State v. Cody, 2017 ND 147

Cody pled guilty to multiple charges including two counts of theft and related offenses stemming from stealing and damaging a 2001 GMC Sierra, damaging a city fence/sprinkler system, and damaging a BNSF rail line while fleeing police.
At a restitution hearing the State sought $20,888.45: $14,107.44 to Bohnet (vehicle repairs), $5,973.15 to City of Jamestown (fence and sprinkler/electrical), and $807.86 to BNSF.
Bohnet testified the truck had 300,000 miles, claimed a $10,000 value, and presented a Puklich Chevrolet estimate of $14,107.44; Puklich had stopped calculating once the vehicle was deemed totaled.
The City offered an estimate of $5,200 to replace 300 feet of chain link fence and $473.15 for sprinkler/electrical repairs; BNSF testified about rail-line damage.
Defense counsel objected to certain estimates but presented no independent estimates or evidence of Cody’s inability to pay; the district court found the repair cost for Bohnet’s truck was less than the diminution in value, declined restitution to BNSF, and ordered $13,455.78 in restitution to Bohnet and the City.
Cody appealed claiming ineffective assistance of counsel at the restitution hearing; the Supreme Court affirmed the restitution order but remanded to correct the criminal judgment’s restitution amount entries.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel was constitutionally ineffective at the restitution hearing	State: not directly arguing ineffectiveness; defended district court’s findings	Cody: Brand failed to rebut State estimates or present evidence of inability to pay, so representation was ineffective	Court: Record inadequate to show constitutional ineffectiveness; claim more properly raised in post-conviction proceedings; affirmed restitution order
Whether restitution amounts were supported by evidence	State: estimates and witness testimony supported amounts for Bohnet and City	Cody: objected to admissibility and sufficiency of estimates; argued risk of windfall	Court: district court reasonably credited State’s evidence and found no contradictory proof from defense; awarded restitution (excluding BNSF)
Whether BNSF restitution should be ordered	State: sought $807.86 for rail damage	Cody: contested sufficiency	Court: declined to order restitution to BNSF
Whether criminal judgment’s restitution entries matched court’s restitution order	State: N/A	Cody: noted discrepancy	Court: affirmed order but remanded to amend the criminal judgment to correct restitution amounts

Middleton v. State, 849 N.W.2d 196 (N.D. 2014) (standard on reviewing ineffective-assistance claims noted)
Hayek v. State, 689 N.W.2d 422 (N.D. 2004) (explains when ineffective-assistance claims should be raised post-conviction and review scope on direct appeal)
Causer v. State, 678 N.W.2d 552 (N.D. 2004) (ineffective-assistance claim principles)
Keener v. State, 755 N.W.2d 462 (N.D. 2008) (direct-appeal inadequacy can require post-conviction relief to develop record)
Schweitzer v. State, 735 N.W.2d 873 (N.D. 2007) (same principle regarding record development)
Strutz v. State, 606 N.W.2d 886 (N.D. 2000) (reversed-analysis showing inadequate record to evaluate counsel strategy)