concurring specially.
[¶ 25] I agree with the result reached by the majority. I write separately to note that the majority’s dicta is at best obsolete exhortation.
[¶ 26] At ¶ 20, citing State v. McMorrow, 332 N.W.2d 232, 237 (N.D.1983), the majority says, ‘We reiterate that trial courts ordinarily would be well advised to appoint counsel for most indigent applicants seeking post-conviction relief for the first time, and only in ‘exceptional’ situations should counsel not be appointed.” Of course in McMorrow, the “exceptional” situation was that the application did not raise the possibility of a substantial issue of law or fact. Even if those circumstances were the exception two decades ago, an objective review of recent years reflects that they are now the norm.
[¶ 27] Post-conviction relief is neither a substitute for appeal nor is it a second appeal. Owens v. State, 1998 ND 106, ¶ 48, 578 N.W.2d 542. Courts should appoint counsel when there is a realistic prospect of a substantial issue of law or fact that can properly be raised in the post-conviction relief proceeding. Our statutory system does not otherwise expect appointment of counsel. See N.D.C.C. § 29-32.1-05.
[¶ 28] DALE V. SANDSTROM, J.