from the District Court of Burleigh County, South Central
Judicial District, the Honorable Sonna M. Anderson, Judge.
Grossman, Fargo, N.D., for plaintiff and appellant; submitted
J. Meurin, Assistant State's Attorney, Burleigh County
State's Attorney's Office, Bismarck, N.D., for
defendant and appellee.
J. Crothers, Lisa Fair McEvers, Carol Ronning Kapsner, Gerald
W. VandeWalle, C.J. Dale V. Sandstrom, VandeWalle, Chief
Justice, concurring specially. Sandstrom, Justice, concurring
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
[¶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
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
[¶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
" 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
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
[¶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 ...