Sampson v. State, 930056

CourtUnited States State Supreme Court of North Dakota
Citation506 N.W.2d 722
Docket NumberNo. 930056,930056
PartiesDennis SAMPSON, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee. Civ.
Decision Date29 September 1993

Dennis Sampson, pro se.

Gordon A. Dexheimer (argued), State's Atty., Towner, for respondent and appellee.

LEVINE, Justice.

Dennis C. Sampson appeals from an order denying his application for post-conviction relief under NDCC Chapter 29-32.1. We affirm.

In April 1991, after completing his sentence for an October 1985 reckless endangerment conviction, Sampson, acting pro se, filed this application for post-conviction relief. Sampson alleged that he received ineffective assistance from his appellate counsel, who advised dismissal of his pro se direct appeal from a wrongly amended judgment and commitment. He alleged that several errors occurred during his trial that required reversal of his conviction. The trial court appointed new counsel to assist Sampson in seeking post-conviction relief. After reviewing the file and transcript of Sampson's trial, the trial court granted the State's motion to dismiss the application. The court concluded that Sampson was not entitled to an evidentiary hearing because he had failed to raise an issue or inference to create a genuine issue of material fact to support the application. See NDCC Sec. 29-32.1-09. Sampson appealed. 1

In March 1985, Sampson was charged with attempted murder for firing a rifle at, and striking, Al Waldo. Sampson, represented by counsel, testified at his jury trial. He was acquitted of the attempted murder charge, but was convicted of the lesser-included offense of reckless endangerment, a class C felony. The jury also found that Sampson threatened Waldo "with imminent bodily injury with a firearm," thereby subjecting Sampson to a mandatory minimum sentence under NDCC Sec. 12.1-32-02.1(2), of two years imprisonment without benefit of parole. After the verdict, the trial court informed Sampson of the mandatory minimum sentence:

"The crime of reckless endangerment carries a maximum penalty of five years imprisonment and/or a $5,000 fine. Our law further provides that there is a minimum prison term for an armed offender in this instance, and this is a mandatory sentence that must be served, a minimum sentence of two years imprisonment. Stated differently, the maximum punishment here by way of imprisonment is five years imprisonment with a mandatory requirement of service of two years of that term."

The court adjourned, pending completion of a presentence report.

During the sentencing hearing, the trial court found that Sampson was not a dangerous special offender, as defined by NDCC Sec. 12.1-32-09. Sampson's attorney then unsuccessfully argued that Sampson should be sentenced to imprisonment for only the minimum two-year term, required by Sec. 12.1-32-02.1(2). In pronouncing the sentence, the trial court stated:

"IT IS THE JUDGMENT AND SENTENCE of this Court that you Dennis C. Sampson, be imprisoned in the State Penitentiary located in Burleigh County, North Dakota, for a term of five years at hard labor, such term to commence as of noon today....

* * * * * *

"Now, Mr. Sampson, as I said earlier, how long you're going to be at the penitentiary, there is this two year minimum that must be served."

A written "JUDGMENT AND COMMITMENT UNDER CHAPTER 12.1-32 NDCC" was entered on December 4, 1985. It was consistent with the trial court's oral sentence, except that it contained no language requiring Sampson to serve a minimum period of two years without benefit of parole. Sampson did not appeal from this judgment and commitment.

On February 3, 1986, the trial court entered an "AMENDED" judgment and commitment, to which the court added the following language to the original judgment and commitment:

"The Jury having found that the defendant in committing the crime of Reckless Endangerment, a class C felony, was an armed offender, it is ORDERED as a further part of this sentence pursuant to 12.1-32-02.1 NDCC that he shall serve a minimum of two years imprisonment of the five year sentence above imposed without benefit of parole during such mandatory minimum two year period of imprisonment.

* * * * * *

"During sentencing, the defendant was informed that because the Jury by verdict had found that he was an armed offender, he must serve a mandatory minimum term of two (2) years of the five (5) year term imposed by the above sentence without benefit of parole."

This amended judgment and commitment was "entered nunc pro tunc as of December 4, 1985."

Sampson, acting pro se, appealed from the amended judgment and commitment, asserting that it was entered "without my presence." The trial court then appointed different counsel to represent Sampson on appeal. In March 1986, Sampson's counsel filed a motion to dismiss the appeal, stating that he and Sampson had "fully discussed the appeal" and "mutually agreed" to withdraw it. The motion was granted. Sampson's counsel then filed a Rule 35, NDRCrimP, motion for reduction of sentence. That motion was denied by the trial court.

With that rather extensive background, we now consider the merits of Sampson's appeal from the denial of post-conviction relief. Sampson asserts that he received ineffective assistance from his prior appellate counsel. He claims that appellate counsel wrongly advised him to dismiss the appeal from the amended judgment and, instead, seek a reduction in sentence because "to have appealed would have again subjected me to the possibility of being found a special dangerous offender...." Sampson further alleges that his appellate counsel found "fault with my allegations ... without having read the transcript [or] attended the trial...." The record contains no response from Sampson's appellate counsel to these allegations.

We apply the same standard of analysis to a claim of ineffective assistance of appellate counsel as we do to a claim of ineffective assistance of trial counsel. See Smith v. Murray, 477 U.S. 527, 535-536, 106 S.Ct. 2661, 2666-2667, 91 L.Ed.2d 434 (1986); People v. Reed, 198 Mich.App. 639, 499 N.W.2d 441, 445 (1993). To establish a claim of ineffective assistance of counsel, a defendant must demonstrate both deficient representation by counsel and prejudice caused by the deficient representation. Woehlhoff v. State, 487 N.W.2d 16, 17 (N.D.1992). In other words, "a 'defendant must show that counsel's representation fell below an objective standard of reasonableness' and that the defendant was prejudiced by such ineffective representation, that is[,] 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' " Houle v. State, 482 N.W.2d 24, 26 (N.D.1992) [emphasis in original; quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674 (1984) ].

Under the first element of the Strickland test, the defendant must show that counsel made errors so serious that he or she did not function as the "counsel" guaranteed a criminal defendant by the sixth amendment. State v. Sayler, 443 N.W.2d 915, 918 (N.D.1989). As to the second element, the United States Supreme Court has recently emphasized that a proper analysis of prejudice should not focus solely on "outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable." Lockhart v. Fretwell, --- U.S. ----, ----, 113 S.Ct. 838, 842, 122 L.Ed.2d 180 (1993). See also Sampson v. State, 478 N.W.2d 566, 570 (N.D.1991). Rather, the determination of prejudice must focus "on the question whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair" and "[u]nreliability or unfairness does not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him." Lockhart, supra, --- U.S. at ----, 113 S.Ct. at 844. Failure of the defendant to establish both deficient representation and prejudice is fatal to a claim of ineffective assistance of counsel. State v. Skjonsby, 417 N.W.2d 818, 822 (N.D.1987).

Ordinarily, a claim of ineffective assistance of counsel is unsuited to summary disposition without an evidentiary hearing. See State v. Wilson, 466 N.W.2d 101 (N.D.1991). However, viewing Sampson's allegations in the light most favorable to Sampson, as we must under the summary disposition procedures of NDCC Sec. 29-32.1-09, see Wilson, supra, 466 N.W.2d at 105, and, even assuming that his appellate counsel's performance was deficient, we conclude that Sampson is not entitled to a hearing or post-conviction relief because he has failed to raise a genuine issue of material fact that he was prejudiced by his counsel's failure to pursue the appeal of his conviction.

Sampson argues that the trial court wrongfully amended his five-year sentence by including a "minimum mandatory" provision without Sampson's presence, resulting in a "more onerous" sentence. We disagree.

If there is a direct conflict between the oral pronouncement of sentence and the written judgment and commitment, the oral pronouncement controls and the only sentence that is legally cognizable is the actual oral pronouncement made in the presence of the defendant. United States v. Munoz-Dela Rosa, 495 F.2d 253, 256 (9th Cir.1974); see Davidson v. Nygaard, 78 N.D. 141, 48 N.W.2d 578, 583 (1951); State ex rel. Perry v. Garecht, 70 N.D. 599, 297 N.W. 132, 134 (1941); see also State v. Bryan, 316 N.W.2d 335, 337 (N.D.1982). Here, in orally pronouncing sentence, the trial court informed Sampson that he must serve a minimum of two years at the penitentiary. But, the written judgment and commitment did not include the two-year minimum required by Sec. 12.1-32-02.1(2).

Rule 36, NDRCrimP, says that "[c]lerical mistakes in judgments, orders, or other parts of the record and errors in the record arising...

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