STATE OF NORTH DAKOTA
IN THE SUPREME COURT
|State of North Dakota|
|Joseph Anthony Carpenter,|
|Supreme Court No. 20130014|
|McLean Co. No. 28-09-K-347|
BRIEF OF APPELLEE
Appeal From Memorandum Opinion and
Order Denying Post-Conviction Relief
Dated December 20, 2012
McLean County District Court
South Central Judicial District
The Honorable Bruce A. Romanick, Presiding
|Ladd R. Erickson (ID #05220)|
|McLean County State's Attorney|
|Attorney for Plaintiff-Appellee|
|P. O. Box 1108|
|Washburn, ND 58577|
|TABLE OF CONTENTS|
|TABLE OF CONTENTS . . . .. . 2|
|TABLE OF AUTHORITIES . . . 3|
|STATEMENT OF THE CASE . . 4|
|STATEMENT OF FACTS . . . . . 4|
|ISSUES . . 4|
|WHETHER THE TRIAL COURT PROPERLY DENIED THE PETITION FOR POST CONVICTION RELIEF BECAUSE THERE WAS NOT ANY INEFFECTIVE ASSISTANCE OF COUNSEL AND THE PETITIONER WAS NOT PREJUDICED BY ANY ADVISEMENTS OR LACK OF ADVISEMENTS BY HIS ATTORNEY.|
|STANDARD OF REVIEW . . . . . 4|
|LAW AND ARGUMENT . . . . . 5|
|CONCLUSION . 7|
|TABLE OF AUTHORITIES|
|City of Fargo v. Bommersbacch, 511 N.W. 2d 563, 565 (N.D. 1994) . . . . .. .5 ¶ 8|
|DeCoteau v. State, 2000 ND 44, ¶ 10, 608 N.W.2d 240 . . . . 4 ¶ 3|
|Klose v. State, 2005 ND 192, ¶ 10 (citing State v. Steen,|
|2004 ND 228, ¶ 8, 690 N.W.2d 239) . 4 ¶ 3|
|Lafler v. Cooper, 132 S.Ct. 1376 (2012) . . . . .6 ¶11|
|Missouri v. Frye, 566 U.S. 1399 (2012) . . . . .6 ¶11|
|Sambursky v. State, 2008 ND 133, 751 N.W.2d 247 . .5 ¶ 4|
|State v. Freed, 1999 ND 185 . .5 ¶ 7|
|N.D.R.Civ.P. 52(a) . . . .4 ¶ 3|
|Rule 11, N.D.R.Crim.P. . . . . .5 ¶ 8|
SATEMENT OF THE CASE
¶1 This is an appeal from an order issued by the Honorable Bruce Romanick denying post conviction relief. A hearing on the petition was held on December 17, 2012, and the order denying post conviction relief was issued on December 20, 2012. (App. pages 7-12)
STATEMENT OF FACTS
¶2 The state will acquiesce to the defendant's recitation of the facts and make any such clarifications or additions to those facts as context of the issues demands.
WHETHER THE TRIAL COURT PROPERLY DENIED THE PETITION FOR POST CONVICTION RELIEF BECAUSE THERE WAS NOT ANY INEFFECTIVE ASSISTANCE OF COUNSEL AND THE PETITIONER WAS NOT PREJUDICED BY ANY ADVISEMENTS OR LACK OF ADVISEMENTS BY HIS ATTORNEY.
STANDARD OF REVIEW
¶3 The issue of ineffective assistance of counsel is a mixed question of law and fact which is fully reviewable by [the Supreme] Court." Klose v. State, 2005 ND 192,¶ 10 (citing State v. Steen, 2004 ND 228, ¶ 8, 690 N.W.2d 239). [A] trial court's findings of fact in a post-conviction proceeding will not be disturbed on appeal unless they are clearly erroneous under N.D.R.Civ.P. 52(a). Klose v. State, 2005 ND 192, ¶ 10. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if it is not supported by the 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.
