Abdi v. State, 990239.

• Decision Date: 30 March 2000
• Docket Number: No. 990239.,990239.
• Citation: 608 N.W.2d 292,2000 ND 64
• Parties: Ismail Mohamed ABDI, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee,
• Court: North Dakota Supreme Court

608 N.W.2d 292

2000 ND 64

Ismail Mohamed ABDI, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee,

No. 990239.

Supreme Court of North Dakota.

March 30, 2000.

Shane C. Perry (argued), Perry, Perry & Perry, Minneapolis, MN, and Bruce D. Quick and Monte L. Rogneby (appearance), Vogel, Weir, Bye, Hunke & McCormick, Ltd., Fargo, ND , for petitioner and appellant.

Birch P. Burdick, State's Attorney, Fargo, ND, for respondent and appellee. Argued by John Gross, third year law student.

VANDE WALLE, Chief Justice.

[¶ 1] Ismail M. Abdi appealed from a judgment denying his application for post-conviction relief from a conviction entered upon his guilty plea to an assault charge. We hold the post-conviction court did not abuse its discretion in denying Abdi's request to withdraw his guilty plea and, on this record, Abdi has not shown he received ineffective assistance of counsel. We affirm.

I

[¶ 2] In August 1998, Abdi, a Somalian native who had been admitted into the United States in 1993, was charged with two counts of aggravated assault under N.D.C.C. § 12.1-17-02 for allegedly stabbing two victims.

[¶ 3] At Abdi's initial appearance on August 7, 1998, the trial court advised a group of defendants:

First of all, you have the right to be present at each and every stage of the proceedings.

You have the right to have an attorney present to represent you at each and every stage of the proceedings. If you cannot afford one and the Court decides that you qualify, then an attorney can be appointed to represent you at public expense.

You have the right to remain silent, except to enter a plea of guilty or not guilty. If you do remain silent, I will enter a not guilty plea for you.

You have the right to a jury trial upon the entry of a not guilty plea. And you may, if the State's Attorney's office agrees and the judge agrees, waive your right to a jury trial and have it tried before the judge without a jury. If you are tried before a jury, though, a unanimous verdict of guilt is required before the jury can convict you if they do convict you.

You have the right to confrontation with the witnesses who would take the stand and testify against you. And by that I mean you have the right to cross-examine the witnesses who take the stand and testify against you.

You also have the right to subpoena power of the State of North Dakota to compel witnesses to come forward and testify in your own defense.

You have the right to reasonable delay within which to prepare a defense.

You have the right not to testify at your own trial. And by that I mean you can have a trial without ever taking that witness stand. And no one is to comment upon that to anyone at the trial.

You have the right to presumption of innocence, and you are presumed innocent unless and until the State can prove you guilty beyond a reasonable doubt as to each and every material allegation alleged against you.

You have the right to have a public trial, and you have the right to have a speedy trial.

And you have the right to be admitted to reasonable bail.

....

If you're not a citizen of the United States and you are convicted of a crime, you may be deported to another country.

After the group explanation, Abdi was individually informed the aggravated assault charges against him were class C felonies, each carrying a maximum possible penalty of five years in jail, a $5,000 fine, or both, and a minimum mandatory penalty of two years imprisonment without parole. Abdi informed the court he understood the charges, and requested court-appointed counsel and an interpreter.

[¶ 4] On August 27, 1998, the date set for his preliminary hearing, Abdi appeared with court-appointed counsel and an interpreter and waived a preliminary hearing. Abdi was read the Information charging him with two counts of aggravated assault and was advised of the maximum and mandatory minimum penalties for both charges. Abdi informed the court he understood the charges and penalties, and pled not guilty.

[¶ 5] On October 7, 1998, Abdi appeared at a hearing with counsel and an interpreter. Counsel informed the court he had been "talking" with the prosecution and anticipated an amendment to the information. Counsel requested the matter be set for a change of plea. On October 9, the State filed an amended information, reducing the charges against Abdi from two counts of aggravated assault to one count of class-A-misdemeanor assault under N.D.C.C. § 12.1-17-01.1.

[¶ 6] On November 9, 1998, Abdi appeared with an interpreter and counsel at a change-of-plea hearing. The following colloquy occurred:

THE COURT: Okay. Then I'm going to ask you some questions and have you answer them out loud.

Can you understand what your interpreter is saying to you?

THE INTERPRETER: Yes.

THE COURT: Then do you understand, sir, that you have the right to plead guilty or not guilty to Count 1, assault, as you wish?

THE INTERPRETER: Yes.

THE COURT: Okay. Tell him to answer out loud, please. And did you hear and understand the constitutional rights that the Court gave you on an earlier date?

