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o f S u p r e m e Co u r t IN THE S UPREME COURT S TATE OF NORTH DAKOTA

2019 ND 145

State of North Dakota, Plaintif f and Appellee

v. Cody Michael Atkins, Def endant and Appellant

No. 20180411

A p p e a l f rom t he District Court of Grand Forks County , Northeast C ent r a l Judicial District, the Honorable John A. Thelen, Judge.
AFFIRMED. Opinion of

the Court by McEvers, Justice

. Meredith H. Larson, Assistant S t ate’s Attorney , Grand Forks, ND, f or plaintif f and appellee; subm i tted on brief

. Scott O. Diam ond, Fargo, ND, f or def endant and appellant; subm itted on brief

.State v. Atkins No. 20180411

McEvers, Justice. [ ¶1] Cody Michael Atkins appeals f rom a district court order deny ing his m otion
to withdraw his guilty p lea a nd his m otion f or a new trial. Atkins argues t he district
court erred by (1) classif y ing his m otio n t o w i t h d raw his g uilty plea as a postconviction relief proceeding, a nd (2) f inding he was procedurally b arred f rom r aising his N .D.R.Crim .P. 1 1 claim s u nde r misuse of process and res judicata. Atkins also
argues the district court abuse d i t s discretion by f inding he did not m eet the burden required to s how the e xistence of newly discovered evidence in his m o tion f or a new trial. W e af

f irm

.

I [ ¶2] In M arch 2 015, Atkins pleaded guilty to gross se x u a l im position. In June 2015, Atkins was sentenced to 20 y e ars im prisonm ent w ith the North D akota Departm ent of Corrections, with f ive y ea r s s u s p e n d e d f

or a period of 10 y ears of supervised probation with credit f or tim e served. [ ¶3] In July 2 015, Atkins directly a ppealed the crim inal judgm ent, seeking to

w i thdraw his guilty plea, alleging (1) i nef f ective assistance of counsel, and (2) t h e district court’s f

ailure to substantially

com ply with N.D.R.Crim .P. 11, resulting in a

m anif est injustice. This Court af f i rm ed the crim inal judgm ent in State v. Atkins , 2016 ND 13, ¶ 10, 873 N.W .2d 6 76, and declined t o addres s A tkins’ argum ent that he should be perm itted to withdraw his guilty plea, h olding the issue was inappropriate f or appeal because Atkins f ailed to m ove the district court to withdraw his guilty plea. Id. at ¶ 5. Thi s C o u r t a ddressed Atkins’ inef f ective assistance of counsel claim , holding there w as insuf

f icient evidence in t he r ecord on direct appeal to s how Atkins’

c o u n s e l was plainly def

ective and citing State v

. S trutz , 2 000 ND 2 2, ¶ 26, 6 0 6 N.W .2d 886, f

o r the proposition: “W h en the record on direct appeal is inadequate to 1determ ine whether the def e ndant received inef

f ective assistance, the def

e n dant m ay pursue the inef

f ectiveness claim

at a post-conviction proceeding where an adequate record can be m ade.” A tkins , at ¶ 9. [ ¶4] In M arch 2016, Atkins f iled his f irst a pplication f

or post-conviction relief

. He sought relief on three grounds: (1) evidence not previously h e a r d, (2) denial of ef f ective assistance of c ounsel, and ( 3) conviction obtained by use of co e r c ed conf ession. The district court dism issed the a c t i o n
. Atkins did not appeal the dism issal. [ ¶5] In Septem

ber 2016, A tkins f

il e d h i s second application f o r post-conviction relief , again alleging inef

f e ctive assistance of c o unsel. T he State m oved to dism iss the a pplication, a rguing Atkins f ailed to provide evidentiary support f or his claim , and the district court granted t he m o tion. Atkins appealed the court’s order, and this Court af f irm ed, c oncluding Atkins was put to his proof w hen the State m oved f or s um m ary dism issal and t h a t h e f

