                 Filed 5/7/20 by Clerk of Supreme Court

                 IN THE SUPREME COURT
                 STATE OF NORTH DAKOTA

                               2020 ND 100

Richard Dodge,                                     Petitioner and Appellant
     v.
State of North Dakota,                             Respondent and Appellee



                               No. 20190286

Appeal from the District Court of Stutsman County, Southeast Judicial
District, the Honorable Tristan Jones Van de Streek, Judge.

AFFIRMED.

Opinion of the Court by VandeWalle, Justice.

Kiara C. Kraus-Parr, Grand Forks, ND, for petitioner and appellant.

Frederick R. Fremgen, State’s Attorney, Jamestown, ND, for respondent and
appellee.
                                Dodge v. State
                                 No. 20190286

VandeWalle, Justice.

      Richard Dodge appealed from a district court order denying his
application for post-conviction relief. On appeal, Dodge argues he was not
competent to enter his pleas and he received ineffective assistance of counsel.
We affirm.

                                        I

      Dodge was charged with five felonies and a misdemeanor in December
2015. Dodge was appointed counsel. In April 2016, Dodge’s counsel moved the
court to withdraw because the attorney-client relationship was “irreparably
broken and rendered unreasonably difficult.” The court granted the motion,
and Dodge was appointed substitute counsel in May 2016.

       In July 2016, Dodge himself filed a “motion to dismiss counsel,” stating:
“I, Richard Dodge, am dismissing . . . my attorney due to a conflict of interests.
He has strong affiliations with persons whom I have offered testimony against.
[He] is completely unwilling to defend me.” The court denied Dodge’s motion.

        The deadline for motions and plea agreements was March 4, 2016. On
August 9, 2016, over five months after the deadline, Dodge’s counsel filed a
motion for psychiatric examination under N.D.R.Crim.P. 12.2 and “NDCC,
Section 12.1-04.1-03 et. seq.” The district court denied the motion for
evaluation because notice was not filed that a defense under Rule 12.2 or
N.D.C.C. § 12.1-04.1-03 et seq. was going to be asserted and because the time
for filing pretrial motions had passed. The court additionally stated Dodge did
not provide any evidence, and the court itself did not make any observations,
that Dodge was incompetent to stand trial.

     On August 17, 2016, Dodge himself filed another “motion to dismiss
counsel” stating his attorney did not have any authority to act on his behalf.
The same day, due to the allegations made against him in Dodge’s motion,
Dodge’s attorney filed a motion to withdraw as counsel. The court denied both


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motions and instead required Dodge’s attorney to appear as standby counsel
and assist Dodge during trial if requested, but relieved him of any further
obligations to consult with Dodge. The court’s denial of the motions was based,
in part, on its belief that Dodge would not be satisfied with any counsel he was
appointed, and he would continue to ask for new attorneys.

      The case proceeded to trial. At the beginning of trial, the court gave
Dodge the option of representing himself or having his attorney represent him.
Dodge chose to have his attorney represent him. Because his attorney had not
prepared for trial and had no communication with Dodge since he moved to
withdraw, Dodge’s attorney asked for a brief recess to consult with Dodge.
During the recess, a settlement was reached. Dodge agreed to enter Alford
pleas on all counts, waived a presentence investigation, and agreed to be
sentenced immediately after entering his pleas.

       The court conducted the plea procedure pursuant to N.D.R.Crim.P. 11.
Dodge stated he discussed the pleas with his attorney and was prepared to
enter a plea. When asked if he was satisfied with his attorney’s advice, Dodge
stated, “Good as I’m going to get.” Dodge further stated he understood his
rights, he understood he had a right to a jury trial, a jury would have to find
him guilty beyond a reasonable doubt, and that by pleading guilty he was
waiving these rights. Dodge was immediately sentenced following his guilty
pleas.

