               Filed 06/29/20 by Clerk of Supreme Court

                 IN THE SUPREME COURT
                 STATE OF NORTH DAKOTA

                               2020 ND 132

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



                               No. 20190408

Appeal from the District Court of Ward County, North Central Judicial
District, the Honorable Douglas L. Mattson, Judge.

AFFIRMED.

Opinion of the Court by VandeWalle, Justice.

Benjamin C. Pulkrabek, Mandan, ND, for petitioner and appellant.

Christopher W. Nelson, Assistant State’s Attorney, Minot, ND, for respondent
and appellee.
                              Kremer v. State
                               No. 20190408

VandeWalle, Justice.

      James Kremer appealed from a district court order denying his
application for post-conviction relief. Kremer argues he should be allowed to
withdraw his guilty pleas because he received ineffective assistance of counsel
and because the district court did not adhere to the procedure set forth in
N.D.R.Crim.P. 11. We affirm.

                                       I

      In 2014, FBI agents seized computers, hard drives, and other electronic
devices belonging to Kremer. Child pornography was found on some of the
devices. The agents interviewed Kremer regarding the devices and the explicit
material discovered on the devices. Kremer claimed ownership of the electronic
devices and acknowledged the explicit material found on them. In November
2015, Kremer entered into a stipulation with federal prosecutors in which
Kremer agreed to plead guilty to charges related to the matter in North Dakota
state court. Had Kremer not pleaded guilty in state court, the stipulation
stated prosecution of the matter would continue in federal court. Kremer was
facing a 15 year minimum mandatory sentence if convicted in federal court.

       Kremer was charged in state district court with five counts of possession
of certain materials prohibited. Kremer’s counsel negotiated an agreement
with the State in which Kremer would plead guilty to three counts, receive a
sentence of ten years imprisonment followed by three years of supervised
probation, and two counts would be dismissed. On February 25, 2016, a change
of plea hearing was held in state district court. At the hearing, Kremer entered
guilty pleas in accordance with the federal stipulation and state plea
agreement.

      In July 2018, Kremer filed his application for post-conviction relief.
Kremer sought to withdraw his guilty pleas claiming he received ineffective
assistance of counsel and the court “did not inform Kremer of the possibility of
restitution, did not insure that Kremer’s plea was voluntary, did not obtain a

                                       1
factual basis for the plea, and did not get any acknowledgement by [Kremer]
regarding the facts.” After an evidentiary hearing was held, the district court
denied Kremer’s application.

                                        II

       “Generally, when a post-conviction relief applicant seeks to withdraw a
guilty plea, the district court looks to whether relief is necessary to correct a
‘manifest injustice.’” Lindsey v. State, 2014 ND 174, ¶ 16, 852 N.W.2d 383
(citing Moore v. State, 2013 ND 214, ¶ 10, 839 N.W.2d 834). “When a defendant
applies for post-conviction relief seeking to withdraw a guilty plea, we . . . treat
the application as one made under N.D.R.Crim.P. [11](d).” Id. “Withdrawal is
allowed when necessary to correct a manifest injustice.” Id. We review a
district court’s denial of a motion to withdraw a guilty plea under an abuse of
discretion standard. State v. Peterson, 2019 ND 140, ¶ 6, 927 N.W.2d 74 (citing
State v. Feist, 2006 ND 21, ¶ 22, 708 N.W.2d 870). “A district court abuses its
discretion when it acts in an arbitrary, unreasonable, or capricious manner, or
misinterprets or misapplies the law.” Id.

       “When a defendant pleads guilty on the advice of counsel, the defendant
‘may only attack the voluntary and intelligent character of the guilty
plea.’” Lindsey, 2014 ND 174, ¶ 17, 852 N.W.2d 383 (quoting Damron v.
State, 2003 ND 102, ¶ 9, 663 N.W.2d 650). “Unless a defendant can prove
‘serious derelictions’ on the part of the defendant’s attorney that kept a plea
from being knowingly and intelligently made, the defendant will be bound by
that guilty plea.” Id. (citing Damron, at ¶ 13). “In criminal cases, the defendant
has the burden to present evidence to overcome the presumption that defense
counsel is competent and adequate, and to do so, the defendant must point ‘to
specific errors made by trial counsel.’” Id. (quoting Damron, at ¶ 13).

