Middleton v. State

• Decision Date: 17 July 2014
• Docket Number: No. 20130395.,20130395.
• Citation: 2014 ND 144,849 N.W.2d 196
• Parties: Gerald Ray MIDDLETON, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
• Court: North Dakota Supreme Court

849 N.W.2d 196

2014 ND 144

Gerald Ray MIDDLETON, Petitioner and Appellant

v.STATE of North Dakota, Respondent and Appellee.

No. 20130395.

Supreme Court of North Dakota.

July 17, 2014.

James A. Teigland (argued) and Nicholas D. Thornton (on brief), Fargo, ND, for petitioner and appellant.

Mark J. McCarthy, Assistant State's Attorney, Grand Forks, ND, for respondent and appellee; submitted on brief.

CROTHERS, Justice.

[¶ 1] Gerald Ray Middleton appeals from a district court order denying his application for postconviction relief. We affirm because trial counsel's procedurally deficient motion for a new trial was not proven to prejudice Middleton.

I

[¶ 2] Middleton was found guilty by a jury of continuous sexual abuse of a child, a class AA felony, and corruption of a minor, a class C felony. After the trial, attorney Steven M. Light, now deceased, was substituted as Middleton's new counsel. Middleton then moved for a new trial. The brief in support of Middleton's motion stated, in its entirety:

FACTS

On April 5, 2010, Gerald Middleton (hereinafter “Middleton”) was charged via Information with Continuous Sexual Abuse of a Child, a Class AA Felony, and Corruption of a Minor, a Class C Felony. A Jury Trial commenced October 24, 2011. On October 29, 2011, the jury returned a verdict of Guilty on both counts.

LAW

Under Rule 33 of the North Dakota Rules of Criminal Procedure, the court may grant a new trial to the defendant if required in the interest of justice. State v. Kraft, 413 N.W.2d 303, 308 (N.D.1987).

Respectfully submitted this 8th day of November, 2011.

The district court denied Middleton's motion, ruling Middleton failed to include any legal arguments or facts to support his motion. Middleton was sentenced, and a judgment was subsequently entered. Light died three months after submitting the brief in support of the new trial motion.

[¶ 3] Represented by new counsel, Middleton filed a direct appeal, arguing the district court erred in denying his pretrial motion to release the victim's medical records and the State engaged in prosecutorial misconduct during closing argument. See State v. Middleton, 2012 ND 181, ¶ 4, 820 N.W.2d 738. This Court determined Middleton had not preserved his issues for appeal because they were not included in his motion for a new trial. Id. at ¶ 6. This Court also determined it would not review the issues for obvious error because review for obvious error under N.D.R.Crim.P. 52(b) is allowed only “to prevent an unjust conviction,” or in “exceptional situations where the defendant has suffered serious injustice,” and neither of those situations applied. Middleton, at ¶ 7 (citations omitted). We affirmed the judgment of conviction. Id. at ¶ 8.

[¶ 4] Middleton filed an application for postconviction relief, arguing his trial counsel and appellate counsel were ineffective on four grounds. With respect to Light, Middleton argued, “Post-trial counsel filed a substantively deficient motion for new trial thereby effectively denying Mr. Middleton direct appellate review of his case by the North Dakota Supreme Court[.]” After an evidentiary hearing, the district court denied Middleton's application for postconviction relief. Regarding Middleton's postconviction claims about Light, the district court held:

“D. Middleton failed to show how the results of his appeal would have been different if appellate counsel's Motion for a New Trial was laden with more legal arguments and facts to support his position.

“The North Dakota Supreme Court applied N.D.R.Crim.P. 52(b) to Middleton's appeal. State v. Middleton, 2012 ND 181, ¶ 7, 820 N.W.2d 738, 739–40. The Supreme Court found that Mr. Middleton had not ‘suffered serious injustice,’ and thus he was not entitled to a review of the issues for obvious error. Id. Consequently, the Court found appellate counsel's performance did not deny Mr. Middleton the opportunity for direct appellate review by the North Dakota Supreme Court.

“Here, Middleton was afforded an opportunity for an evidentiary hearing. The only evidence produced by Middleton at the evidentiary hearing was evidence of dissatisfaction with his trial attorney and his appellate attorney. There was no evidence presented to establish how a longer preparation time would have changed the outcome of the trial or that trial counsel failed to present relevant evidence that would have changed the outcome of the trial.”Middleton appeals from the district court order denying his application for postconviction relief, challenging only the district court's ruling as it pertains to Light's representation.

II

[¶ 5] Middleton argues the district court committed reversible error in denying his application for postconviction relief. Postconviction proceedings are civil in nature and governed by the North Dakota Rules of Civil Procedure. Moore v. State, 2007 ND 96, ¶ 8, 734 N.W.2d 336. “The petitioner has the burden of establishing grounds for post-conviction relief.” Id. This Court's standard of review for postconviction proceedings has been clearly established:

“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). 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. Questions of law are fully reviewable on appeal of a post-conviction proceeding.”

Broadwell v. State, 2014 ND 6, ¶ 5, 841 N.W.2d 750 (citations and internal quotation marks omitted).

III

[¶ 6] Middleton argues Light provided ineffective assistance of counsel in filing his motion for a new trial.

“The issue of ineffective assistance of counsel is a mixed question of law and fact which is fully reviewable by this court. To succeed on a claim for ineffective assistance of counsel, a petitioner must prove counsel's performance fell below an objective standard of reasonableness and the deficient performance prejudiced him. Even where the court finds that counsel's representation fell below an objective standard of reasonableness, prejudice is not normally assumed. Unless counsel's errors are so blatantly and obviously prejudicial that they would in all cases, regardless of the other evidence presented, create a reasonable probability of a different result, the prejudicial effect of counsel's errors must be assessed within the context of the remaining evidence properly presented and the overall conduct of the trial. Courts need not address both elements of the ineffective assistance of counsel test, and if a court can dispose of the case by addressing only one element, it is encouraged to do so.”

Broadwell, 2014 ND 6, ¶ 7, 841 N.W.2d 750 (citations and internal quotation marks omitted). “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.” Murchison v. State, 2011 ND 126, ¶ 8, 799 N.W.2d 360 (quoting State v. Myers, 2009 ND 141, ¶ 15, 770 N.W.2d 713). “A reasonable probability is a probability sufficient to undermine confidence in the outcome....” Murchison, at ¶ 8 (quoting Myers, at ¶ 15).

A

[¶ 7] As we noted in Middleton:

“A defendant may move for a new trial under N.D.R.Crim.P. 33. A motion for a new trial must specify the alleged defects and errors with particularity. N.D.R.Crim.P. 33(a). A defendant is required to assert all alleged errors in a motion for new trial. State v. Jordheim, 508 N.W.2d 878, 880–81 (N.D.1993). A motion for a new trial is not necessary for appellate review, but if a defendant moves for a new trial he is limited on appeal to the grounds presented to the district court in the motion. State v. Zajac, 2009 ND 119, ¶ 8, 767 N.W.2d 825; see also State v. Hernandez, 2005 ND 214, ¶ 34, 707 N.W.2d 449; State v. Syring, 524 N.W.2d 97, 100 (N.D.1994); Jordheim, at 880–81.”

2012 ND 181, ¶ 5, 820 N.W.2d 738.

[¶ 8] Light died three months after filing the new trial motion and brief and was therefore unavailable to explain this course of action. However, even granting all reasonable inferences that can be drawn from the record, we conclude Light's performance was objectively unreasonable. Cf. Heckelsmiller v. State, 2004 ND 191, ¶ 9, 687 N.W.2d 454 (granting trial counsel all reasonable inferences that could be drawn from the record, but concluding trial counsel's performance was ineffective). The brief in support of Middleton's new trial motion failed to specify any error. The entire motion was procedurally deficient. New trial motions are not mandatory to preserve issues for appeal; Middleton could have raised any appealable issue without first moving for a new trial. Generally, the rules of professional conduct prohibit an attorney from raising a meritless argument. SeeN.D.R.Prof. Conduct 3.1. Although we have noted that attorneys sometimes have no choice but to represent an indigent individual on what the attorney believes is a meritless appeal, see State v. Lewis, 291 N.W.2d 735, 738 (N.D.1980), the concerns associated with that situation are inapplicable here because no similar right exists to a new trial motion. We therefore conclude Light's representation fell below an objective standard of reasonableness when he filed a procedurally deficient new trial motion.

B

[¶ 9] Middleton argues the district court misapplied the law when it equated this Court's direct appeal holding that no obvious error existed to a holding that Light's actions were not prejudicial. The district court reasoned:

“The North Dakota Supreme Court applied N.D.R.Crim.P. 52(b) to Middleton's appeal. State v. Middleton, 2012 ND 181, ¶ 7, 820 N.W.2d 738, 739–40. The Supreme Court found that Mr. Middleton had not ...