LAW AND ARGUMENT
¶4 Carpenter claims post conviction relief is warranted in his case because his trial attorney did not advise him of the possible sentencing implications of the state's filing of a notice of habitual offender. In Sambursky v. State, 2008 ND 133, 751 N.W.2d 247 the Court reviewed a defendant's claim that he had not been advised by his attorney of the impact of the 85% sentencing rule when he accepted a plea agreement. The Court ruled:
¶5 "We conclude the district court did not err in finding that Sambursky's trial counsel did not "actively misinform" him about the length of time he would serve in the state penitentiary under the plea agreement and that the evidence demonstrated his trial counsel merely failed to inform Sambursky of the 85 percent service requirement. On the basis of the record and the district court's findings of fact, we are not left with a definite and firm conviction a mistake has been made. We therefore conclude Sambursky failed to carry his heavy burden to establish that his trial counsel's representation fell below an objective standard of reasonableness.
¶6 In this case, Carpenter does not allege any "actively misinformed" information was told to him by his attorney. Instead, he claims if he would have been told more about the North Dakota habitual offender statute he might have changed his plea instead of going to trial. The trial court's response to that was:
¶7 Carpenter states if he had known about the habitual offender statute, this would have made a difference. Carpenter does not come out and say he would have entered a guilty plea and taken the deal offered, just that it would have made a difference. Carpenter rejected the State's offer of a (8) eight years with (3) three years suspended. Carpenter continued in his not guilty plea and proceeded to trial. In State v. Freed, 1999 ND 185 the Supreme Court stated:
¶8 "Offense-enhancing or sentencing enhancing prior convictionmust be alleged in the complaint or information or otherwise brought to the attention of a defendant if the State intends to use the prior convictions to enhance either the offense or the sentence upon a subsequent conviction." City of Fargo v. Bommersbacch, 511 N.W. 2d 563, 565 (N.D. 1994). Rule 11, N.D.R.Crim.P., "which provides a court may not accept a plea of guilty without first informing the defendant of any statutory mandatory minimum punishment, if any, for the offense . . . does not specifically such a requirement except for a plea of guilty." Id. "For a not guilty plea, due process does not require specific arraignment notification of a mandatory minimum sentence." Id.
¶9 If by rule the Court is not required to advise a defendant or mandatory sentencing unless during a guilty plea, how can it be considered ineffective assistance of counsel to not have somehow foreseen the State would file for sentencing enhancement. Finck objected to the filing of the habitual offender notice, he objected to the short notice of the filing, and objected to the use of the late filed certified judgments to being used to enhance the sentence. Carpenter has not shown Finck's representation fell below any reasonable threshold and Carpenter has not shown how the alleged ineffective assistance of counsel has prejudiced him. Prior to trial and the filing of the habitual offender notice Carpenter faced up to (10) ten years in prison. Carpenter rejected a plea offer for a (5) five year sentence of incarceration. Carpenter after trial and the notice of habitual offender faced up to (20) twenty years in prison. Carpenter availed himself of a trial forcing the State to prove the charge against him. Carpenter was given the opportunity to contest the prior convictions used to enhance his sentence under the habitual offender statute. Carpenter has not been prejudiced in any shape, manner or form.
¶10 Carpenter has failed to carry the burden of his allegations of ineffective assistance of counsel. His petition is without merit and is ordered dismissed.
¶11 The trial court's finding that "Carpenter has not been prejudiced in any shape, manner or form" by any alleged none communications from his attorney about possible sentencing implications of the habitual offender statute moots his reliance on Lafler v. Cooper, 132 S.Ct. 1376 (2012) and Missouri v. Frye, 566 U.S. 1399 (2012). In other words, the trial court found Carpenter's rejection of the plea offers that were less than the maximum normal sentence he could receive weighed against him and his creditability that he would have accepted responsibility of his crime and pled guilty with more information about habitual offender status.
¶12 The trial court's findings of fact that there was not defective representation of Carpenter are far from "clearly erroneous" because the record supports those findings. Therefore, the state respectfully requests the Court to uphold the underlying findings and trial court order.
|¶13||Respectfully submitted this day of May, 2013.|
|Ladd R. Erickson|
|McLean County State's Attorney|
|P. O. Box 1108|
|Washburn, ND 58577|
|Telephone: (701) 462-8541|
|Facsimile: (701) 462-8832|