author: KAPSNER, Justice.

text:
    2006 ND 224
    Roland C. RIEMERS, Plaintiff and Appellant, v. CITY OF GRAND FORKS, Respondent and Appellee.
    No. 20060057.
    Supreme Court of North Dakota.
    Nov. 7, 2006.

      Roland C. Riemers (argued), pro se, Emerado, ND, plaintiff and appellant.
    Sarah S. Barron (argued), and Ronald F. Fischer (on brief), Pearson Christensen & Clapp, P.L.L.P., Grand Forks, ND, for respondent and appellee.
   KAPSNER, Justice.

[¶ 1] Roland Riemers appeals from the findings of fact, conclusions of law, and order for judgment that awarded the City of Grand Forks (“the City”) summary judgment on his request for open records. We affirm.

I

[¶2] On April 4, 2005, Riemers requested access to evidence logs and other information relating to an officer-involved shooting from the Grand Forks Police Department (“GFPD”). The GFPD refused access, telling Riemers that the information could not be released until the shooting victim’s trial ended. Riemers then requested access to the information in writing. The GFPD’s response included copies of media releases and the cover sheet of the police report, but it did not contain all of the records Riemers requested. It informed Riemers that the GFPD did not have the majority of the information. The response did, however, refer Riemers to other agencies in possession of the records. Finally, it stated that the GFPD considered the evidence logs a part of an “active criminal investigation” and, as such, the GFPD considered the logs exempt from disclosure under the open records law.

[¶ 3] On April 5, Riemers requested an Attorney General’s opinion, claiming the GFPD violated the open records law. The Attorney General found the GFPD properly referred Riemers to another agency, the evidence logs were exempt from disclosure, the GFPD properly refused to disclose the logs, and the requested information was part of an “active criminal investigation” because the shooting victim’s prosecution was incomplete. N.D. Att’y Gen.2005-0-13 (Aug. 10, 2005).

[¶ 4] On June 6, Riemers filed a complaint in district court, challenging the GFPD’s open records policy. At the scheduling conference, the court determined no discovery would be required after Riemers indicated that factual discovery was “not applicable.” Based on these faets, the City, representing the GFPD, filed a motion for summary judgment.

[¶ 5] The court held a hearing on September 27, 2005 to consider the City’s summary judgment motion. Riemers did not appear at the hearing. At the hearing’s conclusion, the court granted summary judgment in favor of the City. Riem-ers, upon learning of the judgment, filed a motion for reconsideration, claiming he did not receive notice of the hearing. The court granted his motion for reconsideration and scheduled another hearing on December 19, 2005. Prior to the December 19 hearing, Riemers filed a response to the City’s summary judgment motion and a motion to extend the time to complete discovery. Again, however, Riemers failed to appear at the hearing, asserting a family death prevented his appearance. After hearing the City’s arguments, reviewing the pleadings, and considering the Attorney General’s opinion, the district court denied Riemers’ motion to extend the time for discovery and entered summary judgment in favor of the City, dismissing Riem-ers’ complaint with prejudice.

II

[¶ 6] On appeal, Riemers argues the district court erred by dismissing the complaint. against the City based on the persuasiveness of the Attorney General’s opinion instead of the court’s independent analysis; in concluding the City did not have to provide access to the requested documents that were not in its possession at the time of the request; and in considering the entire evidence file as part of an ongoing investigation. The City argues summary judgment was appropriate; the district court did not improperly shift its authority to the Attorney General; the GFPD did not violate the open records law when it referred Riemers to another agency; and the evidence logs were exempt from disclosure under the open records law at the time of Riemers’ request. We address each of those issues below.

A

[¶ 7] Whether summary judgment was properly granted is “a question of law which we review de novo on the entire record.” Wahl v. Country Mut. Ins. Co., 2002 ND 42, ¶ 6, 640 N.W.2d 689. We have stated:

Summary judgment is a procedural device for promptly and expeditiously disposing of an action without a trial if either party is entitled to judgment as a matter of law and no dispute exists as to either the material facts or the reasonable inferences to be drawn from undisputed facts, or resolving the factual disputes will not alter the result.... Summary judgment is appropriate against parties who fail to establish the existence of a factual dispute on an essential element of their claim and on which they will bear the burden of proof at trial.

Hilton v. N.D. Educ. Ass’n, 2002 ND 209, ¶23, 655 N.W.2d 60 (citations omitted). The evidence is reviewed in a light most favorable to the non-moving party. Trinity Health v. North Cent. Emergency Servs., 2003 ND 86, ¶ 15, 662 N.W.2d 280. The non-moving party also receives the benefit of all inferences that can reasonably be drawn from the evidence. Id. The moving party has the initial burden of showing there is no genuine issue of material fact. Iglehart v. Iglehart, 2003 ND 154, ¶ 10, 670 N.W.2d 343 (quoting Anderson v. Meyer Broad. Co., 2001 ND 125, ¶ 14, 630 N.W.2d 46). However, the non-moving party cannot simply rely upon the pleadings or unsupported, conclusory allegations. Id. That party must present competent, admissible evidence raising an issue of material fact. Id. The court has no duty to scour the record for evidence that would preclude summary judgment. Id. Moreover, “[a] scintilla of evidence is not sufficient to support a claim, there must be enough evidence for a reasonable jury to find for the plaintiff.” Id. (citing Wishnatsky v. Huey, 1998 ND APP 8, ¶ 5, 584 N.W.2d 859).

[¶ 8] Riemers’ briefs and motions are a near verbatim recitation of the City’s statement of the facts. Riemers merely relied upon his pleadings and unsupported, conclusory allegations and he has not presented competent, admissible evidence raising an issue of material fact. We have repeatedly held that to avoid summary judgment, a party must do more. Iglehart, 2003 ND 154, ¶ 10, 670 N.W.2d 343. “When no pertinent evidence on an essential element is presented to the trial court in resistance to the motion for summary judgment, it is presumed that no such evidence exists.” Kummer v. City of Fargo, 516 N.W.2d 294, 297 (N.D.1994). Since no issue of material fact has been raised, Riemers’ issues on appeal concern the interpretation of N.D.C.C. ch. 44-04 and its application to undisputed facts. The district court did not err in entering summary judgment.

B

[¶ 9] Riemers argues the district court improperly relied on an Attorney General’s opinion instead of offering its own analysis. He claims this “delegation of judicial authority” denied him due process under the North Dakota Constitution. Alleged violations of constitutional rights are reviewed de novo. See Riemers v. Grand Forks Herald, 2004 ND 192, ¶ 11, 688 N.W.2d 167. We have also said: “ ⅛ party waives an issue by not providing supporting argument and, without supportive reasoning or citations to relevant authorities, an argument is without merit.’ ” Id. (quoting Riemers v. O’Halloran, 2004 ND 79, ¶6, 678 N.W.2d 547). In other words, “[a] party asserting a constitutional claim such as this must make a strong case supported by both fact and law or ‘forgo the claim.’ ” Id. (quoting O’Halloran, 2004 ND 79, ¶6, 678 N.W.2d 547).

[¶ 10] In asserting his due process claim, Riemers fails to provide any supporting reasoning or citations to legal authorities. He merely relies upon his bare assertions that the district court violated his due process rights. Without support, Riemers’ contentions are without merit. Id.

[¶ 11] Riemers argues the court erred by relying on the persuasive authority of an Attorney General’s opinion. An Attorney General’s opinion .is .not binding authority upon the courts; however, “opinions of the Attorney General are entitled to respect, and courts should follow them if they are persuasive.” Edinger v. Governing Auth. of Stutsman County Corr. Ctr. & Law Enf. Ctr., 2005 ND 79, ¶ 13, 695 N.W.2d 447.

[¶ 12] In the instant appeal, the district court made a specific finding that the Attorney General’s opinion was “highly persuasive.” It was entitled to do so. Id. Additionally, the court did not rely solely upon the Attorney General’s opinion. The court indicated it made its decision after “having considered the brief filed by the City in support of it[s] motion and the argument of the City’s counsel, Riemers’ written Response, and the Open Records and Meetings Opinion, 2005-0-13, issued by the Attorney General on August 10, 2005, and being fully advised in the matter....” The Attorney General’s opinion was consistent with the court’s independent reasonable interpretation of the law. N.D. Fair Housing Council, Inc. v. Peterson, 2001 ND 81, ¶ 16, 625 N.W.2d 551 (citing N.D. Fair Housing Council, Inc. v. Haider, No. CIV A1-98-077, 1999 WL 33283355, *4 (D.N.D.1999) (unreported)) (finding an Attorney General’s opinion “highly persuasive” because it was “consistent with an independent analysis of the question presented”). The court did not err in considering the Attorney General’s opinion in addition to its consistent independent analysis. Peterson, at ¶ 16.

C

[¶ 13] Riemers argues the district court erred in ruling the City was not required to disclose records that were not in the City’s custody at the time of his request. Riemers requested the evidence logs and copies of the shooting victim’s warrants from the GFPD, which is a “public entity” for open records law purposes. N.D.C.C. § 44-04-17.1(12). Generally, a public entity is required to disclose all non-confidential records in its possession. N.D.C.C. § 44-04-18(1). However, a public entity is not required to disclose a record that is not in its possession or custody. N.D.C.C. § 44-04-18(4) (2005); N.D. Att’y Gen.2005-0-13, at 3 (stating that a public entity need not disclose a record that is not in its possession); N.D. Att’y Gen.2003-0-01, at 3 (Jan. 30, 2003) (same).

[¶ 14] The GFPD informed Riemers that it did not possess the records he requested and it referred him to other agencies for the information. Riemers, however, argues the GFPD “does not say it doesn’t have this information in their possession, only that other agencies are the primary source of this information.” (emphasis omitted). In other words, Riemers claims the GFPD may have had copies of discoverable information in its possession at the time of the request. This issue, however, is not properly before us because it is raised for the first time on appeal. Berlin v. State, 2000 ND 13, ¶¶ 19-20, 604 N.W.2d 437 (citing State v. Keller, 550 N.W.2d 411, 412 (N.D.1996) and Morstad v. State, 518 N.W.2d 191, 194 (N.D.1994)). Accordingly, we decline to address this issue.

D

[¶ 15] Finally, Riemers argues the district court erred in determining the documents he requested, namely the evidence logs from the shooting victim’s prosecution, were materials exempt from disclosure under the open records law. Riemers specifically asked the Attorney General to address this issue. N.D. Att’y Gen.2005-0-13, at 2. The Attorney General determined the GFPD did not violate North Dakota’s open records law. Id. at 5. We agree.

