Morris v. State

• Decision Date: 27 June 2019
• Docket Number: No. 20180369,20180369
• Citation: 930 N.W.2d 195
• Parties: Nicholas Charles MORRIS, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee
• Court: North Dakota Supreme Court

930 N.W.2d 195

Nicholas Charles MORRIS, Petitioner and Appellant

v.STATE of North Dakota, Respondent and Appellee

No. 20180369

Supreme Court of North Dakota.

Filed June 27, 2019

Rehearing Denied July 30, 2019

Erica M. Woehl, Bismarck, ND, for petitioner and appellant.

Reid A. Brady (argued), Assistant State’s Attorney, Ryan J. Younggren (on brief), Assistant State’s Attorney, and Nicholas Samuelson (appeared), third-year law student, under the Rule on Limited Practice of Law by Law Students, Fargo, ND, for respondent and appellee.

McEvers, Justice.

[¶1] Nicholas Charles Morris appeals from a district court order denying his application for post-conviction relief. On appeal, Morris argues the district court erred in denying his application for post-conviction relief because (1) accomplice to commit murder is not a cognizable offense, and (2) he was deprived of his right to effective assistance of counsel. He also argues he should be permitted to withdraw his guilty plea. We affirm the district court’s order and hold accomplice to commit murder is a cognizable offense, Morris was not deprived of his right to effective assistance of counsel, and he has failed to show a manifest injustice warranting the withdrawal of his guilty plea.

I

[¶2] In May 2015, Morris was involved in a physical altercation which resulted in Joey Gaarsland’s death. Morris was charged with three counts of conspiracy to commit aggravated assault and one count of murder. Attorney Nicholas Thornton appeared on Morris' behalf in some of the early proceedings but was never formally retained. In July 2015, before the preliminary hearing, the State submitted a brief in support of findings of probable cause and attached as an exhibit a letter written by Morris directed to the State’s attorney, admitting to his involvement in the physical altercation. On March 11, 2016, at the change of plea hearing, Morris entered Alford pleas to charges in the amended information including one count of accomplice to commit extreme indifference murder and two counts of conspiracy to commit aggravated assault. Approximately one month before sentencing, Morris' counsel, Mark Blumer, moved to withdraw as counsel. The district court denied the motion. Morris was sentenced on October 17, 2016.

[¶3] On November 17, 2017, Morris, acting on his own behalf, filed an application for post-conviction relief, alleging ineffective assistance of counsel against Blumer, judicial bias, and prosecutorial misconduct. The State answered on November 20, 2017, and asserted the affirmative defenses of res judicata and misuse of process. On February 26, 2018, Morris filed a supplemental application for post-conviction relief with the assistance of court-appointed counsel. The supplemental application argued accomplice to commit extreme indifference murder is not a cognizable offense, Morris received ineffective assistance of counsel (directed at both Thornton and Blumer), Morris was deprived of his right to counsel when the district court denied Blumer’s motion to withdraw as counsel, and Morris' plea was not knowing and voluntary. On March 27, 2018, the State responded, moving to dismiss all of Morris' claims, arguing the claims were barred as an abuse of process and res judicata because Morris failed to raise those arguments during the pendency of the criminal case or in an appeal therefrom.

[¶4] Post-conviction hearings were held in June and August 2018 where Blumer, Thornton, and Morris testified, and several exhibits were admitted. On August 24, 2018, the district court issued an order denying Morris' application for post-conviction relief, concluding accomplice to murder is a cognizable offense, and finding the greater weight of the evidence demonstrated Blumer and Thornton’s representation did not fall below an objective standard of reasonableness. The court further concluded Blumer’s motion to withdraw as counsel was properly denied, and found the record demonstrated Morris knowingly, voluntarily, and intelligently pleaded guilty to the amended information.

[¶5] Morris appeals from the district court’s order denying his application for post-conviction relief, arguing the court erred because (1) accomplice to commit murder is not a cognizable offense, and (2) he was deprived his right to effective assistance of counsel. He also argues he should be permitted to withdraw his guilty plea.

