IN THE SUPREME COURT
STATE OF NORTH DAKOTA
|State of North Dakota,|
|vs. Supreme Court No. 20120025|
APPEAL FROM THE DECEMBER 13, 2011 ORDER DENYING THE DEFENDANT'S APPLICATION FOR POST-CONVICTION RELIEF FROM BURLEIGH COUNTY DISTRICT COURT
IN BISMARCK, NORTH DAKOTA
THE HONORABLE SONNA ANDERSON PRESIDING
|ATTORNEY FOR APPELLANT|
|THOMAS J. GLASS|
|ND ID # 05882|
|Attorney at Law|
|418 East Rosser Avenue, Suite 102|
|Bismarck, ND 58501|
|Ph. (701) 222-0903|
|Fax (701) 222-0986|
|TABLE OF CONTENTS|
|TABLE OF AUTHORITIES||ii|
|STATEMENT OF THE CASE||1|
|STATEMENT OF THE FACTS||5|
|LAW AND ARGUMENT||8|
|I.||THE DEFENDANT HAS THE RIGHT TO APPEAL TO THE SUPREME COURT.||8|
|II. WHETHER THE DISTRICT COURT ERRED BY DENYING THE PETITIONER'S POST-CONVICTION RELIEF CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL.|
|TABLE OF AUTHORITIESUNITED STATES SUPREME COURT CASES:||Paragraph|
|Strickland v. Washington, 466 U.S. 668 (1984)||9|
|NORTH DAKOTA STATE CASES:|
|State v. Jenkins, 339 N.W.2d 567 (N.D. 1983)||8|
|Johnson v. State, 2004 ND 130, 681 N.W.2d 769||9|
|Berlin v. State, 2000 ND 206, 619 N.W.2d 623||9|
|Stoppleworth v. State, 501 N.W.2d 325 (N.D. 1993)||9|
|Smestad v. State, 2011 ND 163, 801 N.W.2d 691||9|
|Abdi v. State, 2000 ND 64, 608 N.W.2d 292||9|
|Section 29-28-03 N.D.C.C.||8|
|Section 29-28-06 N.D.C.C.||8|
|Rule 37 N.D.R.Crim.P.||8|
ISSUES PRESENTEDI. THE DEFENDANT HAS THE RIGHT TO APPEAL TO THE SUPREME COURT.
II. WHETHER THE DISTRICT COURT ERRED BY DENYING THE PETITIONER'S POST-CONVICTION RELIEF CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL.
STATEMENT OF THE CASE[¶1] This is an appeal from the Order Denying the Petitioner's Post-Conviction Relief claim of ineffective assistance of counsel entered December 13, 2011. [A. 31-33].
[¶2] On February 11, 2011, The Petitioner, Randall Duffy ("Duffy"), filed an Application For Post-Conviction Relief. [A. 6-8]. On March 11, 2011, the State filed State's Answer To Application For Post-Conviction Relief. [A. 9-10]. On October 27, 2011, the State filed a Notice Of Motion; Motion To Dismiss Application For Post-Conviction Relief. [A. 11-17]. On November 18, 2011, Duffy filed a Resistance To Motion To Dismiss Application For Post-Conviction Relief. [A. 18-19]. On November 30, 2011, the Court issued an Order denying the State's request for summary dismissal. [A. 20].
[¶3] A State's Post Hearing Brief On Application For Post-Conviction Relief was filed on December 5, 2011 [A. 21-26]. Petitioner's Post Hearing Brief on Application For Post-Conviction Relief was filed on December 8, 2011. [A 27-30]. On December 13, 2011 the Court issued an Order denying Duffy's application for post-conviction relief. [A. 31-33].
[¶4] On January 12, 2012, Duffy filed a Notice of Appeal. [A. 34 -35].
STATEMENT OF THE FACTS
[¶5] On November 30, 2011 a post-conviction relief hearing was held to determine Duffy's claim of ineffective assistance of counsel. During the hearing two issues were presented to support his claim of ineffective assistance of counsel. First, that Duffy's trial counsel, Jay Greenwood, failed to subpoena a witness, Jody Campbell, that was associated with the events that occurred for which Duffy was convicted. Secondly, Duffy alleges that Mr. Greenwood failed to meet with him face to face prior to trial to discuss trial strategy.
[¶6] During the hearing Mr. Greenwood testified that he did not believe that Ms. Campbell's testimony would have helped the defense at trial because he believed that "Ms. Campbell wasn't there during what was alleged to have happened." [T. 7]. Mr. Greenwood testified that "the only purpose Ms. Campbell would have served was to impeach Mr. Schwartz as to why he was there in the first place." [T. 8].
[¶7] Additionally, during the hearing Duffy claimed that he told Mr. Greenwood that he "wanted Jodi to be able to testify because she could prove everything he was saying was lies." [T. 21]. Duffy also claims that the first time he met face to face to discuss his jury trial with Mr. Greenwood was the morning of the jury trial. [T. 21]. He did testify to discussing the case with Mr. Greenwood over the telephone. [T. 21].
