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Morris v. State

Supreme Court of North Dakota

April 25, 2017

Kabbah Morris, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee

         Appeal from the District Court of McKenzie County, Northwest Judicial District, the Honorable Robin Ann Schmidt, Judge.

         AFFIRMED.

          Samuel A. Gereszek, for petitioner and appellant.

          Todd A. Schwarz, Chief Assistant State's Attorney, McKenzie County State's Attorney Office, for respondent and appellee; submitted on brief.

          OPINION

          Kapsner, Justice.

         [¶ 1] Kabbah Morris appeals from a district court order denying his application for post-conviction relief. We conclude the district court did not err in concluding Morris failed to establish his attorney's representation fell below an objective standard of reasonableness. We affirm the district court order denying Morris's application for post-conviction relief.

         I

         [¶ 2] On December 19, 2014, Morris pleaded guilty to gross sexual imposition. Morris was sentenced to twenty years of incarceration with twelve years and six months suspended with supervised probation to follow. Morris applied for post-conviction relief on August 5, 2015 and claimed he received ineffective assistance of counsel. Morris claimed his attorney's representation was defective because of a failure to challenge statements he made to police in light of his difficulties in understanding English. Morris is a citizen of Liberia and speaks a different dialect of English.

         [¶ 3] After withdrawal and reassignment of counsel, the district court held a hearing on Morris's application September 16, 2016. At the hearing, Morris and his former attorney testified. Morris testified when he was questioned by police he was separated from a friend, and although the police read him his rights, he did not understand them. Morris's former attorney testified he filed a motion relating to the police questioning, but the district court never held a hearing or ruled on the motion because Morris had reached a plea agreement with the State. Morris's former attorney also testified he did not recall Morris making any request to file an appeal in his criminal case. Morris's former attorney testified he could understand Morris. Morris testified his attorney did not communicate with him enough about the plea agreement and that he did not understand it. Morris's former attorney testified he and other members of his firm visited Morris in person to have better communication with him. Morris's former attorney also testified he communicated over the phone with Morris multiple times regarding the plea agreement.

         [¶ 4] The district court entered an order denying Morris's application for post-conviction relief. The district court found Morris is able to understand English. The district court concluded the attorney's representation of Morris did not fall below an objective standard of reasonable performance, and no evidence had been presented to establish a reasonable probability that the outcome of Morris's case would have been different. Morris filed a notice of appeal.

         II

         [¶ 5] On appeal, Morris argues the district court erred by denying his application for post-conviction relief. Morris argues he received ineffective assistance of counsel because his attorney did not challenge questioning by police and because he entered a guilty plea without reserving the right to challenge such questioning. Morris's claims stem from what he contends is a lack of ability to speak and understand English and his attorney's failure to use an interpreter for their communications. We review appeals of post-conviction proceedings as follows:

A trial court's findings of fact in a post-conviction proceeding will not be disturbed on appeal unless clearly erroneous under N.D.R.Civ.P. 52(a). A finding 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 it, a reviewing court is left with a definite and firm conviction a mistake ...

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