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Larry A. Froistad v. State of North Dakota
Case Number: 2021 ND 92
Judge: Jon J. Jensen
Court: IN THE SUPREME COURT
STATE OF NORTH DAKOTA
Plaintiff's Attorney: Andrew J. Q. Weiss, State’s Attorney
Bismarck, North Dakota - Criminal defense attorney represented Larry Froistad with a murder charge.
In 1998, Froistad pled guilty to murdering his daughter by setting fire to
his residence when she was inside. In 2000, Froistad filed his first application
for postconviction relief, arguing: (1) the district court failed to honor his
request to withdraw his guilty plea, (2) the court failed to establish a factual
basis for his guilty plea, (3) the court failed to ensure his plea was voluntary,
(4) the court violated his right to be present during the proceedings, and (5) he
received ineffective assistance of counsel. The district court denied relief, and
we affirmed. See Froistad v. State, 2002 ND 52, 641 N.W.2d 86.
[¶3] In 2012, Froistad filed a second application for postconviction relief,
arguing the State withheld exculpatory evidence and newly discovered
evidence warranted a new trial. The district court summarily denied the
application, and we summarily affirmed. See Froistad v. Schmalenberger, 2013
ND 42, 832 N.W.2d 334.
[¶4] In January 2020, Froistad filed his third application for postconviction
relief to withdraw his guilty plea under N.D.R.Crim.P. 11 and N.D.C.C. ch. 29-
32.1. The State responded and raised the affirmative defenses of res judicata
and misuse of process. After an evidentiary hearing, the district court denied
the application because it was untimely under N.D.C.C. § 29-32.1-01, and the
claims were barred by res judicata and misuse of process under N.D.C.C. § 29-
32.1-12. The court also concluded the alleged newly discovered evidence of false
confessions, when reviewed in light of the evidence as a whole, would not
establish that Froistad did not commit murder.2
[¶5] Froistad argues the district court erred by concluding his claims were
barred by res judicata. “Generally, the applicability of res judicata is a question
of law and is fully reviewable on appeal.” State v. Atkins, 2019 ND 145, ¶ 12,
928 N.W.2d 441.
[¶6] Froistad moved to withdraw his guilty plea under N.D.R.Crim.P. 11 and
N.D.C.C. ch. 29-32.1. “When a defendant applies for post-conviction relief
seeking to withdraw a guilty plea, the application is treated as one made
under N.D.R.Crim.P. 11(d).” State v. Gress, 2011 ND 233, ¶ 7, 807 N.W.2d 567.
Under N.D.R.Crim.P. 11(d)(2), the defendant cannot withdraw a guilty plea
after the court has imposed a sentence, unless the defendant proves
withdrawal is necessary to correct a manifest injustice. We have held that
“even when a motion following conviction is denominated as a motion under
the North Dakota Rules of Criminal Procedure, the provisions of the Uniform
Postconviction Procedure Act, N.D.C.C. ch. 29-32.1, are applicable.” Atkins,
2019 ND 145, ¶ 11.
[¶7] Section 29-32.1-12, N.D.C.C., provides, in relevant part:
1. An application for postconviction relief may be denied on the
ground that the same claim or claims were fully and finally
determined in a previous proceeding.
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 postconviction
“Post-conviction proceedings are not intended to allow defendants multiple
opportunities to raise the same or similar issues, and defendants who
inexcusably fail to raise all of their claims in a single post-conviction
proceeding misuse the post-conviction process by initiating a subsequent
application raising issues that could have been raised in the earlier 3
proceeding.” Atkins, 2019 ND 145, ¶ 12. In Atkins, we barred the criminal
defendant’s N.D.R.Crim.P. 11 claims under res judicata and misuse of process.
Id. at ¶¶ 14, 16.
[¶8] Froistad’s latest application for postconviction relief makes many of the
same claims he made in his two previous applications, which the district court
denied and we affirmed.
[¶9] First, Froistad claims his guilty plea was not supported by an adequate
factual basis, he moved to withdraw his plea, and the district court abused
its discretion by not granting his motion to withdraw his plea, further inquire
into the matter, or hold a hearing. Froistad alleged in his first application for
postconviction relief that the district court failed to honor his request to
withdraw his guilty plea and failed to establish a factual basis for his guilty
plea. We concluded the court did not err in finding Froistad made no request
to withdraw his guilty plea and in finding a sufficient factual basis existed.
