               Filed 12/6/18 by Clerk of Supreme Court
                         IN THE SUPREME COURT
                     STATE OF NORTH DAKOTA


                                  2018 ND 264


Rocky Stein,                                               Petitioner and Appellant

      v.

State of North Dakota,                                   Respondent and Appellee


                                  No. 20180128


       Appeal from the District Court of Mercer County, South Central Judicial
District, the Honorable Thomas J. Schneider, Judge.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      Opinion of the Court by Jensen, Justice.

      Charles J. Sheeley, Fargo, ND, for petitioner and appellant.

      Jessica J. Binder, State’s Attorney, Stanton, ND, for respondent and appellee.
                                    Stein v. State
                                    No. 20180128


       Jensen, Justice.
[¶1]   Rocky Stein appeals from the district court’s order summarily dismissing his
petition for post-conviction relief. Stein seeks relief from the criminal judgment
entered following his plea of guilty to a charge of manslaughter. Stein asserts he
received ineffective assistance of counsel prior to his guilty plea. We affirm in part,
reverse in part, and remand this case for further proceedings on Stein’s petition for
post-conviction relief.
[¶2]   Stein was the driver of one of two vehicles involved in an accident that
occurred in September 2013. The driver of the other vehicle died as a result of
injuries sustained in the accident. Stein was subsequently charged with criminal
vehicular homicide.
[¶3]   While represented by counsel, Stein pleaded guilty to an amended charge of
manslaughter. Stein was sentenced to ten years’ imprisonment with three years
suspended for a period of five years. In his petition for post-conviction relief, Stein
alleged various errors made by his attorney.
[¶4]   The State moved the district court for dismissal or summary disposition of the
petition. Stein responded to the State’s motion by filing a personal affidavit, his
college transcripts, and his counseling treatment records. After reviewing the
materials provided by Stein and the change of plea transcript, the district court found
that Stein had failed to produce any reasonable inferences which raised genuine issues
of material fact regarding his attorney’s representation and granted the State’s request
for summary disposition.
[¶5]   A district 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. N.D.C.C. § 29-32.1-09(1); Johnson v. State, 2006 ND
122, ¶ 19, 714 N.W.2d 832; Heyen v. State, 2001 ND 126, ¶ 6, 630 N.W.2d 56. This
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Court reviews an appeal from summary denial of post-conviction relief as we would
review an appeal from a summary judgment. Johnson, at ¶ 19; Heyen, at ¶ 6. 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. Heyen, at ¶ 6. For summary
judgment purposes, the evidentiary assertions of the party opposing the motion are
assumed to be true. Dinger v. Strata Corp., 2000 ND 41, ¶ 14, 607 N.W.2d 886.
Ineffective assistance of counsel issues are mixed questions of law and fact, which are
fully reviewable on appeal. Heckelsmiller v. State, 2004 ND 191, ¶ 5, 687 N.W.2d
454.
[¶6]   Stein’s petition, although containing multiple allegations, can be summarized
as a contention that he was not provided with effective assistance of counsel. Stein
bears the burden of proving two elements or prongs to establish his claim that he
received ineffective assistance of counsel. Johnson, 2006 ND 122, ¶ 20, 714 N.W.2d
832 (citing Garcia v. State, 2004 ND 81, ¶ 5, 678 N.W.2d 568 and Strickland v.
Washington, 466 U.S. 668, 687-88 (1984) (providing the analytical framework for
ineffective assistance claims)). First, Stein must prove his attorney’s performance fell
below an objective standard of reasonableness. Johnson, at ¶ 20; Wright v. State,
2005 ND 217, ¶ 10, 707 N.W.2d 242. An attorney’s performance is measured
through consideration of the prevailing professional norms. Johnson, at ¶ 20. Stein
must overcome the strong presumption that his counsel’s representation fell within
the wide range of reasonable professional assistance, and courts must consciously
attempt to limit the distorting effect of hindsight. Wright, at ¶ 10; Laib v. State, 2005
ND 187, ¶ 9, 705 N.W.2d 845. Second, Stein must show that the attorney’s deficient
performance resulted in prejudice. Johnson, at ¶ 20; Wright, at ¶ 10. To establish
prejudice in the context of reviewing a plea of guilty, Stein “must show that 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.” Hill v. Lockhart, 474 U.S. 52, 59
(1985).
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[¶7]   Stein makes a number of allegations he contends satisfy the first prong of the
Strickland test; that his attorney’s performance fell below an objective standard of
reasonableness.    First, Stein argues his attorney failed to advise him of new
developments in the law which called into question the district court’s prior denial of
his motion to suppress the results of a blood test performed on blood collected without
his consent. Second, Stein alleges his attorney inappropriately expedited the guilty
plea after his attorney learned he would be leaving the Bismarck-Mandan Public
Defender’s Office. He argues that as a result of his case being expedited, he never
had a chance to review the presentence investigation report as required by law,
information regarding his physical and mental health was excluded from the
presentence investigation report, his counsel failed to provide a chemical dependency
evaluation and treatment reports to the court, insufficient time was spent developing
the time line of his physical health and therapy, his counsel failed to hire an expert to