                                        A

     Kremer argued he should be allowed to withdraw his guilty pleas
because he received ineffective assistance of counsel leading to his guilty pleas.




                                         2
        “Whether a petitioner received ineffective assistance of counsel is a
mixed question of law and fact and is fully reviewable on appeal.” Kalmio v.
State, 2019 ND 223, ¶ 7, 932 N.W.2d 562 (quoting Kalmio v. State, 2018 ND
182, ¶ 13, 915 N.W.2d 655). “A trial court’s findings of fact in a post-conviction
proceeding will not be disturbed on appeal unless clearly erroneous under
N.D.R.Civ.P. 52(a).” Stein v. State, 2019 ND 291, ¶ 5, 936 N.W.2d 389 (quoting
Saari v. State, 2017 ND 94, ¶ 6, 893 N.W.2d 764). A finding 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 it, a reviewing court
is left with a definite and firm conviction a mistake has been made. Id.

      The framework for evaluating ineffective assistance of counsel claims 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).

Lindsey, 2014 ND 174, ¶ 19, 852 N.W.2d 383. “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.” Booth v. State, 2017 ND 97, ¶ 8, 893
N.W.2d 186 (quoting Osier v. State, 2014 ND 41, ¶ 11, 843 N.W.2d 277). “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.
(quoting Garcia v. State, 2004 ND 81, ¶ 5, 678 N.W.2d 568).

      “The two-part Strickland test ‘applies to challenges to guilty pleas based
on ineffective assistance of counsel.’” Booth, 2017 ND 97, ¶ 7, 893 N.W.2d 186
(quoting Bahtiraj v. State, 2013 ND 240, ¶ 9, 840 N.W.2d 605). “The first prong
is measured using ‘prevailing professional norms,’ 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.” Stein, 2019 ND

                                         3
291, ¶ 7, 936 N.W.2d 389 (quoting Lindsey, at ¶ 19). “The second prong of the
Strickland test is satisfied in the context of a guilty plea 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. “To
establish prejudice under Strickland in a plea bargain situation, the petitioner
must allege facts that, if proven, would support a conclusion that rejection of
the plea bargain would have been rational because valid defenses existed, a
suppression motion could have undermined the prosecution’s case, or there
was a realistic potential for a lower sentence.” Booth, at ¶ 9 (citing Bahtiraj, at
¶ 16). “No court is satisfied with a defendant’s subjective, self-serving
statement that, with competent advice, he would have insisted on going to
trial.” Id.; Stein, at ¶ 8.

       Kremer argues his attorney failed to inform him of the elements of the
crimes he pleaded guilty to, and that had he known the essential elements of
the crimes charged, he never would have pleaded guilty in state court. The
district court found Kremer failed to prove the second prong of the Strickland
test because Kremer faced a “significantly longer sentence of incarceration if
convicted in federal court.” On appeal, Kremer acknowledges he was facing a
minimum mandatory 15 year sentence if convicted in federal court. By
agreeing to plead guilty in state court and receive a 10 year sentence, the court
found “Kremer weighed his options and selected what he believed to be [an]
advantageous option.” The court’s findings are supported by the evidence in
the record and are not clearly erroneous.

       The district court’s findings are bolstered by our review of the record.
After reviewing the entire record, there is nothing other than Kremer’s self-
serving statements made on appeal to indicate that he would not have pleaded
guilty and would have insisted on going to trial. Kremer did not offer such
testimony at the post-conviction hearing. At the post-conviction hearing,
Kremer’s counsel argued the district court at the change of plea hearing never
asked Kremer whether he knowingly possessed the explicit materials found on
his computers. Kremer’s counsel’s argument is the only indication in the record
of what Kremer contends his potential defenses were. Kremer himself never
testified to what he believed his defenses were. Likewise, there is no evidence

                                        4
in the record to suggest there was a realistic potential for a lower sentence in
either state or federal court had Kremer not pled guilty.

       Kremer has failed to establish he was prejudiced by his counsel’s alleged
deficient performance. Because Kremer has failed to establish the second
prong of the Strickland test, we do not address whether his counsel’s
performance was deficient.

                                      B

      Kremer argues he should be allowed to withdraw his guilty pleas because
the district court did not comply with N.D.R.Crim.P. 11(b)(1)(F), 11(b)(3), and
11(b)(4)(A).

      “The provisions of N.D.R.Crim.P. 11 ‘are mandatory and substantial
compliance is required to ensure a defendant knowingly and voluntarily enters
a guilty plea.’” Peterson, 2019 ND 140, ¶ 6, 927 N.W.2d 74 (quoting State v.
Yost, 2018 ND 157, ¶ 17, 914 N.W.2d 508). “The purpose of the procedure
outlined in Rule 11(b) is to ensure that the defendant is fully aware of the
consequences of a guilty plea before he enters his plea.” Id. “[A]lthough
N.D.R.Crim.P. 11 does not require ritualistic compliance, a court must
substantially comply with the rule’s procedural requirements ‘to ensure a
defendant is entering a voluntary and intelligent guilty plea.’” State v.
Abuhamda, 2019 ND 44, ¶ 10, 923 N.W.2d 498 (quoting State v. Trevino, 2011
ND 232, ¶ 8, 807 N.W.2d 211).

                                       1

      Rule 11(b)(1)(F), N.D.R.Crim.P., requires the court inform the defendant
of and determine that the defendant understands “the nature of each charge
to which the defendant is pleading.” The post-conviction court found the court
substantially complied with Rule 11(b)(1). At the change of plea hearing, the
following exchange took place between Kremer and the court:

      THE COURT:              All right. Do you have the Information?
                              Mr. Kremer, I have the document entitled



                                       5
                               Information. You have that in front of you;
                               correct?

      THE DEFENDANT:           Yes.

      THE COURT:               And you are James Richard Kremer; is
                               that correct?

      THE DEFENDANT:           Yes.

      THE COURT:               And this is all essentially the same type of
                               count, Counts 1 through 5. Are you able to
                               read and understand those counts?

      THE DEFENDANT:           Yes.

      THE COURT:               And we can waive a formal reading?

      THE DEFENDANT:           Yes.

      THE COURT:               All right. As I say, all Counts 1 through 5
                               are essentially the same count. They are
                               possession of prohibited materials. And as
                               has been discussed, it’s child pornography.
                               Do you understand the charge?

      THE DEFENDANT:           Yes.

      THE COURT:               In each of these five counts?

      THE DEFENDANT:           Yes.

The court informed Kremer of and determined he understood the nature of
each charge to which he was pleading. The post-conviction court did not err in
concluding the district court substantially complied with Rule 11(b)(1) at the
change of plea hearing.

                                       2

      Rule 11(b)(3) requires the court to determine that there is a factual basis
for the plea. To establish a factual basis for the plea, the court must ascertain
“that the conduct which the defendant admits constitutes the offense charged


                                       6
in the indictment or information or an offense included therein to which the
defendant has pleaded guilty.” Froistad v. State, 2002 ND 52, ¶ 19, 641 N.W.2d
86 (quoting Libretti v. United States, 516 U.S. 29, 38 (1995)). “The court
accepting the plea should compare the elements of the crime charged to the
facts admitted to by the defendant.” Id. (citing 24 James Wm. Moore, et al.,
Moore’s Federal Practice § 611.08[1] (3d ed. 2001)). A district court “may
conclude that a factual basis exists from anything that appears in the record.”
Mackey v. State, 2012 ND 159, ¶ 13, 819 N.W.2d 539 (quoting United States v.
Mastrapa, 509 F.3d 652, 660 (4th Cir. 2007)); see Froistad, at ¶ 21.

      At the beginning of Kremer’s change of plea hearing, the State offered
the following information to the court:

            In 2013, members of the FBI executed a search warrant on
      Mr. Kremer’s residence and located I believe an external hard
      drive that contained 197 files of child pornography, including two
      videos, which I believe count as 75 images individually.
            Mr. Kremer initially denied that he knew what he was
      looking for. However, in the discovery that the State has provided,
      Mr. Kremer’s searches were particularly on point for finding child
      pornography on the black web and uTorrent using specific code
      words, as alleged in the Complaint, through the descriptions and
      hash values of these images they contained graphic portrayals of
      minors. I believe, according to the discovery, like I mentioned, that
      has been provided, these minors were prepubescent, some
      appeared to be as young as three years old, being both orally and
      vaginally penetrated.

