                 Filed 10/03/19 by Clerk of Supreme Court


                    IN THE SUPREME COURT
                    STATE OF NORTH DAKOTA

                                2019 ND 236

State of North Dakota,
                                                        Plaintiff and Appellee
     v.
Jason James Vogt,                                    Defendant and Appellant



                                No. 20190124

Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable John C. Irby, Judge.

REVERSED AND REMANDED.

Opinion of the Court by VandeWalle, Chief Justice.

Tracy E. Hines, Assistant State’s Attorney, Fargo, ND, for plaintiff and
appellee; submitted on brief.

Jason James Vogt, self-represented, Jamestown, ND, defendant and appellant;
submitted on brief.
                              State v. Vogt
                              No. 20190124


VandeWalle, Chief Justice.

[¶1] Jason James Vogt appealed from a district court’s orders summarily
dismissing his motion to vacate judgment and withdraw guilty plea. Vogt
argues the district court erred by denying his motion before allowing him
time to respond pursuant to N.D.R.Ct. 3.2(a)(2). We reverse and remand for
further proceedings.

                                     I

[¶2] In 2014, Vogt pleaded guilty to one felony count of gross sexual
imposition and was sentenced. In 2015, Vogt applied for post-conviction
relief alleging ineffective assistance of counsel. The district court denied
Vogt’s application. Vogt appealed and this Court affirmed. Vogt v. State,
2016 ND 48, 876 N.W.2d 485. In 2017, Vogt filed a second application for
post-conviction relief. The application was denied, and Vogt did not appeal.

[¶3] On March 7, 2019, Vogt filed a N.D.R.Ct. 3.2 motion to vacate
judgment and withdraw guilty plea under N.D.R.Crim.P. 11(d). Vogt
alleged: (1) his confession was coerced; (2) his attorney misinformed him of
the sentence he would receive if he pleaded guilty; and (3) his plea was not
entered into voluntarily, knowingly, or intelligently.

[¶4] On March 11, 2019, the State answered. Without explicitly asserting
them, the State raised the affirmative defenses of res judicata and misuse
of process. The State argued that Vogt’s claims were barred because the
basis for his claims had already been litigated in his previous applications
for post-conviction relief. The State did not move for summary disposition.

[¶5] On March 13, 2019, without a response from Vogt, the district court
issued its order denying Vogt’s motion. The court found that Vogt entered a
knowing and voluntary plea. The court also determined that Vogt’s motion




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argued ineffective assistance of counsel, which was the basis for his
previous applications for post-conviction relief.

[¶6] On March 25, 2019, Vogt filed a reply brief responding to the State’s
arguments. On the same day, the district court issued an “Order Confirming
Order Denying Defendant’s Motion to Withdraw Guilty Plea AND Order
Denying Motion.”

                                      II

[¶7] Vogt moved to vacate the criminal judgment and withdraw his guilty
plea under N.D.R.Crim.P. 11(d). Vogt’s motion was not titled as an
application for post-conviction relief, but he has previously filed two post-
conviction relief applications. When 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.” Chase v. State, 2019 ND 214, ¶ 4; State v. Atkins,
2019 ND 145, ¶ 11, 928 N.W.2d 441; State v. Gress, 2011 ND 233, ¶ 6, 807
N.W.2d 567. Because Vogt has filed two previous post-conviction relief
applications, we consider Vogt’s motion as his third application for post-
conviction relief.

                                     III

[¶8] Vogt argues that the district court summarily dismissed his
application without being provided proper notice pursuant to N.D.R.Ct. 3.2.
Section 29-32.1-09, N.D.C.C., provides:

      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.
             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.
      ....

                                      2
      3.    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.

Under N.D.C.C. § 29-32.1-09(1), the district court may only summarily
dismiss an application sua sponte before the State responds. Gonzalez v.
State, 2019 ND 47, ¶ 13, 923 N.W.2d 143 (citing Ourada v. State, 2019 ND
10, ¶ 4, 921 N.W.2d 677). After the State responds, “summary dismissal on
the court’s own motion is no longer an option under N.D.C.C. § 29-32.1-
09(1).” Chase, at ¶ 8 (citing Ourada, at ¶ 3). If the court grants summary
disposition after the State responds, it must do so on the motion of either
party under N.D.C.C. § 29-32.1-09(3). See Chase, at ¶ 8; Gonzalez, at ¶ 13;
Ourada, at ¶ 3.

[¶9] A district court may treat a party’s answer as a motion to summarily
dismiss. See Chase, at ¶ 8 (citing Ourada, at ¶ 6). But in doing so, a
defendant must be provided notice and an opportunity to be heard pursuant
to N.D.R.Ct. 3.2. Id.; see also Chisholm v. State, 2014 ND 125, ¶¶ 17-19, 848
N.W.2d 703 (holding defendant must be “provided with notice and an
opportunity to present evidence raising a genuine issue of material fact”
when the district court relies on information outside the application in
summarily dismissing). Under N.D.R.Ct. 3.2(a)(1): “Notice must be served
and filed with a motion. The notice must indicate the time of oral argument,
or that the motion will be decided on briefs unless oral argument is timely
requested.”

[¶10] Determining whether the district court summarily dismissed Vogt’s
motion on its own under N.D.C.C. § 29-32.1-09(1) or treated the State’s
answer as a motion for summary dismissal under N.D.C.C. § 29-32.1-09(3)
is unnecessary. Because the State filed its answer, Vogt should have been
provided proper notice, pursuant to N.D.R.Ct. 3.2, that the court intended
to summarily dismiss Vogt’s motion. Vogt’s application for post-conviction


                                     3
relief was summarily dismissed subsequent to the State’s response and
without proper notice. We conclude summary dismissal was not
appropriate.

                                   IV

[¶11] It is unnecessary to address other issues raised on appeal because
they are either without merit or unnecessary to the decision.

                                    V

[¶12] We reverse the orders dismissing the application for post-conviction
relief and remand for further proceedings.

[¶13] Gerald W. VandeWalle, C.J.
      Jon J. Jensen
      Lisa Fair McEvers
      Daniel J. Crothers
      Jerod E. Tufte




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