Everett v. State, 20140288.

864 N.W.2d 450

Russell Wayne EVERETT, Jr., Petitioner and Appellant

v.STATE of North Dakota, Respondent and Appellee.

No. 20140288.

Supreme Court of North Dakota.

June 11, 2015.

Eric P. Baumann, Minot, N.D., for petitioner and appellant.

Julie A. Lawyer, Assistant State's Attorney, Bismarck, N.D., for respondent and appellee.

Opinion

McEVERS, Justice.

[¶ 1] Russell Everett, Jr., appeals from an order denying his application for post-conviction relief. We conclude the district court did not err in concluding Everett failed to establish that he received ineffective assistance of counsel in entering a guilty plea to a charge of aggravated assault involving domestic violence and that withdrawal of the guilty plea was necessary to correct a manifest injustice. We affirm.

I

[¶ 2] In December 2012, the State charged Everett with aggravated assault involving domestic violence, and counsel was appointed to represent him. Everett was unable to post bond and he remained in custody until May 2013, when he appeared at a change of plea hearing with counsel, pled guilty to the charge, and was sentenced to a period of incarceration.

[¶ 3] In August 2013, Everett filed a self-represented application for post-conviction relief, claiming his plea was not voluntary and he received ineffective assistance of counsel. Everett's application claimed his guilty plea was not voluntarily made with an understanding of the charge and the consequences of his plea because his lawyer “was not helping [him]” and his “lawyer said [he] would get probation and get out.” Everett also claimed his “plea bargain did not come true” and he was “lied [to] about [his] plea bargain.” He also claimed he was denied effective assistance of counsel because he was “unlawfully arrested ... with no evidence against” him. Counsel was appointed to represent Everett in the post-conviction proceeding.

[¶ 4] At an evidentiary hearing Everett, through counsel, sought to withdraw his guilty plea, claiming he thought he would be sentenced to time served and did not understand he would be sentenced to further incarceration. The district court denied Everett's application, concluding withdrawal of his guilty plea was not necessary to correct a manifest injustice and he was not denied effective assistance of counsel. The court ruled withdrawal of the guilty plea was not necessary to correct a manifest injustice, because the evidence did not support Everett's claim he thought he would be sentenced to time served. The post-conviction court said the sentencing court substantially complied with N.D.R.Crim.P. 11 and 32 and ruled Everett's trial counsel's assistance did not fall below an objective standard of reasonableness and Everett was not prejudiced by counsel's representation.

II

[¶ 5] Proceedings on applications for post-conviction relief are civil in nature and governed by the North Dakota Rules of Civil Procedure. Flanagan v. State, 2006 ND 76, ¶ 9, 712 N.W.2d 602. It is well established that an applicant for post-conviction relief has the burden of establishing grounds for relief. E.g., Flanagan, at ¶ 10; Abdi v. State, 2000 ND 64, ¶ 8, 608 N.W.2d 292. 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). Laib v. State, 2005 ND 187, ¶ 11, 705 N.W.2d 845. A finding of fact is clearly erroneous if induced by an erroneous view of the law, if no evidence exists to support it, or if the reviewing court is left with a definite and firm conviction a mistake has been made. Syvertson v. State, 2005 ND 128, ¶ 4, 699 N.W.2d 855. Questions of law are fully reviewable on appeal in post-conviction proceedings. Id.

III

[¶ 6] Everett argues the district court erred in denying his application for post-conviction relief because he received ineffective assistance of counsel in the underlying criminal proceeding. Relying on his statements at the change of plea hearing that he was surprised, confused, and shocked, he claims his trial counsel's representation was defective because counsel did not properly consult with him before he pled guilty. Everett claims counsel's lack of consultation prejudiced him because he was confused and would not have pled guilty if he had known he would be sentenced to incarceration.

