IN THE SUPREME COURT
STATE OF NORTH DAKOTA
Supreme Court No. 200700119
Richland County District Court No. 04-K-00421
|Paul Dean Oie,|
|State of North Dakota,|
|Ronald W. McBeth, Asst.||Kent M. Morrow|
|Richland County States Attorney||Attorney at Law|
|413 3rd Avenue North||411 North 4th Street #6|
|Wahpeton, ND 58075||Bismarck, ND 58501|
|(701) 642-7766||(701) 255-1344|
|Attorney for Appellee||Attorney for Appellant|
TABLE OF CONTENTS
|TABLE OF CONTENTS||2|
|TABLE OF AUTHORITIES||..3|
|STATEMENT OF FACTS||.4|
|STATEMENT OF THE CASE||.5|
|WAS THE PERFORMANCE OF OIE'S COUNSEL DURING THE STAGES OF THE PROCEEDINGS PRIOR TO HIS ENTRY OF A GUILTY PLEA DEFICIENT, THEREBY CONSTITUTING THE INEFFECTIVE ASSISTANCE OF COUNSEL?|
|LAW AND ARGUMENT||..7|
|CERTIFICATE OF SERVICE||..14|
TABLE OF AUTHORITIES
|Eagleman v. State, 2004 ND 6, 673 N.W.2d 241||..12|
|State v. Oie, 2005 ND 160, 204 N.W.2d 573||5|
|State v. Palmer, 2002 ND 5, ¶12, 648, N.W.2d 18||....12|
|State v. Tennyson, 73 N.D. 262, 14 N.W. 2d 168 (1944)||...13|
|State v. Willey, 381 N.W.2d 183, 186 (N.D. 1986)||....13|
|Whiteman v. State, 2002 ND 77, 643 N.W.2d 704||...12|
|Woehlhoff v. State, 487 N.W.2d 16, 17 (N.D. 1992)||....12|
STATEMENT OF FACTS
The relevant and pertinent facts are contained within the body of the brief in the legal argument.
STATEMENT OF THE CASE
On June 23, 2004, a Complaint was filed in Richland County District Court, charging Paul Dean Oil ("Oie") with two counts of Gross Sexual Imposition. On September 1, 2004, Oil entered pleas of guilty to each count.
On September 1, 2004, Oie filed a Notice of Appeal to the North Dakota Supreme Court. The Judgment was affirmed in State v. Oie, 2005 ND 160, 204 N.W.2d 573.
On November 11, 2004, Oie filed an Application for Post Conviction Relief. On November 27, 2004, the State filed a Motion for Summary Judgment. An evidentiary hearing on one of the claims was held on April 2, 2007. Following the hearing, the Court entered an Order for Judgment and Judgment, denying the application. On April 25, 2007, Oie filed a Notice of Appeal to the North Dakota Supreme Court.
1. WAS THE PERFORMANCE OF OIE'S COUNSEL DURING THE STAGES OF THE PROCEEDINGS PRIOR TO HIS ENTRY OF A GUILTY PLEA DEFICIENT, THEREBY CONSTITUTING THE INEFFECTIVE ASSISTANCE OF COUNSEL?
LAW AND ARGUMENT
1. The Trial Court erred in denying Oie's Petition for Post Conviction Relief.
On September 1, 2004, Paul Oie ("Oie") entered pleas of guilty to two (2) counts of Gross Sexual Imposition.
On November 12, 2006, he filed a pro se Petition for Post Conviction Relief. Prior to the hearing on the Petition on April 2, 2007, the Court appointed attorney Joe Johnson ("Johnson") to represent Oie.
In his Petition, Oie made numerous allegations or grounds for relief. Oie, through Attorney Johnson, agreed that all grounds stated, except for ineffective assistance of counsel, could be summarily dismissed as a misuse of process. (Tr.p. 2, ll. 1-10).
The sole ground remaining on the Petition was that his trial counsel, Don Krassin ("Krassin") had provided ineffective assistance of counsel by failing to view a video taped interview with the alleged victims, KI and MA, that provide exculpatory evidence that a crime had not been committed or that Richland County did not properly have jurisdiction over the matter. (Tr.p.3, l. 25; p.4, ll 1-11).
The Court correctly summarized Oie's claims as "Mr. Oie's ineffective assistance of counsel claim is Mr. Krassin should have reviewed the tapes, and, if he had, I would not have plead guilty to count II." (Tr.p. 6, 1.25; p. 7, ll 1-5). Mr. Johnson also clarified the issue as "had he [Krassin] reviewed the tapes, I think Mr. Krassin probably would have advised Mr. Oie not to plead." (Tr.p.7, ll 6-8). Thus, the focus of his petition is on Count II only, with respect to the charge involving his step daughter MA. (Tr.p.7, ll. 21-25).
Oie presented evidence at the hearing to bolster and clarify his claim of ineffective assistance of counsel. He called Tammy Anderson, a social worker with Cass County Social Services. (Tr.p. 9, ll. 13-15). Ms. Anderson interviewed Mr. Oie's three stepchildren regarding allegations of sexual abuse. (Tr.p.11, ll. 3-7). When the stepchildren M and H were interviewed on June 8, 2004, they "did not disclose being sexually abused." (Tr.p.13, ll. 9-19). The third stepchild, S, was also interviewed and denied any abuse. (Tr.p. 15, ll. 10-13).
