                Filed 7/22/20 by Clerk of Supreme Court

                 IN THE SUPREME COURT
                 STATE OF NORTH DAKOTA

                                2020 ND 156

Fabian Cabralas Harrison,                           Petitioner and Appellant
     v.
State of North Dakota,                             Respondent and Appellee



                               No. 20200070

Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable Douglas A. Bahr, Judge.

AFFIRMED.

Per Curiam.

Samuel A. Gereszek, Grand Forks, ND, for petitioner and appellant.

Julie A. Lawyer, State’s Attorney, Bismarck, ND, for respondent and appellee.
                              Harrison v. State
                               No. 20200070

Per Curiam.

[¶1] Fabian Harrison appealed from a district court order denying his
application for post-conviction relief. Following a jury trial, Harrison was
convicted of two A felony counts of Gross Sexual Imposition and two AA felony
counts of Gross Sexual Imposition for engaging in sexual acts with a minor.
Harrison was sentenced to the minimum mandatory twenty-years
incarceration followed by five years parole/probation. Harrison filed an
application for post-conviction relief alleging ineffective assistance of counsel.
Harrison contended his trial counsel failed to adequately explain a plea
agreement offered to him by the State to which Harrison would have pleaded
guilty and received a “time-served” sentence. Harrison also contended his trial
counsel did not contact witnesses Harrison provided to him.

[¶2] An evidentiary hearing was held on Harrison’s application. At the
hearing, Harrison testified he lied to his trial counsel that the acts leading to
the charges against him never occurred when they in fact had occurred.
Harrison also testified he lied during his testimony at trial that the acts
leading to the charges against him never occurred. Harrison testified that had
his trial counsel contacted the witnesses Harrison provided, Harrison’s trial
counsel would have learned that Harrison was lying and that Harrison did
engage in sexual acts with the victim. The district court determined Harrison
failed to establish he received ineffective assistance of counsel under
Strickland v. Washington, 466 U.S. 668 (1984), and denied Harrison’s
application.

[¶3] “To establish a defendant received ineffective assistance of counsel in the
context of plea bargains, the defendant must show that his counsel’s
representation fell below an objective standard of reasonableness and that the
outcome of the plea process would have been different with competent advice.”
Steinbach v. State, 2015 ND 34, ¶ 39, 859 N.W.2d 1 (citing Lafler v. Cooper,
566 U.S. 156, 163 (2012). To establish the prejudice prong of the Strickland
test, the defendant must show:


                                        1
      that but for the ineffective advice of counsel there is a reasonable
      probability that the plea offer would have been presented to the
      court (i.e., that the defendant would have accepted the plea and
      the prosecution would not have withdrawn it in light of
      intervening circumstances), that the court would have accepted its
      terms, and that the conviction or sentence, or both, under the
      offer’s terms would have been less severe than under the judgment
      and sentence that in fact were imposed.

Id. (quoting Lafler, at 164).

[¶4] In Steinbach, we affirmed the denial of an application for post-conviction
relief when Steinbach told his attorney he was not involved in the charged
crime and was not going to plead guilty to anything he did not do. Id. at ¶¶ 40-
41. We concluded “Steinbach failed to show that but for his counsel’s failure to
properly advise him on the plea he would have accepted the plea.” Id. at ¶ 41.

[¶5] Harrison told his trial counsel and maintained through trial that he did
not commit the acts for which he was charged. The district court did not clearly
err in denying Harrison’s application for post-conviction relief. We summarily
affirm under N.D.R.App.P. 35.1(a)(2).

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




                                       2
