Greywind v. State, 20040080.

• Decision Date: 19 November 2004
• Docket Number: No. 20040080.,20040080.
• Citation: 689 N.W.2d 390,2004 ND 213
• Parties: John Willard GREYWIND, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
• Court: North Dakota Supreme Court

689 N.W.2d 390

2004 ND 213

John Willard GREYWIND, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.

No. 20040080.

Supreme Court of North Dakota.

November 19, 2004.

Jonathon Willard Greywind, pro se, Bismarck, N.D., petitioner and appellant.

Birch Peterson Burdick, State's Attorney, Fargo, N.D., for respondent and appellee.

KAPSNER, Justice.

[¶ 1] Jonathon Willard Greywind appealed from a judgment denying his application for post-conviction relief. We conclude the district court did not err in ruling Greywind's guilty pleas were voluntary, he did not receive ineffective assistance of counsel, and his newly discovered evidence does not provide grounds for post-conviction relief. We affirm.

I

[¶ 2] Greywind was involved in two criminal cases which underlie this appeal. In the first case, Greywind was charged with burglary, terrorizing and three counts of theft of property. In the second case, Greywind was charged with conspiracy to commit murder and accomplice to tampering with a witness who was going to testify against him in the first case. It was alleged that in October 1999, Greywind arranged to have Ngoc Huynh and Ben Berns kill the witness in exchange for $2,000 and bus tickets to California. Greywind allegedly drove Huynh and Berns to the vicinity of the witness's home in Fargo and Huynh fired a number of shots from a handgun into the home. The witness was unharmed and gave physical descriptions of Huynh and Berns to police. Police arrested Huynh and Berns in Moorhead, Minnesota, while they were in the company of Greywind. Huynh and Berns both gave videotaped statements to law enforcement officers in which they provided details of how Greywind arranged to have them kill the witness.

[¶ 3] Greywind was represented by different attorneys in the initial theft case and in the subsequent conspiracy case. On February 17, 2000, Greywind and his attorneys signed a N.D.R.Crim.P. 11 plea agreement in which Greywind acknowledged his guilt in both the theft case and the conspiracy case. On February 18, 2000, Greywind appeared before the district court and was advised of his constitutional rights. Greywind acknowledged that he understood his rights and that he understood the contents of the plea agreement. The State recited a factual basis for the offenses which was acknowledged by Greywind and his attorneys. The district court sentenced Greywind to 20 years imprisonment on the charge of conspiracy to commit murder. The court sentenced Greywind to shorter terms of imprisonment on the other charges, and those sentences were ordered to run concurrently with the 20-year sentence. The district court denied Greywind's subsequent motion for reduction of sentence under N.D.R.Crim.P. 35(b). [¶ 4] In August 2003, Greywind filed an application for post-conviction relief. Greywind argued his guilty plea was involuntary because his attorneys coerced him into pleading guilty and because he has a limited education and was unable to understand the terms of the plea agreement. Greywind claimed he was denied effective assistance of counsel because neither of his attorneys adequately investigated the case. Greywind also argued he had newly discovered evidence in the form of affidavits from Huynh and Berns recanting their prior statements to police implicating Greywind in the conspiracy and stating that the prior statements were coerced, untrue, and were made to help them receive lighter sentences. The district court held an evidentiary hearing in which Greywind, his former attorneys, Huynh, Berns, and law enforcement officers investigating the crimes testified. The court denied the application, ruling Greywind "failed to prove that he received ineffective assistance of counsel in either criminal" case, "or that his pleas entered in those cases were anything other than voluntary, or that he has newly discovered evidence that would provide grounds for post conviction relief." Greywind appealed.

II

[¶ 5] Post-conviction relief proceedings are civil in nature and are governed by the North Dakota Rules of Civil Procedure. Garcia v. State, 2004 ND 81, ¶ 6, 678 N.W.2d 568. In post-conviction relief proceedings, a district court's findings of fact will not be disturbed unless they are clearly erroneous under N.D.R.Civ.P. 52(a). Cue v. State, 2003 ND 97, ¶ 10, 663 N.W.2d 637. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if it is not supported by the evidence, or if, although there is some evidence to support it, a reviewing court is left with a definite and firm conviction that a mistake has been made. DeCoteau v. State, 2000 ND 44, ¶ 10, 608 N.W.2d 240. Questions of law are fully reviewable on appeal of a post-conviction proceeding. Peltier v. State, 2003 ND 27, ¶ 6, 657 N.W.2d 238.

