IN THE SUPREME COURT
STATE OF NORTH DAKOTA
|State of North Dakota,|
|Supreme Court No. 20130014|
|McLean County No. 51-07-K-01802|
BRIEF OF APPELLANT
APPEAL FROM MEMORANDUM OPINION AND ORDER DENYING
DATED DECEMBER 20, 2012
McLEAN COUNTY DISTRICT COURT
SOUTH CENTRAL JUDICIAL DISTRICT
THE HONORABLE BRUCE A. ROMANICK, PRESIDING
|MYHRE LAW OFFICE|
|By: Russell J. Myhre|
|Attorney at Law|
|341 Central Avenue, Suite 3|
|PO Box 475|
|Valley City, North Dakota 58072-0475|
|Telephone: (701) 845-1444|
|Fax: (701) 845-1888|
|ATTORNEY FOR Petitioner-|
|TABLE OF CONTENTS|
|TABLE OF CONTENTS||p. 2|
|TABLE OF AUTHORITIES||p. 3-4|
|STATEMENT OF THE ISSUES||¶1|
|STATEMENT OF CASE||¶2-3|
|STATEMENT OF THE FACTS||¶4-7|
|LAW AND ARGUMENT||¶8-20|
|TABLE OF AUTHORITIES|
|Statutes and Rules||Paragraph|
|North Dakota Century Code 12.1-21-02(1)(a)||¶ 3|
|North Dakota Century Code 12.1-2-02(2)||¶ 3|
|North Dakota Century Code 12.1-32-09||¶ 4|
|North Dakota Century Code 29-28-03||¶ 9|
|North Dakota Century Code 29-28-06||¶ 13|
|North Dakota Rules of Civil Procedure 52(a)||¶ 11|
|United States Constitution Sixth Amendment||¶ 15, 17|
|Hill v. Lockhart, 474 U.S. 52 (1985)||¶ 14|
|Lafler v. Cooper, 132 S. Ct. 1376 (2012)||¶ 16, 17, 20|
|Missouri v. Frye, 566 U.S. ___, 132 S. Ct. 1399, 182 L. Ed. 2d|
|379 (2012)||¶ 16, 17, 20|
|Odom v. State, 2010 ND 65, 780 N.W.2d 666||¶ 11|
|Padilla v. Commonwealth of Kentucky, 559 U.S. 356 (2010)||¶ 15|
|State v. Carpenter, 2011 ND 20, 793 N.W.2d 765||¶ 3|
|State v. Carpenter, 2012 ND 46, 809 N.W.2d 833||¶ 3|
|State v. Lewis, 291 N.W.2d 735 (ND 1980)||¶ 9|
|State v. Vondal, 1998 ND 188, 585 N.W.2d 129||¶ 9|
|Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.|
|Ed.2d. 674 (1984)||¶ 15|
STATEMENT OF THE ISSUES
[¶1] Whether the trial court's denial of Defendant's Petition for Post-Conviction Relief on the grounds of ineffective assistance of counsel was an abuse of discretion and clearly erroneous, where a plea agreement had been previously presented and rejected prior to trial, the prosecutor filed a motion to enhance the defendant's sentence as a habitual offender the day immediately prior to trial which was subsequently appealed, reversed, and remanded on a previous appeal for lack of timeliness; the defendant's attorney did not inquire whether the previous plea offer was still open; did not advise the defendant regarding the import about how a motion to enhance sentence might impact the defendant; did not ascertain that the plea offer was still open; and the defendant instead went to trial, was convicted, and given an enhanced sentence.
STATEMENT OF THE CASE
[¶ 2] A. Nature of the case, course of the proceedings, and disposition in the trial court.
