Owens v. State

VANDE WALLE, Chief Justice,

concurring.

[¶ 30] I concur in the result reached by Justice Sandstrom writing for the majority. Although I agree with much of the legal analysis in Justice Kapsner’s dissent, as applied to this case I cannot agree with the result the dissent would have us reach.

In Owens v. State, 1998 ND 106, ¶ 9, 578 N.W.2d 542, we noted:

Owens, acting pro se, appealed to this Court. Before the appeal could be heard, Owens requested the appeal be held in abeyance so he could present to the trial court additional issues his attorney failed to present. We “temporarily remanded to the trial court for the limited purpose of the trial court’s consideration of further motions which may be made in this case.”

As we observed in the opinion, Owens, acting pro se, set forth “no less than 20 different pretrial and trial incidents which allegedly showed his trial attorney’s performance was defective.” Id. at ¶ 10. After he was denied relief, Owens appealed. We noted that on appeal “Owens asserts the trial court in the criminal proceedings should have treated a letter he wrote to the court as a notice of direct appeal from his conviction. Owens further asserts he was denied effective assistance of counsel when his post-conviction attorney presented the first amended application for post-conviction relief.” Id. at ¶ 49.

[¶31] As the dissent notes, one of those incidents listed by Owens on remand was that “Petitioner was denied the right to appeal the conviction to the Supreme Court for review, attorney states there was no grounds for appeal.” However, at oral argument, where Owens was not represented by counsel but represented himself, Owens did not argue his attorney refused to file a direct appeal. In Berlin v. State, 2000 ND 206, ¶ 6 n. 1, 619 N.W.2d 623, we noted that numerous proceedings do not benefit, and may harm, the cause of an applicant for post-conviction relief. This observation applies equally to a proceeding in which a petitioner raises twenty alleged errors and the court is left to determine which, if any, have merit. We have observed we are not ferrets, obligated to engage in unassisted searches of the record for evidence to support a litigant’s position. Anderson v. A.P.I. Co. of Minnesota, 1997 ND 6, 559 N.W.2d 204. More significantly for this case we have said we will not consider issues where there is a failure to cite supporting authority and briefing is inadequate. Aaland v. Lake Region Grain Co-op., 511 N.W.2d 244 (N.D.1994); Friedt v. Moseanko, 484 N.W.2d 861 (N.D.1992).

*572[¶ 32] We decide only issues which have been thoroughly briefed and argued. Midwest Cas. Ins. Co. v. Whitetail, 1999 ND 138, 596 N.W.2d 341. Any issue raised but not discussed on appeal lacks sufficient merit or importance to warrant individual attention by the Court. Mattson v. Rachetto, 1999 SD 51, 591 N.W.2d 814. We do no favor to the petitioner to encourage or even defend the practices employed here. A flurry of issues, not argued or briefed, may result in a meritorious issue being overlooked.

[¶ 33] In Berlin v. State, 2000 ND 206, 619 N.W.2d 623, Silvesan v. State, 1999 ND 62, 591 N.W.2d 131, Murchison v. State, 1998 ND 96, 578 N.W.2d 514, and State v. Johnson, 1997 ND 235, 571 N.W.2d 372, we rejected claims of error because the claim could and should have been raised in prior proceedings. In those cases we held raising issues in subsequent post-conviction applications which could have been raised in prior post-conviction applications or on direct appeal is a misuse of process under N.D.C.C. § 29-32.1-12(2) for which a court may deny relief:

2. A court may deny relief on the ground of misuse of process. Process is misused when the applicant:
a. Presents a claim for relief which the applicant inexcusably failed to raise either in a proceeding leading to judgment of conviction and sentence or in a previous postcon-viction proceeding; or
b. Piles multiple applications containing a claim so lacking in factual support or legal basis as to be frivolous.

Although these cases are distinguishable because, arguably, Owens did raise the issue of ineffective assistance of counsel for appeal on remand, I believe the multiple applications Owens did file containing so many claims and so lacking in factual support or legal basis were frivolous and an abuse of process. I do not believe the decisions cited in the dissent trump our jurisprudence on misuse of process.

[¶ 34] Because the application in this case is a misuse of process the trial court could deny the application for relief. The majority opinion affirms the district court order dismissing the application and I concur in that result.

[¶ 35] WILLIAM A. NEUMANN, J., concurs.