MacKey v. State , 20120119.

• Decision Date: 26 July 2012
• Docket Number: No. 20120119.,20120119.
• Citation: 819 N.W.2d 539,2012 ND 159
• Parties: Kyle Taft MACKEY, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
• Court: North Dakota Supreme Court

819 N.W.2d 539

2012 ND 159

Kyle Taft MACKEY, Petitioner and Appellant

v.STATE of North Dakota, Respondent and Appellee.

No. 20120119.

Supreme Court of North Dakota.

July 26, 2012.

Kyle Taft Mackey, self-represented, Jamestown, ND, petitioner and appellant; on brief.

Ryan M. Norell, State's Attorney, LaMoure, N.D., for respondent and appellee.

MARING, Justice.

[¶ 1] Kyle T. Mackey appeals from the trial court's order for amended judgment and amended judgment denying and dismissing his application for post-conviction relief. We affirm.

I

[¶ 2] In April 2010, Mackey pled guilty to one count of gross sexual imposition (“GSI”) and another count of GSI was diverted for the duration of Mackey's imprisonment and probation. On August 10, 2010, the trial court sentenced Mackey to thirty years in prison. The court ordered Mackey to serve eight years and suspended the remaining twenty-two years for five years. On September 9, 2010, Mackey appealed from the criminal judgment. On January 28, 2011, while the appeal was pending, Mackey moved to withdraw his guilty plea, arguing the sentence did not conform to the plea agreement and alleging the sentence was illegal. The trial court amended Mackey's sentence, reducing it to fifteen years, and Mackey filed a second appeal from the court's order. This Court affirmed the trial court's order amending his sentence and denying his motion to withdraw his guilty plea. State v. Mackey, 2011 ND 203, 805 N.W.2d 98.

[¶ 3] Mackey filed an application for post-conviction relief on December 15, 2011. In his application, Mackey again sought to withdraw his guilty plea, claiming he lacked an understanding of the law in relation to the facts of his case and his plea was not voluntary. The State responded, requesting dismissal and arguing Mackey's attempt to withdraw his guilty plea was barred on the grounds of misuse of process. The trial court granted the State's request and entered judgment dismissing Mackey's petition for post-conviction relief on January 10, 2012.

[¶ 4] Following the dismissal of his application, Mackey moved the trial court to reconsider his application. Mackey continued to claim he did not understand the factual basis surrounding his guilty plea and, for the first time, alleged he received ineffective assistance of counsel at the time of his plea of guilty and on appeal. The court treated Mackey's motion to reconsider as an amendment to his original application for post-conviction relief, and the State responded, again requesting the court to dismiss Mackey's application. The State argued issues related to Mackey's guilty plea constituted misuse of process and further argued Mackey failed to raise any genuine issues of material fact with regard to his ineffective assistance of counsel claims. The trial court granted the State's motion and dismissed Mackey's application for post-conviction relief. Mackey appealed.

II

[¶ 5] “ ‘Post-conviction relief proceedings are civil in nature and governed by the North Dakota Rules of Civil Procedure.’ ” Delvo v. State, 2010 ND 78, ¶ 10, 782 N.W.2d 72 (quoting Clark v. State, 2008 ND 234, ¶ 11, 758 N.W.2d 900). The Court reviews the summary dismissal of an application for post-conviction relief in the same manner as an appeal from summary judgment. Id. Under N.D.C.C. § 29–32.1–09(1), a court may grant a motion for summary disposition if “there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” “ ‘The party opposing the motion for summary disposition is entitled to all reasonable inferences at the preliminary stages of a post-conviction proceeding and is entitled to an evidentiary hearing if a reasonable inference raises a genuine issue of material fact.’ ” Parizek v. State, 2006 ND 61, ¶ 4, 711 N.W.2d 178 (quoting Berlin v. State, 2005 ND 110, ¶ 6, 698 N.W.2d 266). A genuine issue of material fact exists when reasonable minds could draw different inferences and conclusions from the undisputed facts. Vandeberg v. State, 2003 ND 71, ¶ 5, 660 N.W.2d 568. The movant initially may satisfy his burden of showing there is no genuine issue of material fact by demonstrating an absence of evidence supporting the petitioner's application. Parizek, 2006 ND 61, ¶ 7, 711 N.W.2d 178. At this point, the petitioner is “put on his proof,” and the petitioner may no longer rely on unsupported allegations but must produce some competent, admissible evidence to show the presence of an issue of material fact. Ude v. State, 2009 ND 71, ¶ 8, 764 N.W.2d 419. Claims of ineffective assistance of counsel are often unsuited to summary disposition, but this Court has “upheld summary denials of post-conviction relief when the applicants were put to their proof, and summary disposition occurred after the applicants then failed to provide some evidentiary support for their allegations.” Steinbach v. State, 2003 ND 46, ¶ 15, 658 N.W.2d 355.

