Opinion
20230364
05-16-2024
Alvin Henry Brown, Jr., Petitioner and Appellant v. State of North Dakota, Respondent and Appellee
Kiara C. Kraus-Parr, Grand Forks, ND, for petitioner and appellant. Beau M. Cummings, State's Attorney, Devils Lake, ND, for respondent and appellee.
Appeal from the District Court of Ramsey County, Northeast Judicial District, the Honorable Lonnie Olson, Judge.
Kiara C. Kraus-Parr, Grand Forks, ND, for petitioner and appellant.
Beau M. Cummings, State's Attorney, Devils Lake, ND, for respondent and appellee.
Opinion of the Court by Bahr, Justice, in which Chief Justice Jensen and Justices Crothers, McEvers, and Tufte joined. Justice Crothers filed an opinion concurring.
OPINION
BAHR, JUSTICE.
[¶1] Alvin Brown appeals from a district court order denying his amended application for postconviction relief. We conclude the court did not err in finding Brown was in official detention and that Brown did not establish the second prong of the Strickland test. We affirm.
I
[¶2] Brown pled guilty to two counts of endangerment of a child. The trial court sentenced Brown to five years, with three years suspended, and two years of supervised probation. Following his release from custody, the State filed a petition to revoke Brown's probation. At the revocation hearing, Brown admitted he committed the violations alleged in the State's petition. The court put Brown on an alcohol SCRAM bracelet, returned him to the jail (Lake Region Correctional Facility) at the Lake Region Law Enforcement Center, and set the matter for a 120-day review. The court ordered Brown to remain in custody at the Center until a spot was available at the halfway house (Lake Region Residential Reentry Center) of the Center. Three times the court told Brown that it would be another violation if he walked away from the halfway house:
To avoid confusion, we refer to the district court that heard Brown's postconviction relief application as the "district court." We refer to the district court that sentenced Brown on the underlying charges and revoked his probation as the "trial court."
THE COURT: Okay. If you want to try it, we will give you a shot, Mr. Brown. But it's a zero tolerance; so if there's any usage, or if he walks away. Certainly, if he walks away, that's, you know, another violation.
So just so you are aware, if you do walk away from the halfway house, that's another c felony on top of you. So that means they'll charge you again, and then, even if I give you the maximum penalty on these, you've still got another five years on top of that.
And I tell you that because you told me that, you know, "I want something to remind me to stay out of trouble," and that's why you wanted to be on the scram bracelet.
So if you walk away from the halfway house, that's an escape, and that's another five years maximum.
[¶3] Following the hearing, the trial court entered an order for 120 day review. After finding Brown violated the conditions of his probation, and that there was no reason "why sentence should not be pronounced," the order provided "the sentence which the Court shall impose upon the Defendant:"
JUDGMENT AND COMMITAL under Chapter 12.1-32 NDCC;
IT IS THE ORDER AND JUDGMENT of this Court that this matter be set for a 120 day review. The Defendant shall remain on supervised probation and is eligible for work search/work release, eligible to have an alcohol and drug evaluation, eligible to attend treatment and other programming deemed appropriate by his probation officer. The Defendant shall be on SCRAM with zero tolerance for alcohol or drug usage. The 120 day review hearing will be held December 1, 2022 at 8:30 a.m.
[¶4] Brown subsequently absconded from the Center. The State charged Brown with escape. Brown pled guilty to the escape charge.
[¶5] Brown filed a petition for postconviction relief. In his petition, Brown alleged "his conviction was invalid and his trial attorney was ineffective." The district court held a hearing, at which Brown and his attorney testified. The court denied the petition.
II
[¶6] "Postconviction relief proceedings are civil in nature and governed by the North Dakota Rules of Civil Procedure." Everett v. State, 2023 ND 243, ¶ 6, 1 N.W.3d 590 (quoting Bridges v. State, 2022 ND 147, ¶ 5, 977 N.W.2d 718). The standard of review for postconviction proceedings is clearly established:
A trial court's findings of fact in post-conviction relief proceedings will not be disturbed unless they are clearly erroneous. 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 it, a reviewing court is left with a definite and firm conviction that a mistake has been made. Questions of law are fully reviewable on appeal of a post-conviction proceeding.Kisi v. State, 2023 ND 226, ¶ 5, 998 N.W.2d 797 (quoting Olson v. State, 2019 ND 135, ¶ 7, 927 N.W.2d 444).
III
[¶7] Brown argues his counsel was ineffective because he did not challenge Brown's escape charge on the basis that Brown was not in official detention when he left the Center, meaning the State could not charge him with escape.
[¶8] This Court has explained an applicant's heavy burden when he seeks to withdraw his guilty plea based on a claim of ineffective assistance of counsel:
An applicant seeking to withdraw his plea based on a claim of ineffective assistance of counsel must surmount the Strickland test by showing: (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. This Court has stated:
When a defendant pleads guilty on the advice of counsel, the defendant may only attack the voluntary and intelligent character of the guilty plea. 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. 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.
An applicant for post-conviction relief bears a heavy burden to prevail on an ineffective assistance of counsel claim.Abdi v. State, 2021 ND 110, ¶ 10, 961 N.W.2d 303 (cleaned up).
[¶9] "To meet the second prong of the Strickland test in the context of a guilty plea, an applicant must establish 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." Abdi, 2021 ND 110, ¶ 12.
