                         IN THE SUPREME COURT
                      STATE OF NORTH DAKOTA


                                   2019 ND 47


Garron Gonzalez,                                           Petitioner and Appellant

       v.

State of North Dakota,                                    Respondent and Appellee


                                  No. 20180188


       Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable James S. Hill, Judge.

       REVERSED AND REMANDED.

       Opinion of the Court by McEvers, Justice.

       Kiara C. Kraus-Parr, Grand Forks, ND, for petitioner and appellant.

       Julie A. Lawyer, Assistant State’s Attorney, Bismarck, ND, for respondent and
appellee.
                                  Gonzalez v. State
                                    No. 20180188


       McEvers, Justice.
[¶1]   Garron Gonzalez appeals from an order summarily denying his application for
post-conviction relief and an order denying his motion for reconsideration and to
conduct discovery. Gonzalez argues the district court abused its discretion by
denying his application for post-conviction relief, his motion for reconsideration and
his motion for leave to conduct discovery. We reverse and remand, concluding the
court erred by summarily denying his application sua sponte and the error was not
rectified by the district court’s order on reconsideration.


                                           I
[¶2]   In 2004, Garron Gonzalez pleaded guilty to two counts of gross sexual
imposition and was sentenced. On February 27, 2018, after six prior applications for
post-conviction relief, Gonzalez, acting pro se, filed his seventh application for post-
conviction relief alleging the existence of newly discovered evidence. In his
application, Gonzalez claimed newly discovered DNA analysis results were available
at the time of the preliminary hearing on the gross sexual imposition charge even
though the detective testifying said he had not received the results. Gonzalez also
claimed the State withheld a related police report of gross sexual imposition filed by
the sister of one of the State’s witnesses. Finally, Gonzalez claims the State withheld
the results of the physical examination of the victim in the case, the results of which
he claims would not have supported the accusations. Gonzalez argues that had he
known about these three pieces of evidence, he would have elected to proceed to trial
instead of pleading guilty. He attached no supporting affidavits or documentation to
supplement his most recent application.




                                           1
[¶3]   On February 28, 2018, the State answered, raising the affirmative defenses of
statute of limitations, laches, misuse of process, and res judicata. Arguing misuse of
process, the State noted Gonzalez’s application was barred because he failed to raise
the claims in any of his six prior applications for post-conviction relief. The State did
not move for summary disposition.
[¶4]   On March 13, 2018, without a response from Gonzalez, the district court sua
sponte summarily denied his application, finding his seventh application for post-
conviction relief was barred as a misuse of process under N.D.C.C. § 29-32.1-12(2).
[¶5]   In its order denying Gonzalez’s application, the district court noted:
       Upon review of the latest petition, and in light of the procedural history
       of the multiple petitions filed by Gonzalez, the Court concludes that
       Petitioner Gonzalez had opportunities to bring the matter set forth in his
       seventh petition before the Court but chose not to.
               The Court concludes that Gonzalez should have brought up these
       issues at trial or during other proceedings before this date, but did not
       do so, and the Court therefore concludes that this present (and seventh)
       application is barred as a misuse of process.
[¶6]   Gonzalez applied for court-appointed counsel after the State’s answer, but was
not appointed an attorney until March 26, 2018. After Gonzalez was appointed an
attorney, he moved the district court to reconsider the denial of his application for
post-conviction relief, arguing the results of the DNA analysis would have been
material to the probable cause determination at the preliminary hearing and to his
decision to change his plea. Gonzalez attached a facsimile of the allegedly withheld
DNA analysis results and a portion of the transcript from the preliminary hearing as
exhibits to his motion to reconsider. He requested the court hold a hearing on the
application to address its merits. He also moved the court for leave to conduct
discovery.
[¶7]   The district court denied the motion for reconsideration, noting the motion was
untimely, but basing its ruling on the substance of the motion, holding the allegedly
newly discovered evidence would not have been material to the finding of probable
cause at the preliminary hearing. The court did not address whether the DNA analysis


                                           2
would have been material to Gonzalez’s decision to plead guilty. The court did not
reach the remaining issues because the motion to reconsider was denied.


