from the District Court of Mercer County, South Central
Judicial District, the Honorable Thomas J. Schneider, Judge.
Charles J. Sheeley, Fargo, ND, for petitioner and appellant.
Jessica J. Binder, State's Attorney, Stanton, ND, for
respondent and appellee.
1] Rocky Stein appeals from the district court's order
summarily dismissing his petition for post-conviction relief.
Stein seeks relief from the criminal judgment entered
following his plea of guilty to a charge of manslaughter.
Stein asserts he received ineffective assistance of counsel
prior to his guilty plea. We affirm in part, reverse in part,
and remand this case for further proceedings on Stein's
petition for post-conviction relief.
2] Stein was the driver of one of two vehicles involved in an
accident that occurred in September 2013. The driver of the
other vehicle died as a result of injuries sustained in the
accident. Stein was subsequently charged with criminal
3] While represented by counsel, Stein pleaded guilty to an
amended charge of manslaughter. Stein was sentenced to ten
years' imprisonment with three years suspended for a
period of five years. In his petition for post-conviction
relief, Stein alleged various errors made by his attorney.
4] The State moved the district court for dismissal or
summary disposition of the petition. Stein responded to the
State's motion by filing a personal affidavit, his
college transcripts, and his counseling treatment records.
After reviewing the materials provided by Stein and the
change of plea transcript, the district court found that
Stein had failed to produce any reasonable inferences which
raised genuine issues of material fact regarding his
attorney's representation and granted the State's
request for summary disposition.
5] A district court may summarily dismiss an application for
post-conviction relief if there is no genuine issue of
material fact and the moving party is entitled to judgment as
a matter of law. N.D.C.C. § 29-32.1-09(1); Johnson
v. State, 2006 ND 122, ¶ 19, 714 N.W.2d 832;
Heyen v. State, 2001 ND 126, ¶ 6, 630 N.W.2d
56. This Court reviews an appeal from summary denial of
post-conviction relief as we would review an appeal from a
summary judgment. Johnson, at ¶ 19;
Heyen, at ¶ 6. The party opposing a motion for
summary dismissal is entitled to all reasonable inferences to
be drawn from the evidence and is entitled to an evidentiary
hearing if a reasonable inference raises a genuine issue of
material fact. Heyen, at ¶ 6. For summary
judgment purposes, the evidentiary assertions of the party
opposing the motion are assumed to be true. Dinger v.
Strata Corp., 2000 ND 41, ¶ 14, 607 N.W.2d 886.
Ineffective assistance of counsel issues are mixed questions
of law and fact, which are fully reviewable on appeal.
Heckelsmiller v. State, 2004 ND 191, ¶ 5, 687
6] Stein's petition, although containing multiple
allegations, can be summarized as a contention that he was
not provided with effective assistance of counsel. Stein
bears the burden of proving two elements or prongs to
establish his claim that he received ineffective assistance
of counsel. Johnson, 2006 ND 122, ¶ 20, 714
N.W.2d 832 (citing Garcia v. State, 2004 ND 81,
¶ 5, 678 N.W.2d 568 and Strickland v.
Washington, 466 U.S. 668, 687-88 (1984) (providing the
analytical framework for ineffective assistance claims)).
First, Stein must prove his attorney's performance fell
below an objective standard of reasonableness.
Johnson, at ¶ 20; Wright v. State,
2005 ND 217, ¶ 10, 707 N.W.2d 242. An attorney's
performance is measured through consideration of the
prevailing professional norms. Johnson, at ¶
20. Stein must overcome the strong presumption that his
counsel's representation fell within the wide range of
reasonable professional assistance, and courts must
consciously attempt to limit the distorting effect of
hindsight. Wright, at ¶ 10; Laib v.
State, 2005 ND 187, ¶ 9, 705 N.W.2d 845. Second,
Stein must show that the attorney's deficient performance
resulted in prejudice. Johnson, at ¶ 20;
Wright, at ¶ 10. To establish prejudice in the
context of reviewing a plea of guilty, Stein "must show
that there is a reasonable probability that, but for
counsel's errors, he would not have pleaded guilty and
would have insisted on going to trial." Hill v.
