Dubois v. State

• Decision Date: 19 August 2021
• Docket Number: No. 20210019,20210019
• Citation: 963 N.W.2d 543
• Parties: James Aaron DUBOIS, Jr., Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee
• Court: North Dakota Supreme Court

963 N.W.2d 543

James Aaron DUBOIS, Jr., Petitioner and Appellant

v.STATE of North Dakota, Respondent and Appellee

No. 20210019

Supreme Court of North Dakota.

FILED AUGUST 19, 2021

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

Alexis Madlom (argued), third-year law student, under the Rule on Limited Practice of Law by Law Students, Robert C. Vallie (appeared) and Kimberlee J. Hegvik (on brief), Assistant State's Attorneys, Fargo, ND, for respondent and appellee.

Crothers, Justice.

[¶1] James Dubois, Jr. appeals from an order denying his application for post-conviction relief, arguing he received ineffective assistance of counsel, his plea was not knowing, voluntary and intelligent, and his sentence was illegal. We reverse and remand with instructions to sentence Dubois consistent with N.D.C.C. § 12.1-32-07(6) and this opinion.

I

[¶2] In August 2017, Dubois pleaded guilty to two counts of criminal trespass and one count of refusal to halt. Dubois was sentenced to 18 months with the Department of Corrections and Rehabilitation, first to serve 90 days with the balance suspended for 18 months of supervised probation.

[¶3] On January 28, 2019, Dubois appeared at a probation revocation hearing. Dubois admitted to three probation violations and the district court revoked Dubois’ probation and resentenced him to five years in prison. Following resentencing, Dubois filed a direct appeal where he argued the district court abused its discretion in revoking his probation and the court's new sentence was illegal because it exceeded his original sentence. State v. Dubois , 2019 ND 284, ¶¶ 4, 7, 936 N.W.2d 380. This Court affirmed, concluding the district court did not abuse its discretion in revoking probation and resentencing, and the district court did not obviously err by imposing a sentence consistent with North Dakota precedent. Id. at ¶¶ 5 -6, 11.

[¶4] Dubois filed a post-conviction relief action claiming he received ineffective assistance of counsel and his plea and admissions were not voluntary. A hearing was held and the district court found Dubois’ counsel was not ineffective and his plea was knowingly, voluntarily and intelligently made. The court found Dubois’ counsel's failure to argue illegality of Dubois’ sentence on revocation fell within the wide range of reasonable professional assistance. Dubois appealed from the order.

II

[¶5] Dubois argues the district court erred in finding he received effective assistance of counsel. Dubois claims his counsel failed to object to an illegal sentence and did not explain to Dubois that probation revocation could result in him being resentenced to five years.

[¶6] This Court's standard of review for post-conviction proceedings is well established:

"A trial 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. 52(a). A finding 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 it, a reviewing court is left with a definite and firm conviction a mistake has been made. Questions of law are fully reviewable on appeal of a post-conviction proceeding."

Brewer v. State , 2019 ND 69, ¶ 4, 924 N.W.2d 87 (citations omitted).

[¶7] Post-conviction proceedings are civil in nature and the applicant carries the burden of establishing the grounds for relief. Rourke v. State , 2018 ND 137, ¶ 5, 912 N.W.2d 311. To succeed on a claim for ineffective assistance of counsel, the applicant must show that: (1) "counsel's representation fell below an objective standard of reasonableness," and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. (quoting Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). The Strickland test is a high bar and must be applied with scrupulous care. Rourke , ¶ 5. The first prong requires that the applicant must "overcome the ‘strong presumption’ that trial counsel's representation fell within the wide range of reasonable professional assistance, and courts must consciously attempt to limit the distorting effect of hindsight." Id. (quoting Laib v. State , 2005 ND 187, ¶ 9, 705 N.W.2d 845 ).

A

[¶8] Dubois argues his trial counsel was ineffective by failing to object to his resentencing as illegal. Dubois asserts the resentencing was illegal because he received a sentence longer than originally imposed. This Court has "long held that the current provisions of N.D.C.C. § 12.1-32-07(6) allow a district court to impose any sentence available at the initial time of sentencing ..." Dubois , 2019 ND 284, ¶ 9, 936 N.W.2d 380. At the time of Dubois’ resentencing, this Court's precedent supported a longer sentence on revocation than originally imposed. Counsel's failure to raise a novel or groundbreaking legal claim does not constitute ineffective assistance of counsel. See Yoney v. State , 2021 ND 132, ¶ 12, 962 N.W.2d 617 (counsel's submission of jury instruction that was consistent with precedent was not ineffective assistance); accord Ragland v. U.S. , 756 F.3d 597, 601 (8th Cir. 2014) (counsel's failure to raise a "novel argument" did not render his performance constitutionally ineffective); Brown v. U.S. , 311 F.3d 875, 878 (8th Cir. 2002) (counsel's decision to not raise issue unsupported by precedent did not constitute ineffective assistance). Therefore, the district court did not err in finding Dubois’ counsel's failure to argue illegality of the new sentence fell within the wide range of reasonable assistance.