LAW AND ARGUMENT
I. THE DEFENDANT HAS THE RIGHT TO APPEAL TO THE SUPREME COURT.
[¶8] Pursuant to NDCC § 29-28-03, a defendant may appeal from any or all verdicts, judgments, or orders enumerated in NDCC § 29-28-06. See also N.D.R.Crim.P. Rule 37. Accordingly, the Defendant's appeal of the Order Denying Post-Conviction Relief is appropriately before the Court. State v. Jenkins, 339 N.W.2d 567 (N.D. 1983).II. WHETHER THE DISTRICT COURT ERRED BY DENYING THE PETITIONER'S POST-CONVICTION RELIEF CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL.
[¶9] This Court applies the Strickland standard to claims of ineffective assistance of post-conviction counsel. Johnson v. State, 2004 ND 130, ¶ 17, 681 N.W.2d 769. First, the defendant must prove that counsel's performance was deficient. Berlin v. State, 2000 ND 206, ¶ 8, 619 NW 2d 623. In attempting to prove the first element, the defendant must overcome the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance."' Stoppleworth v. State, 501 N.W.2d 325, 327 (N.D. 1993) (quoting Strickland v. Washington, 466 U.S. 668, 689 (1984)). Second, a petitioner must prove that counsel's representation fell below an objective standard of reasonableness and that the petitioner was prejudiced as a result. Smestad v. State, 2011 ND 163, ¶ 11, 801 N.W.2d 691. As to the prejudice prong, this means that a petitioner must show that, but for counsel's errors, the outcome of the proceeding would have been different. Id. This second element requires the defendant to prove that, "but for counsel's unprofessional errors, the result of the proceeding would have been different." Abdi v. State, 2000 ND 64, ¶ 29, 608 N.W.2d 292 (quoting Strickland, at 694).
[¶10] Mr. Greenwood testified that he did not believe that Ms. Campbell's testimony would have helped the defense at trial. Conversely, Mr. Greenwood also testified that "the only purpose Ms. Campbell would have served was to impeach Mr. Schwartz as to why he was there in the first place." Certainly, Jody Campbell's testimony would have been important to discredit the testimony of the victim, Marlon Schwartz. Ms. Campbell was the only witness who was present the night Marlon Schwartz came over to Randall Duffy's house. She was also a witness to the incident that occurred approximately 1 year earlier when Marlon Schwartz broke Randall Duffy's leg. Obviously, Mr. Schwartz's version of events for both of these events differed significantly from Mr. Duffy's version of events. Ms. Campbell testimony was a critical part of establishing Mr. Duffy's claim of self - defense. Consequently, Mr. Duffy was denied the ability to offer a witness who could testify and help bolster Mr. Duffy's claim of self defense and to impeach Mr. Schwartz's explanation as to why he was at the residence. Mr. Duffy was prejudiced by not having the ability to present a witness that could help establish his self - defense claim and impeach Mr. Schwartz's recollection of events.
[¶11] Mr. Greenwood testified that he did not have any contact information for Ms. Campbell. He testified that he did not have a working phone number for Ms. Campbell and left it at that without pursuing alternative options, such as hiring a private investigator or discussing that problem with Mr. Duffy. Pursuing a potential witness for a trial often requires more than a twenty second phone call to determine that a phone number is no longer working. Not having Ms. Campbell as a witness after making a determined effort to locate her would be understandable. Here, Mr. Greenwood's effort fell below an objective standard or reasonableness. Especially, after Mr. Duffy testified that he told Mr. Greenwood that Ms. Campbell was at the Dakota Women's Correctional Center in New England, ND.
[¶12] Certainly, when counsel is preparing for trial the defendant in any case should be afforded the opportunity to participate in his own defense. Mr. Duffy believes he was denied the ability to participate in his own defense because of the lack of contact by Mr. Greenwood. During the trial when presented with a photo of Mr. Schwartz's injury Mr. Duffy claimed that it was the first time that he had seen the photo. Mr. Duffy believes that he was denied the ability to participate in his own defense because he never met with Mr. Greenwood to discuss trial strategy and that he never seen or received all the evidence until the day of the trial. Mr. Greenwood testified that the only face to face contact he had with Mr. Duffy was at a hearing held months prior to the trial. The only other face to face contact between Mr. Greenwood and Mr. Duffy was on the morning of the jury trial.
CONCLUSION[¶13] WHEREFORE, for the reasons stated herein, the Appellant respectfully prays that the Court finds that the Appellant was prejudiced by ineffective assistance of counsel and that the Order Denying Post-Conviction Relief be reversed and remanded.
|Respectfully submitted this 21st day of March, 2012.|
|/s/ Thomas J. Glass|
|Thomas J. Glass, ND ID # 05882|
|418 East Rosser Avenue, Suite 102|
|Bismarck, ND 58501|
|Ph. (701) 222-0903||Fax. (701) 222-0986|