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Ude v. State

April 30, 2009


Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Robert O. Wefald, Judge.

The opinion of the court was delivered by: Maring, Justice.


[¶1] Brandon Lee Ude appeals from a district court order denying his application for post-conviction relief based on his claim of ineffective assistance of counsel. We affirm, concluding the district court did not deny him the opportunity to present testimony and did not err in denying his application for post-conviction relief.


[¶2] Brandon Lee Ude pled guilty to aggravated assault, violation of a domestic violence protection order, interference with telephone during an emergency call, stalking, and two counts of violation of a domestic violence protection order. Criminal judgments were entered in November 2007. Ude moved for a sentence reduction under N.D.R.Crim.P. 35 in February 2008. The court denied his motion.

[¶3] On September 8, 2008, Ude applied for post-conviction relief on the grounds of ineffective assistance of counsel. In his application, Ude claimed he was denied effective assistance of counsel in two regards. First, his plea of guilty was not voluntary because he had not been given an opportunity to review discovery materials before pleading guilty, his attorney did not discuss the plea agreements with him and instead would discuss potential offers with his parents, and he had little contact with his attorney. Second, Ude argued that his attorney only met with him once before his sentencing hearing, his attorney informed him that his mother could not testify on his behalf at sentencing, and although Ude's attorney had gathered letters of support for Ude before sentencing, his attorney did not mention the letters at sentencing to ensure the district court had reviewed them. Ude also claimed he was prejudiced at sentencing because his attorney smelled of alcohol at the sentencing hearing, failed to cross-examine the victim during sentencing, and failed to present evidence that contradicted the victim's testimony.

[¶4] On September 26, 2008, the State responded to Ude's application for post-conviction relief. The State argued Ude's attorney did not provide ineffective assistance of counsel because the representation did not fall below the requisite standard of reasonableness, it was entitled to summary disposition on the application for post-conviction relief because there were no factual issues in dispute, and even if all of Ude's allegations were valid, the allegations did not rise to the level required for Ude to withdraw his guilty plea. The State argued Ude knowingly and voluntarily submitted his guilty plea to the court, the conduct alleged by Ude did not negate his guilty plea, and the district court complied with Rule 11, N.D.R.Crim.P., when it accepted the guilty plea. The State argued Ude had not established the conduct was prejudicial to him and how the allegations would have created a different result.

[¶5] On October 2, 2008, Ude replied to the State's response to his application for post-conviction relief. Ude argued summary disposition was not appropriate because there were material facts in dispute. Ude asserted he did not have a meaningful opportunity to review the discovery materials and communicate with his attorney before he pled guilty; the lack of communication prejudiced Ude's decision making; and his attorney could not have given him competent advice because he had not opened some of the letters Ude sent him before sentencing.

[¶6] A post-conviction relief hearing was held on November 14, 2008. The district court issued an order denying post-conviction relief, providing that "[h]aving read the pleadings, consulted opinions of our Supreme Court and heard the arguments of counsel, the Court found that Ude was not denied effective assistance of counsel."

[¶7] Ude appeals, arguing the district court erred in not allowing him to present testimony from witnesses and in denying his application for post-conviction relief.


[¶8] Section 29-32.1-04, N.D.C.C., provides the requirements for an application for post-conviction relief under the Uniform Post-conviction Procedure Act. A petitioner must "set forth a concise statement of each ground for relief, and specify the relief requested," refer to the pertinent portions of the record of prior proceedings, and if those portions are not in the record, the petitioner must attach those portions to the application. State v. Bender, 1998 ND 72, ¶ 19, 576 N.W.2d 210. A petitioner may attach affidavits or other supporting materials to the application, but they are unnecessary. Id. A petitioner is not required to provide evidentiary support for his petition until he has been given notice he is being put on his proof. Id. at ¶ 20. At that point, the petitioner may not merely rely on the pleadings or on unsupported, conclusory allegations, but must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact. Wheeler v. State, 2008 ND 109, ¶ 5, 750 N.W.2d 446. If the petitioner presents competent evidence, he is then entitled to an evidentiary hearing to fully present that evidence. Steinbach v. State, 2003 ND 46, ¶ 17, 658 N.W.2d 355.

[¶9] While summary dismissal generally is not appropriate for post- conviction claims of ineffective assistance of counsel, it is appropriate if the petitioner does not raise a genuine issue of material fact. Klose v. State, 2008 ND 143, ¶ 9, 752 N.W.2d 192. "To avoid summary dismissal of an ineffective assistance of counsel claim, the post-conviction applicant must present some evidence that his counsel's performance fell below an objective standard of reasonableness, and he must overcome the presumption that his counsel's performance was within the broad range of reasonableness." Id. at ¶ 13. The petitioner "must specify how and where counsel was incompetent and the probable different result." Id. A petitioner's failure to "show how, but for the attorneys' errors, the results of the proceedings would have been different" justifies a district court's decision to summarily dismiss the ineffective assistance of counsel claims. Hughes v. State, 2002 ND 28, ¶ 7, 639 N.W.2d 696.

[ΒΆ10] We explained our review of a summary dismissal of post-conviction relief in Klose, 2008 ND ...

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