Pemberton v. State

Decision Date20 May 2021
Docket NumberNos. 20200181 & 20200182,s. 20200181 & 20200182
Citation959 N.W.2d 891
Parties Lorenzo Traveras PEMBERTON, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee
CourtNorth Dakota Supreme Court

Tyler J. Morrow, Grand Forks, N.D., for petitioner and appellant.

James A. Hope, Assistant State's Attorney, Dickinson, N.D., for respondent and appellee.

Tufte, Justice.

[¶1] Lorenzo Pemberton appeals from an order denying his application for postconviction relief. Pemberton argues he was convicted of a non-cognizable offense, attempted knowing murder, which does not require the defendant to have an intent to cause the death of another human being. He also argues he received ineffective assistance of counsel. We reverse the district court's order, concluding that attempt to "knowingly" commit a murder is a non-cognizable offense and that the erroneous jury instruction allowing conviction for attempted knowing murder was not harmless beyond a reasonable doubt.

I

[¶2] We described the evidence presented to the jury in State v. Pemberton , 2019 ND 157, ¶¶ 2-7, 930 N.W.2d 125, and we will not repeat those facts here except as necessary to assist in resolving the issues raised in this appeal.

[¶3] In 2018, Pemberton was charged with aggravated assault, interference with an emergency call, and felonious restraint. The State later added charges of child neglect and attempted murder in a separate criminal file. The criminal information containing the attempted murder charge alleged Pemberton "intentionally engaged in conduct which, in fact, constituted a step towards the commission of the crime of Murder, when [he] attempted to cause the death of another human being under circumstances manifesting extreme indifference to the value of human life when [he] stabbed the victim with a screw driver multiple times about the head area." The attempted murder charge used language describing attempted murder under N.D.C.C. §§ 12.1-06-01 and 12.1-16-01(1)(b). This Court has held attempted murder under those provisions is not a cognizable offense. See Dominguez v. State , 2013 ND 249, ¶ 22, 840 N.W.2d 596.

[¶4] One week before trial, the district court allowed the State to amend the attempted murder charge to allege "the Defendant attempted to intentionally or knowingly cause the death of another human being." The amended information used the language of N.D.C.C. § 12.1-16-01(1)(a) to describe the attempted murder charge. A jury trial was held, and the jury found Pemberton was guilty of all five charges, including attempted murder. Pemberton appealed and the judgment was affirmed. Pemberton , 2019 ND 157, ¶ 27, 930 N.W.2d 125.

[¶5] In March 2020, Pemberton applied for postconviction relief. Pemberton alleged he received ineffective assistance of counsel because his attorney did not preserve vital issues for appeal, his attorney failed to argue at the preliminary hearing that Pemberton had been charged with a non-cognizable offense, and he failed to object to the jury instructions and verdict form. Pemberton also asserted his attempted murder conviction is illegal because a "knowing" murder under N.D.C.C. § 12.1-16-01(1)(a) cannot be the underlying crime for an attempt offense. He requested the district court reverse his attempted murder conviction.

[¶6] After a hearing, the district court denied Pemberton's application. The court concluded Pemberton failed to establish he received ineffective assistance of counsel. The court also concluded attempted murder under N.D.C.C. § 12.1-16-01(1)(a) was a cognizable offense when Pemberton was charged because this Court had not yet held attempted "knowing" murder to be non-cognizable, prevailing professional norms do not require an attorney to object to a jury instruction based on the current law, Pemberton failed to establish he received ineffective assistance of counsel because his attorney failed to object to the attempted murder jury instruction, and it would not reverse a conviction which was based on the current law.

II

[¶7] The standard of review in postconviction proceedings is well established:

A trial court's findings of fact in post-conviction relief proceedings will not be disturbed unless they are clearly erroneous. 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. Questions of law are fully reviewable on appeal of a post-conviction proceeding.

Olson v. State , 2019 ND 135, ¶ 7, 927 N.W.2d 444 (citations omitted) (quoting Peltier v. State , 2003 ND 27, ¶ 6, 657 N.W.2d 238 ). The interpretation of a statute is a question of law, which is fully reviewable on appeal. Dominguez , 2013 ND 249, ¶ 11, 840 N.W.2d 596.

III

[¶8] Pemberton argues the district court erred in denying his application for postconviction relief because his conviction for attempted murder is illegal. He claims he was convicted of attempting to "knowingly" commit murder, which he contends is not a cognizable offense because it permits an individual to be convicted when that individual did not have the purpose to cause the death of another human being and complete the underlying crime.

[¶9] Pemberton was charged with attempted "intentional or knowing" murder under N.D.C.C. §§ 12.1-06-01 and 12.1-16-01(1)(a). The amended information alleged:

Pemberton, acting with the kind of culpability otherwise required for commission of a crime, intentionally engaged in conduct, which in fact, constituted a step toward the commission of the crime of Murder, when the Defendant attempted to intentionally or knowingly cause the death of another human being.

[¶10] The relevant part of the criminal attempt statute, N.D.C.C. § 12.1-06-01(1), states:

A person is guilty of criminal attempt if, acting with the kind of culpability otherwise required for commission of a crime, he intentionally engages in conduct which, in fact, constitutes a substantial step toward commission of the crime. A "substantial step" is any conduct which is strongly corroborative of the firmness of the actor's intent to complete the commission of the crime.

