Patterson v. State, 2016 ND 212

Darrius Patterson was convicted by jury (Oct 2013) of delivering cocaine within 1,000 feet of a school and sentenced to 28 years (Jan 2014).
Trial counsel filed notice of appeal and a Rule 35 motion; Pulkrabek was appointed as appellate counsel and filed Patterson’s appellate brief without raising a sentencing issue.
Patterson later sent a letter asserting his sentence violated N.D.C.C. ch. 19-03.1 and that he might be eligible for a suspended/deferred sentence under § 19-03.1-23.2 and State v. Murphy.
Pulkrabek advised Patterson that the sentencing issue could not be raised on appeal (believing the Rule 35 motion precluded it) and did not obtain the sentencing transcript; Court of Appeals affirmed the conviction (Oct 2014).
Patterson sought post-conviction relief alleging ineffective assistance of appellate counsel; district court found deficient performance but no prejudice because the trial court had exercised discretion in sentencing, so relief was denied.
Patterson appealed the denial; Supreme Court affirmed, holding Patterson failed to show a reasonable probability the appeal would have succeeded had the sentencing argument been raised.

Issue	Patterson's Argument	State's Argument	Held
Whether appellate counsel provided ineffective assistance by not arguing the sentencing issue under Murphy	Pulkrabek erred by not raising that the trial court lacked statutory authority to refuse deferred/suspended sentence; Patterson would have been first case-of-first-impression and remanded	Even if counsel erred, Patterson cannot show prejudice because the trial court exercised its discretion and denied suspension/deferment based on defendant’s record	Court: Counsel was deficient but Patterson failed prejudice prong; no reasonable probability of a different outcome

State v. Murphy, 855 N.W.2d 647 (N.D. 2014) (interprets N.D.C.C. § 19-03.1-23.2 to allow district court discretion to suspend/defer without requiring an equivalent prior offense)
State v. Ennis, 464 N.W.2d 378 (N.D. 1990) (appellate review of sentence is very limited; court cannot second-guess discretionary term within statutory range)
Ratliff v. State, 882 N.W.2d 716 (N.D. 2016) (standard for ineffective assistance of counsel; petitioner must show deficient performance and prejudice)
Syvertson v. State, 699 N.W.2d 855 (N.D. 2005) (post-conviction review standards; factual findings not disturbed unless clearly erroneous)