                 Filed 8/5/19 by Clerk of Supreme Court
                         IN THE SUPREME COURT
                      STATE OF NORTH DAKOTA


                                  2019 ND 210


Sean Michael Kovalevich,                                  Petitioner and Appellant

      v.

State of North Dakota,                                   Respondent and Appellee


                           Nos. 20190024 & 20190025


       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 VandeWalle, Chief Justice.

      Sean M. Kovalevich, self-represented, Bismarck, ND, petitioner and appellant;
submitted on brief.

      Meredith H. Larson, Assistant State’s Attorney, Grand Forks, ND, for
respondent and appellee; submitted on brief.
                                 Kovalevich v. State
                            Nos. 20190024 & 20190025


       VandeWalle, Chief Justice.
[¶1]   Sean Kovalevich appealed from district court orders summarily dismissing: (1)
a motion for relief from an order denying an application for post-conviction relief, and
(2) an application for post-conviction relief on the grounds of newly discovered
evidence. The court concluded Kovalevich could have raised the arguments presented
in his motion and application in earlier proceedings. We affirm.


                                           I
[¶2]   In October 2013, a jury found Kovalevich guilty of two counts of gross sexual
imposition and one count of corruption of a minor. The conviction resulted from
sexual acts occurring in 2012 at the Canad Inn in Grand Forks. Kovalevich was
sentenced to 30 years in prison and 10 years of supervised probation. Kovalevich
appealed and his conviction was affirmed on appeal. State v. Kovalevich, 2015 ND
11, 858 N.W.2d 625.
[¶3]   In November 2015 and April 2017, Kovalevich filed applications for post-
conviction relief. The applications were denied and affirmed on appeal. Kovalevich
v. State, 2017 ND 40, 891 N.W.2d 778; Kovalevich v. State, 2018 ND 184, 915
N.W.2d 644.
[¶4]   In September 2018, Kovalevich filed a motion for relief under N.D.R.Civ.P.
60(b) relating to the denial of his April 2017 application for post-conviction relief.
He alleged the prosecuting attorney engaged in misrepresentation and misconduct in
the post-conviction proceeding. He claimed the attorney assisted a BCI agent in
falsely testifying at the evidentiary hearing.
[¶5]   In November 2018, Kovalevich filed another application for post-conviction
relief. He argued newly discovered evidence, specifically, information contained in
Canad Inn receipts from February and August 2012, showed he did not engage in the

                                           1
charged conduct. His application also claimed newly discovered evidence showed the
affidavit supporting the issuance of a search warrant for his residence contained false
and intentionally misleading statements, and the BCI lacked jurisdiction to investigate
him. In response, the State argued Kovalevich was relitigating claims he raised in
earlier proceedings and sought summary dismissal of Kovalevich’s motion for relief
and application for post-conviction relief.
[¶6]   The district court summarily dismissed both the motion and the November
2018 application for post-conviction relief. The court treated Kovalevich’s Rule
60(b) motion as an application for post-conviction relief and concluded Kovalevich
was attempting to relitigate issues he raised in earlier proceedings. With regard to the
application for post-conviction relief, the court held the February and August 2012
Canad Inn receipts could have been presented in earlier proceedings, and the weight
and quality of the additional evidence Kovalevich presented would not likely result
in Kovalevich’s acquittal.


                                           II
[¶7]   Post-conviction relief is governed by N.D.C.C. ch. 29-32.1. “Post-conviction
relief proceedings are civil in nature and governed by the North Dakota Rules of Civil
Procedure.” Wacht v. State, 2015 ND 154, ¶ 6, 864 N.W.2d 740 (quoting Haag v.
State, 2012 ND 241, ¶ 4, 823 N.W.2d 749); see also Burden v. State, 2019 ND 178,
¶ 10, (stating the rules of civil procedure apply to the extent they are not inconsistent
with statutory requirements for post-conviction proceedings). On appeal from a post-
conviction relief proceeding, questions of law are fully reviewable. Wacht, at ¶ 6.
[¶8]   A district court may summarily dismiss an application for post-conviction
relief “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.” N.D.C.C. § 29-32.1-09(3).
We review an appeal from summary dismissal of post-conviction relief as we would
review an appeal from a summary judgment. Wacht, 2015 ND 154, ¶ 6, 864 N.W.2d

                                           2
740. The party resisting the motion for summary dismissal is entitled to all reasonable
inferences to be drawn from the evidence and is entitled to an evidentiary hearing if
a reasonable inference raises a genuine issue of material fact. Id.