                                         II
[¶8]   Post-conviction proceedings are civil in nature; thus, all rules and statutes
applicable in civil proceedings apply here. Johnson v. State, 2005 ND 188, ¶ 6, 705
N.W.2d 830; Ourada v. State, 2019 ND 10, ¶ 3, 921 N.W.2d 677. “An applicant has
the burden of establishing grounds for post-conviction relief.” Comes v. State, 2018
ND 54, ¶ 6, 907 N.W.2d 393 (quoting Chisholm v. State, 2014 ND 125, ¶ 8, 848
N.W.2d 703). That burden, however, has its limits: “A petitioner is not required to
include, with an application for post-conviction relief, supporting evidentiary
materials necessary to withstand a potential motion for summary dismissal.” Overlie
v. State, 2011 ND 191, ¶ 7, 804 N.W.2d 50 (citing N.D.C.C. § 29-32.1-04; State v.
Bender, 1998 ND 72, ¶ 19, 576 N.W.2d 210).
[¶9]   “Chapter 29-32.1, N.D.C.C., governs postconviction relief proceedings and
provides the district court the specific authority to dismiss sua sponte frivolous
postconviction relief applications.” State v. Holkesvig, 2015 ND 105, ¶ 9, 862
N.W.2d 531. The district 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.” N.D.C.C. § 29-32.1-09(1) (emphasis added). The court may
also summarily deny a successive application for similar relief on behalf of the same
applicant, or if the issues raised in the application have previously been decided by
the appellate court in the same case. See Chisholm, 2014 ND 125, ¶¶ 8-12 (discussing
the 2013 amendments to N.D.C.C. § 29-32.1-09 adding subsections (1) and (2) to
allow for a court to summarily dismiss an application for post-conviction relief in
certain circumstances). Subsections (2) and (3) of N.D.C.C. § 29-32.1-09, provide
additional grounds for summary disposition not relevant here.




                                         3
[¶10] We have previously explained the relationship between summary dismissal in
post-conviction relief settings and N.D.R.Civ.P. 12(b) and N.D.R.Civ.P. 56 as
follows:
       [S]ummary dismissal of an application is analagous to dismissal of a
       civil complaint under N.D.R.Civ.P. 12(b) for failure to state a claim
       upon which relief can be granted. The court may, on its own motion,
       dismiss a complaint for failure to state a valid claim. On appeal from
       a N.D.R.Civ.P. 12(b)(6) dismissal, we will construe the application in
       the light most favorable to the applicant, accepting the well-pleaded
       allegations as true. This Court will affirm a dismissal for failure to
       state a claim if it would be impossible for the applicant to prove a claim
       for which relief can be granted.
               When, however, matters outside the pleading are considered, the
       motion must be treated as a summary judgment motion under
       N.D.R.Civ.P. 56. A court may summarily dismiss an application for
       post-conviction relief under N.D.C.C. § 29-32.1-09, which is analogous
       to summary judgment, if there are no genuine issues of material fact
       and the moving party is entitled to judgment as a matter of law. . . .
       Under N.D.C.C. § 29-32.1-09(1), however, the court may dismiss a
       meritless application considering only the information in the
       application.
Chase v. State, 2017 ND 192, ¶¶ 6-7, 899 N.W.2d 280 (internal citations and
quotations omitted); see also Chisholm, 2014 ND 125, ¶ 16 (“N.D.C.C. § 29-32.1-
09(1) authorizes the court to dismiss a meritless application considering only the
information in the application.”).


                                           A
[¶11] On appeal, Gonzalez argues the district court erred by summarily denying his
application for post-conviction relief. He claims the court denied his application
prematurely because he had not yet received court-appointed counsel and also because
there remained genuine issues of material fact concerning the allegedly newly
discovered evidence. Gonzalez claims his application raised genuine issues of
material fact regarding the date the newly discovered evidence was actually
discovered, whether his failure to learn about the evidence at the time of trial was due
to his own lack of diligence, whether the evidence is material to trial issues, and

                                           4
whether the weight and quality of the newly discovered evidence is dispositive.
While we do not address each of Gonzalez’s contentions, we agree the court erred in
sua sponte summarily denying his application because it did not allow Gonzalez
notice and the opportunity to file an answer brief with supporting materials to show
the existence of a genuine issue of material fact. The court summarily denied
Gonzalez’s application without a hearing for misuse of process, because he failed to
raise his issue in prior petitions, relying on N.D.C.C. § 29-32.1-12(2). Section 29-
32.1-12(2), N.D.C.C., provides:
       A court may deny relief on the ground of misuse of process. Process
       is misused when the applicant:
       a.     Presents a claim for relief which the applicant inexcusably failed
              to raise either in a proceeding leading to judgment of conviction
              and sentence or in a previous postconviction proceeding; or
       b.     Files multiple applications containing a claim so lacking in
              factual support or legal basis as to be frivolous.
[¶12] Although the order does not specify under what authority the court summarily
denied the application, we conclude it must fall under N.D.C.C. § 29-32.1-09(1) since
subsections (2) and (3) are irrelevant as neither party moved for dismissal (and
nothing indicates the court mistakenly believed either actually did) and the application
does not allege ineffective assistance of post-conviction counsel. Section 29-32.1-
09(1), N.D.C.C., provides:
       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.
[¶13] The district court may only grant summary disposition sua sponte under
N.D.C.C. § 29-32.1-09 before the State responds. See Ourada, 2019 ND 10, ¶ 4
(discussing N.D.C.C. § 29-32.1-09(1)). Here, the court denied Gonzalez’s application
after the State responded. In Ourada, the court treated the State’s answer as a motion
for summary disposition. Id. at ¶¶ 4, 6. We reiterated our requirement that an

