888 N.W.2d 743
N.D.2016Background
- Cheryl Pfeffer was convicted after a jury trial for delivery of a controlled substance and sentenced after the State sought sentence enhancement based on two prior convictions, producing a 20-year mandatory minimum rather than a 5-year minimum.
- At sentencing the court considered a Minnesota conviction whose stayed sentence had expired; Pfeffer’s counsel argued it should not count for enhancement but the court included it.
- Pfeffer’s trial counsel did not give written notice of the right to appeal, did not provide a copy of the final judgment, and did not explain appeal deadlines; the court likewise did not advise her of appeal rights under N.D.R.Crim.P. 32(a)(3).
- Pfeffer learned of the right to appeal months later and filed a handwritten notice after the deadline; this Court dismissed the untimely appeal.
- Pfeffer sought post-conviction relief alleging ineffective assistance of counsel for failing to advise and assist with appeal; the district court found counsel’s performance deficient but denied relief because Pfeffer did not show prejudice (i.e., she could not identify grounds that would have made an appeal likely to succeed).
- The Supreme Court reversed and remanded, holding the district court applied the wrong legal standard for prejudice and must apply the Flores-Ortega framework.
Issues
| Issue | Pfeffer's Argument | State's Argument | Held |
|---|---|---|---|
| Whether counsel’s failure to advise re: appeal constitutes deficient performance under Strickland/Flores-Ortega | Counsel failed to consult or advise in writing; this was objectively unreasonable and meets first prong | Trial counsel’s conduct may not automatically be deficient absent a showing under Flores-Ortega | Court accepted that counsel’s conduct met the first prong (State conceded at hearing) |
| Proper standard for prejudice when counsel fails to advise or file an appeal | Prejudice requires showing she would have timely appealed, not that an appeal would likely succeed | District court required proof that an appeal would likely have been successful | Reversed: prejudice analysis must follow Flores-Ortega — defendant need only show she would have appealed but for counsel’s failure |
| Effect of district court’s failure to advise of appeal rights under N.D.R.Crim.P. 32(a)(3) | Relief available if defendant shows prejudice by court’s omission (i.e., would have appealed and lacked independent knowledge) | District court required showing nonfrivolous grounds for appeal to show prejudice | Reversed: apply Flores-Ortega prejudice standard and assess whether defendant had independent knowledge of appeal rights |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishing two‑pronged ineffective assistance test)
- Roe v. Flores‑Ortega, 528 U.S. 470 (holding counsel has duty to consult about appeal when reasonable defendant would want to appeal; sets prejudice test for failure to consult)
- Peguero v. United States, 526 U.S. 23 (court’s failure to advise of appeal rights requires showing of prejudice)
- Wilson v. State, 2013 ND 124, 833 N.W.2d 492 (N.D. case applying Peguero; defendant must show prejudice for Rule 32(a) omission)
- Whiteman v. State, 2002 ND 77, 643 N.W.2d 704 (discussing Flores‑Ortega prejudice formulation)