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.
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
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.
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.
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
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.
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.
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.
We employ the following standard of review in post-conviction
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
Olson argues the charge of accomplice to commit murder is not
a cognizable criminal offense in North Dakota.
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.
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."
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