from the District Court of Cass County, East Central Judicial
District, the Honorable Thomas R. Olson, Judge.
C. Kraus-Parr, Grand Forks, ND, for petitioner and appellant.
J. Viste, Assistant State's Attorney, Fargo, ND, for
respondent and appellee.
Donald Edwardson appeals from a judgment dismissing his
application for post-conviction relief. Edwardson argues he
is entitled to post-conviction relief because he received
ineffective assistance of counsel during the underlying
criminal proceedings, he discovered new evidence justifying
the withdrawal of his plea of guilty, the underlying criminal
charge was unlawful, and he was not informed of the minimum
mandatory sentence before he entered his plea of guilty. We
Edwardson was charged with failing to register as a sexual
offender in violation of N.D.C.C. § 12.1-32-15. The
State alleged Edwardson had failed to register his temporary
residence while he was residing at a hotel from March 1,
2017, through March 31, 2017. The charging document included
a statement of the minimum mandatory sentence.
At Edwardson's initial appearance he was informed of the
minimum mandatory sentence for the offense. After a contested
preliminary hearing, the district court found probable cause
to bind the case over for further proceedings. Immediately
after the conclusion of the preliminary hearing there were
brief discussions between counsel for the State and
Edwardson's attorney, followed by a brief discussion
between Edwardson and his attorney. As a result of those
discussions Edwardson decided to enter a plea of guilty to
the charge. The parties informed the court they had reached
an agreement, Edwardson was advised of his rights, he entered
a guilty plea and he was sentenced. The facts to which
Edwardson agreed as part of his change of plea included the
following: "[t]he charge of Failure to Register as a
Sexual Offender in violation of North Dakota Law, in that on
or between March 1, 2017 to March 31, 2017, you failed to
register as a sex offender as required by law."
On appeal Edwardson asserts he received ineffective
assistance of counsel during the underlying criminal
proceedings. He argues an email generated by an
administrative assistant at the Bureau of Criminal
Investigations (BCI) subsequent to his change of plea is
newly discovered evidence justifying the withdrawal of his
guilty plea. He further argues the email conclusively
establishes the charge of failing to register was unlawful
because the city of Fargo was imposing registration
requirements for a homeless person inconsistent with the BCI
email. Finally, Edwardson argues he was not sufficiently
informed of the minimum mandatory sentence prior to his plea
The BCI's email is the foundation for Edwardson's
assertions he received ineffective assistance of counsel,
there is newly discovered evidence, and the charge of failing
to register as a sexual offender is unlawful. The email was
sent by an administrative assistant at the BCI to the Fargo
Police Department in response to an inquiry about the
registration requirements for homeless individuals. Edwardson
claims he was in compliance with the registration
requirements for a homeless person as outlined in the BCI
email, his counsel was ineffective by failing to investigate
the registration requirements and assert compliance as a
defense, and the charge against him is unlawful because the
registration requirements imposed by the City of Fargo are
inconsistent with the BCI email.
Edwardson's focus on the BCI email is misplaced. The
factual foundation for the charge as asserted by the State
and agreed to by Edwardson as part of his change of plea was
that Edwardson had been staying at a hotel from March 1,
2017, to March 31, 2017, and he failed to register the
address of the hotel. The definition of "homeless"
as it applies to the requirement to register excludes
"individuals who are temporarily domiciled or
individuals residing in public or private shelters."
N.D.C.C. § 12.1-32-15(1)(c). "Temporarily
domiciled" includes being "at a location for longer
than ten consecutive days." N.D.C.C. §
12.1-32-15(1)(h). Edwardson was required to register the
location he was temporarily domiciled. N.D.C.C. §
12.1-32-15(2). Regardless of whether the BCI email accurately
recites the registration requirements for individuals who are
homeless and whether Edwardson satisfied the requirements for
a homeless individual, he agreed he failed to register the
location where he was temporarily domiciled. The registration
requirements for individuals who are homeless as described in
the BCI email is therefore not legally relevant to this case.
This Court applies the Strickland test in reviewing
claims of ineffective assistance of counsel which requires
Edwardson to prove two prongs to establish his claim.
Stein v. State, 2018 ND 264, ¶ 6, 920 N.W.2d
477 (citing Garcia v. State, 2004 ND 81, ¶ 5,
678 N.W.2d 568; Strickland v. Washington, 466 U.S.
668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (providing
the analytical framework for ineffective assistance claims)).
Prong one requires Edwardson to prove his attorney's
performance fell below an objective standard of
reasonableness. Stein, at ¶ 6. An
attorney's performance is measured through consideration
of the prevailing professional norms. Id. Edwardson
must provide sufficient proof to overcome the strong
presumption that his counsel's representation fell within
the wide range of reasonable professional assistance, and
this Court is required to consciously attempt to limit the
distorting effect of hindsight. Id. Prong two
requires Edwardson to show that the attorney's deficient
performance resulted in prejudice. Id. To establish
prejudice where a defendant has ...