Subsequent interviews with the children on July 20 and August 19, 2004, were conducted. (Tr.p.17, ll. 12-16). The interviews were based upon further statements by the children to Ms. Anderson's office. M disclosed "being sexually touched by Paul Oie on her private parts at an apartment that the family had. And she indicated that she hadn't told because she was afraid because Paul would hurt her mom." (Tr.p. 18, ll. 1-5). Upon questioning by Attorney Johnson, it was revealed that the allegation of sexual abuse by Oie against M occurred in an apartment in Fargo, in Cass County. (Tr.p. 20, ll. 16-24). M did not reveal any sexual abuse occurring in Richland County. (Tr.p. 21, ll. 5-6).
Oie's trial counsel testified next. His recollection of the sequence of events was:
KRASSIN: Okay. You asked me a general question. Why I didn't look at the tapes basically?
KRASSIN: The sequence of events was, I was assigned the case in late August of 04 I had a meeting in my office. Mr. Oie, his mother, sister and myself were present. We discussed the cases. We went over the options we had: going to trial; doing a plea agreement; doing an alford plea, etc. And there was a consensus reached at that time as far as I could tell that Mr. Oie was going to plead guilty to the charges here in Richland County. Probably as an alford plea because he denied some of the events had taken place.
KRASSIN: I believe it was on September 1 that he actually plead guilty. Within a week of when we met.
(Tr.p. 24, ll. 3-18).
At the September 1, 2004, plea hearing, Mr. Krassin represented to the Court that "the reason for the alford plea was that Oie would not remember the factual basis for either count and that he was under extreme intoxication." (Tr.p.25, ll. 16-20).
Mr. Krassin did admit to having never looked at the videotapes of the interviews with the children. (Tr.p. 26, ll. 22-24). He may have "listened to part of one, but I certainly didn't review them thoroughly. And I gave my copies to Paul's mother." (Tr.p. 27, ll. 3-5). The reason Mr. Krassin did not look at the tapes was "because Mr. Oie came to your office and discussed the case with you and at the end of your discussion he was going to plead guilty. . ..". (Tr.p. 27, ll. 6-10).
The tapes were received by Mr. Krassin on July 21, 2004. (Tr.p. 28, ll. 24-25). The first meeting with Oie occurred on August 26, 2004. (Tr.p.28, ll. 12-14). Mr. Krassin also told the court at the September 1, 2004, plea hearing that he did not look at the tapes because his VCR did not work. (Tr.p. 29, ll.7-10). Mr. Krassin did limited investigation into the charges. (Tr.p. 32, ll. 10-12).
Mr. Krassin did admit that he believed that Oie "got convicted of at least one too many charges. Because if he did something to MA, it was only once. Not twice. For sure." (Tr.p. 33, ll. 4-6). It was also conceded that the charge involving MA "probably wasn't in Richland County." (Tr.p. 33, ll. 7-9). Without viewing the video tapes, Krassin was unable to know that there was a considerable doubt of the Court's jurisdiction over the MA charge in Richland County. (Tr.p. 33, ll. 18-22). Mr. Krassin never really discussed the issue of jurisdiction with the State prior to the plea hearing or sentencing. (Tr.p. 35, ll. 5-15).
Between the September 1, 2004, plea hearing and the December sentencing, Oie indicated to Krassin that he wanted to plead "not guilty". Krassin interpreted that comment to mean that Oie wanted to seek the withdrawal of his guilty pleas. (Tr.p. 42, ll. 10-17). In a meeting with Krassin prior to the sentencing, Oie advised Krassin that he (Oie) was "going to plead guilty and take my medicine." (Tr.p. 42, ll. 18-24). Mr. Krassin advised Oie of his option to take the case to a jury trial, but did not encourage him to do so. (Tr.p. 43, ll. 7-10).
Mr. Krassin did send a letter to Oie stating, "I've reviewed your statement and I'm not going to look at the tapes." (Tr.p. 45, ll. 17-21).
The trial court explored the subject of whether Mr. Krassin laid out the various options to Mr. Oie prior to his plea hearing. (Tr.p. 52, ll. 17-19). Mr. Krassin told Oie that he (Krassin) believed that there was substantial evidence against him (Oie) on Count I (KI). Tr.p. 54, ll 5-6). He further advised Oie that "if he [Oie] had anything happen with MA I [Krassin] didn't think it happened in both Richland and Cass." (Tr.p. 54, ll. 17-19). Mr. Krassin further advised Oie to discuss the jurisdiction issue with his Cass County attorney because Oie had already plead guilty in Fargo. (Tr.p. 54, ll. 21-23). Oie did not seek legal advice from Krassin. (Tr.p. 55, ll. 16-23).
Mr. Krassin was unable to properly evaluate the strengths and weaknesses of Oie's case because he had failed to view the videotapes. He agreed that such conflicting and inconsistent evidence can be very important in a sexual case. (Tr.p. 67, ll. 5-17).
