Yoney v. State
| Decision Date | 22 July 2021 |
| Docket Number | No. 20200359,20200359 |
| Citation | 962 N.W.2d 617 |
| Parties | Travis Eugene YONEY, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee |
| Court | North Dakota Supreme Court |
Kiara C. Kraus-Parr, Grand Forks, N.D., for petitioner and appellant.
Todd A. Schwarz, Assistant State's Attorney, Minot, N.D., for respondent and appellee.
[¶1] Travis Yoney appeals from a district court order summarily dismissing his application for postconviction relief. He argues he received ineffective assistance of counsel because his attorney's proposed jury instructions for attempted murder included the culpability of "knowingly," which Yoney claims is a non-cognizable offense. We recently held in Pemberton v. State , 2021 ND 85, ¶ 13, 959 N.W.2d 891, that attempted knowing murder is not a cognizable offense. We conclude Yoney failed to demonstrate he received ineffective assistance of counsel. However, on the basis of Pemberton , we reverse the order and remand with instructions to vacate Yoney's attempted murder conviction.
[¶2] In 2019, a jury found Yoney guilty of numerous crimes, including burglary, attempted murder, terrorizing, reckless endangerment, unlawful possession of a firearm, and violation of an order prohibiting contact. The district court sentenced Yoney to thirty years in prison.
[¶3] On appeal, Yoney argued attempt to knowingly commit murder was a non-cognizable offense. State v. Yoney , 2020 ND 118, ¶ 5, 943 N.W.2d 791. Yoney challenged the district court's attempted murder jury instruction stating he acted to "intentionally or knowingly cause the death of John Doe." Id. at ¶ 6. We declined to address the argument, holding Yoney invited the error because he submitted a jury instruction for attempted murder with the culpability of "knowingly." Id. at ¶¶ 12 -13.
[¶4] Yoney applied for postconviction relief, claiming ineffective assistance of counsel. He alleged his attorney submitted a defective jury instruction that included "knowingly" as a culpability for attempted murder. Yoney argued attempted murder is a specific intent crime and he could not have been convicted of attempted murder while acting "knowingly." Yoney also asserted his attorney was ineffective because he conceded guilt without Yoney's approval. Yoney requested that the court vacate his conviction.
[¶5] The State responded to Yoney's application and moved for summary dismissal. The State argued Yoney's counsel was not constitutionally ineffective and any alleged deficient performance by his counsel did not prejudice him. The district court summarily dismissed Yoney's application for postconviction relief.
[¶6] Postconviction relief proceedings are civil proceedings governed by the North Dakota Rules of Civil Procedure. Myers v. State , 2017 ND 66, ¶ 7, 891 N.W.2d 724. A district court may summarily dismiss an application for postconviction relief if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. N.D.C.C. § 29-32.1-09(3). We review an appeal from summary dismissal of an application for postconviction relief as we would review an appeal from a summary judgment.
Myers , at ¶ 7. If the State moves for summary dismissal, an applicant must present competent admissible evidence by affidavit or other comparable means which raises a genuine issue of material fact. Henke v. State , 2009 ND 117, ¶ 11, 767 N.W.2d 881. The party opposing a motion for summary dismissal is entitled to all reasonable inferences to be drawn from the evidence and is entitled to an evidentiary hearing if a reasonable inference raises a genuine issue of material fact. Myers , at ¶ 7.
[¶7] Yoney claims the district court erred in summarily dismissing his application for postconviction relief, because he received ineffective assistance of counsel in the underlying criminal proceeding.
The Sixth Amendment of the United States Constitution, applied through the Fourteenth Amendment to the States, and Article I, Section 12, of the North Dakota Constitution guarantee criminal defendants effective assistance of counsel. State v. Garge , 2012 ND 138, ¶ 10, 818 N.W.2d 718. An ineffective assistance of counsel claim involves a mixed question of law and fact, fully reviewable by this Court. Flanagan [v. State] , 2006 ND 76, ¶ 9, 712 N.W.2d 602. In order to prevail on a post-conviction claim for ineffective assistance of counsel, an applicant must show (1) counsel's representation fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington , 466 U.S. 668, 687-96, 694 [104 S.Ct. 2052, 80 L.Ed.2d 674] (1984). An applicant raising a post-conviction claim for ineffective assistance of counsel has the "heavy burden" of establishing the requirements of the two-prong Strickland test. Flanagan , at ¶ 10.