explain Stein’s medical and mental health conditions, and he did not have adequate
time to consider the plea or its consequences. Third, Stein argues he was not
adequately advised of the consequences of pleading guilty. He claims his counsel
failed to inform him that a plea to a charge of manslaughter would require him to
serve at least 85 percent of any sentence of incarceration under N.D.C.C. §
12.1-32-09.1 and that he was erroneously led to believe there was a good chance he
would get only probation without any incarceration. The district court determined all
of Stein’s allegations failed to satisfy the first prong of the Strickland test.
[¶8]   This Court has previously recognized that when determining whether
summary disposition is appropriate on claims of ineffective assistance of counsel, the
record and transcripts are generally not adequate. Henke v. State, 2009 ND 117, ¶ 16,
767 N.W.2d 881 (citing Myers v. State, 2009 ND 13, ¶ 12, 760 N.W.2d 362).
However, our concern regarding a district court’s reliance only on the record has
generally been limited to allegations that allege incidents outside of the record. Id.
at ¶ 16. This Court has stated, “[a] petitioner may allege ineffective assistance of
counsel based on matters occurring outside the court record or transcript, and when
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appropriate, a district court should consider evidence of ineffective assistance of
counsel beyond the record.” Id. (quoting Ude v. State, 2009 ND 71, ¶ 15, 764 N.W.2d
419).
[¶9]    In the present case, the district court reviewed Stein’s allegations, compared
those allegations to the record and concluded Stein’s allegations were in direct
conflict with a clear and unambiguous record, and therefore Stein failed to satisfy the
first prong of the Strickland test. A majority of Stein’s assertions are contentions that
information was not entered into the record or that he was not provided information
which, had he been provided the information, would have changed his decision to
plead guilty.
[¶10] When a claim made in an application for post-conviction relief is clearly and
unambiguously contradicted by the record, summary disposition is appropriate. See
e.g., Howard v. State, 2015 ND 102, ¶¶ 11-12, 863 N.W.2d 203; see also Whiteman
v. State, 2002 ND 77, ¶ 22, 643 N.W.2d 704 (summary dismissal is appropriate when
the record conclusively contradicts the allegation). In summary, we agree with the
district court’s conclusions regarding the following allegations made by Stein: 1) that
during the sentencing hearing the parties clearly and unambiguously discussed the
prior denial of Stein’s motion to suppress the blood test, discussed the possibility of
an appeal of the denial of the motion to suppress in light of the recent developments
regarding warrantless blood tests, and that Stein wished to plead guilty and forego his
right to appeal; 2) that the parties waived the required ten-day period for reviewing
the presentence investigation report (“PSIR”), the PSIR included the physical and
mental health information that Stein claimed was excluded, the PSIR included a
history of Stein’s addiction(s), and that during the sentencing hearing, Stein and his
counsel both discussed “at length” Stein’s physical health and therapy; 3) Stein’s
assertion that he did not have adequate time to consider the plea or its consequences
is in direct conflict with the record, with the district court noting that Stein’s counsel
informed the court on June 15, 2016 that an agreement had been reached to the
amended charge of manslaughter, the State confirmed the agreement at a pretrial
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conference on July 8, 2016 and the change of plea hearing did not occur until July 25,
2016; and 4) the district court informed Stein of the potential consequences of
pleading guilty, including the minimum and maximum possible sentence of
incarceration, during the sentencing hearing. The district court did not err in
summarily disposing of Stein’s claims that he was not provided with particular
information or allowed to submit particular information when the record clearly and
unambiguously demonstrates the contrary.
[¶11] In addition to the above allegations, Stein’s application for post-conviction
relief asserted he was not informed he would be required to serve at least 85 percent
of any period of incarceration as provided by N.D.C.C. § 12.1-32-09.1. The district
court’s order does not address this allegation. No discussion of the “85 percent rule”
appears within the sentencing hearing transcript. Additionally, Stein contends that his
counsel told him he was likely to receive a sentence limited to probation.
[¶12] Failure to inform about the 85 percent service requirement is not per se
improper, but misinformation about the length of a sentence can be viewed as below
the objective standard of reasonableness. Sambursky v. State, 2006 ND 223, ¶¶
17-19, 723 N.W.2d 524. In Sambursky, this Court was faced with a summary
dismissal of a motion for post-conviction relief. Id. at ¶¶ 5-6. The defendant alleged
his attorney failed to inform him of the amount of time he would serve in conjunction
with his guilty plea. Id. at ¶ 18. When taken as true, this mistake raised a genuine
issue of fact under the first prong of the Strickland test. Id. at ¶¶ 20-21.
[¶13] To satisfy the prejudice requirement of the Strickland test, “the defendant must
show that 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.” Hill, 474 U.S. at 59.
In Sambursky, the defendant asserted in his affidavit that he would have insisted on
going to trial had he been properly informed about the sentence he would potentially
serve under a plea agreement. Sambursky, 2006 ND 223, ¶ 26, 723 N.W.2d 524.
When the defendant’s allegation was taken as true, that allegation satisfied the second


