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Thompson v. State

Supreme Court of North Dakota

May 26, 2016

Ronald Scott Thompson, Plaintiff and Appellant
State of North Dakota, Defendant and Appellee

Page 94

          Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Sonna M. Anderson, Judge.

         Lee M. Grossman, Fargo, N.D., for plaintiff and appellant; submitted on brief.

         Richard J. Meurin, Assistant State's Attorney, Burleigh County State's Attorney's Office, Bismarck, N.D., for defendant and appellee.

         Daniel J. Crothers, Lisa Fair McEvers, Carol Ronning Kapsner, Gerald W. VandeWalle, C.J. Dale V. Sandstrom, VandeWalle, Chief Justice, concurring specially. Sandstrom, Justice, concurring and dissenting.


Page 95

         Daniel J. Crothers, Justice.

          [¶1] Ronald Scott Thompson appeals an order denying his application for post-conviction relief. Thompson argues the district court clearly erred because he received ineffective assistance of counsel. We reverse and remand to the district court for analysis under the Strickland test.


          [¶2] In 1991 Thompson was charged with gross sexual imposition and received a court appointed defense lawyer. In 1992 Thompson pled guilty and was sentenced to a ten year prison term with three years suspended. Thompson completed his sentence and the term of probation has expired. In 2012 Thompson applied for post-conviction relief, claiming ineffective assistance of counsel and requesting dismissal of the conviction. Thompson alleged his counsel failed to competently prepare his defense, obtain an independent DNA test, adequately investigate the victim, hire a private investigator and develop a tactical trial strategy.

          [¶3] A hearing was held in May 2013. Thompson testified that in 1992 his attorney told him there was DNA evidence " against" him but he did not receive a copy of the DNA test results. Thompson testified he requested his attorney hire an independent DNA examiner but his attorney told him they could not afford one. Thompson testified he spoke with his attorney about hiring a private investigator to locate three alibi witnesses but there was a " funding issue again." Thompson testified he did not commit the crime but his attorney advised him to plead guilty because of the DNA evidence. Thompson testified he changed from a plea of not guilty to a plea of guilty one or two weeks after his attorney told him of DNA evidence.

          [¶4] Thompson's attorney testified he no longer has the file for Thompson's case due to the time that has passed. Thompson's attorney testified he recalled seeing a DNA report implicating Thompson. He did not recall showing the report to Thompson or to what percentage probability Thompson was a match. Thompson's attorney testified he did not remember Thompson asking to hire an independent DNA examiner, a private investigator or providing information about alibi witnesses. Thompson's attorney testified his practice would have been to ask the court for additional funds if he believed the case warranted independent DNA analysis or a private investigator. Thompson's attorney testified that if the DNA evidence had come back without a match, the case probably would have been dismissed or " we would have definitely gone to trial."

          [¶5] Thompson requested the district court hold the case open to allow time to obtain additional evidence. Thompson wished to contact the Federal Bureau of

Page 96

Investigation to obtain a copy of the DNA test. In June 2013 the district court ordered the FBI to determine if a DNA sample had been examined in this case. In September 2014 Thompson's current attorney reported to the district court the FBI had examined its records and none showed a DNA sample having been received or analyzed in this case in 1991 or 1992. Thompson's current attorney reported the FBI had not, and apparently would not, provide a written statement to that effect.

          [¶6] A status conference was held in December 2014. According to the district court order, the parties agreed the lack of FBI records supported a conclusion that a DNA test was not performed. The district court found Thompson failed to establish a reasonable probability that, but for the attorney's errors, the result in his case would have been different. The district court found that sufficient evidence existed to support a finding of guilt without a DNA test result. Accordingly, the district court held Thompson failed to demonstrate he was entitled to post-conviction relief. Thompson appeals.


          [¶7] Thompson argues he is entitled to post-conviction relief because he received ineffective assistance of counsel when he pled guilty in 1992. " The 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)." Tweed v. State, 2010 ND 38, ¶ 15, 779 N.W.2d 667 (citing Laib v. State, 2005 ND 187, ¶ 11, 705 N.W.2d 845).

" A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if it is not supported by any evidence, or if, although there is some evidence to support the finding, a reviewing court is left with a definite and firm conviction a mistake as been made."

Heckelsmiller v. State, 2004 ND 191, ¶ 5, 687 N.W.2d 454. " Questions of law are fully reviewable on appeal of a post-conviction proceeding." Greywind v. State, 2004 ND 213, ¶ 5, 689 N.W.2d 390. Whether a petitioner received ineffective assistance of counsel is a mixed question of law and fact, fully reviewable on appeal. Sambursky v. State, 2008 ND 133, ¶ 7, 751 N.W.2d 247.

          [¶8] To establish his claim of ineffective assistance of counsel Thompson's burden was twofold. First, Thompson must prove his counsel's performance was defective. State v. McLain, 403 N.W.2d 16, 17 (N.D.1987); Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Second, he needed to show his defense was prejudiced by the proven defects. Id. " If it is easier [for the court] to dispose of an ineffective assistance of counsel claim on the ground of lack of sufficient prejudice, that course should be followed." Roth v. State, 2007 ND 112, ¶ 9, 735 N.W.2d 882 (citing Wright v. State, 2005 ND 217, ¶ 11, 707 N.W.2d 242).

          [¶9] Thompson limits his argument on appeal to claiming his counsel was ineffective because his attorney relied on statements the State's Attorney made that a DNA test was conducted and the results " were against" him. Thompson claims his attorney's failure to obtain a copy of the DNA report fell below an objective standard of reasonableness and prejudiced him.

          [¶10] The district court denied Thompson's post-conviction relief on the ...

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