Olsen v. State, No. 20140009.

CourtUnited States State Supreme Court of North Dakota
Writing for the CourtVANDE WALLE
Citation2014 ND 173,852 N.W.2d 372
PartiesAndrew OLSEN, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
Docket NumberNo. 20140009.
Decision Date28 August 2014

852 N.W.2d 372
2014 ND 173

Andrew OLSEN, Petitioner and Appellant
v.
STATE of North Dakota, Respondent and Appellee.

No. 20140009.

Supreme Court of North Dakota.

Aug. 28, 2014.



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.

[852 N.W.2d 373]


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 Olsen completed the probation period without any violations, and on March 6, 2009, Olsen's guilty plea was withdrawn, the charge was dismissed, and the file was sealed as required by N.D.R.Crim.P. 32.1.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 argues

[852 N.W.2d 374]

1) 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...

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2 practice notes
  • Yoney v. State, 20200359
    • United States
    • United States State Supreme Court of North Dakota
    • July 22, 2021
    ...; 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 performance......
  • Yoney v. State, No. 20200359
    • United States
    • United States State Supreme Court of North Dakota
    • 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......
2 cases
  • Yoney v. State, 20200359
    • United States
    • United States State Supreme Court of North Dakota
    • July 22, 2021
    ...; 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 performance......
  • Yoney v. State, No. 20200359
    • United States
    • United States State Supreme Court of North Dakota
    • 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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