Roth v. State

• Decision Date: 25 July 2007
• Docket Number: No. 20060241.,20060241.
• Citation: 2007 ND 112,735 N.W.2d 882
• Parties: Todd ROTH, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.
• Court: North Dakota Supreme Court

735 N.W.2d 882

2007 ND 112

Todd ROTH, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.

No. 20060241.

Supreme Court of North Dakota.

July 25, 2007.

Joe A. Johnson, Nelson, Blumer & Johnson, P.L.L.P., Fargo, ND, for petitioner and appellant.

Cynthia M. Feland, Assistant State's Attorney, Bismarck, ND, for respondent and appellee.

VANDE WALLE, Chief Justice.

[¶ 1] Todd A. Roth appealed from a district court order denying his application for post-conviction relief. Roth argues his trial and appellate counsel was plainly ineffective for failing to challenge the nighttime provision of the warrant issued to search his home. We affirm.

I

[¶ 2] In late August 2002, the State charged Roth with possession of methamphetamine, possession of drug paraphernalia, and manufacture of a controlled substance. Roth was charged after law enforcement searched his home with a warrant during the early morning hours on August 28, 2002. Roth's counsel filed a motion to suppress all evidence discovered in the search, arguing the warrant was not supported by probable cause and contained an illegal no-knock provision. The district court denied the motion to suppress. Roth entered a conditional guilty plea to the charges, reserving the right to appeal the adverse determination of the suppression motion.

[¶ 3] Roth's counsel continued to represent him on appeal and raised the same issues regarding probable cause and the no-knock provision. In State v. Roth (Roth I), 2004 ND 23, ¶ 1, 674 N.W.2d 495, this Court affirmed. We concluded the officers had probable cause to search Roth's home because the supporting affidavit contained substantial evidence of drug activity, including an informant's tip that Roth was manufacturing methamphetamine, prior searches of Roth's home that resulted in discovery of items indicating drug trafficking, and Roth's association with other people suspected of drug use and trafficking. Id. at ¶¶ 13-15, 18-20. We also held that the no-knock provision was not supported by probable cause, but the warrant was still valid because law enforcement had functionally excised the invalid no-knock provision by declining to use it. Id. at ¶¶ 24, 28.

[¶ 4] In January 2005, Roth filed an application for post-conviction relief, raising multiple issues related to the legality of the search and also claiming that he received ineffective assistance of counsel. The district court concluded Roth had already raised the same issues on direct appeal in Roth I and denied his application for post-conviction relief. Roth appealed, and in Roth v. State (Roth II), 2006 ND 106, ¶ 1, 713 N.W.2d 513, this Court reversed the order denying post-conviction relief and remanded to the district court. We held that Roth was precluded from raising issues directly related to the issuance and execution of the search warrant, but that the district court should have considered the merits of his ineffective assistance of counsel claim. Id. at ¶¶ 8, 17.

[¶ 5] On remand, the district court considered Roth's claims of ineffective assistance of counsel by examining the record. Roth had claimed his counsel was ineffective for two major reasons. Id. at ¶ 9. First, Roth argued his counsel failed to raise the issue of whether the searching officers actually entered using the no-knock provision, despite their claims that they did not. Id. Second, he contended his counsel was ineffective for failing to challenge the nighttime provision of the search warrant both at the suppression hearing and on direct appeal. Id. Roth claimed his counsel was plainly defective based on the record, specifically the affidavit in support of the search warrant, and therefore he did not request an evidentiary hearing. Id. at ¶ 12.

[¶ 6] As to the first claim, the district court found that Roth's counsel had raised the issue of whether law enforcement entered using the no-knock provision in his reply brief about the suppression motion. Therefore, Roth's counsel was not ineffective in that regard. As to the second claim, the district court found that counsel had never challenged the validity of the nighttime provision of the search warrant. The district court did not decide whether the nighttime warrant was supported by probable cause, but rather concluded the evidence would have been admissible in any event under the inevitable discovery doctrine. Because Roth failed to show that the evidence obtained from the nighttime search would have been suppressed, the district court concluded he had not proven ineffective assistance of counsel and denied his application for post-conviction relief. On this appeal, Roth renews his claim of ineffective assistance of counsel, relying solely on the ground that counsel failed to challenge the legality of the nighttime search warrant.

II

[¶ 7] The Sixth Amendment of the United States Constitution guarantees a criminal defendant the right to effective assistance of counsel. Sambursky v. State, 2006 ND 223, ¶ 13, 723 N.W.2d 524. In order to prevail on a post-conviction claim of ineffective assistance, the petitioner bears a heavy burden. Rümmer v. State, 2006 ND 216, ¶ 10, 722 N.W.2d 528. The petitioner must prove that (1) counsel's representation fell below an objective standard of reasonableness, and (2) the petitioner was prejudiced by counsel's deficient performance. Matthews v. State, 2005 ND 202, ¶ 10, 706 N.W.2d 74.

[¶ 8] As to the first prong, the petitioner must overcome the strong presumption that counsel's representation fell within the wide range of reasonable professional assistance. Laib v. State, 2005 ND 187, ¶ 9, 705 N.W.2d 845. An attorney's performance is measured considering the prevailing professional norms. Sambursky, 2006 ND 223, ¶ 13, 723 N.W.2d 524. In assessing the reasonableness of counsel's performance, courts must consciously attempt to limit the distorting effect of hindsight. Id. Courts must consider all the circumstances and decide whether there were errors so serious that defendant was not accorded the "counsel" guaranteed by the Sixth Amendment. Klose v. State, 2005 ND 192, ¶ 10, 705 N.W.2d 809.

[¶ 9] In order to meet the second prong, the petitioner must show there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Roth II, 2006 ND 106, ¶ 10, 713 N.W.2d 513. The petitioner must prove not only that counsel's representation was ineffective, but must specify how and where counsel was incompetent and the probable different result. Laib, 2005 ND 187, ¶ 10, 705 N.W.2d 845. If it is easier to dispose of an ineffective assistance of counsel claim on the ground of lack of sufficient prejudice, that course should be followed. Wright v. State, 2005 ND 217, ¶ 11, 707 N.W.2d 242.

[¶ 10] Failure to file a pretrial suppression motion, by itself, does not equate to ineffective assistance of counsel. Ernst v. State, 2004 ND 152, ¶ 11, 683 N.W.2d 891. In order to prove an ineffective assistance claim based on counsel's failure to move to suppress evidence, the petitioner must show actual prejudice, not merely possible prejudice. Id. at ¶ 12. In Kimmelman v. Morrison, 477 U.S. 365, 373-75, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986), the United States Supreme Court set forth the standard which applies to a petitioner's claim that counsel was ineffective for failing to raise a Fourth Amendment issue.

Where defense counsel's failure to litigate a Fourth Amendment claim competently is the principal allegation of ineffectiveness, the defendant must also prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice.

Id. at 375, 106 S.Ct. 2574; see also Williams v. Locke, 403 F.3d 1022, 1026 (8th Cir.2005); Bailey v. Newland, 263 F.3d 1022, 1029 (9th Cir.2001) ("[P]etitioner must show that he would have prevailed on the suppression motion, and that there is a reasonable probability that the successful motion would have affected the outcome."). Counsel is not ineffective for failing to make an argument that is meritless, either at trial or on appeal. Aydelotte v. State, No. CR 04-822, 2005 WL 3008619 2005 Ark. LEXIS 706, at *5 (Ark. Nov. 10, 2005); see also Smith v. Murray, 477 U.S. 527, 535-36, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986) (internal quotation omitted) (considering whether appellate counsel was ineffective and stating that the "process of winnowing out weaker arguments on appeal and focusing on those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy").

[¶ 11] The issue of ineffective assistance of counsel is a mixed question of law and fact which is fully reviewable on appeal. Rümmer, 2006 ND 216, ¶ 9, 722 N.W.2d 528. Assistance of counsel is plainly defective when the record affirmatively shows ineffectiveness of a constitutional dimension. Roth II, 2006 ND 106, ¶ 12, 713 N.W.2d 513.

III

[¶ 12] Roth contends his trial and appellate counsel was plainly ineffective for failing to challenge the validity of the nighttime provision of the search warrant. In particular, Roth argues he would have prevailed on the suppression motion if his counsel had raised the issue of whether the nighttime warrant was supported by probable cause. Additionally, he claims the district court erroneously applied the inevitable discovery doctrine in this case.

[¶ 13] Because Roth argues that his counsel was plainly defective, we do not have the benefit of a post-conviction hearing transcript or an explanation from counsel. Rather, the merit of Roth's claim must be determined solely from the facts in the record, particularly the affidavit in support of the search warrant. The record reveals the following facts.

[¶ 14] On August 20, 2002, Deputy Dion Bitz of the Metro Area Narcotics Task Force applied for a warrant to search Roth's...