Lockhart, 474 U.S. 52, 59 (1985).
7] Stein makes a number of allegations he contends satisfy
the first prong of the Strickland test; that his
attorney's performance fell below an objective standard
of reasonableness. First, Stein argues his attorney failed to
advise him of new developments in the law which called into
question the district court's prior denial of his motion
to suppress the results of a blood test performed on blood
collected without his consent. Second, Stein alleges his
attorney inappropriately expedited the guilty plea after his
attorney learned he would be leaving the Bismarck-Mandan
Public Defender's Office. He argues that as a result of
his case being expedited, he never had a chance to review the
presentence investigation report as required by law,
information regarding his physical and mental health was
excluded from the presentence investigation report, his
counsel failed to provide a chemical dependency evaluation
and treatment reports to the court, insufficient time was
spent developing the time line of his physical health and
therapy, his counsel failed to hire an expert to explain
Stein's medical and mental health conditions, and he did
not have adequate time to consider the plea or its
consequences. Third, Stein argues he was not adequately
advised of the consequences of pleading guilty. He claims his
counsel failed to inform him that a plea to a charge of
manslaughter would require him to serve at least 85 percent
of any sentence of incarceration under N.D.C.C. §
12.1-32-09.1 and that he was erroneously led to believe there
was a good chance he would get only probation without any
incarceration. The district court determined all of
Stein's allegations failed to satisfy the first prong of
the Strickland test.
8] This Court has previously recognized that when determining
whether summary disposition is appropriate on claims of
ineffective assistance of counsel, the record and transcripts
are generally not adequate. Henke v. State, 2009 ND
117, ¶ 16, 767 N.W.2d 881 (citing Myers v.
State, 2009 ND 13, ¶ 12, 760 N.W.2d 362). However,
our concern regarding a district court's reliance only on
the record has generally been limited to allegations that
allege incidents outside of the record. Id. at
¶ 16. This Court has stated, "[a] petitioner may
allege ineffective assistance of counsel based on matters
occurring outside the court record or transcript, and when
appropriate, a district court should consider evidence of
ineffective assistance of counsel beyond the record."
Id. (quoting Ude v. State, 2009 ND 71,
¶ 15, 764 N.W.2d 419).
9] In the present case, the district court reviewed
Stein's allegations, compared those allegations to the
record and concluded Stein's allegations were in direct
conflict with a clear and unambiguous record, and therefore
Stein failed to satisfy the first prong of the
Strickland test. A majority of Stein's
assertions are contentions that information was not entered
into the record or that he was not provided information
which, had he been provided the information, would have
changed his decision to plead guilty.
10] When a claim made in an application for post-conviction
relief is clearly and unambiguously contradicted by the
record, summary disposition is appropriate. See e.g.,
Howard v. State, 2015 ND 102, ¶¶ 11-12, 863
N.W.2d 203; see also Whiteman v. State, 2002 ND 77,
¶ 22, 643 N.W.2d 704 (summary dismissal is appropriate
when the record conclusively contradicts the allegation). In
summary, we agree with the district court's conclusions
regarding the following allegations made by Stein: 1) that
during the sentencing hearing the parties clearly and
unambiguously discussed the prior denial of Stein's
motion to suppress the blood test, discussed the possibility
of an appeal of the denial of the motion to suppress in light
of the recent developments regarding warrantless blood tests,
and that Stein wished to plead guilty and forego his right to
appeal; 2) that the parties waived the required ten-day
period for reviewing the presentence investigation report
("PSIR"), the PSIR included the physical and mental
health information that Stein claimed was excluded, the PSIR
included a history of Stein's addiction(s), and that
during the sentencing hearing, Stein and his counsel both
discussed "at length" Stein's physical health
and therapy; 3) Stein's assertion that he did not have
adequate time to consider the plea or its consequences is in
direct conflict with the record, with the district court
noting that Stein's counsel informed the court on June
15, 2016 that an agreement had been reached to the amended
charge of manslaughter, the State confirmed the agreement at
a pretrial conference on July 8, 2016 and the change of plea
hearing did not occur until July 25, 2016; and 4) ...