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Patterson v. State

Supreme Court of North Dakota

November 9, 2016

Darrius Cortez Patterson, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee

         Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Steven E. McCullough, Judge.

         AFFIRMED.

          Jessica J. Ahrendt, Grand Forks Public Defender Office, for petitioner and appellant.

          Cherie L. Clark (argued) and Gary E. Euren (on brief), Assistant State's Attorney, Cass County Courthouse, for respondent and appellee.

          OPINION

          Crothers, Justice.

         [¶ 1] Darrius Patterson appeals from a district court order and judgment denying his application for post-conviction relief. Patterson argues the district court erred denying his application because he received ineffective assistance of appellate counsel. We affirm.

         I

         [¶ 2] In October 2013 a jury found Patterson guilty of delivering cocaine within 1, 000 feet of a school. In January 2014 Patterson was sentenced to 28 years in the North Dakota Department of Corrections. On February 7, 2014, Patterson's trial counsel filed a notice of appeal and a Rule 35 request to reduce sentence. Attorney Ben Pulkrabek was appointed to represent Patterson on appeal. The district court denied Patterson's Rule 35 request.

         [¶ 3] On May 5, 2014, Pulkrabek filed Patterson's appellate brief. Pulkrabek testified he did not recall, prior to filing the brief, having any contact with Patterson regarding the issues for appellate review. On May 6, 2014, Pulkrabek received a letter from Patterson requesting trial transcripts and a document titled "Sentence Appeal, " in which Patterson argued his sentencing was in violation of N.D.C.C. §§ 19-03.1-23 and 19-03.1-23.1 (1)(a) because his trial counsel failed to object to the admission of two out-of-state convictions for possessing controlled substances. Patterson testified he wanted to argue he could be eligible for a suspended or deferred sentence under N.D.C.C. § 19-03.1-23.2 and State v. Murphy, 2014 ND 202, 855 N.W.2d 647. Pulkrabek recalled advising Patterson by letter that he could file his own brief arguing the sentencing issue.

         [¶ 4] Pulkrabek met Patterson in person on June 23, 2014. At the meeting Pulkrabek advised Patterson the sentencing issue could not be raised on appeal because N.D.C.C. Ch. 19-03.1 was not addressed at the sentencing hearing. Pulkrabek did not request a transcript of the sentencing hearing. Pulkrabek believed a Rule 35 request reducing sentence precludes a determination of sentencing on appeal. This Court affirmed Patterson's conviction on October 28, 2014. State v. Patterson, 2014 ND 193, 855 N.W.2d 113.

         [¶ 5] In May 2015 Patterson applied for post-conviction relief arguing he received ineffective assistance of appellate counsel because Pulkrabek did not argue sentencing, the trial court erred in sentencing by failing to consider he may be eligible for a deferred or suspended sentence under N.D.C.C. § 19-03.1-23.2 and he received ineffective assistance of trial counsel. An evidentiary hearing was held and the district court denied Patterson's application for post-conviction relief. The district court found Patterson's appellate counsel fell below the objective standard of reasonableness because Pulkrabek's advice regarding the ability to raise the issue of sentencing on appeal was erroneous. However, the district court found no reasonable probability existed that Patterson's appeal would have been decided differently even if the sentencing issue was argued. Accordingly, the district court held Patterson failed to demonstrate he was entitled to post-conviction relief. Patterson appeals.

         II

         [¶ 6] Patterson argues the district court erred denying his application for post-conviction relief because he received ineffective assistance of appellate counsel. Our review of post-conviction proceedings is well established:

"Post-conviction relief proceedings are civil in nature and are governed by the North Dakota Rules of Civil Procedure. In post-conviction relief proceedings, a district court's findings of fact will not be disturbed unless they are clearly erroneous under N.D.R.Civ.P. 52(a). A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if it is not supported by the evidence, or if, although there is some evidence to support it, a reviewing court is left with a definite and firm ...

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