ailed to present any com

petent evidence raising an issue of

m aterial f act. Atkins v. State , 2017 ND 290, ¶ 11, 904 N.W .2d 738. [ ¶6] In July 2 017, Atkins f i led a m otion under N.D.R.Crim .P. 35(a), arguing he was entitled to rel i e f b e c a u s e he w as precluded f rom using the internet as part of his probationary conditions. The State opposed the m o tion, and t he district c ourt denied the m otion, f

inding Atkins’ m otion was his “third post-conviction request f or relief ,” and the condition of his probation lim iting his internet access was a “valid, r easonable condition which does not violate Atkins’ First Am endm ent rights.” [ ¶7] In Novem

ber 2 017, A tkins f

iled a m otion t o dism iss the gro s s sexual i mp o sition c harge because the prosecution f ailed to seize, t ry , and prosecute i n accordance with constitutional law. The State opposed the m otion, arguing Atkins’

m otion was unsupported by f acts or legal argum ent. The district co u r t d e n i e d the

m otion. [ ¶8] In February 2018, Atkins m oved to “ v acate” his guilty plea. Atkins a lleged he

was m is i n f

orm e d by his attorney when deciding to plead guilty

. In March 2018, Atkins m oved f

o r a new t rial, alleging the existence of n ewly d iscovered e vidence, 2including: (1) text m essages; ( 2) a sexual assault kit; (3) the credibility of the S tate’s

witnesses; and (4) evidence tam pering b y the Stat e
. A t k i n s argued the n ewly discovered evidence was exculpatory . Atkins’ court-appointed counsel later f iled a supplem ental brief o n both m otions f urther outlining his grounds f or relief , a dding the allegation that the district court f ailed to com

ply w ith N.D.R.Crim .P. 11 in support of his m o t i o n t o withdraw h is guilty plea. Atkins subm itted 7 exhibits along with his

m otions including a print-out of the alleged n ewly d iscovered text m e s sages a nd transcripts f

rom the 2015 hearings. A hear i n g w as h eld o n the m otions and Atkins testif i ed. On October 3 1, 2018, the court issued an order classif y ing Atkins’ m otions

a s a n a c t i o n f

or post-conviction relief under this Court’s decision in State v

. Gress , 2011 ND 233, 807 N.W .2d 5 67, and deny ing Atkins relief , concluding his attem

pt to withdraw his guilty plea w as procedurally barred by abuse of process a nd res j udicata, and his m o tion f

or a new trial b ased on claim s of newly discovered evidence did not

m eet the f

our-part test to qualif

y as newly discovered evidence.

I I [ ¶9] Atkins argues the district court erred by apply i ng civil post

- c o n v iction af f irm ative def

enses to his crim inal law m otions f iled in his c r im inal case. The State
argues the court correctly relied upon Gress , 2011 ND 2 33, in f inding A tkins’ m otions should be treated as a post-conviction relief proceeding. [ ¶10] In Gress , 2011 ND 233, the def endant p leaded guilty to tw o c o u n ts of aggravated assault and two y ears later, applied f or post-conviction relief

. Id. at ¶ 2. The d istrict court denied h i s application, and the def endant did not a

ppeal. I d

. Three
y ears later, the def

endant m o ved “to suspend his sentence pursuant to N.D.R.Civ.P. Rule 60(b)(6)

. . . [ a ]lternatively , . . . to withdraw his unconsti t u t i onal pleaagreem ent,” and the c ourt denied the mo t i o n
. I d

. at ¶ 3. On appeal this Court held that although the m o tion was not titled as an application f or p ost-conviction relief

, the d e f e ndant had already previously f iled an application f

or post-conviction relief and theref ore this Court considered the m otion as a second application f or post-conviction 3relief

. Id. at ¶ 6. Sim ilar to the def endant in Gress , Atkins did not t itle his m otion as

an a p p l i c a t i o n f

or post-conviction relief

, but he had a l ready previously f iled two applications f

o r post-conviction relief prior to f i ling t he m otion t o w ithdraw his guilty plea. [ ¶11] Rule 1 1(d)(2), N.D.R.Crim .P., provides: “[ u]nl e s s t he def e n dant proves that

w i t h d r awal i s necessary to correct a m anif est injustice, the def

e ndant m a y n o t withdraw a plea of guilty af ter the court has im

posed sentence.” “W hen a def endant applies f or post-conviction relief s eeking to withdraw a guilty plea, the application is treated as one m ade u nder N.D.R.Crim