B

[¶9] Dubois argues his trial counsel was ineffective for not explaining he could be resentenced to five years. Dubois testified his trial counsel never discussed with him the maximum potential sentence for revocation of his probation. Dubois’ trial counsel testified his practice was to inform clients that, if probation was revoked, it was possible to be resentenced to the maximum amount of time, or five years in this case. The district court found Dubois’ assertion was "incredulous" in light of his trial counsel's testimony. "The district court is the best credibility evaluator in cases of conflicting testimony, and we will not second-guess the district court's credibility determinations." In re Johnson , 2013 ND 146, ¶ 7, 835 N.W.2d 806. The court did not err in finding Dubois received effective assistance of counsel.

III

[¶10] Dubois argues his probation violation admissions were not knowingly, voluntarily, or intelligently made. Dubois argues adherence to N.D.R.Crim.P. 11 is required for admissions on revocation. The plain language of N.D.R.Crim.P. 11 makes no mention of admissions on revocation. Instead, Rule 11 only addresses plea agreements and pleading procedures in criminal cases. Id. Further, Dubois cites no cases and we have found none applying Rule 11 to probation revocation admissions. Because Rule 11 does not apply to admissions on revocation, and because Dubois only argues his revocation admissions were improper under Rule 11, Dubois’ argument fails.

IV

[¶11] Dubois argues the district court's new sentence of five years’ imprisonment is illegal because it exceeds the balance of the 18-month term he originally was sentenced to serve. In support, Dubois cites N.D.C.C. § 12.1-32-07(6), which at the time Dubois was resentenced stated:

"The court, upon notice to the probationer and with good cause, may modify or enlarge the conditions of probation at any time prior to the expiration or termination of the period for which the probation remains conditional. If the defendant violates a condition of probation at any time before the expiration or termination of the period, the court may continue the defendant on the existing probation, with or without modifying or enlarging the conditions, or may revoke the probation and impose any other sentence that was available under section 12.1-32-02 or 12.1-32-09 at the time of initial sentencing or deferment. In the case of suspended execution of sentence, the court may revoke the probation and cause the defendant to suffer the penalty of the sentence previously imposed upon the defendant."¹

Dubois argues the last clause of N.D.C.C. § 12.1-32-07(6) limits a court's resentencing authority on revocation of probation to the balance of the suspended sentence.

A

[¶12] Statutory interpretation is a question of law, fully reviewable on appeal.

State v. Corman , 2009 ND 85, ¶ 15, 765 N.W.2d 530.

[¶13] Dubois raised the issue of illegal sentence as part of his application for post-conviction relief. Rule 35(a)(1), N.D.R.Crim.P., provides that "[t]he sentencing court shall correct an illegal sentence at any time ..." Section 29-32.1-01(1)(a), N.D.C.C., of the Uniform Post[-]Conviction Procedure Act similarly provides that a person convicted of and sentenced for a crime may apply for post-conviction relief upon the ground that "the sentence was imposed in violation of the laws ... of North Dakota." This Court has said:

"[T]hese post-conviction remedies co-exist for similar purposes as to illegal sentences, these remedies under comparable provisions of federal law are often used interchangeably to attack a sentence illegal on its face, and [we] have suggested a motion under the rule or the statute should be treated as equivalent to a motion under both provisions."

State v. McClary , 2016 ND 31, ¶ 7, 876 N.W.2d 29 (citations omitted). We therefore consider Dubois’ claim as presented.

B

[¶14] Dubois claims the district court imposed an illegal sentence by sentencing him to five years’ imprisonment rather than no more than what was left of his 18-month suspended sentence. Dubois asks this Court to overturn our long-standing precedent holding N.D.C.C. § 12.1-32-07(6) allows a district court to impose any sentence available at the time of initial sentencing upon revocation of probation. To understand that precedent, we rev...