[¶3] This is an appeal from a Memorandum Opinion and Order denying post-conviction relief, dated December 20, 2012. The defendant, Joseph Carpenter (hereinafter "Carpenter"), was charged and convicted of Endangering By Fire or Explosion, a violation of § 12.1-21-02(1)(a) and 12.1-21-02(2), North Dakota Century Code. Carpenter was sentenced on March 10, 2010, as a habitual offender and given a sentence of fifteen (15) years. Carpenter appealed in State v. Carpenter, 2011 ND 20, 793 N.W.2d 765 (herein "Carpenter 1"), and this court affirmed Carpenter's conviction but reversed and remanded so proper notice and opportunity to respond could be afforded to Carpenter for the habitual offender. Following the remand and resentencing, in which the trial court again found grounds that Carpenter was a habitual offender under the sentencing statute; Carpenter was again sentenced to fifteen (15) years of imprisonment. Carpenter again appealed in State v. Carpenter, 2012 ND 46, 809 N.W.2d 833 (herein Carpenter 2"), arguing the trial court abused its discretion by sentencing him as a habitual offender. This court affirmed the sentencing. On July 23, 2012, Carpenter then brought a petition for post-conviction relief, and on December 17, 2012, there was a hearing. On December 20, 2012, the trial court filed a Memorandum Opinion and Order Denying Post-Conviction Relief, from which Carpenter now appeals.
STATEMENT OF THE FACTS
[¶4] The underlying facts in this case were succinctly described by this court in Carpenter's first appeal:
[¶2] Carpenter and Jeffrey Hart lived in separate vehicles parked near each other in a parking lot. Carpenter and Hart were involved in an altercation. Several hours later, Hart awoke to find his vehicle in flames. Hart had burns on his hands, arms, and legs. His vehicle was destroyed, along with his possessions inside. Investigators determined the fire was set intentionally, and Carpenter was charged with endangering by fire or explosion. The jury found Carpenter guilty of endangering by fire or explosion by placing another person in danger of death under circumstances manifesting an extreme indifference to the value of life, and guilty of endangering by fire or explosion by causing damage to property in excess of two thousand dollars. The trial court sentenced Carpenter based on the jury's verdict of guilty on endangering by fire or explosion by placing another person in danger of death under circumstances manifesting an extreme indifference to the value of life. The trial court did not sentence Carpenter for endangering by fire or explosion by causing damage to property in excess of two thousand dollars.
[¶3] One day before trial, the State filed notice of its intention to seek a habitual offender sentence enhancement under N.D.C.C. § 12.1-32-09. Carpenter objected to the notice before the trial began by asserting one day was unreasonable notice. The trial court found the notice was reasonable. The jury was not informed of the State's intention to seek a habitual offender sentence enhancement until after the guilty verdict was returned. During sentencing, the State presented Minnesota criminal judgments against Carpenter to the jury, and the jury found Carpenter was a habitual offender within the meaning of the statute. The trial court noted it also found Carpenter was a habitual offender and enhanced Carpenter's sentence.
Carpenter 1, ¶ 2-3. On remand, Carpenter was sentenced to fifteen years imprisonment, given credit for time served, and ordered to pay six thousand ($6,000) in restitution. Court fees were waived.
[¶5] In the hearing on the Petition for Post-Conviction relief, Carpenter testified that he had not been advised of the motion to enhance his sentence as a habitual offender until the morning of the trial, he never discussed the potential impact of the habitual offender statute with his counsel, and he asked his trial counsel if the plea agreement was still on the table and was told it was not. Transcript, pp. 13-14. Carpenter's trial counsel testified he had never discussed the habitual offender statute with Carpenter immediately prior to trial because he was concentrating on proceeding to trial, but had briefly indicated that the habitual offender statute might be a factor in his case if it was filed by the prosecution. He also indicated that because it had not been filed, any discussion of the habitual offender statute had been perfunctory, at best. Id. pp. 38, ll. 4-5, 17-23; 40, ll. 1-13. He also testified that he believed the original plea offer of eight (8) years of imprisonment, with supervised probation to follow, which Carpenter had previously rejected, had been revoked as of the morning of the jury trial because that was a "standard" practice. Id. p. 40. However, trial counsel also testified that he did not ask the prosecutor if the previous plea proposal had been withdrawn after he learned of the motion for habitual offender enhanced sentencing, which was only filed the day prior to the jury trial. Id. p. 42. Interestingly, at no point during the prosecutor's cross-examination of Carpenter's trial counsel at the post-conviction hearing was there any specific questioning about whether the plea agreement had, in reality, been withdrawn. What is clear is that trial counsel assumed, but did not ascertain, the plea offer had been withdrawn, made no inquiry of the prosecutor whether the plea offer was still existent and available, and did not advise Carpenter how the habitual offender statute might impact him or how it was applicable to him under North Dakota law if he went to trial.