Finally, Paul Oie testified in support of the petition. He stated that he plead guilty to the MA charge because ". . . I was scared. Because it was convenient." (Tr.p.74, ll 5-9). He believe that he tried to impress upon Mr. Krassin that he did not touch MA. (Tr.p. 75, ll 8-11). Mr. Oie did view the videotapes before he plead guilty. (Tr.p. 75, ll. 23-25p p. 76, ll. 1-8). He never really talked with Mr. Krassin about the videotapes before the sentencing. (Tr.p. 76, ll. 18-25).
Oie's general concern was that "I left all of my faith, 100 percent, in his [Krassin's] abilities to present this the right way." (Tr.p. 81, ll. 17-19).
The Court ruled as follows:
COURT: Mr. Krassin did everything he was supposed to do. The horse is already out of the barn after he's plead guilty. And then we find out about the July 20th . . . in fact Mr. Krassin testified apparently he got some information after the sentencing regarding this Fargo thing and MA. And I think he testified that, well. We've got a geography problem here maybe. I'm calling it a geography problem. What happened to MA didn't happen down here in Richland County. It happened up in Cass County. So what does he do? He tells Mr. Oie, talk to your lawyer about a double jeopardy issue because it's already been plead guilty. I don't know what happened to that but he discharged his duties and he appealed saying there's no factual basis for MA. The Supreme Court disagrees There was a factual basis. The KI witnessing and the admission to the mother, or to the wife.
(Tr.p. 96, ll. 11-25; p. 97, l. 1).
Ineffective assistance of counsel is one ground for relief from a criminal conviction under the Act. N.D.C.C. § 29-32.1-01(1)(a); Woehlhoff v. State, 487 N.W.2d 16, 17 (N.D. 1992). Ordinarily, a claim of ineffective assistance of counsel should be resolved in a post-conviction relief proceeding so the parties can fully develop a record on the issue of counsel's performance and its impact on the defendant's case. State v. Palmer, 2002 ND 5, ¶ 12. 638 N.W.2d 18. A defendant claiming ineffective assistance of counsel must establish two elements: (1) counsel's performance was deficient, and (2) counsel's deficient performance prejudiced the defendant. Id. at ¶11. To demonstrate prejudice, the defendant must establish a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different, and the defendant must specify how and where trial counsel was incompetent and the probable different result. Id. Eagleman v. State,
Eagleman v. State,2004 ND 6, 673 N.W.2d 241.
In Eagleman, the petitioner asserted that his trial lawyer provided ineffective assistance of counsel because he did not investigate or raise the issue of subject matter jurisdiction.
While the North Dakota Supreme Court did reverse a summary disposition of the petition in Whiteman v. State, 2002 ND 77, 643 N.W.2d 704, and remanded for an evidentiary hearing, it did review State v. Tennyson, 73 N.D. 262, 14 N.W.2d 168 (1944). The state argued that the defendant, by his guilty plea, waived the right to object to the trial in Mercer County on jurisdictional grounds, but the Supreme Court disagreed, concluding that where the defendant did not have the benefit of assistance of counsel the guilty plea should not have been accepted in view of the jurisdictional issue.
Oie's petition and claim of ineffective assistance of counsel is the failure of counsel to view the videotapes, which would have alerted him to a lack of jurisdiction by the court in Richland County for Count II involving MA. His claim was bolstered by the testimony of Mr. Krassin that he knew there was a question as to jurisdiction but he failed to view the tapes. Had he done so, he could have urged a dismissal by the State or prevented Oie from pleading to a charge over which the court lacked jurisdiction. Tennyson supports the position that even a voluntarily entered plea of guilty to the charge should not act as a waiver of jurisdictional defect. It may be a waiver of non-jurisdiction defects. State v. Willey, 381 N.W.2d 183, 186 (N.D. 1986). Because of the lack of investigation by Oie's counsel, he should not be prohibited from raising the issue of lack of jurisdiction.
Counsel's performance was deficient. He simply took Oie's "admission" to heart that Oie wanted to plead guilty to the charge involving MA. He failed to discuss the jurisdiction issue with the State. He failed to view the tapes, which he admitted would have led him to conclude that Richland County had no jurisdiction over the charge.
The second prong of the ineffective assistance claim is equally supported by the evidence. Counsel simply permitted the Court to erroneously assume the presence of jurisdiction when a perfunctory review of the videotapes would have revealed a glaring lack of jurisdiction. It is hard to state how this deficient performance could not have prejudiced Oie. He permitted Oie to plead guilty to a charge over which the Court had no jurisdiction. In addition, the Court gave Oie an additional ten year consecutive sentence on Count II. That is prejudice.
The trial Court's order of April 3, 2007, denying the Application for Post Conviction Relief must be reversed. Oie must be permitted to withdraw his plea of guilty to Count II.
Dated this ___ day of July, 2007.
|Kent M. Morrow ID#03503|
|Attorney for Appellant|
|411 North 4th Street #6|
|Bismarck, ND 58501|