Isxaaq v. State

• Decision Date: 05 August 2021
• Docket Number: Nos. 20210066-20210068,s. 20210066-20210068
• Citation: 963 N.W.2d 260
• Parties: Yaasiin Aweis ISXAAQ, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee
• Court: North Dakota Supreme Court

963 N.W.2d 260

Yaasiin Aweis ISXAAQ, Petitioner and Appellant

v.STATE of North Dakota, Respondent and Appellee

Nos. 20210066-20210068

Supreme Court of North Dakota.

FILED AUGUST 5, 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, and Nicholas S. Samuelson (appeared), Assistant State's Attorneys, Fargo, ND, for respondent and appellee.

McEvers, Justice.

[¶1] Yaasiin Aweis Isxaaq appeals from a district court order denying his applications for post-conviction relief, in which he sought to withdraw his guilty pleas in three underlying criminal cases. We affirm, concluding the district court did not err in denying Isxaaq's applications for post-conviction relief.

I

[¶2] Isxaaq is a citizen of Somalia who gained lawful permanent resident status in 2018 after seeking asylum as a refugee in 2014. Isxaaq filed post-conviction relief applications regarding three underlying criminal cases, which were consolidated for hearing in the district court. Isxaaq was charged with theft in June 2016, and pleaded guilty to an amended charge of disorderly conduct later that month. Isxaaq was later charged with misdemeanor sexual assault in February 2017 and pleaded guilty in March 2017. Isxaaq was then charged with misdemeanor theft, and pleaded guilty in January 2020. All three charges were class B misdemeanors. Isxaaq was detained by Immigration and Customs Enforcement ("ICE"), pending deportation proceedings, on January 29, 2020. In all three cases, Isxaaq argued his guilty pleas were not knowingly, intelligently, or voluntarily made because he had not been properly advised on adverse immigration consequences, and because an interpreter was not used when he communicated with his attorneys.

[¶3] At the evidentiary hearing on his applications, Isxaaq testified, as did two of his former trial attorneys. Isxaaq testified in all three cases he would not have pleaded guilty and instead would have proceeded to trial had he been properly advised on immigration consequences. Isxaaq alleged his guilty pleas were not knowing, intelligent, and voluntary due to a language barrier, and argued his counsel was ineffective for failing to utilize an interpreter. Both former trial attorneys testified they discussed potential adverse immigration consequences with Isxaaq, had no trouble communicating with Isxaaq in English, and did not require an interpreter's services to advise him.

[¶4] The district court entered an order denying Isxaaq's applications for post-conviction relief on February 17, 2021, finding the record did not support his claim that his guilty pleas were not knowing and voluntary because he did not understand English, and Isxaaq failed to establish prejudice in all three cases.

II

[¶5] On appeal, Isxaaq argues the district court erred because he received ineffective assistance of counsel and his pleas were not knowingly, intelligently, or voluntarily made in all three cases for two reasons: (1) he had difficulty understanding English without an interpreter, and his attorneys did not provide an interpreter, and (2) he was not properly advised on the immigration consequences of pleading guilty.

[¶6] Post-conviction relief proceedings are civil in nature and governed by the North Dakota Rules of Civil Procedure. Morris v. State , 2019 ND 166, ¶ 6, 930 N.W.2d 195. The applicant bears the burden of establishing grounds for post-conviction relief. Id. Questions of law are fully reviewable on appeal of a district court's decision in a post-conviction proceeding. Id. A district court's findings of fact in a post-conviction proceeding will not be disturbed on appeal unless they are clearly erroneous under N.D.R.Civ.P. 52(a). Id. A finding of fact 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 the finding, a reviewing court is left with a definite and firm conviction a mistake has been made. Id.

[¶7] When an applicant for post-conviction relief seeks to withdraw his guilty plea, the application is treated as one made under N.D.R.Crim.P. 11(d) and the district court considers whether relief is necessary to correct a manifest injustice. Kremer v. State , 2020 ND 132, ¶ 5, 945 N.W.2d 279. This Court reviews whether circumstances establish a manifest injustice under an abuse of discretion standard:

When resolving a motion to withdraw a guilty plea, the district court applies N.D.R.Crim.P. 11(d)(2), which provides: "Unless the defendant proves that withdrawal is necessary to correct a manifest injustice, the defendant may not withdraw a plea of guilty after the court has imposed sentence." To establish manifest injustice, a defendant must "prove serious derelictions on the part of the defendant's attorney that kept a plea from being knowingly and intelligently made." Whether the circumstances establish a manifest injustice is within the district court's discretion, and we reverse only for an abuse of discretion. A court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, or it misinterprets or misapplies the law.

