IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2021 ND 92

Larry A. Froistad, Plaintiff and Appellant

v.

State of North Dakota, Defendant and Appellee

No. 20200274

Appeal from the District Court of Bowman County, Southwest Judicial 

District, the Honorable William A. Herauf, Judge.

AFFIRMED.

Opinion of the Court by Tufte, Justice.

Steven R. Morrison, Grand Forks, N.D., for plaintiff and appellant.

Andrew J. Q. Weiss, State’s Attorney, Bowman, N.D., for defendant and 

appellee.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

MAY 20, 2021 

STATE OF NORTH DAKOTA
1

Froistad v. State

No. 20200274

Tufte, Justice.

[¶1] Larry Froistad appeals from an order denying his application for 

postconviction relief to withdraw his guilty plea. We affirm, concluding 

Froistad’s claims are barred by res judicata and misuse of process.

I

[¶2] In 1998, Froistad pled guilty to murdering his daughter by setting fire to 

his residence when she was inside. In 2000, Froistad filed his first application 

for postconviction relief, arguing: (1) the district court failed to honor his 

request to withdraw his guilty plea, (2) the court failed to establish a factual 

basis for his guilty plea, (3) the court failed to ensure his plea was voluntary, 

(4) the court violated his right to be present during the proceedings, and (5) he 

received ineffective assistance of counsel. The district court denied relief, and 

we affirmed. See Froistad v. State, 2002 ND 52, 641 N.W.2d 86.

[¶3] In 2012, Froistad filed a second application for postconviction relief, 

arguing the State withheld exculpatory evidence and newly discovered 

evidence warranted a new trial. The district court summarily denied the 

application, and we summarily affirmed. See Froistad v. Schmalenberger, 2013 

ND 42, 832 N.W.2d 334.

[¶4] In January 2020, Froistad filed his third application for postconviction 

relief to withdraw his guilty plea under N.D.R.Crim.P. 11 and N.D.C.C. ch. 29-

32.1. The State responded and raised the affirmative defenses of res judicata 

and misuse of process. After an evidentiary hearing, the district court denied 

the application because it was untimely under N.D.C.C. § 29-32.1-01, and the 

claims were barred by res judicata and misuse of process under N.D.C.C. § 29-

32.1-12. The court also concluded the alleged newly discovered evidence of false 

confessions, when reviewed in light of the evidence as a whole, would not 

establish that Froistad did not commit murder.
2

II

[¶5] Froistad argues the district court erred by concluding his claims were 

barred by res judicata. “Generally, the applicability of res judicata is a question 

of law and is fully reviewable on appeal.” State v. Atkins, 2019 ND 145, ¶ 12, 

928 N.W.2d 441.

[¶6] Froistad moved to withdraw his guilty plea under N.D.R.Crim.P. 11 and 

N.D.C.C. ch. 29-32.1. “When a defendant applies for post-conviction relief 

seeking to withdraw a guilty plea, the application is treated as one made 

under N.D.R.Crim.P. 11(d).” State v. Gress, 2011 ND 233, ¶ 7, 807 N.W.2d 567. 

Under N.D.R.Crim.P. 11(d)(2), the defendant cannot withdraw a guilty plea 

after the court has imposed a sentence, unless the defendant proves 

withdrawal is necessary to correct a manifest injustice. We have held that 

“even when a motion following conviction is denominated as a motion under 

the North Dakota Rules of Criminal Procedure, the provisions of the Uniform 

Postconviction Procedure Act, N.D.C.C. ch. 29-32.1, are applicable.” Atkins, 

2019 ND 145, ¶ 11.

[¶7] Section 29-32.1-12, N.D.C.C., provides, in relevant part:

1. An 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.

2. 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[.]

“Post-conviction proceedings are not intended to allow defendants multiple 

opportunities to raise the same or similar issues, and defendants who 

inexcusably fail to raise all of their claims in a single post-conviction 

proceeding misuse the post-conviction process by initiating a subsequent 

application raising issues that could have been raised in the earlier 
3

proceeding.” Atkins, 2019 ND 145, ¶ 12. In Atkins, we barred the criminal 

defendant’s N.D.R.Crim.P. 11 claims under res judicata and misuse of process. 

Id. at ¶¶ 14, 16.

[¶8] Froistad’s latest application for postconviction relief makes many of the 

same claims he made in his two previous applications, which the district court 

denied and we affirmed.

