Rencountre v. State

• Decision Date: 24 March 2015
• Docket Number: No. 20140197.,20140197.
• Parties: Allen Wayne RENCOUNTRE, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
• Court: North Dakota Supreme Court

860 N.W.2d 837

Allen Wayne RENCOUNTRE, Petitioner and Appellant

v.STATE of North Dakota, Respondent and Appellee.

No. 20140197.

Supreme Court of North Dakota.

March 24, 2015.

Benjamin C. Pulkrabek, Mandan, N.D., for petitioner and appellant.

Christene A. Reierson, Assistant State's Attorney, Minot, N.D., for respondent and appellee.

Opinion

McEVERS, Justice.

[¶ 1] Allen Wayne Rencountre appeals from an order denying his application for postconviction relief. Because the district court did not err in concluding Rencountre failed to establish that he received ineffective assistance of counsel and because the court's error in failing to receive a written criminal record report before sentencing Rencountre was harmless, we affirm the order.

I

[¶ 2] In the early morning hours of October 10, 2010, a desk clerk at a Minot hotel was shot by an individual. Rencountre was staying at the hotel and the shooting was recorded by the hotel's front desk security camera. Although the desk clerk had not seen the face of the person who shot him, the clerk did see him go out the door and described the shooter as “a bigger person, wearing a dark hoodie and ballcap.” Two people who were in the hotel parking lot and had been drinking with Rencountre earlier heard the gunshots. They watched the person they knew as “Al,” who they described as “a big boy,” walk to his white truck with a “large CAT logo in the rear window” and take “off out of the parking lot ‘like a bat out of hell.’ ”

[¶ 3] Later that morning, a law enforcement officer was driving west of Minot when he noticed a white truck with the letters “CAT” in the rear window coming from behind and passing him at a high speed. The officer pursued the vehicle at speeds up to 115 miles per hour and informed other officers to place spikes in the road ahead. The truck's tires were eventually punctured and the driver, Rencountre, pulled into a gas station in Stanley and stopped. Rencountre remained in the truck holding a pistol in one hand and a bottle of liquor in the other, occasionally taking a drink. One of the officers present negotiated with Rencountre and got him to hand the pistol out the window, but Rencountre remained in the truck drinking out of the bottle, listening to music on the radio, and stating “I shot him ... I shot him ... I shot him!” After his attention was diverted, Rencountre was tased and taken into custody. Rencountre was interviewed by law enforcement officers after he signed a waiver of rights form and was advised of his Miranda rights and orally waived them. Rencountre admitted shooting the desk clerk. Although officers asked him whether his “head was clouded,” Rencountre responded “I'm good, just pissed off.” Rencountre was not tested for blood alcohol concentration.

[¶ 4] Rencountre was charged with attempted murder, a class A felony, and fleeing or attempting to elude a peace officer, a class C felony. The State also filed a special dangerous offender notice against Rencountre to enhance the maximum penalty. Rencountre's retained attorney requested a mental health evaluation of Rencountre be performed at the State Hospital, and the State joined in the request. The evaluation revealed that Rencountre was competent to stand trial and was not suffering from a mental disease or defect at the time of the offense. On April 27, 2011, Rencountre pled guilty under a plea agreement to attempted murder. The charge of fleeing or attempting to elude a peace officer was dismissed as part of the plea agreement, and the district court found Rencountre was a special dangerous offender. Rencountre waived his right to a presentence report and requested that he be sentenced immediately. The State orally advised the court that Rencountre had no prior criminal history. The court sentenced Rencountre to 30 years in prison with 10 years suspended, followed by 5 years of supervised probation.

[¶ 5] Rencountre subsequently filed this application for postconviction relief under N.D.C.C. ch. 29–32.1, alleging he received ineffective assistance from his retained counsel and he is entitled to be resentenced because the district court failed to follow the procedure required by N.D.C.C. § 12.1–32–02(11). Following a hearing, the court denied the application. The court ruled Rencountre had not received ineffective assistance of counsel and, even though the court did not follow the mandates of N.D.C.C. § 12.1–32–02(11), Rencountre was not entitled to be resentenced because he “suffered no prejudice.”

II

[¶ 6] Rencountre argues the district court erred in determining his attorney was not ineffective.

