Olson v. State

• Decision Date: 16 May 2019
• Docket Number: No. 20180268,20180268
• Citation: 927 N.W.2d 444
• Parties: Jessy Duane OLSON, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee
• Court: North Dakota Supreme Court

927 N.W.2d 444

Jessy Duane OLSON, Petitioner and Appellant

v.STATE of North Dakota, Respondent and Appellee

No. 20180268

Supreme Court of North Dakota.

Filed May 16, 2019

Rehearing Denied June 27, 2019

Garrett D. Ludwig, Mandan, ND, for petitioner and appellant.

Reid A. Brady (argued), Assistant State’s Attorney, and Nicholas Samuelson (appeared), under the Rule on Limited Practice of Law by Law Students, Fargo, ND, for respondent and appellee.

McEvers, Justice.

[¶1] Jessy Olson appeals a district court order denying his application for post-conviction relief. Olson argues accomplice to murder is not a cognizable offense, and he received ineffective assistance of counsel and his guilty pleas to the charges of accomplice to murder and conspiracy to commit aggravated assault were not voluntary. We affirm.

I

[¶2] In May 2015, Olson and others were involved in a fight outside a bar in Fargo. Three individuals sustained serious injuries, including Joey Gaarsland, who later died from his injuries. Olson was arrested and charged with murder and three counts of conspiracy to commit aggravated assault. The district court appointed an attorney to represent Olson throughout the proceeding.

[¶3] In March 2016, the State amended the criminal charges against Olson. The State amended the murder charge to accomplice to murder and dismissed one of the counts of conspiracy to commit aggravated assault. The State alleged Olson acted as an accomplice to Gaarsland’s murder by aiding another in committing the offense that resulted in Gaarsland’s death.

[¶4] Olson and the State entered into a written "Proffer Agreement" relating to a resolution of the case. Olson agreed to cooperate with the State in the prosecution of the other defendants. The agreement provided Olson would plead guilty and the State would recommend no more than twenty years in prison and Olson would be free to argue for a lesser sentence. After signing the agreement, Olson entered Alford pleas to accomplice to commit murder and two counts of conspiracy to commit aggravated assault. In October 2016, Olson was sentenced to twenty years in prison.

[¶5] Olson applied for post-conviction relief, arguing his guilty pleas were not knowing and voluntary, accomplice to murder is not a cognizable offense, and he received ineffective representation from his attorney. Olson requested the district court grant him post-conviction relief so he could withdraw his guilty pleas.

[¶6] At an evidentiary hearing on Olson’s application, he testified that on the basis of his attorney’s advice, he was rushed in to pleading guilty and believed he would be sentenced to five years in prison instead of twenty years. The district court denied Olson’s application, concluding his attorney provided effective representation and his guilty pleas were knowing and voluntary.

II

[¶7] We employ the following standard of review in post-conviction relief proceedings:

A trial court’s findings of fact in post-conviction relief proceedings will not be disturbed unless they are clearly erroneous. Hill v. State , 2000 ND 143, ¶ 17, 615 N.W.2d 135. 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 it, a reviewing court is left with a definite and firm conviction that a mistake has been made. DeCoteau v. State , 2000 ND 44, ¶ 10, 608 N.W.2d 240. Questions of law are fully reviewable on appeal of a post-conviction proceeding. Falcon v. State , 1997 ND 200, ¶ 9, 570 N.W.2d 719.

Peltier v. State , 2003 ND 27, ¶ 6, 657 N.W.2d 238.

A

[¶8] Olson argues the charge of accomplice to commit murder is not a cognizable criminal offense in North Dakota.

[¶9] Under N.D.C.C. § 12.1-16-01(1)(b), a person is guilty of murder, a class AA felony, if the person "[c]auses the death of another human being under circumstances manifesting extreme indifference to the value of human life[.]" Extreme indifference murder is a general intent crime. State v. Borner , 2013 ND 141, ¶ 18, 836 N.W.2d 383. "Under N.D.C.C. § 12.1-16-01(1)(b), a person does not intend to cause the death of another human-being, but rather death is a consequence of the defendant’s willful conduct." Borner , at ¶ 18. "In other words, extreme indifference murder results in an unintentional death from behavior manifesting an extreme indifference to the value of human life." Id.

[¶10] The amended information charged Olson with accomplice to commit murder under N.D.C.C. §§ 12.1-03-01(1)(b) and 12.1-16-01(1)(b), claiming Olson "acted as an accomplice to the murder of Joey Gaarsland by intending that an offense be committed and aiding another in committing the offense that resulted in the death of Joey Gaarsland." Under N.D.C.C. § 12.1-03-01(1)(b), "[a] person may be convicted of an offense based upon the conduct of another person when: [w]ith intent that an offense be committed, he commands, induces, procures, or aids the other to commit it, or, having a statutory duty to prevent its commission, he fails to make proper effort to do so."