[¶6] In its decision, the trial court states:
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 initial deal offered, just that it would have made a difference.
Memorandum Opinion and Order Denying Post-Conviction Relief, p. 5. However, in his testimony, Carpenter clearly stated on both direct and redirect examination he would have accepted the plea agreement if only he had been fully informed of the consequences of an enhanced sentence for being a habitual criminal.
(On DIRECT EXAMINATION)
Q (Myhre): Do you believe that if you had been--if the terms of a plea agreement, including the potential sentence for habitual offender had been discussed with you, that you have taken the plea agreement that Mr. Erickson had offered?
A (Carpenter): Yes, sir
Q And do you believe that if you had been fully informed of the sentence potential, sentencing consequences, that this would have made a difference in your decision-making?
A Yes, sir.
Tr. P. 16-17. See also Id. REDIRECT EXAMINATION at P. 28-29.
[¶7] Carpenter properly filed a Notice of Appeal on January 14, 2013.
LAW AND ARGUMENT
[¶8] A. Jurisdiction
[¶9] Appeals shall be allowed from decisions of lower courts to the supreme court as may be provided by law. Pursuant to constitutional provisions, the North Dakota legislature enacted Sections 29-28-03 and 29-28-06, NDCC, which provide as follows:
An appeal to the supreme court provided for in this chapter may be taken as a matter of right.
N.D.C.C. Section 29-28-03.
An appeal may be taken by the defendant from:
1. A verdict of guilty;
2. A final judgment of conviction;
3. An order refusing a motion in arrest of judgment;
4. An order denying a motion for new trial; or
5. An order made after judgment affecting any substantial right of the party.
N.D.C.C. Section 29-28-06. State v. Lewis, 291 N.W.2d 735 (N.D. 1980). The Defendant's right to an appeal was reiterated in State v. Vondal, 1998 ND 188, 585 N.W.2d 129.
[¶10] B. Standard of Review
[¶11] The standard of review in a post-conviction proceeding is the clearly erroneous standard. "The district 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., Rule 52(a)." Odom v. State, 2010 ND 65, ¶ 10, 780 N.W.2d 666.
[¶12] Further, "[a] finding of fact 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 the finding, this Court is left with a definite and firm conviction a mistake has been made. Id.
[¶ 13] C. ISSUE
[¶114] Whether the trial court's denial of Defendant's Petition for Post-Conviction Relief on the grounds of ineffective assistance of counsel was an abuse of discretion and clearly erroneous, where a plea agreement had been previously presented and rejected prior to trial, the prosecutor filed a motion to enhance the defendant's sentence as a habitual offender the day immediately prior to trial which was subsequently appealed, reversed, and remanded on a previous appeal for lack of timeliness; the defendant's attorney did not inquire whether the previous plea offer was still open; did not advise the defendant regarding the import about how a motion to enhance sentence might impact the defendant; did not ascertain that the plea offer was still open; and the defendant instead went to trial, was convicted, and given an enhanced sentence.
