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Jensen v. State

Supreme Court of North Dakota

June 5, 2018

Randy Scott Jensen, 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 Norman G. Anderson, Judge.

          Scott R. Sandness, Jamestown, N.D., for petitioner and appellant; on brief.

          Joshua J. Traiser, Assistant State's Attorney, Fargo, N.D., for respondent and appellee; on brief.

          OPINION

          TUFTE, JUSTICE.

         [¶ 1] Randy Jensen appeals from a district court order denying his application for post-conviction relief. We affirm.

         I

         [¶ 2] In February 2016, Jensen was charged in district court case 09-2016-CR-537 with possession of methamphetamine, a controlled substance. Gordon Dexheimer was appointed as counsel in that matter. Attorney Ross Brandborg represented Jensen in several other criminal cases. Dexheimer, Brandborg, and the State reached a "global resolution" to resolve all of Jensen's cases.

         [¶ 3] In May 2016, Jensen wrote a letter requesting new counsel in 09-2016-CR-537. Dexheimer moved to withdraw from the case, and a hearing was held. The district court allowed Dexheimer to withdraw, and Brandborg, who was present at the hearing, represented Jensen on all of his matters. After 09-2016-CR-537 was called, the district court incorrectly stated that the preliminary hearing had already taken place. The district court then asked for Jensen's plea. Jensen pleaded guilty and was sentenced.

         [¶ 4] In December 2016, Jensen applied for post-conviction relief on the basis of ineffective assistance of counsel and failure to provide a preliminary hearing. At the post-conviction hearing, Brandborg testified to his representation. Jensen did not present evidence. The district court entered an order denying Jensen's application.

         II

         [¶ 5] Jensen argues that he received ineffective assistance of counsel. Ineffective assistance of counsel is a mixed question of law and fact fully reviewable by this court. Broadwell v. State, 2014 ND 6, ¶ 7, 841 N.W.2d 750. To prevail, a petitioner must prove his counsel's performance fell below an objective standard of reasonableness and this deficient performance prejudiced him. Id. Jensen argues that his counsel's performance fell below an objective standard of reasonableness because his counsel "failed to ensure that he understood what was happening in the courtroom" when he changed his plea to guilty.

         [¶ 6] At the change of plea hearing, Brandborg stated that he was "prepared to take care of all of the files" and that the parties had a "global resolution as to everything." The following exchange occurred:

THE COURT: Okay. 09-2016-CR-537, the State of North Dakota versus Randy Scott Jensen. This was Possession of a Controlled Substance at the C Felony level. Mr. Dexheimer was originally appointed, he's been allowed to withdraw now by Court ...

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