Appeal from the District Court of Ward County, North Central Judicial District, the Honorable Gary H. Lee, Judge.
Benjamin C. Pulkrabek, Mandan, N.D., for petitioner and appellant.
Christene A. Reierson, Assistant State's Attorney, Minot, N.D., for respondent and appellee.
Lisa Fair McEvers, Daniel J. Crothers, Dale V. Sandstrom, Carol Ronning Kapsner, Gerald W. VandeWalle, C.J. Opinion of the Court by McEvers, Justice.
[¶1] Allen Wayne Rencountre appeals from an order denying his application for postconviction relief. Because the district court did not err in concluding Rencountre failed to establish that he received ineffective assistance of counsel and because the court's error in failing to receive a written criminal record report before sentencing Rencountre was harmless, we affirm the order.
[¶2] In the early morning hours of October 10, 2010, a desk clerk at a Minot hotel was shot by an individual. Rencountre was staying at the hotel and the shooting was recorded by the hotel's front desk security camera. Although the desk clerk had not seen the face of the person who shot him, the clerk did see him go out the door and described the shooter as " a bigger person, wearing a dark hoodie and ballcap." Two people who were in the hotel parking lot and had been drinking with Rencountre earlier heard the gunshots. They watched the person they knew as " Al," who they described as " a big boy," walk to his white truck with a " large CAT logo in the rear window" and take " off out of the parking lot 'like a bat out of hell.'"
[¶3] Later that morning, a law enforcement officer was driving west of Minot when he noticed a white truck with the letters " CAT" in the rear window coming from behind and passing him at a high speed. The officer pursued the vehicle at speeds up to 115 miles per hour and informed other officers to place spikes in the road ahead. The truck's tires were eventually punctured and the driver, Rencountre, pulled into a gas station in Stanley and stopped. Rencountre remained in the truck holding a pistol in one hand and a bottle of liquor in the other, occasionally taking a drink. One of the officers present negotiated with Rencountre and got him to hand the pistol out the window, but Rencountre remained in the truck drinking out of the bottle, listening to music on the radio, and stating " I shot him . . . I shot him . . . I shot him!" After his attention was diverted, Rencountre was tased and taken into custody. Rencountre was interviewed
by law enforcement officers after he signed a waiver of rights form and was advised of his Miranda rights and orally waived them. Rencountre admitted shooting the desk clerk. Although officers asked him whether his " head was clouded," Rencountre responded " I'm good, just pissed off." Rencountre was not tested for blood alcohol concentration.
[¶4] Rencountre was charged with attempted murder, a class A felony, and fleeing or attempting to elude a peace officer, a class C felony. The State also filed a special dangerous offender notice against Rencountre to enhance the maximum penalty. Rencountre's retained attorney requested a mental health evaluation of Rencountre be performed at the State Hospital, and the State joined in the request. The evaluation revealed that Rencountre was competent to stand trial and was not suffering from a mental disease or defect at the time of the offense. On April 27, 2011, Rencountre pled guilty under a plea agreement to attempted murder. The charge of fleeing or attempting to elude a peace officer was dismissed as part of the plea agreement, and the district court found Rencountre was a special dangerous offender. Rencountre waived his right to a presentence report and requested that he be sentenced immediately. The State orally advised the court that Rencountre had no prior criminal history. The court sentenced Rencountre to 30 years in prison with 10 years suspended, followed by 5 years of supervised probation.
[¶5] Rencountre subsequently filed this application for postconviction relief under N.D.C.C. ch. 29-32.1, alleging he received ineffective assistance from his retained counsel and he is entitled to be resentenced because the district court failed to follow the procedure required by N.D.C.C. § 12.1-32-02(11). Following a hearing, the court denied the application. The court ruled Rencountre had not received ineffective assistance of counsel and, even though the court did not follow the mandates of N.D.C.C. § 12.1-32-02(11), Rencountre was not entitled to be resentenced because he " suffered no prejudice."
[¶6] Rencountre argues the district court erred in determining his attorney was not ...