Froistad v. State, 2002 ND 52, ¶¶ 16, 24.
[¶10] Second, Froistad asserts his guilty plea was involuntary. He made this
claim in his first application, and we concluded the district court did not err in
finding his plea was voluntary. Froistad v. State, 2002 ND 52, ¶ 31. Third,
Froistad claims he received ineffective assistance of counsel because counsel
failed to obtain a psychiatric evaluation of him and inform the court of his
desire to withdraw his plea. We addressed this claim on appeal of his first
application, concluding the court did not err in finding Froistad did not suffer
from ineffective assistance of counsel. Id. at ¶¶ 38, 41.
[¶11] Fourth, Froistad contends the State withheld exculpatory evidence in
violation of Brady v. Maryland, 373 U.S. 83 (1963). This was the subject of his
second application for postconviction relief. We summarily affirmed the district
court’s denial of relief. Froistad v. Schmalenberger, 2013 ND 42, ¶ 1. Because
these four claims were fully and finally determined in previous proceedings,
they are barred by res judicata. See N.D.C.C. § 29-32.1-12(1).
[¶12] Froistad claims he was incompetent to plead guilty, and the district court
should have ordered a competency evaluation on its own motion. These claims 4
are similar to the issue of whether Froistad’s plea was knowing and voluntary,
which was raised in the first application, rejected by the district court, and
affirmed by this Court. However, to the extent they differ, Froistad inexcusably
failed to raise these claims in his previous applications for postconviction relief.
Although the district court concluded these claims were barred by res judicata,
as opposed to a misuse of process, such is not reversible error. See Myers v.
State, 2017 ND 66, ¶ 10, 891 N.W.2d 724 (stating that “[w]e will not set aside
a district court’s decision simply because the court applied an incorrect reason,
if the result is the same under the correct law and reasoning”).
[¶13] Froistad argues the district court erred by not allowing him to withdraw
his guilty plea due to the existence of newly discovered evidence. He asserts
the following is newly discovered evidence: (1) a “new understanding of the
prevalence of false confessions, along with Dr. [Bruce] Frumkin’s expert
opinion regarding Froistad’s confession”; (2) Dr. Michael Farnsworth’s
evaluation, report, and expert opinion that “Froistad’s confessions were false”;
(3) a “new understanding of computer mediated communication, which cannot
be understood in the same way we understand other forms of communication,”
along with Dr. Nicholas Bowman’s expert opinion that “Froistad’s online
confessions are unreliable as reflective of the truth”; and (4) Clare Hochhalter’s
opinion that Froistad did not commit murder.
[¶14] The district court found that the study of false confessions is not a new
science. The testimony at the evidentiary hearing is consistent with the court’s
finding. Dr. Frumkin testified to the study of false confessions, stating “since
the mid-’90s and late 1990s, there’s been a lot of research out there and a lot
of workshops and conferences and publications.” Dr. Farnsworth noted in his
psychiatric report that the field of psychiatry has not progressed substantially
in the understanding of psychosis or treatment since 1998. Dr. Bowman
testified that the study of computer-mediated communication existed in 1998,
and was “established” by the early to mid-2000s. Although some of these areas
of study are now more developed, they existed prior to Froistad’s first
application for postconviction relief in 2000, and all areas of study were wellestablished by his second application in 2012. Thus, without deciding whether
in other circumstances this information may constitute newly discovered 5
evidence, we conclude Froistad inexcusably failed to raise these claims in his
previous applications for postconviction relief, and are barred as a misuse of
the postconviction process. See N.D.C.C. § 29-32.1-12(2)(a).
[¶15] Clare Hochhalter, who was the prosecutor assigned to Froistad’s federal
case in 1998, also testified at the evidentiary hearing and submitted an
affidavit. Froistad argues Hochhalter’s opinion on his culpability is newly
discovered evidence. The district court found:
On October 30, 2012, attorneys for Froistad filed a “Motion to
Discover Newly Discovered Evidence.” The newly discovered
evidence was that of a letter/email from then Assistant U.S.
Attorney Clare Hochhalter which basically reiterates much of
the testimony that now Magistrate Clare Hochhalter testified to
in front of this Court. The entire record in front of Judge Anderson
and the letter/email from Clare Hochhalter went up before
the North Dakota Supreme Court in the case of Froistad v.
