IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2022 ND 100

State of North Dakota, Plaintiff and Appellee

v.

Josiah Edward Dale Koval, Defendant and Appellant

No. 20210356

Appeal from the District Court of Cass County, East Central Judicial District, 

the Honorable Tristan J. Van de Streek, Judge.

AFFIRMED.

Opinion of the Court by Jensen, Chief Justice.

Joshua J. Traiser, Assistant State’s Attorney, Fargo, ND, for plaintiff and 

appellee.

Elizabeth B. Brainard, Fargo, ND, for defendant and appellant.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

MAY 12, 2022 

STATE OF NORTH DAKOTA
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State v. Koval

No. 20210356

Jensen, Chief Justice.

[¶1] Josiah Koval appeals from an amended criminal judgment and denial of 

his motion to dismiss. Koval entered a conditional guilty plea to violating a 

protection order. Koval argues the underlying post-disposition order 

prohibiting contact is illegal. We conclude Koval’s arguments are an 

impermissible collateral attack on the 2019 judgment, and we affirm. 

I

[¶2] In November 2019, Koval pleaded guilty to stalking. A criminal 

judgment was entered. The criminal judgment referenced Appendix A, 

outlining the terms of Koval’s probation. A separate “Post-Disposition Order 

Prohibiting Contact” was entered the same day and was signed by Koval.

Koval did not appeal from the 2019 judgment.

[¶3] In November 2020, Koval was charged with violating the 2019 order 

prohibiting contact pursuant to N.D.C.C. § 12.1-31.2-02(4). Koval filed a 

motion to dismiss and argued the order prohibiting contact entered in 2019 

was illegal and invalid. The district court denied the motion to dismiss, 

concluding the attack on the 2019 judgment in this case constituted an 

impermissible collateral attack. Koval entered a conditional guilty plea 

preserving his right to appeal.

II

[¶4] In denying Koval’s motion to dismiss, the district court relied on City of 

Seattle v. May, 256 P.3d 1161 (Wash. 2011) to conclude Koval’s arguments

constituted a collateral attack on the underlying 2019 judgment. A collateral 

attack is “[a]n attack on a judgment in a proceeding other than a direct appeal; 

esp., an attempt to undermine a judgment through a judicial proceeding in 

which the ground of the proceeding (or a defense in the proceeding) is that the 

judgment is ineffective.” Black’s Law Dictionary 318 (10th ed. 2014).
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[¶5] In May, the Supreme Court of Washington concluded the collateral 

attack rule precluded the defendant from challenging the validity of a 

protection order in a prosecution for violating that order. 256 P.3d at 1163. The 

Court held there was one exception─for orders that are void. Id. The Court 

concluded the order was not void, and “[t]he collateral bar rule therefore 

prohibits May’s challenge to the validity of the underlying protection order.” 

Id. at 1165.

[¶6] Other states have agreed with the reasoning of May and the collateral 

attack rule in general. In Truesdell v. State, the Supreme Court of Nevada 

reviewed other states’ holdings and discussed:

Many jurisdictions follow the collateral bar rule, which precludes 

a party from collaterally attacking a protection order in a later 

proceeding for violating the order, even to question the 

constitutionality of the statute that authorized the protection 

order. See State v. Chavez, 123 Ariz. 538, 601 P.2d 301, 302 

(Ariz.Ct.App.1979) (indicating that parties could not collaterally 

attack the constitutionality of an injunction by an appeal from 

their convictions of criminal contempt for violating that 

injunction); State v. Grindling, 96 Hawai’i 402, 31 P.3d 915, 919 

(2001) (concluding that the defendant could not collaterally attack 

the underlying factual basis of a temporary restraining order in a 

later criminal proceeding for violating the order); Wood v. Com., 

178 S.W.3d 500, 512-13 (Ky. 2005) (concluding that appellant could 

not collaterally attack the validity of an emergency protective 

order in a later proceeding for violating that order and this 

preclusion did not violate appellant’s due process rights because a 

statute allowed appellant to directly challenge the order); State v. 

Small, 150 N.H. 457, 843 A.2d 932, 935 (2004) (“‘The general 

underlying premise [against collateral attacks] is that a person 

subject to an injunctive order ... should be bound to pursue any 

objection to the order through the constituted judicial process 

available for that purpose.’” (quoting State v. Grondin, 132 N.H. 

194, 563 A.2d 435 (1989))); City of Seattle v. May, 171 Wash.2d 847, 

256 P.3d 1161, 1163-64 (2011) (concluding that the collateral bar 

rule prohibited a defendant from challenging the validity of 

permanent domestic violence order in a later prosecution for
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violation of that order, unless the defendant could show that the 

order was void).

304 P.3d 396, 399-400 (2013). The Court also noted other states allow collateral 

attacks in certain circumstances, mostly dealing with constitutional challenges 

to some orders. Id.

[¶7] We have previously considered the collateral attack rule. In Lerfald v. 

Lerfald, we stated, “A party may not collaterally attack a final decision, that 

was not appealed, in subsequent proceedings.” 2021 ND 150, ¶ 10, 963 N.W.2d 

244 (quoting In re T.H., 2012 ND 38, ¶ 20, 812 N.W.2d 373). See also State v. 

Mertz, 514 N.W.2d 662, 666-67 (N.D. 1994).

[¶8] In State v. Dvorak, Dvorak argued a 1997 protection order was invalid 

after he was convicted in 1999 of violating the protection order. 2000 ND 6, ¶ 

30, 604 N.W.2d 445. This Court held:

Dvorak had notice of the protection order, and his argument 

represents an impermissible collateral attack on the order. See 

Interest of R.A., 551 N.W.2d 800, 802 (N.D. 1996); State v. Stuart, 

544 N.W.2d 158, 163 (N.D. 1996); State v. Mertz, 514 N.W.2d 662, 

666-67 (N.D. 1994). If Dvorak believes the protection order was 

invalid, his remedy was to have timely appealed that order.

Dvorak, at ¶ 31.

[¶9] Koval’s arguments are premised entirely on whether or not the order 

prohibiting contact entered in 2019 was “illegal.” Koval has not provided a 

transcript of the 2019 sentencing proceedings or other sufficient information 

from the underlying proceedings to conduct a meaningful review of the order. 

Assuming without deciding whether this Court would recognize an exception 

to the collateral attack rule when the underlying order is void, and interpreting 

his assertion the order was “illegal” as an assertion the order was void, we have 

insufficient information to determine the order was void and the order cannot 

otherwise be collaterally attacked in this proceeding. We therefore conclude 

Koval’s arguments constitute an improper collateral attack on the 2019 

judgment and we affirm.
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[¶10] Jon J. Jensen, C.J.

Gerald W. VandeWalle

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte