Kremer v. State

• Decision Date: 29 June 2020
• Docket Number: No. 20190408,20190408
• Parties: James Richard KREMER, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee
• Court: North Dakota Supreme Court

945 N.W.2d 279

James Richard KREMER, Petitioner and Appellant

v.STATE of North Dakota, Respondent and Appellee

No. 20190408

Supreme Court of North Dakota.

Filed June 29, 2020

Benjamin C. Pulkrabek, Mandan, ND, for petitioner and appellant.

Christopher W. Nelson, Assistant State's Attorney, Minot, ND, for respondent and appellee.

VandeWalle, Justice.

[¶1] James Kremer appealed from a district court order denying his application for post-conviction relief. Kremer argues he should be allowed to withdraw his guilty pleas because he received ineffective assistance of counsel and because the district court did not adhere to the procedure set forth in N.D.R.Crim.P. 11. We affirm.

I

[¶2] In 2014, FBI agents seized computers, hard drives, and other electronic devices belonging to Kremer. Child pornography was found on some of the devices. The agents interviewed Kremer regarding the devices and the explicit material discovered on the devices. Kremer claimed ownership of the electronic devices and acknowledged the explicit material found on them. In November 2015, Kremer entered into a stipulation with federal prosecutors in which Kremer agreed to plead guilty to charges related to the matter in North Dakota state court. Had Kremer not pleaded guilty in state court, the stipulation stated prosecution of the matter would continue in federal court. Kremer was facing a 15 year minimum mandatory sentence if convicted in federal court.

[¶3] Kremer was charged in state district court with five counts of possession of certain materials prohibited. Kremer's counsel negotiated an agreement with the State in which Kremer would plead guilty to three counts, receive a sentence of ten years imprisonment followed by three years of supervised probation, and two counts would be dismissed. On February 25, 2016, a change of plea hearing was held in state district court. At the hearing, Kremer entered guilty pleas in accordance with the federal stipulation and state plea agreement.

[¶4] In July 2018, Kremer filed his application for post-conviction relief. Kremer sought to withdraw his guilty pleas claiming he received ineffective assistance of counsel and the court "did not inform Kremer of the possibility of restitution, did not insure that Kremer's plea was voluntary, did not obtain a factual basis for the plea, and did not get any acknowledgement by [Kremer] regarding the facts." After an evidentiary hearing was held, the district court denied Kremer's application.

II

[¶5] "Generally, when a post-conviction relief applicant seeks to withdraw a guilty plea, the district court looks to whether relief is necessary to correct a ‘manifest injustice.’ " Lindsey v. State , 2014 ND 174, ¶ 16, 852 N.W.2d 383 (citing Moore v. State, 2013 ND 214, ¶ 10, 839 N.W.2d 834 ). "When a defendant applies for post-conviction relief seeking to withdraw a guilty plea, we ... treat the application as one made under N.D.R.Crim.P. [11](d)." Id. "Withdrawal is allowed when necessary to correct a manifest injustice." Id. We review a district court's denial of a motion to withdraw a guilty plea under an abuse of discretion standard. State v. Peterson , 2019 ND 140, ¶ 6, 927 N.W.2d 74 (citing State v. Feist , 2006 ND 21, ¶ 22, 708 N.W.2d 870 ). "A district court abuses its discretion when it acts in an arbitrary, unreasonable, or capricious manner, or misinterprets or misapplies the law." Id.

[¶6] "When a defendant pleads guilty on the advice of counsel, the defendant ‘may only attack the voluntary and intelligent character of the guilty plea.’ " Lindsey , 2014 ND 174, ¶ 17, 852 N.W.2d 383 (quoting Damron v. State , 2003 ND 102, ¶ 9, 663 N.W.2d 650 ). "Unless a defendant can prove ‘serious derelictions’ on the part of the defendant's attorney that kept a plea from being knowingly and intelligently made, the defendant will be bound by that guilty plea." Id. (citing Damron , at ¶ 13 ). "In criminal cases, the defendant has the burden to present evidence to overcome the presumption that defense counsel is competent and adequate, and to do so, the defendant must point ‘to specific errors made by trial counsel.’ " Id. (quoting Damron , at ¶ 13 ).

A

[¶7] Kremer argued he should be allowed to withdraw his guilty pleas because he received ineffective assistance of counsel leading to his guilty pleas.