III

[¶ 6] Mackey argues the trial court erred by failing to conclude he received ineffective assistance of counsel. In Murchison v. State, this Court explained the requirements a defendant must meet for an ineffective assistance of counsel claim to succeed:

“[A] defendant has a heavy burden of proving (1) counsel's representation fell below an objective standard of reasonableness, and (2) the defendant was prejudiced by counsel's deficient performance. Effectiveness of counsel is measured by an objective standard of reasonableness considering prevailing professional norms. To prevail on an ineffective assistance of counsel claim, the defendant must first overcome the strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Trial counsel's conduct is presumed to be reasonable and courts consciously attempt to limit the distorting effect of hindsight.

To demonstrate prejudice, the defendant must establish a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different, and the defendant must specify how and where trial counsel was incompetent and the probable different result. A reasonable probability is a probability sufficient to undermine confidence in the outcome....”

2011 ND 126, ¶ 8, 799 N.W.2d 360 (quoting State v. Myers, 2009 ND 141, ¶¶ 14–15, 770 N.W.2d 713);see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

[¶ 7] Mackey's ineffective assistance of counsel claim is essentially a collateral attack on the manner in which the factual basis of his guilty plea was established and whether the factual basis was sufficient. In order to determine whether there is a genuine issue of material fact as to the effectiveness of Mackey's counsel's representation and, if Mackey's counsel's representation was ineffective, whether Mackey was prejudiced by such ineffective representation, we must first determine whether the factual basis for Mackey's guilty plea was established.

A

[¶ 8] Mackey claims N.D.R.Crim.P. 11 requires the court to address him personally and, because his counsel acknowledged the existence of a factual basis for the guilty plea on Mackey's behalf, that his appellate counsel was ineffective for failing to raise this issue in Mackey's first motion to withdraw his guilty plea and with this Court on his first appeal.

[¶ 9] Interpretation of a court rule is a question of law. State v. Ebertz, 2010 ND 79, ¶ 8, 782 N.W.2d 350. When interpreting a rule, “we apply the rules of statutory construction and look at the language of the rule or statute to determine its meaning.” Id. During Mackey's April 14, 2010, plea hearing, the court asked Mackey's attorney, “do you acknowledge that there's a factual basis for this plea of guilty?” and Mackey's attorney responded, “I would acknowledge and so stipulate.” Rule 11(b)(3), N.D.R.Crim.P., states, “[b]efore entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea.” However, Rule 11(b)(3) includes no requirement that the court must directly address the defendant. This is in contrast to Rule 11(b)(1), which states that “[t]he court may not accept a plea of guilty without first, by addressing the defendant personally ... in open court,” making sure the defendant understands the procedural rights afforded him by the United States and North Dakota Constitutions. Further, in State v. Hagemann, this Court rejected the defendant's contention that “substantial compliance with Rule 11(e), N.D.R.Crim.P., did not exist because the district court did not specifically inquire of the defendant as to the factual basis....” 326 N.W.2d 861, 870 (N.D.1982).¹Rule 11, N.D.R.Crim.P., is similar to Federal Rule of Criminal Procedure 11. We have said “we are guided by and give deference to Federal case law” interpreting the federal rule when we construe our rule. Gruebele v. Gruebele, 338 N.W.2d 805, 811 n. 5 (N.D.1983). Federal courts interpreting the federal rules have reached the same conclusion. See United States v. King, 604 F.2d 411, 414 (5th Cir.1979) (holding that “[t]o the extent that the district court did not address the defendant personally on the question of a factual basis for the pleas there was no violation of Rule 11” and that “[a]s long as the factual basis is developed on the record, it may come from several sources”); Davis v. United States, 470 F.2d 1128, 1129 n. 2 (3rd Cir.1972) (stating that “[i]n satisfying itself that there exists a factual basis for a plea, it is not necessary that the defendant personally be asked any questions” and that “[t]he court can satisfy itself as to the factual basis of the plea from any source”). The trial court did not err by not directly questioning Mackey regarding the factual basis for his guilty plea.

B

[¶ 10] While Mackey does not argue the factual basis for his guilty plea was not established in any manner, because the “lack of a factual basis for a plea is a substantial defect calling...