Olsen v. State

Decision Date28 August 2014
Docket NumberNo. 20140009.,20140009.
CourtNorth Dakota Supreme Court
PartiesAndrew OLSEN, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.

OPINION TEXT STARTS HERE

David D. Dusek, Grand Forks, N.D., for petitioner and appellant.

Kelly A. Dillon, Assistant State's Attorney, Minot, N.D., for respondent and appellee.

VANDE WALLE, Chief Justice.

[¶ 1] Andrew Olsen appealed from an order denying his application for post-conviction relief. Because we conclude as a matter of law the failure of Olsen's attorney to raise an issue of first impression on an unsettled question of law in North Dakota did not constitute ineffective assistance of counsel, we affirm the district court's order.

I

[¶ 2] On March 1, 2007, Olsen pled guilty to possession of visual representations that include sexual content in violation of N.D.C.C. § 12.1–27.2–04.1, which at the time was a class A misdemeanor for a first offense. See 1989 N.D. Sess. Laws ch. 169, § 7. The district court entered an order deferring imposition of sentence and placed Olsen on supervised probation for a period of two years. The court did not advise Olsen in the order or otherwise that he was required to register as a sexual offender. SeeN.D.C.C. § 12.1–32–15. Olsen completed the probation period without any violations, and on March 6, 2009, Olsen's guilty plea was withdrawn, the charge was dismissed, and the file was sealed as required by N.D.R.Crim.P. 32.1.

[¶ 3] On July 6, 2009, Olsen was charged with class C felony failure to register as a sexual offender in violation of N.D.C.C. § 12.1–32–15. Olsen posted a $1,000 bond and one of the conditions of release in the bail order was that he “must register with Minot Police Dept within 24 hours of posting bond.” This charge was dismissed on the State's motion because Olsen had not been informed of the registration requirement when the order deferring imposition of sentence was entered on March 1, 2007. Olsen registered and continued to register as a sexual offender until 2011.

[¶ 4] On June 1, 2011, Olsen was again charged with class C felony failure to register as a sexual offender in violation of N.D.C.C. § 12.1–32–15. Olsen was represented by an attorney and, following a bench trial, he was found guilty and was sentenced to serve one year in jail with all but 90 days suspended for a period of one year of supervised probation. Olsen did not appeal from the criminal judgment.

[¶ 5] In March 2013, Olsen filed an application for post-conviction relief, claiming his attorney during the 2011 proceedings leading to his conviction was ineffective for failing to argue that he could not be found guilty for failure to register because his 2007 guilty plea had been withdrawn and the case dismissed under the procedure for deferred imposition of sentences contained in N.D.R.Crim. P. 32.1. The State moved for dismissal, arguing Olsen's attorney was not ineffective because 1995 amendments to N.D.C.C. § 12.1–32–15 made it clear that the registration requirement applied to offenders who received deferred imposition of sentences, and therefore, if Olsen's attorney had raised the issue, Olsen nevertheless would have been convicted. The district court agreed with the State's position and summarily dismissed Olsen's petition.

II

[¶ 6] Olsen argues the district court erred in denying his application for post-conviction relief.

[¶ 7] Olsen posits the issues differently on appeal than he did in his application for post-conviction relief. The application raised the single issue whether Olsen's attorney was ineffective for failing to assert that Olsen could not be found guilty because his 2007 guilty plea was withdrawn, the charge was dismissed, and the file was sealed in accordance with N.D.R.Crim.P. 32.1. On appeal, Olsen argues1) he was not subject to the registration requirement because he successfully completed all conditions of his probation under the deferred imposition of sentence which resulted in automatic dismissal of the charge; and 2) he was denied effective assistance of counsel because his attorney in the 2011 proceedings failed to raise this issue. Had Olsen presented these two issues to the district court, the first argument would have been subject to the affirmative defense of misuse of process under N.D.C.C. § 29–32.1–12(2)(a) for presenting “a claim for relief which the applicant inexcusably failed to raise ... in a proceeding leading to judgment of conviction and sentence.” See, e.g., Kinsella v. State, 2013 ND 238, ¶ 19, 840 N.W.2d 625. The State in this case did not raise misuse of process as an affirmative defense, which is understandable because the only issue raised was ineffective assistance of counsel and this Court prefers that an ineffective assistance claim be brought in an application for post-conviction relief. See, e.g., Moore v. State, 2013 ND 214, ¶ 6, 839 N.W.2d 834. We address the claim as it was presented in Olsen's application for post-conviction relief.

[¶ 8] When we review a district court's decision in a post-conviction proceeding, questions of law are fully reviewable. Dominguez v. State, 2013 ND 249, ¶ 8, 840 N.W.2d 596. Our standard for reviewing a summary denial of an application for post-conviction relief is similar to our review of a summary judgment, which may be granted if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Haag v. State, 2012 ND 241, ¶ 4, 823 N.W.2d 749; see alsoN.D.C.C. § 29–32.1–09(3). A genuine issue of material fact exists if reasonable minds could draw different inferences and reach different conclusions from the undisputed facts. Davis v. State, 2013 ND 34, ¶ 9, 827 N.W.2d 8.

