IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2020 ND 250

Derek Matthew Wisham, Petitioner and Appellant

v.

State of North Dakota, Respondent and Appellee

No. 20200152

Appeal from the District Court of Morton County, South Central Judicial 

District, the Honorable David E. Reich, Judge.

AFFIRMED.

Opinion of the Court by Jensen, Chief Justice.

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

Paul E. Jensen (argued), Assistant State’s Attorney, and Allen M. Koppy

(appeared), State’s Attorney, Mandan, ND, for respondent and appellee.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

NOVEMBER 19, 2020 

STATE OF NORTH DAKOTA

20200152
1

Wisham v. State

No. 20200152

Jensen, Chief Justice.

[¶1] Derek Matthew Wisham appeals from an order denying his application 

for post-conviction relief. Following the filing of his application, the State filed 

an answer and moved the district court for summary disposition. Because 

Wisham failed to timely respond to the State’s request for summary 

disposition, we affirm the dismissal of his application for post-conviction relief.

I

[¶2] In 2014, Wisham was charged with gross sexual imposition and assault. 

On December 21, 2015, Wisham pled guilty to a charge of sexual imposition, a 

class B felony, and assault, a class A misdemeanor. He was sentenced to ten 

years of incarceration with all but four years suspended for two years on the 

sexual imposition charge and one year straight time on the assault charge, 

with credit for time served on both counts.

[¶3] On August 9, 2016, Wisham’s first application for post-conviction relief 

contended that his accuser had perjured herself, his guilty plea was coerced, 

breach of contract, and denial of effective assistance of counsel. With the 

exception of denial of effective assistance of counsel, the district court 

summarily dismissed all of the allegations in Wisham’s petition. Following an 

evidentiary hearing on Wisham’s allegation of ineffective assistance of counsel, 

the court found Wisham had failed to meet his burden of proof and dismissed 

Wisham’s application. This Court affirmed the dismissal in Wisham v. State, 

2017 ND 235, 903 N.W.2d 60.

[¶4] In his second application filed on March 24, 2017, Wisham asserted that 

his good time was improperly calculated and that his sex offender registration 

requirement is unconstitutional. His second application was summarily 

dismissed. This Court affirmed the dismissal in Wisham v. State, 2017 ND 236, 

903 N.W.2d 60.
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[¶5] Wisham filed his third application on June 23, 2017, arguing the charges 

he faced were unconstitutional. The court denied his application.

[¶6] On June 26, 2017, while his third application was still pending, Wisham 

filed his fourth application asserting his plea agreement was breached and that 

his good time was calculated improperly. The court dismissed his claim.

[¶7] On March 12, 2020, Wisham filed his fifth, and current, post-conviction 

application alleging: (1) there was a breach of contract regarding the terms of 

Wisham’s plea deal; (2) he did not agree to a denial of probation; (3) he did not 

receive proper good time calculation; (4) he did not agree to sex offender 

registration; (5) the charge he pled guilty to is improperly listed as a gross 

sexual imposition and not the amended sexual imposition; (6) his attorney 

never properly explained what an Alford plea was and if he properly 

understood that an Alford plea is akin to a nolo contendere plea he would not 

have agreed to change his plea; (7) his attorney did not explain the punishment 

attached to the crime, the culpability level of “willingly” or his probable 

sentence if he would have been convicted at trial; (8) he did not agree to 

excessive treatment; (9) his treatment is requiring additional punishment 

through extortion; (10) his rights have not been properly restored to him in a 

violation of his right due process; and (11) ineffective assistance of counsel. On 

March 25, 2020, the State responded to the application with an answer and a 

motion requesting summary disposition of Wisham’s application.

[¶8] Wisham did not respond to the State’s motion for summary disposition. 

On April 28, 2020, the court summarily disposed of Wisham’s application after 

finding Wisham had failed to state any of the grounds listed under N.D.C.C. § 

29-32.1-01(1) which would entitle him to post-conviction relief, and failed to 

assert any of the exceptions to the two year statute of limitations provided by 

N.D.C.C. § 29-32.1-01(3). Additionally noted, this was Wisham’s fifth 

application for post-conviction relief and his primary complaint was related to 
3

conditions of probation. In summary, the court found the application was 

untimely and barred by res judicata.

[¶9] On May 5, 2020, through counsel, Wisham filed a motion to reconsider. 

The court denied Wisham’s application for post-conviction relief on May 26, 

2020. Wisham appeals only from the April 28, 2020 order denying his 

application for post-conviction relief.

II

[¶10] This Court has previously recognized N.D.R.Ct. 3.2, applies to postconviction proceedings brought pursuant to N.D.C.C. Chapter 29-32.1. Ourada 

v. State, 2019 ND 10, ¶ 5, 921 N.W.2d 677; Atkins v. State, 2019 ND 146, ¶ 5, 

928 N.W.2d 438. Specifically, we have recognized the application of Rule 3.2, 

N.D.R.Ct., to the summary disposition of an application for post-conviction 

relief pursuant to N.D.C.C. § 29-32.1-09(3). Ourada, at ¶ 5; Atkins, at ¶¶ 4-5.

[¶11] A party responding to a motion has 14 days “to serve and file an answer 

brief and other supporting papers.” N.D.R.Ct. 3.2(a)(2). Absent a request for 

oral argument, “[u]pon the filing of briefs, or upon expiration of the time for 

filing, the motion is considered submitted to the court . . .”. Id. “Failure to file 

a brief by the opposing party may be deemed an admission . . . the motion is 

meritorious.” N.D.R.Ct. Rule 3.2(c). However, “the moving party must still 

demonstrate to the court that it is entitled to the relief requested.” Id.

[¶12] In the present case, the State filed a motion seeking summary disposition 

pursuant to N.D.C.C. § 29-32.1-09 on March 25, 2020. Wisham did not respond 

to the motion. On April 28, 2020, 33 days later, the district court entered an 

order dismissing Wisham’s application. Absent a response to the State’s 

assertion the claims were untimely and barred by res judicata, we conclude the 

court did not err in summarily disposing of Wisham’s application.
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III

[¶13] The State moved for summary disposition of the application for postconviction relief asserting the application was untimely and barred by res 

judicata. Wisham failed to respond to the motion and the district court 

dismissed his application. We affirm the court’s summary disposition of 

Wisham’s application.

[¶14] Jon J. Jensen, C.J.

Gerald W. VandeWalle

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte