FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
AUGUST 18, 2022
STATE OF NORTH DAKOTA
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.
Vogt v. State
No. 20220058
McEvers, Justice.
[¶1] Jason Vogt appeals from a judgment dismissing his application for post-
conviction 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
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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
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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 post-
conviction 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.
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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 “Post-
Conviction 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.
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[¶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 post-
conviction 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:
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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
6
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
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