Houle v. State

• Decision Date: 03 March 1992
• Docket Number: Cr. N
• Citation: 482 N.W.2d 24
• Parties: Dennis C. HOULE, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.
• Court: North Dakota Supreme Court

Page 24

482 N.W.2d 24

Dennis C. HOULE, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.

Cr. No. 910248 Supreme Court of North Dakota.

March 3, 1992.

As Corrected March 6, 1992.

Feldner Law Firm, Mandan, for petitioner and appellant; argued by Rodney K. Feldner.

Bruce B. Haskell (argued), Asst. States Atty., Bismarck, for respondent and appellee.

ERICKSTAD, Chief Justice.

Dennis Houle appeals from the order of the District Court for Burleigh County, denying his application for post-conviction relief. We affirm.

On July 2, 1980, Houle entered pleas of guilty to the class C felony charge of burglary and the class AA felony charge of murder pursuant to a plea agreement. In accordance with the plea arrangement, Houle was sentenced to one year on the burglary charge and fifty years on the murder charge to run concurrently. On August 9, 1990, Houle, acting pro se, made various motions to the district court seeking, among other things, a writ of habeas corpus. In an application, dated October 20, 1990, Houle requested court-appointed counsel. On or about October 26, 1990, Rodney K. Feldner was appointed to represent Houle. On March 4, 1991, Houle, through his newly appointed counsel, applied for post-conviction relief pursuant to section 29-32.1-01, N.D.C.C., ¹ or, in the alternative, sought to withdraw his plea pursuant to Rule 32(d), N.D.R.Crim.P., ² asserting, as a basis for such relief, ineffective assistance of counsel and the failure of the sentencing judge to advise Houle of the effective minimum sentence arising due to the parole ineligibility period. After a hearing held on July 11, 1991, the district court denied Houle's application for post-conviction relief. This appeal followed.

When a person seeks to withdraw a guilty plea under the Post-Conviction Relief Act (ch. 29-32.1, N.D.C.C.), the action is generally treated as a Rule 32(d), N.D.R.Crim.P., motion. State v. Boushee, 459 N.W.2d 552, 555-556 (N.D.1990). Accordingly, a withdrawal of a guilty plea is allowed when necessary to correct a "manifest injustice." Id. at 556. "The determination of manifest injustice is ordinarily within the trial court's discretion, and will be reversed on appeal only for an abuse of discretion." Id. "An abuse of discretion occurs when the court fails to exercise its discretion in the interests of justice." State v. Millner, 409 N.W.2d 642, 643 (N.D.1987).

Although on appeal our standard of review remains whether or not the trial court abused its discretion, to help us in making this determination we may be required to review the trial court's preliminary findings of fact. See generally State v. Saavedra, 406 N.W.2d 667, 669 (N.D.1987). We have previously noted that actions for post-conviction relief under chapter 29-32.1, N.D.C.C., are essentially civil in nature. Varnson v. Satran, 368 N.W.2d 533, 536 (N.D.1985). As such, a trial court's findings of fact in actions for post-conviction relief under chapter 29-32.1 will not be disturbed unless clearly erroneous pursuant to Rule 52(a), N.D.R.Civ.P. ³ Id.

In this case, Houle seeks to withdraw his guilty plea. "The longstanding test for determining the validity of a guilty plea is 'whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.' " Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 369, 88 L.Ed.2d 203 (1985) (quoting North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970)).

As a basis for withdrawing his guilty plea, Houle first asserts ineffective assistance of counsel. Specifically, Houle asserts that his defense counsel, Benjamin Pulkrabek, did not discuss with him the possibility of lesser-included offense instructions. In support of this assertion, Houle argues that he had nothing to lose in going to trial, and that he gained nothing of significance by pleading guilty. This is not true. Had he been convicted of murder, a class AA felony pursuant to section 12.1-16-01(1), he could have been sentenced to life imprisonment, or, had he been convicted of murder, a class A felony pursuant to section 12.1-16-01(2), he could have been sentenced to life imprisonment under section 12.1-32-09(1)(e) and (2), N.D.C.C., relating to extended sentences for dangerous special offenders.

