IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2024 ND 235
Kevin Michael Hoff, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee
Nos. 20240158 & 20240159
Appeal from the District Court of Stutsman County, Southeast Judicial District,
the Honorable Troy J. LeFevre, Judge.
AFFIRMED.
Opinion of the Court by Bahr, Justice.
Tyler J. Morrow, Grand Forks, ND, for petitioner and appellant.
Frederick R. Fremgen, State’s Attorney, Jamestown, ND, for respondent and
appellee.
Hoff v. State
Nos. 20240158 & 20240159
Bahr, Justice.
[¶1] Kevin Hoff appeals from a district court judgment denying his application
for postconviction relief and his N.D.R.Civ.P. 60(b) motion. On appeal, Hoff
argues the court erred in denying his application for postconviction relief and
Rule 60(b) motion. Specifically, Hoff argues the court erred in allowing witness
testimony in violation of a sequestration request; erred in finding the application
was barred by the two-year limitation; and erred in finding his ineffective
assistance of counsel claim was barred by res judicata and misuse of process. We
affirm the district court judgment.
I
[¶2] In 2018, Hoff pled guilty to murder, a class AA felony. The district court
sentenced Hoff to life without parole.
[¶3] Since his conviction, Hoff has filed three applications for postconviction
relief. In May 2020, acting without counsel, Hoff filed his first application
claiming ineffective assistance of counsel and newly discovered evidence. With
the assistance of counsel, Hoff filed an amended application abandoning the
newly discovered evidence claim and advancing the argument his trial counsel
failed to advise him of available defenses. The application was denied, and Hoff
appealed. This Court affirmed. See Hoff v. State, 2022 ND 77,
973 N.W.2d 3.
[¶4] Hoff filed a second application without counsel in December 2021. In the
application, Hoff claimed his trial counsel incorrectly advised him the defense of
others defense did not apply to his case. The State moved to dismiss the second
application on the ground it was time barred by the two-year limitation and
moved for summary disposition on grounds of res judicata and misuse of
process. See N.D.C.C. §§ 29-32.1-01(2), 29-32.1-06(3), 29-32.1-12. Hoff contended
his trial counsel’s testimony from the first application constituted newly
discovered evidence, which excepted his application from the two-year
limitation. The State responded arguing the testimony was not a valid exception.
In April 2022, the district court held a hearing on the State’s motions. Hoff
1
testified he was diagnosed in November 2020 with a mental disease that
precluded him from pursuing the defense of others defense. The court granted
the State’s motions and dismissed the second application, concluding Hoff did
not meet an exception to the two-year limitation and his claim was barred by res
judicata and misuse of process. Hoff did not appeal.
[¶5] In his third application, Hoff claimed mental disease excepted him from
the two-year limitation, his trial counsel incorrectly advised him the defense of
others defense was not applicable, and newly discovered evidence existed. Hoff
moved under N.D.R.Civ.P. 60(b) to vacate the order denying his second
application. The State moved to dismiss the application based on the two-year
limitation and moved for summary disposition based on res judicata and misuse
of process. The district court consolidated Hoff’s Rule 60(b) motion with his third
application for postconviction relief and held an evidentiary hearing. The court
granted the State’s motion to dismiss based on the two-year limitation, granted
the State’s motion for summary disposition based on res judicata and misuse of
process, denied Hoff’s application, and dismissed Hoff’s Rule 60(b) motion.
II
[¶6] Hoff argues the district court abused its discretion in allowing witness
testimony in violation of a sequestration order.
[¶7] This Court’s review of a district court’s evidentiary ruling is wellestablished:
This Court reviews a district court’s evidentiary ruling under an
abuse of discretion standard. A district court has broad discretion
on evidentiary matters, and we will not overturn its admission or
exclusion of evidence on appeal unless that discretion has been
abused. A district court abuses its discretion when it acts arbitrarily,
capriciously, or unreasonably, or when its decision is not the
product of a rational mental process or if it misinterprets or
misapplies the law.
State v. Yousif, 2022 ND 234, ¶ 5,
982 N.W.2d 870 (internal citations omitted).
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[¶8] During the State’s cross-examination of Hoff, the district court informed
the parties that a doctor appearing to testify electronically was in the waiting
room. The court asked the parties whether the doctor should be sequestered.
Hoff responded, “I would not move to sequester, your Honor.” The court asked
the State, “[D]o you want the doctor in at this time or do you want him
sequestered?” The State responded, “Sequestered is best[.]” The court
sequestered the doctor. After testimony from Hoff and the doctor, the State
called another witness who was in the courtroom throughout the proceeding.
Hoff objected, arguing the witness’s testimony violates the sequestration order.
The court explained the sequestration order was applicable only to the doctor,
stated “there was no formal motion for sequestration[,]” and overruled the
objection.
[¶9] Rule 615, N.D.R.Ev., states, “At a party’s request, the court must order
witnesses excluded so that they cannot hear other witnesses’ testimony, or the
court may do so on its own.” Hoff claims a sequestration request under Rule 615
is an all-or-nothing rule that requires all witnesses be sequestered.
[¶10] When interpreting rules, this Court applies principles of statutory
construction. State v. Welch, 2019 ND 179, ¶ 7,
930 N.W.2d 615. Section 1-01-35,
N.D.C.C., provides, “Words used in the singular number include the plural and
words used in the plural number include the singular, except when a contrary
intention plainly appears.” Nothing in Rule 615 shows an intention that a party
cannot request a single witness be sequestered. Thus, although Rule 615 uses the
plural term “witnesses,” the plural term “witnesses” is interpreted to include the
singular term “witness.”