[¶ 7] The Sixth Amendment of the United States Constitution, applied through the Fourteenth Amendment to the States, and Article I, Section 12, of the North Dakota Constitution guarantee criminal defendants effective assistance of counsel. State v. Garge, 2012 ND 138, ¶ 10, 818 N.W.2d 718. An ineffective assistance of counsel claim involves a mixed question of law and fact, fully reviewable by this Court. Flanagan, 2006 ND 76, ¶ 9, 712 N.W.2d 602. In order to prevail on a post-conviction claim for ineffective assistance of counsel, an applicant must show (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, 687–96, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). An applicant raising a post-conviction claim for ineffective assistance of counsel has the “heavy burden” of establishing the requirements of the two-prong Strickland test. Flanagan, at ¶ 10.

[¶ 8] The first prong of the Strickland test is measured using “prevailing professional norms,” and is satisfied if an applicant proves counsel's conduct consisted of errors serious enough to result in denial of the counsel guaranteed by the Sixth Amendment. Sambursky v. State, 2006 ND 223, ¶ 13, 723 N.W.2d 524. A defendant must overcome a strong presumption that counsel's performance falls within the wide range of reasonable professional assistance and courts must consciously attempt to limit the distorting effect of hindsight. Flanagan, 2006 ND 76, ¶ 10, 712 N.W.2d 602. The second prong requires an applicant to show that there is a reasonable probability that, but for his counsel's error, the result of the proceeding would have been different. Id.

[¶ 9] The two-part Strickland test “applies to challenges to guilty pleas based on ineffective assistance of counsel.”Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). The appropriate standard for prejudice in cases involving pleas was established in Hill, which held that a defendant who enters a plea must show “a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Id. at 59, 106 S.Ct. 366. In Bahtiraj v. State, 2013 ND 240, ¶ 16, 840 N.W.2d 605 (citations omitted), we explained the prejudice prong in the context of a guilty plea:

All courts “require something more than defendant's ‘subjective, self-serving’ statement that, with competent advice, he would” not have pled guilty and would have insisted on going to trial. “A defendant must thus satisfy the judgment of the reviewing court, informed by the entire record, that the probability of a different result is ‘sufficient to undermine confidence in the outcome’ of the proceeding.” This standard “requires a ‘substantial,’ not just ‘conceivable,’ likelihood of a different result.” The petitioner “must convince the court that a decision to reject the plea bargain would have been rational under the circumstances.” This requires an examination and prediction of the likely outcome of a possible trial. “The movant must allege facts that, if proven, would support a conclusion that the decision to reject the plea bargain and go to trial would have been rational, e.g., valid defenses, a pending suppression motion that could undermine the prosecution's case, or the realistic potential for a lower sentence.” “This standard of proof is ‘somewhat lower’ than the common ‘preponderance of the evidence’ standard.” “[E]stablishing a valid ineffective assistance of counsel claim where the defendant pled guilty imposes a ‘substantial burden.’ ”

[¶ 10] Here, the district court determined Everett failed to establish ineffective assistance of counsel under both prongs of Strickland:

Everett has failed to show that his counsel's actions were unprofessional and fell outside the wide range of reasonable professional conduct or how the result of his proceeding would have been different. As stated above, and contrary to the allegations in his petition, Everett testified that both the Judge and his attorney explained the maximum sentence he could receive and that he could receive a longer sentence than the one his attorney was requesting. Everett testified [his counsel] told him he was “shooting for” an all but time served suspended sentence. Everett understood that there was no plea agreement and that he could be sentence[d] up to the maximum sentence permitted by law. Everett presented no testimony or evidence to establish the range of reasonable professional conduct or that his attorney's conduct fell outside that range.

Everett also failed to carry his burden of showing the probability of a different outcome and therefore has not satisfied the prejudice prong of the Strickland test. Everett must establish a reasonable probability that but for his counsel's errors the outcome would have been different.

[¶ 11] Everett's argument cites selected statements at the change of plea hearing out of context. The entire colloquy at that hearing reflects Everett's claimed surprise, confusion, and shock involved his inability to recall the underlying circumstances of the charged assault because of his level of intoxication. The sentencing court unequivocally informed Everett that the guilty plea was not for a lesser charge and that his sentence upon a guilty plea may include incarceration. Although Everett claims his trial counsel did not properly consult with him before he pled guilty, the post-conviction court specifically referred to testimony indicating counsel met with Everett...