Abdi v. State

961 N.W.2d 303

Bashir Bare ABDI, Petitioner and Appellant

v.STATE of North Dakota, Respondent and Appellee

No. 20200341

Supreme Court of North Dakota.

FILED JUNE 24, 2021

Kiara C. Kraus-Parr, Grand Forks, ND, for petitioner and appellant.

James A. Hope, Assistant State's Attorney, Dickinson, ND, for respondent and appellee; submitted on brief.

McEvers, Justice.

[¶1] Bashir Bare Abdi appeals from a district court order denying his application for post-conviction relief, seeking to withdraw his guilty plea. On appeal, Abdi argues the court erred because he received ineffective assistance of counsel, and as a result his plea was not knowingly, intelligently, and voluntarily made. Specifically, Abdi argues he would not have entered a plea of guilty had he been properly advised on the virtual certainty of deportation. We affirm.

I

[¶2] Abdi was charged with luring minors in violation of N.D.C.C. § 12.1-20-05.1, a class B felony, on January 30, 2019. This charge resulted from Abdi's alleged communications with a person he believed to be a fourteen year-old girl, but was in fact an undercover agent, after Abdi arranged to engage in sexual activity with her in exchange for a candy bar.

[¶3] An initial appearance hearing was held on January 30, 2019. Abdi's native language is Somali, and a Somali-speaking interpreter's services were engaged for the hearing. At the hearing, the district court informed Abdi that deportation could result from being convicted or pleading guilty on these charges, and Abdi indicated he understood through his interpreter. On August 5, 2019, Abdi pleaded guilty to an amended charge of corruption or solicitation of minors, a class C felony.

[¶4] Abdi filed an application for post-conviction relief on August 11, 2020. In his application, Abdi argued he received ineffective assistance of counsel because his attorney did not properly advise him of the immigration consequences of pleading guilty and therefore his plea was not knowingly, intelligently, and voluntarily made.

[¶5] On November 2, 2020, a post-conviction evidentiary hearing was held, and Abdi's trial counsel testified. Counsel stated that he discussed potential immigration consequences with Abdi in their first meeting. Counsel further testified he told Abdi "that if he either pled guilty or was convicted of the charges that there would be immigration consequences, that it was a deportable offense, and that in all likelihood he would be taken into custody." Counsel stated he had multiple conversations with Abdi about immigration consequences throughout the course of his representation.

[¶6] On November 9, 2020, the district court denied Abdi's application for post-conviction relief. The court found Abdi's trial counsel was effective because he had advised Abdi of the potential immigration consequences of pleading guilty, and additionally found Abdi failed to establish prejudice. The court also found Abdi's plea was knowing, intelligent, and voluntary, stating Abdi was informed of the consequences of pleading guilty by his counsel and the court prior to entering his plea.

II

[¶7] On appeal, Abdi argues his attorney did not properly inform him of the consequences of pleading guilty regarding the virtual certainty of deportation, rendering his counsel constitutionally ineffective under Padilla v. Kentucky , 559 U.S. 356, 374, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). We assume, for purposes of this appeal, that the term "virtual certainty" is the same as "mandatory deportation," because that was the argument Abdi made in the district court. Abdi also argues that because he was not properly informed of the immigration consequences of pleading guilty, his plea was not knowingly, intelligently, or voluntarily made. Finally, Abdi argues a manifest injustice will result if he is not allowed to withdraw his guilty plea under N.D.R.Crim.P. 11(d)(2).

[¶8] Post-conviction relief proceedings are civil in nature and governed by the North Dakota Rules of Civil Procedure. Morris v. State , 2019 ND 166, ¶ 6, 930 N.W.2d 195. The applicant bears the burden of establishing grounds for post-conviction relief. Id. Questions of law are fully reviewable when we review a district court's decision in a post-conviction proceeding.

Id. A 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 finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if it is not supported by any evidence, or if, although there is some evidence to support the finding, a reviewing court is left with a definite and firm conviction a mistake has been made. Id.