       Dodge did not file a direct appeal. Instead, Dodge filed an application for
post-conviction relief claiming he received ineffective assistance of counsel and
he was incompetent to stand trial, and therefore, his pleas were not knowingly,
intelligently, and voluntarily entered into. Dodge was appointed counsel to
represent him during the post-conviction proceedings. Dodge accused his first
post-conviction counsel of withholding discovery from him even though his
counsel informed the district court she provided Dodge discovery on multiple
occasions. Dodge’s first post-conviction counsel was allowed to withdraw.
Dodge was again appointed counsel.




                                        2
       Two psychological evaluations were completed during post-conviction
proceedings. Dr. Lisota completed an evaluation for the State. Dr. Lisota
concluded Dodge was presently able to communicate with his attorneys and
understood the legal proceedings. Dr. Lisota further concluded Dodge’s
inability to work with his attorneys was a conscious decision rather than the
product of a legitimate mental illness. Dr. Mugge conducted an evaluation for
the defense. Dr. Mugge’s report details accounts by Dodge of rampant sexual
abuse as a child; of people stalking Dodge wherever he goes; that the criminal
charges against him were a set up so his stalkers could steal his property; of
sexual assault at the Stutsman County Jail facilitated by the guards; that his
first attorney was associated with people that were stalking him; that his first
attorney forced Dodge to sign power of attorney documents against his will in
2012 in Wisconsin; and that his trial attorney was associated with people
whom Dodge had testified against. In her report, Dr. Mugge concluded Dodge
suffered from a delusional disorder, and that “[w]hether intentionally produced
or unintentionally experienced, delusional statements and accusations have
impaired [Dodge’s] ability to interact and communicate with his attorneys.”

       At the post-conviction hearing, Dodge testified to many of the delusions
highlighted in Dr. Mugge’s report. Dodge’s trial counsel testified that when he
met with Dodge prior to trial, Dodge had little interest in discussing his defense
or trial strategy. He stated Dodge was more concerned with retrieving silver
ingots, which Dodge alleged were stolen by his first attorney, for his
commissary in prison. After meeting with Dodge, Dodge’s attorney realized
Dodge may have had competency issues and filed the motion for evaluation.

      Both experts also testified at the post-conviction hearing. Dr. Lisota’s
testimony was consistent with his report. Dr. Mugge went beyond her report,
in which she stated Dodge’s delusions impaired his ability to communicate with
his attorneys, and testified Dodge’s delusions made him unable to
communicate with his attorneys.

      Ultimately, the district court found Dodge was competent when he
entered his pleas. The court found Dr. Lisota’s report and testimony credible,
and Dr. Mugge’s report and testimony not credible. The court also found the


                                        3
trial judge’s determinations on Dodge’s competency persuasive. Additionally,
the court found Dodge’s counsel’s assistance was not ineffective because Dodge
failed to establish “the defense of lack of criminal responsibility was available
to him at the time of the plea.”

                                        II

      Dodge argues he was incompetent when he entered his pleas and
received ineffective assistance of counsel because his attorney failed to
investigate his competency and bring the issue to the attention of the district
court and, therefore, he should be allowed to withdraw his pleas. “An
application for post-conviction relief, where a defendant is seeking to withdraw
a guilty plea, is treated as a request under N.D.R.Crim.P. 11(d).” State v.
Howard, 2011 ND 117, ¶ 3, 798 N.W.2d 675 (citing Eaton v. State, 2011 ND 35,
¶ 5, 793 N.W.2d 790). “After a court has accepted a guilty plea and imposed a
sentence, a defendant cannot withdraw a plea unless withdrawal is necessary
to correct a manifest injustice.” Id. (quoting Eaton, at ¶ 5). The burden is on
the defendant to prove a manifest injustice exists. N.D.R.Crim.P. 11(d)(2). “The
court has discretion in finding whether a manifest injustice necessitating the
withdrawal of a guilty plea exists, and we review the court’s decision for abuse
of discretion.” Howard, at ¶ 3 (citing Eaton, at ¶ 5). “An abuse of discretion
under N.D.R.Crim.P. 11(d) occurs when the court’s legal discretion is not
exercised in the interest of justice.” Id. (citing State v. Bates, 2007 ND 15, ¶ 6,
726 N.W.2d 595).

                                         A

       Whether a defendant is competent to enter a plea is a question of fact,
and a district court’s finding on the issue will not be set aside on appeal unless
clearly erroneous. State v. Dahl, 2010 ND 108, ¶ 6, 783 N.W.2d 41. “A finding
of fact is clearly erroneous if it is induced by an erroneous view of the law, if it
is not supported by any evidence, or if, although there is some evidence to
support the finding, a reviewing court is left with a definite and firm conviction
a mistake has been made.” Id. (quoting Heckelsmiller v. State, 2004 ND 191, ¶
5, 687 N.W.2d 454).



                                         4
      “An incompetent criminal defendant cannot enter a valid guilty plea.”
State v. Magnuson, 1997 ND 228, ¶ 11, 571 N.W.2d 642 (citing Godinez v.
Moran, 509 U.S. 389, 396 (1993)). “[T]he standard for deciding competency of
a criminal defendant to enter a guilty plea is the same competency standard
for standing trial.” Id. (citing Godinez, at 390). “[I]f a defendant of doubtful
competency wants to plead guilty, a trial court must first decide whether the
defendant is competent and then must satisfy itself the guilty plea is
voluntary.” Id. (citing Godinez, at 400). The standard for determining if a
criminal defendant is competent to stand trial is set forth in State v. Gleeson:

             “It has long been held the conviction of a mentally
      incompetent accused is a violation of constitutional due
      process. Dusky v. United States, 362 U.S. 402 [80 S.Ct. 788, 4
      L.Ed.2d 824] (1960). The United States Supreme Court has
      summarized the test for determining if an accused is mentally
      competent to stand trial. Id. A defendant is incompetent when he
      lacks (1) ‘sufficient present ability to consult with his lawyer with
      a reasonable degree of rational understanding’ or (2) ‘a rational as
      well as factual understanding of the proceedings against
      him.’ Dusky, 362 U.S. at 402, 80 S.Ct. 788. This test is essentially
      codified at section 12.1-04-04, N.D.C.C., which states: ‘No person
      who, as a result of mental disease or defect, lacks capacity to
      understand the proceedings against the person or to assist in the
      person’s own defense shall be tried, convicted, or sentenced for the
      commission of an offense so long as such incapacity endures.’”

Dahl, 2010 ND 108, ¶ 7, 783 N.W.2d 41 (quoting Gleeson, 2000 ND 205, ¶ 9,
619 N.W.2d 858). “The crux of being able to ‘consult with a lawyer with a
reasonable degree of rational understanding’ is being able to ‘confer coherently
with counsel and provide necessary and relevant information to formulate a
defense.’” Id. (quoting State v. VanNatta, 506 N.W.2d 63, 65, 68 (N.D. 1993)).
“[T]he presence of a mental illness does not [per se] equate with incompetency
to stand trial.” VanNatta, at 68.

      In State v. Storbakken, 246 N.W.2d 78, 81 (N.D. 1976), the district court,
among other things, relied upon Storbakken’s courtroom demeanor in
determining Storbakken was competent to plead guilty. Id. When asked
various questions by the court, Storbakken indicated he had completed the

                                       5
eleventh grade of high school, he was employed as a sheetrock hanger, he was
married, he was on parole for a burglary conviction in Minnesota, and it was
his understanding that the State was to make no recommendation as to
sentencing for conviction on the charge. Id. Based on this record, we concluded
the district court did not err in determining Storbakken was competent to
plead guilty. Id.

      In Dahl, 2010 ND 108, ¶ 8, 783 N.W.2d 41, the district court was
presented with conflicting evidence, including expert reports and testimony,
about Dahl’s competency to stand trial. After weighing the conflicting evidence,
the court determined Dahl was competent to stand trial. Id. at ¶ 4. We
affirmed, stating:

             Although this case involves conflicting evidence concerning
      Dahl’s ability to assist in his defense by coherently interacting
      with his attorney, sufficient evidence exists supporting the district
      court’s finding Dahl was competent to stand trial. . . . “Conflicts in
      testimony [are] resolved in favor of affirmance, as we recognize the
      trial court is in a superior position to assess credibility of witnesses
      and weigh the evidence.” State v. Tollefson, 2003 ND 73, ¶ 9, 660
      N.W.2d 575 (quoting State v. Heitzmann, 2001 ND 136, ¶ 8, 632
      N.W.2d 1).