Schmalenberger, 2013 ND 42, 832 N.W.2d 334.
Froistad does not dispute that Hochhalter’s letter was a part of the record on
appeal of the denial of his second application for postconviction relief. We
summarily affirmed the district court’s denial of his second application.
Froistad v. Schmalenberger, 2013 ND 42, ¶ 1. At oral argument, Froistad,
through counsel, conceded his prior postconviction counsel was aware of
Hochhalter’s opinion but simply chose not to have him testify, assuming it was
related to Touhy regulations, which limit a federal employee’s ability to testify.
Hochhalter testified he told prior postconviction counsel about his opinion and
advised him about the Touhy regulations, and he was never contacted again.
Froistad assumes this was due to the barriers that the Touhy regulations posed
for prior counsel, but he did not call prior counsel to testify to that assumption.
Therefore, even assuming Hochhalter’s opinion on Froistad’s culpability can
qualify as newly discovered evidence, the claim is barred by res judicata and
misuse of process.
[¶16] Froistad asserts the doctrine of res judicata does not apply where it
would result in a manifest injustice. For support, Froistad cites Riverwood
Commercial Park, LLC v. Standard Oil Co., Inc., 2007 ND 36, ¶ 14, 729 N.W.2d 6
101, for the proposition that “[i]n analyzing these issues [of res judicata and
collateral estoppel], we keep in mind the admonition that the doctrines should
apply as fairness and justice require, and should not be applied so rigidly as to
defeat the ends of justice or to work an injustice.” He also cites a number of
cases from other jurisdictions that he claims provide a “manifest injustice
exception to the res judicata bar.” In Lobato v. Taylor, 70 P.3d 1152, 1165-67
(Colo. 2003), the Supreme Court of Colorado acknowledged such an exception,
but ultimately concluded it did not apply in that case, and highlighted the
importance of the application of res judicata:
In barring the relitigation of tried matters, res judicata serves
distinct and important public and private values. As the United
States Supreme Court has stated, res judicata serves “the dual
purpose of protecting litigants from the burden of relitigating an
identical issue with the same party or his privy and of promoting
judicial economy by preventing needless litigation.” Parklane
Hosiery Co. v. Shore, 439 U.S. 322, 326, 99 S. Ct. 645, 58 L.Ed.2d
552 (1979) (citations omitted). Underlying these purposes of
finality and efficiency is the vital interest in preserving the
integrity of the judicial system. Wright, Miller, & Cooper, Federal
Practice and Procedure: Jurisdiction 2d § 4403 at 23. Specifically,
if one matter could be easily relitigated with inconsistent results,
judicial integrity would be compromised and the value of and
respect for court rulings would be seriously devalued. Although
exceptions to the application of res judicata have been allowed in
instances where such application would undermine an important
state public policy or result in manifest injustice, United States v.
LaFatch, 565 F.2d 81, 83 (6th Cir. 1977), after the United States
Supreme Court’s decision in Federated Dep’t Stores, Inc. v. Moitie,
452 U.S. 394, 401, 101 S. Ct. 2424, 69 L.Ed.2d 103 (1981), such
exceptions are extremely rare.
Lobato, 70 P.3d at 1165-66. Although we have said the doctrine of res judicata
should apply as fairness and justice require, we have not carved out a “manifest
injustice exception” to res judicata. On the facts of this case, fairness and
justice do not require a deviation from the application of res judicata.
[¶17] We conclude Froistad’s claims were either fully and finally determined
in a previous postconviction proceeding or he inexcusably failed to raise the 7
claim. See N.D.C.C. § 29-32.1-12; see also State v. Johnson, 1997 ND 235, ¶ 13,
571 N.W.2d 372 (stating “a defendant is not entitled to repetitious postconviction relief when the contentions raised on appeal were ‘simply variations’
of previous arguments”). Accordingly, his claims are barred.
[¶18] We need not address whether the district court’s alternative grounds for
denying relief were in error, because the court did not err in concluding
Froistad’s claims are barred by res judicata and misuse of process. We have
considered the remaining issues and conclude they are either without merit or
unnecessary to our decision.
Outcome: The order denying Froistad’s application for postconviction relief to
withdraw his guilty plea is affirmed.