Sambursky v. State

• Decision Date: 26 June 2008
• Docket Number: No. 20070182.,No. 20070177.,20070177.,20070182.
• Citation: Sambursky v. State, 751 N.W.2d 247, 2008 ND 133 (N.D. 2008)
• Parties: Paul Joseph SAMBURSKY, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
• Court: North Dakota Supreme Court

751 N.W.2d 247

2008 ND 133

Paul Joseph SAMBURSKY, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.

No. 20070177.

No. 20070182.

Supreme Court of North Dakota.

June 26, 2008.

Rebecca Jo Heigaard McGurran, Grand Forks Public Defender Office, Grand Forks, N.D., for petitioner and appellant.

David Thomas Jones (argued), Assistant State's Attorney, and Stephanie A. Weis (on brief), Legal Intern and third-year law student, under the Rule on Limited Practice of Law by Law Students, Grand Forks, N.D., for respondent and appellee.

SANDSTROM, Justice.

[¶ 1] Paul Sambursky appeals from a district court order, which was entered after a remand in Sambursky v. State, 2006 ND 223, 723 N.W.2d 524 ("Sambursky I"), denying his post-conviction relief application based upon his claim of ineffective assistance of counsel. We affirm, concluding the district court did not err in finding Sambursky failed to meet his burden of proving his trial counsel's representation fell below an objective standard of reasonableness.

I

[¶ 2] Facts relevant to this case are set forth in Sambursky I, 2006 ND 223, 723 N.W.2d 524, and we will not reiterate them here except as necessary to explain the resolution of this appeal.

[¶ 3] In 2003, Sambursky was charged with five counts of gross sexual imposition and one count of disorderly conduct, arising from a series of sexual assaults in Grand Forks in 2001 and 2002. Sambursky pled guilty to the charges. After reviewing the plea agreements and a pre-sentence investigation report, the district court rejected Sambursky's first guilty plea. After a second plea agreement was reached, Sambursky again pled guilty to the charges, and the court accepted his plea. In accordance with this plea agreement, the court sentenced Sambursky to 30 years' incarceration with an additional 50 years suspended. Sambursky subsequently moved for reduction of his sentence under N.D.R.Crim.P. 35, which the court denied.

[¶ 4] In 2004, Sambursky filed an application for post-conviction relief, alleging his guilty plea was not entered knowingly and voluntarily and he received ineffective assistance of counsel. The district court summarily denied his application, and Sambursky appealed. In Sambursky I, 2006 ND 223, ¶ 11, 723 N.W.2d 524, this Court held that the district court did not err in finding Sambursky's guilty plea was made knowingly and voluntarily. However, because a majority of this Court concluded Sambursky had raised genuine issues of material fact on his claim for ineffective assistance of counsel, we remanded to the district court for an evidentiary hearing on that claim. Sambursky I, at ¶ 27.

[¶ 5] After a March 2007 evidentiary hearing, the district court denied Sambursky's application for post-conviction relief. The court concluded Sambursky had not met his burden to establish a claim of ineffective assistance of counsel. The court found that Sambursky's trial counsel had not "actively misinformed" him about the length of time he would serve in the state penitentiary under the plea agreement. The court found the evidence showed that Sambursky's trial counsel "merely failed to inform Sambursky of the 85% service requirement" and that his counsel's performance fell within the range of reasonable professional assistance. The district court held that since Sambursky had not met his burden with regard to the "performance prong" of establishing this ineffective assistance claim, it was unnecessary for the court to address the second prong, or "prejudice prong," which requires the petitioner to prove the attorney's deficient performance prejudiced him. Sambursky appeals from the order denying his application for post-conviction relief.

[¶ 6] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 29-32.1-03. Sambursky's appeal was timely under N.D.R.App.P. 4(d). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 29-32.1-14.

II

[¶ 7] Post-conviction relief proceedings are civil in nature and governed by the North Dakota Rules of Civil Procedure. Flanagan v. State, 2006 ND 76, ¶ 9, 712 N.W.2d 602. Whether a petitioner received ineffective assistance of counsel is a mixed question of law and fact and is fully reviewable on appeal. Klose v. State, 2005 ND 192, ¶ 10, 705 N.W.2d 809. Under N.D.R.Civ.P. 52(a), the district court's findings of fact will not be disturbed on appeal unless 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 the finding, a reviewing court is left with a definite and firm conviction a mistake has been made." Heckelsmiller v. State, 2004 ND 191, ¶ 5, 687 N.W.2d 454.