Id. at ¶ 8.

       Here, the district court considered the trial court’s determination that
there was no indication Dodge was incompetent. Additionally, the district court
stated in its order it did not observe anything during the post-conviction
proceedings to indicate Dodge was incompetent. At the post-conviction
hearing, Dodge was intentionally able to avoid being impeached on cross-
examination. Based on his ability to manipulate the State’s cross-examination
of him during the post-conviction hearing, the court found Dodge was
intelligent and familiar with the record.

      The district court was also presented with and considered conflicting
expert reports and testimony on Dodge’s competency and his ability to
coherently confer with his attorneys. In her report, Dr. Mugge stated Dodge’s


                                         6
ability to work with his attorneys was “impaired,” but she did not indicate that
Dodge was unable to communicate with his attorneys or was incompetent when
he entered his pleas. At the post-conviction hearing, Dr. Mugge testified Dodge
could not coherently confer with his attorneys and was not competent when he
entered his pleas. Because of this disparity, the court found Dr. Mugge’s report
and testimony “unpersuasive,” and gave “little weight to her report and
testimony.” The district court also found there were no contemporaneous
medical records supporting her position. On the other hand, the court found
Dr. Lisota’s report and testimony persuasive because his report and testimony
were consistent with one another and because Dr. Lisota “has more experience
in this type of evaluation.” We resolve conflicts in testimony in favor of
affirmance. Accordingly, and after reviewing the entire record, we conclude the
district court did not err in finding Dodge was competent when he entered his
pleas.

                                      III

     The standard for reviewing claims of ineffective assistance of counsel, as
pronounced in Strickland v. Washington, is well established:

      [T]o prevail on a post-conviction relief application based on
      ineffective assistance of counsel, the petitioner must (1) “show that
      counsel’s representation fell below an objective standard of
      reasonableness” and (2) “show that 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, 688, 694 [104 S.Ct. 2052, 80 L.Ed.2d
      674] (1984).

            Surmounting Strickland’s high bar is never an easy
            task. An ineffective-assistance claim can function as a
            way to escape rules of waiver and forfeiture and raise
            issues not presented at trial or in pretrial proceedings,
            and so the Strickland standard must be applied with
            scrupulous care, lest intrusive post-trial inquiry
            threaten the integrity of the very adversary process
            the right to counsel is meant to serve. Even under de
            novo review, the standard for judging counsel’s


                                       7
            representation is a most deferential one. . . . It is all
            too tempting to second-guess counsel’s assistance after
            conviction or adverse sentence.

      Premo v. Moore [562 U.S. 115], 131 S.Ct. 733, 739–40 [178 L.Ed.2d
      649] (2011) (internal quotations and citations omitted). The two-
      part Strickland test “applies to challenges to guilty pleas based on
      ineffective assistance of counsel.” Hill v. Lockhart, 474 U.S. 52, 58
      [106 S.Ct. 366, 88 L.Ed.2d 203] (1985). “Thus, 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).
      ...

            The first prong is measured using “prevailing professional
      norms,” Sambursky v. State, 2006 ND 223, ¶ 13, 723 N.W.2d 524,
      and is satisfied if [the defendant] proves counsel’s conduct
      consisted of errors serious enough to result in denial of the counsel
      guaranteed by the Sixth Amendment. See Strickland, 466 U.S. at
      687 [104 S.Ct. 2052].

