HENDRICKS v. STATE (2026)

[¶1] Dustin Eric Hendricks appeals from a district court judgment dismissing his application for postconviction relief. On appeal, Hendricks argues the district court erred by summarily dismissing his application because genuine issues of material fact exist regarding whether his attorney provided ineffective assistance of counsel by improperly advising him he could appeal after pleading guilty, and whether he would have persisted in his plea of not guilty without the improper advice. He also argues the court erred by summarily dismissing his claim that the interests of justice require vacation of the conviction or sentence based on the existence of evidence not previously presented and heard because the State did not move for summary dismissal of that claim. We reverse the district court judgment, and remand for further proceedings consistent with this opinion.

I

[¶2] Hendricks pleaded guilty to reckless endangerment—extreme indifference with a firearm, a class C felony, with a two-year mandatory term of imprisonment. He also pleaded guilty to fleeing or attempting to elude a peace officer and unlawful possession of a firearm by a violent offender, both class C felonies. The pleas followed a negotiated plea agreement.

[¶3] Hendricks filed an application for postconviction relief and a supplemental application, claiming ineffective assistance of counsel and the existence of evidence not previously presented and heard. The supplemental application included an “Affidavit of Dustin Hendricks,” stating “Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct.” Hendricks stated his counsel “informed [him] that after [signing] the deal for 2 years we could appeal all the evidence. Had I known [my attorney] was misinforming me at the time I would have never agreed to the 2 years and [would have] proceeded to go to trial.” On September 10, 2025, the district court scheduled an evidentiary hearing for February 10, 2026.

[¶4] On October 3, 2025, the State responded in opposition to the application. On October 6, 2025, the State moved to “dismiss” the application, arguing Hendricks “failed to create any genuine issues of material fact[.]” Hendricks did not respond to the “motion to dismiss.” However, Hendricks's supplemental application, filed before the State's “motion to dismiss,” contains argument that “summary disposition” is not appropriate and offers Hendricks's “affidavit” in support of his claims. On December 12, 2025, the district court granted the State's motion to dismiss, and denied and dismissed Hendricks's application for postconviction relief. The court entered judgment without holding an evidentiary hearing. Hendricks appeals.

II

[¶5] “Postconviction relief proceedings are civil in nature and governed by the North Dakota Rules of Civil Procedure to the extent the rules do not conflict with the Uniform Postconviction Procedure Act, N.D.C.C. ch. 29-32.1.” Kraft v. State, 2025 ND 155, ¶ 5, 25 N.W.3d 777 (citation omitted). “Questions of law are fully reviewable on appeal of a postconviction proceeding.” Urrabazo v. State, 2024 ND 67, ¶ 6, 5 N.W.3d 521 (cleaned up).

III

[¶6] The State moved to “dismiss” Hendricks's application for postconviction relief, interchangeably referring to summary dismissal and summary disposition criteria. Summary dismissal and summary disposition are distinct procedures under N.D.C.C. §§ 29-32.1-09 and 29-32.1-09.1. See Kraft, 2025 ND 155, ¶¶ 6-8, 25 N.W.3d 777 (detailing the procedures of summary dismissal and summary disposition). Summary dismissal under N.D.C.C. § 29-32.1-09(1) authorizes the district court “on its own motion” to summarily dismiss an application for postconviction relief “on any and all issues raised in the application before any response by the state.” Summary disposition under N.D.C.C. § 29-32.1-09.1(1) authorizes the court to summarily dispose of an application for postconviction relief after “motion by either party” if the moving party shows “no genuine issues exist as to any material fact[.]”

[¶7] The State's motion argued Hendricks “failed to create any genuine issues of material fact” because he could not have shown a reasonable expectation of a better outcome at trial. In support of its motion, the State offered information outside the application. Although titled as a motion to dismiss, the State's motion was a motion for summary disposition. See, e.g., Kraft, 2025 ND 155, ¶ 11, 25 N.W.3d 777 (summary disposition argues there is no genuine issue as to any material fact); N.D.C.C. § 29-32.1-09.1(1) (“The court may grant a motion by either party for summary disposition if the application, pleadings, any previous proceeding, discovery, or other matters of record show that no genuine issues exist as to any material fact and the moving party is entitled to judgment as a matter of law.”); Gonzalez v. State, 2019 ND 47, ¶ 10, 923 N.W.2d 143 (when summarily dismissing an application the court may consider “only the information in the application”).

IV

[¶8] The State's motion to dismiss and response to the application were limited to Hendricks's claim of ineffective assistance of counsel. The State did not brief or argue that Hendricks failed to create a genuine issue of material fact on his claim alleging the interests of justice require vacation of the conviction or sentence under N.D.C.C. § 29-32.1-01(1)(e) based on the existence of evidence not previously presented and heard. The district court erred by summarily disposing of Hendricks's claim under N.D.C.C. § 29-32.1-01(1)(e) because the State did not move for summary disposition of that claim. See, e.g., Pederson v. State, 2026 ND 1, ¶ 26, 30 N.W.3d 319 (concluding court erred in granting summary disposition on a claim for which the State did not move for summary disposition).

V

[¶9] “When arguing ineffective assistance of counsel, the applicant has the burden to establish grounds for relief.” Morales v. State, 2019 ND 137, ¶ 6, 927 N.W.2d 401. “The applicant must meet both prongs of the Strickland test.” Id. (citing Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). “Prong one is to show that counsel's representation fell below an objective standard of reasonableness, and prong two is to show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. (cleaned up). “The showings must specify how and where counsel was incompetent and the probable different result.” Id. “To meet the second prong of the Strickland test in the context of a guilty plea, an applicant must establish there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Abdi v. State, 2021 ND 110, ¶ 12, 961 N.W.2d 303.

[¶10] “For the summary disposition of a petition for postconviction relief, the moving party bears the burden of showing there is no dispute as to either the material facts or the inferences to be drawn from undisputed facts, and that the movant is entitled to judgment as a matter of law.” Almklov v. State, 2025 ND 27, ¶ 6, 17 N.W.3d 583 (cleaned up). “A movant may discharge his burden of showing there is no genuine issue of material fact by pointing out to the trial court there is an absence of evidence to support a petitioner's case.” Vandeberg v. State, 2003 ND 71, ¶ 6, 660 N.W.2d 568.

[¶11] In support of its motion, the State asserted putative facts without citing “pleadings, any previous proceeding, discovery, or other matters of record” to support the factual assertions. N.D.C.C. § 29-32.1-09.1(1) (“The court may grant a motion by either party for summary disposition if the application, pleadings, any previous proceeding, discovery, or other matters of record show that no genuine issues exist as to any material fact and the moving party is entitled to judgment as a matter of law.”) (emphasis added). Summary disposition requires a showing by “matters of record.” The State failed to cite a record of earlier proceedings or otherwise provide evidentiary support for its motion. The State failed to show the court there is no record evidence to support the claim and did not allege “there is nothing the State can point to in support of its assertion no such evidence exists[.]” Vandeberg, 2003 ND 71, ¶ 6, 660 N.W.2d 568. As a result, the State failed to meet its initial burden to show no dispute of material facts or the inferences to be drawn from undisputed facts. Because the State failed to meet its burden, the district court erred by summarily disposing of the ineffective assistance of counsel claim.

VI

[¶12] The district court erred by granting the State's motion and denying Hendricks's application. We reverse the district court judgment, and remand for further proceedings consistent with this opinion.

Friese, Justice.

[¶13] Lisa Fair McEvers, C.J. Jerod E. Tufte Jon J. Jensen Douglas A. Bahr Mark A. Friese