[¶9] First, Froistad claims his guilty plea was not supported by an adequate 

factual basis, he moved to withdraw his plea, and the district court abused 

its discretion by not granting his motion to withdraw his plea, further inquire 

into the matter, or hold a hearing. Froistad alleged in his first application for 

postconviction relief that the district court failed to honor his request to 

withdraw his guilty plea and failed to establish a factual basis for his guilty 

plea. We concluded the court did not err in finding Froistad made no request 

to withdraw his guilty plea and in finding a sufficient factual basis existed. 

Froistad v. State, 2002 ND 52, ¶¶ 16, 24.

[¶10] Second, Froistad asserts his guilty plea was involuntary. He made this 

claim in his first application, and we concluded the district court did not err in 

finding his plea was voluntary. Froistad v. State, 2002 ND 52, ¶ 31. Third, 

Froistad claims he received ineffective assistance of counsel because counsel 

failed to obtain a psychiatric evaluation of him and inform the court of his 

desire to withdraw his plea. We addressed this claim on appeal of his first 

application, concluding the court did not err in finding Froistad did not suffer 

from ineffective assistance of counsel. Id. at ¶¶ 38, 41.

[¶11] Fourth, Froistad contends the State withheld exculpatory evidence in 

violation of Brady v. Maryland, 373 U.S. 83 (1963). This was the subject of his 

second application for postconviction relief. We summarily affirmed the district 

court’s denial of relief. Froistad v. Schmalenberger, 2013 ND 42, ¶ 1. Because 

these four claims were fully and finally determined in previous proceedings, 

they are barred by res judicata. See N.D.C.C. § 29-32.1-12(1).

[¶12] Froistad claims he was incompetent to plead guilty, and the district court 

should have ordered a competency evaluation on its own motion. These claims 
4

are similar to the issue of whether Froistad’s plea was knowing and voluntary, 

which was raised in the first application, rejected by the district court, and 

affirmed by this Court. However, to the extent they differ, Froistad inexcusably 

failed to raise these claims in his previous applications for postconviction relief.

Although the district court concluded these claims were barred by res judicata, 

as opposed to a misuse of process, such is not reversible error. See Myers v. 

State, 2017 ND 66, ¶ 10, 891 N.W.2d 724 (stating that “[w]e will not set aside 

a district court’s decision simply because the court applied an incorrect reason, 

if the result is the same under the correct law and reasoning”).

[¶13] Froistad argues the district court erred by not allowing him to withdraw 

his guilty plea due to the existence of newly discovered evidence. He asserts

the following is newly discovered evidence: (1) a “new understanding of the 

prevalence of false confessions, along with Dr. [Bruce] Frumkin’s expert 

opinion regarding Froistad’s confession”; (2) Dr. Michael Farnsworth’s 

evaluation, report, and expert opinion that “Froistad’s confessions were false”; 

(3) a “new understanding of computer mediated communication, which cannot 

be understood in the same way we understand other forms of communication,”

along with Dr. Nicholas Bowman’s expert opinion that “Froistad’s online 

confessions are unreliable as reflective of the truth”; and (4) Clare Hochhalter’s 

opinion that Froistad did not commit murder.

[¶14] The district court found that the study of false confessions is not a new 

science. The testimony at the evidentiary hearing is consistent with the court’s 

finding. Dr. Frumkin testified to the study of false confessions, stating “since 

the mid-’90s and late 1990s, there’s been a lot of research out there and a lot 

of workshops and conferences and publications.” Dr. Farnsworth noted in his 

psychiatric report that the field of psychiatry has not progressed substantially 

in the understanding of psychosis or treatment since 1998. Dr. Bowman 

testified that the study of computer-mediated communication existed in 1998, 

and was “established” by the early to mid-2000s. Although some of these areas 

of study are now more developed, they existed prior to Froistad’s first 

application for postconviction relief in 2000, and all areas of study were wellestablished by his second application in 2012. Thus, without deciding whether 

in other circumstances this information may constitute newly discovered 
5

evidence, we conclude Froistad inexcusably failed to raise these claims in his 

previous applications for postconviction relief, and are barred as a misuse of 

the postconviction process. See N.D.C.C. § 29-32.1-12(2)(a).

[¶15] Clare Hochhalter, who was the prosecutor assigned to Froistad’s federal 

case in 1998, also testified at the evidentiary hearing and submitted an 

affidavit. Froistad argues Hochhalter’s opinion on his culpability is newly 

discovered evidence. The district court found:

On October 30, 2012, attorneys for Froistad filed a “Motion to 

Discover Newly Discovered Evidence.” The newly discovered 

evidence was that of a letter/email from then Assistant U.S. 