The Sixth Amendment of the United States Constitution, applied to the states through the Fourteenth Amendment of the United States Constitution, and Section 12, Article I of the North Dakota Constitution guarantee criminal defendants the right to reasonably effective assistance of counsel. State v. Micko, 393 N.W.2d 741, 746 (N.D.1986). In assessing the alleged ineffective assistance of counsel, the United States Supreme Court has announced a two-part test. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under the Strickland standard, a "defendant must show that counsel's representation fell below an objective standard of reasonableness" and that the defendant was prejudiced by such ineffective representation, that is "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id., 104 S.Ct. at 2064, 2068.

The Strickland standard applies in cases where a criminal defendant seeks to withdraw a guilty plea based on alleged error on the part of his counsel as well as where the alleged error or deficiency has resulted in a criminal conviction after trial. In Hill v. Lockhart, the United States Supreme Court said:

"We hold, therefore, that the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel. In the context of guilty pleas, the first half of the Strickland v. Washington test is nothing more than a restatement of the standard of attorney competence already set forth in Tollett v. Henderson, supra, [411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973) ] and McMann v. Richardson, supra. [397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) ] The second, or 'prejudice,' requirement, on the other hand, focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the 'prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial."

474 U.S. 52, 58-59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985).

Our first inquiry under Strickland and Lockhart focuses on the reasonable effectiveness of the defendant's trial counsel " 'under prevailing professional norms,' considering all the circumstances from the defense counsel's perspective at the time." State v. Thompson, 359 N.W.2d 374, 377 (N.D.1985) (quoting Strickland, 104 S.Ct. at 2065). Furthermore, "because it is all too easy to second-guess an unsuccessful counsel's defense through the distorting effects of hindsight, in making that inquiry 'a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.' " State v. Thompson, 359 N.W.2d at 377 (quoting Strickland, 104 S.Ct. at 2065).

In this case, the trial court found as a matter of fact that the issue of a lesser-included offense instruction was discussed with Houle. Benjamin Pulkrabek testified at the post-conviction relief hearing that he did discuss the possibility of lesser-included offense instructions with Houle. Furthermore, as the trial court noted, there was a set of proposed jury instructions which Pulkrabek had filed with the court which set out the elements of lesser-included offenses. In light of the above, we conclude that the trial court's finding that Houle's attorney did advise him that he could request that the court instruct the jury on lesser-included offenses and Houle never-the-less decided to accept the plea agreement is not clearly erroneous. ⁴

Given the resolution of this factual issue, and after further careful review of the record, we conclude that Houle has failed to establish that his counsel's representation was constitutionally deficient. ⁵

The next issue Houle asserts as a basis for withdrawing his guilty plea is that the court did not inform him of the minimum sentence he would have to serve in connection with his plea. Essentially, Houle argues that, although the statute he was sentenced under did not contain a specific minimum sentence, a separate parole eligibility provision created an "effective" minimum sentence. Thus, Houle argues that his plea was involuntary and accepted in violation of Rule 11, N.D.R.Crim.P.

Rule 11 of the North Dakota Rules of Criminal Procedure, based upon Rule 11 of the Federal Rules of Criminal Procedure, reads, in part, as follows:

"(b) Advice to Defendant. The court may not accept a plea of guilty without first, by addressing the defendant personally [except as provided in Rule 43(c) ] in open court, informing the defendant of and determining that the defendant understands the following:

(1) The nature of the charge to which the plea is offered;

(2) The mandatory minimum punishment, if any, and the maximum possible punishment provided by the statute defining the offense to which the plea is offered;

(3) That the defendant has the right to plead not guilty, or to persist in that plea if it has already been made, or to plead guilty;

(4) That if the defendant pleads guilty there will not be a further trial of any kind, so that by pleading guilty the defendant waives the right to a trial by jury or otherwise and the right to be confronted with adverse witnesses; and

(5) If the defendant is not represented by an attorney, that the defendant has the right to be represented by an attorney at every stage of the proceeding against the defendant and, if necessary, one will be appointed to represent the defendant, as provided in Rule 44, North Dakota...