State v. Awad , 2020 ND 66, ¶ 2, 940 N.W.2d 613 (internal citations omitted).

[¶8] An applicant seeking to withdraw his guilty plea alleging ineffective assistance of counsel must surmount the two-prong test set out by Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). An applicant for post-conviction relief bears a "heavy burden" to prevail on an ineffective assistance of counsel claim. Bahtiraj v. State , 2013 ND 240, ¶ 8, 840 N.W.2d 605.

[¶9] To satisfy the first prong under Strickland , an applicant must show his or her counsel's representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688, 694, 104 S.Ct. 2052. To satisfy the second prong, an applicant must establish 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. Lindsey v. State , 2014 ND 174, ¶ 19, 852 N.W.2d 383.

[¶10] The first prong is measured against "prevailing professional norms." Bahtiraj , 2013 ND 240, ¶ 10, 840 N.W.2d 605. In Padilla v. Kentucky , the United States Supreme Court analyzed the first prong of Strickland and held that if the law is clear, constitutionally competent counsel would advise a noncitizen client that a conviction or guilty plea would result in mandatory deportation. 559 U.S. 356, 360, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). Conversely, if the law is not clear, constitutionally competent counsel "need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences." Id. at 369, 130 S.Ct. 1473.

[¶11] To meet Strickland ’s second prong, an applicant must establish prejudice by convincing "the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla , 559 U.S. at 372, 130 S.Ct. 1473. "Courts should not upset a plea solely because of post hoc assertions from a defendant about how he would have pleaded but for his attorney's deficiencies." Lee v. United States , ––– U.S. ––––, 137 S.Ct. 1958, 1967, 198 L.Ed.2d 476 (2017). Determining whether rejecting the plea was reasonable requires looking to "contemporaneous evidence to substantiate a defendant's expressed preferences." Id. All courts require something more than a defendant's subjective, self-serving statement that, with competent advice, he would have rejected the plea agreement and insisted on going to trial. Bahtiraj , 2013 ND 240, ¶ 16, 840 N.W.2d 605.

[¶12] "Courts need not address both prongs of the Strickland test, and if a court can resolve the case by addressing only one prong it is encouraged to do so." Osier v. State , 2014 ND 41, ¶ 11, 843 N.W.2d 277.

III

[¶13] We first address Isxaaq's argument his counsel was ineffective and his pleas were not knowing, intelligent, or voluntary because his attorneys did not use an interpreter to confer with him. Whether a defendant is able to adequately understand English without an interpreter is a finding of fact. See Morris v. State, 2017 ND 104, ¶ 8, 893 N.W.2d 475. Findings of fact in a post-conviction proceeding will not be disturbed unless they are clearly erroneous under N.D.R.Civ.P. 52(a). Id. Conflicts in testimony are resolved in favor of affirmance, as this Court has recognized the district court is in a superior position to assess credibility of witnesses and weigh the evidence. Dodge v. State , 2020 ND 100, ¶ 17, 942 N.W.2d 478.

[¶14] Isxaaq testified he had difficulty understanding his attorneys because English is not his first language, and he did not understand the consequences of pleading guilty. Both of Isxaaq's former attorneys testified they had no difficulty speaking with Isxaaq in English and did not need an interpreter to advise him. One of the attorneys testified she was familiar with Isxaaq, having previously represented him prior to the case that is the subject of this appeal.

[¶15] The district court found the record does not support Isxaaq's claim that he was unable to understand English or that his guilty pleas were not knowing and voluntary on that basis. The court also found the record contained colloquies that showed Isxaaq's understanding of English. These findings are not clearly erroneous. The court did not err in denying Isxaaq's claims of ineffective assistance of counsel based on a failure to use an interpreter.

IV

A

[¶16] Isxaaq gave uncontradicted testimony that his attorney in the 2016 disorderly conduct case did not advise him on the immigration consequences of pleading guilty. The district court relied on the prejudice prong of Strickland to resolve this claim of ineffective assistance of counsel. Discussing the prejudice prong, the court summarized Isxaaq's testimony as follows:

...