Belyeu v. State

1

2024 ND 133

Mark Andrew Belyeu, Petitioner and Appellant v. State of North Dakota, Respondent and Appellee

No. 20230390

Supreme Court of North Dakota

July 5, 2024

Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Reid A. Brady, Judge.

AFFIRMED.

Mark A. Belyeu, self-represented, Jamestown, ND, petitioner and appellant; submitted on brief.

Joshua J. Traiser, Assistant State's Attorney, Fargo, ND, for respondent and appellee; submitted on brief.

OPINION

MCEVERS, JUSTICE.

[¶1] Mark Andrew Belyeu appeals from a district court's order denying his petition for postconviction relief. On appeal Belyeu argues the court erred in denying his petition because he received ineffective assistance of counsel from his trial attorneys and newly discovered evidence exists, both justifying withdrawal of his guilty pleas. We affirm.

I

[¶2] In the underlying criminal case, Belyeu was charged with five offenses: use of a minor in a sexual performance, a class A felony; luring a minor by computer or other electronic means a class B felony; promoting a sexual performance by a minor a class B felony; and two counts of possession of certain materials prohibited, class C felonies. Belyeu pled guilty by Alford pleas in April 2021 to use of a minor in a sexual performance and one count of possession of certain materials prohibited; the remaining charges were dismissed. Steven Mottinger, as court-appointed counsel, represented Belyeu when he entered his pleas. Thereafter, Mottinger moved to withdraw, the district court granted the motion, and Jason Van Horn was appointed to represent Belyeu.

[¶3] In June 2021, the district court allowed Belyeu to withdraw his guilty pleas, and a jury trial was scheduled for September 2021. In August 2021, Daniel Frisk, a partner in the law office employing Van Horn, substituted as counsel. On September 27, 2021, Belyeu appeared with Frisk at a change of plea hearing. Belyeu pled guilty to use of a minor in a sexual performance and one count of possession of certain materials prohibited. The court found his guilty pleas were knowingly, voluntarily, and intelligently given. The prosecutor provided, and the court found, a factual basis for the offenses which included that Belyeu: communicated electronically with Jane Doe I, age 14; solicited nude photos of Jane Doe I; and sent Jane Doe I videos of himself masturbating as well as images of Jane Doe II, which were prohibited materials. The factual basis also included that Belyeu obtained images from Jane Doe I engaging in sexual conduct and he collected the images with the requisite intent. In November 2021, Belyeu was sentenced and judgment was entered.

[¶4] On January 29, 2023, Belyeu filed a petition for postconviction relief. Belyeu alleged: his guilty pleas were not knowingly, voluntarily, and intelligently given because he received ineffective assistance of his trial counsel, Steven Mottinger and Daniel Frisk; newly discovered evidence existed justifying withdrawal of his guilty pleas; a claim of actual innocence; and his sentence was illegal. In September 2023, the district court summarily dismissed Belyeu's claims of actual innocence and his sentence not being authorized by law, and limited the evidentiary hearing to the remaining two claims.

[¶5] An evidentiary hearing was held on October 23, 2023. A number of witnesses testified, including Kayla Erickson, Steven Mottinger, Daniel Frisk, Officer Thomas Heideman, and Detective Connie Nichtern. In November 2023, the district court entered an order denying Belyeu's petition for postconviction relief and judgment. Belyeu appeals.

II

[¶6] "Post-conviction relief proceedings are civil in nature and governed by the North Dakota Rules of Civil Procedure." Abdi v. State, 2021 ND 110, ¶ 8, 961 N.W.2d 303. The petitioner bears the burden of establishing the grounds for postconviction relief. Id. Questions of law are fully reviewable on appeal in a postconviction relief proceeding, whereas, a district court's findings of fact are subject to the clearly erroneous standard of review 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.

[¶7] When a petitioner seeks to withdraw his guilty pleas in a petition for postconviction relief, the petition 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. Abdi, 2021 ND 110, ¶ 9. 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.

Id. (internal citations omitted).

III

[¶8] Belyeu argues his trial attorneys were ineffective and therefore, his guilty pleas were not voluntarily, intelligently, or knowingly given. Belyeu claims his trial attorneys, Mottinger and Frisk, failed to properly investigate the case and obtain discovery, and they did not review or consult with him on the discovery in this case.

[¶9] A petitioner seeking to withdraw his guilty plea alleging ineffective assistance of counsel must surmount the two-prong test set out by Strickland v. Washington, 466 U.S. 668 (1984). A petitioner for postconviction 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. To satisfy the first prong under Strickland, a petitioner must show his or her counsel's representation fell below an objective standard of reasonableness. Strickland, at 687-88. The first prong is measured against "prevailing professional norms." Bahtiraj, at ¶ 10. "Courts should not upset a plea solely because of post hoc assertions from a defendant about how he would have pleaded but for his attorney's deficiencies." Lee v. United States, 582 U.S. 357, 369 (2017). Determining whether rejecting the plea was reasonable requires looking to "contemporaneous evidence to substantiate a defendant's expressed preferences." Id. 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. Watson v. State, 2022 ND 215, ¶ 11, 982 N.W.2d 604; see Bahtiraj, at ¶ 16.

[¶10] To satisfy the second prong, the petitioner 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. Watson, 2022 ND 215, ¶ 10. The petitioner must also show the district court that the decision to not plead guilty would have been "rational under the circumstances." Isxaaq v. State, 2021 ND 148, ¶ 11, 963 N.W.2d 260. We have stated:

This standard of proof is "somewhat lower" than the common "preponderance of the evidence" standard. The court is required to examine and predict the likely outcome of a possible trial. Therefore, the applicant must allege facts such as valid defenses, a pending suppression motion that could undermine the prosecution's case, or the realistic potential for a lower sentence. In short, not only must the movant show that he would not have pleaded guilty but for counsel's mistakes, but he must also show that the facts in the record suggest that the proceeding would have probably come out differently.

Watson, at ¶ 19 (cleaned up). The petitioner must "prove serious derelictions on the part of [his] attorney that kept a plea from being knowingly and intelligently made . . . ." Kremer v. State, 2020 ND 132, ¶ 6, 945 N.W.2d 279. "Courts need not address both prongs of the Strickland test, and if a court can resolve the case by addressing only one prong it is encouraged to do so." Osier v. State, 2014 ND 41, ¶ 11, 843 N.W.2d 277. "Whether the circumstances establish a manifest injustice is within the district court's discretion, and we reverse only for an abuse of discretion." State v. Awad, 2020 ND 66, ¶ 2, 940 N.W.2d 613.

A

[¶11] Regarding Mottinger's representation of Belyeu at his first change of plea hearing, the district court found even if Belyeu could have established Mottinger's representation fell below an objective standard of reasonableness, Belyeu failed to show Mottinger's representation prejudiced him because his prior guilty pleas were withdrawn. If a court can resolve the issue by addressing only one prong of the Strickland test, it is encouraged to do so. Dodge v. State, 2020 ND 100 ¶ 20, 942 N.W.2d 478.

[¶12] We conclude the district court did not clearly err in finding Belyeu failed to meet his burden to prove he was prejudiced by any alleged ineffective assistance by Mottinger under the second prong of the Strickland test when he was later allowed to withdraw his guilty plea and his case was reschedule for trial. Without showing he was prejudiced by his counsel, Belyeu...