. P. 11(d).” M ackey v

. State , 2012 ND 159, ¶ 11, 819 N.W .2d 539 (rely ing on Eaton v. State , 2011 ND 3 5, ¶ 5 , 7 9 3 N

. W.2d 790 (quoting Patten v. State , 2008 ND 29, ¶ 14, 745 N.W .2d 626)). W e have previously held the rem edi e s under the Rules o f C rim i nal P rocedure a nd the Unif orm Postconvictio n P r o c e dure Act provide sim ilar rem edies a nd co-exist f or sim ilar
purposes. See State v. McC l a r y , 2016 ND 31, ¶ 7, 876 N.W .2d 29 (com paring

rem edies unde r N.D.R.Crim .P. 35(a) to correct an illegal sentence t o sim ilar provision under N.D.C.C. § 2 9-32.1-01(1)(a)). W e hav e a l s o h e l d that even when a m otion f ollowing conviction is denom inated as a m otion under t he North D akota Rules of Crim inal Procedure, the provisions of the Unif orm Postco n v i c t ion Procedure Act, N.D.C.C. ch. 29-32.1, are applicable. McClary , at ¶ 7 ( rely ing on State v. Johnson , 571 N .W .2d 372, 374-75 (N.D. 1997) holding second Rule 3 5(a) m otion to c o rrect an illegal sentence was barred by m isuse of process). The parallel statutory provision to Rule 11(d) is N .D.C.C. § 29-32.1-01(1)(h), which provides relief when: “[ t]he conviction or s entence is o therwi s e subject t o collateral attack upon a ny ground of alleged e rror bef

ore J uly 1, 1985, un d e r a n y c o mm on law, statutory or other writ,

m otion, proceeding, o r rem edy .” A def endant, prior to 1985, could m ove to withdraw

a g uilty p lea under N.D.R.Cr i m. P. 32(d) to correct a m anif est injustice. W hile the
p r o v isions have b een m odif ied and m oved to N.D.R.Crim .P. 11(d) in 2010 , t h e

rem edy i tself r em ains the s am e. Section 29-32.1-01(4), N.D.C.C., f urther provides:

4A proceeding under this c h a p t e r i s not a substitute f o r and does not af f ect any rem edy incident to the p rosecution in the trial court or direct review of the judgm ent of conviction or sentence in an appellate court. Except as otherwise provided in this chapter, a proceeding under th is chapter replaces a ll other com m on l aw, statutory , or o t h er rem edies available bef

ore J u l y 1 , 1985, f

o r collaterally challenging the validity of the judgm ent of c onviction or s entence. It is t o b e u sed exclusively in place of them

. A p r oceeding u nder t his chapter is not a v a ilable to provide r e lief f

o r disciplinary m easures, custodial treatm ent, or other violations of civil rights of a convicted p erson o c curring af ter the im position of

sentence. A plain reading of this p rovision is that t he Unif orm Postconviction Procedure Act is
to be used exclusively in place of other rem edies c ollaterally challengi n g t h e j udgm ent of conviction. W e hold that a d ef endant m ay not a void the procedures of t he Unif orm Postconviction Procedure Act by d esignating his m otion under a rule of c rim inal procedure o r by f

iling his m otion in his crim inal f ile, rather than f

iling as a new action f or post-conviction relief

. W e agree w ith the district court a nd consider t his m otion as a third application f

or post-conviction relief

.

