                Filed 6/29/20 by Clerk of Supreme Court

                  IN THE SUPREME COURT
                  STATE OF NORTH DAKOTA

                                2020 ND 142

Michael Allen Truelove,                              Petitioner and Appellant
      v.
State of North Dakota,                              Respondent and Appellee

                                No. 20190388

Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable John C. Irby, Judge.

AFFIRMED.

Opinion of the Court by Jensen, Chief Justice.

Kiara C. Kraus-Parr, Grand Forks, ND, for petitioner and appellant.

Leah J. Viste, Assistant State’s Attorney, Fargo, ND, for respondent and
appellee.
                              Truelove v. State
                                No. 20190388

Jensen, Chief Justice.

[¶1] Michael Truelove appeals from an order dismissing his application for
post-conviction relief. Truelove alleges he received ineffective assistance of
counsel during his trial and requests his criminal judgment vacated. Truelove
first asserts that he did not consent to his counsel’s concession to the jury that
he struck the victim. Truelove’s second assertion is that he was coerced into
testifying at trial. Finally, Truelove asserts that there was a lack of effective
communication with his trial counsel. We affirm.

                                        I

[¶2] Truelove was charged with terrorizing, aggravated assault, gross sexual
imposition, and interference with a telephone during an emergency call.
During opening statements at the trial, Truelove’s trial counsel informed the
jury that Truelove would be testifying and that Truelove struck the victim.
Truelove’s trial counsel explained that Truelove would tell the jury his account
of the events and that Truelove used poor judgment when he struck the victim.
Truelove subsequently testified and during his testimony admitted to striking
the victim. The jury found Truelove guilty on all four charges.

[¶3] Truelove appealed his conviction. State v. Truelove, 2017 ND 283, 904
N.W.2d 342. Truelove challenged his conviction on the charge of gross sexual
imposition, arguing there was insufficient evidence in the record to support the
conviction. Id. ¶ 7. We affirmed the judgment convicting Truelove of gross
sexual imposition, finding the record contained sufficient evidence to support
the conviction. Id. ¶¶ 11-12.

[¶4] Following his direct appeal, Truelove applied for post-conviction relief.
A hearing was held on the application during which both Truelove and his trial
counsel testified. Truelove does not contest that he met with his trial counsel
several times leading up to the trial. Truelove did not dispute his trial
counsel’s testimony that during their first meeting, Truelove communicated
that he wanted the jury to hear his side of the story. Truelove did not dispute

                                        1
that during subsequent meetings Truelove and his trial counsel discussed
the circumstances surrounding the case and trial strategy. Truelove did not
dispute that although they disagreed on the admission of some evidence, they
did agree it was in Truelove’s best interest for Truelove to testify at the trial
and to concede to the other charges in an attempt to persuade the jury that he
did not commit the offense of gross sexual imposition. Truelove testified that
he felt he was coerced into following the trial strategy. However, Truelove
never informed his counsel that he did not want to testify or that he did not
want to concede to having struck the victim.

[¶5] The district court dismissed Truelove’s application for post-conviction
relief. The court found that Truelove’s trial counsel was not ineffective, and
that even if Truelove’s trial counsel had been ineffective, there was no
prejudice to Truelove. On appeal, Truelove claims he received ineffective
assistance of counsel during trial for three reasons. First, Truelove asserts his
counsel violated his personal right to decide the objective of the defense during
the opening statement when his trial counsel conceded to the jury that
Truelove struck the victim. Truelove argues the concession that he struck the
victim was effectively a concession that Truelove was guilty of committing
aggravated assault, one of the charged offenses. Second, Truelove asserts his
trial counsel violated his personal right to decide whether to testify when,
during the opening statement, his trial counsel stated that Truelove would
testify. Third, Truelove argues there was a lack of effective communication
with his attorney.

                                       II

[¶6] “The North Dakota Rules of Civil Procedure govern post-conviction relief
proceedings.” Edwardson v. State, 2019 ND 297, ¶ 8, 936 N.W.2d 376 (citing
Blackcloud v. State, 2018 ND 50, ¶ 5, 907 N.W.2d 758). “Whether a petitioner
received ineffective assistance of counsel is a mixed question of law and fact
and is fully reviewable on appeal.” Id. “Under N.D.R.Civ.P. 52(a), the district
court’s findings of fact will not be disturbed on appeal unless clearly
erroneous.” Id. “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


                                        2
there is some evidence to support the finding, a reviewing court is left with a
definite and firm conviction a mistake has been made.” Id. (citing Roe v. State,
2017 ND 65, ¶¶ 4-5, 891 N.W.2d 745).

