               Filed 12/12/19 by Clerk of Supreme Court

                      IN THE SUPREME COURT
                      STATE OF N OR TH DAK OT A


                                2019 ND 291


Rocky Lynn Stein,                                     Petitioner and Appellant



         v.



State of North Dakota,                              Respondent and Appellee




                                No. 20190114


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

AFFIRMED.

Opinion of the Court by Crothers, Justice.

Russell J. Myhre, Enderlin, ND, for petitioner and appellant; submitted on
brief.

Jessica J. Binder, State’s Attorney, Stanton, ND, for respondent and appellee;
submitted on brief.
                               Stein v. State
                               No. 20190114

Crothers, Justice.

[¶1] Rocky L. Stein appeals from a district court order denying his
application for post-conviction relief. We affirm.

                                       I

[¶2] Stein was charged with criminal vehicular homicide, a class A felony,
and pled guilty to manslaughter, a class B felony. Stein entered an “open
plea” and the judge sentenced Stein to ten years with the North Dakota
Department of Corrections with three years suspended, and supervised
probation for five years.

[¶3] In his application for post-conviction relief Stein claims ineffective
assistance of counsel. The district court denied the application. Stein
appealed, and on December 6, 2018, this Court affirmed the summary
dismissal in part, reversed in part, and remanded for further proceedings.
Stein v. State, 2018 ND 264, 920 N.W.2d 477. This Court held Stein was
entitled to an evidentiary hearing regarding allegations he was not
informed he would be required to serve at least 85 percent of any period of
incarceration, and his counsel told him he would likely receive only
probation. Id. at ¶ 15. On remand, an evidentiary hearing was held and the
district court denied Stein’s application. Stein appeals.

[¶4] Stein argues the district court abused its discretion in denying his
application for post-conviction relief. Stein argues his trial attorney did not
adequately inform him he was subject to a mandatory minimum sentence


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requiring him to serve 85 percent of the sentence imposed and that his trial
attorney made assertions in the nature of a guarantee that he would serve
a probation only sentence. Stein also urges this Court to overrule
Sambursky v. State, 2008 ND 133, 751 N.W.2d 247, and State v. Peterson,
2019 ND 140, 927 N.W.2d 74, to the extent necessary, which he claims is
essential to ensure defendants are afforded sufficient information regarding
the 85 percent rule to make an intelligent decision affecting the ultimate
sentence in their criminal case.

                                      II

[¶5] Both parties state the standard of review is abuse of discretion.
However, our standard of review for factual findings is clearly erroneous.

      “‘Proceedings on applications for post-conviction relief are civil
      in nature and governed by the North Dakota Rules of Civil
      Procedure.’ Everett v. State, 2015 ND 149, ¶ 5, 864 N.W.2d 450.
      This Court does not review a district court’s decision on an
      application for post-conviction relief for abuse of discretion. We
      review a district court’s decision in a post-conviction proceeding
      as follows:
             ‘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). 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. Questions of law
             are fully reviewable on appeal of a post-conviction
             proceeding.’”

Saari v. State, 2017 ND 94, ¶ 6, 893 N.W.2d 764 (citing Broadwell v. State,
2014 ND 6, ¶ 5, 841 N.W.2d 750 (internal citations and quotation marks
omitted)).


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[¶6]   Stein argues the district court wrongly determined Stein’s trial
counsel sufficiently advised him of the 85 percent rule.

[¶7] 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.’”

Lindsey v. State, 2014 ND 174, ¶ 19, 852 N.W.2d 383 (citing Strickland v.
Washington, 466 U.S. 668, 688, 694 (1984)). “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.” Id. (internal citations
omitted); See Strickland, 466 U.S. at 687.

[¶8] “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.’” Lindsey, at ¶ 19 (citing Ernst v. State, 2004 ND
152, ¶ 10, 683 N.W.2d 891). The second prong is seldom satisfied by an
applicant’s subjective, self-serving statement that, with competent advice,
he would have insisted on going to trial. Booth v. State, 2017 ND 97, ¶ 9,
893 N.W.2d 186 (citing 3 Wayne LaFave, et al., Criminal Procedure
§ 11.10(d) (3rd ed. 2007)).

[¶9] Here, the district court found Stein failed to meet the first prong of
the Strickland test because trial counsel and Stein had a conversation about

                                       3
the 85 percent rule, and Stein testified he could assume what the 85 percent
rule meant. The district court also determined that even if the first prong
was met, Stein failed to show sufficient prejudice under prong two of
Strickland because he could not show “but for” counsel’s alleged errors he
would not have pled guilty and insisted on going to trial.

