues the district court erred in denying his request for a transport order. To the extent Hamilton argues the district court erred in denying his request because he had a right to be personally present at the hearing, Hamilton did not properly preserve the issue for review. Hamilton requested a transport order to be personally present at the evidentiary hearing. The district court denied his request, finding Hamilton provided no authority establishing a right to be personally present at the hearing. Hamilton's attorney then filed a document titled "affidavit" requesting relief consistent with the Department of Corrections' guidelines. The district court granted the exact relief Hamilton requested.

[¶ 11] Because Hamilton received the precise relief he requested, he has waived all ability to object to the district court's order. See State v. Cone , 2014 ND 130, ¶ 17, 847 N.W.2d 761 ("[I]t is fundamental that where [a litigant] ‘opened the door’ and ‘invited error’ there can be no reversible error.") (internal citation omitted). To the extent Hamilton claims he accepted the order because his transport request was denied, we apply harmless error analysis. See N.D.RCiv.P. 61.

[¶ 12] Hamilton provides no authority establishing a claimed right to appear personally at the hearing. In the context of other civil cases involving constitutional rights, namely termination of parental rights proceedings, this Court recognized prisoners have a limited right to personally appear at civil proceedings. Walbert v. Walbert , 1997 ND 164, ¶ 8, 567 N.W.2d 829. The right to appear is left within the sound discretion of the district court. Interest of F.H. , 283 N.W.2d 202, 209 (N.D. 1979).

[¶ 13] "Prisoners have diminished constitutional protections, but they maintain a due process right to reasonable access to the courts." Curtiss v. Curtiss , 2016 ND 197, ¶ 8, 886 N.W.2d 565. "A person's right to appear may be satisfied by allowing appearance via telephone." Id. (quoting St. Claire v. St. Claire , 2004 ND 39, ¶ 6, 675 N.W.2d 175 ). "[A] convict does not have a constitutional right to personally appear in a civil suit where he has been permitted to appear through counsel and by deposition, if appropriate." Walbert v. Walbert , 1997 ND 164, ¶ 8, 567 N.W.2d 829 (quoting Interest of F.H. , 283 N.W.2d 202, 209 (N.D. 1979) ).

[¶ 14] Hamilton was represented by counsel and testified by telephone...