Lindsey v. State, 2014 ND 174, ¶ 19, 852 N.W.2d 383 (quoting Bahtiraj v. State,
2013 ND 240, ¶¶ 9-10, 840 N.W.2d 605). “Courts need not address both prongs
of the Strickland test, and if a court can resolve the case by addressing only
one prong it is encouraged to do so.” Stein v. State, 2019 ND 291, ¶ 10, 936
N.W.2d 389 (quoting Booth v. State, 2017 ND 97, ¶ 8, 893 N.W.2d 186). “If it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course should be followed.” Id.

       Normally, the second prong of the Strickland test in the context of a
guilty plea is satisfied if the defendant shows “there is a reasonable probability
that, but for counsel’s errors, he would not have pleaded guilty and would have
insisted on going to trial.” Id. at ¶ 8 (quoting Lindsey, 2014 ND 174, ¶ 19, 852
N.W.2d 383). But, as other courts have opined, a petitioner’s claim that his or
her counsel was ineffective for failing to investigate his or her mental health
status and present such information to the court “does not lend itself very well
to the ‘outcome’ test in Strickland.” Hubbard v. State, 31 S.W.3d 25, 38 (Mo.




                                        8
Ct. App. 2000) (quoting Bouchillon v. Collins, 907 F.2d 589, 595 n.20 (5th Cir.
1990)).

      We have not previously         decided the appropriate standard for
determining ineffective assistance   of counsel when a petitioner claims he or
she was incompetent to enter a       guilty plea. However, other courts have
articulated how the second prong     of the Strickland test is satisfied in this
context:

      [I]n such a situation, “[w]ith respect to the prejudice prong of a
      claim of ineffective assistance of counsel, [the movant] need only
      demonstrate a ‘reasonable probability’ that he was incompetent,
      ‘sufficient to undermine confidence in the outcome.’” [Bouchillon,
      907 F.2d at 595] (quoting Strickland, 466 U.S. at 694, 104 S.Ct. at
      2068, 80 L.Ed.2d at 698). “This is a lower burden of proof than the
      preponderance standard.” Id. As such, in the context of a
      guilty plea where the movant has alleged that he or she
      was incompetent to plead guilty and his or her counsel was
      ineffective for failing to adequately investigate his or her mental
      health status, in determining whether the movant was prejudiced
      by his or her counsel’s ineffective assistance, the motion court
      must first determine whether there was a reasonable probability
      that the movant was incompetent. Id. If the motion court
      determines that there was not a reasonable probability that the
      movant was incompetent, the inquiry can proceed to a second level,
      where the court determines whether the movant, but for his or her
      counsel’s unprofessional errors, would not have pleaded guilty and
      would instead have insisted upon going to trial.

Hubbard, 31 S.W.3d at 38; accord, e.g., Camacho v. Kelley, 888 F.3d 389, 394
(8th Cir. 2018); United States v. Hammer, 404 F. Supp. 2d 676, 792 (M.D. Pa.
2005); State v. Hessler, 886 N.W.2d 280, 290 (Neb. 2016); Jeter v. State, 417
S.E.2d 594, 596 (S.C. 1992). In other words, for Dodge to establish that he was
prejudiced by his attorney’s failure to investigate his competence and bring his
competence to the attention of the district court, he must demonstrate by a
reasonable probability that he was incompetent to plead guilty. Theriot v.
Whitley, 18 F.3d 311, 313 (5th Cir. 1994).




                                       9
      Our conclusion that the district court’s finding that Dodge was
competent when he entered his pleas was not clearly erroneous disposes of his
claim of ineffective assistance of counsel. Dodge was not prejudiced because he
has failed to demonstrate a reasonable probability, sufficient to undermine
confidence in the outcome, that he was incompetent when he entered his pleas.
Because Dodge was not prejudiced, Dodge has failed to establish he received
ineffective assistance of counsel.

                                      IV

      Dodge has not established withdrawal of his pleas is necessary to correct
a manifest injustice. Therefore, the district court did not abuse its discretion
by denying Dodge’s application for post-conviction relief. The district court’s
order is affirmed.

      Gerald W. VandeWalle
      Jon J. Jensen, C.J.
      Daniel J. Crothers
      Jerod E. Tufte
      Lisa Fair McEvers




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