[¶11] Olson’s primary argument is that because conspiracy to commit extreme indifference murder is not cognizable, accomplice to extreme indifference murder is also not cognizable. See Borner , 2013 ND 141, ¶ 20, 836 N.W.2d 383 (holding "conspiracy to commit extreme indifference murder, under N.D.C.C. §§ 12.1-06-04 and 12.1-16-01(1)(b), is not a cognizable offense"). Olson has not cited any authority holding accomplice is synonymous with conspiracy. In State v. Lind , 322 N.W.2d 826, 842 (N.D. 1982), this Court addressed a similar argument and held a co-conspirator is not synonymous with accomplice:

[W]e have no authority cited to us that a co-conspirator is synonymous with an accomplice. The North Dakota Criminal Code is consistent in its separate treatment of co-conspirators and accomplices, as evidenced by Section 12.1-06-04(5) : "Accomplice liability for offenses committed in furtherance of the conspiracy is to be determined as provided in Section 12.1-03-01." The definition of "accomplice" in Section 12.1-03-01(1)(a) and (b), specifies acts different from those set forth in the definition of "criminal conspiracy" in Section 12.1-06-04(1).

[¶12] Other states with similar accomplice statutes have held accomplice to extreme indifference murder or reckless manslaughter is a recognized offense. In Riley v. State , 60 P.3d 204, 215-17 (Alaska Ct. App. 2002), the court discussed cases from other states imposing accomplice liability for crimes involving unintended injury or death. See Ex parte Simmons , 649 So.2d 1282 (Ala. 1994) ; Mendez v. State , 575 S.W.2d 36 (Tex. Crim. App. 1979) ; People v. Novy , 232 Ill.App.3d 631, 173 Ill.Dec. 565, 597 N.E.2d 273 (1992) ; People v. Cole , 253 Ill.App.3d 603, 192 Ill.Dec. 661, 625 N.E.2d 816 (1993) ; Hooks v. State , 416 A.2d 189 (Del. 1980) ; People v. Wheeler , 772 P.2d 101 (Colo. 1989) ; State v. Goodall , 407 A.2d 268 (Me. 1979) ; Commonwealth v. Bridges , 475 Pa. 535, 381 A.2d 125 (1977).

[¶13] In summarizing these courts’ decisions, the Riley court, 60 P.3d at 215, 221, explained:

[W]ith respect to offenses that involve a resulting injury or death, these courts hold that accomplice liability requires proof (1) that the accomplice intended to promote or facilitate another’s unlawful or dangerous conduct , and (2) that the accomplice acted with the culpable mental state specified in the underlying statute with respect to the resulting injury or death. Thus, these courts uphold accomplices’ convictions for unintended criminal homicides—e.g., "extreme indifference" murder or reckless manslaughter—based on proof that the accomplice, acting with the culpable mental state required for the underlying crime, purposely encouraged or aided another person to engage in conduct that posed a substantial and unjustifiable danger to human life.

....

In conclusion: The Model Penal Code was written to impose accomplice liability for crimes involving unintended injury or death if the accomplice intentionally promotes or facilitates the conduct that produces the injury or death, even though the accomplice did not intend this result. Among the states that have complicity statutes based on the Model Penal Code, most courts have interpreted their statutes this way.

[¶14] The authorities cited have accomplice statutes based in part on Model Penal Code § 2.06(3) (1962), relating to liability for conduct of another:

(3) A person is an accomplice of another person in the commission of an offense if:

(a) with the purpose of promoting or facilitating the commission of the offense, he

(i) solicits such other person to commit it, or

(ii) aids or agrees or attempts to aid such other person in planning or committing it, or

(iii) having a legal duty to prevent the commission of the offense, fails to make proper effort so to do; or

(b) his conduct is expressly declared by law to establish his complicity.

[¶15] Our accomplice statute, N.D.C.C. § 12.1-03-01, is derived from § 401 of the proposed Federal Criminal Code. See Lind , 322 N.W.2d at 841 ("Section 401(1) of the proposed Federal Criminal Code is virtually identical in all material respects to Section 12.1-03-01(1), N.D.C.C."); Final Report of the Nat’l Comm’n on Reform of Federal Criminal Laws § 401, at 33 (1970). The proposed Federal Criminal Code Working Papers state "The language proposed in the draft [of § 401] is substantially that used in most of the recent State revisions and the Model Penal Code." I Working Papers of the Nat’l Comm’n on Reform of Federal Criminal Laws 154-55 (1970) (citing Model Penal Code § 2.06 ).

[¶16] Olson asserts accomplice to murder requires aid with intent that murder be committed. He claims that because Gaarsland’s death was unintentional, he cannot be charged with accomplice to extreme indifference murder. We disagree.

[¶17] Olson was charged with accomplice under N.D.C.C. § 12.1-03-01(1)(b), whereby one may be convicted of an offense...