                Filed 6/27/19 by Clerk of Supreme Court
                         IN THE SUPREME COURT
                      STATE OF NORTH DAKOTA


                                   2019 ND 166


Nicholas Charles Morris,                                    Petitioner and Appellant

       v.

State of North Dakota,                                    Respondent and Appellee


                                   No. 20180369


      Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable Wade L. Webb, Judge.

       AFFIRMED.

       Opinion of the Court by McEvers, Justice.

       Erica M. Woehl, Bismarck, ND, for petitioner and appellant.

        Reid A. Brady (argued), Assistant State’s Attorney, Ryan J. Younggren (on
brief), Assistant State’s Attorney, and Nicholas Samuelson (appeared), third-year law
student, under the Rule on Limited Practice of Law by Law Students, Fargo, ND, for
respondent and appellee.
                                  Morris v. State
                                   No. 20180369


       McEvers, Justice.
[¶1]   Nicholas Charles Morris appeals from a district court order denying his
application for post-conviction relief. On appeal, Morris argues the district court
erred in denying his application for post-conviction relief because (1) accomplice to
commit murder is not a cognizable offense, and (2) he was deprived of his right to
effective assistance of counsel. He also argues he should be permitted to withdraw
his guilty plea. We affirm the district court’s order and hold accomplice to commit
murder is a cognizable offense, Morris was not deprived of his right to effective
assistance of counsel, and he has failed to show a manifest injustice warranting the
withdrawal of his guilty plea.


                                          I
[¶2]   In May 2015, Morris was involved in a physical altercation which resulted in
Joey Gaarsland’s death. Morris was charged with three counts of conspiracy to
commit aggravated assault and one count of murder. Attorney Nicholas Thornton
appeared on Morris’ behalf in some of the early proceedings but was never formally
retained. In July 2015, before the preliminary hearing, the State submitted a brief in
support of findings of probable cause and attached as an exhibit a letter written by
Morris directed to the State’s attorney, admitting to his involvement in the physical
altercation. On March 11, 2016, at the change of plea hearing, Morris entered Alford
pleas to charges in the amended information including one count of accomplice to
commit extreme indifference murder and two counts of conspiracy to commit
aggravated assault. Approximately one month before sentencing, Morris’ counsel,
Mark Blumer, moved to withdraw as counsel. The district court denied the motion.
Morris was sentenced on October 17, 2016.



                                          1
[¶3]   On November 17, 2017, Morris, acting on his own behalf, filed an application
for post-conviction relief, alleging ineffective assistance of counsel against Blumer,
judicial bias, and prosecutorial misconduct. The State answered on November 20,
2017, and asserted the affirmative defenses of res judicata and misuse of process. On
February 26, 2018, Morris filed a supplemental application for post-conviction relief
with the assistance of court-appointed counsel. The supplemental application argued
accomplice to commit extreme indifference murder is not a cognizable offense,
Morris received ineffective assistance of counsel (directed at both Thornton and
Blumer), Morris was deprived of his right to counsel when the district court denied
Blumer’s motion to withdraw as counsel, and Morris’ plea was not knowing and
voluntary. On March 27, 2018, the State responded, moving to dismiss all of Morris’
claims, arguing the claims were barred as an abuse of process and res judicata because
Morris failed to raise those arguments during the pendency of the criminal case or in
an appeal therefrom.
[¶4]   Post-conviction hearings were held in June and August 2018 where Blumer,
Thornton, and Morris testified, and several exhibits were admitted. On August 24,
2018, the district court issued an order denying Morris’ application for post-
conviction relief, concluding accomplice to murder is a cognizable offense, and
finding the greater weight of the evidence demonstrated Blumer and Thornton’s
representation did not fall below an objective standard of reasonableness. The court
further concluded Blumer’s motion to withdraw as counsel was properly denied, and
found the record demonstrated Morris knowingly, voluntarily, and intelligently
pleaded guilty to the amended information.
[¶5]   Morris appeals from the district court’s order denying his application for post-
conviction relief, arguing the court erred because (1) accomplice to commit murder
is not a cognizable offense, and (2) he was deprived his right to effective assistance
of counsel. He also argues he should be permitted to withdraw his guilty plea.