[¶ 9] In Kinsella, 2013 ND 238, ¶¶ 5–6, 840 N.W.2d 625, we explained:

In Strickland v. Washington, 466 U.S. 668, 687 [104 S.Ct. 2052, 80 L.Ed.2d 674] (1984), the United States Supreme Court established the test for whether a convicted criminal defendant's ineffective assistance of counsel claim warrants a reversal of conviction. “First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.” Id. Second, the defendant must show that the deficient performance prejudiced his or her defense. Id. “This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id.

This Court has stated that the [e]ffectiveness of counsel is measured by an ‘objective standard of reasonableness' considering ‘prevailing professional norms.’ DeCoteau v. State, 2000 ND 44, ¶ 8, 608 N.W.2d 240 (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). We have also explained:

Establishing both elements is a heavy burden and requires a defendant to both overcome the strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance and establish that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. This requires the defendant to demonstrate with specificity how and where trial counsel was incompetent, and it is probable a different result would have been obtained had trial counsel not performed incompetently.

Klose [v. State], 2005 ND 192, ¶ 9, 705 N.W.2d 809 (citation omitted). In reviewing a trial counsel's conduct in an ineffective assistance of counsel claim, we are cognizant of limiting the “distorting effect of hindsight.” Garcia v. State, 2004 ND 81, ¶ 5, 678 N.W.2d 568.

Whether there has been ineffective assistance of counsel is a mixed question of law and fact that is fully reviewable by this Court. Gaede v. State, 2011 ND 162, ¶ 5, 801 N.W.2d 707.

[¶ 10] Generally, courts have held if an attorney fails to raise a claim that has undisputable merit under well-settled law, or a clear-cut and completely dispositive statutory defense, the attorney is ineffective for failing to raise it. See, e.g., Reed v. State, 856 N.E.2d 1189, 1197 (Ind.2006); People v. Turner, 5 N.Y.3d 476, 806 N.Y.S.2d 154, 840 N.E.2d 123, 126 (2005); Ex parte Miller, 330 S.W.3d 610, 624 (Tex.Ct.Crim.App.2009); see also State v. Maloney, 281 Wis.2d 595, 698 N.W.2d 583, 589 (2005) (“Ignorance of well-defined legal principles, of course, is nearly inexcusable”). However, [w]hen the law is unsettled, the failure to raise an issue is objectively reasonable and therefore not deficient performance” for purposes of an ineffective assistance of counsel claim. State v. Jackson, 333 Wis.2d 665, 799 N.W.2d 461, 466 (Ct.App.2011); see also Danks v. State, 733 N.E.2d 474, 487 (Ind.Ct.App.2000) (“because the law was (and is) unsettled on this issue, it was not ineffective assistance to not” raise it); Ross v. State, 16 So.3d 47, 60 (Miss.Ct.App.2009) (noting [c]ounsel is not required to object and argue a point of law that is unsettled’) (internal citation omitted); State v. Bennett, 415 S.W.3d 867, 869 (Tex.Ct.Crim.App.2013) (we have repeatedly declined to find counsel ineffective for failing to take a specific action on an unsettled issue”) (footnote omitted); Rodriguez v. State, 336 S.W.3d 294, 302 (Tex.Ct.App.2010) (“It is universally recognized that because ‘the law is not an exact science and it may shift over time,’ ‘an attorney is not liable for an error in judgment on an unsettled proposition of law.’) (internal citation omitted); In re Kirby, 192 Vt. 640, 58 A.3d 230, 235 (2012) (“Where the theory of law is untested or unsettled, counsel cannot be faulted for failing to raise every possible defense—this is both an unduly heavy and impractical burden.”); cf. Olson v. Fraase, 421 N.W.2d 820, 832 n. 8 (N.D.1988) (noting in the context of legal malpractice an attorney might not be liable “for advising a client on an unsettled or debatable issue of law in this jurisdiction”). Basing an ineffective...

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3 cases
  • Yoney v. State
    • United States
    • North Dakota Supreme Court
    • July 22, 2021
    ...350 (2014) ; Lee v. State , 91 N.E.3d 978 (Ind. Ct. App. 2017) ; Felton v. State , 753 S.W.2d 34 (Mo. Ct. App. 1988). See also Olsen v. State , 2014 ND 173, ¶ 10, 852 N.W.2d 372 ("when the law is unsettled, the failure to raise an issue is objectively reasonable and therefore not deficient ......
  • McCoy v. State
    • United States
    • Alabama Court of Criminal Appeals
    • February 10, 2023
    ... ... Crim ... App. 2005) ("[C]ounsel's performance will be ... measured against the state of the law in effect during the ... time of trial and we will not find counsel ineffective where ... the claimed error is based upon unsettled law." ... (citation omitted)); Olsen v. State , 852 N.W.2d 372, ... 376-77 (N.D. 2014) (holding that counsel was not ineffective ... for failing to raise an issue of first impression in that ... jurisdiction); and Ross v. State , 16 So.3d 47, 60 ... (Miss. Ct. App. 2009) (holding that counsel could not be ... ...
  • Yoney v. State
    • United States
    • North Dakota Supreme Court
    • July 22, 2021
    ...2014); Lee v. State, 91 N.E.3d 978 (Ind. Ct. App. 2017); Felton v. State, 753 S.W.2d 34 (Mo. Ct. App. 1988). See also Olsen v. State, 2014 ND 173, ¶ 10, 852 N.W.2d 372 ("when the law is unsettled, the failure to raise an issue is objectively reasonable and therefore not deficient performanc......

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