Cheryl L. Pfeffer, Petitioner and Appellant
State of North Dakota, Respondent and Appellee
from the District Court of Cass County, East Central Judicial
District, the Honorable Steven E. McCullough, Judge.
O. Diamond, for petitioner and appellant.
R. Boening (argued), Assistant State's Attorney, and Gary
E. Euren (on brief), Assistant State's Attorney, for
respondent and appellee.
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.
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
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
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.
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