A person is guilty of murder under N.D.C.C. § 12.1-16-01(1)(a) if the person "[i]ntentionally or knowingly causes the death of another human being." A person engages in conduct "intentionally" "if, when he engages in the conduct, it is his purpose to do so." N.D.C.C. § 12.1-02-02(1)(a). A person engages in conduct "knowingly" "if, when he engages in the conduct, he knows or has a firm belief, unaccompanied by substantial doubt, that he is doing so, whether or not it is his purpose to do so." N.D.C.C. § 12.1-02-02(1)(b).

[¶11] In Dominguez , 2013 ND 249, ¶ 22, 840 N.W.2d 596, this Court held the offense of attempted murder under N.D.C.C. §§ 12.1-06-01 and 12.1-16-01(1)(b) is not a cognizable offense. We said the plain language of the attempt statute, N.D.C.C. § 12.1-06-01(1), requires that "the accused have an intent to complete the commission of the underlying crime." Dominguez , at ¶ 12. The offense of murder requires the defendant to cause the death of another; therefore, in order to intend to complete the commission of the offense for purposes of attempted murder, the defendant must have an intent to cause the death of another. Id. at ¶ 13. We held the offense of attempted murder requires the accused to have an intent to kill. Id. at ¶ 22. We explained the offense of murder under N.D.C.C. § 12.1-16-01(1)(b) requires a person to cause the death of another human being under circumstances manifesting an extreme indifference to the value of human life, it results in an unintentional death, and it does not require the person to act with specific intent to kill. Id. at ¶¶ 13, 22. We held murder under N.D.C.C. § 12.1-16-01(1)(b) cannot be used as the underlying crime for a charge of attempted murder because it does not require proof of an intent to complete the commission of the underlying crime by causing death. Dominguez, at ¶ 22.

[¶12] In State v. Swanson , 2019 ND 181, ¶ 15, 930 N.W.2d 645, this Court held conspiracy to "knowingly" commit murder is a non-cognizable offense. The Court explained the charge of conspiracy to commit murder requires the State to prove an intent to cause the death of another human being. Id. at ¶ 10. This Court further explained:

Knowingly is statutorily defined as follows: "[A] person engages in conduct ... [k]nowingly if, when he engages in the conduct, he knows or has a firm belief, unaccompanied by substantial doubt, that he is doing so, whether or not it is his purpose to do so. " N.D.C.C. § 12.1-02-02 (emphasis added). "Purpose" is defined as "[a]n objective, goal, or end." "Intention" and "purpose" are synonyms. As such, the term knowingly, when used in conjunction with N.D.C.C. § 12.1-16-01(1)(a), permits an individual to be convicted of a murder when they did not have the purpose (synonymous with intent) to cause the death of another human being.

Swanson, at ¶ 13 (citations omitted). We held conspiracy to "knowingly" commit a murder is not a cognizable offense "because it allows an individual to be convicted of the offense without an intent to cause the death of another human being." Id. at ¶ 15. This Court reversed the defendant's conviction for conspiracy to commit murder because the jury instructions used the term "knowingly," which would allow the jury to convict the defendant without finding he had an intent to cause the death of another human being and allowed the defendant to have potentially been convicted of a non-cognizable offense. Id. at ¶ 14.

[¶13] We held "knowingly," as defined in N.D.C.C. § 12.1-02-02, does not require the person to act with purpose, and when used in N.D.C.C. § 12.1-16-01(1)(a), permits a person to be convicted of murder when the person did not intend to cause the death of another human being. Swanson , 2019 ND 181, ¶ 13, 930 N.W.2d 645. Because...

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7 cases
  • Yoney v. State
    • United States
    • North Dakota Supreme Court
    • July 22, 2021
    ...attempted murder included the culpability of "knowingly," which Yoney claims is a non-cognizable offense. We recently held in Pemberton v. State , 2021 ND 85, ¶ 13, 959 N.W.2d 891, that attempted knowing murder is not a cognizable offense. We conclude Yoney failed to demonstrate he received......
  • State v. Gaddie
    • United States
    • North Dakota Supreme Court
    • March 7, 2022
    ...charges were incognizable because the underlying offenses criminalized conduct that caused an unintentional result. See, e.g., Pemberton v. State , 2021 ND 85, ¶ 17, 959 N.W.2d 891 (attempted murder without an intent to kill is an incognizable offense); Yoney v. State , 2021 ND 132, ¶ 1, 96......
  • State v. Gaddie
    • United States
    • North Dakota Supreme Court
    • March 3, 2022
    ...charges were incognizable because the underlying offenses criminalized conduct that caused an unintentional result. See, e.g., Pemberton v. State, 2021 ND 85, ¶ 17, 959 N.W.2d 891 (attempted murder without an intent to kill is an incognizable offense); Yoney v. State, 2021 ND 132, ¶ 1, 962 ......
  • State v. Pendleton
    • United States
    • North Dakota Supreme Court
    • October 4, 2022
    ...an obvious error requiring reversal. [¶16] Attempted "knowing" murder is a non-cognizable offense. Pemberton v. State , 2021 ND 85, ¶ 13, 959 N.W.2d 891. Further, this Court has emphasized that it "cannot imagine a greater error affecting a defendant's substantial rights than when a defenda......
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