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Stein v. State

Supreme Court of North Dakota

December 12, 2019

Rocky Lynn Stein, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee

          Appeal 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.

          OPINION

          CROTHERS, JUSTICE.

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

         I

         [¶2] 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.

         [¶3] 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.

         [¶4] 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 criminal case.

         II

         [¶5] 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 as follows:
'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, ΒΆ 5, 841 N.W.2d 750 (internal citations and ...


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