Sambursky v. State, 20050330.
| Decision Date | 07 November 2006 |
| Docket Number | No. 20050331.,No. 20050035.,No. 20050330.,No. 20050033.,No. 20050034.,No. 20050032.,20050330.,20050331.,20050032.,20050033.,20050034.,20050035. |
| Citation | 2006 ND 223,723 N.W.2d 524 |
| Parties | Paul Joseph SAMBURSKY, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee. |
| Court | North Dakota Supreme Court |
Rebecca J. Heigaard McGurran, Grand Forks, ND, for petitioner and appellant; submitted on brief.
David T. Jones, Assistant State's Attorney, Grand Forks, ND, for respondent and appellee; submitted on brief.
[¶ 1] Paul Sambursky appeals from an order denying his application for post-conviction relief. We conclude the district court did not err in determining Sambursky's guilty plea was made knowingly and voluntarily, but conclude Sambursky raised genuine issues of material fact on his claim for ineffective assistance of counsel. Sambursky is entitled to an evidentiary hearing on his ineffective assistance of counsel claim. Therefore, the order denying the application for post-conviction relief is affirmed in part and reversed in part.
[¶ 2] In 2001 and 2002, a series of sexual assaults occurred in Grand Forks. In early 2003, Sambursky was charged with five counts of gross sexual imposition and one count of disorderly conduct arising out of those incidents.
[¶ 3] Sambursky and the State reached a plea agreement, and Sambursky entered pleas of guilty to the charges. The district court, after reviewing the plea agreement and a pre-sentence investigation report, rejected the plea agreement. An amended plea agreement was reached, and Sambursky again agreed to plead guilty to the charges. Under the terms of the amended plea agreement, the State agreed to recommend that Sambursky be sentenced to a total of 30 years' incarceration, with an additional 50 years suspended. The agreement provided that Sambursky would not face more than 30 years' incarceration, but expressly allowed him to present testimony and argument requesting a downward departure from the 30-year recommendation.
[¶ 4] The district court accepted Sambursky's guilty pleas under the amended agreement and sentenced him to 30 years' incarceration, with the additional 50 years suspended. Sambursky subsequently filed a motion for reduction of his sentence, to give credit for time served, and to amend his conditions of probation. The court denied the motion to reduce Sambursky's sentence, but granted credit for time served and amended the conditions of probation to clarify that Sambursky could see his children.
[¶ 5] In December 2004, Sambursky applied for post-conviction relief, alleging his guilty plea was not entered voluntarily because he did not fully understand the consequences of his plea and he received ineffective assistance of counsel. Sambursky filed an affidavit in support of his petition, providing in pertinent part:
Before I entered into any sort of plea negotiations I specifically asked my attorney a number of times if I had to serve any sort [of] minimum amount of time. He told me "No". I also told my attorney that some of the inmates in the . . . Corrections Center informed me about some sort of minimum amount of time I had to serve because my crime was violent, he told me that they were misinformed and that he will check just to make sure. He later told me that he had done some checking and even called the parole board and other staff at the State Prison and that after I served at least one year I would be eligible for parole consideration. I also asked [the judge] if I had to serve any minimum amount of time, and she told me that "No, none of these sentence[s] included any minimum mandatory terms of imprisonment." . . . When I got to NDSP I was told that . . . I must serve a minimum of 85% of my time before I can be considered for any sort of early release . . . . Had I known that I would have to serve 30 years in prison I would have never signed a plea agreement. Furthermore, . . . I learned that ND law says that the court IS required to advise me of a mandatory minimum punishment. When I learned of this I requested relief from [the judge] in the form of a "Rule 35" motion and she basically told me to apply for pardon and denied my motion.
. . . .
I also feel that my attorney was ineffective for a number of reasons. I already told you that he lied/misinformed me about the plea agreement. Had I known the truth I would have never signed that paper. He also told me that I could expect to be out in 8-10 years with good behavior. The truth is I cannot expect to be out for 25 years. . . .
[¶ 6] The State moved for summary dismissal of the application, alleging Sambursky had failed to raise genuine issues of material fact on the voluntariness of his plea or ineffective assistance of counsel. The district court summarily denied Sambursky's application for post-conviction relief. Sambursky has appealed to this Court, alleging (1) his guilty plea was not voluntary because he was not informed by the district court that on account of the nature of his crimes, he would be required to serve 85 percent of the sentence imposed and (2) he received ineffective assistance of counsel.