III [ ¶12] Having concluded the district court properly treated Atkins’ m oti o n s as an application f

or post-conviction relief

, we next review whether the court erred in f inding Atkins’ claim s were procedurally barred. W e have stated: Post-conviction relief p roceedings are civil i n nature and governed by the North D ak o t a Rules of Civil Procedure. The petitioner bears the burden of establishing grounds f or p ost-conviction relief

. W hen we review a district c ourt’s decision in a post-conviction proceeding, questions of law are f

ully reviewable. The district court’s f indings of f act in a post-conviction proceeding will not be d i sturbed on appeal unless they are clearly erroneous u nder N.D.R.Civ.P. 52(a). A f inding of f a ct is clearly erroneous i f it is induced by an erroneous view of the law, if i t i s not supported by a ny e vidence, or if , a lthough there is som e evidence to support the f

inding, a reviewing court is lef t with a def

inite and f irm conviction a m istake has been m ade.

5Curtiss v

. State , 2016 ND 62, ¶ 7, 877 N.W

. 2d 58 (internal citations and quotations

om itted). “Post-conviction proceedings are not intended to allow def endants m ultiple opportunities to raise the sam e or sim ilar i ssues, and def endants who inexcusably f ail
to raise all o f their claim s in a single post-conviction proceeding m i suse the postconviction process by i n i t i a t i n g a s u b s e quent application r aising i ssues that could have been raised in the earlier proceeding.” St e en v. State , 2007 ND 123, ¶ 13, 736 N.W .2d 457 (quoting Jensen v. State , 2004 N D 200, ¶ 9 , 6 8 8 N.W .2d 374). “Generally , the applicability of r e s j u d icata is a question of l aw and is f ully reviewable on appeal.” Id

.

A [ ¶13] Under N.D.C.C

. § 2 9-32.1-12(2)(a), a court m ay deny post-conviction relief on the ground of

m i suse of process when the a p plicant “[ p]resents a claim f o r relief which the applicant i nexcusably f ailed to raise either in a p r o c e e d i ng leading to judgm ent of conviction a nd sentence or in a previous postconv i c tion proceeding.” Misuse o f process i s an a f f irm ative def

ense to be pleaded b y the State. N.D.C.C. § 29-32.1-12(3). The State raised the issue o f mi s u s e of process i n its supplem ental brief in opposition to Atkins’ m otion. [ ¶14] W ith respect to Atkins’ allegations of t he di s t r i c t court’s N.D.R.Crim .P. 11 violations, we agree with the district c o u r t t hat this claim is barred b y m i suse of
process. A tkins attem

p t e d to raise the i ssue of the district c ourt’s alleged Rule 11 violations in his f

irst appeal to this Court but w e declined to address the argum ent due
to his f ailure t o so argue bef

ore the district court. Atkins , 2016 N D 1 3 , ¶ 5

. Thereaf ter, A tkins f

iled two a

pplications f

or post-convicti o n r elief

, and two postsentencing m otions; however, he did not renew the d istrict court’s alleged R u l e 11 violations claim unti l this m ost recent February 2018 post-conviction application. Atkins has provided no reasons f or f ailing to m ake t hi s c l a i m i n h is previous proceedings post-appeal. Theref ore, Atkins has inexcusably f ailed t o raise this claim

6in his previous post-conviction proceedings and is barred f rom doing so now. See Silvesan v. State , 1999 ND 62, ¶ 13, 591 N.W

. 2d 131.

B [ ¶15] Atkins als o c laim ed he should be allowed to withdraw his p lea under N.D.R.Crim .P. 11 because his counsel was i nef f ective. Under N .D.C.C. § 29-32.1- 12(1), “[ a]n application f

or postconviction r elief m ay be denied o n t he g round t hat the

sam e claim or claim s were f ully and f inally d e t e rm ined in a previous proceeding.” Res judicata is also an af

f irm ative def

ense u nder N.D.C.C. § 29-32.1-12(3) and was raised by the State. [ ¶16] In the direct a p p e a l of his crim inal judgm ent, Atkins a lleged inef f ective assistance of trial counsel w hich this Court addressed, holding he had f a iled t o show counsel w as plainly def

ective. Atkins , 2016 ND 13, ¶ 9. W e lef t o pen the possibility that Atkins could p ursue his c laim in a post-conviction proceeding. I d

. F ollowing the direct appeal, Atkins claim ed inef f ective assistance of counsel in his March 2016 and Septem ber 2016 ap p l i c a t i o ns f

or post-conviction relief

. W e agree with t he district
court that A tkins’ claim of inef f ective assistance of counsel is b arred b y res j udicata, and to the extent his s pecif ic allegations dif

f er f r om those previously argued, m isuse of process.

