Dodge v. State

• Decision Date: 07 May 2020
• Docket Number: No. 20190286,20190286
• Citation: 942 N.W.2d 478
• Parties: Richard DODGE , Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee
• Court: North Dakota Supreme Court

942 N.W.2d 478

Richard DODGE , Petitioner and Appellant

v. STATE of North Dakota, Respondent and Appellee

No. 20190286

Supreme Court of North Dakota.

Filed May 7, 2020

Kiara C. Kraus-Parr, Grand Forks, ND, for petitioner and appellant.

Frederick R. Fremgen, State’s Attorney, Jamestown, ND, for respondent and appellee.

VandeWalle, Justice.

[¶1] Richard Dodge appealed from a district court order denying his application for post-conviction relief. On appeal, Dodge argues he was not competent to enter his pleas and he received ineffective assistance of counsel. We affirm.

I

[¶2] Dodge was charged with five felonies and a misdemeanor in December 2015. Dodge was appointed counsel. In April 2016, Dodge’s counsel moved the court to withdraw because the attorney-client relationship was "irreparably broken and rendered unreasonably difficult." The court granted the motion, and Dodge was appointed substitute counsel in May 2016.

[¶3] In July 2016, Dodge himself filed a "motion to dismiss counsel," stating: "I, Richard Dodge, am dismissing ... my attorney due to a conflict of interests. He has strong affiliations with persons whom I have offered testimony against. [He] is completely unwilling to defend me." The court denied Dodge’s motion.

[¶4] The deadline for motions and plea agreements was March 4, 2016. On August 9, 2016, over five months after the deadline, Dodge’s counsel filed a motion for psychiatric examination under N.D.R.Crim.P. 12.2 and " NDCC, Section 12.1-04.1-03 et. seq." The district court denied the motion for evaluation because notice was not filed that a defense under Rule 12.2 or N.D.C.C. § 12.1-04.1-03 et seq. was going to be asserted and because the time for filing pretrial motions had passed. The court additionally stated Dodge did not provide any evidence, and the court itself did not make any observations, that Dodge was incompetent to stand trial.

[¶5] On August 17, 2016, Dodge himself filed another "motion to dismiss counsel" stating his attorney did not have any authority to act on his behalf. The same day, due to the allegations made against him in Dodge’s motion, Dodge’s attorney filed a motion to withdraw as counsel. The court denied both motions and instead required Dodge’s attorney to appear as standby counsel and assist Dodge during trial if requested, but relieved him of any further obligations to consult with Dodge. The court’s denial of the motions was based, in part, on its belief that Dodge would not be satisfied with any counsel he was appointed, and he would continue to ask for new attorneys.

[¶6] The case proceeded to trial. At the beginning of trial, the court gave Dodge the option of representing himself or having his attorney represent him. Dodge chose to have his attorney represent him. Because his attorney had not prepared for trial and had no communication with Dodge since he moved to withdraw, Dodge’s attorney asked for a brief recess to consult with Dodge. During the recess, a settlement was reached. Dodge agreed to enter Alford pleas on all counts, waived a presentence investigation, and agreed to be sentenced immediately after entering his pleas.

[¶7] The court conducted the plea procedure pursuant to N.D.R.Crim.P. 11. Dodge stated he discussed the pleas with his attorney and was prepared to enter a plea. When asked if he was satisfied with his attorney’s advice, Dodge stated, "Good as I'm going to get." Dodge further stated he understood his rights, he understood he had a right to a jury trial, a jury would have to find him guilty beyond a reasonable doubt, and that by pleading guilty he was waiving these rights. Dodge was immediately sentenced following his guilty pleas.

[¶8] Dodge did not file a direct appeal. Instead, Dodge filed an application for post-conviction relief claiming he received ineffective assistance of counsel and he was incompetent to stand trial, and therefore, his pleas were not knowingly, intelligently, and voluntarily entered into. Dodge was appointed counsel to represent him during the post-conviction proceedings. Dodge accused his first post-conviction counsel of withholding discovery from him even though his counsel informed the district court she provided Dodge discovery on multiple occasions. Dodge’s first post-conviction counsel was allowed to withdraw. Dodge was again appointed counsel.

[¶9] Two psychological evaluations were completed during post-conviction proceedings.

