Whiteman v. State, 20010224.
| Decision Date | 14 May 2002 |
| Docket Number | No. 20010224.,20010224. |
| Parties | Ambrose Joel WHITEMAN, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee. |
| Court | North Dakota Supreme Court |
Ambrose Joel Whiteman, pro se, Bismarck, ND, Submitted on brief.
Wade Lykken Webb, Assistant State's Attorney, Fargo, ND, for respondent and appellee. NEUMANN, Justice.
[¶ 1] Ambrose Joel Whiteman appealed from a judgment summarily dismissing his application for post-conviction relief. We conclude Whiteman has raised a genuine issue of material fact whether his attorney was ineffective for failing to follow his instructions to appeal his criminal conviction, entitling him to an evidentiary hearing on the issue. We reverse and remand for further proceedings.
[¶ 2] On May 22, 1998, a Cass County jury found Whiteman guilty of class AA felony murder in connection with the October 1997 death of Donald Strassberg in Fargo. Whiteman was sentenced to life imprisonment without parole. No appeal was taken from the criminal judgment and commitment.
[¶ 3] On June 25, 2001, Whiteman filed a pro se application for post-conviction relief, claiming he was "denied effective assistance of counsel at trial herin [sic], and in his Direct Appeal attorney, Gordon Dexheimer as counsel failed to file the required Notice of Appeal as requested, thereby; denying defendant of his requested appeal." Whiteman sought "all rights attendant to his Direct Appeal," including trial transcripts and a court-appointed attorney to handle the appeal. Whiteman's application was accompanied with an affidavit, in which he claimed:
[¶ 4] The State denied Whiteman's allegation in its response, and "put[] the petitioner upon his proof." The State argued Whiteman's application should be summarily denied because Dexheimer "consult[ed] with petitioner and follow[ed] the petitioner's express wishes to not Appeal the underlying criminal conviction." The State supported its motion with Dexheimer's affidavit, in which he stated he had not been disbarred, and:
[¶ 5] Dexheimer further stated he responded to one of Whiteman's letters in January 1999 and reminded him of "our discussions following his conviction and again after his sentencing, ..." Dexheimer attached to his affidavit Whiteman's January 1999 letter, in which Whiteman asked Dexheimer
[¶ 6] Whiteman moved for an evidentiary hearing because "there is in dispute evidence of material fact." The court denied Whiteman's request for an evidentiary hearing and granted the State's motion for summary disposition, concluding "Whiteman has failed to present sufficient evidence showing a genuine issue of material fact concerning his claim that his trial counsel was ineffective because he allegedly failed to pursue an appeal of conviction and sentence." Whiteman appealed.
[¶ 7] Under N.D.C.C. § 29-32.1-09(1), a trial 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. Hughes v. State, 639 N.W.2d 696, 2002 ND 28, ¶ 4. We review an appeal from a summary denial of post-conviction relief as we review an appeal from summary judgment. Abdi v. State, 2000 ND 64, ¶ 8, 608 N.W.2d 292. The party opposing the motion for summary disposition is entitled to all reasonable inferences at the preliminary stages of a post-conviction proceeding and is entitled to an evidentiary hearing if a reasonable inference raises a genuine issue of material fact. Heyen v. State, 2001 ND 126, ¶ 6, 630 N.W.2d 56.
[¶ 8] Whiteman argues he is entitled to an evidentiary hearing on his ineffective assistance of counsel claim based on the United States Supreme Court's decision in Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000).
[¶ 9] In Flores-Ortega, the defendant pled guilty to second degree murder in a state court and was sentenced to 15 years to life in prison. The trial judge informed the defendant he had 60 days to appeal. Although defense counsel wrote "bring appeal papers" in her file, no notice of appeal was filed within the 60 days allowed by state law. Flores-Ortega, 528 U.S. at 474, 120 S.Ct. 1029. About four months after sentencing, the defendant attempted to file a notice of appeal, which was rejected by the clerk of court as untimely. After unsuccessful attempts at obtaining state habeas corpus relief, the defendant filed a federal habeas corpus petition alleging constitutionally ineffective assistance of counsel based on his attorney's failure to file the notice of appeal after she promised to do so.
[¶ 10] The Supreme Court held the two-pronged analysis articulated in Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) — requiring a defendant to show counsel's performance was deficient and the deficient performance prejudiced the defendant—"applies to claims ... that counsel was constitutionally ineffective for failing to file a notice of appeal." Flores-Ortega, 528 U.S. at 477, 120 S.Ct. 1029. Under the performance prong of Strickland the Supreme Court noted two extremes where effectiveness of counsel is easily determined when a direct appeal is not taken:
We have long held that a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable... This is so because a defendant who instructs counsel to initiate an appeal reasonably relies upon counsel to file the necessary notice. Counsel's failure to do so cannot be considered a strategic decision; filing a notice of appeal is a purely ministerial task, and the failure to file reflects inattention to the defendant's wishes. At the other end of the spectrum, a defendant who explicitly tells his attorney not to file an appeal plainly cannot later complain that, by following his instructions, his counsel performed deficiently....
Id. (internal citations omitted).
[¶ 11] The Supreme Court said the "question presented in this case lies between those poles: Is counsel deficient for not filing a notice of appeal when the defendant has not clearly conveyed his wishes one way or another?" Flores-Ortega, 528 U.S. at 477, 120 S.Ct. 1029. If counsel has consulted with the defendant, "[c]ounsel performs in a professionally unreasonable manner only by failing to follow the defendant's express instructions with respect to an appeal." Id. at 478, 120 S.Ct. 1029. If there has been no consultation, deficient performance is measured by determining whether counsel had an obligation to consult with the defendant about an appeal. Id. The Supreme Court held that "counsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing." Id. at 480, 120 S.Ct. 1029.
[¶ 12] Under the prejudice prong of the Strickland test, the Supreme Court noted no showing of actual prejudice is required when a defendant alleges that during a critical stage of a judicial proceeding he was "denied the assistance of counsel altogether ... because the adversary process itself [is] presumptively unreliable.'" Flores-Ortega, 528 U.S. at 483, 120 S.Ct. 1029 (quoting United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984)). The Supreme Court explained that defense counsel's "alleged deficient performance [in failing to appeal] arguably led not to a judicial proceeding of disputed reliability, but rather to the forfeiture of a proceeding itself." Flores-Ortega, 528 U.S. at 483, 120 S.Ct. 1029. The Supreme Court held the "denial of the entire judicial proceeding itself, which a defendant wanted at the time and to which he had a right, ... demands a presumption of prejudice." Id. Nevertheless, the Supreme Court said that although prejudice was presumed, the defendant still had to show that counsel's deficient performance "actually cause[d] the forfeiture of the defendant's appeal." Id. at 484, 120 S.Ct. 1029. The Supreme Court held, "to show prejudice in these circumstances, a defendant must demonstrate that there is a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed." Id.
[¶ 13] Particularly relevant to Whiteman's allegations in the present case are the Supreme...
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