                                          III
[¶9]   Kovalevich argues the district court erred in denying his N.D.R.Civ.P. 60(b)
motion. He claims the court erred in treating his Rule 60(b) motion for relief as an
application for post-conviction relief. Kovalevich claims he was entitled to relief on
the basis of fraud and misconduct under N.D.R.Civ.P. 60(b)(3). He argues the
prosecuting attorney engaged in misrepresentation and assisted a BCI agent in falsely
testifying at the evidentiary hearing relating to his April 2017 post-conviction relief
application. In response, the State asserts Kovalevich’s motion was an attempt to
relitigate his April 2017 application for post-conviction relief. We agree.
[¶10] In State v. Atkins, 2019 ND 145, ¶ 11, 928 N.W.2d 438, we quoted N.D.C.C.
§ 29-32.1-01(4) as follows, and then held:
              A proceeding under this chapter is not a substitute for
              and does not affect any remedy incident to the
              prosecution in the trial court or direct review of the
              judgment of conviction or sentence in an appellate court.
              Except as otherwise provided in this chapter, a
              proceeding under this chapter replaces all other common
              law, statutory, or other remedies available before July 1,
              1985, for collaterally challenging the validity of the
              judgment of conviction or sentence. It is to be used
              exclusively in place of them. A proceeding under this
              chapter is not available to provide relief for disciplinary
              measures, custodial treatment, or other violations of civil
              rights of a convicted person occurring after the
              imposition of sentence.
       A plain reading of this provision is that the Uniform Postconviction
       Procedure Act is to be used exclusively in place of other remedies
       collaterally challenging the judgment of conviction. We hold that a
       defendant may not avoid the procedures of the Uniform Postconviction
       Procedure Act by designating his motion under a rule of criminal
       procedure or by filing his motion in his criminal file, rather than filing
       as a new action for post-conviction relief. We agree with the district

                                           3
       court and consider this motion [to withdraw a guilty plea] as a third
       application for post-conviction relief.
See State v. Gress, 2011 ND 233, 807 N.W.2d 567. We now hold this applies to relief
under Rule 60(b) of the North Dakota Rules of Civil Procedure as well. Gress, 2011
ND 233, 807 N.W.2d 567.
[¶11] The district court concluded Kovalevich’s motion for relief was an attempt to
relitigate issues he raised in earlier proceedings:
              The entire record in this case, combined with the records
       developed in prior post-conviction relief actions, and his various
       appeals, shows that Kovalevich has repeatedly litigated and re-litigated
       the same claims including the claims now raised in this pending third
       post-conviction relief action currently under review by this court. The
       North Dakota Supreme Court considered these exact arguments and
       allegations in Kovalevich v. State, 2018 ND 184, 915 N.W.2d 644.
The court held Kovalevich was barred from raising the claims presented in his motion
on the basis of misuse of process and res judicata under N.D.C.C. § 29-32.1-12.
[¶12] Kovalevich’s motion for relief simply states the State engaged in
misrepresentation and fraud without further explanation. His motion primarily argues
that a July 2012 Canad Inn receipt, coupled with the victim’s statements, shows he did
not commit the charged conduct.          Kovalevich’s April 2017 application for
post-conviction relief alleged the July 2012 Canad Inn receipt was newly discovered
evidence. This Court addressed his argument related to the July 2012 hotel receipt
in Kovalevich, 2018 ND 184, ¶¶ 6-7, 915 N.W.2d 644.
[¶13] A motion for relief must be denied when the movant attempts to relitigate the
case. Dvorak v. Dvorak, 2001 ND 178, ¶ 12, 635 N.W.2d 135; see also N.D.C.C. §
29-32.1-12(1) (Stating “[a]n application for postconviction relief may be denied on
the ground that the same claim or claims were fully and finally determined in a
previous proceeding.”). A review of Kovalevich’s motion for relief demonstrates an
attempt to relitigate an issue raised in his April 2017 application for post-conviction
relief. We conclude the district court did not err in treating Kovalevich’s motion for
relief as an application for post-conviction relief, and did not err in summarily
dismissing the motion.
                                           4
                                           IV
[¶14] Kovalevich argues the district court erred in summarily dismissing his
November 2018 application for post-conviction relief. He contends he is entitled to
relief on the basis of newly discovered evidence. Kovalevich also asserts the court
erred by denying his request for court-appointed counsel.
[¶15] Applications for post-conviction relief must be filed within two years of the
date of the conviction becoming final. N.D.C.C. § 29-32.1-01(2). An exception to
this rule is if the petitioner alleges newly discovered evidence, “which if proved and
reviewed in light of the evidence as a whole, would establish that the petitioner did
not engage in the criminal conduct for which the petitioner was convicted.” N.D.C.C.
§ 29-32.1-01(3)(a)(1).
[¶16] An application for post-conviction relief based on newly discovered evidence
is similar to a request for a new trial based on newly discovered evidence under
N.D.R.Crim.P. 33. Wacht, 2015 ND 154, ¶ 11, 864 N.W.2d 740. To prevail on a
motion for a new trial on the grounds of newly discovered evidence, the defendant
must show: “(1) the evidence was discovered after trial, (2) the failure to learn about
the evidence at the time of trial was not the result of the defendant’s lack of diligence,
(3) the newly discovered evidence is material to the issues at trial, and (4) the weight
and quality of the newly discovered evidence would likely result in an acquittal.” Id.
(quoting Syvertson v. State, 2005 ND 128, ¶ 9, 699 N.W.2d 855).


                                            A
[¶17] Kovalevich argues information contained in the February and August 2012
Canad Inn receipts contradict the victim’s testimony and show he did not engage in
the charged conduct. Kovalevich states he obtained the receipts after writing letters
to Canad Inn requesting the receipts.