                                           5
applicant for post-conviction relief is entitled to due process, and requires notice and
an opportunity to be heard. Id. at ¶ 6 (relying on Chisholm, 2014 ND 125, ¶ 18).
Even if we assumed the court treated the State’s answer as a motion for summary
disposition, Ourada reiterates the notice component required in motion pleadings:
       Under N.D.R.Ct. 3.2, “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.”
       N.D.R.Ct. 3.2(a)(1). “Rule 3.2 authorizes the hearing of routine
       motions on brief without formal oral arguments but does not dispense
       with the requirement that a motion must be noticed.” First W. Bank of
       Minot v. Wickman, 464 N.W.2d 195, 196 (N.D. 1990).
2019 ND 10, ¶ 5. The court erred in denying Gonzalez’s application without allowing
him notice.
[¶14] Because the district court erred by denying his application, we next determine
whether Gonzalez 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.
Hamilton v. State, 2017 ND 54, ¶ 8, 890 N.W.2d 810. “This Court’s objective in
reviewing nonconstitutional error is to determine whether the error was so prejudicial
that substantial injury occurred and a different decision would have resulted without
the error.” Syvertson v. State, 2000 ND 185, ¶ 37, 620 N.W.2d 362. Because
Gonzalez was able to submit his claimed newly discovered evidence to the court, and
the court considered the evidence and his motion to reconsider on the merits, the error
in failing to provide notice to Gonzalez did not result in prejudice to him, unless the
court erred in its analysis relating to the newly discovered evidence.
                                            6
                                          III
[¶15] Gonzalez argues the district court abused its discretion by denying his motion
for reconsideration and his motion for leave to conduct discovery. In his motion to
reconsider, Gonzalez argued the court should have permitted him to present the
allegedly newly discovered evidence instead of summarily denying his application for
post-conviction relief. He argued that the results of the DNA analysis were available
prior to the preliminary hearing, but not disclosed to him, and would have been
material to his decision to change his plea to guilty. Gonzalez attached the DNA
analysis results as an exhibit to his motion to reconsider.        He cited to both
N.D.R.Civ.P. 60(b) and N.D.R.Civ.P. 59(j) as the vehicles through which he moved
to reconsider.
[¶16] We will reverse a district court’s denial of a motion for relief from judgment
only if the court abused its discretion. Flaten v. Couture, 2018 ND 136, ¶ 27, 912
N.W.2d 330 (“A district court’s decision on a motion to alter or amend a judgment
under N.D.R.Civ.P. 59(j) or on a motion for relief from judgment under N.D.R.Civ.P.
60(b) will not be reversed on appeal unless the court abused its discretion.”). “A
court abuses its discretion when it acts in an arbitrary, unreasonable, or
unconscionable manner, or when it misinterprets or misapplies the law, or when its
decision is not the product of a rational mental process leading to a reasoned
determination.” Flaten, at ¶ 27.
[¶17] In its order on Gonzalez’s motion to reconsider, the district court
acknowledged it did not reach the merits of Gonzalez’s case when denying his
application for post-conviction relief because it denied on the ground of misuse of
process. The court stated Gonzalez alleged the newly discovered evidence could have
been material to the probable cause determination at the preliminary hearing, but it
did not address Gonzalez’s argument alleging the newly discovered evidence would
have been material to his decision to plead guilty rather than proceed to trial.
[¶18] The district court found that there was an overwhelming amount of probable
cause already present, irrespective of the presence or absence of the allegedly

                                          7
withheld evidence, such that the finding of probable cause would not have been
vitiated had the allegedly withheld evidence been available. Gonzalez has not
challenged the court’s finding on this issue on appeal.
[¶19] However, the district court’s order on the motion to reconsider did not address
Gonzalez’s argument that the DNA analysis results would have been material to his
decision to plead guilty rather than proceed to trial. Without the court addressing this
argument, we cannot conclude Gonzalez was not prejudiced by the court’s error in
initially summarily denying his application.


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


                                           V
[¶21] We reverse the order denying the application for post-conviction relief and
remand for further proceedings.
[¶22] Lisa Fair McEvers
      Daniel J. Crothers
      Jerod E. Tufte
      Jon J. Jensen
      Gerald W. VandeWalle, C.J.




                                           8