After these remarks by the State, Kremer waived his preliminary hearing.
After Kremer pled guilty, the court determined there was an adequate factual
basis to accept Kremer’s pleas:

      THE COURT:               You earlier heard Ms. Pierson outline
                               some of the reasons for the plea as it was
                               given here, the plea agreement that was
                               given here. That they found a hard drive
                               that contained numerous images of child
                               pornography including some videos. You
                               heard all that, correct?

                                       7
      THE DEFENDANT:           Correct.

      THE COURT:               And, Ms. Pierson, would that have been
                               your factual basis in support of the guilty
                               pleas in this matter?

      MS. PIERSON:             More or less, Your Honor.

      ....

      THE COURT:               The Court will find that there is an
                               adequate factual basis to accept the
                               Defendant’s plea.

In addition, present in the record is an affidavit of FBI agent Snyder
specifically detailing the materials found on Kremer’s computers, how these
materials were likely obtained, and statements made by Kremer regarding the
materials. Based on the information provided by the State at the change of plea
hearing and the affidavit of FBI agent Snyder, the district court did not err in
finding there was an adequate factual basis for Kremer’s guilty pleas. The
district court complied with Rule 11(b)(3).

                                          3

      Rule 11(b)(4) states:

      (4) Acknowledgement by Defendant. Before entering judgment on
      a guilty plea, the court must determine that the defendant either:

             (A) acknowledges facts exist that support the guilty plea; or

             (B) while maintaining innocence, acknowledges that the
             guilty plea is knowingly, voluntarily and intelligently made
             by the defendant and that evidence exists from which the
             trier of fact could reasonably conclude that the defendant
             committed the crime.

Rule 11(b)(4) was adopted in 2014 and “requires the court to obtain an
acknowledgement from the defendant on whether the defendant is admitting
guilt, or instead is maintaining innocence but pleading guilty because evidence
exists from which the trier of fact could reasonably conclude the defendant

                                          8
committed the crime.” N.D.R.Crim.P. 11(b)(4) (explanatory note). The latter
instance is more commonly known as an Alford plea. North Carolina v. Alford,
400 U.S. 25 (1970). Kremer did not enter Alford pleas, so subsection (B) is
inapplicable here. Therefore, the district court was required to obtain an
acknowledgement from Kremer on whether he was admitting guilt.

     After entering his guilty pleas, the following exchange took place
between the district court and Kremer:

      THE COURT:               You earlier heard Ms. Pierson outline
                               some of the reasons for the plea as it was
                               given here, the plea agreement that was
                               given here. That they found a hard drive
                               that contained numerous images of child
                               pornography including some videos. You
                               heard all that, correct?

      THE DEFENDANT:           Correct.

The post-conviction court found that “[b]y acknowledging he heard the factual
basis and making his guilty plea, Kremer acknowledged facts exist that
support the guilty plea necessary for the Court to substantially comply with
Rule 11(b)(4), N.D.R.Crim.P.” Although we would have preferred a more
definitive acknowledgement by Kremer that facts existed to support his plea,
we agree with the post-conviction court’s finding that the court substantially
complied with Rule 11(b)(4) by receiving an acknowledgment from Kremer that
he heard the factual basis outlined by the State’s Attorney.

                                       C

       Kremer failed to establish he received ineffective assistance of counsel or
that the district court failed to substantially comply with N.D.R.Crim.P. 11.
Therefore, Kremer failed to prove his guilty pleas were not knowingly or
intelligently entered into. The post-conviction court did not abuse its discretion
in finding a manifest injustice did not exist to allow Kremer to withdraw his
guilty pleas.




                                          9
                                     III

      The remaining arguments raised by the parties are either without merit
or unnecessary to the outcome of our decision.

                                     IV

     The district court’s order is affirmed.

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




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