As Amended July 18, 2014.
Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Sonna M. Anderson, Judge.
Steven Balaban, Bismarck, ND, for petitioner and appellant.
Dawn Marie Deitz, Assistant State's Attorney, Bismarck, ND, for respondent and appellee; submitted on brief.
Daniel J. Crothers, Lisa Fair McEvers, Carol Ronning Kapsner, Dale V. Sandstrom, Gerald W. VandeWalle, C.J.
[¶1] Jason Gullickson appeals from a district court order denying his application for postconviction relief from a criminal judgment entered after he pled guilty to manufacturing methamphetamine (second offense), possession of methamphetamine with intent to deliver (second offense), possession of psilocybin, possession of marijuana and possession of drug paraphernalia. Gullickson argues the district court erred denying postconviction relief on the grounds of ineffective assistance of counsel because trial counsel did not notify him that two of his charges should not have been second offenses and failed to file a motion to suppress evidence discovered upon execution of a search warrant. We affirm.
[¶2] On August 30, 2004, a magistrate received evidence on an application for a warrant to search Gullickson's residence. Morton County Sheriff's Department Deputy Rob Fontenot testified he examined garbage at Gullickson's residence, finding empty packs of lithium batteries and sandwich bags with corners missing, which in his training and experience were used for methamphetamine production, packaging and distribution, and finding two ziplock baggies with white residue consistent with methamphetamine. Deputy Fontenot testified the garbage container was located on the sidewalk. The magistrate authorized a daytime search of Gullickson's residence for controlled substances and drug paraphernalia. The search warrant was executed at 9:30 p.m. on August 31, 2004. The results of the search warrant included paraphernalia and drugs, including methamphetamine, marijuana and psilocybin.
[¶3] Gullickson's charges in this case occurred after he was charged in 2003 for possession of methamphetamine, manufacture of methamphetamine within 1000 feet of a school and two counts of possession of drug paraphernalia, but before a conviction or guilty plea were entered in that case. As a result of the pending 2003 charges, Gullickson was charged here with second offenses of manufacturing and possession of methamphetamine with intent to deliver, which carry mandatory minimum five-year sentences. Gullickson pled guilty to manufacturing methamphetamine (second offense), possession of methamphetamine with intent to deliver (second offense), possession of psilocybin, possession of marijuana and two counts of possession of drug paraphernalia. Gullickson was sentenced to fifteen years with all but five years suspended, to run concurrently with the sentence he received in the 2003 case. Gullickson served five years and was released on probation. Gullickson's probation was revoked in 2010 for new drug-related activity. He was ordered to serve the balance of his fifteen-year sentence, with credit for time served.
[¶4] Gullickson filed this postconviction relief action, alleging ineffective assistance of counsel because his attorney failed to file a motion to suppress evidence and failed to establish his charges were incorrectly charged as second offenses with mandatory minimums. After the hearing, the district court found that the daytime search warrant was proper because it was executed before 10 p.m., that the evidence obtained from the search fell under the categories of controlled substances or drug paraphernalia and that the garbage search did not violate Gullickson's privacy interests because the container was located on the public sidewalk. The district court also found Gullickson did not ...