IV [ ¶17] Atkins argues the d istrict court e r red by deny ing relief based on his allegations of n ewly discovered evidence. “Post-conviction relie f m ay be granted when ‘[ e ]vidence, not previously presented and heard, exists requiring v acation of the conviction or sentence in the interest of justice.’” Kovalevich v. State , 2018 ND 184, ¶ 4, 915 N.W .2d 6 4 4 (quoting N.D.C.C. § 29-32.1-01(1)(e)). W hen an applicant alleges the existence of newly discovered evidenc e , w e review the application as a

m otion f or a n e w t r i a l using the standard f or n ewly discovered evidence under

7N.D.R.Crim .P. 3 3. Kovalevich , at ¶ 5. O ur standard f or granting a new trial o n that basis is well established:

U n d er N.D.R.Crim .P. 33(a), the trial court m ay grant a new trial to t h e d e f

e ndant if r equired in the interests of j u s t i c e
. To prevail on a m otion f or a new trial on t h e ground of newly disco v e r e d evidence, the def endant
m u st show (1) the evidence was discovered a f ter t rial, (2) the f ailure to learn about the evidence at the tim e of trial
was not the r e s ult of the def endant’s lack o f diligence, (3) t h e newly discovered evidence is m aterial to the issues at t rial, and (4) the weight and quality of the n ewly discovered evidence would likely result i n an acquittal. A m otion f

or new trial b ased upon n ewly discovered evidence rests within the discretion of t he trial court, and
we will n o t reverse the court’s d enial of the m otion unless t he court has abused its d iscretion. If the ne wly discovered eviden c e i s of such a nature t hat it is not likely to b e believed by the jury or to change the results of t he original tri a l , t h e c o urt’s denial of the new trial
m o tion is not an abuse of discretion. A trial court abuses its discretion if it acts arbitr a r i l y , u nreasonably , unconscionably , o r w h e n its d ecision is not the p roduct of a rational
m ental process leading to a reasoned decision. Id. (internal citations om itted). “The task of weighing the evidence and judging the credibility of witnesses belongs exclusively to the trier of f act, and we do not reweigh credibility or resolve conf licts in the evidence.” Greywind v. State , 2004 ND 213, ¶ 22, 689 N.W .2d 390. [ ¶18] Atkins argues he satisf i ed the f our-part test f

o r r eviewing a m otion f

o r a new trial based on newly discovered evidence. In h is m otion bef o re the d is t r i c t c o u r t, Atkins asserted the existence of f our item s o f newly discovered evidence: (1) exculpatory text m essages; (2) a sexual assault k it showing no residua of sexual abuse of th e a l leged victim ; (3) the credibility of the S tate’s witnesses; and (4) evidence
tam pering. On a

ppeal, Atkins only argues t he text m essages a nd the sexual a ssault kit as the basis f

or his m otion f

or a new trial.

8A

[ ¶19] Atkins argues he discovered exculpatory text m essages in 2017 , af ter his conviction. A t the m otion hearing, Atkins testif ied h e did not know the text m essages existed at the tim e he entered his plea. He stated he becam e a ware of the text

m essage s t h r ough his m other. He also testif ied he was talking to his m other while incarcerated and she r evealed she possessed t he m essages. He ad mi t t e d h e d id not need a court o r d e r , s e a rch warrant, or subpoena t o get the t ext m essages f rom his

m other. He f

urther adm i tted he never previously a s ked his m other f or any evidence related to his case. In f

inding the t ext m essages were not newly discovered e vidence, the district court noted Atkins f ailed to call either his m other or his attorney to support his argum e nt the m e ssages were unknown to him prior to his guilty