[¶11] In this case, the State’s comment “Sequestered is best” was in response to
the district court’s question, “[D]o you want the doctor in at this time or do you
want him sequestered?” The State did not motion for all witnesses to be
sequestered; the State only requested the doctor be sequestered, and the doctor
was the only witness the court ordered sequestered.
[¶12] We conclude the sequestration order did not apply to all witnesses, and
the district court did not abuse its discretion in allowing the witness to testify.
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III
[¶13] 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. Vogt v. State,
2022 ND 163, ¶ 5,
978 N.W.2d 727. “When we review a district court’s decision
in a post-conviction proceeding, questions of law are fully reviewable. The
district court's findings of fact in a post-conviction proceeding will not be
disturbed on appeal unless they are clearly erroneous under N.D.R.Civ.P. 52(a).”
Id.
A
[¶14] Hoff identified one issue as “[w]hether the district court erred by denying
[his] petition for post-conviction relief and Rule 60 Motion.” In his statement of
case, Hoff writes, “This is an appeal from the Stutsman County Order Denying
Application for Post-Conviction Relief and Rule 60 Motion.” He later notes he
filed a Rule 60(b) motion on September 23, 2022. In his statement of facts, Hoff
writes, “On January 30, 2024, a consolidated motion hearing was held addressing
two matters, the Rule 60(b) Motion in 47-2021-CV-00712 and a Post-Conviction
Relief Application in 47-2022-CV-00458, both filed by the petitioner.”
[¶15] Other than identifying the issue and noting he filed the motion, Hoff’s brief
makes no further mention of his Rule 60(b) motion. Specifically, as to the district
court’s denial of Hoff’s Rule 60(b) motion, Hoff’s brief does not contain his
“contentions and the reasons for them, with citations to the authorities” on which
he relies, or “a concise statement of the applicable standard of review.”
N.D.R.App.P. 28(b)(7).
[¶16] Issues not briefed on appeal are waived. See State v. Glaum, 2024 ND 47,
¶ 42,
4 N.W.3d 540 (“When a party fails to provide supporting argument for an
issue he is deemed to have waived that issue. This Court does not consider
arguments that are not adequately articulated, supported, and briefed on
appeal.”); see also Montana-Dakota Utils. Co. v. Behm,
2020 ND 234, ¶ 11,
951
N.W.2d 208 (“We do not address inadequately briefed issues.”). Because Hoff
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did not brief whether the district court erred in denying his Rule 60(b) motion,
Hoff waived the issue and we decline to address it.
B
[¶17] Hoff argues his postconviction relief application was not barred by the
two-year limitation in N.D.C.C. § 29-32.1-01(2).
[¶18] Section 29-32.1-01(2), N.D.C.C., requires applications for postconviction
relief to “be filed within two years of the date the conviction becomes final.” The
statute permits a court to consider an application that would otherwise be barred
by the limitation period if “[t]he petitioner establishes that the petitioner suffered
from a physical disability or mental disease that precluded timely assertion of
the application for relief[.]” N.D.C.C. § 29-32.1-01(3)(a)(2).
[¶19] Hoff was originally sentenced on January 10, 2019. A notice of appeal from
a criminal judgment must be filed within 30 days after the entry of judgment.
N.D.R.Crim.P. 37(b). Hoff did not appeal, and his conviction became final on
February 11, 2019.1 Under N.D.C.C. § 29-32.1-01(2), Hoff could not file an
application for postconviction relief after February 11, 2021. Hoff’s third
application was filed September 12, 2022. Absent an exception under N.D.C.C.
§ 29-32.1-01(3), Hoff’s third application was barred by N.D.C.C. § 29-32.1-01(2).
[¶20] The district court thoroughly reviewed Hoff’s actions and filings in the
underlying case and subsequent proceedings, Hoff’s evaluations, and the
evidence and testimony. After doing so, the court held, “Hoff has demonstrated
on several occasions that any physical disability or mental disease he may have
does not preclude him from filing and serving legal pleadings[.]” The court
explained Hoff, acting on his own behalf, filed court documents numerous times,
including his first and second postconviction relief applications, responses to the
State’s motions, and appellate briefs. The court further noted Hoff testified and
1 Hoff’s conviction became final on Saturday, February 9, 2019. However, because this date falls
on the weekend, the final conviction runs to the following Monday, February 11, 2019. See
N.D.R.Crim.P. 45(a)(1)(c).
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provided arguments on his own behalf. “Before, during, and after the murder,”
the court found, “Hoff demonstrated the ability to take bold action advocating
for himself.” The court determined Hoff failed to establish a physical disability
or mental disease precluded timely assertion for relief in his postconviction relief
application.
[¶21] We conclude the district court’s findings are supported by the evidence
and that the court did not err in holding Hoff did not demonstrate he meets the
exception in N.D.C.C. § 29-32.1-01(3)(a)(2). We further conclude the court did not
err in holding Hoff’s third application for postconviction relief was precluded by
the two-year limitation in N.D.C.C. § 29-32-01(2).
C
[¶22] Hoff argues the district court erred in holding res judicata and misuse of
process apply to his ineffective assistance of counsel claim. Because we affirm
the court’s denial of Hoff’s application on the ground it is precluded under
N.D.C.C. § 29-32-01(2), it is unnecessary to address this aspect of the court’s
order and we decline to do so.
IV
[¶23] We have considered Hoff’s other arguments and conclude they are
unnecessary to our decision or are without merit. We affirm the district court’s
judgment denying Hoff’s third application for postconviction relief and Rule
60(b) motion.
[¶24] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
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