Dr. Lisota completed an evaluation for the State. Dr. Lisota concluded Dodge was presently able to communicate with his attorneys and understood the legal proceedings. Dr. Lisota further concluded Dodge’s inability to work with his attorneys was a conscious decision rather than the product of a legitimate mental illness. Dr. Mugge conducted an evaluation for the defense. Dr. Mugge’s report details accounts by Dodge of rampant sexual abuse as a child; of people stalking Dodge wherever he goes; that the criminal charges against him were a set up so his stalkers could steal his property; of sexual assault at the Stutsman County Jail facilitated by the guards; that his first attorney was associated with people that were stalking him; that his first attorney forced Dodge to sign power of attorney documents against his will in 2012 in Wisconsin; and that his trial attorney was associated with people whom Dodge had testified against. In her report, Dr. Mugge concluded Dodge suffered from a delusional disorder, and that "[w]hether intentionally produced or unintentionally experienced, delusional statements and accusations have impaired [Dodge’s] ability to interact and communicate with his attorneys."

[¶10] At the post-conviction hearing, Dodge testified to many of the delusions highlighted in Dr. Mugge’s report. Dodge’s trial counsel testified that when he met with Dodge prior to trial, Dodge had little interest in discussing his defense or trial strategy. He stated Dodge was more concerned with retrieving silver ingots, which Dodge alleged were stolen by his first attorney, for his commissary in prison. After meeting with Dodge, Dodge’s attorney realized Dodge may have had competency issues and filed the motion for evaluation.

[¶11] Both experts also testified at the post-conviction hearing. Dr. Lisota’s testimony was consistent with his report. Dr. Mugge went beyond her report, in which she stated Dodge’s delusions impaired his ability to communicate with his attorneys, and testified Dodge’s delusions made him unable to communicate with his attorneys.

[¶12] Ultimately, the district court found Dodge was competent when he entered his pleas. The court found Dr. Lisota’s report and testimony credible, and Dr. Mugge’s report and testimony not credible. The court also found the trial judge’s determinations on Dodge’s competency persuasive. Additionally, the court found Dodge’s counsel’s assistance was not ineffective because Dodge failed to establish "the defense of lack of criminal responsibility was available to him at the time of the plea."

II

[¶13] Dodge argues he was incompetent when he entered his pleas and received ineffective assistance of counsel because his attorney failed to investigate his competency and bring the issue to the attention of the district court and, therefore, he should be allowed to withdraw his pleas. "An application for post-conviction relief, where a defendant is seeking to withdraw a guilty plea, is treated as a request under N.D.R.Crim.P. 11(d)." State v. Howard , 2011 ND 117, ¶ 3, 798 N.W.2d 675 (citing Eaton v. State , 2011 ND 35, ¶ 5, 793 N.W.2d 790 ). "After a court has accepted a guilty plea and imposed a sentence, a defendant cannot withdraw a plea unless withdrawal is necessary to correct a manifest injustice." Id. (quoting Eaton , at ¶ 5 ). The burden is on the defendant to prove a manifest injustice exists. N.D.R.Crim.P. 11(d)(2). "The court has discretion in finding whether a manifest injustice necessitating the withdrawal of a guilty plea exists, and we review the court’s decision for abuse of discretion." Howard , at ¶ 3 (citing Eaton , at ¶ 5 ). "An abuse of discretion under N.D.R.Crim.P. 11(d) occurs when the court’s legal discretion is not exercised in the interest of justice." Id. (citing State v. Bates , 2007 ND 15, ¶ 6, 726 N.W.2d 595 ).

A

[¶14] Whether a defendant is competent to enter a plea is a question of fact, and a district court’s finding on the issue will not be set aside on appeal unless clearly erroneous. State v. Dahl , 2010 ND 108, ¶ 6, 783 N.W.2d 41. "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, a reviewing court is left with a definite and firm conviction a mistake has been made." Id. (quoting Heckelsmiller v. State , 2004 ND 191, ¶ 5, 687 N.W.2d 454 ).

[¶15] "An incompetent criminal defendant cannot enter a valid guilty plea." State v. Magnuson , 1997 ND 228, ¶ 11, 571 N.W.2d 642 (citing Godinez v. Moran , 509 U.S. 389, 396, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993) ). "[T]he standard for deciding competency of a criminal defendant to enter a guilty plea is the same competency standard for standing trial." Id. (citing Godinez , at 390, 113 S.Ct. 2680 ). "[I]f a defendant of doubtful competency wants to plead guilty, a trial court must first decide whether the defendant is competent and then must satisfy itself the guilty plea is voluntary." Id. (citing Godinez , at 400, 113 S.Ct. 2680 ). The standard for determining if a criminal defendant is competent to stand trial is set forth in State v. Gleeson :

"It has long been held the conviction of a mentally incompetent accused is a violation of constitutional due process. Dusky v. United States , 362 U.S. 402 [80 S.Ct. 788, 4 L.Ed.2d 824] (1960). The United States Supreme Court has summarized the test for determining if an accused is mentally competent to stand trial. Id. A defendant is incompetent when he lacks (1)

...