Attorney Clare Hochhalter which basically reiterates much of 

the testimony that now Magistrate Clare Hochhalter testified to 

in front of this Court. The entire record in front of Judge Anderson 

and the letter/email from Clare Hochhalter went up before 

the North Dakota Supreme Court in the case of Froistad v. 

Schmalenberger, 2013 ND 42, 832 N.W.2d 334.

Froistad does not dispute that Hochhalter’s letter was a part of the record on 

appeal of the denial of his second application for postconviction relief. We 

summarily affirmed the district court’s denial of his second application.

Froistad v. Schmalenberger, 2013 ND 42, ¶ 1. At oral argument, Froistad, 

through counsel, conceded his prior postconviction counsel was aware of 

Hochhalter’s opinion but simply chose not to have him testify, assuming it was 

related to Touhy regulations, which limit a federal employee’s ability to testify.

Hochhalter testified he told prior postconviction counsel about his opinion and 

advised him about the Touhy regulations, and he was never contacted again. 

Froistad assumes this was due to the barriers that the Touhy regulations posed 

for prior counsel, but he did not call prior counsel to testify to that assumption. 

Therefore, even assuming Hochhalter’s opinion on Froistad’s culpability can 

qualify as newly discovered evidence, the claim is barred by res judicata and 

misuse of process.

[¶16] Froistad asserts the doctrine of res judicata does not apply where it 

would result in a manifest injustice. For support, Froistad cites Riverwood 

Commercial Park, LLC v. Standard Oil Co., Inc., 2007 ND 36, ¶ 14, 729 N.W.2d 
6

101, for the proposition that “[i]n analyzing these issues [of res judicata and 

collateral estoppel], we keep in mind the admonition that the doctrines should 

apply as fairness and justice require, and should not be applied so rigidly as to 

defeat the ends of justice or to work an injustice.” He also cites a number of 

cases from other jurisdictions that he claims provide a “manifest injustice 

exception to the res judicata bar.” In Lobato v. Taylor, 70 P.3d 1152, 1165-67 

(Colo. 2003), the Supreme Court of Colorado acknowledged such an exception, 

but ultimately concluded it did not apply in that case, and highlighted the 

importance of the application of res judicata:

In barring the relitigation of tried matters, res judicata serves 

distinct and important public and private values. As the United 

States Supreme Court has stated, res judicata serves “the dual 

purpose of protecting litigants from the burden of relitigating an 

identical issue with the same party or his privy and of promoting 

judicial economy by preventing needless litigation.” Parklane 

Hosiery Co. v. Shore, 439 U.S. 322, 326, 99 S. Ct. 645, 58 L.Ed.2d 

552 (1979) (citations omitted). Underlying these purposes of 

finality and efficiency is the vital interest in preserving the 

integrity of the judicial system. Wright, Miller, & Cooper, Federal 

Practice and Procedure: Jurisdiction 2d § 4403 at 23. Specifically, 

if one matter could be easily relitigated with inconsistent results, 

judicial integrity would be compromised and the value of and 

respect for court rulings would be seriously devalued. Although 

exceptions to the application of res judicata have been allowed in 

instances where such application would undermine an important 

state public policy or result in manifest injustice, United States v. 

LaFatch, 565 F.2d 81, 83 (6th Cir. 1977), after the United States 

Supreme Court’s decision in Federated Dep’t Stores, Inc. v. Moitie, 

452 U.S. 394, 401, 101 S. Ct. 2424, 69 L.Ed.2d 103 (1981), such 

exceptions are extremely rare.

Lobato, 70 P.3d at 1165-66. Although we have said the doctrine of res judicata 

should apply as fairness and justice require, we have not carved out a “manifest 

injustice exception” to res judicata. On the facts of this case, fairness and 

justice do not require a deviation from the application of res judicata.

[¶17] We conclude Froistad’s claims were either fully and finally determined 

in a previous postconviction proceeding or he inexcusably failed to raise the 
7

claim. See N.D.C.C. § 29-32.1-12; see also State v. Johnson, 1997 ND 235, ¶ 13, 

571 N.W.2d 372 (stating “a defendant is not entitled to repetitious postconviction relief when the contentions raised on appeal were ‘simply variations’

of previous arguments”). Accordingly, his claims are barred.

III

[¶18] We need not address whether the district court’s alternative grounds for 

denying relief were in error, because the court did not err in concluding 

Froistad’s claims are barred by res judicata and misuse of process. We have 

considered the remaining issues and conclude they are either without merit or 

unnecessary to our decision.

[¶19] The order denying Froistad’s application for postconviction relief to 

withdraw his guilty plea is affirmed.

[¶20] Jon J. Jensen, C.J.

Gerald W. VandeWalle

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte