IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2022 ND 163

Jason James Vogt, Petitioner and Appellant

v.

State of North Dakota, Respondent and Appellee

No. 20220058

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

the Honorable John Charles Irby, Judge.

AFFIRMED.

Opinion of the Court by McEvers, Justice.

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

SheraLynn Ternes, Assistant State’s Attorney, Fargo, ND, Nicholas S. 

Samuelson, Assistant State’s Attorney, and Tanner Langley, appearing under 

the Rule on the Limited Practice of Law by Law Students, Fargo, ND, for

respondent and appellee.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

AUGUST 18, 2022 

STATE OF NORTH DAKOTA
1

Vogt v. State

No. 20220058

McEvers, Justice.

[¶1] Jason Vogt appeals from a judgment dismissing his application for postconviction relief. He argues the district court erred when it dismissed his 

petition because the State waived its affirmative defenses and its motion for 

dismissal was untimely; the court erred when it held his application was 

barred by the statute of limitations; and, equitable estoppel should apply 

because the State fraudulently induced him into agreeing to a continuance. We 

affirm.

I

[¶2] Vogt pled guilty to gross sexual imposition. See 09-2013-CR-3705. His 

first application for post-conviction relief was summarily affirmed in Vogt v. 

State, 2016 ND 48, 876 N.W.2d 485. He filed a second application that was 

dismissed and not appealed. See 09-2017-CV-3345. He then filed a motion in 

his criminal case to vacate the judgment and withdraw his guilty plea. See 

State v. Vogt, 2019 ND 236, ¶ 7, 933 N.W.2d 916. On appeal, we treated the 

motion as a third application for post-conviction relief. Id. We reversed and 

remanded concluding Vogt had not been given proper notice before his 

application was summarily dismissed. Id. at ¶ 10.

[¶3] Vogt’s present application for post-conviction relief claims he is innocent, 

his counsel was ineffective, his guilty plea was involuntary, and his confession 

was coerced. The State asserted defenses of res judicata, misuse of process, 

and the statute of limitations. Vogt responded with a psychological assessment 

that he claims is newly discovered evidence. The psychological assessment was 

prepared after his application was filed. The assessment opines Vogt may have 

involuntarily waived his rights and he may have falsely confessed.

[¶4] The State filed a “Motion to Dismiss or Motion for Summary 

Disposition.” Vogt responded arguing the State’s motion was untimely and his 

application was not barred by the statute of limitations because the 

psychological assessment is newly discovered evidence. The district court held 
2

a motion hearing. Ruling from the bench, the court dismissed the application 

holding: “none of this was timely here. I don’t consider this report, as 

interesting as it is, as newly discovered evidence . . . We’re way outside of that 

two-year statute of limitations.” The court entered a written order and a 

dismissal judgment. 

II

[¶5] In post-conviction relief cases, the petitioner bears the burden of 

establishing grounds for relief. Morris v. State, 2019 ND 166, ¶ 6, 930 N.W.2d 

195. 

When we review a district court’s decision in a post-conviction 

proceeding, questions of law are fully reviewable. The district 

court’s findings of fact in a post-conviction proceeding will not be 

disturbed on appeal unless they are clearly erroneous under 

N.D.R.Civ.P. 52(a). A finding of fact is clearly erroneous if it is

induced by an erroneous view of the law, if it is not supported by

any evidence, or if, although there is some evidence to support the

finding, a reviewing court is left with a definite and firm conviction

a mistake has been made.

Id. (quoting Curtiss v. State, 2016 ND 62, ¶ 7, 877 N.W.2d 58). The North 

Dakota Rules of Civil Procedure and the North Dakota Rules of Court are 

applicable in post-conviction relief proceedings to the extent they do not conflict 

with the Uniform Postconviction Procedure Act, N.D.C.C. ch. 29-32.1. Burden 

v. State, 2019 ND 178, ¶ 10, 930 N.W.2d 619.

III

[¶6] Vogt argues the district court erred when it dismissed his petition 

because the State waived its affirmative defenses and its motion was untimely. 

A

[¶7] Vogt claims the State waived its affirmative defenses by failing to assert 

them in a timely manner. The State asserted defenses of res judicata, misuse 

of process, and the statute of limitations. Under N.D.C.C. § 29-32.1-12(3), res 

judicata and misuse of process are affirmative defenses that must be raised in 
3

the State’s responsive pleading. Chapter 29-32.1 does not specify when a 

statute of limitations defense must be asserted. We therefore look to the Rules 

of Civil Procedure. See Burden, 2019 ND 178, ¶ 10. Under N.D.R.Civ.P. 8, a 

statute of limitations is an affirmative defense that must also be raised in a 

responsive pleading. See Lehman v. State, 2014 ND 103, ¶ 8, 847 N.W.2d 119 

(holding the State waived a statute of limitation defense in a post-conviction 

proceeding). The State is required to respond to an application for postconviction relief by answer or motion within 30 days of the petitioner docketing 

the application. N.D.C.C. § 29-32.1-06. 

[¶8] Here, Vogt filed his application on November 3, 2020. The State filed its 

answer on November 12, 2020. The State’s answer was filed within 30 days of

Vogt’s application and is therefore within the deadline set out by the Uniform 

Postconviction Procedure Act. The State’s answer explicitly asserted the 

defenses of res judicata, misuse of process, and the N.D.C.C. § 29-32.1-01(2) 

statute of limitations. We therefore hold the State’s assertion of its affirmative 

defenses was timely. 

B

[¶9] Vogt claims the State’s motion was untimely. Different timing 

requirements apply depending on the type of motion. To decide this issue, we 

must first identify the appropriate rule. 

[¶10] Under N.D.C.C. § 29-32.1-11, when a district court denies an application 

for post-conviction relief, it “must indicate whether the decision is based upon 

the pleadings, is by summary disposition, or is the result of an evidentiary 

hearing.” Here, the district court did not expressly specify the basis for its 

decision. The record indicates the court considered the psychological 

assessment Vogt submitted, which was not attached to or embraced by the 

pleadings. The court also did not hold an evidentiary hearing. We thus treat 

the court’s dismissal of Vogt’s application as one by summary disposition under 

N.D.C.C. § 29-32.1-09.

[¶11] Because N.D.C.C. ch. 29-32.1 does not specify timing requirements for 

summary disposition motions, we again look to the Rules of Civil Procedure. 
4

Summary disposition of an application for post-conviction relief under 

N.D.C.C. § 29-32.1-09(3) based on matters outside the pleadings is analogous

to an N.D.R.Civ.P. 56 summary judgment. See Chisholm v. State, 2014 ND 

125, ¶¶ 12-17, 848 N.W.2d 703. A Rule 56 motion and supporting documents 

must be filed “at least 90 days before the day set for trial and 45 days before 

the day set for the hearing unless otherwise ordered.” N.D.R.Civ.P. 56(c)(1). 

After the movant serves its brief, the opposing party is allowed 30 days to 

respond. Id. Rule 6, N.D.R.Civ.P., also provides rules for timing and motions. 

It specifies the court may, for good cause, extend timing deadlines. If a timing 

requirement has already expired, there must be excusable neglect for the court 

to issue an extension. N.D.R.Civ.P. 6(b)(1)(B). A district court’s decision to 

grant or deny a continuance is reviewed for an abuse of discretion. Pinkney v. 

State, 2021 ND 155, ¶ 8, 963 N.W.2d 737. “A court abuses its discretion by 

acting unreasonably, arbitrarily, or unconscionably.” Id. 

[¶12] In this case, before any motions were filed, the district court set a “PostConviction Hearing” for May 14, 2021. The parties agreed to a continuance 

after Vogt filed his psychological assessment. The court reset the hearing for 

September 17, 2021. On September 14, 2021, the State served notice of its 

motion and brief. The State’s motion requested that if Vogt “needs additional 

time to respond, the State requests both the motion and post-conviction 

hearing be rescheduled allowing an extended time to respond.” The court held 

the hearing, noted the timing issue, and asked Vogt’s counsel how she preferred

to proceed. She stated she intended to present evidence that day, but if the 

court chose not to hear evidence:

[T]hen I would like my 30 days to respond to the motion properly.

The State can then — time to reply to that brief that I filed. The

Court can then decide whether to dismiss the case or not dismiss

the case, and then have our evidentiary hearing after that. That

is technically, procedurally how it should go.

The State agreed and moved for a continuance. Vogt objected. The court 

granted the State’s motion and reset the hearing giving Vogt an additional 30 

days to respond. 
5

[¶13] On this record, we are not convinced the district court abused its 

discretion when it granted the continuance. It is not clear whether a deadline 

had passed at the time the State requested the continuance. There is no 

scheduling order in the record, nor was there any indication of the intended 

scope of the September hearing at the time the State filed its motion. In any 

event, Vogt was on notice, for almost a year, of the defenses the State raised in 

its motion. And the court gave Vogt 30 days to respond as required by 

N.D.R.Civ.P. 56. See Chisholm, 2014 ND 125, ¶ 10 (a party must be given 30

days to respond to a request for summary disposition). We conclude Vogt’s 

argument concerning the timeliness of the State’s motion is without merit. 

IV

[¶14] Vogt argues the district court erred when it held his application is 

barred by the statute of limitations. Vogt claims a psychological assessment 

proves law enforcement elicited “coerced statements” from him and therefore 

his plea of guilty was not “voluntarily, knowingly, or intelligently made because 

of the newly discovered evidence.” 

[¶15] We apply the following standard for summary disposition of an 

application for post-conviction relief upon a motion:

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. 

The party opposing the motion for summary disposition is entitled 

to all reasonable inferences at the preliminary stages of a postconviction proceeding and is entitled to an evidentiary hearing if a 

reasonable inference raises a genuine issue of material fact.

Chisholm, 2014 ND 125, ¶ 10 (internal citations omitted) (quoting Wong v. 

State, 2010 ND 219, ¶ 12, 790 N.W.2d 757). 

[¶16] Under N.D.C.C. § 29-32.1-01(2), a petition for post-conviction relief must 

be filed within two years of a final conviction. Section 29-32.1-01(3)(a)(1) 

provides an exception to the limitation period if:
6

The petition alleges the existence of newly discovered evidence, 

including DNA evidence, 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[.] 

We apply a four-pronged test to a petition for post-conviction relief based on 

newly discovered evidence following a guilty plea. See Bridges v. State, 2022 

ND 147, ¶ 13, --- N.W.2d --- (modifying our prior test). The petitioner must 

prove: (1) the evidence was discovered after his or her guilty plea; (2) failure to 

discover the evidence prior to the plea was not the result of his or her lack of 

diligence; (3) the newly discovered evidence is material to what would have 

been the issues at trial; and (4) “if proved and reviewed in light of the evidence 

as a whole the newly discovered evidence would establish that the petitioner 

did not engage in the criminal conduct for which the petitioner was convicted.” 

Id. at ¶¶ 9, 13 (internal quotations omitted). 

[¶17] Even taking as true the assertions in the psychological assessment Vogt 

relies on, his argument fails as a matter of law. Vogt is attempting to use the 

assessment to prove his plea of guilty was involuntary. He does not claim the 

assessment establishes his innocence. At the motion hearing, his counsel 

argued: “[W]hat Mr. Vogt is saying is that if he had had this report, prior to his 

change of plea; that he wouldn’t have changed his plea because they would 

have made a motion to suppress.” Vogt has not explained how the 

psychological assessment would establish he did not commit the crime to which 

he pled guilty. Under both our prior test and the test we announced in Bridges, 

Vogt has not demonstrated the newly discovered evidence exception to the 

N.D.C.C. § 29-32.1-01 statute of limitations applies. Vogt’s petition, which was

filed more than two years after his conviction became final, is time barred. 

V

[¶18] Vogt invites us to apply the principles of equitable estoppel we discussed 

in Ellis v. North Dakota State University, 2009 ND 59, ¶ 18, 764 N.W.2d 192 

and Burr v. Trinity Medical Center, 492 N.W.2d 904, 908 (N.D. 1992). He

argues the State fraudulently induced him into a stipulated continuance under 
7

a pretense that it was reviewing the psychological assessment. He claims that 

because of the State’s representations, “he essentially forfeited his evidentiary 

hearing in this matter.” However, in the district court, Vogt implied the State’s 

request for a continuance was in bad faith, but he did not assert principles of 

equitable estoppel entitled him to an evidentiary hearing. We therefore will 

not address this argument on appeal. See State v. Kelly, 2022 ND 112, ¶ 2, 974 

N.W.2d 634 (“This Court does not address issues raised for the first time on 

appeal.”) 

VI

[¶19] We affirm the judgment. 

[¶20] Jon J. Jensen, C.J.

Gerald W. VandeWalle

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte