author: SHUMAKER, Judge

text:
    STATE of Minnesota, Appellant, v. Rolan WIEGAND, Lorna Quesette Matthew, Almond Baxter Longley, Respondents.
    Nos. C2-00-1137, C4-00-1138, C6-00-1139.
    Court of Appeals of Minnesota.
    Jan. 16, 2001.
    Mike Hatch, Attorney General, St. Paul, MN; and Marvin E. Ketola, Carlton County Attorney, Dennis Genereau, Jr., Assistant County Attorney, Carlton, MN, (for appellant).
    Joanna M. Wiegert, Duluth, MN, (for respondents).
    Considered and decided by WILLIS, Presiding Judge, SHUMAKER, Judge, and HOLTAN, Judge.

       Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

   OPINION

SHUMAKER, Judge

After stopping a car that had a broken headlight, a police officer walked his police dog around the vehicle while a second officer wrote a warning citation. When the dog signaled the presence of narcotics, the officer found marijuana concealed under the car’s hood. On respondents’ motions, the district court suppressed the marijuana on the ground that the circumstances of the police conduct were coercive. The state appealed. We reverse.

FACTS

At about 12:20 a.m. on May 25, 2000, Cloquet police officer Wally Dupuis observed a car driving along Highway 33 with a broken headlight. Pursuant to department policy, he radioed to headquarters that he was going to stop the car and he stated his location. Although Dupuis had not requested a backup, other officers who heard his radio transmission arrived on the scene.

Dupuis spoke with the driver of the car, respondent Rolan Wiegand, and learned that respondent Lorna Matthew, riding in the back seat, owned the car. Respondent Almond Longley was also a passenger.

Wiegand was nervous and shaking; he looked down as he gave Dupuis his driver’s license, and his speech was slow. When Wiegand did make eye contact, Dupuis noted that his eyes were glossy. Dupuis asked Matthew if he could search the car and she said, “No.”

After running a license check, Dupuis concluded that he would issue a warning for the broken headlight. He asked one of the other officers on the scene to write the citation, while he walked his police dog, trained in narcotics detection, around the car. In two passes around the car, the dog twice alerted Dupuis to narcotics in the area of the right headlight. Dupuis asked Matthew if there were drugs in the car. She replied that she might have smoked some marijuana but that there were no drugs in the car.

After a third pass with the dog and a third signal at the same place, the officers began to search. They located marijuana in the insulation under the hood of the car, and they arrested the three respondents. The state charged respondents with possession of a controlled substance.

At a hearing on respondents’ motions to suppress the marijuana, the district court ruled that, because Matthew did not consent to a search, there was no basis for further detention and the presence of several officers with the dog constituted coercive circumstances. The court ordered the suppression of the marijuana.

ISSUES

1. Several police officers arrived as backup after they heard a radio transmission that an officer was stopping a vehicle because of a broken headlight. One officer wrote a citation while the original officer used a trained narcotics dog to “sniff’ the exterior of the automobile. Were respondents coerced into relinquishing their constitutional right to freedom from unreasonable searches and seizures?

2. Does a canine “sniff’ of the exterior of a vehicle constitute a search for purposes of either the federal or Minnesota constitutions, where the district court made no findings that the writing of the ticket was purposefully delayed?

ANALYSIS

When reviewing pretrial orders concerning the suppression of evidence, we independently review the facts and determine, as a matter of law, whether the district court erred in its decision to suppress the evidence. State v. Harris, 590 N.W.2d 90, 98 (Minn.1999). On appeal, we accept the district court’s findings of fact unless clearly erroneous. State v. George, 557 N.W.2d 575, 578 (Minn.1997).

As appellant, the state “must clearly and unequivocally show” that the decision had a “critical impact” on its ability to prosecute the respondents and that the order constituted error. State v. Scott, 584 N.W.2d 412, 416 (Minn.1998) (quotation omitted). Because the district court’s ruling had the effect of negating further prosecution, the only issue in this appeal is whether its order was in error. See id.

There is no issue as to the propriety of the stop, Dupuis’s radio dispatch, the arrival of voluntary backup officers, the number of officers on the scene, the license check, the presence of the dog, the issuance of the citation, or the length of the detention of respondents before the officers found the marijuana. There is nothing in the record to suggest that any aspect of the procedures used by the police was out of the ordinary, even though the district court speculated that it was unusual for one officer to stop a car and a different officer to write a citation. Thus, we find no basis for the court’s conclusion that “the circumstances became coercive.”

The district court also concluded that when Matthew refused to allow a search the officers’ authority to detain the respondents any further ceased and that the officers needed probable cause to walk the dog around the car.

We first note that the assisting officer was in the process of writing the citation as Dupuis walked the dog around the car. Respondents do not contend that they were free to go before the officer completed the citation. Thus, the detention period for that purpose is unchallenged.

Secondly, the police did not need probable cause to walk the dog around the vehicle because a “canine sniff’ is not a search. “The fact that officers walk a narcotics-detection dog around the exterior of [a car] * * * does not transform the seizure into a search.” City of Indianapolis, et al., v. Edmond, — U.S. -, -, 121 S.Ct. 447, 453, — L.Ed.2d -, - (2000) (citing United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983)). In United States v. Place, the Supreme Court had noted the limited intrusiveness of using a dog to sniff objects:

[The action] is so limited in both the manner in which the information is obtained and in the content of the information revealed by the procedure. * * * [that it does] not constitute a “search” within the meaning of the Fourth Amendment.

Place, 462 U.S. at 707, 103 S.Ct. at 2644-45; see also United States v. $404,905.00 in U.S. Currency, 182 F.3d 643, 647 (8th Cir.1999) (holding that a canine sniff of the exterior of a vehicle on the public street is not a search within the meaning of the Fourth Amendment).

Respondents urge us to interpret the Minnesota constitution as providing more protection against unreasonable searches and seizures than does the federal constitution. The Fourth Amendment to the federal constitution and Article I, Section 10 of the Minnesota constitution are identical and we must acknowledge the persuasive effect of an interpretation of that provision by the highest court in this nation.

[A] decision of the Supreme Court interpreting a provision of the United States Constitution that is identical to a provision of the Minnesota Constitution is of inherently persuasive, although not necessarily compelling, force.

State v. Carter, 596 N.W.2d 654, 656 (Minn.1999) (quotation omitted).

We are not persuaded that we should interpret the search and seizure provision of the Minnesota constitution differently from that of the federal constitution. Furthermore, the logical extension of the proposition that a canine sniff of the exterior of personal property on a public street is a search would inevitably require a holding that a human officer may not continue to use his own senses to detect additional wrongdoing while he completes proper police procedures for a traffic infraction, That would be an absurd result.

Respondents argue the unreasonableness of the detention but fail to show that any aspect of the police procedures was improper.

DECISION

The police did not act improperly in stopping a car for a broken headlight, doing a license check, issuing a warning citation, and allowing a narcotics dog to sniff the exterior of the car, which led to the discovery of an illegal controlled substance.

Reversed.


source: Caselaw Access Project

author: AMUNDSON, Judge.

license: Public Domain

text:
    MY BROTHER’S KEEPER, et al., Appellants, v. SCOTT COUNTY, Respondent.
    No. C6-00-1173.
    Court of Appeals of Minnesota.
    Jan. 30, 2001.

      Mary K. Martin, St. Paul, for appellants.
    Thomas J. Harbinson, Scott County Attorney, Susan K. McNellis, Assistant County Attorney, Shakopee, for respondent.
    Considered and decided by AMUNDSON, Presiding Judge, HALBROOKS, Judge, and MULALLY, Judge.

       Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

AMUNDSON, Judge.

Appellants contest a summary judgment enjoining them from conducting business activities in a residential neighborhood. Appellants are licensed to provide residential-based habilitation services for mentally retarded individuals. While under the Scott County Zoning Ordinance and Minn. Stat. § 462.357, subd. 7 (2000), such services may be located in an area zoned for single families, the county contended that the provider could not operate exclusively administrative services from this location. We affirm the district court’s judgment.

FACTS

Appellant Arliss Anderson owns a Scott County property that she leases to appellant My Brothers’ Keeper, a non-profit Minnesota corporation licensed to provide residential-based habilitation services for persons with mental retardation or related conditions. Anderson resides in the home and three employees of My Brothers’ Keeper perform billing and staffing services on the lower level. The property does not house nor is it used as a site for the activities of clients of My Brothers’ Keeper.

On January 11, 2000, an employee of the Scott County Planning Department inspected the premises and discovered the business operation. Because the property is situated within a zone authorized for single-family residential use with permitted use as a “[gjroup care facility as permitted by State Statues,” the county instructed Anderson that she could not continue to employ three non-resident employees in her home. Anderson’s appeal for a variance was denied by the Scott County Board of Adjustment.

My Brothers’ Keeper then joined Anderson in seeking an injunction and declaratory judgment from the Scott County District Court in support of their contention that the administrative activity is a permitted use under Scott County zoning regulations. They argued further that such use is permitted by MinmStat. § 462.357, subd. 7 (2000). The district court disagreed and granted Scott County’s motion for summary judgment permanently enjoining Appellant’s use of the property as offices for a business. This appeal followed.

ISSUE

Did the district court err as a matter of law by enjoining My Brothers’ Keeper from providing administrative services at a property located within a residential zone?

ANALYSIS

The parties agree that the material facts of this case are not in dispute. Therefore, the district court’s application of summary judgment was proper and this court reviews its legal judgment de novo. Burlington N. R.R. Co. v. Commissioner of Revenue, 606 N.W.2d 54, 57 (Minn.2000).

Under Minnesota law, interpretation of a zoning regulation is a question of law subject to three rules of construction: (1) terms should be construed upon their plain and ordinary meaning; (2) any ambiguity should be resolved against the governing body; and (3) the regulation should be considered in light of any underlying policy goals. Frank’s Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 608-09 (Minn.1980).

The property owned by Arliss Anderson is situated within a zone designated single-family residential by Scott County. The zoning ordinance provides several permitted uses, including “[g]roup care facilities] as permitted by State Statutes.” Scott County, Minn., Zoning Ordinance No. 3 § 5A-2(2) (1996). The zoning-ordinance defines “group care facility” as a “facility licensed by the State of Minnesota to provide 24-hour-a-day care, supervision, food, lodging, rehabilitation, training, education, habilitation or treatment outside a patient’s own home.” Id. at § 1-5. Such permitted use has a statutory genesis: the enabling legislation which provides the municipal power to zone in the State of Minnesota mandates that “state licensed residential facilities] serving six or fewer persons * * * shall be considered a permitted single family residential use of property for the purposes of zoning.” Minn.Stat. § 462.357, subd. 7 (2000). The plain meaning of the Scott County ordinance is clear: the county sought, with encouragement from the state, to permit group home residents to live in residential neighborhoods where a plain reading of the ordinance would have proscribed such an arrangement. There is no ambiguity in the language of either the ordinance or the state statute that could be construed against Scott County.

An examination of the policies which underlie the zoning ordinance further substantiates the district court’s judgment. First, the county promulgated its zoning ordinance to regulate “the density of population for the purpose of promoting the * * * general welfare of Scott County.” Scott County, Minn., Zoning Ordinance No. 3 (1996). Secondly, the county expressly provides for home employment, but limits its scope: the single-family residential zone permits only occupants to engage in a home business. Scott County, Minn., Zoning Ordinance No. 3 § 5A-2(3) (1996). Finally, it is the express policy of the State of Minnesota that “handicapped persons * * * should not be excluded by * * * land use regulations from the benefits of normal residential surroundings.” Minn.Stat. § 462.357, subd. 6a (2000). The policy of the state is not to favor and promote businesses which provide residential-based habilitation services; that policy is to favor persons who receive those services by promoting their social integration. As the Minnesota Supreme Court has stated, the legislature enacted Minn.Stat. § 462.357, subd. 7 “as part of a broad program, on the state and national level, to de-institutionalize mentally retarded persons and return them to the community.” Costley v. Caromin House, Inc., 313 N.W.2d 21, 27 (Minn.1981).

Read together, the county zoning regulation and state zoning statute clearly describe a regulatory environment wherein Anderson alone could administer her business from her home or she could operate a group care facility in that home. But the zoning ordinance does not permit her to engage employees solely to administer that business from her home.

DECISION

Because Minn.Stat. § 462.357, subd. 7 (2000) was enacted to encourage the social integration of persons who receive residential-based habilitation services, we affirm the district court’s decision that the statute does not permit the provision of exclusively administrative services at a location within a neighborhood zoned for single-family residential use.

Affirmed.

      . As of 1987, all fifty states and the District of Columbia had passed legislation designed to encourage neighborhood group homes for the mentally retarded. James T. Hogan, Comment, Community Housing Rights for the Mentally Retarded, 1987 Det. C.L.Rev. 869, 892.


author: SANDSTROM, Justice. VANDE WALLE, Chief Justice, KAPSNER, Justice,

text:
    2001 ND 15
    Earl L. OWENS, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.
    Nos. 20000128, 20000129.
    Supreme Court of North Dakota.
    Jan. 30, 2001.
    Earl L. Owens, pro se, North Dakota State Penitentiary, Bismarck, ND, petitioner and appellant.
    Bruce A. Romanick, Assistant State’s Attorney, Bismarck, ND, for respondent and appellee.
   SANDSTROM, Justice.

[¶ 1] Earl L. Owens appeals from an order of the district court dismissing an application for post-conviction relief. Owens contends his attorney failed to appeal his conviction as he directed. We affirm, concluding the district court properly dismissed the post-conviction relief application because Owens inexcusably failed to raise the issue in a previous post-conviction proceeding.

I

[¶ 2] On April 10, 1996, Owens was convicted of two counts of theft by deception and two counts of attempted theft by deception, all class C felonies. On the same date, Owens was convicted of a class A misdemeanor for giving false information to a law enforcement officer. Owens, acting pro se, filed a motion for a new trial on April 19, 1996. The district court denied the motion for new trial on May 8, 1996. On May 16, 1996, Owens wrote a letter to the district court requesting a new court-appointed attorney. In his letter Owens stated, “I have every intention on appealing the conviction of the past trial.” The letter suggests his request for a new attorney was based on trial counsel’s performance.

[¶3] New counsel was appointed by the district court. A conflict of interest arose with the new attorney, so a third attorney, Robert Martin, was appointed to represent Owens. On June 7,1996, Owens appeared in the district court with Martin and was sentenced on the charges. No appeal of the conviction was filed on behalf of Owens. Owens, acting pro se, filed numerous motions in the district court, including an application for post-conviction relief filed on July 29, 1996. On August 1, 1996, the district court sent Owens a letter denying all of his pro se motions, identifying Martin as appellate counsel, and instructing Owens to “[e]onfer and cooperate with your court appointed attorney.”

[¶ 4] On Owens’ behalf, attorney Martin applied for post-conviction relief on November 25, 1996; an amendment to the application was filed on January 21, 1997. The State responded to the application on January 21, 1997, and moved for summary disposition. The district court denied Owens’ application on May 22,1997.

[¶ 5] Acting pro se, Owens appealed on June 3, 1997. On June 19, 1997, we temporarily remanded to the district court to allow Owens to bring additional motions. Owens, pro se, filed a third amendment in the district court. The third amended application, dated June 24, 1997, contained in excess of twenty issues, including the allegation that “Petitioner was denied the right to appeal the conviction to the Supreme Court for review, attorney states there was [sic] no grounds for appeal.” On July 11, 1997, the district court denied the relief requested by Owens in his third amended application for post-conviction relief. Further documents were filed in this Court, including Owens’ brief listing twenty-six issues. Issue twenty-six in Owens’ appeal stated, “Was the petitioner denied the opportunity to appeal the conviction. Was letter to the trial judge sufficient to give notice of appeal.” On May 20, 1998, we affirmed the district court’s denial of Owens’ application for post-conviction relief. Owens v. State, 1998 ND 106, 578 N.W.2d 542.

[¶ 6] On March 15, 2000, Owens again applied for post-conviction relief. Upon request from the State, the district court denied Owens’ request on April 19, 2000, by summary disposition. Owens appeals from this latest denial of post-conviction relief, arguing the district court erred in denying his post-conviction relief application primarily because his lawyer had failed to file a direct appeal as instructed.

[¶ 7] The district court had jurisdiction under N.D.C.C. § 27-05-06 and N.D.C.C. § 29-32.1-03(1). This Court has jurisdiction under N.D. Const. art. VI, § 6, N.D.C.C. § 29-28-06, and N.D.C.C. § 29-32.1-14.

II

[¶ 8] The burden of establishing a basis for post-conviction relief rests upon the petitioning defendant; post-conviction proceedings are civil in nature. State v. Skjonsby, 417 N.W.2d 818, 820 (N.D.1987); State v. Kunkel, 366 N.W.2d 799, 803 (N.D.1985). A party opposing a motion for summary disposition under the Uniform Post Conviction Procedure Act must raise an issue of material fact. See Hopfauf v. State, 1998 ND 30, ¶4, 575 N.W.2d 646 (citing Mertz v. State, 535 N.W.2d 834, 836 (N.D.1995)).

[¶ 9] “Res judicata and misuse of process are affirmative defenses to be pleaded by the state.” N.D.C.C. § 29-32.1-12(3). “The burden of proof is also upon the state, but, as to any ground for relief which, by statute or rule of court, must be presented as a defense or objection at a specified stage of a criminal prosecution, the applicant shall show good cause for noncompliance with the statute or rule.” Id.

A

[¶ 10] Owens contends the courts have failed to address the issue of whether or not he has been denied a right to direct appeal. Owens previously appealed similar issues to this Court. Owens v. State, 1998 ND 106, ¶¶ 4-6, 578 N.W.2d 542. Owens contends he urged the district court to consider the fact that his appellate attorney did not file a direct appeal. Aside from Owens’ bare assertions and affidavit indicating he urged appellate counsel to directly appeal, the record does not establish that Owens was denied a right to appeal.

[¶ 11] Owens sent the district court a letter stating he intended to appeal his conviction; however, neither Owens nor his attorneys ever filed an appeal. Notwithstanding Owens’ argument that the courts have not reviewed his direct appeal claim, he argued similar claims in his third amended application for post-conviction relief and in his previous argument before this Court.

B

[¶ 12] The State argues Owens’ claims should be denied because they are simply variations of his original post-conviction petition or because his claims are a misuse of process. Misuse of process can be a ground for denying a claim when the applicant “[p]resents a claim for relief which the applicant inexcusably failed to raise either in a proceeding leading to judgment of conviction and sentence or in a previous postconviction proceeding” or if the applicant “[fjiles multiple applications containing a claim so lacking in factual support or legal basis as to be frivolous.” N.D.C.C. § 29-82.1-12(2).

[¶ 13] Owens’ claim of ineffective assistance of counsel was brought in his prior post-conviction relief applications. We have held denial of a second motion for post-conviction relief is proper when a defendant’s argument “was not made in his previous post-conviction challenge to the same probationary sentences.” State v. Johnson, 1997 ND 235, ¶5, 571 N.W.2d 372. In Johnson, we held the argument was “simply a variation” of an earlier appeal and was therefore a misuse of the post-conviction process. Id. at ¶¶ 11-12.

[¶ 14] We have denied post-conviction relief in other cases where the defendant simply varied previous arguments. Id. at ¶ 13 (citing McMorrow v. State, 537 N.W.2d 365 (N.D.1995); Woehlhoff v. State, 531 N.W.2d 566, 567 (N.D.1995)). The district court’s order implies misuse of process, stating, “All the issues in Petitioner’s most recent request for post-conviction relief have been previously reviewed at the trial level and by the North Dakota Supreme Court. Denial of Petitioner’s previous requests for post-conviction relief was upheld by the North Dakota Supreme Court. Nothing has changed. Petitioner is not entitled to post-conviction relief.”

[¶ 15] The lengthy history of this case establishes Owens had numerous opportunities to raise his direct appeal issue. He filed numerous pro se motions in the district court. He filed two pro se applications for post-conviction relief. Addressing twenty-six issues, Owens previously appealed to this Court pro se. The State has pleaded and proved misuse of process. Owens has failed to show good cause for failing to previously raise the issues he now presents.

[¶ 16] We hold Owens’ current argument, that counsel did not directly appeal his conviction, is simply a variation of his previous arguments. Failure to raise this argument in prior post-conviction proceedings is inexcusable and therefore constitutes a misuse of process.

Ill

[¶ 17] The dissent argues the United States Supreme Court decision in Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), requires a reversal in this case. In doing so, the dissent obscures the facts, and misanalyzes and overreaches the United States Supreme Court decision.

[¶ 18] Flores-Ortega’s attorney did not file an appeal after allegedly having promised to do so. Within a month of learning no appeal had been filed, Flores-Ortega tried to file his own notice of appeal, which was rejected as untimely. Flores-Ortega promptly sought state court relief, raising the specific issue. When that was denied, he promptly sought federal post-conviction relief — a petition for writ of habeas corpus — on the grounds he had directed his attorney to appeal and the attorney had not done so.

[¶ 19] Owens, on the other hand, in all of his previous petitions and supporting papers, never asserted he had directed his attorney to appeal and the attorney had failed to do so. Nearly four years later, in the immediate aftermath of the United States Supreme Court decision in Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), Owens for the first time asserts that in 1996 he directed his attorney to appeal and his attorney failed to do so. Owens’ previous filings, however, contradict his new assertion.

[¶ 20] Owens, in his August 1, 1996, letter to the trial court judge, stated he intended to appeal. In his first appeal to this Court, he argued the letter should have been treated as a notice of appeal. Because Owens did not raise the issue below, we did not reach the issue. Owens v. State, 1998 ND 106, ¶¶ 49-50, 578 N.W.2d 542. In his third amended application for post-conviction relief, dated June 24, 1997, he says he was denied an appeal because his lawyer told him there were no grounds. The essential argument in all his post-conviction filings has related to allegedly ineffective assistance of counsel, primarily at trial. As we have said repeatedly, “a claim of ineffective assistance of trial counsel should not be brought on direct appeal, but rather through a post-conviction relief proceeding.” DeCoteau v. State, 1998 ND 199, ¶ 7, 586 N.W.2d 156. That the issues Owens has raised subsequently are those properly raised in a post-conviction proceeding rather than by direct appeal makes manifestly clear the plain meaning of Owens’ earlier averments: he had intended to appeal (either the denial of his motion for new trial, or his conviction, or both) based on ineffective assistance of trial counsel; his post-trial counsel told him there were no grounds for appeal and post-conviction relief was the way to proceed; and he at least acquiesced in that course and filed for post-conviction relief instead.

[¶ 21] In Roe v. Flores-Ortega, the United States Supreme Court said:

[W]e hold that when counsel’s constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken, the defendant has made out a successful ineffective assistance of counsel claim entitling him to an appeal.

120 S.Ct. at 1089 (emphasis added). The Court explains what is constitutionally deficient performance:

In those cases where the defendant neither instructs counsel to file an appeal nor asks that an appeal not be taken, we believe the question whether counsel has performed deficiently by not filing a notice of appeal is best answered by first asking a separate, but antecedent, question: whether counsel in fact consulted with the defendant about an appeal. We employ the term “consult” to convey a specific meaning — advising the defendant about the advantages and disadvantages of taking an appeal, and making a reasonable effort to discover the defendant’s wishes. If counsel has consulted with the defendant, the question of deficient performance is easily answered: Counsel performs in a professionally unreasonable manner only by failing to follow the defendant’s ex press instructions with respect to an appeal. See supra, at 1034-1035. If counsel has not consulted with the defendant, the court must in turn ask a second, and subsidiary, question: whether counsel’s failure to consult with the defendant itself constitutes deficient performance. That question lies at the heart of this case: Under what circumstances does counsel have an obligation to consult with the defendant about an appeal?

Id. at 1035 (emphasis added).

[¶ 22] In this case, Owens’ own filings make clear that his attorney consulted with him and advised “there was [sic] no grounds for appeal.” The record demonstrates that Owens’ attorney’s performance was not constitutionally deficient.

[¶ 23] Distinguishing this case further from Roe v. Flores-Ortega is the significant fact that Flores-Ortega raised the claim at his earliest opportunity. See id. at 1033 (Flores-Ortega’s first state court challenge was based, in part, on failure of counsel to file a direct appeal). The dissent erroneously assumes any convicted person can newly assert alleged failure to file an appeal as directed, at any time, no matter how many post-conviction proceedings have gone before. Roe v. Flores-Ortega offers no support for this proposition, but offers only “the proper framework for evaluating an ineffective assistance of counsel claim, based on counsel’s failure to file a notice of appeal without respondent’s consent” when the issue is properly raised. Id. at 1032-33. The United States Supreme Court itself has rejected repeated post-conviction claims, in the form of habeas corpus, when the matters could have been raised in earlier post-conviction proceedings. See Schlup v. Delo, 513 U.S. 298, 318-19, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) (successive or abusive petitions for habeas corpus are generally precluded from review).

[¶ 24] Since it was decided in February 2000, Roe v. Flores-Ortega has been distinguished twice in the circuit courts of appeal. See Clark v. Johnson, 227 F.3d 273 (5th Cir.2000); Kitchen v. United States, 227 F.3d 1014 (7th Cir.2000). In Kitchen, counsel “freely admitted that he failed to file a notice of appeal through ‘inadvertence.’ ” 227 F.3d at 1020. Finding counsel’s performance was deficient, the court stated, “in those cases in which the Supreme Court, as well as this and other circuits, have presumed prejudice from the failure to file a notice of appeal, defendants have had no assistance of counsel for any issues.” Id. at 1020-21 (citations omitted). Here, Owens received appointed appellate counsel for his post-conviction proceedings so he was not “abandoned” or deprived of judicial review of his alleged trial errors. See id. at 1021 (Kitchen was neither abandoned nor denied counsel for appeal simply because a notice of appeal was not filed). “This is unlike the situation in which the possible issues on appeal have not even been identified by an advocate, and prejudice must be presumed.” Id.

[¶ 25] The Seventh Circuit Court of Appeals persuasively reasons in Kitchen that prejudice cannot be presumed simply because a direct appeal was not filed when the defendant has had counsel and was able to raise the same issues that would have been raised on direct appeal. The dissent suggests Owens should be entitled to a hearing on the single issue of whether he was denied a direct appeal. In Kitchen, the court held prejudice could not be presumed when review was foreclosed on a single issue. 227 F.3d at 1021. This is particularly true when “any prejudice resulting from its abandonment may not be reliably determined.” Id.

[¶ 26] Here, no appeal issue was foreclosed, and Owens was able to raise his issues, with the assistance of counsel, in post-conviction relief proceedings. As detailed above, Owens at least acquiesced in abandonment of a direct appeal in pursuit of post-conviction relief. See DeCoteau v. State, 1998 ND 199, ¶7, 586 N.W.2d 156 (ineffective assistance of counsel claims are better suited for post-conviction relief proceedings rather than direct appeal). Even if allowed a hearing on the waiver of his direct appeal, the direct appeal issues have been adjudicated in Owens’ post-conviction cases. Owens had the opportunity to present post-conviction issues, and he was afforded the assistance of appointed counsel. Prejudice cannot be presumed under the circumstances. See Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 1036, 145 L.Ed.2d 985 (2000) (all relevant factors must be considered in determining whether a defendant desired an appeal); Kitchen v. United States, 227 F.3d 1014, 1021 (7th Cir.2000) (prejudice cannot be presumed in certain circumstances, even if an appeal is abandoned).

[¶ 27] Objectively, Owens’ own evidence supports the conclusion Owens’ attorney’s performance was not constitutionally deficient. A defendant is not afforded multiple opportunities to raise the same or similar issues. Finally, prejudice cannot be presumed under the facts of this case. Each of these factors establishes that Roe v. Flores-Ortega does not lead to reversal here.

IV

[¶ 28] The order of the district court is affirmed.

[¶ 29] Dale V. Sandstrom

VANDE WALLE, Chief Justice,

concurring.

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

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

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

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

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

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

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

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

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

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

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

KAPSNER, Justice,

dissenting.

[¶ 36] I respectfully dissent. Under Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), Owens should be afforded an evidentiary hearing to determine whether his representation was constitutionally ineffective because of counsel’s failure to file an appeal. Therefore, I would reverse the trial court’s grant of summary judgment in favor of the State, remanding with instructions to hold an evidentiary hearing to ascertain whether Owens in fact instructed his attorney to file an appeal.

[¶ 37] In Flores-Ortega, the defendant requested counsel, but his attorney failed to file a timely notice of appeal. 120 S.Ct. at 1033. The Court stated the proper framework for evaluating a claim of ineffective assistance of counsel for failing to file an appeal is found in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Flores-Ortega, at 1034. Under Strickland’s two-pronged test, the defendant must show: (1) counsel’s representation fell below an objective standard of reasonableness, and (2) counsel’s deficient performance prejudiced the defendant. Flores-Ortega, at 1034 (citing Strickland, 466 U.S. at 668, 694, 104 S.Ct. 2052). The Court stated it had long held that an attorney who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable. Flores-Ortega, at 1035. Counsel’s failure to file a requested appeal cannot be considered a strategic decision; rather, because filing is purely a ministerial task, failing to file shows counsel’s inattention to the defendant’s wishes. Id.

[¶ 38] Under the second Strickland prong, a defendant ordinarily is required to prove prejudice by showing “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Flores Ortega, 120 S.Ct. at 1037 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). This is because judicial proceedings are entitled to a “strong presumption of reliability” in arriving at an outcome, including a finding of guilt. Id. (quoting Strickland, at 696, 104 S.Ct. 2052). When a defendant alleges mere attorney error, the defendant must demonstrate prejudice by showing the errors actually had an adverse effect on the defense so as to undermine the reliability of a finding of guilt. Id. (citing United States v. Cronic, 466 U.S. 648, 659 n. 26, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984); Strickland, at 693, 104 S.Ct. 2052). However, when counsel’s deficient performance deprived a defendant of a part of the judicial proceedings, such as an appeal he wanted and to which he had a right, there is a presumption of prejudice and no specific showing of prejudice is required. Flores-Ortega, 120 S.Ct. at 1038. “Put simply, we cannot accord any ‘presumption of reliability’ to judicial proceedings that never took place.” Id. (quoting Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 764-65, 145 L.Ed.2d 756 (2000)). Therefore, the Court held that when counsel’s constitutionally deficient performance deprives a defendant of an appeal he otherwise would have taken, the defendant has made out a successful claim of ineffective assistance of counsel entitling him to an appeal. Flores-Ortega, at 1039.

[¶ 39] The Flores-Ortega Court reasoned it is unfair to require an indigent, perhaps pro se, defendant to demonstrate his hypothetical appeal might have had merit before his attorney has ever reviewed the record in search of potentially meritorious grounds for appeal. Id. at 1040. Thus, the defendant is only required to demonstrate that, but for counsel’s deficient conduct, he would have appealed. Id.; see also Rodriquez v. United States, 395 U.S. 327, 329-30, 89 S.Ct. 1715, 23 L.Ed.2d 340 (1969) (granting a new appeal when counsel failed to file a requested appeal, without requiring the defendant to make any further showing of some likelihood of success on appeal, because defendants “should not be given an additional hurdle to clear just because their rights were violated at some earlier stage in the proceedings”); Peguero v. United States, 526 U.S. 23, 28, 119 S.Ct. 961, 143 L.Ed.2d 18 (1999) (affirming that when counsel fails to file a requested appeal, a defendant is entitled to a new appeal without showing his appeal would likely have had merit).

[¶ 40] In light of the holding in Flores-Ortega, Owens is entitled to an evidentiary hearing regarding his claim of ineffective assistance of counsel based upon Martin’s alleged failure to comply with Owens’ request for a direct appeal. In Owens’ affidavit supporting his 3/14/00 application for post-conviction relief, Owens testified he requested Martin to appeal the conviction at their first meeting. Owens asserted he repeated his request to Martin on the day of sentencing, asking for an appeal of both the conviction and the sentence. Owens also informed the trial court in his May 16, 1996 letter that he had “every intention on appealing.” Owens claims he would have received the trial transcripts if his attorney had complied with Owens’ request for a direct appeal, but since his attorney ignored his request for a direct appeal, Owens was put in a “Catch 22”: he had the burden of proving his attorney was ineffective, yet he could not prove his case because his attorney was ineffective. Owens argued that because his attorney had no record to review, the attorney was in no position to give advice to Owens about his case.

[¶ 41] Owens’ case is precisely the situation which the Flores-Ortega Court forecast would unfairly require an indigent, pro se defendant to demonstrate his hypothetical appeal might have had merit before his attorney has ever reviewed the record in search of potentially meritorious grounds for appeal. 120 S.Ct. at 1040. Owens referred to the situation as a Catch 22, and we also acknowledged the “dilemma” in which indigent applicants for post-conviction relief may find themselves when trying to prove ineffective assistance of counsel. Owens v. State, 1998 ND 106, ¶32, 578 N.W.2d 542 (concluding Owens, as an indigent applicant for post-conviction relief, had a constitutional right to a free trial transcript only by showing he was prejudiced because he would be deprived of an adequate opportunity to present his claims fairly without the transcript). However, Owens is presumptively prejudiced if Owens requested Martin to appeal, but Martin failed to file an appeal, thereby entirely depriving Owens of his right to direct appeal. See Flores-Ortega, 120 S.Ct. at 1038; see also N.D.C.C. § 29-28-03 (providing appeals to the supreme court may be taken as a matter of right). Owens’ affidavits testifying to his requests for Martin to file an appeal raise a genuine issue of material fact precluding summary disposition. See Hopfauf v. State, 1998 ND 30, ¶4, 575 N.W.2d 646; see also N.D.C.C. § 29-32.1-09(1) (authorizing summary disposition if there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law). The trial court erred in denying Owens an evidentiary hearing to determine whether Owens in fact requested Martin to appeal.

[¶ 42]' The majority affirms the trial court’s summary disposition of Owens’ 3/14/00 application for post-conviction relief, concluding the “lengthy history” of this case establishes Owens had numerous opportunities in previous post-conviction proceedings but inexcusably failed to raise the issue of Martin’s failure to follow Owens’ request to appeal his conviction. I appreciate the position of the majority that N.D.C.C. § 29-32.1-12(3) and our jurisprudence interpreting that statute have made it clear multiple post-conviction hearings are not to be invited or tolerated. See, e.g., Clark v. State, 1999 ND 78, ¶¶ 21-22, 593 N.W.2d 329 (indicating we will not weaken the integrity of the criminal justice system by allowing subterfuge under the guise of a post-conviction application used as an intricate scheme to delay, prolong, or otherwise manipulate the system to a defendant’s perceived advantage). Further, a defendant who files multiple motions, identifying multiple issues, often obscures the genuine issue in a blizzard of paperwork. See Berlin v. State, 2000 ND 206, ¶6 n. 1, 619 N.W.2d 623 (stating numerous proceedings do not benefit, and may harm, the cause of an applicant for post-conviction relief).

[¶ 43] However, the reason the lengthy history of Owens’ case cannot be used to deny relief now is that much of that history was controlled by Martin, the attorney who, Owens alleges, failed to file his requested appeal. Martin was the third attorney appointed to represent Owens. Martin was his attorney at the time of sentencing and for his 1/20/97 application for post-conviction relief. When Owens filed several pro se motions and a pro se application for post-conviction relief with the trial court, he was admonished to confer and cooperate with his court-appointed attorney. Yet this attorney, Martin, did not file the allegedly requested appeal.

[¶ 44] In granting summary judgment for the State regarding Owens’ 3/14/00 application for post-conviction relief, the trial court indicated all the issues “have been previously reviewed at the trial level and by the North Dakota Supreme Court.... Nothing has changed.” However, never in the lengthy history of this case has the trial court squarely addressed Owens’ claims that either Runge or Martin refused his requested appeal or failed to file a direct appeal. In fact, Owens did raise the issue in his pro se 6/24/97 application, stating: “Petitioner was denied the right to appeal the conviction to the Supreme Court for review, attorney states there was no grounds for appeal.” The trial court denied this 6/24/97 application, finding the prior decision and order regarding the 1/20/97 application were “still applicable” and Owens’ claims “are still merit-less,” notwithstanding the 1/20/97 application — prepared with the assistance of Martin — did not raise the issue of Runge’s or Martin’s failure to appeal. Although the 1/20/97 application did not assert this claim, Owens, acting pro se, filed a Notice of Appeal and requested this Court to hold the appeal in abeyance to permit him to assert additional claims to the trial court which he asserted Martin failed to include despite his requests. We permitted a remand for this purpose, and on remand his amended 6/24/97 application did include the quoted language regarding the denial of an appeal.

[¶ 45] Moreover, on appeal to this Court, we affirmed the trial court’s refusal to grant Owens an evidentiary hearing on his 6/24/97 application because his “arguments are variations of his previously rejected claim of ineffective assistance of counsel.” Owens, 1998 ND 106, ¶ 42, 578 N.W.2d 542. We also dismissed Owens’ allegations the trial court should have treated his letter to the court as a notice of direct appeal and his claims of ineffective assistance of Martin in presenting the 1/20/97 application. Id. at ¶¶ 49-50. We reasoned these issues were not raised in Owens’ pro se 6/24/97 application. Id. at ¶ 50. However, Owens did raise the issue of being denied his allegedly requested appeal in his 6/24/97 application, stating: “[A]ttorney states there was no grounds for appeal.”

[¶ 46] Therefore, Owens’ claim in his 8/14/00 post-conviction relief application that Martin refused to file Owens’ requested direct appeal is not, as the majority holds, “simply a variation of his previous arguments.” Owens has never been able to get the attention of either the trial court or this Court to this specific claim in the first instance; thus, there is no misuse of the post-conviction process and no inexcusable failure to raise this argument in prior post-conviction proceedings.

[¶ 47] For the above reasons, I would remand, instructing the trial court to hold an evidentiary hearing to ascertain whether Owens in fact instructed Martin to file a direct appeal. If so, Martin’s failure to appeal is professionally unreasonable, under the first prong of the Strickland test. See Flores-Ortega, 120 S.Ct. at 1035; Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Under the second prong of Strickland, prejudice is presumed if counsel’s constitutionally deficient performance deprived Owens of an appeal he otherwise would have taken. See Flores-Ortega, at 1039; Strickland, at 694, 104 S.Ct. 2052. If the evidentiary hearing discloses such facts, Owens has made out a successful claim of ineffective assistance of counsel entitling him to a direct appeal. See Flores-Ortega, at 1039.

[¶ 48] MARY MUEHLEN MARING, J., concurs.

      . Kitchen v. United States, 2T1 F.3d 1014 (7th Cir.2000), contrary to the position of the majority, is in accord. In Kitchen, the defendant had a direct appeal of his conviction and sentence. He had "the benefit of a lawyer’s services in constructing potential appellate arguments.” Id. at 1021, citing Castellanos v. United States, 26 F.3d 717, 720 (7th Cir.1994). The missing appeal for which the Seventh Circuit found no showing of prejudice was a separate appeal from the denial of a motion for new trial.


author: NEUMANN, Justice.

text:
    2001 ND 9
    Daniel J. CLARK, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.
    No. 20000296.
    Supreme Court of North Dakota.
    Jan. 30, 2001.
    Daniel J. Clark, pro se, Bismarck, ND, for petitioner and appellant.
    Owen K. Mehrer, Assistant State’s Attorney, Dickinson, ND, for respondent and appellee.
   NEUMANN, Justice.

[¶ 1] Daniel J. Clark appealed from a judgment dismissing his application for post-conviction relief. We hold it was harmless error, under the circumstances of this case, when the trial court imposed an enhanced sentence under the special dangerous offender statute without having the jury find the predicate facts supporting the enhanced sentence, and we affirm.

I

[¶2] Clark was charged with murder for shooting George Girodengo, on January 17, 1996, after finding him with his wife in their home. A jury found Clark guilty of manslaughter, a class B felony, under N.D.C.C. § 12.1-16-02. The trial court sentenced Clark to the ten-year maximum period of incarceration for a class B felony under N.D.C.C. § 12.1-32-01(3), and sentenced Clark to an additional five years incarceration as a dangerous special offender under N.D.C.C. § 12.1-32-09(2)(b), for a total sentence of imprisonment of 15 years. Clark appealed from the judgment of conviction, and this Court affirmed in State v. Clark, 1997 ND 199, ¶ 1, 570 N.W.2d 195.

[¶ 3] Clark subsequently filed a petition in the district court for post-conviction relief under N.D.C.C. § 29-32.1-01. He referred to the constitutional rule announced by the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2355, 147 L.Ed.2d 435 (2000), which held a fact used to enhance a criminal sentence beyond the statutory maximum for the crime committed must be decided by a jury beyond a reasonable doubt. Clark argued the rule should be applied in his case and that this Court should eliminate the five-year enhanced sentence or should remand for a redeter-mination by a jury on the enhanced sentence issue. The trial court, applying the rule announced in Apprendi concluded Clark’s constitutional rights were satisfied “when the jury was presented jury instructions requesting them to consider [Clark’s] use of a firearm in committing the alleged offense.” The trial court determined Clark’s enhanced sentence was in compliance with the Apprendi rule because the jury had, in effect, found beyond a reasonable doubt that Clark used a firearm to commit the crime, the predicate fact upon which the enhanced sentence was imposed. The trial court entered judgment dismissing Clark’s post-conviction application, and Clark appealed.

II

[¶ 4] The State argues the Apprendi decision should not be retroactively applied in this collateral review of Clark’s conviction.

A

[¶ 5] Apprendi was indicted under New Jersey law for, among other things, possession of a firearm for an unlawful purpose. He had fired shots into the home of an African-American family and had made a statement, which he later retracted, that he did not want those family members in his neighborhood because of their race. The indictment did not mention New Jersey’s hate crime statute, nor did it allege Apprendi had acted with a racially biased purpose. Apprendi pled guilty to the firearm charge, but the State reserved the right to request an enhanced sentence under the hate crime statute, and Apprendi reserved the right to challenge any such enhancement. The trial court then found, by a preponderance of the evidence, the shooting was racially motivated and in violation of the New Jersey hate crime statute. As a consequence, the court imposed an enhanced prison sentence of 12 years, which was beyond the maximum sentence of five to ten years for the firearm violation. The question presented to the United States Supreme Court was whether the due process clause of the Fourteenth Amendment required that the facts supporting an increase in the maximum prison sentence be found by a jury on proof beyond a reasonable doubt rather than by a trial judge on a preponderance of the evidence. The Court answered in the affirmative:

Our answer to that question was foreshadowed by our opinion in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), construing a federal statute. We there noted that “under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” The Fourteenth Amendment commands the same answer in this ease involving a state statute.

Apprendi, 120 S.Ct. at 2355 (citation omitted). Justice Stevens, writing for the Court, concluded:

Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt....
The New Jersey statutory scheme that Apprendi asks us to invalidate allows a jury to convict a defendant of a second-degree offense based on its finding beyond a reasonable doubt that he unlawfully possessed a prohibited weapon; after a subsequent and separate proceeding, it then allows a judge to impose punishment identical to that New Jersey provides for crimes of the first degree based upon the judge’s finding, by a preponderance of the evidence, that the defendant’s “purpose” for unlawfully possessing the weapon was “to intimidate” his victim on the basis of a particular characteristic the victim possessed. In light of the constitutional rule explained above, and all of the cases supporting it, this practice cannot stand.

Apprendi, 120 S.Ct. at 2362-63 (citation omitted). The United States Supreme Court reversed the New Jersey judgment and remanded for further proceedings, but the Court did not address in Apprendi, and has not addressed in any subsequent case to date, the issue of retroactive application of the Apprendi rule. The decisions of other federal courts provide some guidance whether Apprendi should be applied retroactively in the collateral review of a judgment of conviction.

[¶ 6] A new rule of constitutional criminal procedure is normally applied retroactively to all cases pending direct review when the rule is announced. Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). There is no apparent dispute that for purposes of ret-roactivity analysis the Apprendi decision established a new rule of constitutional law. See, e.g., Jones v. Smith, 231 F.3d 1227, 1236 (9th Cir.2000). However, in Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), the United States Supreme Court held a new constitutional rule of criminal procedure is not to be applied retroactively to cases on collateral review of final judgments of conviction unless the rule falls within one of two narrow exceptions: the first, when the new rule places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe, and the second, when the new rule is a “watershed” rule of criminal procedure whose non-application would seriously diminish the likelihood of an accurate conviction or which requires the observance of procedures that are implicit in the concept of ordered liberty. Teague, 489 U.S. at 307, 313, 109 S.Ct. 1060. Using the Teague analysis, the federal courts are divided on the question of whether the Apprendi decision should be applied retroactively in cases involving collateral review of a conviction.

[¶ 7] At least two federal district courts have concluded the Apprendi rule, requiring a jury to find beyond a reasonable doubt any fact which is the basis for imposing an enhanced sentence beyond the statutory maximum for the crime committed, “is so grounded in fundamental fairness that it may be considered of watershed importance” and should be retroactively applied to cases involving collateral review of a conviction. United States v. Murphy, 109 F.Supp.2d 1059, 1064 (D.Minn.2000); Darity v. United States, 124 F.Supp.2d 355 (W.D.N.C. 2000). Other federal courts, applying a Teague analysis, have concluded the Apprendi decision should not be given retroactive application to cases on collateral review. Jones v. Smith, 231 F.3d 1227, 1236 (9th Cir.2000); United States v. Johnson, 126 F.Supp.2d 1222 (D.Neb.2000); West v. United States, 123 F.Supp.2d 845 (D.Md.2000); see also United States v. Pittman, 120 F.Supp.2d 1263, 1271 (D.Or.2000). The conflict in these federal decisions on the issue of Apprendi’s retroactive application invites further direction by the United States Supreme Court.

B

[¶ 8] Under our Uniform Post Conviction Procedure Act, N.D.C.C. § 29-32.1-01(l)(f), a person can apply for relief from a conviction and sentence upon the ground that “[a] significant change in substantive or procedural law has occurred which, in the interest of justice, should be applied retrospectively.” This statute would arguably permit retroactive application of Ap-prendi to convictions on collateral review, if this Court were to conclude “the interest of justice” required it. However, the retroactive application analysis advanced by the United States Supreme Court in Teague, 489 U.S. at 309-10, 109 S.Ct. 1060 places substantial emphasis on the finality of convictions:

Application of constitutional rules not in existence at the time a conviction became final seriously undermines the principle of finality which is essential to the operation of our criminal justice system. Without finality, the criminal law is deprived of much of its deterrent effect. ...
The “costs imposed upon the Statefs] by retroactive application of new rules of constitutional law on habeas corpus ... generally far outweigh the benefits of this application.” In many ways the application of new rules to cases on collateral review may be more intrusive than the enjoining of criminal prosecutions, for it continually forces the States to marshal resources in order to keep in prison defendants whose trials and appeals conformed to then-existing constitutional standards. (Citations omitted.)

Clark has not argued any independent state constitutional ground for retroactive application of Apprendi to this case. With the split in the federal courts on this issue, we are hesitant to base retroactive application of Apprendi upon the statutory language found in N.D.C.C. § 29-32.1-01(l)(f).

C

[¶ 9] It is well-established an appellate court need not address questions, the answers to which are unnecessary to the determination of an appeal. State v. Evans, 1999 ND 70, ¶ 17, 593 N.W.2d 336. We conclude we do not need to resolve at this time the issue of retroactive application of Apprendi. Even if the rule announced in Apprendi were to be applied retroactively, under the circumstances of this case, failure to apply it would constitute only harmless error.

Ill

A

[¶ 10] Clark’s enhanced sentence was imposed under N.D.C.C. § 12.1-32-09, which provides in relevant part:

1. A court may sentence a convicted offender to an extended sentence as a dangerous special offender or a habitual offender in accordance with the provisions of this section upon a finding of any one or more of the following:
a. The convicted offender is a dangerous, mentally abnormal person. The court may not make such a finding unless the presentence report, in-eluding a' psychiatric examination, concludes that the offender’s conduct has been characterized by persistent aggressive behavior, and that such behavior makes the offender a serious danger to other persons.
b. The convicted offender is a professional criminal. The court may not make such a finding unless the offender is an adult and the presen-tence report shows that the offender has substantial income or resources derived from criminal activity.
c. The convicted offender is a habitual offender. The court may not make such a finding unless the offender is an adult and has previously been convicted in any state or states or by the United States of two felonies of class C or above committed at different times when the offender was an adult. For the purposes of this subdivision, a felony conviction in another state or under the laws of the United States shall be considered a felony of class C or above if it is punishable by a maximum term of imprisonment of five years or more.
d. The offender was convicted of an offense which seriously endangered the life of another person and the offender had previously been convicted of a similar offense.
e. The offender is especially dangerous because the offender used a firearm, dangerous weapon, or destructive device in the commission of the offense or during the flight therefrom.
4. Upon any plea of guilty, or verdict or finding of guilt of the defendant of such felony, a hearing must be held, before sentence is imposed, by the court sitting without a jury.... If it appears by a preponderance of the information, including information submitted during the trial of such felony and the sentencing hearing and so much of the presentence report as the court relies upon, that the defendant is a dangerous special offender or a habitual offender, the court shall sentence the defendant to imprisonment for an appropriate term within the limits specified in subsection 2. The court shall place in the record its findings including an identification of the information relied upon in making such findings and its reasons for the sentence imposed.

[¶ 11] The rule announced in Ap-prendi makes clear that before a court may sentence a convicted offender to an enhanced period of incarceration beyond the statutory maximum for the crime committed, a jury, not the court, must find the facts upon which the enhanced sentence is predicated, using the beyond a reasonable doubt standard. The only exception under the rule announced by Apprendi is that an enhanced sentence may be based upon prior convictions without a jury finding.

[¶ 12] The primary fact upon which the trial court added five years to Clark’s sentence beyond the ten-year maximum penalty for a class B felony manslaughter conviction, was that Clark used a firearm in committing the crime:

The defendant was sentenced as a dangerous special offender because the Court was convinced from all the facts and circumstances of the case that it was appropriate to do so. The defendant’s recklessness in the use of the 45 caliber handgun was the essence of the crime. But for the defendant’s bringing of the gun to this situation, the death of the victim would never have happened. The Court is convinced that the intent of the legislature, at least in part, in enacting the dangerous special offender provisions (NDCC 12.1-32-09) is to allow the court to punish more severely those perpetrators who use guns in the commission of an offense. The Court wanted to punish the defendant and deter others who might use a gun in the commission of an offense.

[¶ 13] Clark argues that, in addition to the use of a firearm, before the court can enhance his sentence under N.D.C.C. § 12.1—32—09(l)(e), the jury must find Clark’s use of a gun, under the circumstances, shows he “is especially dangerous.” We disagree that under subsection (e) any finding other than the use of a firearm in committing the offense is necessary to impose an enhanced penalty. This Court interpreted N.D.C.C. § 12.1-32-09(l)(e) in State v. Ternes, 259 N.W.2d 296, 299-300 (N.D.1977):

We believe it proper to construe § 12.1— 32-09, NDCC, to mean that, except as hereinafter noted, the prosecutor must show that a period of confinement greater than that normally provided as a penalty for the particular offense is required to protect the public from further criminal conduct. Because of definitive language in § 12.1—32—09(l)(e), NDCC, we conclude that this showing can be made by mere proof that the defendant used a firearm, dangerous weapon, or destructive device in the commission of an offense or during the flight therefrom.
We interpret the words of the statute as establishing four categories of special offenders who may be shown to be dangerous, and one category of special offenders who are, per se, dangerous. We cannot say that the Legislature has not the power to do that.
[T]he Legislature has conclusively stated that a felon who uses a firearm is a dangerous special offender.

[¶ 14] In State v. Wells, 265 N.W.2d 239, 245 (N.D.1978), referring to our interpretation of the special dangerous offender statute in Temes, this Court clarified “[t]he one category of offenders deemed, per se, dangerous was, of course, the category of offenders who used firearms, dangerous weapons, or destructive devices in the commission of the offense.” Under Temes and Wells, it is clear the only predicate fact necessary to enhance a penalty under N.D.C.C. § 12-32-09(l)(e) is that the defendant committed a crime using a firearm, dangerous weapon, or destructive device.

B

[¶ 15] The United States Supreme Court in Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), declined to rule that all federal constitutional errors require automatic reversal, and instead placed a heavy burden upon the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. See State v. Carmody, 253 N.W.2d 415, 418 (N.D.1977). Before a federal constitutional error may be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. City of Mandan v. Baer, 1998 ND 101, ¶ 10, 578 N.W.2d 559. This is such a case.

[¶ 16] The only predicate fact necessary for the court’s imposition of an enhanced sentence was that Clark used a firearm in committing the crime. Clark concedes the use of a firearm in committing the crime. His only defense at trial was that he was acting in self-defense. In State v. Clark, 1997 ND 199, 570 N.W.2d 195, 199, we quoted Clark’s argument, in which he concedes this fact:

Clark argues: “This was an intentional shooting.... Unless Clark had some right to intentionally pull the trigger, he was guilty of murder.... He was either excused by reason of self defense or he was not....”

Although the jury found Clark was not guilty of murder, it found him guilty of the lesser crime of manslaughter in recklessly-causing the victim’s death, and his use of a gun in committing this act was never an issue. We conclude, therefore, any error in failing to submit the enhanced sentencing fact issues to the jury for consideration is harmless beyond a reasonable doubt. Harmless error is disregarded by the court. State v. Mondo, 325 N.W.2d 201, 203 (N.D.1982); N.D.R.Crim.P. 52(a).

[¶ 17] The judgment of the trial court dismissing, on its merits, Clark’s application for post-conviction relief is affirmed.

[¶ 18] GERALD W. VANDE WALLE, C.J., and MARY MUEHLEN MARING, CAROL RONNING KAPSNER, DALE V. SANDSTROM, JJ., concur.

      . Substantial portions of N.D.C.C. § 12.1-32-09 may not withstand constitutional challenge under the rule announced in Apprendi. We urge the legislature to address this important issue and make necessary amendments to bring the statute within Apprendi’s constitutional requirements.


author: SANDSTROM, Justice. VANDE WALLE, Chief Justice,

text:
    2001 ND 10
    In the Interest of J.S. William Pryatel, M.D., Petitioner and Appellee, v. J.S., Respondent and Appellant.
    No. 20000344.
    Supreme Court of North Dakota.
    Jan. 30, 2001.

      Charles J. Gilje and Kenneth L. Dalsted (argued), Special Assistant Attorneys General, Jamestown, ND, for petitioner and appellee.
    Randall L. Hoffman, Jamestown, ND, for respondent and appellant.
   SANDSTROM, Justice.

[¶ 1] J.S. appeals from a district court order authorizing continued treatment at the State Hospital for one year. We conclude, although the district court’s order is supported by the trial testimony, insufficient findings appear in the record. While retaining jurisdiction under Rule 35(b), N.D.R.App.P., we remand with instructions for expedited entry of findings.

I

[¶ 2] This is J.S.’s sixth appeal to this Court from various mental health commitment or treatment orders. See In the Interest of J.S., 1998 ND 92, 578 N.W.2d 91; In the Interest of J.S., 545 N.W.2d 145 (N.D.1996); In the Interest of J.S., 530 N.W.2d 331 (N.D.1995); In the Interest of J.S., 528 N.W.2d 367 (N.D.1995); In the Interest of J.S., 499 N.W.2d 604 (N.D.1993). J.S. alleges the district court erred by ordering continuing treatment without sufficient findings of fact or consideration of alternative treatment.

[¶ 3] J.S. has resided at the State Hospital since 1989, when he was admitted for the tenth time. He is a 64-year-old male who is diagnosed as schizophrenic with psychotic behavior and symptoms. A petition to continue J.S.’s treatment was filed in the district court. On November 30, 2000, the district court heard arguments and testimony on the petition. At the conclusion of the hearing, the district court issued an order continuing J.S.’s treatment at the State Hospital until November 30, 2001. Arguing the district court erred by ordering continued treatment without sufficient findings and by failing to consider alternative treatment, J.S. timely appealed, seeking expedited review in this Court. See N.D.C.C. § 25-03.1-29; N.D.RApp.P. 2.1(a) (allowing expedited review). The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 25-03.1-03. This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. § 25-03.1-29.

II

[¶4] Our review of an appeal under N.D.C.C. ch. 25-03.1 is “limited to a review of the procedures, findings, and conclusions of the lower court.” In the Interest of J.S., 1998 ND 92, ¶ 13, 578 N.W.2d 91 (citing N.D.C.C. § 25-03.1-29). A “trial court’s findings are ‘subject to a more probing “clearly erroneous” standard of review.’” Id. (citing In Interest of K.J.L., 541 N.W.2d 698, 700 (N.D.1996)).

[¶ 5] J.S. argues the district court summarily agreed with expert testimony presented by Dr. William Pryatel, a medical doctor and psychiatrist, to find J.S. needed continuing treatment. J.S. argues the district court’s findings do not support the conclusion that he is in need of continued treatment.

[¶ 6] Dr. Pryatel’s report of examination indicated J.S. “has a history of assaul-tive and threatening behavior [and][h]e has no insight into his illness and uses poor judgment.” The report further indicates J.S. cannot “be discharged or go to outpatient treatment as he will not take his meds.” At trial, Dr. Pryatel testified J.S. is schizophrenic and diabetic and has high blood pressure. He testified J.S. currently receives weekly injections for his mental illness and is also given daily injections to control his diabetes. Dr. Pryatel testified that oral medication with fewer side effects could be given in place of J.S.’s weekly injection, but J.S. will not take the oral medication. He testified the goal is less restrictive treatment, but in light of J.S.’s repeated resistance to oral medication, less restrictive treatment is not possible.

[¶ 7] J.S. argues his last assault occurred more than one year ago. He also argues he has made significant behavioral improvements in over eleven years of hospitalization, and would voluntarily “take his medication in a structured setting.” We have previously rejected the argument that a one-year interval since a violent episode is significant. In the Interest of J.S., 545 N.W.2d 145, 148 (N.D.1996). Rather than the interval, district courts must consider whether the person is in need of continuing treatment. Id. The petitioner must prove by clear and convincing evidence that the person requires treatment. Id. (citing N.D.C.C. § 25-03.1-31(1)).

[¶ 8] The district court found, by clear and convincing evidence, that J.S. was in need of treatment because he does not have insight into his psychiatric or diabetic illnesses. Therefore, the court continued treatment for one year with the option for State Hospital personnel to employ less restrictive treatment if possible.

[¶ 9] District courts are required to find facts that “will justify the legal conclusion of either commitment, alternative treatment, or no treatment.” In the Interest of Riedel, 353 N.W.2d 773, 776 (N.D.1984). To continue treatment, the district court must find a patient is mentally ill or chemically dependent and “there exists a serious risk of harm to that person, others, or property.” N.D.C.C. § 25-03.1-02(11). Detailed findings, including references to a patient’s medical history and the evidence upon which the district court relied in making its determination, serve the significant purpose of informing the patient and this Court of the evidentia-ry basis upon which the district court made its conclusions. Riedel, 353 N.W.2d at 776; In the Interest of R.N., 513 N.W.2d 370, 373 (N.D.1994).

[¶ 10] The district court did not prepare written findings of fact, and the court orally found only that J.S. does not have insight into his illnesses and needs treatment. See N.D.R.Civ.P. 52(a) (“the court shall find facts specially,” either orally on the record or “in an opinion or memorandum of decision filed by the court”); see also Riedel, 353 N.W.2d at 775 (“the basis of the trial court’s determination must be reflected in findings of fact”).

[¶ 11] On appeal, we are limited “to a review of the procedures, findings, and conclusions of the lower court.” Riedel, 353 N.W.2d at 775 (citing N.D.C.C. § 25-03.1-29). “It is obvious that this [C]ourt must have ‘findings’ to review if we are to fulfill the requirements” of the statute. Id. (referring to N.D.C.C. § 25-03.1-29). The clear and convincing evidentiary standard “does not abolish the requirement that ‘findings’ be prepared.” Id. Our involuntary treatment statute:

requires that findings be “entered in the record” in involuntary mental health treatment cases. We accept the view that a significant purpose to be served by findings of fact in any type of case is to disclose with specificity the factual basis for the conclusion, in order that there be a clear understanding thereof by the parties and by this [C]ourt.

Id. at 776 (citing Hust v. Hust, 295 N.W.2d 316, 321 (N.D.1980)).

[¶ 12] Preprinted forms are permissible “if appropriately supplemented with specific facts on the face of the' form or otherwise.” Id. However, to adequately examine the factual basis for the district court’s conclusion, sufficient findings are necessary. In this case, “where substantially all of the evidence” except J.S.’s own opinion “supports the order requiring continued hospitalization and treatment, [preparing] findings of fact which disclose ‘clear and convincing’ supporting evidence should not be an insurmountable task.” Id.

[¶ 13] The district court’s limited findings do not identify the evidentiary basis upon which the conclusions were made. We remand with instructions for the district court to enter more detailed findings to support the conclusions that J.S. was chemically dependent or mentally ill and poses a danger to himself or others or to property if treatment is not continued. We retain jurisdiction under N.D.R.App.P. 35(b). See, e.g., Jerry Harmon Motors, Inc. v. First Nat’l Bank & Trust Co., 436 N.W.2d 240, 242 (N.D.1989) (remanding with instructions while retaining jurisdiction).

Ill

[¶ 14] J.S. argues the district court failed to consider the least restrictive conditions required to achieve the treatment goal. See N.D.C.C. § 25-03.1-40(2) (a patient has a right to “the least restrictive conditions necessary to achieve the purposes of treatment”). The district court, in ordering J.S.’s continued treatment, suggested the State Hospital may employ less restrictive means of treatment, if possible.

[¶ 15] In his report, Dr. Pryatel certified at least three non-hospital treatment programs were considered, but alternative treatment is unavailable because J.S.:

denies or justifies the behaviors which caused his commitment and believes others lied to get him in trouble. He denies any illness, mental or physical (high blood pressure and diabetes), and takes medication only because he knows it will be forced if he does not. He openly states he will discontinue medication as soon as he is discharged.

[¶ 16] “In some cases, a reporting doctor may reasonably conclude that less restrictive alternatives to hospitalization simply do not exist.” In the Interest of J.S., 545 N.W.2d 145, 148 (N.D.1996) (citation omitted). Dr. Pryatel’s report, standing alone, supports continued treatment. The record does not, however, contain findings to suggest whether the report, the testimony, or other evidence was used to reach the conclusion that alternative treatment is unavailable.

[¶ 17] J.S. extends his least-restrictive-treatment theory by arguing he should be allowed to move from a treatment ward at the State Hospital to a transitional living home on the hospital campus. J.S. did not testify or call witnesses to support this argument, but relied on the testimony of Dr. Pryatel.

[¶ 18] A patient has the right to the least restrictive conditions necessary to achieve the treatment purposes. See N.D.C.C. § 25-03.1-40(2). When less restrictive treatment is argued, unless there is no issue of material fact, findings are necessary to explain the factual basis for the district court’s conclusion. See In the Interest of T.H., 482 N.W.2d 615, 625 (N.D.1992) (an expert’s explanations must show why continuation of treatment is the least restrictive condition and no less restrictive alternative is appropriate); see also N.D.R.Civ.P. 52(a) (findings are unnecessary if there is no issue of material fact). It is unclear whether the district court concluded there was no issue of material fact. Further, the record does not contain any findings to explain the district court’s conclusions that J.S.’s treatment should continue at the State Hospital and that treatment cannot be effectively administered in an environment less restrictive than a treatment ward.

[¶ 19] In the absence of findings, we decline to presume the least restrictive conditions are not being used by the health professionals charged with the responsibility of treating J.S. to achieve the purposes of his treatment. We note that J.S.’s previous continuing treatment order, dated December 1, 1999, is contained in the record. The order specifically required “efforts to provide alternative treatment ... including Transitional Living at [the] State Hospital.” The order further required the State Hospital to notify counsel for J.S. if alternative treatment was not initiated within six months, and the order stated counsel could “seek a hearing for alternative treatment” if alternatives were not implemented. Regardless of whether an alternative treatment hearing was sought, findings are necessary to support the district court’s conclusions regarding J.S.’s least-restrictive-treatment argument.

IV

[¶ 20] We remand with instructions to make expedited findings of fact relating to the conclusions of law as to whether J.S. is mentally ill or chemically dependent and poses a risk to himself or others or to property, and relating to the conclusions regarding continued treatment and the availability of less restrictive treatment. See In the Interest of Riedel, 353 N.W.2d 773, 776 (N.D.1984) (instructing the district court to enter findings on all pertinent issues).

[¶ 21] WILIAM A. NEUMANN, MARY MUEHLEN MARING, CAROL RONNING KAPSNER, JJ., concur.

VANDE WALLE, Chief Justice,

concurring in part and dissenting in part.

[¶ 22] I agree with the majority that the findings concerning least-restrictive treatment are inadequate. I concur with the majority in remanding that issue for further findings.

[¶ 23] I do not agree that, on this record, the findings J.S. is mentally ill or chemically dependent and poses a risk to himself or others or to property are so flawed as to be legally inadequate. The majority recognizes our “more probing” review under the “clearly erroneous” standard. Interest of K.J.L., 541 N.W.2d 698, 700 (N.D.1996). Although that standard was designed to “balance the competing interests of protecting a mentally ill person and of preserving that person’s liberty,” In Interest of J.S., 530 N.W.2d 331, 333 (N.D.1995), it also requires we more closely probe the record for error. Id. On this record, that probing reveals no error on the part of the trial court in concluding J.S. is in need of treatment. The eviden-tiary bases upon which the trial court made its conclusions are painfully obvious. While I, too, exhort the trial courts to make more specific and detailed findings in these matters, I cannot agree the findings are so deficient as to require a remand. I therefore dissent to part II of the majority opinion and I concur in part III of the majority opinion.

[¶ 24] GERALD W. VANDE WALLE

      . In his brief, J.S. also argues the district court erred by not informing him of his right to appeal. At oral argument, counsel for J.S. conceded the argument was moot because J.S. had timely appealed. We therefore do not address this issue.


author: MILLER, Chief Justice

text:
    2001 SD 6
    In the Matter of the ESTATE OF Lawrence HOLAN, Deceased.
    No. 21373.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 25, 2000.
    Decided Jan. 10, 2001.

      Wally Eklund of Johnson, Eklund, Nicholson & Peterson, Gregory, SD, Attorneys for appellee Dennis Holán.
    Michael W. Strain, Candi Thomson, Morman Law Firm, Sturgis, SD, Attorneys for appellants Judene Holán and Lynette E. Leiferman.
   MILLER, Chief Justice

[¶ 1.] In this probate appeal, we decline to address the Proponents’ constitutional challenge to a jury trial in a will contest. We affirm the trial court’s denial of Proponents’ motion for judgment n.o.v. and its ruling on the procedural order of examination of witnesses.

FACTS

[¶ 2.] Lawrence and Evalyn Holán parented six children. This litigation involves three of the children. Lynette Leiferman and Judene Holán will be referred to collectively as Proponents. Dennis Holán will be referred to as Contestant.

[¶ 3.] Lawrence and Evalyn prepared wills in 1984. Evalyn died in 1991 and later that year Lawrence executed a new will. The 1991 will devised his home in Pukwana, South Dakota to Proponents and his farm property to Contestant, provided Contestant make payments over a fifteen-year period to his siblings equaling the appraised value of the land at the time of Lawrence’s death. The 1991 bequest to Contestant was the same as that contained in the 1984 wills.

[¶ 4.] After Evalyn’s death, Lawrence’s health began to deteriorate and he began to rely on his children, especially Proponents and Contestant, to help him around in his home and to run errands. In 1993, Lawrence executed a codicil to his 1991 will, which reaffirmed the 1991 will, but added a new provision providing for the return to Contestant, upon Lawrence’s death, of rental payments he had made on the rural farm property since 1993. After executing the 1993 codicil, Lawrence delivered several handwritten notes confirming receipt of rental payments from Contestant and directing the payments be returned upon his death.

[¶ 5.] In 1995, Lawrence executed a general power of attorney appointing Proponents his attorneys-in-fact. Through a medical power of attorney, he also gave them the power to make medical decisions on his behalf should he become incapacitated. They never exercised any powers under either document.

[¶ 6.] On January 20, 1997, Lawrence met with his long time attorney to discuss various estate-planning matters. The attorney drafted documents for Lawrence to review with his children. Lawrence met again with his attorney on January 29, 1997 to discuss payment options for Contestant’s bequest under the 1991 will. Contestant and his wife attended the meeting and informed Lawrence that they would not be financially capable of making the payments to his siblings in the amount contemplated in the 1991 will. After this meeting, Lawrence showed the estate planning documents to Proponents. They told Lawrence the documents were “ridiculous” and that it appeared to them his attorney was working for Contestant and not him.

[¶ 7.] On February 3, 1997, Proponent Judene delivered a note she had written, and Lawrence had signed, instructing the attorney that Lawrence wished to maintain his will in its current status and rejected use of the recent estate planning documents the attorney had drafted. A second note in Lawrence’s handwriting instructed the attorney to make some minor changes to the 1991 will. Also on February 3, 1997, at the suggestion of Proponent Lynette, Lawrence sought the advice of another attorney. This attorney drafted a will, which Lawrence executed on March 3, 1997, effectively revoking the 1991 will and 1993 codicil. The 1997 will devised only 80 acres of the rural farm property to Contestant, maintained the bequest of the Pukwa-na home to Proponents and divided the remaining rural farm property among all six of the children.

[¶ 8.] Lawrence died on April 11, 1998 survived by his six children. Proponents, who were named personal representatives in his 1997 will, offered the will for probate. Contestant challenged the will contending it was the product of undue influence and fraud. Proponents moved the court to bifurcate Contestant’s claim for fraud and punitive damages from the will contest and asked the court to strike Contestant’s request for a jury trial. The trial court granted the motion to bifurcate but denied the motion to strike the request for jury trial. The case was tried to a jury which rendered a verdict in favor of Contestant, finding undue influence in the procurement of the 1997 will. The trial court denied Proponents’ motion for judgment notwithstanding the verdict or alternatively a new trial and entered judgment based on the jury verdict. Proponents appeal.

STANDARD OF REVIEW

[¶ 9.] We review a trial court’s ruling on a motion for directed verdict and judgment notwithstanding the verdict under the following standard:

A motion for a directed verdict under SDCL 15-6-50(a) questions the legal sufficiency of the evidence to sustain a verdict against the moving party. Upon such a motion, the trial court must determine whether there is any substantial evidence to sustain the action. The evidence must be accepted which is most favorable to the nonmoving party and the trial court must indulge all legitimate inferences therefrom in his favor. If sufficient evidence exists so that reasonable minds could differ, a directed verdict is not appropriate. The trial court’s decisions and rulings on such motions are presumed correct and this Court will not seek reasons to reverse. A motion for judgment n.o.v. is based on and relates back to a directed verdict motion made at the close of all the evidence. SDCL 15-6-50(b). Thus, the grounds asserted in support of the directed verdict motion are brought before the trial court for a second review. We review the testimony and evidence in a light most favorable to the verdict or the nonmoving party, “then without weighing the evidence [we] must decide if there is evidence which would have supported or did support a verdict[.]”

Bland v. Davison County, 1997 SD 92, ¶ 26, 566 N.W.2d 452, 460 (quoting Sabag v. Continental, 374 N.W.2d 349, 355 (S.D.1985)). Accordingly, we apply the abuse of discretion standard when reviewing the trial court’s ruling. Id. (citation omitted).

DECISION

[¶ 10.] 1. Proponents waived their constitutional argument.

[¶ 11.] Proponents challenge the constitutionality of a provision in the Uniform Probate Code that permits a jury trial “in a formal testacy proceeding and any proceeding in which any controverted question of fact arises as to which any party has a constitutional right to trial by jury.” SDCL 29A-1-306. They assert that the statute impermissibly takes away the power granted to the judiciary implicit in the South Dakota State Constitution and South Dakota case law.

[¶ 12.] However, Proponents failed to notify the South Dakota Attorney General of their constitutional challenge as mandated by SDCL 15-6-24(c). Proponents did send the attorney general a copy of their notice of appeal to this Court and a transcript order, as well as a copy of their brief. However, these items do not constitute notice of a constitutional challenge contemplated under SDCL 15-6-24(e).

[¶ 13.] Although 15-6-24(c) is a rule of procedure and not jurisdiction, we have often stated, “[o]rdinarily, we will not rule on the constitutionality of a statute unless the attorney general has been notified. When an adjudication of unconstitutionality may seriously affect the general public, it is proper for the attorney general to appear on behalf of the Legislature and the people.” Kern v. City of Sioux Falls, 1997 SD 19, ¶ 13, 560 N.W.2d 236, 239 (citing West Two Rivers Ranch v. Pennington County, 1996 SD 70, ¶ 15, 549 N.W.2d 683, 687; Sioux Falls Argus Leader v. Young, 455 N.W.2d 864, 870 (S.D.1990); Sharp v. Sharp, 422 N.W.2d 443, 446 (S.D.1988)). The stated purpose of the rule is to permit the attorney general to intervene and fulfill his constitutional responsibility of defending the provisions of the constitution.

[¶ 14.] We will not address the constitutional challenge due to Proponent’s failure to notify the attorney general. Id. The issue is too significant and important to the probate jurisprudence of this state to do so without giving the attorney general the opportunity to defend the challenged provisions.

[¶ 15.] 2. The evidence supports the jury’s verdict.

[¶ 16.] Contestant had the burden to prove the four elements of undue influence by a preponderance of the evidence:

Under our settled law, to establish the existence of undue influence a will contestant must prove four elements by a preponderance of the evidence: “(1) decedent’s susceptibility to undue influence; (2) opportunity to exert such influence and effect the wrongful purpose; (3) a disposition to do so for an improper purpose; and (4) a result clearly showing the effects of undue influence.”

Matter of Estate of Unke, 1998 SD 94, ¶ 12, 583 N.W.2d 145, 148 (citing Matter of Estate of Elliott, 537 N.W.2d 660, 662-63 (S.D.1995)); see generally SDCL 29A-3-407. As the contrary factual determinations of the jury and judge demonstrate, the evidence in this case was close.

[¶ 17.] It is not our place to weigh the evidence or credibility in this case. Our role is simply to ascertain whether evidence exists to support the jury verdict. We find that in this case there was.

[¶ 18.] When viewing the evidence in a light most favorable to the verdict, we recognize the jury heard testimony regarding the close nature of the relationship between Proponents and their father. The jury heard evidence involving the suspicious circumstances surrounding Lawrence’s abrupt change in attorneys, and Proponents’ involvement in the 1997 will drafting. Furthermore, the jury heard evidence about Lawrence’s actions after executing the disputed 1997 will, which were inconsistent with that will.

[¶ 19.] We find there is sufficient evidence that clearly supports the verdict in favor of Contestant. The trial court did not abuse his discretion in denying Proponents’ motion for judgment notwithstanding the verdict or alternatively a new trial.

[¶ 20.] 3. Circuit court did not abuse its discretion in denying Proponents’ counsel cross-examination after Proponents examination during Contestant’s case-in-chief.

[¶ 21.] The scope, manner and order of cross-examination are matters within the discretion of the circuit court. SDCL 19-14-18; SDCL 19-14-19. Proponents recognize and we agree that the circuit court may permit cross examination by a party’s own counsel after adverse examination during the opposing party’s case-in-chief, but this is purely discretionary with the circuit court. We will not reverse absent a showing of an abuse of discretion. We find no abuse of discretion in this case.

[¶ 22.] SABERS, AMUNDSON, KONENKAMP, and GILBERTSON, Justices, concur.

       Contrary to the finding of the jury, however, the trial court entered advisory findings of fact and conclusions of law holding that the 1997 will should be probated because it was not the product of undue influence. The trial court’s stated purpose for doing so was to prevent the need to remand the case to him for trial if we had reversed his decision on the constitutional issue.