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Everett v. State

Supreme Court of North Dakota

June 11, 2015

Russell Wayne Everett, Jr., Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee

Page 451

[Copyrighted Material Omitted]

Page 452

Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable David E. Reich, Judge.

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

Julie A. Lawyer, Assistant State's Attorney, Bismarck, 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.

OPINION

Page 453

Lisa Fair 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 ...


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