Greywind v. State, No. 20040080.

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

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.

689 N.W.2d 392

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).

689 N.W.2d 393

[¶ 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

689 N.W.2d 394

and intelligent choice among the alternative courses of action open to the defendant. Houle, 482 N.W.2d at 26

[¶ 9] The record reflects...