927 N.W.2d 479
N.D.2019Background
- In June 2016 Randy Jensen pleaded guilty pursuant to a Rule 11(c) plea agreement in three criminal matters; several charges were dismissed. He later attempted to appeal but agreed to withdraw the appeals.
- Jensen filed successive post-judgment motions: Rule 35(b) motions for sentence reduction (denied), multiple motions to withdraw guilty pleas under Rule 11(d) (denied after hearings), and motions for credit for time served (denied).
- In March 2018 Jensen filed a pro se application for post-conviction relief alleging ineffective assistance of counsel as his sole ground. He later expanded the claim to allege counsel filed the Rule 35(b) motion without his consent and failed to communicate about exculpatory CD evidence during the Rule 11(d) proceedings.
- The State moved to dismiss based on res judicata, misuse of process, and statutory bar for claims of ineffective assistance of post-conviction counsel. The district court dismissed parts of the claim as barred and ultimately dismissed the entire application under N.D.C.C. § 29-32.1-09(2).
- The district court also initiated a vexatious-litigant pre-filing order under N.D. Sup. Ct. Admin. R. 58; the presiding judge issued the pre-filing order after Jensen offered only the response "I do not agree."
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Jensen's ineffective-assistance claim was barred by N.D.C.C. § 29-32.1-09(2) | Jensen: counsel who filed Rule 35(b) and Rule 11(d) motions was not "post-conviction" counsel because those motions arise under the Rules of Criminal Procedure, so the statutory bar does not apply | State: the claim alleges ineffective assistance of post-conviction counsel and is barred by § 29-32.1-09(2); related claims also precluded by res judicata/misuse of process | Held: claim is barred. Court concluded Jensen had no Sixth Amendment right to counsel for Rule 35(b) and the Rule 11(d) post-judgment motion here was not a "critical stage" or part of counsel-entitled stages warranting relief, so dismissal was proper |
| Whether a Rule 11(d) motion filed post-judgment is a "critical stage" entitling Jensen to constitutional counsel | Jensen: Rule 11(d) is a criminal-procedure matter, not a post-conviction act, so he was entitled to counsel and may challenge counsel's effectiveness | State: Rule 11(d) here is not a stage requiring constitutional counsel and even if treated as post-conviction, the statutory bar applies | Held: Not a critical stage in this case (motion was filed months after judgment and after dismissal of direct appeal); no right to Sixth Amendment or Rule 44(a) counsel attached, so ineffective-assistance claim fails |
| Whether a Rule 35(b) sentence-reduction motion implicates the Sixth Amendment right to counsel | Jensen: counsel's handling of Rule 35(b) can ground ineffective-assistance claim | State: Rule 35(b) is discretionary and not a critical stage; no right to counsel | Held: Rule 35(b) motions are discretionary and not a critical stage; no right to counsel, so no ineffective-assistance claim lies |
| Whether the district court abused discretion issuing a pre-filing vexatious-litigant order based on prior filings | Jensen: court improperly considered prior criminal filings; Rule 58 is overly broad as applied | State: Jensen failed to meaningfully contest the proposed order in district court | Held: Issue not preserved — Jensen only said "I do not agree" below; appellate court declined to consider the argument for the first time on appeal |
Key Cases Cited
- Lehman v. State, 847 N.W.2d 119 (N.D. 2014) (summary dismissal standard in post-conviction proceedings)
- Kalmio v. State, 915 N.W.2d 655 (N.D. 2018) (statutory bar to claims of ineffective assistance of post-conviction counsel)
- Stein v. State, 920 N.W.2d 477 (N.D. 2018) (review standard for summary denial of post-conviction relief)
- Gress v. State, 807 N.W.2d 567 (N.D. 2011) (treating a motion to withdraw guilty plea as an application for post-conviction relief in certain circumstances)
- Yost v. State, 855 N.W.2d 829 (N.D. 2014) (Sixth Amendment right to counsel applies at critical stages of prosecution)
- Rahn v. State, 736 N.W.2d 488 (N.D. 2007) (Rule 35(b) is discretionary and not appealable)
- Myers v. State, 891 N.W.2d 724 (N.D. 2017) (court will affirm for correct result even if wrong reasoning)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (standard for ineffective-assistance-of-counsel claims)