A

[¶ 6] Greywind argues his guilty plea was involuntary because his counsel coerced him into pleading guilty and his limited fourth-grade education precluded him from understanding the terms of the plea agreement.

[¶ 7] When a defendant applies for post-conviction relief seeking to withdraw a guilty plea, we generally treat the application as one made under N.D.R.Crim.P. 32(d). Bay v. State, 2003 ND 183, ¶ 7, 672 N.W.2d 270. Withdrawal of a guilty plea is allowed when necessary to correct a manifest injustice, and whether there has been a manifest injustice supporting withdrawal of the plea lies within the district court's discretion. State v. Zeno, 490 N.W.2d 711, 713 (N.D.1992). In determining whether the district court abused its discretion, we may be required to review the court's preliminary findings of fact, which will not be disturbed unless they are clearly erroneous. Houle v. State, 482 N.W.2d 24, 25-26 (N.D.1992).

[¶ 8] Due process is satisfied when the whole record clearly reflects the defendant's knowledge of the rights being waived. State v. Olson, 544 N.W.2d 144, 147 (N.D.1996). A defendant who pleads guilty upon the advice of counsel may only attack the voluntary and intelligent character of the guilty plea, and its voluntariness turns on whether the advice was within the range of competence demanded of attorneys in criminal cases. Damron v. State, 2003 ND 102, ¶ 9, 663 N.W.2d 650. A guilty plea is valid if it represents a voluntary and intelligent choice among the alternative courses of action open to the defendant. Houle, 482 N.W.2d at 26.

[¶ 9] The record reflects that the district court questioned Greywind at length at the time of his pleas, advised him of his rights and the rights he was waiving by pleading guilty, reviewed the plea agreement with him, asked whether he agreed with the factual basis given by the State for the pleas, and gave him an opportunity to address the court. Greywind did not claim any lack of understanding. Rather, Greywind told the court his attorneys explained the provisions of the plea agreement to him and that he understood those provisions. Greywind told the court he was "very sorry for what I did... I was intoxicated at the time ... [a]nd I made a stupid choice." The court found at the time of sentencing that the pleas were freely and voluntarily made and there was a factual basis for each of the pleas.

[¶ 10] Although Greywind claims he did not understand the terms of the plea agreement because of his limited education, the record shows that Greywind had substantial experience with the criminal justice system. Between 1994 and 1998, Greywind was convicted of giving false information to law enforcement officers, simple assault, possession of drug paraphernalia and marijuana, and theft of property, for which he was sentenced to the State Penitentiary. Greywind was originally scheduled to change his plea to guilty in December 1999, but changed his mind and refused to do so. Greywind again refused to change his plea at a January 2000 hearing scheduled for that purpose. Greywind's attorneys informed him of the possibility of life in prison and consecutive sentences if he had gone to trial and been found guilty, and Greywind pled guilty in February 2000. Informing a defendant of the prospect of receiving a harsher sentence if he were to go to trial is not coercion sufficient to render a guilty plea involuntary. See State v. Hobus, 535 N.W.2d 728, 729 (N.D.1995)

. In his May 2000 motion for reduction of sentence under N.D.R.Crim.P. 35(b), Greywind acknowledged that he, "of his own freewill and accord pleaded guilty" in the cases and that he "excepted [sic] responsibility for his actions and realizes that my behavior was nothing to be proud of."

[¶ 11] The district court found "[t]here is nothing in the record to indicate that [Greywind] did anything other than enter voluntary pleas," and we agree. We conclude the district court did not abuse its discretion in refusing to allow Greywind to withdraw his guilty plea.

B

[¶ 12] Greywind argues he received ineffective assistance of counsel because his attorneys failed to adequately investigate the case. In particular, Greywind claims his attorneys should have interviewed Huynh and Berns before he pled guilty.

[¶ 13] Ineffective assistance of counsel is one ground for relief from a criminal conviction under N.D.C.C. § 29-32.1-01(1)(a). To succeed on a claim of ineffective assistance of counsel, the defendant must prove counsel's performance fell below an objective standard of reasonableness and the deficient performance prejudiced him. Garcia, 2004 ND 81, ¶ 5,678 N.W.2d 568. 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. Eagleman v. State, 2004 ND 6, ¶ 6, 673 N.W.2d 241. Although our standard of review for a claim of ineffective assistance of counsel is a mixed question of law and fact, the district court's findings of fact are subject to the...