### 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, NortheastCentral 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 summari ly dismissing: (1) a motion for relief from an order denying an application for po st-conviction relief, and (2) an application for post-conviction relief on the grounds of newly discovered
evidence. The court concluded K ovalevich 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 coun ts of gross sexual imposition and one count of corruption of a minor. The convict ion 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 prob ation. 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 applicati ons for postconviction relief. The applications were denied and affirmed o n 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, Kovalevi ch filed a motion for relief und er 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 misrepresentatio n and misconduct in the post-conviction proceeding. He claimed the attorney assist ed 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, inf ormation contained in Canad Inn receipts from February and August 2012, showed he did not engage in the

1charged conduct. His application also claimed newly discovered evidence showed the affidavit supporting the issuance of a search warrant for his r esidence contained false and intentionally misleading statements, and the BCI lacked jur isdiction 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 c oncluded Kovalevich was attempting to relitigate issues he raised in earlier procee dings. With regard to the application for post-conviction re lief, the court held the Febr uary and August 2012 Canad Inn receipts could have been presented in earlier proceed ings, and the weight and quality of the additional evidence Kovalevich presented wou ld 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 postconviction relief proceeding, questions of law are fully review able. Wacht , at ¶ 6. [¶8] A district court may summarily dismiss an application for p ost-conviction relief “if the application, pleadings, any previous proceeding, discovery, or other
matters of record show that ther e is no genuine issue as to anymaterial 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 r elief as we would review an appeal from a summary judgment. Wacht , 2015 ND 154, ¶ 6, 864 N.W.2d

2740. The party resisting the motion for summary dismissal is e ntitled 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) m otion for relief as an application for post-conviction relief. Kovalevich claims he w as 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 201 7 post-conviction relief application. In response, the State asserts Kovalevich’s motio n was an attempt to relitigate his April 2017 application for post-conviction relie f. 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 Postconvi ction Procedure Act is to be used exclusively in place of other remed ies collaterally challenging the judgment of conviction. We hold that a defendant may not avoid the procedures of the Uniform Postconvi ction Procedure Act by designating his motion under a rule of crimina l 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

3court and consider this motion [to withdraw a guilty plea] as athird application for post-conviction relief.
See State v. Gress , 2011 ND 233, 807 N.W.2d 567. We now hold this applies to reli ef under Rule 60(b) of the North Dakota Rules of Civil Procedure a s well. Gress , 2011 ND 233, 807 N.W.2d 567. [¶11] The district court concluded Kovalevich’s motion for relie f 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 vari ous 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 co urt. 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 pr esented 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 eng aged in misrepresentation and fraud without further explanation. His m otion primarily argues that a July 2012 Canad Inn receipt, coupled with the victim’s s tatements, shows he did not commit the charged conduct. Kovalevich’s April 2017 applic ation for post-conviction relief alleged the July 2012 Canad Inn receipt was newly discovered evidence. This Court addressed his argument related to the Jul y 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 attempt s 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 rel ief may be denied on the ground that the same claim or claims were fully and finallydetermined in a previous proceeding.”). A review of Kovalevich’s motion for re lief 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 no t err in summarily dismissing the motion.
4IV [¶14] Kovalevich argues the district court erred in summarily di smissing his November 2018 application for post-conviction relief. He conte nds he is entitled to
relief on the basis of newly discovere d evidence. Kovalevich a lso asserts the court erred by denying his request for court-appointed counsel. [¶15] Applications for post-conviction relief must be filed with in 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 evidenc e, “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 d iscovered evidence is similar to a request for a new trial based on newly discover ed 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 evide nce, the defendant must show: “(1) the evidence was discovered after trial, (2) th e failure to learn about
the evidence at the time of trial was not the result of the def endant’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 resul t 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 an d August 2012 Canad Inn receipts contradict the victim’s testimony and show h e did not engage in the charged conduct. Kovalevich states he obtained the receipt s after writing letters to Canad Inn requesting the receipts.

5[¶18] The district court concluded Kovalevich’s claim of newly d iscovered 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 newlydiscovered because: [T]he receipts/documents in question was evidence created by Kovalevich’s actions and activities well before trial, that Kov alevich was fully aware of the existence of those receipts/documents we ll before trial, and that Kovalevich had complete access to and th e ability to acquire those receipts/documents, and any exculpatory eviden ce contained therein, well before trial. . . . Further, Kovalevich ’s now claimed newly discovered evidence is evidence that could’ve bee n obtained and presented by Kovalevich at the second post-convict ion relief hearing held on October 20, 2017. The court found Kovalevich’s argument was a misuse of process b ecause “it is inexcusable to not have addressed this issue previously.” The court also found the weight and quality of Kovalevich’s alleged newly discovered evi dence would not likely result in acquittal. [¶19] We conclude the district court did not err in dismissing K ovalevich’s argument relating to the February and August 2012 hotel receipts. Koval evich has not shown
“the failure to learn about the evidence at the time of trial w as 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 thi s 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 woul d impeach the victim’s testimony, would not likely result in an acquittal.

B [¶20] Kovalevich claims newly discovered evidence exists showingthat a BCI agent’s affidavit supporting the issuance of a search warrant f or 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 fr om the information included in the affidavit in support of a search warrant. Kova levich argues the BCI agent had knowledge of the information in the reports and becau se of that, the agent provided knowingly false information in his affidavit supportin g the issuance of a
search warrant for Kovalevich’s residence. [¶21] The district court concluded Kovalevich could not prove th e weight and quality of the alleged newly discovered evidence would result in an acq uittal. The court held that even if the BIA reports were discovered after trial, the s earch 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 a ffidavit. 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 showe r with a minor at a casino, but the BIA reports state only that he looked like he h ad just gotten out of the
shower. [¶23] After reviewing the BIA reports and the affidavit in suppo rt of the search warrant, we conclude the alleged newly discovered evidence is n ot material to the issues at trial, and the weight and quality of the evidence wou ld not likely result in an acquittal. There is no evidence the agent knowingly provided f alse information in his affidavit. The affidavit discusses the agent’s November 2012 i nterview with the victim where she stated she began a dating relationship with Ko valevich in 2010 when she went to his apartment in Cando. That the address informati on in the BIA reports differed from the affidavit does not establish the agent knowin gly provided false information. The agent simply stated what the victim told him in the interview. Additionally, the information in the affidavit about Kovalevichbeing in the shower with a minor is included in the BIA reports. We conclude Koval evich’s argument on this issue is without merit, and the district court did not err in dismissing this claim.

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

D [¶25] Kovalevich further contends the district court erred by de nying his request for court-appointed counsel. The court has discretion to appoint c ounsel in a postconviction 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 deni ed it is not necessary to appoint him legal counsel.” We conclude the court did not a buse its discretion by denying Kovalevich’s request for court-appointed counsel.

V [¶26] We have considered Kovalevich’s remaining arguments and co nclude they are either not necessary to our decision or without merit. The orde rs 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.

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