[¶10] “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 (citing 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.” Booth, 893 N.W.2d
at ¶ 8 (citing Garcia v. State, 2004 ND 81, ¶ 5, 678 N.W.2d 568 (quoting
Strickland, 466 U.S. at 697)).

[¶11] Stein argues had he been properly advised, he would have pled to the
class A felony instead of the class B felony. The State argues Stein has been
unclear as to what he would have done differently. The district court found
that even at the evidentiary hearing Stein was uncertain as to what he
would have done differently had he been informed of the 85 percent rule.

[¶12] The record supports the district court finding Stein failed to meet the
second Strickland prong. Throughout the hearing Stein was unclear what
he would do differently if he was informed of the 85 percent rule:

      “I’ve changed my view since then where if I was to go through
      it again, it would be a lot different situation how I’d handle it.
      ....
      I mean, it’s hard to say exactly what I would have chosen at
      that point in time.



                                      4
      Q. Would you have pled guilty knowing the State was asking
      for seven years on a non-parolable offense?
      A. No.
      Q. Would you have—what would you have done differently?
      A. At this point in time, it would probably have been the exact
      same thing with just being able to see parole after three years.”


When asked on cross-examination, “but you are saying, it’s hard to know
what I would have done. Is that a fair statement?” Stein responded, “Yeah,
in looking back, but it is a fair statement.”

[¶13] Stein argues he would have pled guilty to the class A felony, but
contradicted himself in the same statement. On cross-examination Stein
was asked:

      “Q. So I’m just wanting to clarify, you would have done the same
      thing with the A felony—
      A. Well, I—
      Q. —because you mentioned the three years?
      A. Yeah. I would have—I would have chosen or I would have
      tried to get a somewhat similar sentence like that.”


[¶14] The record supports the district court finding that Stein failed to show
“but for” counsel’s alleged errors he would not have pled guilty and insisted
on going to trial. Stein’s testimony demonstrates uncertainty what he would
have done if counsel would have advised him differently. Further, Stein did
not establish he would not have plead guilty and insist on going to trial.
Therefore, the district court was not clearly erroneous in finding Stein failed
to meet the second prong of the Strickland test.




                                       5
                                      III

[¶15] Stein argues the district court wrongly determined counsel
sufficiently informed him about the length of his sentence. The State argues
counsel did not actively misinform Stein about the length of his sentence
and his claim was properly denied by the trial court. The district court found
Stein was not actively misinformed on the length of his sentence. The
district court finding that Stein was not actively misinformed about the
length of his sentence was not clearly erroneous.

[¶16] This   Court   stated   in   Sambursky     v.   State,   that   providing
misinformation is not the same as failing to provide information at all. 2006
ND 223, ¶ 19, 723 N.W2d 524. The case was remanded for an evidentiary
hearing because Sambursky raised genuine issues of material fact on his
ineffective assistance of counsel claim. Id. at ¶ 20. The district court denied
Sambursky’s application for post-conviction relief and concluded trial
counsel had not actively misinformed him about the length of time he would
serve. Samburksy v. State, 2008 ND 133, ¶ 5, 751 N.W.2d 247. The district
court found Sambursky did not meet his burden regarding the first
Strickland prong. Id. This Court affirmed. Id. at ¶ 25.

[¶17] Here, after applying both Strickland prongs, the district court found
counsel did not actively misinform Stein about the length of his sentence.
The record supports the district court finding. Stein testified when he pled
guilty to manslaughter he did not know the State’s sentencing
recommendation, but understood that he “stood a chance to get anything
from zero to ten.” Because Stein understood the sentence range, the district
court was not clearly erroneous in finding Stein failed to meet the first
Strickland prong. Implicit in this ruling is that we decline Stein’s invitation


                                      6
to overrule Sambursky and Peterson so that we might reach a different
result.

[¶18] We have considered the remaining issues and arguments raised by
the parties and find them to be unnecessary to our decision or without merit.

                                     IV

[¶19] The district court was not clearly erroneous in finding Stein did not
meet the second Strickland prong because Stein was unclear as to what he
would have done differently had he known he would be required to serve 85
percent of his sentence. Further, the district court was not clearly erroneous
in finding Stein was not actively misinformed about the length of his
sentence and therefore failed to meet the first Strickland prong. We affirm
the district court order denying Stein’s application for post-conviction
relief.

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




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