Gullickson v. State

• Citation: 2014 ND 155,849 N.W.2d 206
• Decision Date: 17 July 2014
• Docket Number: No. 20130397.,20130397.
• Parties: Jason GULLICKSON, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
• Court: North Dakota Supreme Court

849 N.W.2d 206

2014 ND 155

Jason GULLICKSON, Petitioner and Appellant

v.STATE of North Dakota, Respondent and Appellee.

No. 20130397.

Supreme Court of North Dakota.

July 17, 2014.

Steven Balaban, Bismarck, ND, for petitioner and appellant.

Dawn Marie Deitz, Assistant State's Attorney, Bismarck, ND, for respondent and appellee; submitted on brief.

CROTHERS, Justice.

[¶ 1] Jason Gullickson appeals from a district court order denying his application for postconviction relief from a criminal judgment entered after he pled guilty to manufacturing methamphetamine (second offense), possession of methamphetamine with intent to deliver (second offense), possession of psilocybin, possession of marijuana and possession of drug paraphernalia. Gullickson argues the district court erred denying postconviction relief on the grounds of ineffective assistance of counsel because trial counsel did not notify him that two of his charges should not have been second offenses and failed to file a motion to suppress evidence discovered upon execution of a search warrant. We affirm.

I

[¶ 2] On August 30, 2004, a magistrate received evidence on an application for a warrant to search Gullickson's residence. Morton County Sheriff's Department Deputy Rob Fontenot testified he examined garbage at Gullickson's residence, finding empty packs of lithium batteries and sandwich bags with corners missing, which in his training and experience were used for methamphetamine production, packaging and distribution, and finding two ziplock baggies with white residue consistent with methamphetamine. Deputy Fontenot testified the garbage container was located on the sidewalk. The magistrate authorized a daytime search of Gullickson's residence for controlled substances and drug paraphernalia. The search warrant was executed at 9:30 p.m. on August 31, 2004. The results of the search warrant included paraphernalia and drugs, including methamphetamine, marijuana and psilocybin.

[¶ 3] Gullickson's charges in this case occurred after he was charged in 2003 for possession of methamphetamine, manufacture of methamphetamine within 1000 feet of a school and two counts of possession of drug paraphernalia, but before a conviction or guilty plea were entered in that case. As a result of the pending 2003 charges, Gullickson was charged here with second offenses of manufacturing and possession of methamphetamine with intent to deliver, which carry mandatory minimum five-year sentences. Gullickson pled guilty to manufacturing methamphetamine (second offense), possession of methamphetamine with intent to deliver (second offense), possession of psilocybin, possession of marijuana and two counts of possession of drug paraphernalia. Gullickson was sentenced to fifteen years with all but five years suspended, to run concurrently with the sentence he received in the 2003 case. Gullickson served five years and was released on probation. Gullickson's probation was revoked in 2010 for new drug-related activity. He was ordered to serve the balance of his fifteen-year sentence, with credit for time served.

[¶ 4] Gullickson filed this postconviction relief action, alleging ineffective assistance of counsel because his attorney failed to file a motion to suppress evidence and failed to establish his charges were incorrectly charged as second offenses with mandatory minimums. After the hearing, the district court found that the daytime search warrant was proper because it was executed before 10 p.m., that the evidence obtained from the search fell under the categories of controlled substances or drug paraphernalia and that the garbage search did not violate Gullickson's privacy interests because the container was located on the public sidewalk. The district court also found Gullickson did not receive ineffective assistance of counsel because the result would have been the same even if the second offense portion of the charge had been removed. Gullickson appeals.

II

[¶ 5] A person charged with a crime is entitled to effective assistance of counsel at critical stages of criminal proceedings. See Adams v. Illinois, 405 U.S. 278, 279, 92 S.Ct. 916, 31 L.Ed.2d 202 (1972). “Ineffective assistance of counsel is a mixed question of fact and law, which is fully reviewable on appeal.” Coppage v. State, 2014 ND 42, ¶ 17, 843 N.W.2d 291 (citation omitted). An applicant for postconviction relief claiming ineffective assistance of counsel:

“must establish both prongs of the Strickland test and demonstrate (1) counsel's representation fell below an objective standard of reasonableness, and (2) he was prejudiced by counsel's deficient performance. Whether a defendant received ineffective assistance of counsel is a mixed question of law and fact which is fully reviewable on appeal.”

Osier v. State, 2014 ND 41, ¶ 10, 843 N.W.2d 277 (internal citations omitted); see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

[¶ 6] To meet the first prong, “the petitioner must prove that the attorney's performance fell below an objective standard of reasonableness” measured by “the prevailing professional norms.” Sambursky v. State, 2006 ND 223, ¶ 13, 723 N.W.2d 524. The petitioner must “overcome the strong presumption that counsel's representation fell within the wide range of reasonable professional assistance....” Id.

“To meet the ‘prejudice’ prong of the Strickland test the defendant carries the heavy burden of establishing a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. The defendant must prove not only that counsel's assistance was ineffective, but must specify how and where trial counsel was incompetent and the probable different result.”

Laib v. State, 2005 ND 187, ¶ 10, 705 N.W.2d 845 (internal citations omitted). “If it is easier to dispose of an ineffective assistance of counsel claim on the ground of lack of sufficient prejudice, that course should be followed.” Wright v. State, 2005 ND 217, ¶ 11, 707 N.W.2d 242.

III

[¶ 7] Gullickson argues he received ineffective assistance of counsel because he would have gone to trial rather than plead guilty if he had been advised he was improperly charged with second offenses carrying mandatory minimum sentences. The State asserts that Gullickson failed to argue in his postconviction relief hearing that he would have gone to trial if he had known of the improperly charged second offenses and that Gullickson testified he believed the five-year deal was the best deal. While Gullickson stated he believedat the time the deal was good, the State's argument regarding Gullickson's statements on whether he would have gone to trial is incorrect:

“Q: So your feeling is that based on all of this information had you had it at the time, what would you have done, rather than pleading guilty?

A: I would have took it to trial.”

[¶ 8] Undisputed is that in the 2004 case counsel and the court proceeded on the erroneous assumption that Gullickson's possession of meth and manufacture of meth charges were second offenses carrying mandatory minimum sentences of five years. Assuming without deciding this assumption was error, to satisfy Strickland's prejudice requirement Gullickson must show a reasonable probability exists that but for counsel's errors, the results of the proceeding would have been different. Osier, 2014 ND 41, ¶ 11, 843 N.W.2d 277. The question therefore is whether Gullickson was prejudiced by the mistake because a reasonable probability exists Gullickson would not have pled guilty had he known the minimum five-year sentence did not apply and whether the result of the proceedings would have been different if Gullickson had gone to trial.

[¶ 9] Gullickson's charges in this case initially were manufacturing methamphetamine within 1000 feet of a school (second offense), possession of methamphetamine with intent to deliver within 1000 feet of a school (second offense), possession of psilocybin, possession of marijuana and two counts of possession of drug paraphernalia. The transcript from the change of plea proceeding shows Gullickson's attorney negotiated the removal of one aggravating factor from the charges, being within 1000 feet of a school, thereby reducing the mandatory...