                                          2
                                           II
[¶6]   We review district court orders on applications for post-conviction relief as
follows:
               Post-conviction relief proceedings are civil in nature and
       governed by the North Dakota Rules of Civil Procedure. The petitioner
       bears the burden of establishing grounds for post-conviction relief.
       When we review a district court’s decision in a post-conviction
       proceeding, questions of law are fully reviewable. The district court’s
       findings of fact in a post-conviction proceeding will not be disturbed on
       appeal unless they are clearly erroneous under N.D.R.Civ.P. 52(a). 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.
Curtiss v. State, 2016 ND 62, ¶ 7, 877 N.W.2d 58 (citations omitted). “Construction
of a statute is a question of law, fully reviewable by this court.” Interest of M.M.,
2019 ND 64, ¶ 6, 924 N.W.2d 132.


                                          III
[¶7]   Morris claims accomplice to commit extreme indifference murder under
N.D.C.C. §§ 12.1-03-01(1)(b) and 12.1-16-01(1)(b) is not a cognizable offense. The
district court concluded accomplice to commit extreme indifference murder as
charged is a cognizable offense.       We summarily affirm under N.D.R.App.P.
35.1(a)(7). See Olson v. State, 2019 ND 135, ¶ 18 (holding accomplice to extreme
indifference murder is a cognizable offense).


                                          IV
[¶8]   Morris argues he was deprived of his right to effective assistance of counsel
from Thornton and Blumer.




                                           3
                                            A
[¶9]   We have summarized the Strickland test used to evaluate claims of ineffective
assistance of counsel as follows:
              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 (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, 2019 ND 135, ¶ 19 (quoting Everett v. State, 2015 ND 149, ¶ 7, 864 N.W.2d
450). “The district court’s findings of fact in a post-conviction proceeding will not
be disturbed on appeal unless they are clearly erroneous under N.D.R.Civ.P. 52(a).”
Thompson v. State, 2016 ND 101, ¶ 7, 879 N.W.2d 93. “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 [h]as been made.” Id.
“Questions of law are fully reviewable on appeal of a post-conviction proceeding.”
Id.


                                            1
[¶10] Morris argues Thornton was ineffective because he advised Morris to write and
send a letter to the State.
[¶11] The district court denied Morris’ post-conviction claim against Thornton on
the basis that Morris failed to satisfy the first prong of the Strickland test by failing

                                            4
to show Thornton’s performance fell below an objective standard of reasonableness.
The court noted that at the post-conviction hearing, Thornton testified that he only
appeared on behalf of Morris for the limited purpose of addressing bail, that he had
no recollection of telling Morris to write a letter to the State, and that doing so would
have been inconsistent with his habit, routine, and practice. Further, the court relied
on Thornton’s testimony that his habit, routine, and practice is to have clients
memorialize their version of events in a letter to Thornton, which he can use in plea
negotiations as he sees fit and that it would be incredibly inconsistent with his practice
to advise a client to confess to a prosecutor. The court noted Thornton’s testimony
that an exhibit showing an email exchange between him and Blumer reveals Thornton
suggested Morris write a letter to Blumer. The court’s findings are supported by the
record and we are not left with a definite and firm conviction a mistake has been
made. Accordingly, we affirm the district court’s finding on this ground.


                                            2
[¶12] Morris argues Blumer provided ineffective assistance of counsel due to (1) a
breakdown in attorney-client communication, (2) Blumer’s failure to explain the
terms of the plea agreement, (3) Blumer’s failure to explain the consequences of the
Alford plea, (4) Blumer’s failure to preserve the record and state Morris’ complaints
at the hearing on the motion to withdraw as counsel, and (5) Blumer’s failure to
timely move to withdraw Morris’ guilty plea.
[¶13] Ruling on Morris’ ineffective assistance of counsel claims against Blumer, the
district court found Blumer’s testimony credible and his representation was
reasonable. The court reiterated Blumer testified he discussed accomplice liability
with Morris in face-to-face interactions, he discussed Alford pleas with Morris, and
he explained what an Alford plea was before the change of plea hearing. Further, the
court noted Blumer testified he met with Morris personally 24 or 25 times, Blumer
and Morris discussed the charges “many, many times,” and Blumer did not coerce
Morris into accepting a plea agreement. Finally, the court noted that although Blumer