[¶8] "Whether a petitioner received ineffective assistance of counsel is a mixed question of law and fact and is fully reviewable on appeal." Kalmio v. State , 2019 ND 223, ¶ 7, 932 N.W.2d 562 (quoting Kalmio v. State , 2018 ND 182, ¶ 13, 915 N.W.2d 655 ). "A trial court's findings of fact in a post-conviction proceeding will not be disturbed on appeal unless clearly erroneous under N.D.R.Civ.P. 52(a)." Stein v. State , 2019 ND 291, ¶ 5, 936 N.W.2d 389 (quoting Saari v. State , 2017 ND 94, ¶ 6, 893 N.W.2d 764 ). A finding 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 it, a reviewing court is left with a definite and firm conviction a mistake has been made. Id.

[¶9] The framework for evaluating ineffective assistance of counsel claims is well established:

[T]o prevail on a post-conviction relief application based on ineffective assistance of counsel, the petitioner must (1) "show that counsel's representation fell below an objective standard of reasonableness" and (2) "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington , 466 U.S. 668, 688, 694, [104 S. Ct. 2052, 80 L. Ed. 2d 674] (1984).

Lindsey , 2014 ND 174, ¶ 19, 852 N.W.2d 383. "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." Booth v. State , 2017 ND 97, ¶ 8, 893 N.W.2d 186 (quoting Osier v. State , 2014 ND 41, ¶ 11, 843 N.W.2d 277 ). "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Id. (quoting Garcia v. State , 2004 ND 81, ¶ 5, 678 N.W.2d 568 ).

[¶10] "The two-part Strickland test ‘applies to challenges to guilty pleas based on ineffective assistance of counsel.’ " Booth , 2017 ND 97, ¶ 7, 893 N.W.2d 186 (quoting Bahtiraj v. State , 2013 ND 240, ¶ 9, 840 N.W.2d 605 ). "The first prong is measured using ‘prevailing professional norms,’ and is satisfied if [the defendant] proves counsel's conduct consisted of errors serious enough to result in denial of the counsel guaranteed by the Sixth Amendment." Stein , 2019 ND 291, ¶ 7, 936 N.W.2d 389 (quoting Lindsey , at ¶ 19 ). "The second prong of the Strickland test is satisfied in the context of a guilty plea if the defendant shows ‘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.’ " Id. at ¶ 8. "To establish prejudice under Strickland in a plea bargain situation, the petitioner must allege facts that, if proven, would support a conclusion that rejection of the plea bargain would have been rational because valid defenses existed, a suppression motion could have undermined the prosecution's case, or there was a realistic potential for a lower sentence." Booth , at ¶ 9 (citing Bahtiraj , at ¶ 16 ). "No court is satisfied with a defendant's subjective, self-serving statement that, with competent advice, he would have insisted on going to trial." Id. ; Stein , at ¶ 8.

[¶11] Kremer argues his attorney failed to inform him of the elements of the crimes he pleaded guilty to, and that had he known the essential elements of the crimes charged, he never would have pleaded guilty in state court. The district court found Kremer failed to prove the second prong of the Strickland test because Kremer faced a "significantly longer sentence of incarceration if convicted in federal court." On appeal, Kremer acknowledges he was facing a minimum mandatory 15 year sentence if convicted in federal court. By agreeing to plead guilty in state court and receive a 10 year sentence, the court found "Kremer weighed his options and selected what he believed to be [an] advantageous option." The court's findings are supported by the evidence in the record and are not clearly erroneous.

[¶12] The district court's findings are bolstered by our review of the record. After reviewing the entire record, there is nothing other than Kremer's self-serving statements made on appeal to indicate that he would not have pleaded guilty and would have insisted on going to trial.

Kremer did not offer such testimony at the post-conviction hearing. At the post-conviction hearing, Kremer's counsel argued the district court at the change of plea hearing never asked Kremer whether he knowingly possessed the explicit materials found on his computers. Kremer's counsel's argument is the only indication in the record of what Kremer contends his potential defenses were. Kremer himself never testified to what he believed his defenses were. Likewise, there is no evidence in the record to suggest there was a realistic potential for a lower sentence in either state or federal court had Kremer not pled guilty.

[¶13] Kremer has failed to establish he was prejudiced by his counsel's alleged deficient performance. Because Kremer has failed to establish the second prong of the Strickland test, we do not address whether his counsel's performance was deficient.

B

[¶14] Kremer argues he should be allowed to withdraw his guilty pleas because the district court did not comply with N.D.R.Crim.P. 11(b)(1)(F), 11(b)(3), and 11(b)(4)(A).

[¶15] "The provisions of N.D.R.Crim.P. 11 ‘are mandatory and substantial compliance is required to ensure a defendant knowingly and voluntarily enters a guilty plea.’ " Peterson , 2019 ND 140, ¶ 6, 927 N.W.2d 74 (quoting State v. Yost , 2018 ND 157, ¶ 17, 914 N.W.2d 508 ). "The...