State v. Patten, 979

• Decision Date: 28 June 1984
• Docket Number: No. 979,979
• Citation: 353 N.W.2d 30
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Gary L. PATTEN, Defendant and Appellant. Crim.
• Court: North Dakota Supreme Court

Page 30

353 N.W.2d 30

STATE of North Dakota, Plaintiff and Appellee, v. Gary L. PATTEN, Defendant and Appellant.

Crim. No. 979.

Supreme Court of North Dakota.

June 28, 1984.

Patricia L. Burke, Asst. State's Atty., Bismarck, for plaintiff and appellee State of North Dakota.

James J. Coles, of Bickle, Coles & Snyder, Bismarck, for defendant and appellant.

VANDE WALLE, Justice.

Gary Patten appealed from a judgment of conviction of the district court, Burleigh County, which found him guilty of removing a child from the State in violation of a custody decree. We affirm.

In May 1982 Gary and his wife, Valery Patten, separated, and Gary received temporary custody of his two sons, ages five and six. The May court order provided that Gary would have custody until a hearing in June 1982, at which time the court would determine who should be entitled to temporary custody pending final resolution of the matter. In August 1982 the court determined that Gary and Valery demonstrated an inability to have visitation without harming the children, but that Valery should have temporary custody of the children pending trial upon the merits. The amended order provided that Gary could visit the children only if Valery agreed because of the harm that visitation engendered.

On Friday, October 22, 1982, Valery agreed to have Gary visit the children for the weekend. Gary picked up the children at the home of Leonard Weigum, Valery's uncle, who resided in Beulah. Gary then took the children to his home near Bismarck, which is in Burleigh County.

On Saturday morning Virginia Illich, a probation officer, visited Gary and the children in order to conduct a home study. Valery had agreed to have Gary visit the children because she thought home studies of both residences would aid the court in determining permanent custody. Illich testified that Gary told her that his home was in disarray because he was moving to his mother's place, which is in Bismarck, and because he was planning to store some of his belongings at his father's residence in Parshall, which is in Mountrail County.

On Saturday afternoon Gary drove toward Parshall. Gary testified that as he approached Parshall he decided to go to Arizona because his sons wanted to visit their grandfather, who was then living in Arizona, not Parshall.

When Gary failed to return with the children on Sunday night, Valery attempted to find the children. She went to Gary's residence and noticed that his home was empty and deserted. Both State and Federal authorities were informed that Gary and the children had disappeared. Months later Gary wrote Weigum a letter and told him that he and the boys were living in Canada and that he had "planned and executed everything to a T." Gary stated in the letter that in May 1982, while he was living in Burleigh County, he ordered a book entitled Divorce Dirty Tricks, which described 110 ways to disappear. He admitted in the letter that he had changed his identity by obtaining fictitious documents such as a marriage license, death certificate, social security card, and a driver's license. Gary explained that the purpose of the documents was to establish himself as the sole-surviving parent of the children.

In February 1983 Valery received a call from the Burleigh County sheriff's office, which informed her that Gary was in jail in El Paso, Texas. When Valery flew to El Paso, Gary refused to tell her where the children were living. She eventually found the children in the slums of Juarez, Mexico. In March 1983 Gary and Valery's divorce was final.

A jury found Gary guilty under Section 14-14-22.1, N.D.C.C., of removing a child from the State in violation of a custody decree. On appeal Gary contends that the trial court erred in refusing to give an instruction on the mistake of law defense; that he was denied his Sixth Amendment right to effective assistance of counsel; that the verdict of the jury was against the weight of the evidence; and that the trial court erred in refusing to dismiss the action. According to Gary, a criminal charge cannot be based upon a temporary child-custody order. Because Gary's arguments concerning the mistake of law instruction and the right to effective assistance of counsel are factually intertwined we shall consider them together.

MISTAKE OF LAW INSTRUCTION AND EFFECTIVE ASSISTANCE OF COUNSEL

Gary reasons that his trial attorney failed to provide him with effective assistance because the trial court denied his request for an instruction on mistake of law. In support of his reasoning, Gary contends that his trial attorney failed to make an offer of proof and failed to investigate the basis for Gary's belief that he did not violate any criminal statute. In addition, Gary maintains that the trial court should have granted his request for an instruction on mistake of law because Section 14-14-02(4), N.D.C.C., is ambiguous.

At the trial Gary's attorney asked him to describe his interpretation of the difference between a temporary custody order and a custody decree. When Gary started to relate who had told him about the difference, the State objected. The trial court did not rule on the objection, but simply restated the question originally asked. During oral argument on appeal both Gary and the State maintained that the trial court had found Gary's response to be hearsay. Gary's attorney on appeal argued that an offer of proof was necessary to preserve for appeal the issue of Gary's request for instruction on mistake of law. We believe that Gary's trial attorney Gary also argues that his trial attorney failed to investigate adequately the persons who allegedly informed Gary that he could lawfully remove the children from the State. In an affidavit accompanying his brief Gary stated that he received advice from both the Mercer County sheriff's office and from a Burleigh County State's Attorney. The State, however, contends that Gary received effective assistance of counsel, emphasizing that Gary admitted in his affidavit that the Burleigh County State's Attorney did not remember talking with Gary about this matter.

did not need to make an offer of proof because the transcript reflects that the trial court did not sustain the objection but rather attempted to help Gary be responsive in his answer.

In Strickland v. Washington, --- U.S. ----, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court recently articulated the standard of review for determining when a criminal judgment must be overturned because of the actual ineffective assistance of counsel. The Court stated that a defendant who claims that he received ineffective assistance of counsel must establish two elements: the counsel's performance was deficient, and the deficient performance prejudiced the defendant. We believe that the standard of review set forth by the United States Supreme Court is in harmony with previous decisions of this court that have addressed claims of ineffective assistance of counsel. See, e.g., State v. Mehralian, 301 N.W.2d 409 (N.D.1981) [reasonable standard for determining competency]; State v. Kroeplin, 266 N.W.2d 537 (N.D.1978) [prejudice to the defendant must be alleged and established]. See also State v. Jensen, 333 N.W.2d 686 (N.D.1983); State v. Motsko, 261 N.W.2d 860 (N.D.1978); State v. McKay, 234 N.W.2d 853 (N.D.1975).

In Strickland the Court stated that it was not promulgating a mechanical rule, but rather it suggested that an appellate court may resolve the issue of alleged ineffective assistance of counsel by discussing one of the elements if it disposes of the issue.

In the present case we do not need to determine if Gary's trial attorney was deficient in investigating the basis of Gary's erroneous belief that the removal was lawful. The dispositive element in this case is that no prejudice to Gary occurred. Under Section 12.1-05-09, N.D.C.C., a defendant who asserts the affirmative defense of mistake of law not only must show reliance on a statement given by an official but also that his reliance was reasonable. See, e.g., State...