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Olson v. State

Supreme Court of North Dakota

May 16, 2019

Jessy Duane Olson, 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 Thomas R. Olson, Judge.

          Garrett D. Ludwig, Mandan, ND, for petitioner and appellant.

          Reid A. Brady (argued), Assistant State's Attorney, and Nicholas Samuelson (appeared), under the Rule on Limited Practice of Law by Law Students, Fargo, ND, for respondent and appellee.

          OPINION

          McEvers, Justice.

         [¶1] Jessy Olson appeals a district court order denying his application for post-conviction relief. Olson argues accomplice to murder is not a cognizable offense, and he received ineffective assistance of counsel and his guilty pleas to the charges of accomplice to murder and conspiracy to commit aggravated assault were not voluntary. We affirm.

         I

         [¶2] In May 2015, Olson and others were involved in a fight outside a bar in Fargo. Three individuals sustained serious injuries, including Joey Gaarsland, who later died from his injuries. Olson was arrested and charged with murder and three counts of conspiracy to commit aggravated assault. The district court appointed an attorney to represent Olson throughout the proceeding.

         [¶3] In March 2016, the State amended the criminal charges against Olson. The State amended the murder charge to accomplice to murder and dismissed one of the counts of conspiracy to commit aggravated assault. The State alleged Olson acted as an accomplice to Gaarsland's murder by aiding another in committing the offense that resulted in Gaarsland's death.

         [¶4] Olson and the State entered into a written "Proffer Agreement" relating to a resolution of the case. Olson agreed to cooperate with the State in the prosecution of the other defendants. The agreement provided Olson would plead guilty and the State would recommend no more than twenty years in prison and Olson would be free to argue for a lesser sentence. After signing the agreement, Olson entered Alford pleas to accomplice to commit murder and two counts of conspiracy to commit aggravated assault. In October 2016, Olson was sentenced to twenty years in prison.

         [¶5] Olson applied for post-conviction relief, arguing his guilty pleas were not knowing and voluntary, accomplice to murder is not a cognizable offense, and he received ineffective representation from his attorney. Olson requested the district court grant him post-conviction relief so he could withdraw his guilty pleas.

         [¶6] At an evidentiary hearing on Olson's application, he testified that on the basis of his attorney's advice, he was rushed in to pleading guilty and believed he would be sentenced to five years in prison instead of twenty years. The district court denied Olson's application, concluding his attorney provided effective representation and his guilty pleas were knowing and voluntary.

         II

         [¶7] We employ the following standard of review in post-conviction relief proceedings:

A trial court's findings of fact in post-conviction relief proceedings will not be disturbed unless they are clearly erroneous. Hill v. State, 2000 ND 143, ¶ 17, 615 N.W.2d 135. A finding of fact 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 that a mistake has been made. DeCoteau v. State, 2000 ND 44, ¶ 10, 608 N.W.2d 240. Questions of law are fully reviewable on appeal of a post-conviction proceeding. Falcon v. State, 1997 ND 200, ¶ 9, 570 N.W.2d 719.

Peltier v. State, 2003 ND 27, ¶ 6, 657 N.W.2d 238.

         A

         [¶8] Olson argues the charge of accomplice to commit murder is not a cognizable criminal offense in North Dakota.

         [¶9] Under N.D.C.C. § 12.1-16-01(1)(b), a person is guilty of murder, a class AA felony, if the person "[c]auses the death of another human being under circumstances manifesting extreme indifference to the value of human life[.]" Extreme indifference murder is a general intent crime. State v. Borner, 2013 ND 141, ¶ 18, 836 N.W.2d 383. "Under N.D.C.C. § 12.1-16-01(1)(b), a person does not intend to cause the death of another human-being, but rather death is a consequence of the defendant's willful conduct." Borner, at ¶ 18. "In other words, extreme indifference murder results in an unintentional death from behavior manifesting an extreme indifference to the value of human life." Id.

         [¶10] The amended information charged Olson with accomplice to commit murder under N.D.C.C. §§ 12.1-03-01(1)(b) and 12.1-16-01(1)(b), claiming Olson "acted as an accomplice to the murder of Joey Gaarsland by intending that an offense be committed and aiding another in committing the offense that resulted in the death of Joey Gaarsland." Under N.D.C.C. § 12.1-03-01(1)(b), "[a] person may be convicted of an offense based upon the conduct of another person when: [w]ith intent that an offense be committed, he commands, induces, procures, or aids the other to commit it, or, having a statutory duty to prevent its commission, he fails to make proper effort to do so."

         [¶11] Olson's primary argument is that because conspiracy to commit extreme indifference murder is not cognizable, accomplice to extreme indifference murder is also not cognizable. See Borner, 2013 ND 141, ¶ 20, 836 N.W.2d 383 (holding "conspiracy to commit extreme indifference murder, under N.D.C.C. §§ 12.1-06-04 and 12.1-16-01(1)(b), is not a cognizable offense"). Olson has not cited any authority holding accomplice is synonymous with conspiracy. In State v. Lind, 322 ...


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