[¶9] When an applicant for post-conviction relief seeks to withdraw his guilty plea, the application is treated as one made under N.D.R.Crim.P. 11(d) and the district court considers whether relief is necessary to correct a manifest injustice. Kremer v. State , 2020 ND 132, ¶ 5, 945 N.W.2d 279. This Court reviews whether circumstances establish a manifest injustice under an abuse of discretion standard:

When resolving a motion to withdraw a guilty plea, the district court applies N.D.R.Crim.P. 11(d)(2), which provides: "Unless the defendant proves that withdrawal is necessary to correct a manifest injustice, the defendant may not withdraw a plea of guilty after the court has imposed sentence." To establish manifest injustice, a defendant must "prove serious derelictions on the part of the defendant's attorney that kept a plea from being knowingly and intelligently made." Whether the circumstances establish a manifest injustice is within the district court's discretion, and we reverse only for an abuse of discretion. A court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, or it misinterprets or misapplies the law.

State v. Awad , 2020 ND 66, ¶ 2, 940 N.W.2d 613 (internal citations omitted).

[¶10] An applicant seeking to withdraw his plea based on a claim of ineffective assistance of counsel must surmount the Strickland test by showing: (1) counsel's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington , 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This Court has stated:

When a defendant pleads guilty on the advice of counsel, the defendant " ‘may only attack the voluntary and intelligent character of the guilty plea.’ " Damron v. State , 2003 ND 102, ¶ 9, 663 N.W.2d 650 (quoting Tollett v. Henderson , 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235, (1973) ). Unless a defendant can prove "serious derelictions" on the part of the defendant's attorney that kept a plea from being knowingly and intelligently made, the defendant will be bound by that guilty plea. Damron , at ¶ 13 (citing McMann v. Richardson , 397 U.S. 759, 774, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) ). "In criminal cases, the defendant has the burden to present evidence to overcome the presumption that defense counsel is competent and adequate, and to do so, the defendant must point ‘to specific errors made by trial counsel.’ " Damron , at ¶ 13 (quoting State v. Slapnicka , 376 N.W.2d 33, 36 (N.D. 1985) ).

Lindsey v. State , 2014 ND 174, ¶ 17, 852 N.W.2d 383. An applicant for post-conviction relief bears a "heavy burden" to prevail on an ineffective assistance of counsel claim. Bahtiraj v. State , 2013 ND 240, ¶ 8, 840 N.W.2d 605.

[¶11] Generally, to meet the first prong of Strickland , the applicant must "overcome the ‘strong presumption’ that trial counsel's representation fell within the wide range of reasonable professional assistance, and courts must consciously attempt to limit the distorting effect of hindsight." Hunter v. State , 2020 ND 224, ¶ 12, 949 N.W.2d 841. The first prong is measured against "prevailing professional norms." Bahtiraj , 2013 ND 240, ¶ 10, 840 N.W.2d 605. In cases involving noncitizens, "[t]he weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation." Padilla, 559 U.S. at 367, 130 S.Ct. 1473. In Padilla , the United States Supreme Court analyzed the first prong of Strickland and held that if the law is clear, constitutionally competent counsel would advise a noncitizen client that a conviction or guilty plea would result in mandatory deportation. 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284. Conversely, if the law is not clear, constitutionally competent counsel "need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences." Id. at 369, 130 S.Ct. 1473.

[¶12] 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. Lindsey , 2014 ND 174, ¶ 19, 852 N.W.2d 383. When an applicant is claiming ineffective assistance of counsel based on allegedly inadequate advice regarding the impact of the plea on the applicant's immigration status, the applicant must establish prejudice by convincing "the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla , 559 U. S. at 372, 130 S.Ct. 1473.

[¶13] All courts require something more than a defendant's subjective, self-serving statement that, with competent advice, he would have rejected the plea agreement and insisted on going to trial. Bahtiraj , 2013 ND 240, ¶ 16, 840 N.W.2d 605. The United States Supreme Court has stated:

"Surmounting Strickland's high bar is never an easy task," and the strong societal interest in finality has "special force with respect to convictions based on guilty pleas." Courts should not upset a plea solely because of post hoc

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