FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
DECEMBER 17, 2020
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2020 ND 316
Cody Michael Atkins, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee
No. 20200077
Appeal from the District Court of Traill County, East Central Judicial District,
the Honorable Stephannie N. Stiel, Judge.
ORDER DENYING REQUEST TO FILE AN ‘ANDERS’ BRIEF, GRANTING
MOTION TO WITHDRAW, AND SETTING SCHEDULE FOR FUTURE
FILINGS.
Opinion of the Court by Jensen, Chief Justice.
Benjamin C. Pulkrabek, Mandan, ND, for petitioner and appellant.
Charles A. Stock, State’s Attorney, Crookston, MN, for respondent and
appellee.
Atkins v. State
No. 20200077
Jensen, Chief Justice.
[¶1] Cody Atkins appeals from a district court order denying his motion to
vacate a criminal judgment and withdraw his plea of guilty. On appeal, Atkins’
counsel seeks permission to file an “Anders” brief or, in the alternative,
permission to withdraw as Atkins’ counsel. We deny the request to file an
Anders brief, grant the motion to withdraw as Atkins’ counsel, and order a
schedule for additional filings.
I
[¶2] In June 2015, Atkins pled guilty to violating an order prohibiting contact,
a class A misdemeanor. Atkins did not appeal the criminal judgment entered
following his guilty plea.
[¶3] In September 2018, Atkins filed his first application for post-conviction
relief. Atkins argued: he was not provided discovery; he did not know the
victim’s family; the court failed to comply with Rule 11, N.D.R.Crim.P.; and no
law was violated. Following an evidentiary hearing, the court denied Atkins’
application finding: the guilty plea was entered in accordance with
N.D.R.Crim.P. 11; Atkins failed to show the State committed discovery
violations; Atkins failed to show how alleged newly discovered evidence would
change the result of the case; the order prohibiting contact was never amended
and was in effect when Atkins admitted to violating it; and the application for
post-conviction relief was untimely under N.D.C.C. § 29-32.1-02 and an
exception did not apply. Atkins appealed the district court’s findings. This
Court ordered that the appeal be dismissed at Atkins’ request.
[¶4] In September 2019, Atkins filed a motion in his criminal proceedings
seeking to vacate the judgment and withdraw his guilty plea. Atkins argued
he was not provided discovery; no law was violated; he was charged with the
wrong crime; the victim made false statements to have Atkins charged; and he
was not properly informed of the charges before entering a guilty plea. The
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State requested the motion be summarily dismissed as being meritless and
lacking factual support.
[¶5] A hearing on Atkins’ motion was held in district court. The court treated
Atkins’ motion as a second application for post-conviction relief since he had
already filed a prior application for post-conviction relief. At the beginning of
the hearing, the court granted a motion to withdraw filed by Atkins’ attorney,
and Atkins proceeded without counsel. During the hearing, Atkins conceded
his first and second allegations were barred by res judicata. The court denied
Atkins requested relief after finding Atkins’ claims were previously
determined in his first application for post-conviction relief, the statute of
limitations had elapsed, and Atkins failed to establish a mental defect which
precluded him from timely asserting relief. Atkins appealed and his current
attorney was assigned as his appellate counsel.
[¶6] Atkins’ current counsel has requested permission to withdraw as counsel
asserting he believes Atkins’ appeal is without merit. The request to withdraw
and assertion the appeal is without merit has been presented to this Court as
an effort to comply with Anders v. State of California, 386 U.S. 738 (1967),
rehearing denied, 388 U.S. 924 (1967). The State agrees this case warrants the
filing of an Anders brief, and asserts Atkins’ appeal is frivolous and should be
summarily affirmed. In the alternative, Atkins’ counsel requests to be allowed
to withdraw from this case and have this Court decide whether Atkins is
entitled to have another attorney appointed to his appeal. Atkins opposes the
Anders brief and requests new counsel. On the merits of his appeal, Atkins
argues the statute of limitations should not apply because he had a mental
condition that precluded timely filing.
II
[¶7] In Anders, 386 U.S. 738, 739 (1967), the United States
Supreme Court reviewed the duties of court-appointed appellate counsel to
prosecute a criminal appeal after that attorney had determined that there was
no merit to the indigent’s appeal. The court-appointed attorney
in Anders concluded that the appeal was without merit and advised the court
by letter. Id. After the defendant’s request for another attorney was denied, he
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filed his own brief and appeared pro se. Id. at 740. In Anders, the Court
reversed and remanded the judgment of conviction and established
constitutional procedures as follows:
The constitutional requirement of substantial equality and fair
process can only be attained where counsel acts in the role of an
active advocate in behalf of his client, as opposed to that of amicus
curiae. The no-merit letter and the procedure it triggers do not
reach that dignity. Counsel should, and can with honor and
without conflict, be of more assistance to his client and to the court.
His role as advocate requires that he support his client’s appeal to
the best of his ability. Of course, if counsel finds his case to be
wholly frivolous, after a conscientious examination of it, he should
so advise the court and request permission to withdraw. That
request must, however, be accompanied by a brief referring to
anything in the record that might arguably support the appeal. A
copy of counsel’s brief should be furnished the indigent and time
allowed him to raise any points that he chooses; the court--not
counsel--then proceeds, after a full examination of all the
proceedings, to decide whether the case is wholly frivolous. If it so
finds it may grant counsel’s request to withdraw and dismiss the
appeal insofar as federal requirements are concerned, or proceed
to a decision on the merits, if state law so requires. On the other
hand, if it finds any of the legal points arguable on their merits
(and therefore not frivolous) it must, prior to decision, afford the
indigent the assistance of counsel to argue the appeal.
386 U.S. at 744 (footnote omitted).
[¶8] This Court has previously addressed whether parties may
file an Anders brief in a criminal appeal. State v. Lewis, 291 N.W.2d 735 (N.D.
1980). In Lewis, this Court held the procedures set forth in Anders did not
apply to North Dakota law because, under the state constitution and statutes,
an appeal is a matter of right which eliminates the need for
an Anders proceeding. Id. at 737. This Court concluded:
[T]he proper procedure to be followed by the courts of this State in
cases such as the one before us in which the court-appointed
defense counsel believes that the indigent defendant’s appeal is
without merit is to appoint another attorney to represent the
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defendant on appeal as soon after the initially appointed attorney
makes his opinion as to frivolity known to the court as is practical.
The appointment of another attorney will provide the indigent
defendant with legal counsel at all stages of his appeal and will
eliminate the double burden of first convincing this court that the
appeal has some degree of merit warranting an attorney’s counsel
and later coming back to this court to convince us that the degree
of merit which warranted an attorney’s counsel also supports a
reversal of his conviction. Conceivably, the situation may arise
where the trial court will have to designate an attorney to
represent the defendant to the best of his ability notwithstanding
the fact that the attorney does not believe the appeal has merit.
Id. at 738.
[¶9] This Court noted that North Dakota procedure offers greater
constitutional protections than the procedures set out in Anders, and by
eliminating double procedures, less cost will likely be incurred by the
State. Lewis, 91 N.W.2d 735, 738 (N.D. 1980); see N.D.C.C. §§ 29-28-03 and 29-
28-06. This Court’s holding in Lewis “constitute[d] notice to all that henceforth
this [C]ourt will reject and not hear any proceedings designed only to
determine whether or not an appeal is frivolous.” Lewis, at 738.
[¶10] Our decision in Lewis was issued in the context of a criminal
proceeding. Although Atkins filed his motion in the criminal case, the district
court properly treated the case as an application for post-conviction relief. See
State v. Atkins, 2019 ND 145, ¶¶ 10-11, 928 N.W.2d 441 (holding the
Uniform Postconviction Procedure Act is to be used exclusively to challenge a
judgment of conviction subsequent to the filing of prior applications for post-
conviction relief). Post-conviction relief proceedings are civil in nature. State
v. Shipton, 2019 ND 188, ¶ 4, 931 N.W.2d 220.
[¶11] In Lewis, this Court did not permit counsel to file an Anders brief
because of a defendant’s right to representation during criminal proceedings.
Unlike criminal proceedings, representation during post-conviction
proceedings is not a matter of right, but the court has discretion to appoint
counsel in a post-conviction relief proceeding. State v. McMorrow, 332 N.W.2d
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232, 237 (N.D. 1983) (interpreting N.D.C.C. § 29-32-05, part of the 1966 version
of the Uniform Postconviction Procedure Act, subsequently repealed and
replaced with N.D.C.C. § 29-32.1-05 as part of the enactment of the 1985
version of the Uniform Postconviction Procedure Act). “The appointment of
counsel is discretionary, but applications should be read in a light most
favorable to the applicant.” Id. “If a substantial issue of law or fact may exist,
counsel should be appointed.” Id. Despite the difference between the
defendant’s right to counsel in criminal proceedings and the discretion of the
court to appoint counsel in civil proceedings, we decline to adopt the use of an
Anders brief in post-conviction relief proceedings.
III
[¶12] Having declined Atkins’ counsel’s request to file an Anders brief, we
must determine whether Atkins’ current counsel should be allowed to
withdraw from representation of Atkins. In light of the representation of
Atkins’ current counsel that the appeal lacks merit and Atkins’ request for new
counsel, we grant the request to withdraw as counsel.
IV
[¶13] The request to file an Anders brief is denied. Atkins’ current counsel’s
request to withdraw is granted. Atkins shall have thirty days from the date of
this order to file with the district court a request for the appointment of
appellate counsel. The district court shall have jurisdiction to review any
timely application for the appointment of counsel for this appeal filed by
Atkins. Atkins shall have sixty days from the date of this order to file a
supplemental appellate brief. The State shall have thirty days from the filing
of Atkins’ supplemental brief to file a responsive brief.
[¶14] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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