State v. Bowers, Cr. N
| Decision Date | 19 July 1988 |
| Docket Number | Cr. N |
| Citation | 426 N.W.2d 293 |
| Parties | STATE of North Dakota, Plaintiff and Appellee, v. Richard Irvin BOWERS, Defendant and Appellant. o. 880071. |
| Court | North Dakota Supreme Court |
James Forster Twomey, Asst. States Atty., Fargo, for plaintiff and appellee, submitted on briefs.
Richard Irvin Bowers, Bismarck, pro se.
Defendant Richard Irvin Bowers appeals from a memorandum decision and order denying his motion to withdraw his guilty plea. We affirm.
There are two distinct versions of the facts which led to Bowers' arrest on May 23, 1987. The State contends Bowers stabbed a stranger with a triangular shaped piece of broken glass and severely wounded the stranger in the neck. The victim, Richard Siedel, was a resident of the Donaldson Hotel located in downtown Fargo, North Dakota. According to Siedel, Bowers attacked him when he was leaving a bathroom inside the hotel. Siedel testified that he was preparing to go to work around 9:00 p.m., when Bowers, then a complete stranger, stabbed Siedel as he exited the bathroom.
Bowers' version is as follows:
While Bowers was incarcerated in a Cass County jail, Bowers' attorney received a telephone call from the Cass County Sheriff's office which indicated Bowers was having "nightmares, delusions and other unusual visions...." Based on this information Bowers' attorney requested and received an order for psychological evaluation of Bowers. A part of the request follows:
While represented by counsel Bowers entered a plea of guilty to aggravated assault in violation of section 12.1-17-02, N.D.C.C. 1 The district court sentenced Bowers to five years in the State Penitentiary with the last year of the five-year sentence suspended. The conviction and sentence occurred on July 27, 1987. By letter dated September 7, 1987, Bowers requested a reduction of his sentence. The district court denied his request. By letter dated October 27, 1987, Bowers requested a new trial which was also denied by the district court. Bowers filed a motion to withdraw his guilty plea on January 27, 1988. This motion was accompanied by a brief which alleged Bowers' attorney "did not perform his duties diligently." Bowers also alleged that his attorney "badgered and threatened him into entering a guilty plea."
The district court reviewed Bowers' brief and supporting affidavit and concluded Bowers' motion to withdraw his guilty plea was based on two grounds: (1) Bowers was coerced into accepting a guilty plea, and (2) Bowers was denied effective assistance of counsel. We believe the district court properly denied Bowers' motion to withdraw his guilty plea.
Rule 32(d), N.D.R.Crim.P., 2 requires the trial court to allow the defendant to withdraw his plea of guilty whenever the defendant, upon a timely motion for withdrawal, proves that withdrawal is necessary to "correct a manifest injustice." The defendant has the burden of proving a manifest injustice or a fair and just reason supporting withdrawal of the plea. State v. Millner, 409 N.W.2d 642, 643 (N.D.1987). In State v. Runck, 418 N.W.2d 262, 267 (N.D.1987), we suggested that a "manifest injustice" would occur when a defendant does not receive the sentence which is contemplated by the plea agreement. However, it is clear that Bowers received the sentence that he agreed to in his plea agreement.
The district court decided that the following colloquy, which occurred at the time Bowers entered his plea of guilty, was strong evidence that Bowers was not coerced into accepting his guilty plea:
Bowers also did not object to his counsel:
In light of this exchange, we cannot conclude Bowers was coerced into accepting a guilty plea, especially as his allegation of coercion comes eleven months after he was asked whether or not he understood his plea and whether or not he was satisfied with his attorney.
Bowers next asserts he should be allowed to withdraw his guilty plea because he was denied effective assistance of counsel. In State v. Ricehill, 415 N.W.2d 481, 485 (N.D.1987), we set forth a specific procedure for determining when claims of ineffective assistance of counsel should be considered on appeal. Because Bowers has raised the issue in his motion to withdraw his guilty plea to the district court, with a supporting affidavit and letters from his attorney which allegedly demonstrate ineffective assistance, we will, pursuant to Ricehill, supra, attempt to dispose of this contention on this appeal. We believe, however, that the issue of ineffective assistance of counsel could be more effectively determined through the Uniform Post-Conviction Procedure Act which provides for an evidentiary hearing. See Ch. 29-32.1, N.D.C.C.; Ricehill, supra at 484.
In analyzing an ineffective assistance of counsel claim, this Court utilizes 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). Ricehill, supra at 484; State v. Micko, 393 N.W.2d 741 (N.D.1986); State v. Patten, 353 N.W.2d 30 (N.D.1984). Under Strickland there are two things a convicted defendant must establish. First, the defendant must show that his trial counsel's representation "fell below an objective standard of reasonableness." 466 U.S. at 688, 104. S.Ct. at 2064. In establishing this objective standard, the defendant must overcome the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." 466 U.S. at 689, 104 S.Ct. at 2065. Second, the defendant must establish that trial counsel's conduct was prejudicial to him: "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." 466 U.S. at 694, 104 S.Ct. at 2068.
We conclude that Bowers has failed to prove his attorney's conduct fell below an objective standard of reasonableness. 3 Bowers, now acting pro se, refers the Court to two letters from his attorney which allegedly indicate that he was deprived of effective assistance of counsel. We quote the text of these two letters in full:
1. The evidence available clearly suggests that the stabbing occurred in the second floor bathroom of the Donaldson Hotel rather than in the alley as you indicate.
2. The evidence suggests that you took a piece of glass from the area of the Black Building and then carried the glass to the area of the Donaldson Hotel. You were carrying the glass even though no fight was taking place.
3. There is no available evidence to suggest that you defended yourself or obtained the glass in the alley behind the Donaldson Hotel.
4. Your statements regarding your physical appearance are controverted by all other witnesses who observed you on May 24, 1987.
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