[¶15] Traditionally, defense attorneys were only required to advise their clients of the direct consequences of convictions: the sentence likely to result from a plea bargain, the maximum sentence one might face at trial, and the risk of conviction at trial. The Sixth Amendment to the United States Constitution does not require attorneys to tell their clients about any collateral consequences, including civil penalties such as loss of professional licenses, loss of government benefits, and loss of voting rights. However, in cases such as Padilla v. Commonwealth of Kentucky, 559 U.S. 356 (2010), a case in which the Supreme Court decided that criminal defense attorneys must advise non-citizen clients about the deportation risks of a guilty plea, that court extended it's prior decisions on criminal defendants' Sixth Amendment right to counsel to immigration consequences. See also Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (promulgated a two-prong test for ineffective assistance of counsel in trials in which the defendant was convicted); Hill v. Lockhart, 474 U. S. 52 (1985) (extending Strickland to cases in which the defendant pled guilty rather than going to trial based upon improvident advice from counsel).
[¶16] One of the fundamental ethical responsibilities of defense counsel is to ascertain the client is able to make informed and intelligent decisions during the course of a criminal prosecution. The accused has the absolute right to take his or her case to trial, or give up the right to trial and plead guilty. It is the client's decision to take a case to trial, or not. An attorney cannot reject or withhold a pretrial offer without giving the client the opportunity to make a thoughtful decision as to the correct course of action to pursue. An must counsel a client sufficiently as to whether to accept the offer, thus preventing the client from being able to make an intelligent and knowing decision as to whether to plead guilty or go to trial. These principles regarding the appropriate conduct of a defense attorney were articulated in two powerful decisions, Missouri v. Frye, 566 U.S. __, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012) and Lafler v. Cooper, 132 S.Ct. 1376 (2012), which were both decided on the same day and both involved the responsibilities of defense counsel in plea negotiations.
[¶17] In Missouri v. Frye, the prosecutor sent a letter to defense counsel, in a case involving a charge of diving with a revoked license, offering the defendant the opportunity to plead guilty and receive a sentence of 90 days in jail. Defense counsel did not inform the defendant about the offer, and the matter proceeded to trial, resulting in a 3-year prison sentence. In Lafler v. Cooper, the prosecutor offered the defendant a sentence of 51 to 85 months in prison in exchange for pleading guilty to a charge of assault with intent to murder. Defense counsel advised the defendant incorrectly that the defendant could not be convicted on that charge because the victim was shot below the waist. The defendant went to trial and was convicted, and received a mandatory prison sentence of 185 to 360 months. If defense counsel had correctly advised the defendant about the risks of trial, the defendant would have received far less punishment if he had accepted the plea proposal.
[¶18] The Supreme Court concluded that both of these defendants had been given ineffective assistance of counsel, greatly to their detriment. In strong language, the Court declared that defense counsel has the duty to convey pretrial offers to the accused, and to advise the accused concerning the risks of going to trial. Ultimately, it is the client who must make the difficult decision whether to take a case to trial, or not. But in order to make a knowing and intelligent decision, the accused must receive effective assistance of counsel. In a five-four majority decision, Justice Kennedy reasoned that the right to effective counsel extends to the plea bargaining process because plea bargaining is so pervasive in the justice system. The Court rejected the argument that a fair trial remedies defense counsel's ineptitude during plea-bargaining, because the negotiation of a plea is during a "critical stage" of the criminal proceeding for a defendant. Id. at 1385.
[H]ere the ineffective advice led not to an offer's acceptance but to its rejection. Having to stand trial, not choosing to waive it, is the prejudice alleged. In these circumstances a defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed.
Id. Justice Scalia dissented, claiming the decision is inconsistent with decades of precedent and inconsistent with the Sixth Amendment. The dissent criticized the majority opinion, fearing that the "new field of constitutionalized criminal procedure: plea-bargaining law" will create ample litigation. Id. at 1391. The majority focused on the standards for prejudice and the appropriate remedy. The majority held that the defendant has the burden to show that the defendant would have accepted the plea "but for the ineffective advice of counsel", and the sentence would have been less severe under the plea offer than the judgment imposed. Id. at 1385. The remedy must neutralize the constitutional violation, without granting a windfall to the defendant. The majority found that this remedy could be a trial court's evidentiary hearing and re-sentencing, or in situations where a mandatory sentence is required, the court could require the prosecution to reoffer the plea offer. The trial court then could exercise its discretion in determining whether to vacate the conviction and to re-sentence the defendant under the plea bargain or leave the conviction undisturbed. Id.
