from the District Court of Mercer County, South Central
Judicial District, the Honorable Thomas J. Schneider, Judge.
Russell J. Myhre, Enderlin, ND, for petitioner and appellant;
submitted on brief.
Jessica J. Binder, State's Attorney, Stanton, ND, for
respondent and appellee; submitted on brief.
Rocky L. Stein appeals from a district court order denying
his application for post-conviction relief. We affirm.
Stein was charged with criminal vehicular homicide, a class A
felony, and pled guilty to manslaughter, a class B felony.
Stein entered an "open plea" and the judge
sentenced Stein to ten years with the North Dakota Department
of Corrections with three years suspended, and supervised
probation for five years.
In his application for post-conviction relief Stein claims
ineffective assistance of counsel. The district court denied
the application. Stein appealed, and on December 6, 2018,
this Court affirmed the summary dismissal in part, reversed
in part, and remanded for further proceedings. Stein v.
State, 2018 ND 264, 920 N.W.2d 477. This Court held
Stein was entitled to an evidentiary hearing regarding
allegations he was not informed he would be required to serve
at least 85 percent of any period of incarceration, and his
counsel told him he would likely receive only probation.
Id. at ¶ 15. On remand, an evidentiary hearing
was held and the district court denied Stein's
application. Stein appeals.
Stein argues the district court abused its discretion in
denying his application for post-conviction relief. Stein
argues his trial attorney did not adequately inform him he
was subject to a mandatory minimum sentence requiring him to
serve 85 percent of the sentence imposed and that his trial
attorney made assertions in the nature of a guarantee that he
would serve a probation only sentence. Stein also urges this
Court to overrule Sambursky v. State, 2008 ND 133,
751 N.W.2d 247, and State v. Peterson, 2019 ND 140,
927 N.W.2d 74, to the extent necessary, which he claims is
essential to ensure defendants are afforded sufficient
information regarding the 85 percent rule to make an
intelligent decision affecting the ultimate sentence in their
Both parties state the standard of review is abuse of
discretion. However, our standard of review for factual
findings is clearly erroneous.
"'Proceedings on applications for post-conviction
relief are civil in nature and governed by the North Dakota
Rules of Civil Procedure.' Everett v. State,
2015 ND 149, ¶ 5, 864 N.W.2d 450. This Court does not
review a district court's decision on an application for
post-conviction relief for abuse of discretion. We review a
district court's decision in a post-conviction proceeding
'A trial court's findings of fact in a
post-conviction proceeding will not be disturbed on appeal
unless clearly erroneous under N.D.R.Civ.P. 52(a). A finding
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 a mistake
has been made. Questions of law are fully reviewable on
appeal of a post-conviction proceeding.'"
Saari v. State, 2017 ND 94, ¶ 6, 893 N.W.2d 764
(citing Broadwell v. State, 2014 ND 6, ¶ 5, 841
N.W.2d 750 (internal citations and ...