[¶ 8] We have explained the applicant's "heavy burden" required to prevail on a post-conviction claim for ineffective assistance of counsel:

In accord with the test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant claiming ineffective assistance of counsel has a heavy burden of proving (1) counsel's representation fell below an objective standard of reasonableness, and (2) the defendant was prejudiced by counsel's deficient performance. DeCoteau [v. State], 1998 ND 199, ¶ 6, 586 N.W.2d 156 (citing Mertz v. State, 535 N.W.2d 834, 836 (N.D.1995)). "Effectiveness of counsel is measured by an `objective standard of reasonableness' considering `prevailing professional norms.'" Lange v. State, 522 N.W.2d 179, 181 (N.D.1994) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052. The defendant must first overcome the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Stoppleworth v. State, 501 N.W.2d 325, 327 (N.D.1993) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Trial counsel's conduct is presumed to be reasonable and courts consciously attempt to limit the distorting effect of hindsight. Lange, 522 N.W.2d at 181.

Heckelsmiller, 2004 ND 191, ¶ 3, 687 N.W.2d 454. We use the same Strickland test to assess ineffective assistance of counsel claims under the state constitution. Flanagan, 2006 ND 76, ¶ 11, 712 N.W.2d 602.

III

[¶ 9] Sambursky argues the district court erred in finding he did not receive ineffective assistance of counsel when it concluded that he was not actively misinformed about the length of time he would serve in the state penitentiary under the plea agreement.

[¶ 10] In Sambursky I, 2006 ND 223, ¶¶ 20-21, 723 N.W.2d 524, a majority of this Court held that Sambursky had raised a genuine issue of fact as to whether trial counsel's representation fell below an objective standard of reasonableness under the "performance" prong of the Strickland analysis. In his post-conviction relief application, Sambursky asserted that his trial attorney told him that he would serve only "8-10 years" of his 30-year sentence and that counsel purported to research the issue and called the parole board to support his position. Sambursky I, at ¶ 18. The majority concluded Sambursky raised a material fact issue as to whether Sambursky's trial attorney "actively misinformed him of the length of time he would serve under the plea agreement." Id. On the basis of Sambursky's affidavit asserting he asked his trial counsel whether he "had to serve any sort [of] minimum amount of time," the majority decided there were disputed factual issues about whether Sambursky inquired into how much time of his sentence he would actually serve. Id. at ¶ 20. The majority concluded Sambursky's affidavit raised material fact issues regarding "whether he was asking about the actual time he would serve under the plea agreement and whether his attorney's advice was objectively deficient when the attorney advised him of the length of time he would actually serve." Id. The majority concluded that if Sambursky established his assertions were correct, then his attorney's performance fell below the standard of reasonable assistance when "he actively misinformed his client about the effects of the law." Id. at ¶ 21. The majority, taking Sambursky's assertions as true and construing all reasonable inferences in his favor, held that Sambursky had raised material fact issues entitling him to an evidentiary hearing.

[¶ 11] In State v. Raulston, 2005 ND 212, ¶ 15, 707 N.W.2d 464, we stated that it was unlikely that a trial counsel's failure to inform the defendant of the 85 percent service requirement under N.D.C.C. § 12.1-32-09.1 would fall outside the wide range of reasonable professional assistance. In Sambursky I, 2006 ND 223, ¶ 19, 723 N.W.2d 524, a majority of this Court concluded Raulston was not controlling because it did not hold that "providing misinformation is the same as failing to provide information at all." Raulston states, however, that a trial counsel's failure to advise the defendant of the 85 percent service requirement does not per se fall below the objective standard of reasonable representation. Raulston, 2005 ND 212, ¶ 15, 707 N.W.2d 464. Raulston stands for the principle that it is likely not ineffective assistance of counsel to fail to inform a defendant about the 85 percent rule, but our remand in Sambursky I focused on whether Sambursky's trial counsel had provided "active misinformation" about the length of sentence.

[¶ 12] Here, the district court, after an evidentiary hearing, found Sambursky had not proven his attorney "actively misinformed" him about the length of time he would serve in the state penitentiary under the plea agreement. In reaching its conclusion, the court made a number of credibility determinations and findings regarding both Sambursky's testimony and his trial counsel's testimony at the evidentiary hearing. "The task of weighing the evidence and judging the credibility of witnesses belongs exclusively to the trier of fact, and we do...