[¶7] This Court applies the Strickland test in reviewing claims of ineffective
assistance of counsel, which requires Truelove to prove two prongs to establish
his claim. Edwardson, 2019 ND 297, ¶ 7, 936 N.W.2d 376 (citing Stein v. State,
2018 ND 264, ¶ 6, 920 N.W.2d 477); Strickland v. Washington, 466 U.S. 668,
687-88, 104 S. Ct. 2052, 80 L. Ed.2d 674 (1984) (providing the analytical
framework for ineffective assistance claims). Prong one requires Truelove to
prove his attorney’s performance fell below an objective standard of
reasonableness. Id. “An attorney’s performance is measured through
consideration of the prevailing professional norms.” Id. Truelove must provide
sufficient proof to overcome the strong presumption that his counsel’s
representation fell within the wide range of reasonable professional assistance,
and this Court is required to consciously attempt to limit the distorting effect
of hindsight. Id. Prong two requires Truelove to show that the attorney’s
deficient performance resulted in prejudice. Id. To meet the burden on the
prejudice prong, Truelove must show “that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Kalmio v. State, 2018 ND 182, ¶ 21, 915 N.W.2d 655
(quoting Strickland, 466 U.S. at 694). “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. To meet the prejudice
prong, Truelove must show there is a reasonable probability trial counsel’s
errors changed the result of the direct appeal. Id.

                                      III

[¶8] Relying on the United States Supreme Court decision McCoy v.
Louisiana, Truelove argues his trial counsel violated his right to decide the
objective of the defense by conceding guilt to the aggravated assault charge.
138 S. Ct. 1500, 200 L. Ed. 2d 821, 86 U.S.L.W. 4271 (2018). In McCoy, citing
to the Sixth Amendment of the United States Constitution, the United States
Supreme Court held that “[w]hen a client expressly asserts that the objective
of ‘his [defense]’ is to maintain innocence of the charged criminal acts, his


                                       3
lawyer must abide by that objective and may not override it by conceding guilt.”
Id. at 1509. We review claims that a defendant’s constitutional rights were
violated de novo. State v. Foster, 2020 ND 85, ¶ 9, 942 N.W.2d 829 (citing City
of Bismarck v. Sokalski, 2016 ND 94, ¶ 10, 879 N.W.2d 88).

[¶9] Truelove contends he is similarly situated to the defendant in McCoy and
his right to decide on the objective of the defense was violated by his trial
counsel. However, there are significant differences between the facts in McCoy
and the present case. In McCoy, the defendant objected to his counsel’s
proposed trial strategy of conceding guilt to the jury, and insisted to his counsel
that the objective of the defense was to maintain his innocence. 138 S. Ct. at
1506. In McCoy, when the defendant’s trial counsel began to concede the
defendant’s guilt during opening statements, the defendant protested to the
court that he did not agree with his counsel’s concession. Id. at 1506-07. The
record, in McCoy, indicated that defendant had objected to the trial strategy
and wanted to maintain his innocence. Id. at 1506-07.

[¶10] The statement of trial counsel at issue in this case was that Truelove had
struck the victim, not necessarily a definitive statement of guilt as was present
in McCoy. More importantly, the record here does not indicate Truelove
objected to the trial strategy or wanted to maintain his innocence to the
aggravated assault charge. The record indicates that Truelove, unlike the
defendant in McCoy, agreed with his trial counsel’s proposed strategy of
conceding that Truelove had struck the victim in an attempt to persuade the
jury that he was not guilty of the more serious charge of gross sexual
imposition. Truelove is second-guessing the original trial strategy. Because
Truelove agreed to the trial strategy of conceding he had struck the victim, this
case is distinguishable from McCoy and is more properly evaluated as an
assertion of ineffective assistance of counsel due to a choice of trial strategy.




                                        4
[¶11] Our precedent for evaluating whether a particular trial strategy
resulted in an ineffective assistance of counsel is well established: Trial
strategy is the attorney’s province and “[o]n appeal, we do not second guess
matters of trial tactics, such as the decision to call certain witnesses, hire
private investigators, or how to question certain witnesses.” Noorlun v. State,
2007 ND 118, ¶ 12, 736 N.W.2d 477 (citing State v. Austin, 2007 ND 30, ¶ 32,
727 N.W.2d 790). Matters of trial strategy and tactics are for trial counsel to
decide, not the appellate courts. Stoppleworth v. State, 501 N.W.2d 325, 328
(N.D. 1993). When trial counsel gives coherent and rational reasons for
proceeding the way he did at trial, we will not second-guess the trial strategy
and tactics of the attorney. DeCoteau v. State, 2000 ND 44, ¶ 12, 608 N.W.2d
240; see also State v. Wiplinger, 343 N.W.2d 858, 861 (Minn. 1984) (identifying
a defense counsel strategy to admit guilt makes sense “where the defense
attorney desires to admit that defendant is guilty of one of two charges in the
hope of increasing his credibility with the jury and increasing the chance that
the jury will acquit defendant on the other charge”).

