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Pfeffer v. State

Supreme Court of North Dakota

December 20, 2016

Cheryl L. Pfeffer, 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.

         REVERSED AND REMANDED.

          Scott O. Diamond, for petitioner and appellant.

          Mark R. Boening (argued), Assistant State's Attorney, and Gary E. Euren (on brief), Assistant State's Attorney, for respondent and appellee.

          OPINION

          VandeWalle, Chief Justice.

         [¶ 1] Cheryl Pfeffer appealed the district court's order denying her post-conviction relief for ineffective assistance of counsel. We reverse and remand, holding the district court erred in requiring Pfeffer to prove her appeal had a reasonable probability of success for her to have a valid claim of ineffective assistance of counsel.

         I.

         [¶ 2] Pfeffer was charged with delivery of a controlled substance and convicted after a two day jury trial. During Pfeffer's sentencing hearing, the State filed certified copies of two prior criminal judgments. With these two prior offenses, the State argued Pfeffer's current conviction was a third offense, and thus subject to a 20-year mandatory minimum sentence under N.D.C.C. § 19-03.1-23(1)(a)(2). Pfeffer's trial attorney argued against the conviction qualifying as her third offense. One of the charges was out of Minnesota and had its imposition of sentence stayed for five years and the five year period had expired prior to Pfeffer's current charge. As such, her trial attorney argued it could not be used to enhance Pfeffer's current sentence. If the district court excluded the Minnesota offense, Pfeffer would be subject to a 5-year mandatory minimum sentence. The district court considered the Minnesota offense and sentenced Pfeffer to a 20-year term of imprisonment.

         [¶ 3] After the sentencing, Pfeffer's trial attorney testified he did not advise her of her right to appeal in writing, provide her with a copy of the final judgment, or provide her with other information about the deadlines for filing an appeal. The district court also did not advise Pfeffer of her right to appeal or the time line to appeal. Pfeffer testified she did not become aware of her ability to appeal until a few months later, when she was in the Dakota Women's Correctional and Rehabilitation Center. She filed a handwritten notice of appeal after the deadline to appeal had passed. Because she missed the deadline, this Court dismissed Pfeffer's appeal.

         [¶ 4] Following the dismissal, Pfeffer applied for post-conviction relief. An evidentiary hearing was held and Pfeffer and her trial attorney testified. After the hearing, the district court denied Pfeffer's application for post-conviction relief. In its order, the district court found that although Pfeffer's trial attorney's conduct fell below an objective standard of reasonableness, she was unable to prove how his deficient performance prejudiced her.

         II.

         [¶ 5] On appeal, Pfeffer argues the district court erred as a matter of law when it analyzed the second prong of the Strickland test. Strickland v. Washington, 466 U.S. 668 (1984). The district court ruled Pfeffer failed to prove the second prong because she could not show how her appeal would have been successful if she had appealed. Pfeffer argues this analysis was improper and she should have only been required to show that she would have appealed had she known she had the right to appeal. Pfeffer also argues the district court erred in not granting her relief from its failure to advise her of her right to appeal.

         A.

         [¶ 6] The issue of ineffective assistance of counsel is a mixed question of law and fact and is fully reviewable by this Court. Klose v. State, 2005 ND 192, ¶ 10, 705 N.W.2d 809. The petitioner has the burden of establishing the grounds for post-conviction relief. Flanagan v. State, 2006 ND 76, ¶ 10, 712 N.W.2d 602. We have ...


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