[¶ 16] Generally, all records of a public entity are public records, open and accessible for inspection. N.D. Const, art. XI, § 6; N.D.C.C. § 44-04-18(1). There are, however, several exemptions to the general open records provisions when it concerns law enforcement records. See, e.g., N.D.C.C. § 44-04-18.7 (exempting criminal intelligence and investigative information from disclosure under the open records law). This policy balances the public’s right to know with law enforcement’s need to protect the public’s health and welfare. N.D. Att’y Gen.2005-0-13, at 3. The exempted “criminal investigative information” includes:

information with respect to an identifiable person or group of persons compiled by a criminal justice agency in the course of conducting a criminal investigation of a specific act or omission.... Criminal investigative information must be considered “active” as long as it is related to an ongoing investigation that is continuing with a reasonable good faith anticipation of securing an arrest or prosecution in the foreseeable future.

N.D.C.C. § 44-04-18.7(3).

[¶ 17] Here, the Attorney General determined the evidence logs were “compiled” by the GFPD and the logs were part of an “active” investigation because the shooting victim’s prosecution had not been completed at the time of Riemers’ request. N.D. Att’y Gen.2005-0-13, at 4. The Attorney General also determined that an active prosecution necessarily includes an ongoing prosecution because a determination of guilt or innocence has not been made. See id. at 5. As such, the Attorney General determined the records were, at the time of Riemers’ request, exempt from disclosure. Id. at 4-5.

[¶ 18] The Attorney General correctly noted, however, that the “criminal investigative information” exemption is temporary in nature. Id. “Once the investigation is no longer active, the information must be disclosed unless disclosure is restricted under another statute.” Id. (citing N.D. Att’y Gen. 98-F-09 (April 9, 1998)). Once the shooting victim’s prosecution was completed, Riemers had access to the files and evidence logs he requested. Id. The district court agreed with the Attorney General’s conclusions, also finding that the GFPD properly exempted the evidence logs under N.D.C.C. ch. 44-04. The investigation was “active” under N.D.C.C. § 44-04-18.7(3) because the prosecution of the shooting victim was not complete at the time of Riemers’ request.

IV

[¶ 19] The district court did not err in granting summary judgment in favor of the City on Riemers’ open records request, by relying upon the Attorney General’s opinion, or by holding the requested evidence logs were exempt from disclosure under N.D.C.C. § 44-04-18.7 at the time of Riemers’ request. Therefore, we affirm the district court.

[¶ 20] GERALD W. VANDE WALLE, C.J., and DALE V. SANDSTROM, DANIEL J. CROTHERS, and MARY MUEHLEN MARING, JJ., concur.

      . A district court's findings of fact, conclusions of law, and order for judgment is generally unappealable. See, e.g., Haugenoe v. Bambrick, 2003 ND 92, ¶ 1 n. 1, 663 N.W.2d 175. However, “an attempted appeal from an order for judgment will be treated as an appeal from a subsequently entered consistent judgment, if one exists.” Id. (quoting Koehler v. County of Grand Forks, 2003 ND 44, ¶ 6 n. 1, 658 N.W.2d 741). In the instant appeal, there is a subsequently entered consistent judgment, dated January 4, 2006. Therefore, we will treat Riemers’ appeal as one from that judgment.

      . Prior to May 4, 2005, this statutory language was contained in N.D.C.C. § 44-04-18(3). See 2005 N.D. Sess. Laws ch. 377, § 4.


source: Caselaw Access Project

author: KAPSNER, Justice. SANDSTROM, Justice,

license: Public Domain

text:
    2006 ND 223
    Paul Joseph SAMBURSKY, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.
    Nos. 20050330, 20050331, 20050032, 20050033, 20050034, 20050035.
    Supreme Court of North Dakota.
    Nov. 7, 2006.

      Rebecca J. Heigaard McGurran, Grand Forks, ND, for petitioner and appellant; submitted on brief.
    David T. Jones, Assistant State’s Attorney, Grand Forks, ND, for respondent and appellee; submitted on brief.
   KAPSNER, Justice.

[¶ 1] Paul Sambursky appeals from an order denying his application for post-conviction relief. We conclude the district court did not err in determining Sambur-sky’s guilty plea was made knowingly and voluntarily, but conclude Sambursky raised genuine issues of material fact on his claim for ineffective assistance of counsel. Sambursky is entitled to an evidentia-ry hearing on his ineffective assistance of counsel claim. Therefore, the order denying the application for post-conviction relief is affirmed in part and reversed in part.

I

[¶ 2] In 2001 and 2002, a series of sexual assaults occurred in Grand Forks. In early 2003, Sambursky was charged with five counts of gross sexual imposition and one count of disorderly conduct arising out of those incidents.

[¶ 3] Sambursky and the State reached a plea agreement, and Sambursky entered pleas of guilty to the charges. The district court, after reviewing the plea agreement and a pre-sentence investigation report, rejected the plea agreement. An amended plea agreement was reached, and Sambur-sky again agreed to plead guilty to the charges. Under the terms of the amended plea agreement, the State agreed to recommend that Sambursky be sentenced to a total of 30 years’ incarceration, with an additional 50 years suspended. The agreement provided that Sambursky would not face more than 30 years’ incarceration, but expressly allowed him to present testimony and argument requesting a downward departure from the 30-year recommendation.

[¶ 4] The district court accepted Sam-bursky’s guilty pleas under the amended agreement and sentenced him to 30 years’ incarceration, with the additional 50 years suspended. Sambursky subsequently filed a motion for reduction of his sentence, to give credit for time served, and to amend his conditions of probation. The court denied the motion to reduce Sambursky’s sentence, but granted credit for time served and amended the conditions of probation to clarify that Sambursky could see his children.

[¶ 5] In December 2004, Sambursky applied for post-conviction relief, alleging his guilty plea was not entered voluntarily because he did not fully understand the consequences of his plea and he received ineffective assistance of counsel. Sambur-sky filed an affidavit in support of his petition, providing in pertinent part:

Before I entered into any sort of plea negotiations I specifically asked my attorney a number of times if I had to serve any sort [of] minimum amount of time. He told me “No”. I also told my attorney that some of the inmates in the ... Corrections Center informed me about some sort of minimum amount of time I had to serve because my crime was violent, he told me that they were misinformed and that he will check just to make sure. He later told me that he had done some checking and even called the parole board and other staff at the State Prison and that after I served at least one year I would be eligible for parole consideration. I also asked [the judge] if I had to serve any minimum amount of time, and she told me that “No, none of these sentenced] included any minimum mandatory terms of imprisonment.” ... When I got to NDSP I was told that ... I must serve a minimum of 85% of my time before I can be considered for any sort of early release .... Had I known that I would have to serve 30 years in prison I would have never signed a plea agreement. Furthermore, ... I learned that ND law says that the court IS required to advise me of a mandatory minimum punishment. When I learned of this I requested relief from [the judge] in the form of a “Rule 35” motion and she basically told me to apply for pardon and denied my motion.
. I also feel that my attorney was ineffective for a number of reasons. I already told you that he lied/misinformed me about the plea agreement. Had I known the truth I would have never signed that paper. He also told me that I could expect to be out in 8-10 years with good behavior. The truth is I cannot expect to be out for 25 years....

[¶ 6] The State moved for summary dismissal of the application, alleging Sam-bursky had failed to raise genuine issues of material fact on the voluntariness of his plea or ineffective assistance of counsel. The district court summarily denied Sam-bursky’s application for post-conviction relief. Sambursky has appealed to this Court, alleging (1) his guilty plea was not voluntary because he was not informed by the district court that on account of the nature of his crimes, he would be required to serve 85 percent of the sentence imposed and (2) he received ineffective assistance of counsel.

II

[¶ 7] A district court may summarily dismiss an application for post-conviction relief if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. N.D.C.C. § 29-32.1-09(1); Johnson v. State, 2006 ND 122, ¶ 19, 714 N.W.2d 832; Heyen v. State, 2001 ND 126, ¶ 6, 630 N.W.2d 56. We review an appeal from summary denial of post-conviction relief as we would review an appeal from a summary judgment. Johnson, at ¶ 19; Heyen, at ¶ 6. The party opposing the motion for summary dismissal is entitled to all reasonable inferences to be drawn from the evidence and is entitled to an evidentiary hearing if a reasonable inference raises a genuine issue of material fact. Heyen, at ¶ 6. For summary judgment purposes, the evidentiary assertions of the party opposing the motion are assumed to be true. Dinger v. Strata Corp., 2000 ND 41, ¶ 14, 607 N.W.2d 886. Ineffective assistance of counsel issues are mixed questions of law and fact, which are fully reviewable on appeal. Heckelsmiller v. State, 2004 ND 191, ¶ 5, 687 N.W.2d 454.

Ill

[¶ 8] Sambursky alleges his guilty plea was not made knowingly and voluntarily, because the district court did not advise him that under N.D.C.C. § 12.1-32-09.1, he would be required to serve 85 percent of the sentences imposed because of the violent nature of some of his crimes. Sam-bursky contends the 85 percent rule is a mandatory minimum sentence that must be disclosed to the defendant under N.D.R.Crim.P. 11 before a guilty plea is accepted.

[¶ 9] A guilty plea must be entered knowingly, intelligently, and voluntarily to be valid. State v. Raulston, 2005 ND 212, ¶ 11, 707 N.W.2d 464; Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Rule 11, N.D.R.Crim.P., requires the district court to advise the defendant of certain rights, including any mandatory minimum sentence, before accepting a guilty plea. Raulston, at ¶ 11; State v. Magnuson, 1997 ND 228, ¶¶ 16, 18, 571 N.W.2d 642. The requirement to advise the defendant under N.D.R.Crim.P. 11 is mandatory and binding upon the court. State v. Feist, 2006 ND 21, ¶ 24, 708 N.W.2d 870; State v. Farrell, 2000 ND 26, ¶ 9, 606 N.W.2d 524; Magnuson, at ¶ 16.

[¶ 10] We addressed the precise issue raised by Sambursky in Raulston and Magnuson. We explicitly held the 85 percent service requirement of N.D.C.C. § 12.1-32-09.1 imposes a condition of parole, not a mandatory minimum sentence requiring disclosure by the district court under N.D.R.Crim.P. 11(b)(1)(H). Raulston, 2005 ND 212, ¶ 12, 707 N.W.2d 464; Magnuson, 1997 ND 228, ¶ 21, 571 N.W.2d 642. The 85 percent service requirement does not require any minimum sentence, but it does require service of 85 percent of any incarceration sentence before parole eligibility. A district court’s failure to advise the defendant of the implications of the 85 percent service requirement does not affect the voluntariness of the plea. Magnuson, at ¶ 21.

[¶ 11] We conclude the district court did not err in finding Sambursky’s guilty plea was knowingly and voluntarily made.

rv

[¶ 12] Sambursky alleges he received ineffective assistance of counsel because his attorney did not inform him of the 85 percent service requirement under N.D.C.C. § 12.1-32-09.1. Sambursky claims his affidavit in support of his application for post-conviction relief created a genuine issue of material fact precluding summary dismissal of his ineffective assistance of counsel claim.

[¶ 13] The Sixth Amendment of the United States Constitution guarantees a criminal defendant the right to effective assistance of counsel. Wright v. State, 2005 ND 217, ¶ 10, 707 N.W.2d 242; Laib v. State, 2005 ND 187, ¶9, 705 N.W.2d 845. A post-conviction relief petitioner alleging ineffective assistance bears the burden of proving two elements or prongs. Johnson, 2006 ND 122, ¶ 20, 714 N.W.2d 832 (citing Garcia v. State, 2004 ND 81, ¶ 5, 678 N.W.2d 568 and Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (providing the analytical framework for ineffective assistance claims)); Wright, at ¶ 10. First, the petitioner must prove that the attorney’s performance fell below an objective standard of reasonableness. Johnson, at ¶ 20; Wright, at ¶ 10. An attorney’s performance is measured considering the prevailing professional norms. Johnson, at ¶ 20. The defendant must overcome the strong presumption that counsel’s representation fell within the wide range of reasonable professional assistance, and courts must consciously attempt to limit the distorting effect of hindsight. Wright, at ¶ 10; Laib, at ¶ 9. Second, the petitioner must show that the attorney’s deficient performance prejudiced him. Johnson, at ¶ 20; Wright, at ¶ 10. In order to meet this standard, the petitioner “must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Sambursky’s affidavit raises genuine issues of material fact under both prongs.

A

[¶ 14] Sambursky argues his attorney was ineffective because he provided misinformation about the length of time he will serve in the state penitentiary under the plea agreement. In order to avoid summary dismissal of his claims, Sambur-sky must present some evidence that his attorney’s performance fell below an objective standard of reasonableness. Johnson, 2006 ND 122, ¶20, 714 N.W.2d 832; Wright, 2005 ND 217, ¶ 10, 707 N.W.2d 242. He must also overcome a presumption that his attorney’s performance fell within the broad range of reasonableness. See Wright, at ¶ 10. In making such a determination, “the court must consider all circumstances and decide whether there were errors so serious that defendant was not accorded that ‘counsel’ guaranteed by the Sixth Amendment.” Klose v. State, 2005 ND 192, ¶ 10, 705 N.W.2d 809 (quoting Mathre v. State, 2000 ND 201, ¶ 3, 619 N.W.2d 627).

[¶ 15] If Sambursky’s assertions are taken as true for summary dismissal purposes, his attorney committed a serious error by misinforming him of the effects of the law. We addressed a similar issue in Raulston, where we stated that it is unlikely that an attorney’s failure to inform a defendant of the 85 percent service requirement under. N.D.C.C. § 12.1-32-09.1 would fall outside of the wide range of reasonable performance. 2005 ND 212, ¶ 15, 707 N.W.2d 464. However, the facts in that case substantially differ from those presented here.

[¶ 16] In Raulston, the defendant pled guilty to interference with an emergency call and aggravated assault. Id. at ¶ 2. Before Raulston was incarcerated, he violated several conditions of his probation. Id. at ¶3. The district court held a hearing to address Raulston’s conduct, where the court “explained the minimum and maximum penalties of the underlying convictions and informed Raulston of the possible consequences of an admission. Raul-ston then admitted the probation condition violations without benefit of a plea agreement.” Id. Raulston was sentenced to five years’ incarceration with three and one-half years suspended. Id. at ¶ 4. At the hearing’s conclusion, the district court stated, “[w]ho knows, you might be out— back here in eight, nine months if you go through the process right.” Id.

[¶ 17] Due to the nature of Raulston’s underlying offenses, the court’s statement was incorrect. Id. at ¶5. Raulston’s aggravated assault conviction triggered the service requirement of N.D.C.C. § 12.1-32-09.1. Raulston, 2005 ND 212, ¶ 5, 707 N.W.2d 464. Raulston argued the district court’s failure to inform him of the 85 percent service requirement was “akin to the failure to inform a criminal defendant of a mandatory minimum sentence... Id. at ¶ 11. We disagreed, holding that the requirement was a parole condition, not a minimum mandatory sentence and the district court’s failure to inform a defendant of it, although discouraged, was not improper. Id. at ¶ 12.

[¶ 18] In this ease, however, Sambur-sky asserts his attorney did more than merely fail to inform him of a possible parole condition. He claims his attorney actively misinformed him of the effects of the law. Instead of the situation presented in Raulston, Sambursky asserts that his attorney told him that he would only serve “8-10 years” of his 30-year sentence. He also claims his attorney purported to have researched the issue and called the parole board to support his position. These assertions, if taken as true under our summary judgment jurisprudence, indicate Sambursky’s attorney actively misinformed him of the length of time he would serve under the plea agreement.

[¶ 19] Raulston does not go so far as to hold that providing misinformation is the same as failing to provide information at all. Id. at ¶¶ 15-16. Therefore, Raulston is not controlling in this situation.

[¶ 20] Sambursky’s affidavit states he asked whether he “had to serve any sort [of] minimum amount of time.” Construing all reasonable inferences in Sambursky’s favor, the affidavit can reasonably be read to have inquired into how much time of his sentence he would actually serve. The actual time a defendant will serve and the defendant’s parole eligibility could be important factors in considering a plea agreement. Sambursky’s affidavit raises an issue of material fact regarding whether he was asking about the actual time he would serve under the plea agreement and whether his attorney’s advice was objectively deficient when the attorney advised him of the length of time he would actually serve. Accordingly, Sambursky is entitled to an evidentiary hearing. Heyen, 2001 ND 126, ¶ 6, 630 N.W.2d 56 (providing that a petitioner is entitled to an evidentiary hearing if a reasonable inference from the evidence raises an issue of material fact).

[¶ 21] If a hearing does establish that the assertions in Sambursky’s affidavit are correct, Sambursky’s attorney fell below the standard of reasonable assistance when he actively misinformed his client about the effects of the law. Hill, 474 U.S. at 62, 106 S.Ct. 366 (White, J., concurring), providing:

Were it not for the misinformation in the plea statement-had petitioner’s attorney known of a prior conviction and still informed petitioner that he would be eligible for parole after serving one-third of his sentence-petitioner would be entitled to an evidentiary hearing and an opportunity to prove that counsel’s failure to advise him of the effect of [the repeat offender statute] amounted to ineffective assistance of counsel. The failure of an attorney to inform his client of the relevant law clearly satisfies the first prong of the Strickland analysis adopted by the majority, as such an omission cannot be said to fall within “the wide range of professionally competent assistance” demanded by the Sixth Amendment.

(citing Strickland, 466 U.S. at 690, 104 S.Ct. 2052). Therefore, Sambursky has raised a genuine issue of fact under the “performance” prong of the Strickland analysis.

B

[¶ 22] To meet the second prong of his ineffective assistance of counsel claim, Sambursky must also show that he was prejudiced by his attorney’s misinformation. Hill, 474 U.S. at 59, 106 S.Ct. 366 (discussing the second prong of the Strickland analysis); Johnson, 2006 ND 122, ¶ 20, 714 N.W.2d 832. Sambursky’s affidavit raises an issue of fact under the “prejudice” prong because he asserts he was induced into pleading guilty based on the erroneous advice of his attorney.

[¶ 23] The United States Supreme Court stated that “in order to satisfy the ‘prejudice’ requirement, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59, 106 S.Ct. 366. In Hill, just as in this case, the defendant filed an application for post-conviction relief, claiming his guilty plea was involuntary because he received ineffective assistance of counsel in that his attorney advised him he would be eligible for release. Id. at 53, 106 S.Ct. 366. Hill’s attorney misinformed him about the actual length of time he would serve under a plea agreement, telling him that he was eligible for parole after serving one-third of his sentence. Id. at 54, 106 S.Ct. 366. In fact, unknown to Hill’s counsel, Hill was a second offender and, by operation of a repeat offender statute, he was required to serve one-half of his sentence. Id. at 54-55, 474 U.S. 52. However, the Supreme Court held that Hill’s ineffective assistance claim failed because he did not allege that had his attorney correctly informed him about his parole eligibility date, he would not have pled guilty and insisted on going to trial. Id. at 60, 106 S.Ct. 366.

[¶ 24] Sambursky’s affidavit, on the other hand, makes those assertions. Unlike in Hill, Sambursky’s affidavit alleges that his attorney misinformed him of the effects of the law and that he would not have pleaded guilty to the charges had he known about the law requiring him to serve 85 percent of his sentence. Therefore, Hill’s underlying proposition, that a post-conviction relief petitioner can assert his attorney’s performance is deficient because the attorney misinforms him about the law and he is prejudiced by his attorney’s deficiency, controls here. Id. at 59-60,106 S.Ct. 366.

[¶ 25] Hill’s holding has been reaffirmed by the Supreme Court. In Roe v. Flores-Ortega, 528 U.S. 470, 485, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), the Supreme Court stated:

In Hill, we considered an ineffective assistance of counsel claim based on counsel’s allegedly deficient advice regarding the consequences of entering a guilty plea. Like the decision whether to appeal, the decision whether to plead guilty (i.e., waive trial) rested with the defendant and, like this case, counsel’s advice in Hill might have caused the defendant to forfeit a judicial proceeding to which he was otherwise entitled. We held that “to satisfy the ‘prejudice’ requirement [of Strickland], the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”

This Court has also recognized the Hill holding. Ernst v. State, 2004 ND 152, ¶ 10, 683 N.W.2d 891; Abdi v. State, 2000 ND 64, ¶ 29, 608 N.W.2d 292.

[¶ 26] In this case, Sambursky has clearly asserted that, but for counsel’s statements misinforming him of the effect of the law, he would not have entered into the plea agreement and would have insisted on going to trial. The affidavit constitutes admissible, competent evidence raising genuine issues of material fact— whether Sambursky’s attorney misinformed him of the relevant law regarding the sentence he would serve under the plea agreement and whether he was induced by this misinformation to enter into a plea agreement. Kummer v. City of Fargo, 516 N.W.2d 294, 297 (N.D.1994) (holding that a resisting party must present competent, admissible evidence by affidavit or other comparable means which raises an issue of material fact); see also N.D.R.Civ.P. 56(e). Accordingly, Sambur-sky has raised an issue of material fact concerning the second Strickland prong. Flores-Ortega, 528 U.S. at 485, 120 S.Ct. 1029; Hill, 474 U.S. at 59, 106 S.Ct. 366. As such, he is entitled to an evidentiary hearing. Heyen, 2001 ND 126, ¶ 6, 630 N.W.2d 56.

V

[¶ 27] We have considered the remaining issues and arguments raised by the parties and find them either unnecessary to our decision or without merit. We conclude the district court did not err in determining Sambursky’s guilty plea was made knowingly and voluntarily, but conclude Sambursky raised genuine issues of material fact on his claim for ineffective assistance of counsel. Sambursky is entitled to an evidentiary hearing on his ineffective assistance of counsel claim. Therefore, the order denying the application for post-conviction relief is affirmed in part and reversed in part.

[¶ 28] GERALD W. YANDE WALLE, C.J., and DANIEL J. CROTHERS and MARY MUEHLEN MARING, JJ., concur.

SANDSTROM, Justice,

concurring in part and dissenting in part.

[¶ 29] I concur in that part of the majority opinion concluding the district court did not err in finding Sambursky’s guilty plea was knowingly and voluntarily made. I disagree, however, with the conclusion that Sambursky raised genuine issues of material fact precluding summary disposition of his ineffective assistance of counsel claim, and I therefore dissent from Parts IV and V of the majority opinion.

[¶ 30] The majority concludes Sambur-sky has raised a genuine issue of material fact on whether his attorney’s conduct fell below the standard of reasonable professional assistance under the “performance” prong of the Strickland test. See Majority Opinion at K120-21. Sambursky based his claim of ineffective assistance of counsel solely upon his allegation that his attorney did not advise him of the 85 percent service requirement under N.D.C.C. § 12.1-32-09.1. In State v. Raulston, 2005 ND 212, ¶ 15, 707 N.W.2d 464, this Court stated it was “unlikely” that counsel’s failure to inform- the defendant of the 85 percent service requirement would fall outside the wide range of reasonable professional assistance. Raulston therefore indicates that counsel’s failure to advise the defendant of the 85 percent service requirement does not per se fall below the objective standard of reasonable representation. The majority at ¶¶ 18-19 suggests Raul-ston is distinguishable because Sambursky alleged that his attorney “actively misinformed” him of the effects of the law. Sambursky’s affidavit filed with the application for post-conviction relief does not support either Sambursky’s assertions or the majority’s conclusion.

' [¶ 31] Sambursky argued on appeal that “Mr. Sambursky’s attorney did not inform him of the 85% rule even though he specifically asked about minimum time to serve for violent crimes.” In his affidavit, Sambursky stated that “[b]efore I entered into any sort of plea negotiations I specifically asked my attorney a number of times if I had to serve any sort [of] minimum amount of time,” and “I also told my attorney that some of the inmates in the Grand Forks County Corrections Center informed me about some sort of minimum amount of time I had to serve because my crime was violent.” Sambursky claimed his counsel responded “no” to these questions.

[¶ 32] The allegations in Sambursky’s affidavit show, at best, that he asked whether there was a mandatory minimum sentence for the charged crimes. The 85 percent service requirement imposes a condition of parole, not a mandatory minimum sentence. Raulston, 2005 ND 212, ¶ 12, 707 N.W.2d 464; State v. Magnuson, 1997 ND 228, ¶21, 571 N.W.2d 642. Counsel therefore was not in error in responding in the negative when Sambursky asked if there was a mandatory minimum sentence. Furthermore, Sambursky’s questions must be viewed in context. He alleged that these discussions took place “[b]efore I entered into any sort of plea negotiations.” At that point, it would have been pure speculation to consider the application and effect of N.D.C.C. § 12.1-32-09.1 upon Sambursky’s sentence. Prior to entering into plea negotiations, there remained a possibility that the' charges might be reduced or Sambursky would not be sentenced to imprisonment, and in those instances the 85 percent requirement would not apply. See N.D.C.C. § 12.1-32-09.1 (85 percent rule applies only to certain enumerated offenses and only if the defendant receives a sentence of imprisonment). In this context, Sambursky’s asking whether there was “some sort of minimum amount of time” indicates he was asking whether there was a mandatory minimum sentence.

[¶ 33] In addition, even after Sambur-sky entered into the plea agreements it was not a certainty that the 85 percent requirement of N.D.C.C. § 12.1-32-09.1 would apply. The plea agreements state the sentence was a recommendation only, and expressly indicated the trial court was “not bound by the recommendation.” The court therefore could have imposed any sentence within the allowable range for Sambursky’s offenses. Since there was no mandatory minimum sentence, the court could have imposed a sentence that did not include any period of incarceration. The 85 percent requirement under N.D.C.C. § 12.1-32-09.1 applies only if the defendant “receives a sentence of imprisonment.”

[¶ 34] The majority at ¶ 26 further concludes Sambursky raised a genuine issue of material fact concerning the “prejudice” prong of the Strickland analysis. Sambur-sky alleged in his appellate brief that his affidavit stated “he would not have entered into plea agreements had he received information about the [85 percent] rule.” Sambursky’s affidavit, however, does not support that assertion. In the affidavit, Sambursky stated, “[h]ad I known that I would have to serve 30 years in prison I would have never signed a plea agreement,” and “[h]ad I known the truth I would have never signed that paper.” Sambursky certainly had to be aware of the possibility he would have to serve 30 years, inasmuch as the plea agreement explicitly provided for a recommendation of 30 years’ incarceration. Furthermore, even with the application of N.D.C.C. § 12.1-32-09.1, Sambursky could serve a sentence significantly shorter than 30 years. In addition to the possible 15 percent reduction from the sentence imposed, the statute explicitly provides the 85 percent service rule does not apply if the sentence is commuted. N.D.C.C. § 12.1-32-09.1; see also N.D.C.C. ch. 12-55.1. Sambursky’s affidavit says he would not have pleaded guilty had he known he would have to serve 30 years, not had he known about the statute.

[¶ 35] The party seeking summary dismissal of a petition for post-conviction relief may, in some cases, make an initial showing of a lack of a genuine issue of material fact by pointing out there is an absence of evidence to support the non-moving party’s case. Weaver v. State, 2003 ND 47, ¶ 6, 658 N.W.2d 352; Steinbach v. State, 2003 ND 46, ¶ 12, 658 N.W.2d 355. The nonmoving party is then put on his proof to provide competent evidence to support his claim. Vandeberg v. State, 2003 ND 71, ¶ 6, 660 N.W.2d 568; Weaver, at ¶ 6. The party resisting the motion may not merely rely upon the pleadings or unsupported conclusory allegations, but must present competent, admissible evidence demonstrating a genuine issue of material fact. Stembach, at ¶ 10.

[¶ 36] In this case, the State made an initial showing of a lack of evidence in the record to support Sambursky’s claim of ineffective assistance of counsel, and he was put on his proof to present competent, admissible evidence raising a genuine issue of material fact on this issue. Sambursky failed to present evidence establishing a genuine issue of material fact. Accordingly, the district court did not err in summarily rejecting Sambursky’s claim of ineffective assistance of counsel.

[¶ 37] I would affirm the district court’s order denying Sambursky’s application for post-conviction relief.

[¶ 38] Dale V. Sandstrom, J.


author: VANDE WALLE, Chief Justice.

text:
    2006 ND 227
    STATE of North Dakota, Plaintiff and Appellee, v. Paul John BUCHHOLZ, Defendant and Appellant.
    Nos. 20060044, 20060061.
    Supreme Court of North Dakota.
    Nov. 7, 2006.

      Lee Michael Grossman, Assistant State’s Attorney, Valley City, N.D., for plaintiff and appellee.
    Russell John Myhre, Valley City, N.D., for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Paul Buchholz appealed from a judgment of conviction entered after a jury found him guilty of two counts of possession of a firearm by a felon. We affirm.

I

[¶ 2] In September 2002, Paul Buch-holz pled guilty to issuing a check without sufficient funds, a class C felony. He was sentenced to 60 days in jail, with all 60 days suspended for one year, and one year of unsupervised probation.

[¶ 3] In November 2003, while executing a search warrant, law enforcement found an SKS rifle and a Remington Shotgun under a bed in Buchholz’s home. Buchholz was charged with one count of possession of a firearm by a felon in file 03-K-815, in violation of N.D.C.C. § 62.1-02-01(2). After a preliminary hearing, the district court discharged Buchholz, finding there was not probable cause to believe he committed the crime because his felony conviction of issuing a check without sufficient funds was immediately reduced to a misdemeanor when he was sentenced to less than one year in prison.

[¶ 4] .In State v. Buchholz, 2005 ND 30, ¶ 8, 692 N.W.2d 105, we reversed and remanded the district court’s order discharging Buchholz, concluding a person convicted of a felony and sentenced to not more than one year, despite the immediate reduction to a misdemeanor conviction, is still initially convicted of a felony. In that prior appeal, Buchholz also claimed the district court’s discharge order should be affirmed because he relied on a mistake of law and did not believe he was committing a crime. Id. at ¶ 10. We concluded Buch-holz could not rely on a mistake of law as a defense to a charged offense at a preliminary hearing, and he must prove the affirmative defense at trial. Id. at ¶ 11.

[¶ 5] After the appeal, Buchholz was charged with two more counts of possession of a firearm by a felon in file 05-K-143. The two new counts were based on guns officers seized during a search of a residence attached to a bar that Buchholz was connected to and a motor home parked on the property. The search arose out of the same factual situation and occurred on the same day as the search in the previous charge. File 05-K-143 and file 03-K-815, the initial charge, were later consolidated and -tried together. The State filed separate motions in limine in each case, asking the court to exclude testimony or evidence that Buchholz relied on a mistake of law in owning or otherwise possessing a firearm. Buchholz responded only to the motion in file 03-K-815, and after considering the parties’ briefs and arguments, the district court granted the motion prohibiting Buchholz from introducing evidence or arguing a mistake of law defense. Buchholz did not respond to the State’s motion in file 05-K-143, and the district court granted the motion. A jury found Buchholz guilty of the initial count of possession of a firearm by a felon in file 03-K-815 and one count in file 05-K-143, but found him not guilty on the other count in file 05-K-143 for a weapon seized from a motor home.

II

[¶ 6] Buchholz claims the district court abused its discretion in granting the State’s motions in limine preventing him from introducing evidence at trial regarding a “mistake of law” defense.

[¶ 7] We review a district court’s decision on a motion in limine for an abuse of discretion. State v. Bjerklie, 2006 ND 173, ¶4, 719 N.W.2d 359. “A court has broad discretion in deciding whether evidence is relevant, and this Court does not reverse a district court’s decision to admit or exclude evidence on the basis of relevance unless the district court abused its discretion by acting in an arbitrary, unreasonable, or unconscionable manner.” Id.

[¶ 8] Mistake of law is an affirmative defense that may be asserted when a person has a good faith belief that his conduct does not constitute a crime and he acted in reasonable reliance upon a statement of law contained in a judicial decision, opinion, order, or judgment. N.D.C.C. § 12.1-05-09.

A

[¶ 9] Buchholz claims this Court’s decision in his prior appeal instructed the district court to consider a mistake of law defense during his trial. In deciding whether Buchholz could assert an affirmative defense to overcome a charged offense during a preliminary hearing, we said:

A preliminary hearing is not held to determine a defendant’s guilt or innocence. Therefore, Buchholz cannot assert a mistake of law defense to overcome the charged offense at a preliminary hearing. Whether Buch-holz relied on a mistake of law is an affirmative defense and must be proven by Buchholz by a preponderance of the evidence at trial.

Buchholz, 2005 ND 30, ¶ 11, 692 N.W.2d 105 (citations omitted).

[¶ 10] Buchholz claims this Court instructed the district court to allow evidence of a mistake of law defense during the trial and our instruction is the “law of the case,” which the district court was required to follow on remand. Under the “law of the case” doctrine, “ ‘if an appellate court has passed on a legal question and remanded the cause to the court below for further proceedings, the legal question thus determined by the appellate court will not be differently determined on a subsequent appeal in the same case where the facts remain the same.’ ” Peoples State Bank of Truman, Inc. v. Molstad Excavating, Inc., 2006 ND 183, ¶ 10, 721 N.W.2d 43 (quoting Tom Beuchler Const., Inc. v. City of Williston, 413 N.W.2d 336, 339 (N.D.1987)).

[¶ 11] The issue in Buchholz’s pri- or appeal was not whether a mistake of law defense was applicable, but whether an affirmative defense could be applied at a preliminary hearing to dismiss the case. Buchholz, 2005 ND 30, ¶ 11, 692 N.W.2d 105. We concluded an affirmative defense could not be asserted at a preliminary hearing to overcome a charge because a preliminary hearing is not held to determine guilt or innocence, and therefore the place for such an assertion was at trial. Id. Whether a mistake of law defense was applicable in this case was not the legal question before us in Buchholz’s prior appeal, and we did not instruct the district court to allow evidence of the defense at trial.

B

[¶ 12] A mistaken belief of the law is rarely available as a defense, and when ■ the offense is a strict liability offense, a mistake of law defense is generally precluded because the offense does not contain a culpability requirement. State v. Eldred, 1997 ND 112, ¶¶ 29-31, 564 N.W.2d 283. The offense of felon in possession of a firearm is a strict liability offense, and therefore a mistake of law defense is generally precluded. Id. at ¶ 31. Only in very rare cases have we said that an affirmative defense may be applied when the offense is a strict liability offense. See State v. Rasmussen, 524 N.W.2d 843, 846 (N.D.1994) (affirmative defense may be applied when there are life-threatening circumstances that compelled the offense). We conclude this case is not one of the rare cases when an affirmative defense should be applied.

[¶ 13] Buchholz admits ignorance of the law is not an excuse. See State v. Patten, 353 N.W.2d 30, 33 (N.D.1984) (everyone is presumed to know the law). He claims, however, the district court ordered an illegal sentence in the underlying felony that was the basis of the possession of firearms charges, which was a mistake of law. A sentence is illegal if it is contrary to statute, fails to comply with a promise of a plea bargain, or is inconsistent with the oral pronouncement of the sentence. State v. Raulston, 2005 ND 212, ¶ 7, 707 N.W.2d 464. Buchholz contends his sentence was illegal because the court ordered that he not possess firearms for a period of one year, contrary to N.D.C.C.' § 62.1-02-01(2), which prohibits a person who has been convicted of a nonviolent felony “from owning a firearm or having one in possession or under control from the date of conviction and continuing for a period of five years after the date of conviction or release from incarceration or probation, whichever is latest.”

[¶ 14] During sentencing in Buchholz’s felony conviction for issuing a check without sufficient funds, the court informed Buchholz of the conditions of his probation:

THE COURT: Usual conditions of probation. Not violate any — any laws of the State of North Dakota or any other state or federal government, city ordinances. No possession of a firearm. I don’t know if you’re a hunter or not but that is a — that is a condition of probation in any felony and that will last for a period of—
MR. EDINGER: — Your Honor, I guess I was going to make for the record that because the sentence is less than 365 days under North Dakota Law it is technically as of now reverts to a misdemeanor and only if he screws up on probation in the next year would — and it gets revoked would it be a felony. I just want—
THE COURT: Okay. And so you’re asking about the — the possession of a firearm?
MR. EDINGER: No, I guess I just think the North Dakota Statute was amended the last couple of years but I think now under operation of law because the sentence was less that [sic] 365 days it’s right now a misdemeanor until — if and when Mr. Buchholz screws up on probation than it would' — than it could still be a felony, but as of now I think it’s a misdemeanor under — I don’t have the statute in front of me, but—
THE COURT: We’re back on the record.
While we were off record, the Court looked at the — the code section and Mr. Edinger is right. Mr. Buchholz is deemed to have committed a misdemeanor since he is sentence [sic] to less than 365 days, however, if he breaks probation, he will be- deemed to have committed a felony. Okay.
Any other conditions of probation. I still feel there is a restriction as far as possession of a firearm.
MS. HUSEBY: Yes, there always is with probation. You can’t possess a firearm—
THE COURT: — yes. So that is something — you cannot possess a firearm for a period of one year than. So, if you’re a hunter, you [sic] hunting period— you’re [sic] hunting privileges are basically suspended for a period of one year.
Any other conditions of probation you wish to add?

[¶ 15] Buchholz claims this sentence was illegal because he was only prohibited from possessing a firearm for a period of one year, which is contrary to the five-year statutory firearm prohibition contained in N.D.C.C. § 62.1-02-01(2). Buch-holz may be correct and there may have been a mistake of law if the district court judge had said N.D.C.C. § 62.1-02-01(2) did not apply to Buchholz because his felony conviction was reduced to a misdemean- or. However, the district court did not address whether N.D.C.C. § 62.1-02-01(2) applied to Buchholz, the court only addressed the conditions Buchholz would be required to abide by while on probation. See N.D.C.C. § 12.1-32-07(3) (“The court shall provide as an explicit condition of every probation that the defendant may not possess a firearm.... ”). Section 62.1-02-01(2), N.D.C.C., prohibits possession of a firearm from the date of conviction and continuing for a period of five years after probation. The court did not address whether Buchholz could possess or own a firearm after probation and Buchholz admits the district court was not required to inform him of all the collateral consequences of his felony conviction. There is no conflict between the district court’s sentence and N.D.C.C. § 62.1-02-01(2), and therefore we conclude the district court’s sentence was not illegal.

[¶ 16] Moreover, N.D.C.C. § 62.1-02-01 says, “ ‘conviction’ means determination by a jury or court that a person committed one of the above-mentioned crimes even though ... the defendant’s conviction has been reduced in accordance with subsection 9 of section 12.1-32-02.... ” Section 12.1-32-02(9), N.D.C.C., says, “[e]xcept as provided in section 62.1-02-01, a person who is convicted of a felony and sentenced to imprisonment for not more than one year is deemed to have been convicted of a misdemeanor.” Those statutes clearly state that the prohibition against possession of a firearm by a felon applies when a felony conviction has been reduced to a misdemeanor. While the language “[e]x-cept as provided in section 62.1-02-01” was added to N.D.C.C. § 12.1-32-02(9) after Buchholz’s conviction, at the time of his conviction N.D.C.C. § 62.1-02-01 explicitly prohibited a defendant convicted of a felony reduced to a misdemeanor under N.D.C.C. § 12.1-32-02(9) from possessing firearms. Buchholz is presumed to know the law and he cannot claim the prohibition in N.D.C.C. § 62.1-02-01 does not apply to him.

[¶ 17] Although Buchholz may have misinterpreted the district court’s comments during sentencing, we conclude the court’s sentence was not illegal and Buch-holz was not entitled to rely on a mistake of law defense. The district court did not abuse its discretion in excluding evidence about Buchholz’s mistake of law defense.

C

[¶ 18] The State claims Buch-holz cannot “appeal” the district court’s decision to exclude mistake of law evidence in file 05-K-143 because Buchholz did not object to or answer the State’s motion in limine. Buchholz is entitled to appeal from the judgment of conviction, see N.D.C.C. § 29-28-06(2), and the issue is whether he is entitled to review of the district court’s decision in file 05-K-143. Generally issues not properly preserved at the district court will not be heard on appeal. State v. Bingaman, 2002 ND 202, ¶ 9, 655 N.W.2d 51. However, we will not decide issues that do not affect the outcome of the case. See State v. Fontaine, 382 N.W.2d 374, 378 (N.D.1986). Clearly Buchholz is entitled to review of the district court’s decision in file 03-K-815 because the mistake of law issue was properly preserved. Because we have concluded Buchholz was not entitled to a mistake of law defense in file 03-K-815, we need not decide whether he is entitled to review of the district court’s decision to grant the State’s motion in limine in file 05-K-143.

Ill

[¶ 19] Buchholz argues there was insufficient evidence to sustain his convictions for being a felon in possession of firearms because the State did not present any evidence that the firearms were actually capable of being fired.

[¶ 20] When we review a challenge to the sufficiency of the evidence, we only consider the evidence and reasonable inferences most favorable to the verdict to determine if there is sufficient evidence to warrant a conviction. State v. Bertram, 2006 ND 10, ¶ 5, 708 N.W.2d 913. “ ‘A conviction rests upon insufficient evidence only when, after reviewing the evidence in the light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor, no rational fact finder could find the defendant guilty beyond a reasonable doubt.’ ” Id. (quoting State v. Noorlun, 2005 ND 189, ¶ 20, 705 N.W.2d 819). We do not weigh conflicting evidence or judge witness credibility. Bertram, at ¶ 5.

[¶ 21] Buchholz claims a rational fact finder could not find him guilty beyond a reasonable doubt because the State did not present any evidence that the firearms were capable of firing. A firearm is defined as “any device which will expel, or is readily capable of expelling, a projectile by the action of an explosive and includes any such device, loaded or unloaded, commonly referred to as a pistol, revolver, rifle, gun, machine gun, shotgun, bazooka, or cannon.” N.D.C.C. § 62.1-01-01(3).

[¶ 22] During the search of Buchholz’s home, the officers seized a Remington shotgun and a SKS rifle. Valley City Police Officer Jon Skalicky testified Buchholz told him the guns were loaded but the officers did not need to worry about the guns going off because they just had shells or ammunition in the guns’ magazines, not in the barrel. North Dakota Bureau of Criminal Investigations Special Agent Mark Sayler examined the guns and testified that he believed they were capable of firing because they appeared to be in working order. During the search of the residence attached to the bar, officers found a Ruger .220 swift, a 12 gauge Moss-berg, and a Remington Speedmaster. Barnes County Chief Sheriffs Deputy Don Fiebiger testified that he believed the guns were capable of firing. Buchholz did not present any testimony or evidence to rebut the officers’ testimony.

[¶ 23] There is sufficient evidence, viewed in the light most favorable to the verdict, to support Buchholz’s convictions for possession of a firearm by a felon.

IV

[¶ 24] We conclude the district court did not abuse its discretion in excluding Buchholz’s evidence of a mistake of law defense, and there is sufficient evidence to support his convictions. We affirm.

[¶ 25] CAROL RONNING KAPSNER, DALE V. SANDSTROM, DANIEL J. CROTHERS, and MARY MUEHLEN MARING, JJ., concur.


text:
    2006 ND 225
    STATE of North Dakota, Plaintiff and Appellee, v. Shane JUST, Defendant and Appellant.
    No. 20060146.
    Supreme Court of North Dakota.
    Nov. 7, 2006.

      James 0. Johnson, State’s Attorney, Stanton, ND, for plaintiff and appellee.
    Thomas M. Tuntland, Mandan, ND, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Shane Just appeals from an order denying his motion to arrest judgment under N.D.R.Crim.P. 3⅛. We affirm.

I

[¶ 2] Shane Just was tried and convicted by a jury of twelve counts of surreptitious intrusion. The complaint alleged Just had hidden a video camera in the bathroom/laundry room of his home and had secretly recorded several females changing their clothes. The charging language mirrored most of the statutory language for surreptitious intrusion. However, it failed to allege the recording device was used “through the window or other aperture of ... [a] place where a reasonable individual would have an expectation of privacy....” Instead, the complaint omitted the “window or other aperture” phrase, alleging Just had surreptitiously installed the device “in a place where a reasonable individual would have an expectation of privacy....”

[¶ 3] Before trial, Just submitted his requested jury instructions to the district court, which provided a more exacting definition of surreptitious intrusion. Just argued that the “window or other aperture” phrase was an essential element of the offense and requested the jury instructions include the omitted phrase. The court agreed and instructed the jury as Just requested. The State did not amend the complaint to include the “window or other aperture” phrase after the court ruled on Just’s objection to the proposed jury instructions. Just was tried to a jury, where he argued the State had failed to prove the conduct occurred through a “window or other aperture.” The jury returned a guilty verdict on all twelve counts.

[¶ 4] After the verdict, Just filed a motion to arrest judgment under N.D.R.Crim.P. 3k and N.D.C.C. § 12.1-20-12.2. The district court denied Just’s motion, reasoning that the “window or other aperture” phrase was not an essential element of surreptitious intrusion, and even if it was, its omission from the complaint was harmless error.

II

[¶ 5] Just was convicted of twelve counts of surreptitious intrusion under N.D.C.C. § 12.1 — 20—12.2(l)(d), which provides:

1. An individual, with the intent to arouse, appeal to, or gratify that individual’s lust, passions, or sexual desires, is guilty of a class A misdemeanor if that individual does any of the following:
d. With intent to intrude upon or interfere with the privacy of the occupant, surreptitiously installs or uses any device for observing, photographing, recording, amplifying, or broadcasting sounds or events through the window or other aperture of a tanning booth, a sleeping room in a hotel, or other place where a reasonable individual would have an expectation of privacy and has exposed or is likely to expose that individual’s intimate parts or has removed the clothing covering the immediate area of the intimate parts.

On appeal, Just argues the “through the window or other aperture” phrase constitutes an essential element of surreptitious intrusion. He argues the court erred when it refused to arrest judgment under N.D.R.Crim.P. 3k because the complaint did not specifically allege the recording was made “through the window or other aperture” and therefore did not charge an offense. We conclude that even if the trial court erred in holding the phrase was not an essential element, the error was harmless under N.D.R.Crim.P. 52(a). As such, we decline to answer Just’s questions that are not dispositive or necessary to the determination of this appeal. State v. Manning, 2006 ND 125, ¶ 10, 716 N.W.2d 466; State v. Foley, 2000 ND 91, ¶ 12, 610 N.W.2d 49.

Ill

[¶ 6] The dispositive issue in this case is whether, even if the court erred in holding the “window or other aperture” phrase was not an essential element necessary for the validity of the complaint, the error was harmless under N.D.R.Crim.P. 52(a). The order denying Just’s Rule 3k motion analyzed whether the omission of the phrase was harmless error under N.D.R.Crim.P. 52(a). In addition, on appeal the State argued any claimed error was harmless; however, Just failed to address this issue in his brief to this Court.

[¶7] Rule 52(a), N.D.R.Crim.P. provides: “[a]ny error, defect, irregularity or variance that does not affect substantial rights must be disregarded.” An error “affect[ing] substantial rights” generally means an error that is prejudicial to the defendant and must affect the outcome of the district court proceeding. United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (discussing Fed.R.Crim.P. 52(a), the federal counterpart to N.D.R.Crim.P. 52(a)). The harmless error doctrine “recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence,

... and promotes public respect for the criminal process by focusing on the underlying fairness of the trial.” State v. Bertram, 2006 ND 10, ¶ 31, 708 N.W.2d 913 (internal quotations omitted). It also prevents “setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial.” Id. (quoting Neder v. United States, 527 U.S. 1, 19, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) and Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). Even constitutional errors do not automatically require reversal if it is shown they were harmless. Bertram,, at ¶ 31; City of Bismarck v. Judkins, 2005 ND 143, ¶7, 701 N.W.2d 911.

[¶ 8] The purpose of a complaint or information is to inform the accused of the charges against him to enable him to prepare for trial. City of West Fargo v. Hawkins, 2000 ND 168, ¶ 8, 616 N.W.2d 856. On this record, there is nothing to suggest Just was not informed of the crime charged or that he was unprepared for trial. To the contrary, Just’s trial conduct shows he was fully aware of the “window or other aperture” phrase. At the specific request of Just, the jury instructions included the “window or other aperture” phrase and Just was allowed to argue the State failed to prove the conduct occurred through a window or aperture. Still, the jury returned guilty verdicts on twelve counts of surreptitious intrusion. The effect of arresting judgment under N.D.R.Crim.P. 31 is “ ‘to place the defendant in the same situation in which he was before the information was filed.’ ” State v. Frankfurth, 2005 ND 167, ¶ 28, 704 N.W.2d 564 (quoting N.D.C.C. § 29-25-05). An individual may be reprosecuted under a new information as if there had been no prior proceedings. Id. (citing Montana v. Hall, 481 U.S. 400, 404, 107 S.Ct. 1825, 95 L.Ed.2d 354 (1987)). The State could amend the complaint to contain the “window or other aperture” phrase and retry Just. As demonstrated by the jury verdict reached after consideration of the phrase omitted from the complaint, a retrial following an amended complaint would not change the result. The error is, therefore, harmless.

[¶ 9] The instant case is similar to the facts presented in Bertram. There, the defendant appealed a district court judgment entered upon jury verdicts finding him guilty of violating a disorderly conduct restraining order, criminal trespass, and contact by bodily fluids. Bertram, 2006 ND 10, ¶1, 708 N.W.2d 913. Bertram argued the information was insufficient with respect to the bodily fluids charge at the trial court because the information failed to allege every essential element of the offense. Id. at ¶ 21. He claimed, “the information was facially deficient and his conviction must be reversed.” Id. The State had failed to include a statutorily defined exception to the statute prohibiting contact with bodily fluids. Id. In analyzing Bertram’s claim, we applied a harmless error analysis. Id. at ¶¶ 29-32. We stated “[i]n the absence of any evidence that [Bertram] relied on the information to his detriment or was otherwise prejudiced, we conclude the error ..., the drafting of an insufficient charging document, is subject to a harmless error analysis.” Id. at ¶ 32.

[¶ 10] In this case, as in Bertram,:, Just raised the issue of an insufficient charging document with the district court. Just objected to the jury instructions, claiming the “window or other aperture” phrase was an essential element of the offense. After discussing it with counsel, the court agreed the phrase was an essential element and instructed the jury accordingly. In closing arguments, Just’s counsel argued the State failed to prove that the conduct occurred through a window or aperture. Despite Just’s arguments and the jury instructions, the jury convicted Just on twelve counts of surreptitious intrusion under N.D.C.C. § 12.1-20-12.2(l)(d).

[¶ 11] Just was aware of the statutory elements, he was afforded an adequate opportunity to prepare for trial, the court properly instructed the jury on the law, and Just was allowed to argue the State failed to prove the “window or other aperture” element in his closing arguments. Therefore, even if the phrase is an essential element, a decision we need not make, the failure to allege it in the charging document was harmless under N.D.R.Crim.P. 52(a).

IV

[¶ 12] The district court’s order denying Just’s motion to arrest judgment under N.D.R.Crim.P. 2k is affirmed.

[¶ 13] GERALD W. VANDE WALLE, C.J., and DALE V. SANDSTROM, DANIEL J. CROTHERS, and MARY MUEHLEN MARING, JJ., concur.


author: ZINTER, Justice.

text:
    2006 SD 91
    Lisa Dawn TOFT, Plaintiff, v. Patrick Dale TOFT, Defendant and Appellee, and Elmer and Cornelia Stratmeyer, Intervenors and Appellants.
    No. 23945.
    Supreme Court of South Dakota.
    Considered on Briefs on Aug. 28, 2006.
    Decided Oct. 18, 2006.

      Robert L. Spears, Spears Law Office, Watertown, South Dakota, Attorney for appellee.
    Tamara D. Lee, Yankton, South Dakota, Attorney for appellants.
   ZINTER, Justice.

[¶ 1.] Elmer and Cornelia Stratmeyer, maternal grandparents, appeal the circuit court’s award of attorney’s fees in an ongoing dispute with the biological father over custody and visitation of the grandchildren. We affirm.

Facts and Procedural History

[¶ 2.] The Grandparents’ custodial rights were terminated as a result of their misconduct detailed in In re Guardianship and Conservatorship of A.L.T. & S.J.T., 2006 SD 28, 712 N.W.2d 338. Only the facts relevant to the current dispute concerning attorney’s fees are restated.

[¶ 3.] Lisa Dawn Toft (Mother) and Patrick Dale Toft (Father) were married on May 14, 1994. They are the biological parents of twins, A.L.T. and S.J.T, born October 22, 1994. Because of Mother’s and Father’s problems, the children lived with Grandparents from birth.

[¶ 4.] In 1999, Mother filed an action for divorce in Turner County. Grandparents subsequently filed a petition for temporary guardianship and conservatorship in Minnehaha County. Following a hearing, the Minnehaha County Circuit Court granted Grandparents temporary custody.

[¶ 5.] Father then moved to dismiss the temporary guardianship. However, before a hearing on Father’s motion, the parties stipulated to a change of venue to Lincoln County. Following the hearing on Father’s motion to dismiss the guardianship in Lincoln County, Judge Bogue ordered that Grandparents’ temporary custody continue pending the outcome of the custody issue in the Turner County divorce.

[¶ 6.] Shortly thereafter, Judge McMurchie, who was presiding over the Turner County divorce, formally joined Grandparents as parties in the divorce. The order stated that “Cornelia and Elmer Stratmeyer shall be joined as interested parties in the above-entitled divorce action, pursuant to SDCL 26-5A-10, and shall be duly notified hereinafter of all proceedings in said action, in accordance with the Uniform Child Custody Jurisdiction Act.”

[¶ 7.] A final judgment and decree of divorce was entered in Turner County on June 6, 2002. The divorce decree awarded Grandparents custody of the children subject to Father’s visitation rights. However, a number of disputes arose between Grandparents and Father over custody and visitation. See Guardianship of A.L.T. & S.J.T., 2006 SD 28, 712 N.W.2d 338. As a result, Father filed a number of motions to enforce visitation or to terminate Grandparents’ custodial rights. Those motions underlie Father’s request for attorney’s fees.

[¶ 8.] In the course of litigating Father’s motions, venue of the Turner County divorce was moved to Lincoln County. Ultimately, Judge Tiede presided over both the divorce and guardianship proceedings in Lincoln County. On August 18, 2004, he terminated the guardianship and granted joint custody to Mother and Father. Mother was given physical custody and Father was given visitation.

[¶ 9.] In litigating the subsequent custody and visitation issues with Grandparents, Father made four motions for reimbursement of his attorney’s fees. All four motions were captioned in the divorce action. In an order dated April 29, 2003, Judge Tiede deferred a decision on Father’s attorney’s fees request until a final decision was made on custody. Following the final custody decision, Judge Tiede conducted a hearing and awarded Father $11,963.05, which was less than one-half of the attorney’s fees requested. Grandparents appeal raising the following issues:

1) Whether the award of attorney’s fees should be reversed because the circuit court failed to file findings of fact and conclusions of law.
2) Whether one of Father’s motions was timely.
3) Whether the circuit court was authorized to award attorney’s fees under SDCL 15-17-38.
4) Whether either party is entitled to appellate attorney’s fees.

Standard of Review

[¶ 10.] We generally review an award of attorney’s fees under the abuse of discretion standard of review. Credit Collection Services, Inc. v. Pesicka, 2006 SD 81, ¶ 5, 721 N.W.2d 474, 476 (citing In re South Dakota Microsoft Antitrust Litigation, 2005 SD 113, ¶ 27, 707 N.W.2d 85, 97).) In this case, Grandparents do not challenge the reasonableness of the award. They only question whether attorney’s fees are authorized under SDCL 15-17-38. This is a question of law that is reviewed de novo.

Decision

1. Findings of Fact and Conclusions of Law

[¶ 11.] Grandparents first argue that the attorney’s fees award should be reversed and remanded because the court failed to file findings of fact and conclusions of law on that issue. This Court has “stated that a circuit court is required to ‘enter findings of fact and conclusions of law when ruling on a request for attorney’s fees.’ ” Wald, Inc. v. Stanley, 2005 SD 112, ¶ 10, 706 N.W.2d 626, 629 (quoting Hoffman v. Olsen, 2003 SD 26, ¶ 10, 658 N.W.2d 790, 793). Generally, the failure to file findings of fact and conclusions of law constitutes reversible error. Grode v. Grode, 1996 SD 15, ¶ 29, 543 N.W.2d 795, 803 (citations omitted). However, we have also noted that an appellate court may remand for findings, or, because findings are not jurisdictional, “an appellate court may decide the appeal without further findings if it feels it is in a position to do so.” Hoffman, 2003 SD 26, ¶ 10, 658 N.W.2d at 793 (quoting Ridley v. Lawrence County Com’n, 2000 SD 143, ¶ 13, 619 N.W.2d 254, 259); see also Swanson & Youngdale, Inc. v. Seagrave Corp., 561 F.2d 171, 173 (8thCir.l977) (citing 5A Moore’s Federal Practice § 52.07 at 2731 (2d ed. 1975) and 9A Wright and Miller, Federal Practice and Procedure § 2577 at 699-700 (1971)).

[¶ 12.] In order to determine whether we are in a position to review a ruling that is not supported by findings and conclusions, it is helpful to review their purpose.

The purpose of findings of fact is threefold: to aid the appellate court in reviewing the basis for the trial court’s deeision; to make it clear what the court decided should estoppel or res judicata be raised in later cases; and to help insure that the trial judge’s process of adjudication is done carefully.

Heikkila v. Carver, 416 N.W.2d 591, 592 (S.D.1987) (citing J. Moore & J. Lucas, 5A Moore’s Federal Practice, ¶ 52.06[1] (1987); C. Wright & A. Miller, 9A Federal Practice and Procedure, § 2571 (1971)). Considering these purposes, Swanson explained: “The appellate court may decide the appeal without further findings if ‘(1) the record itself sufficiently informs the court of the basis for the trial court’s decision on the material issue, or (2) the contentions raised on appeal do not turn on findings of fact.’ ” Swanson, 561 F.2d at 173 (citation omitted).

[¶ 13.] We have also considered a third requirement. In Speck v. Anderson, 349 N.W.2d 49 (S.D.1984), a party challenged the circuit court’s failure to enter findings of fact and conclusions of law under SDCL 15-6-52(a). In considering an alleged Rule 52(a) violation, this Court noted that the trial judge had “issued a lengthy memorandum decision explaining in detail [the judge’s] reasoning process as well as reciting in detail the testimony, circumstances and inferences upon which [the judge] relied in reaching [the] decision....” Id. at 51. This Court also noted that the memorandum opinion was filed with the clerk of courts, was attached to the subsequent order and was incorporated therein by reference. We ultimately concluded that the circuit court complied with SDCL 15-6-52(a) by incorporating the memorandum opinion by reference. Id.

[¶ 14.] In this case, the circuit court complied with SDCL 15-6-52(a), and we are in a position to decide the attorney’s fees issue without formal findings and conclusions. First, the circuit court incorporated its memorandum opinion into its order by reference. Second, Grandparents have challenged the statutory authorization for, rather than the reasonableness of, the attorney’s fees. Therefore, their contentions on appeal do not turn on findings of fact. Finally, the circuit court issued an extremely comprehensive memorandum opinion. That opinion details the facts of the case, the applicable law, and the application of the law to the facts. From that opinion, we can clearly ascertain the basis for the circuit court’s decision. Considering the posture of this case, we find it unnecessary to remand for findings of fact and conclusions of law.

2. Timely Motion

[¶ 15.] Grandparents argue that Father’s July 31, 2003 motion for disbursements and attorney’s fees was untimely. They point to the requirement in SDCL 15-6-54(d) that an application for the taxation of disbursements must be filed within thirty days of the entry of judgment. Because there was no judgment entered during the thirty-day period before Father’s July 31, 2003 motion, Grandparents contend that the motion was untimely.

[¶ 16.] Grandparents misinterpret SDCL 15-6-54(d). That statute provides in relevant part: “Costs and disbursements under this section shall be waived if proper application is not made within thirty days of the entry of the judgment. For good cause shown, the court may extend the time.” Thus, we read the statute simply as a deadline to file the motion. Because the July 31, 2003 motion was not filed after the deadline; i.e. more than thirty days after entry of the judgment awarding fees, the motion was timely.

3. Entitlement to Attorney’s Fees under SDCL 15-17-38

[¶ 17.] “South Dakota utilizes the American rule that each party bears the burden of the party’s own attorney[’s] fees.” Microsoft Antitrust Litigation, 2005 SD 113, ¶ 29, 707 N.W.2d at 98 (citing Crisman v. Determan Chiropractic, Inc., 2004 SD 103, ¶ 26, 687 N.W.2d 507, 513) (citing Public Entity Pool for Liability v. Score, 2003 SD 17, ¶ 7, 658 N.W.2d 64, 67-68)). However, there are two exceptions. The first is when the parties enter into an agreement entitling the prevailing party to an award of attorney’s fees. Id. The second is when an award of attorney’s fees is authorized by statute. Id.

[¶ 18.] Grandparents contend that there was an implied agreement that the parties would pay their own attorney’s fees. They claim that an implied agreement arose because “each party hired their own legal representation and paid the bills associated with that representation without stating that any other person was responsible for the payment of such legal services.” However, such individual arrangements for fees simply reflect that no agreement, express or implied, was reached on the subject of reimbursement.

[¶ 19.] Grandparents next contend that SDCL 15-17-38 does not authorize attorney’s fees because this was a guardianship case. When this matter was decided by the circuit court, SDCL 15-17-38 authorized attorney’s fees in “in all cases of divorce, annulment of marriage, determination of paternity, separate maintenance, support, or alimony.” Grandparents argue that guardianships were not included in this list of actions. They also argue that although there was an ongoing divorce, they were ordered into the divorce merely because they were the court-appointed guardians.

[¶ 20.] To support their arguments, Grandparents rely on In re Guardianship of T.L.R, 2002 SD 54, 645 N.W.2d 246. In that case, maternal grandparents were appointed guardians of T.L.R. The father filed a motion to terminate the guardianship, which the circuit court eventually granted. On appeal, the father filed a motion for attorney’s fees. This Court stated that guardianship proceedings were not within the list of actions specified in SDCL 15-17-38, and therefore, fees were not authorized by the statute. Id. ¶ 19. We caution, however, that Guardianship of T.L.R. failed to mention the statutory language allowing fees in “guardianship proceedings.” See SDCL 15-17-38 (2001) (emphasis added). In addition, the 2006 amendment of SDCL 15-17-38 now allows attorney’s fees in cases of “custody” and “visitation.” See supra n. 6. Therefore, the attorney’s fee rationale in Guardianship of T.L.R is both inapplicable in this case and superseded in future cases.

[¶21.] Finally, even if we were to apply the 2001 version of the statute, Guardianship of T.L.R is factually distinguishable. It is distinguishable because those biological parents never married, and therefore, there was no divorce order governing custody. In contrast: the biological parents in the present case were married; the Grandparents intervened as parties in the divorce; the guardianship court deferred to the divorce court on the ultimate issue of custody; the divorce court entered the final order concerning custody; and Grandparents were parties in the post decree divorce proceedings concerning modification of visitation and custody. Considering these facts, we previously noted that although the ultimate termination of [Grandparents’] custodial rights took place through a dismissal of a guardianship, “the court considered [Father’s] motion to terminate the guardianship in the context of a divorce proceeding.” Guardianship of A.L.T. & S.J.T., 2006 SD 28, ¶38, 712 N.W.2d at 347. This litigation occurred in the context of the divorce because “[i]t is well settled in this state that a divorce court has continuing jurisdiction over its decrees,” and “[a]n application for modification or enforcement of such decree is a supplementary proceeding incidental to the original suit. It is not an independent proceeding or the commencement of a new action.” Weekley v. Weekley, 1999 SD 162, ¶ 25, 604 N.W.2d 19, 25 (citing Hershey v. Hershey, 467 N.W.2d 484, 486 (S.D.1991) (quoting Eggers v. Eggers, 82 S.D. 675, 679, 153 N.W.2d 187, 189 (1967) (citations omitted))).

[¶ 22.] A more analogous case is Osgood v. Osgood, 2004 SD 22, 676 N.W.2d 145. In Osgood, the parents divorced and were granted joint legal custody. The paternal grandparents were later awarded visitation rights. The mother, as primary custodian, denied the grandparents their court ordered visitation. The grandparents filed a motion for relief and for attorney’s fees in subsequent proceedings in the divorce action. On appeal, this Court affirmed the circuit court’s award of grandparent’s attorney’s fees under SDCL 15-17-38. /¿¶22.

[IT 23.] Here, Grandparents were formally joined as interested parties in the divorce. Furthermore, the ultimate custody decision was made in the divorce. And, they remained parties in the supplemental divorce proceedings to modify or terminate their custodial rights. Judge Tiede clearly recognized these facts stating:

[I]t’s clear that Judge McMurchie made an order, entered an order by which he in some manner joined or required or permitted the Stratmeyers to intervene in the divorce case, and his award of custody came through the divorce case. Now, if the Stratmeyers really didn’t want to be there — you know — they had several options: They could have appealed the decision; they could have appealed being brought into the case, but for whatever reason they subjected themselves to the jurisdiction of the [divorce] Court and Judge McMurchie; and when the order was entered, they did not appeal it. So I’m not so sure that it hasn’t become the law of the case and they no longer can argue that, hey, we really didn’t want to be there and we — you know — you can’t nail me for anything because I didn’t want to be there.

Ultimately, because Father’s motions were decided in a divorce proceeding in which Grandparents were parties, SDCL 15-17-38 authorized an award of attorney’s fees.

A Apportionment

[¶ 24.] Grandparents finally argue that the circuit court erred in ordering them to pay attorney’s fees while not ordering reimbursement from Mother. They contend that nothing authorizes the court to make this “arbitrary split.” However, SDCL 15-17-38 provides circuit courts with discretion in awarding attorney’s fees. In relevant part, it provides: “The court, if appropriate, in the interests of justice, may award payment of attorneys’ fees in all cases of divorce.... ” SDCL 15-17-38 (emphasis added).

[¶ 25.] In applying this statute, the circuit court noted that Grandparents had engaged in a long history of interference with Father’s rights and relationship with his children despite orders from numerous circuit court judges. Grandparents also improperly and maliciously influenced the children. Grandparents made unsupported allegations that Father sexually abused the children. Two of the children’s counselors expressed concerns about the Grandparents’ open negativity regarding Father. And, according to one counselor, the negativity reached the level where the children were “mirroring” the Grandparents’ remarks and comments, which “increased the children’s fears and anxieties.” Guardianship of A.L.T. & S.J.T., 2006 SD 28, ¶ 23, 712 N.W.2d at 344. We have been pointed to no similar conduct on the part of Mother. We therefore see no abuse of discretion in ordering Grandparents to reimburse part of Father’s attorney’s fees without apportionment to Mother.

5. Appellate Attorney’s Fees

[¶26.] Both Father and Grandparents moved for appellate attorney’s fees. “SDCL 15-26A-87.3 permits an award of appellate attorney[’s] fees if they are otherwise allowable and if they are accompanied by a verified, itemized statement of the legal services rendered.” Schaefer ex rel. S.S. v. Liechti, 2006 SD 19, ¶ 20, 711 N.W.2d 257, 264 (quoting In re Writ of Certiorari as to Wrongful Payments of Attorney Fees Made by Brookings Sch. Dist. Sch. Bd., 2003 SD 101, ¶ 25, 668 N.W.2d 538, 547). SDCL 15-17-38 authorizes attorney’s fees in cases of divorce. Furthermore, Father provided an itemized statement of the legal services he incurred. As the prevailing party, Father’s motion for appellate attorney’s fees is granted in the amount of $2,356.22. Because Grandparents have failed to prevail, their motion is denied.

[¶ 27.] Affirmed.

[¶ 28.] GILBERTSON, Chief Justice and SABERS, KONENKAMP and MEIERHENRY, Justices, concur.

      . Grandparents actually appeal the award of costs, expenses, and attorney's fees. Grandparents’ brief indicates that "the term 'attorney[’s] fees' will be used as the inclusive term for attorney['s] fees, costs and expenses." We consider this case with that understanding. We note, however, that the concept of "costs” has been replaced by "disbursements.” SDCL 15-17-36 provides:
      The concept of costs as an indemnity to be recovered by a prevailing party is abolished in the courts of South Dakota. Whenever the term, costs, is used, it means disbursements as defined in § 15-17-37.

      . The statutory authority for joining Grandparents as guardians was SDCL 26-5A-10, which has since been repealed. See SDCL 26-5A-10 (repealed 2005 SD Laws ch 137 § 43). Prior to its repeal, it provided in part:
      If the court learns from information furnished by the parties pursuant to § 26-5A-9 or from other sources that a person not a party to the custody proceeding has physical custody of the child or claims to have custody or visitation rights with respect to the child, it shall order that person to be joined as a party and to be duly notified of the pendency of the proceeding and of his joinder as a party.

      . The Order Regarding Application for Costs and Disbursements stated:
      [T]he Court will reserve the right to award attorneyf’s] fees at a later time in so much as it was represented to the Court by attorney Robert L. Spears and attorney Steven Binger that based on the material both attorneys received from the Family Visitation Center that it is anticipated that this is a continuing matter for the Court and future court hearings are eminent [sic ] and therefore a request for reimbursement of attorney[’s] fees and costs is premature at this time for the above reasons.

      . SDCL 15-6-52(a) provides in part,
      If an opinion or memorandum of decision is filed, the facts and legal conclusions stated therein need not be restated but may be included in the findings of fact and conclusions of law by reference.

      . We also note that there were good reasons why Father filed the July 31, 2003 motion before the judgment. At the time Father filed this motion, it was expected that the request for attorney’s fees would be decided at the August 11, 2003 hearing in which a final custody decision was expected. However, the final custody decision was continued by the circuit court. For a number of legitimate reasons, the circuit court was unable to make a final decision on custody until August 2004. Thereafter, the previously filed motion for attorney's fees was heard.

      . Prior to a 2006 amendment, SDCL 15 — 17— 38 provided:
      The compensation of attorneys and counselors at law for services rendered in civil and criminal actions and special proceedings is left to the agreement, express or implied, of the parties. However, attorneys' fees may be taxed as disbursements if allowed by specific statute. The court, if appropriate, in the interests of justice, may award payment of attorneys’ fees in all cases of divorce, annulment of marriage, determination of paternity, separate maintenance, support or alimony. The court may award the fees before or after judgment or order. The court may award attorneys’ fees from trusts administered through the court as well as in probate and guardianship proceedings. Attorneys’ fees may be taxed as disbursements on mortgage foreclosures either by action or by advertisement.
      The 2006 version of SDCL 15-17-38 was amended to also permit an award of attorney’s fees in cases determining “custody” and "visitation.” The new statute provides:
      The compensation of attorneys and counselors at law for services rendered in civil and criminal actions and special proceedings is left to the agreement, express or implied, of the parties. However, attorneys’ fees may be taxed as disbursements if allowed by specific statute. The court, if appropriate, in the interests of justice, may award payment of attorneys' fees in all cases of divorce, annulment of marriage, determination of paternity, custody, visitation, separate maintenance, support, or alimony. The court may award the fees before or after judgment or order. The court may award attorneys’ fees from trusts administered through the court as well as in probate and guardianship proceedings. Attorneys’ fees may be taxed as disbursements on mortgage foreclosures either by action or by advertisement.

        See 2006 S.D. Laws ch. Ill § 1 (emphasis added). This change appears to allow an award of attorney’s fees whether the custody and visitation dispute is a part of a divorce or a part of a guardianship. However, the applicability of this amendment has not been raised on appeal, and we express no opinion on it.

      . This argument is not technically correct. See the text of the statute, supra, n. 6, and the discussion, infra, ¶ 20.

      . Compare the two cases. In Guardianship of T.L.R. we applied the termination of guardianship burden of proof in "SDCL 29A-5-506, [noting] that T.L.R. [was] no longer in need of [the grandparents'] guardianship." 2002 SD 54, ¶ 17, 645 N.W.2d at 251. In contrast, in this case, Father was required to satisfy the divorce burden of proof:
      For the father’s motion, the circuit court required that he plead and prove that there had been a substantial or material change in circumstances affecting the welfare and best interests of the children. See Berens v. Berens, 2004 SD 121, ¶ 12, 689 N.W.2d 207, 212; Price v. Price, 2000 SD 64, ¶52, 611 N.W.2d 425, 436; SDCL 25-4-45. Accordingly, the court found that "any continued custody of the children by the grandparents would be detrimental to the children's welfare.”

        Guardianship of A.L.T. & S.J.T, 2006 SD 28, ¶ 38, 712 N.W.2d at 347 n. 10.

      . The caption of the order awarding attorney's fees contained both the guardianship and the divorce filing numbers.

      . Judge Tiede, in a thirty-eight page memorandum opinion, found:
      by the greater convincing force of the evidence that the grandparents have intentionally, deliberately, maliciously and wrongfully prevented [the father] from exercising his lawful rights of visitation with his children. They have improperly and maliciously influenced [the children] by their words and conduct in a deliberate effort to alienate these children from [the father]. They have repeatedly and flagrantly refused to comply with the lawful orders of four separate judges, all of whom have ordered visitation for [the father]. The evidence in support of these findings is overwhelming, beginning with the records of Ms. Langenfeld, the children’s initial therapist extending back to 2000.

        Guardianship of A.L.T. & S.J.T., 2006 SD 28, ¶ 27, 712 N.W.2d at 344-45. Judge Tiede also “concluded that based on the evidence no sexual abuse had occurred.” Id.