This standard requires a substantial, not just conceivable, likelihood of a different result. The petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances. This requires an examination and prediction of the likely outcome of a possible trial. The movant must allege facts that, if proven, would support a conclusion that the decision to reject the plea bargain and go to trial would have been rational, e.g., valid defenses, a pending suppression motion that could undermine the prosecution's case, or the realistic potential for a lower sentence.Bahtiraj v. State, 2013 ND 240, ¶ 16, 840 N.W.2d 605 (cleaned up).
[¶10] The district court made the following findings:
The written order did not specify that Brown be returned to the Lake Region Law Enforcement Center. The transcript of the proceeding of August 4, 2022, (copy attached) clearly indicates that [the trial court] ordered Brown to remain in custody until a spot is available in the halfway house of the Lake Region Law Enforcement Center.
. . . .
These clear findings and obvious order of incarceration pronounced by [the trial court] did not make it into the written Order for 120 day Review.
[¶11] The district court addressed Brown's argument under the second prong of the Strickland test. See Urrabazo v. State, 2024 ND 67, ¶ 13 ("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." (quoting Rourke v. State, 2018 ND 137, ¶ 6, 912 N.W.2d 311)). It wrote, "For the sake of argument, had [Brown's attorney] argued that Mr. Brown's incarceration did not constitute official detention, the argument would fail due to [the trial court's] August 4, 2022, oral findings and order of commitment to the law enforcement center with authorization for placement at the halfway house."
[¶12] In State v. Lonechild, 2023 ND 112, ¶ 8, 992 N.W.2d 4, this Court considered the issue of official detention. We stated: "[A] defendant can be placed into custody at a correctional facility for a probation violation, and that placement therein does not terminate or suspend a defendant's probation." Id. We further stated, "'Official detention' as defined by N.D.C.C. § 12.1-08-06(3)(b) precludes only 'supervision on probation' and 'constraint incidental to release.' The definition of 'official detention' does not preclude custody while on probation." Id.
[¶13] In an attempt to distinguish Lonechild, Brown argues he was not in official detention because the written order did not include language committing him to the Center. The district court noted, "The only difference between Brown's present case and Lonechild is that the written order committing Mr. Lonechild to the halfway house included that language, and Brown's written order did not include that language." Brown argues there is a discrepancy between the written order and the oral order, and the written order, which does not include the commitment language, controls.
[¶14] At the revocation hearing, the trial court ordered Brown into custody at the Center until a spot was available at the halfway house and informed him three times that if he walked away from the halfway house it would constitute escape. The district court found the trial court's oral pronouncement was an "obvious order of incarceration[.]" The district court further found that portion of the trial court's oral order did not make it into the written order.
[¶15] Citing City of Fargo v. White, 2013 ND 200, 839 N.W.2d 829, Brown argues there is a discrepancy between the trial court's oral and written orders, and the written order controls. White states: "When there is a discrepancy between a district court's oral and written orders, the written order controls and supersedes the ruling made from the bench." Id. at ¶ 3. However, addressing sentences, this Court has said an unambiguous sentence pronouncement controls over an ambiguous sentence, whether oral or written. State v. Alberts, 2019 ND 66, ¶ 10, 924 N.W.2d 96. Thus, when there is an ambiguity between two sentences, "the record must be examined to determine the district court's intent." State v. Rath, 2017 ND 213, ¶ 7, 901 N.W.2d 51 (quoting State v. Raulston, 2005 ND 212, ¶ 8, 707 N.W.2d 464); cf. Raulston, at ¶ 8 ("When a direct conflict exists between an unambiguous oral pronouncement of a sentence and the written judgment and commitment, federal precedent has held the oral pronouncement must control.").
[¶16] There is not a direct conflict between the trial court's oral and written orders. The court's written order stated Brown violated probation and ordered him to remain on supervised probation and a SCRAM bracelet. The court's oral pronouncement ordered Brown to remain in custody at the jail until there was a spot at the halfway house. Although part of the oral order did not make it into the written order, there is no conflict between the two orders. An individual can be in custody while on probation. Lonechild, 2023 ND 112, ¶ 8. Furthermore, the court's oral order recorded in the transcript is unambiguous-the court ordered Brown into custody and informed him he could be charged with escape if he left. The trial court's intent is clear from its unambiguous oral pronouncement.
[¶17] We conclude the district court's finding the revocation proceeding transcript shows the trial court ordered Brown to remain in custody at the Center until a spot was available in the halfway house is not clearly erroneous. The court's finding Brown was in official detention when he left the Center is not induced by an erroneous view of the law. Lonechild, 2023 ND 112, ¶ 8. We conclude the district court did not err in finding Brown was in official detention and that he did not establish the second prong of the Strickland test.
IV
[¶18] We have considered the parties' other arguments and conclude they are unnecessary for the decision or are without merit. We affirm.
[¶19] Jon J. Jensen, C.J., Daniel J. Crothers, Lisa Fair McEvers, Jerod E. Tufte, Douglas A. Bahr.
Crothers, Justice, concurring.
[¶20] I agree with the majority opinion and have signed it. I write separately to renew my concern about the trial court's use of the "120-day review hearing," which caused much of the uncertainty in this case about the immediate impact and finality of the court's order. See State v. Brown, 2023 ND 97, ¶¶ 16-20, 991 N.W.2d 65 (Crothers, J., specially concurring).
[¶21] Daniel J. Crothers.