[¶19] In the instant case, Carpenter has established that he was disadvantaged at trial by the prosecutor not filing the motion for enhanced sentencing until the day prior to trial.
The one-day notice prejudiced both the trial court and Carpenter and was not given at a reasonable time before trial. The trial court abused its discretion under these circumstances when it allowed the sentence enhancement proceeding to continue despite Carpenter and the court receiving notice of the State's intention to seek a sentence enhancement the day before trial. We reverse the sentence and remand for reconsideration of Carpenter's sentence upon proper notice.
Carpenter 1 at [¶27]. Carpenter has established that he rejected the proposed plea offer from the prosecution which had been made prior to the time that the State filed its motion to enhance sentencing as a habitual offender. This plea offer was made approximately one week prior to trial. Testimony from his defense attorney indicates that, while he made appropriate objections to the filing of this motion, he did not approach the prosecutor after this significant change in circumstances to ascertain whether the plea offer was withdrawn, but rather was focused upon going to trial.
A When we got there the morning of the trial, I guess I just--I didn't even ask Mr. Erickson. I just figured at that point we already had a Jury there, that we were trying the case. So I had assumed, at the risk of taking an assumption, I assumed it [the plea offer] was no longer valid.
Q So you did not approach Mr. Erickson at that point saying, hey, is that offer still on the table? You convinced us to take it.
A No, because I had--again, I had taken that same offer to Mr. Carpenter about a week prior and he said "no".
Q But the difference a week prior was that there was no habitual offender that you were aware of?
A There was no notice for habitual offender. That's correct.
Q And this was sufficient change in circumstances where you should have gone back, in your professional opinion, and approached Mr. Erickson at that time point?
A If my client would have said, hey, if I would have known that, I would plead guilty. I would have approached Mr. Erickson and said, hey, can we work this out?
Tr. 42. The trial attorney did not discuss the possibility of a motion for enhanced sentencing with Carpenter. Id. at 53, ll. 20-21. As a result, Carpenter went to trial, was convicted, and received approximately two times the sentence which was offered in the plea offer.
[¶20] One question which should be addressed in this particular case is whether the fact that Carpenter did not direct his defense attorney to contact the prosecutor on the morning of his jury trial to determine whether the original plea offer was still open or had been withdrawn after learning that the State had filed a motion to enhance sentencing. The principles articulated in both Frye and Lafler are that the responsibility for providing advice and counsel to a defendant in a criminal proceeding about the advisability of accepting or rejecting a plea agreement lie with the defense attorney and not with the defendant himself. To place the burden upon the defendant to make such a determination when the defendant has not been provided sufficient information or legal advice about the potential consequences of enhanced sentencing flies in the face of Frye and Lafler.
[¶21] The denial of post conviction petition was an abuse of the trial court's discretion because the denial wrongly placed the responsibility for initiating plea bargaining after the last minute motion to enhance sentencing upon Carpenter, when testimony clearly indicated he had not been given appropriate, correct information to make a knowing, informed, and intelligent decision about whether to reinitiate plea bargaining in light of this significant change in circumstances. The dismissal of Carpenter's Application for Post Conviction Relief was clearly erroneous and should be reversed and remanded.
|Dated this 5th day of April, 2013.|
|Russell J. Myhre|
|Attorney at Law|
|ND ID#: 03180|
|341 North Central Avenue North STE 3|
|P.O. Box 475|
|Valley City, ND 58072|
|Telephone: (701) 845-1444|
|Fax: (701) 845-1888|
|Attorney for Appellant.|