Lange v. State, 940087

• Citation: 522 N.W.2d 179
• Decision Date: 03 October 1994
• Docket Number: No. 940087,940087
• Parties: Michael A. LANGE, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 179

522 N.W.2d 179

Michael A. LANGE, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.

Civ. No. 940087.

Supreme Court of North Dakota.

Oct. 3, 1994.

Rauleigh D. Robinson, Bismarck, for petitioner and appellant.

John J. Mahoney, State's Atty., Center, for respondent and appellee.

VANDE WALLE, Chief Justice.

Michael Lange appealed from the order denying his application for post-conviction relief based on a claim of ineffective assistance of counsel. We affirm.

The underlying facts in this case are set forth in State v. Lange, 497 N.W.2d 83 (N.D.1993), in which we decided issues of double jeopardy and counseling-record privilege. Lange was accused of abducting a young woman in Mercer County and committing two acts of gross sexual imposition against her before transporting her to Oliver County and committing two more acts of gross sexual imposition. Lange was tried and acquitted of the charges of abduction and two counts of gross sexual imposition in a Mercer County trial. Three weeks later, he was tried on the charges in Oliver County and convicted on one of two charges of gross sexual imposition. Lange was represented by the same counsel at both trials and on his appeal on the merits of the Oliver County conviction. In both trials Lange relied on the consent defense. He alleges ineffective assistance of counsel in the Oliver County proceeding.

In order to establish his claim of ineffective assistance of counsel, defendant's burden was twofold. First, he needed to prove that his counsel's performance was defective. State v. McLain, 403 N.W.2d 16 (N.D.1987); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Second, he needed to show that his defense was prejudiced by the proven defects. Id. Lange has not met this heavy burden.

Analysis of the first element of the Strickland test, whether counsel's performance was deficient, requires consideration of all circumstances to determine whether there were "errors so serious" that defendant was not accorded that "counsel" guaranteed by the Sixth Amendment. McLain, 403 N.W.2d at 17; Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Effectiveness of counsel is measured by an "objective standard of reasonableness" considering "prevailing professional norms." Strickland, 466 U.S. at 688, 104 S.Ct. at 2065. A great deal of deference is accorded trial counsel. Id. at 689, 104 S.Ct. at 2065; State v. Motsko, 261 N.W.2d 860 (N.D.1977). Courts presume counsel's conduct to be reasonable and consciously attempt "to limit 'the distorting effect of hindsight.' " McLain, 403 N.W.2d at 18 [citing State v. Thompson, 359 N.W.2d 374, 377 (N.D.1985) ]; see also Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.

This court will not disturb a trial court's findings of fact in a post-conviction hearing unless they are "clearly erroneous." Schwindt v. State, 510 N.W.2d 114 (N.D.1994). Decisions regarding ineffective assistance of counsel entail mixed questions of fact and law. State v. Skaro, 474 N.W.2d 711 (N.D.1991) [citing Strickland v. Washington, 466 U.S. at 698, 104 S.Ct. at 2070]. Our analysis proceeds with recognition that the district court "is in a better position to judge the credibility and demeanor of the witnesses." Stoppleworth v. State, 501 N.W.2d 325, 327 (N.D.1993).

Lange alleges several deficiencies in his counsel's performance in the Oliver County trial and concludes that the representation was "tired" and "casual." However, Lange's lack of evidentiary proof reduces his allegations to nothing more than the hindsight questioning of tactical decisions made within counsel's "wide range of reasonable professional assistance." See State v. Kunkel, 366 N.W.2d 799, 802 (N.D.1985) [citing Strickland, 466 U.S. at 689, 104 S.Ct. at 2065]. A review of several of Lange's allegations of deficiency of counsel makes this clear.

Lange asserts that counsel's failure to present expert medical testimony of the weakened condition of his wrist amounted to ineffective assistance of counsel because this evidence would have shown that Lange did not have the strength to have performed the acts in the manner in which he was accused, i.e., without the consent and cooperation of the complaining witness. However, in the post-conviction proceeding, the trial court found that there was no evidence that "Mr. Lange had anything but tenderness over his wrist area" and that the testimony of Lange and his wife sufficiently presented this evidence at trial. Indeed, the court granted Lange additional time before his evidentiary hearing specifically to provide "amplification" of evidence to support his post-conviction relief petition. At this hearing, Lange failed to produce any expert witnesses to testify about his medical condition. Instead he presented copies of hospital records, doctors' notes and records, and Workers' Compensation Bureau documents.

In State v. Ricehill, 415 N.W.2d 481 (N.D.1987), we stressed the importance of the post-conviction relief hearing to defendants claiming ineffective assistance of counsel. Ricehill also involved the accusation that counsel's failure to call a certain witness prejudiced the defense. We pointed out that a post-conviction relief hearing pursuant to chapter 29-32.1, NDCC, would have given Ricehill a chance to prove, by affidavit or testimony of the proposed witness, that failure to subpoena the witness resulted in an unfair hearing. Id. We declined to even begin analysis of the ineffective assistance of counsel claim because the record was "devoid of any indication of what [the absent] testimony would have been...." Id. at 484. In the present case, we are again asked to hold a counsel's assistance ineffective because certain witnesses were not called to testify. Although in this case we have before us a record from a post-conviction relief hearing, we have not been provided with proof of what the uncalled witnesses' testimony would have been.

The record is devoid of any direct testimony that Lange was physically incapable of the act for which he was convicted. When asked during oral argument to point out in the record evidence of defendant's incapacity, Lange's counsel referred the Court to a Disability Certificate prepared for workers' compensation purposes. That certificate, signed by a medical doctor on April 2, 1991, states that Lange was under the doctor's professional care and was "totally incapacitated from 1/24/91 to 5/1/91." Lange was convicted for actions during the night of May 18 and the morning of May 19, 1991. The evidence Lange asserts should have been introduced was at best equivocal. Incapacity for Workers' Compensation ordinarily refers to earning capacity, see, section 65-01-02(13), NDCC. We are asked to assume here that "incapacity" for workers' compensation equates to physical inability to perform the acts with which Lange was charged. But, the certificate and the other medical documents in the post-conviction record, without expert testimony to...