II

[¶6] We review district court orders on applications for post-conviction relief as follows:

Post-conviction relief proceedings are civil in nature and governed by the North Dakota Rules of Civil Procedure. The petitioner bears the burden of establishing grounds for post-conviction relief. When we review a district court’s decision in a post-conviction proceeding, questions of law are fully reviewable. The 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). 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.

Curtiss v. State , 2016 ND 62, ¶ 7, 877 N.W.2d 58 (citations omitted). "Construction of a statute is a question of law, fully reviewable by this court." Interest of M.M. , 2019 ND 64, ¶ 6, 924 N.W.2d 132.

III

[¶7] Morris claims accomplice to commit extreme indifference murder under N.D.C.C. §§ 12.1-03-01(1)(b) and 12.1-16-01(1)(b) is not a cognizable offense. The district court concluded accomplice to commit extreme indifference murder as charged is a cognizable offense. We summarily affirm under N.D.R.App.P. 35.1(a)(7). See Olson v. State , 2019 ND 135, ¶ 18, 927 N.W.2d 444 (holding accomplice to extreme indifference murder is a cognizable offense).

IV

[¶8] Morris argues he was deprived of his right to effective assistance of counsel from Thornton and Blumer.

A

[¶9] We have summarized the Strickland test used to evaluate claims of ineffective assistance of counsel as follows:

The Sixth Amendment of the United States Constitution, applied through the Fourteenth Amendment to the States, and Article I, Section 12, of the North Dakota Constitution guarantee criminal defendants effective assistance of counsel. State v. Garge , 2012 ND 138, ¶ 10, 818 N.W.2d 718. An ineffective assistance of counsel claim involves a mixed question of law and fact, fully reviewable by this Court. Flanagan [v. State ], 2006 ND 76, ¶ 9, 712 N.W.2d 602. In order to prevail on a post-conviction claim for ineffective assistance of counsel, an applicant must show (1) counsel’s representation fell below an objective standard of reasonableness and (2) 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, 687-96, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). An applicant raising a post-conviction claim for ineffective assistance of counsel has the "heavy burden" of establishing the requirements of the two-prong Strickland test. Flanagan , at ¶ 10.

Olson , 2019 ND 135, ¶ 19, 927 N.W.2d 444 (quoting Everett v. State , 2015 ND 149, ¶ 7, 864 N.W.2d 450 ). "The 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)." Thompson v. State , 2016 ND 101, ¶ 7, 879 N.W.2d 93. "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 [h]as been made." Id. "Questions of law are fully reviewable on appeal of a post-conviction proceeding." Id.[¶10] Morris argues Thornton was ineffective because he advised Morris to write and send a letter to the State.

[¶11] The district court denied Morris' post-conviction claim against Thornton on the basis that Morris failed to satisfy the first prong of the Strickland test by failing to show Thornton’s performance fell below an objective standard of reasonableness. The court noted that at the post-conviction hearing, Thornton testified that he only appeared on behalf of Morris for the limited purpose of addressing bail, that he had no recollection of telling Morris to write a letter to the State, and that doing so would have been inconsistent with his habit, routine, and practice. Further, the court relied on Thornton’s testimony that his habit, routine, and practice is to have clients memorialize their version of events in a letter to Thornton , which he can use in plea negotiations as he sees fit and that it would be incredibly inconsistent with his practice to advise a client to confess to a prosecutor. The court noted Thornton’s testimony that an exhibit showing an email exchange between him and Blumer reveals Thornton suggested Morris write a letter to Blumer. The court’s findings are supported by the record and we are not left with a definite and firm conviction a mistake has been made. Accordingly, we affirm the district court’s finding on this ground.

[¶12] Morris argues Blumer provided ineffective assistance of counsel due to (1) a breakdown in attorney-client communication, (2) Blumer’s failure to explain the terms of the plea agreement, (3) Blumer’s failure to explain the consequences of the Alford plea, (4) Blumer’s failure to preserve the record and state Morris' complaints at the hearing on the motion to withdraw as counsel, and (5) Blumer’s failure to timely move to withdraw Morris' guilty plea.

[¶13] Ruling on Morris' ineffective assistance of counsel claims against Blumer, the district court found Blumer’s testimony credible and his representation was reasonable. The court reiterated Blumer testified he discussed accomplice liability with Morris in...