plea. The court stated Atkins’ f

ailure to learn about the text m essages w a s due to a lack of diligence on his part since his m other had the m essages prior to his guilty plea. [ ¶20] In Syvertson v. State , 2005 ND 128, ¶ 9, 699 N .W .2d 855, t his Court held that inf orm a t i o n that was publicly dissem inated and easily accessible was not n ewly discovered evidence when the def endant f ailed t o e s tablish that his f a ilure to learn about the evidence at the tim e of trial was not due to his own lack of diligence. Here, Atkins also f

ailed to s how his f

ailure to learn about the text m essages was not due to his o wn lack of d iligence. He adm itted he did not a s k his m other f o r any inf orm ation she m ight have regarding his case prio r t o pleading guilty

. He does not allege she concealed t he inf

o rm ation f

r o m h i m or that she was unavailable at the tim e of his plea. The district court did not abuse its discretion i n f inding the text m e s sages were not newly d iscovered and that even if they were, Atkins’ f ailure t o learn about them was due to his own lack of diligence. [ ¶21] The district court f urther f ound “the weight and quality of t he text m essages, when c onsidering the totality of the evidence brought a gainst A tkins, w ould likely not result in an acquittal.” T he text m essages show that a potential witness m ay not have
t h o u ght Atkins c om m itted t he alleged acts, but also stated she did n ot know w h a t happened, and acknowledged she lef t the victim with A tkins a nd another person f or 9about 1 0 m inutes. The c ourt did n ot abuse i t s d i s c r etion f inding the text m essages would not likely result in acquittal, and theref ore do not q

ualif y as newly discovered evidence.

B [ ¶22] Next, Atkins a rgues t he results of a sexual assault k it a r e n e w l y d iscovered evidence because his a ttorney never p rovided h i m w i t h a copy of the results. He
argues th e r e s u l t s are exculpatory because they show a lack of evidence s u pporting the allegations against him

. At the m otion h earing, the State i ntroduced a docum ent listing the discovery Attorney Morrow r eceived. W hen introducing the exhibit, the State described it as “the discovery Mr. A t kins received f rom M r. Morrow,” and Atkins did not object to its adm ission. Atkins testif ied at the m otion hearing at one point a dm itting he “didn’t really read the discovery .” He adm itted it w as possible he

m issed the results of the sexual assault k it when he did r eceive the discovery because he just skim m ed through it. The district court f ound: Clearly , the alleged exculpatory i nf orm ation conn ected to the S exual Assault Kit would h ave been provided t o Atkins and his legal counsel
a s p a r t of the d iscovery process. Theref ore, Atkins had the Sexu a l Assault Kit report prior to pleading g uilty a n d being sentenced and such is not newly

discovered evidence. The court’s f

indings are not clearly erroneous. W e conclude the court did not abuse its discretion by deny ing r elief based on A tkins’ claim s of newly discovered e vidence.

V [ ¶23] In his supplem ental brief , Atkins argues t he attorney f or the alleged v ictim in his gross s e xual im

position case works in the sam e law f irm as his post-conviction counsel. He also argues th e e n tire Grand Forks Public Def ender’s of

f ice has a conf lict of interest with his case because t hey r epresented several o f t he S tate’s witnesses. It appears he is raising t h e s e argum ents f or the f irst tim e on appeal, and

10we decline to address them

. See State v. Kieper , 2008 ND 65, ¶ 16, 7 47 N.W .2d 497

(issues not raised in the district court cannot be raised f or the f irst tim e on appeal). [ ¶24] It is unnecessary to address other issues raised o n appeal because they are either without m erit or unnecessary to the decision.

VI [ ¶25] W e af

f irm t he district court order deny ing Atkins ’ mo tions apply ing the procedures under the Unif orm Postconviction Procedure Act. [ ¶26] Lisa Fair McEvers Daniel J. Crothers Jerod E. Tuf

te Gary H. Lee, D.J. Gerald W . VandeW alle, C.J. [ ¶27] The Honorable Gary H. Lee, D.J., sitting in place of Jensen, J., disqualif

ied.

11