[¶12] Truelove and his counsel discussed trial strategy on several occasions.
They discussed how the circumstances around the case made it a very difficult
case to defend. Both Truelove and counsel agreed that the trial strategy was
to have Truelove admit to the other charges in an attempt to persuade the jury
that he did not commit the gross sexual imposition. Truelove’s counsel gave
coherent and rational reasons for the trial strategy and we will not second-
guess the trial strategy and tactics of the attorney. The district court’s finding
that Truelove’s trial counsel was not ineffective is not clearly erroneous. The
pursuit of trial strategy which included a concession during opening
statements that Truelove had struck the victim did not fall below the standard
of reasonable professional assistance. The finding was not induced by an
erroneous view of the law, the finding is supported by the evidence in the
record, and we are not left with a definite and firm conviction a mistake has
been made.




                                        5
                                       IV

[¶13] Truelove argues his counsel violated his personal right to decide whether
to testify when his attorney coerced him into testifying by telling the jury
during opening statements that he would be testifying. “Criminal defendants
have a constitutional right to testify on their own behalf.” Ratliff v. State, 2016
ND 129, ¶ 3, 881 N.W.2d 233 (quoting State v. Antoine, 1997 ND 100, ¶ 5, 564
N.W.2d 637). Testifying is a personal right, and only the defendant may waive
it. Id. (citing Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312-13, 77
L.Ed.2d 987 (1983)). We review claims that a defendant’s constitutional rights
were violated de novo. State v. Foster, 2020 ND 85, ¶ 9, 942 N.W.2d 829.

[¶14] During Truelove’s meetings with his counsel prior to trial, they discussed
the prospect of Truelove testifying at trial. At the evidentiary hearing,
Truelove’s trial counsel testified as follows: “Truelove, from day one, made it
absolutely clear to me that he wanted the jury to hear his side of the story.”
Truelove’s counsel did not believe there was ever an issue of whether Truelove
should testify because he believed it was in Truelove’s best interest to testify
and Truelove never told him that he did not want to testify. Truelove does not
contend that he told his trial counsel he did not want to testify and does not
contend he ever expressed to his trial counsel that he no longer wanted to
testify.

[¶15] The determination of whether Truelove was coerced into testifying is a
question of fact. “The task of weighing the evidence and judging the credibility
of witnesses belongs exclusively to the trier of fact, and we do not reweigh
credibility or resolve conflicts in the evidence.” Odom v. State, 2010 ND 65,
¶ 12, 780 N.W.2d 666 (quoting Sambursky v. State, 2008 ND 133, ¶ 12, 751
N.W.2d 247). The district court considered Truelove and his trial counsel’s
testimony and found that Truelove’s counsel was not ineffective. The decision
of whether Truelove should testify was a matter of trial strategy and Truelove
failed to show his counsel’s representation fell below an objective standard of
reasonableness in the pursuit of that particular trial strategy. After our review
of the record, we conclude the court’s finding that Truelove’s trial counsel’s
representation did not fall below a standard of reasonable assistance was not


                                        6
clearly erroneous. The finding was not induced by an erroneous view of the
law, is supported by the evidence in the record, and we are not left with a
definite and firm conviction a mistake has been made.

                                        V

[¶16] Truelove argues that his trial counsel’s representation was ineffective
because of the lack of effective communication. Truelove argues the lack of
effective communication is shown by Truelove and his counsel’s disagreement
of what evidence to submit at trial and the timeliness of when he received
discovery. “Under N.D.R.Civ.P. 52(a), the district court’s findings of fact will
not be disturbed on appeal unless clearly erroneous.” Edwardson v. State, 2019
ND 297, ¶ 8, 936 N.W.2d 376. “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.” Id.

[¶17] Truelove met with trial counsel approximately thirteen times. Truelove
does not contest that he received the case discovery in a timely manner from
his trial counsel. The district court found Truelove’s counsel was not
ineffective. The finding was not induced by an erroneous view of the law, is
supported by the evidence in the record, and we are not left with a definite and
firm conviction a mistake has been made. The finding was not clearly
erroneous.

                                       VI

[¶18] The district court’s finding that Truelove’s counsel was not ineffective
was not clearly erroneous. The concession Truelove had struck the victim
made by Truelove’s counsel during opening statements was an agreed upon
trial strategy and that the pursuit of that particular trial strategy did not fall
below an objective standard of reasonableness. Truelove was not coerced into
testifying at trial, the decision to have Truelove testify was an agreed upon
trial strategy, and that the pursuit of that particular trial strategy did not fall
below an objective standard of reasonableness. There was effective
communication between Truelove and his counsel, and the representation


                                        7
provided to Truelove did not fall below an objective standard of reasonableness.
The district court’s order dismissing Truelove’s application for post-conviction
relief is affirmed.

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




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