THE INTERPRETER: Yes.

THE COURT: Tell him to speak so the microphone can pick it up, please. Tell him to speak up or we'll stop and he can go back to the jail. Okay. Thank you.

And do you understand the nature of this charge, Count 1, assault?

THE INTERPRETER: Yes.

THE COURT: And do you understand that if you plead guilty, the maximum penalty you could receive is 12 months' imprisonment and/or a $1,000 fine?

THE INTERPRETER: Yes.

THE COURT: Do you understand, sir, that if you plead guilty, you will be waiving your right to any trial proceedings?

THE INTERPRETER: Yes.

THE COURT: And your right to cross-examine those witnesses who would have testified against you if you had gone to trial?

THE INTERPRETER: Yes.

THE COURT: Has anyone promised you anything in an attempt to get you to enter a guilty plea here today?

THE INTERPRETER: No.

THE COURT: Has anyone threatened you in any way in an attempt to get you to enter a guilty plea here today?

THE INTERPRETER: No.

THE COURT: Has anyone attempted to use force against you to get you to enter a guilty plea here today?

THE INTERPRETER: No.

THE COURT: And are you satisfied with your attorney's representation to this point?

THE INTERPRETER: Yes.

THE COURT: And do you understand the proceedings thus far?

THE INTERPRETER: Yes.

THE COURT: Are you under the influence of any drugs, including alcohol, at this time?

THE INTERPRETER: No.

....

THE COURT: All right. How say you, Ismail Mohamed Abdi, to Count 1,

...

THE INTERPRETER: Guilty.

THE COURT: All right. Your guilty plea is on the record, and the Court finds it to be voluntary.

Thank you. You may be seated.

The court accepted Abdi's guilty plea, and sentenced him to one year in jail with credit for 95 days served and the balance suspended for one year.

[¶ 7] Abdi's conviction subjected him to adverse immigration consequences under federal law and, with new counsel, he applied for post-conviction relief under N.D.C.C. ch. 29-32.1. Asserting deportation proceedings against him were imminent under federal immigration law, Abdi asked the post-conviction court to consider the application "as submitted on the records before the Court in a motion for summary disposition under [N.D.C.C. § 29-32.1-09] relying on the certified records." The State also sought summary disposition. At the end of an expedited July 16, 1999 post-conviction hearing, Abdi's counsel said "[t]he next hearing in immigration and the final hearing is July 27th. If the Court's capable or willing to give an order before then, it would be greatly appreciated." The post-conviction court then denied Abdi's application and granted the State summary disposition, ruling the trial court's acceptance of Abdi's guilty plea substantially complied with N.D.R.Crim.P. 11 and Abdi's trial counsel did not provide him ineffective assistance of counsel.

II

[¶ 8] The burden of establishing a basis for post-conviction relief rests on the applicant. Frey v. State, 509 N.W.2d 261, 263 (N.D.1993). Post-conviction proceedings under N.D.C.C. ch. 29-32.1 are civil in nature, Owens v. State, 1998 ND 106, ¶ 24, 578 N.W.2d 542, and summary disposition is available under N.D.C.C. § 29-32.1-09(1), if "the application, pleadings, any previous proceeding, discovery, or other matters of record show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." We have held a post-conviction court does not err in failing to hold an evidentiary hearing when the parties agree to summary disposition. See Owens, at ¶ 17. We review an appeal from a summary denial of post-conviction relief as we review an appeal from a summary judgment. Wilson v. State, 1999 ND 222, ¶ 13, 603 N.W.2d 47. If there is a contradiction between the record and an applicant's unsupported assertions, a post-conviction court may accept the record. State v. Parisien, 469 N.W.2d 563, 566 (N.D. 1991); State v. Gilley, 289 N.W.2d 238, 241 (N.D.1980).

III

[¶ 9] Abdi argues withdrawal of his guilty plea is necessary to correct a manifest injustice because he did not knowingly and intelligently waive his constitutional rights before pleading guilty. [¶ 10] An applicant's attempt to withdraw a guilty plea under the post-conviction procedure act generally is treated as a motion to withdraw a plea under N.D.R.Crim.P. 32(d). State v. Hendrick, 543 N.W.2d 217, 218 (N.D.1996). After a court has accepted a guilty plea and imposed sentence, a defendant cannot withdraw the plea under N.D.R.Crim.P. 32(d) unless withdrawal is necessary to correct a manifest injustice. State v. Farrell, 2000 ND 26, ¶ 8, 606 N.W.2d 524. A manifest injustice may result from procedural errors by the sentencing court. Id. The determination whether a manifest injustice exists for the withdrawal of a guilty plea lies within the court's discretion and will not be reversed on appeal except for an abuse...