Olson v. State , 2019 ND 135, ¶ 19, 927 N.W.2d 444 (quoting Everett v. State , 2015 ND 149, ¶ 7, 864 N.W.2d 450 ).
[¶8] Yoney argues his attorney was ineffective by submitting an improper jury instruction for attempted murder. He asserts the instruction that included the culpability of "knowingly" allowed him to be convicted of a non-cognizable offense. Yoney argues attempted knowing murder is a non-cognizable offense under this Court's decision in State v. Swanson , 2019 ND 181, 930 N.W.2d 645.
[¶9] In Swanson , 2019 ND 181, ¶ 13, 930 N.W.2d 645, this Court concluded "the term knowingly, when used in conjunction with N.D.C.C. § 12.1-16-01(1)(a), permits an individual to be convicted of a murder when they did not have the purpose (synonymous with intent) to cause the death of another human being." We held "[c]onspiracy to ‘knowingly’ commit a murder is a non-cognizable offense because it allows an individual to be convicted of the offense without an intent to cause the death of another human being." Id. at ¶ 15. We also stated, "Because the inclusion of ‘knowingly’ in the jury instruction allowed the jury to convict Swanson of conspiracy to commit murder without an intent to cause the death of another human being, the instruction was improper and allowed Swanson to have potentially been convicted of a non-cognizable offense." Id. at ¶ 14.
[¶10] While Yoney's present appeal was pending, we held in Pemberton v. State , 2021 ND 85, ¶ 13, 959 N.W.2d 891, that "an attempted ‘knowing’ murder is a non-cognizable offense." The attempted murder jury instruction at issue was similar to the one in Yoney's case, stating Pemberton "[a]ttempted to intentionally or knowingly cause the death of another human being." Id. at ¶ 15. We stated:
Because the offense of attempted murder requires the accused to have the intent to complete the commission of the underlying crime by causing the death of another and a "knowing" murder under N.D.C.C. § 12.1-16-01(1)(a) does not require the accused to have the intent to cause the death of another, a "knowing murder" cannot be the basis for an attempted murder conviction.
Id. at ¶ 13. We concluded the attempted murder instruction with "knowingly" as a culpability "allowed the jury to find Pemberton guilty of a non-cognizable offense." Id. at ¶ 17. We reversed the district court's order denying Pemberton's application for postconviction relief. Id. at ¶ 28.
[¶11] Swanson was decided after Yoney's trial and was the first case to address the statutory definition of "knowingly" under N.D.C.C. § 12.1-02-02 in conjunction with conspiracy and N.D.C.C. § 12.1-16-01(1)(a). In Dominguez v. State , 2013 ND 249, ¶ 22, 840 N.W.2d 596, decided before Yoney's trial, this Court held the offense of attempted murder under N.D.C.C. § 12.1-16-01(1)(b), extreme indifference murder, is a non-cognizable offense. We held the offense of attempted murder requires the accused to have "an intent to kill." Id. This Court also noted, "When there is evidence of an intent to kill, a person can be convicted of attempted murder under N.D.C.C. §§ 12.1-06-01 and 12.1-16-01(1)(a) for attempting to knowingly or intentionally cause the death of another human being." Id. at ¶ 19 ; see also Pemberton , 2021 ND 85, ¶ 14, 959 N.W.2d 891 ().
[¶12] At the time Yoney's counsel submitted the proposed jury instruction, this Court's statement in Dominguez , 2013 ND 249, ¶ 19, 840 N.W.2d 596, suggesting a person can be convicted of attempted murder under N.D.C.C. § 12.1-16-01(1)(a) for attempting to knowingly or intentionally cause the death of another had not yet been further explained by our decisions in Swanson and Pemberton . We cannot conclude Yoney has shown his counsel's representation fell outside the broad range of reasonableness for submitting an attempted murder jury instruction that included the culpability of "knowingly." The district court did not err in concluding Yoney received effective assistance of counsel.
[¶13] Yoney argues his attorney was ineffective because he admitted guilt on his behalf without his consent. Yoney contends his attorney conceded guilt at trial during his Rule 29 motion for acquittal by stating Yoney violated a protection order. Yoney also claims that during closing argument his attorney conceded that Yoney may have had a rifle, but that he never pointed the rifle at John Doe.
[¶14] The district court concluded the attorney's alleged concessions made at the Rule 29 motion were made outside the presence of the jury and would not have affected the outcome of the case. The court concluded the attorney's statement during closing argument that Yoney had a rifle was a trial strategy:
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