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prong of the Strickland test and this Court concluded the defendant was entitled to an
evidentiary hearing. Id.
[¶14] The facts of this case closely resemble those of Sambursky. Stein asserted to
the district court in his affidavit that he was not informed he would be required to
serve 85 percent of any period of incarceration imposed as part of his sentence and
that his sentence was likely to be limited to probation. Stein also stated in his
affidavit, “I would not have pled guilty had I . . . [understood] the implications of the
manslaughter plea . . . .” In granting the State’s request for summary dismissal of
Stein’s application for post-conviction relief, the district court did not address Stein’s
allegation he was not informed he would be required to serve 85 percent of any period
of incarceration imposed as part of his sentence, and that had he been informed of that
requirement, he would not have pled guilty.
[¶15] The district court properly granted summary dismissal of the majority of
Stein’s claims asserting ineffective assistance of counsel. However, the district court
erred in summarily dismissing Stein’s claims that he was not informed of the
requirement he serve at least 85 percent of any period of incarceration and that his
sentence would be limited to probation. Stein is entitled to an evidentiary hearing
regarding the allegations he was not informed he would be required to serve at least
85 percent of any period of incarceration and that his counsel told him his sentence
was likely to be limited to probation. The district court then should determine if Stein
met his burden under the Strickland test. We affirm in part, reverse in part, and
remand this case to the district court for further proceedings.
[¶16] Jon J. Jensen
      Lisa Fair McEvers
      Daniel J. Crothers
      Jerod E. Tufte
      Gerald W. VandeWalle, C.J.




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