[¶ 7] In Osier v. State, 2014 ND 41, ¶¶ 10–11, 843 N.W.2d 277, we explained:

Applications for post-conviction relief are civil in nature and are governed by the North Dakota Rules of Civil Procedure.Broadwell v. State, 2014 ND 6, ¶ 5, 841 N.W.2d 750; Bahtiraj v. State, 2013 ND 240, ¶ 8, 840 N.W.2d 605. The applicant bears the burden of establishing grounds for post-conviction relief. Broadwell, at ¶ 5; Bahtiraj, at ¶ 8. When an applicant for post-conviction relief claims ineffective assistance of counsel, he must establish both prongs of the Strickland test and demonstrate (1) counsel's representation fell below an objective standard of reasonableness, and (2) he was prejudiced by counsel's deficient performance. Broadwell, 2014 ND 6, ¶ 7, 841 N.W.2d 750; Dahl v. State, 2013 ND 25, ¶ 8, 826 N.W.2d 922; see Strickland v. Washington, 466 U.S. 668 [104 S.Ct. 2052, 80 L.Ed.2d 674] (1984). Whether a defendant received ineffective assistance of counsel is a mixed question of law and fact which is fully reviewable on appeal. Kinsella v. State, 2013 ND 238, ¶ 4, 840 N.W.2d 625; Bahtiraj, at ¶ 8.

To meet the prejudice prong of the Strickland test, the defendant bears the heavy burden of establishing a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Dahl, 2013 ND 25, ¶¶ 8, 15, 826 N.W.2d 922; Coppage v. State, 2013 ND 10, ¶ 12, 826 N.W.2d 320. To meet this burden the defendant must prove not only that counsel's assistance was ineffective, but must demonstrate with specificity how and where trial counsel was incompetent and must specify the probable different result if trial counsel had not performed incompetently. Kinsella, 2013 ND 238, ¶ 6, 840 N.W.2d 625; Dahl, at ¶ 8; Coppage, at ¶ 12. We have explained that, “[u]nless counsel's errors are so blatantly and obviously prejudicial that they would in all cases, regardless of the other evidence presented, create a reasonable probability of a different result, the prejudicial effect of counsel's errors must be assessed within the context of the remaining evidence properly presented and the overall conduct of the trial.” Broadwell, at ¶ 7 (quoting Coppage, at ¶ 21). Courts need not address both prongs of the Strickland test, and if a court can resolve the case by addressing only one prong it is encouraged to do so. Broadwell, at ¶ 7.

To establish prejudice in the context of a guilty plea, the defendant must show “there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Lindsey v. State, 2014 ND 174, ¶ 19, 852 N.W.2d 383 (internal citation omitted).

A

[¶ 8] Rencountre argues his attorney should have filed a motion to suppress incriminating statements he made to law enforcement officers because he was intoxicated at the time and if the statements had been suppressed he would have gone to trial on the charges.

[¶ 9] To bring a successful ineffective assistance of counsel claim based on an attorney's failure to file a pretrial suppression motion, the defendant must prove that he would have prevailed on his motion to suppress and that there is a reasonable probability a successful motion would have affected the outcome of the trial. See Kinsella v. State, 2013 ND 238, ¶ 9, 840 N.W.2d 625; Roth v. State, 2007 ND 112, ¶ 10, 735 N.W.2d 882. Rencountre's attorney testified that they discussed filing a motion to suppress, but he did not do so for two reasons. First, the attorney was concerned about the voluntary statements made by Rencountre in Stanley before law enforcement officers attempted to question him and seek a waiver of rights. See, e.g., State v. Syvertson, 1999 ND 134, ¶ 19, 597 N.W.2d 652 (“[I]f a defendant at first makes a statement voluntarily, without actual coercion, a subsequent voluntary statement, made after receiving Miranda warnings and voluntarily waiving those rights, is untainted and admissible evidence.”). The attorney testified he could not tell from the recording of the interview made by law enforcement officers whether Rencountre was intoxicated and a motion to suppress “could have gone either way.”

[¶ 10] Second, the attorney testified that even if a motion to suppress the statements would have been successful, there nevertheless would have been “overwhelming evidence” to convict Rencountre. Although Rencountre points out that the desk clerk did not actually see the person who shot him, the surveillance video captured the shooting. The attorney testified the “video clearly shows Mr. Rencountre or someone looking like Mr. Rencountre walking into the lobby of the hotel, leveling a pistol at the night clerk and pulling the trigger numerous times.” There were also witnesses in the hotel parking lot who, after hearing shots, saw Rencountre leave at a high speed in his white truck with the “CAT logo,” the same white truck in which he was captured by law enforcement officers after surrendering a pistol.

[¶ 11] We agree with the district court that Rencountre has not established his attorney's failure to file a motion to suppress was deficient performance or that there was a reasonable probability he would not have pled guilty had the motion been filed.

B

[¶ 12] Rencountre argues he received ineffective assistance of counsel because his attorney did not request a second mental health evaluation.

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