from the District Court of Stutsman County, Southeast
Judicial District, the Honorable Thomas E. Merrick, Judge.
Jeffrey P. Davis, Assistant State's Attorney, Jamestown,
N.D., for plaintiff and appellee; on brief.
Benjamin C. Pulkrabek, Mandan, N.D., for defendant and
appellant; on brief.
1] Wesley Cody appeals the district court's order
requiring Cody pay $13, 455.78 in restitution as part of his
sentence in a criminal matter. Cody argues, on direct appeal,
that his counsel was ineffective at his restitution hearing.
We conclude the record before us does not affirmatively show
ineffectiveness of constitutional dimensions, and this issue
is more properly pursued in a post-conviction relief
proceeding. We therefore affirm, but remand for correction of
the amount of restitution in the judgment.
2] Cody pled guilty to two counts of theft of property, and
one count each of false information or report to law
enforcement, fleeing or attempting to elude a peace officer,
reckless endangerment, and felony charges stemming from other
related criminal cases. On September 21, 2016, a restitution
hearing was held to address damages as a result of Cody's
theft and damage of a 2001 GMC Sierra Duramax pickup owned by
Bryon Bohnet, damage to a fence and sprinkler system owned by
the City of Jamestown, and damage to a rail line owned by
BNSF when he fled from police.
3] At the restitution hearing, the State alleged $20, 888.45
in damages caused by Cody including $807.86 to BNSF, $14,
107.44 to Bohnet, and $5, 973.15 to the City of Jamestown.
The State called Bohnet to testify regarding the value of the
pickup and the cost to repair the damage done by Cody. Bohnet
testified the pickup had 300, 000 miles on it and claimed the
pickup was worth $10, 000 when Cody stole it. Bohnet provided
an estimate from Puklich Chevrolet Collision Center stating
the cost of repair was at least $14, 107.44.  Bohnet
testified he had already begun the repairs himself, and noted
the cost of the parts on the estimate was $7, 782.63. The
State also called officials from the City of Jamestown and
BNSF to testify regarding the damages to public property
owned by Jamestown and a rail line owned by BNSF. The
Jamestown city auditor provided an estimate from Newman Fence
noting a $5, 200 cost to remove and replace 300 feet of chain
link fence. The city auditor also testified there was $473.15
in damages to a sprinkler and electrical system.
4] Cody, represented by Scott Brand, objected to the
admission of the estimate from Puklich Chevrolet, arguing the
work had yet to be done, the estimate was greater than the
value of the vehicle, and Bohnet should not get a
"windfall" as a result of these proceedings. Brand
also argued the Jamestown city auditor was unable to testify
as to the work done on the fence. Brand challenged the
sufficiency of the Newman estimate, arguing the State failed
to provide testimony regarding the kind of work done that led
to the $5, 200 cost of replacing the fence. Brand did not
submit independent estimates to rebut the estimates provided
by the State, or provide evidence pertaining to Cody's
ability to pay the restitution amount alleged by the State.
The district court noted Brand failed to provide any evidence
to contradict the cost to repair the City of Jamestown's
fence or the value of Bohnet's pickup, found the cost to
repair Bohnet's pickup was less than the diminution of
value, and ordered Cody to pay $13, 455.78 in restitution to
Bohnet and the City of Jamestown. The court declined to order
restitution for the damage to the rail line owned by BNSF.
5] Cody argues, on direct appeal, that Brand's assistance
was ineffective at his restitution hearing. Cody cites a
post-conviction relief case to support his claim that the
standard of review for a direct appeal alleging ineffective
assistance of counsel is a question of law, fully reviewable
on appeal. See Middleton v. State, 2014 ND 144,
¶ 6, 849 N.W.2d 196. However, the standard of review for
a direct appeal of an ineffective assistance of counsel claim
To establish an ineffective assistance of counsel claim,
the defendant must show the representation fell below an
objective standard of reasonableness and there is a
reasonable probability, but for counsel's
unprofessional errors, the result of the proceeding would
have been different. Generally, ineffective assistance of
counsel claims should be raised in post-conviction
proceedings, during which an evidentiary record can be
made. However, we examine the entire record when an
ineffective assistance of counsel claim is raised on direct
appeal. A conviction will not be reversed unless the record
reveals the assistance of counsel was plainly defective and
requires such reversal.
Unless the record affirmatively shows ineffectiveness of
constitutional dimensions, the defendant must provide the
court with some evidence in the record to support the claim.
Some form of proof is required, and the representations and
assertions of new counsel are not enough.... [W]ithout a
record scrutinizing the reasons underlying counsel's
conduct, adjudging it subpar is virtually impossible.
State v. Hayek, 2004 ND 211, ¶ 5, 689 N.W.2d
422 (quoting State v. Causer, 2004 ND 75, ¶ 19,
678 N.W.2d 552). "'When the record on direct appeal
is inadequate to determine whether the defendant received
ineffective assistance, the defendant may pursue the
ineffectiveness claim at a post-conviction proceeding where
an adequate record can be made.'" State v.
Keener, 2008 ND 156, ¶ 13, 755 ...