from the District Court of Cass County, East Central Judicial
District, the Honorable Steven E. McCullough, Judge.
Jessica J. Ahrendt, Grand Forks Public Defender Office, for
petitioner and appellant.
L. Clark (argued) and Gary E. Euren (on brief), Assistant
State's Attorney, Cass County Courthouse, for respondent
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.
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.
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