                                            5
[¶18] The district court concluded Kovalevich’s claim of newly discovered evidence
related to the Canad Inn receipts were barred by the doctrines of res judicata and
misuse of process. The court found the receipts were not newly discovered because:
       [T]he receipts/documents in question was evidence created by
       Kovalevich’s actions and activities well before trial, that Kovalevich
       was fully aware of the existence of those receipts/documents well
       before trial, and that Kovalevich had complete access to and the ability
       to acquire those receipts/documents, and any exculpatory evidence
       contained therein, well before trial. . . . Further, Kovalevich’s now
       claimed newly discovered evidence is evidence that could’ve been
       obtained and presented by Kovalevich at the second post-conviction
       relief hearing held on October 20, 2017.
The court found Kovalevich’s argument was a misuse of process because “it is
inexcusable to not have addressed this issue previously.” The court also found the
weight and quality of Kovalevich’s alleged newly discovered evidence would not
likely result in acquittal.
[¶19] We conclude the district court did not err in dismissing Kovalevich’s argument
relating to the February and August 2012 hotel receipts. Kovalevich has not shown
“the failure to learn about the evidence at the time of trial was not the result of the
defendant’s lack of diligence.” Wacht, 2015 ND 154, ¶ 11, 864 N.W.2d 740. The
court correctly noted Kovalevich was aware of the receipts and had complete access
to the receipts before trial. Kovalevich could have raised this issue at trial or at the
very latest, in his April 2017 application for post-conviction relief when he made a
similar claim relating to the July 2012 Canad Inn receipt. Furthermore, we agree with
the court that the hotel receipts, which Kovalevich argues would impeach the victim’s
testimony, would not likely result in an acquittal.


                                           B
[¶20] Kovalevich claims newly discovered evidence exists showing that a BCI
agent’s affidavit supporting the issuance of a search warrant for Kovalevich’s
residence contained statements which were known to the agent to be false and
misleading. Kovalevich states that after trial, he received Bureau of Indian Affairs

                                           6
(BIA) reports containing information about him that differed from the information
included in the affidavit in support of a search warrant. Kovalevich argues the BCI
agent had knowledge of the information in the reports and because of that, the agent
provided knowingly false information in his affidavit supporting the issuance of a
search warrant for Kovalevich’s residence.
[¶21] The district court concluded Kovalevich could not prove the weight and quality
of the alleged newly discovered evidence would result in an acquittal. The court held
that even if the BIA reports were discovered after trial, the search warrant was
available to him and he would have been aware of the misinformation in the search
warrant before trial.
[¶22] Kovalevich raises two differences between the BIA reports and the agent’s
affidavit to show the agent provided false information in his affidavit. First, he claims
the affidavit states Kovalevich lived in Cando in 2010, but the BIA reports, which
contain his known address history, do not show a Cando address in 2010. Second, he
contends the affidavit states Kovalevich was found in the shower with a minor at a
casino, but the BIA reports state only that he looked like he had just gotten out of the
shower.
[¶23] After reviewing the BIA reports and the affidavit in support of the search
warrant, we conclude the alleged newly discovered evidence is not material to the
issues at trial, and the weight and quality of the evidence would not likely result in an
acquittal. There is no evidence the agent knowingly provided false information in his
affidavit. The affidavit discusses the agent’s November 2012 interview with the
victim where she stated she began a dating relationship with Kovalevich in 2010 when
she went to his apartment in Cando. That the address information in the BIA reports
differed from the affidavit does not establish the agent knowingly provided false
information. The agent simply stated what the victim told him in the interview.
Additionally, the information in the affidavit about Kovalevich being in the shower
with a minor is included in the BIA reports. We conclude Kovalevich’s argument on
this issue is without merit, and the district court did not err in dismissing this claim.

                                           7
                                          C
[¶24] Kovalevich argues newly discovered evidence exists showing the BCI lacked
jurisdiction to investigate him. Kovalevich concedes he has argued this issue in
earlier proceedings; therefore, we need not address the issue.


                                          D
[¶25] Kovalevich further contends the district court erred by denying his request for
court-appointed counsel. The court has discretion to appoint counsel in a post-
conviction relief proceeding. Murchison v. State, 1998 ND 96, ¶ 18, 578 N.W.2d 514.
In its order denying Kovalevich’s application the court stated “[b]ecause Kovalevich’s
application/motion for post-conviction relief is summarily denied it is not necessary
to appoint him legal counsel.” We conclude the court did not abuse its discretion by
denying Kovalevich’s request for court-appointed counsel.


                                          V
[¶26] We have considered Kovalevich’s remaining arguments and conclude they are
either not necessary to our decision or without merit. The orders are affirmed.
[¶27] Gerald W. VandeWalle, C.J.
      Jerod E. Tufte
      Daniel J. Crothers
      Lisa Fair McEvers
      Paul W. Jacobson, D.J.

[¶28] The Honorable Paul W. Jacobson, D.J., sitting in place of Jensen, J.,
disqualified.




                                          8