[¶ 7] A district court may summarily dismiss an application for post-conviction relief if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. N.D.C.C. § 29-32.1-09(1); Johnson v. State, 2006 ND 122, ¶ 19, 714 N.W.2d 832; Heyen v. State, 2001 ND 126, ¶ 6, 630 N.W.2d 56. We review an appeal from summary denial of post-conviction relief as we would review an appeal from a summary judgment. Johnson, at ¶ 19; Heyen, at ¶ 6. The party opposing the motion for summary dismissal is entitled to all reasonable inferences to be drawn from the evidence and is entitled to an evidentiary hearing if a reasonable inference raises a genuine issue of material fact. Heyen, at ¶ 6. For summary judgment purposes, the evidentiary assertions of the party opposing the motion are assumed to be true. Dinger v. Strata Corp., 2000 ND 41, ¶ 14, 607 N.W.2d 886. Ineffective assistance of counsel issues are mixed questions of law and fact, which are fully reviewable on appeal. Heckelsmiller v. State, 2004 ND 191, ¶ 5, 687 N.W.2d 454.
[¶ 8] Sambursky alleges his guilty plea was not made knowingly and voluntarily, because the district court did not advise him that under N.D.C.C. § 12.1-32-09.1, he would be required to serve 85 percent of the sentences imposed because of the violent nature of some of his crimes. Sambursky contends the 85 percent rule is a mandatory minimum sentence that must be disclosed to the defendant under N.D.R.Crim.P. 11 before a guilty plea is accepted.
[¶ 9] A guilty plea must be entered knowingly, intelligently, and voluntarily to be valid. State v. Raulston, 2005 ND 212, ¶ 11, 707 N.W.2d 464; Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Rule 11, N.D.R.Crim.P., requires the district court to advise the defendant of certain rights, including any mandatory minimum sentence, before accepting a guilty plea. Raulston, at ¶ 11; State v. Magnuson, 1997 ND 228, ¶¶ 16, 18, 571 N.W.2d 642. The requirement to advise the defendant under N.D.R.Crim.P. 11 is mandatory and binding upon the court. State v. Feist, 2006 ND 21, ¶ 24, 708 N.W.2d 870; State v. Farrell, 2000 ND 26, ¶ 9, 606 N.W.2d 524; Magnuson, at ¶ 16.
[¶ 10] We addressed the precise issue raised by Sambursky in Raulston and Magnuson. We explicitly held the 85 percent service requirement of N.D.C.C. § 12.1-32-09.1 imposes a condition of parole, not a mandatory minimum sentence requiring disclosure by the district court under N.D.R.Crim.P. 11(b)(1)(H). Raulston, 2005 ND 212, ¶ 12, 707 N.W.2d 464; Magnuson, 1997 ND 228, ¶ 21, 571 N.W.2d 642. The 85 percent service requirement does not require any minimum sentence, but it does require service of 85 percent of any incarceration sentence before parole eligibility. A district court's failure to advise the defendant of the implications of the 85 percent service requirement does not affect the voluntariness of the plea. Magnuson, at ¶ 21.
[¶ 11] We conclude the district court did not err in finding Sambursky's guilty plea was knowingly and voluntarily made.
[¶ 12] Sambursky alleges he received ineffective assistance of counsel because his attorney did not inform him of the 85 percent service requirement under N.D.C.C. § 12.1-32-09.1. Sambursky claims his affidavit in support of his application for post-conviction relief created a genuine issue of material fact precluding summary dismissal of his ineffective assistance of counsel claim.
[¶ 13] The Sixth Amendment of the United States Constitution guarantees a criminal defendant the right to effective assistance of counsel. Wright v. State, 2005 ND 217, ¶ 10, 707 N.W.2d 242; Laib v. State, 2005 ND 187, ¶ 9, 705 N.W.2d 845. A post-conviction relief petitioner alleging ineffective assistance bears the burden of proving two elements or prongs. Johnson, 2006 ND 122, ¶ 20, 714 N.W.2d 832 (); Wright, at ¶ 10. First, the petitioner must prove that the attorney's performance fell below an objective standard of reasonableness. Johnson, at ¶ 20; Wright, at ¶ 10. An attorney's performance is measured considering the prevailing professional norms. Johnson, at ¶ 20. The defendant must overcome the strong presumption that counsel's representation fell within the wide range of reasonable professional assistance, and courts must consciously attempt to limit the distorting effect of hindsight. Wright, at ¶ 10; Laib, at ¶ 9. Second, the petitioner must show that the attorney's deficient performance prejudiced him. Johnson, at ¶ 20; Wright, at ¶ 10. In order to meet this standard, the petitioner "must show that there is a...
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