                                            5
could not recall discussing the 85 percent rule with Morris, the record indicated that
Blumer made Morris aware of the 85 percent rule in two letters relating to plea
negotiations sent by the State. The court also noted Morris failed to provide any
factual information for some of his claims. Ultimately, the court found that the
greater weight of the evidence supported a finding that Blumer’s representation was
reasonable, satisfying the first prong of the Strickland test. Additionally, the court
found Morris failed, under the second prong of the Strickland test, to show there was
a reasonable probability that, but for Blumer’s errors, he would not have pleaded
guilty.
[¶14] The district court did not specifically address whether Blumer’s failure to move
to withdraw Morris’ guilty plea amounted to ineffective assistance of counsel. Morris
argues he was prejudiced by Blumer’s failure to file the motion to withdraw his guilty
plea because the burden for withdrawing a plea increases when the motion is made
post-sentencing:
                  Under N.D.R.Crim.P. 32(d), the standard for a district court’s
          consideration of a defendant’s request to withdraw a guilty plea differs
          depending on when the motion to withdraw is made. A defendant has
          a right to withdraw a guilty plea before it is accepted by the court.
          After a guilty plea is accepted, but before sentencing, the defendant
          may withdraw a guilty plea if necessary to correct a manifest injustice,
          or, if allowed in the court’s discretion, for any “fair and just” reason
          unless the prosecution has been prejudiced by reliance on the plea.
          After a court has accepted a plea and imposed a sentence, a defendant
          cannot withdraw a plea unless the motion is timely and withdrawal is
          necessary to correct a manifest injustice.
State v. Lium, 2008 ND 33, ¶ 17, 744 N.W.2d 775 (citations omitted).
[¶15] Morris raises this theory of prejudice for the first time on appeal. He never
argued he was prejudiced by a change in burden from “fair and just” to “manifest
injustice,” and he also failed to provide evidence of a “fair and just” reason justifying
withdrawal of his plea. “The purpose of an appeal is to review the actions of the trial
court, not to grant the appellant an opportunity to develop and expound upon new
strategies or theories.” Beeter v. Sawyer Disposal LLC, 2009 ND 153, ¶ 20, 771


                                             6
N.W.2d 282. Because this argument presents a new theory, we decline to address it
on appeal.
[¶16] Because the district court’s findings on Blumer’s representation are not clearly
erroneous, we affirm the district court’s order denying relief on Morris’ claims of
ineffective assistance of counsel against Blumer.


                                            V
[¶17] Morris argues he must be permitted to withdraw his guilty plea based on his
above-discussed allegations of ineffective assistance of counsel, the lack of an
intelligible plea, and the incognizable charge of accomplice to commit extreme
indifference murder. He states a “fair and just” reason exists warranting the
withdrawal of his plea, but fails to supply further support explaining that statement
other than his allegations about his counsel and the crime charged. Because we have
concluded he did not receive ineffective assistance of counsel and accomplice to
extreme indifference murder is a cognizable offense, the only remaining basis for
relief is his assertion his plea was not intelligible.
[¶18] We review the district court’s post-sentencing decision on whether a manifest
injustice exists for withdrawal of a guilty plea for an abuse of discretion. State v.
Bates, 2007 ND 15, ¶ 6, 726 N.W.2d 595. 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). Lindsey v. State, 2014 ND 174, ¶ 16, 852 N.W.2d
383. “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. at ¶ 17. “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.
[¶19] The district court found Morris failed to show that a manifest injustice existed
necessitating the withdrawal of his guilty plea. The court relied on excerpts taken

                                            7
from the March 11, 2016 change of plea hearing wherein Morris agreed with the court
that (1) he was intelligently, knowingly, and voluntarily pleading guilty to the counts
charged in the amended information; (2) he had sufficient time to visit with his
attorney about the case, the evidence against him, and the strengths and weaknesses
of the State’s case; (3) he did not need more time to visit with his attorney; and (4)
following the court’s explanation of an Alford plea that there was a substantial
likelihood a fact finder would reasonably find him guilty. The court did not abuse its
discretion in finding no manifest injustice exists warranting the withdrawal of Morris’
guilty plea. We affirm the district court’s finding.


                                          VI
[¶20] Morris argues he was deprived of his constitutional right to effective assistance
of counsel when the district court denied Blumer’s motion to withdraw as his
attorney. There is no need to address this issue because we have already determined
that Morris has failed to show his counsel was ineffective. We have considered
Morris’ remaining issues and arguments and find them unnecessary to our decision
or without merit.


                                         VII
[¶21] For the reasons stated above, we affirm the district court’s order.
[¶22] Lisa Fair McEvers
      Daniel J. Crothers
      Jerod E. Tufte
      Jon J. Jensen
      Gerald W. VandeWalle, C.J.




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