[¶ 1] Larry Clark appealed from an order denying his application for post-conviction relief based on his claim of ineffective assistance of counsel. We affirm, concluding the district court did not err in failing to hold an evidentiary hearing on his application and did not err in holding Clark failed to demonstrate he received ineffective assistanсe from his trial attorney.
I
[¶ 2] In May 2003, a McLean County jury found Clark guilty of reckless endan
[¶ 3] Clark was subsequently released from incarceration and placed on probation. In September 2006, the State petitioned to revoke Clark’s probation, alleging he had committed aggravated assault in Minot. Following an evidentiary hearing in December 2006 during which Clark was represented by yet another attorney, the district court found Clark had violated the conditions of his probation and sentenced Clark to serve the remaining two years of his sentence on the 2003 reckless endangerment and aggravated assault conviction.
[¶ 4] On February 13, 2008, Clark, represented by the same attorney who represented him during the probation revocation proceedings, filed an application for post-conviction relief. Clark claimed he received ineffective assistance of counsel on the underlying conviction, citing 13 alleged instances of deficiencies in representation by his trial attorney. Clark requested thе court “vacate the judgment of conviction against him and order a new trial on the merits.” The application and brief were accompanied by an affidavit of a third party and copies of law enforcement reports about the incident leading to the conviction. In his brief in support of the application, Clark pointed out that “[t]hе transcripts of the jury trial and sentencing can be found in the court’s record” and he would “furnish a copy of that transcript to the court if the court deems it necessary.” Clark did not request an evidentiary hearing on his application for post-conviction relief.
[¶ 5] In its March 3, 2008, response to the application for post-conviction relief, the Stаte argued Clark had not received ineffective assistance of counsel and requested that “this petition be summarily dismissed.” Clark did not respond to the State’s brief, and on April 23, 2008, the district court denied Clark’s application. In its decision, the court stated, “I have reviewed the transcript in this matter and recall the trial,” and after addressing the alleged deficiеncies in representation concluded, “Clark has not demonstrated that he received ineffective assistance from” his trial attorney.
II
[¶ 6] Clark, represented by yet another attorney in this appeal, argues the district court erred in summarily dismissing his application for post-conviction relief without allowing him an opportunity for an evidentiary hearing.
[¶ 7] Thе Post-Conviction Procedure Act, N.D.C.C. ch. 29-32.1, does not require that an evidentiary hearing be held on an application for post-conviction relief when the parties do not request a hearing.
Owens did not request an evidentiary hearing on his first amended application. Instead, he specifically requested summary disposition in his favor. The State scheduled and notified Owens of a hearing date, but later withdrew the request, and served a copy of its withdrawal on Owens’ post-conviction counsel. As in Huber,529 N.W.2d at 183 , Owens’ “reliance upon that initial request by another party is misplaced, at best.” We conclude the trial court did not err in failing to hold an evidentiary hearing on the first amended application when the parties, to the court’s knowledge, had agreed no evidentiary hearing was necessary.
Owens, at ¶ 17.
[¶ 8] Neither Clark nor the State requested an evidentiary hearing on the application for post-conviction relief. New counsel on appeal inherits the strategies of prior counsel.
See, e.g., State v. Wiest,
[¶ 9] We also rejеct Clark’s assertion that the district court’s denial of his application for post-conviction relief constituted a summary disposition under N.D.C.C. § 29-32.1-09(1). Under N.D.C.C. § 29-32.1-11(2), “[i]f the court rules that the applicant is not entitled to relief, its order must indicate whether the decision is based upon the pleadings, is by summary disposition, or is the result of an evidentiary hearing.” Although the State requested summаry disposition, the district court’s decision does not indicate that it was intended as a summary disposition or that it was based solely on the pleadings. Rather, the court’s decision reflects that it was based on the court’s consideration of the transcript of the criminal trial and the documentary evidence Clark chose to present with his applicatiоn for post-conviction relief. The court made findings and conclusions on the various allegations of trial counsel’s deficiencies.
See
N.D.C.C. § 29-32.1-11(1) (“The court shall make explicit findings on material questions of fact and state expressly its conclusions of law relating to each issue presented.”). In effect, the procedure used in this case was tantamount tо an evidentiary
Ill
[¶ 10] Clаrk contends he received ineffective assistance of counsel from his trial attorney.
[¶ 11] The standard of review for a claim of ineffective assistance of counsel in a post-conviction proceeding is well established. In
Sambursky v. State,
Post-conviction relief proceedings are civil in nature and governed by the North Dakota Rules of Civil Procedurе. Flanagan v. State,2006 ND 76 , ¶ 9,712 N.W.2d 602 . Whether a petitioner received ineffective assistance of counsel is a mixed question of law and fact and is fully renewable on appeal. Klose v. State,2005 ND 192 , ¶ 10,705 N.W.2d 809 . Under N.D.R.Civ.P. 52(a), the district court’s findings of fact will not be disturbed on appeal unless 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 аny evidence, or if, although there is some evidence to support the finding, a reviewing court is left with a definite and firm conviction a mistake has been made.” Heckelsmiller v. State,2004 ND 191 , ¶ 5,687 N.W.2d 454 .
[¶ 12] A post-conviction relief applicant bears a “heavy burden” to prevail on an ineffective assistance of counsel claim:
“[A] defendant claiming ineffective assistance of counsel has a heavy burden of proving (1) counsel’s representation fell below an objective standard of reasonableness, and (2) the defendant was prejudiced by counsel’s deficient performance.” DeCoteau [v. State],1998 ND 199 , ¶ 6,586 N.W.2d 156 (citing Mertz v. State,535 N.W.2d 834 , 836 (N.D.1995)). “Effectiveness of counsel is measured by an ‘objective standard of reasonableness’ considering ‘prevailing professional norms.’ ” Lange v. State,522 N.W.2d 179 , 181 (N.D.1994) (quoting Strickland [v. Washington,466 U.S. 668 , 688,104 S.Ct. 2052 ,80 L.Ed.2d 674 (1984) ]). Thе defendant must first overcome the “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Stop pleworth v. State,501 N.W.2d 325 , 327 (N.D.1993) (quoting Strickland,466 U.S. at 689 ,104 S.Ct. 2052 ). “Trial counsel’s conduct is presumed to be reasonable and courts consciously attempt to limit the distorting effect of hindsight. Lange,522 N.W.2d at 181 .”
Patten v. State,
[¶ 13] At his trial, Clark testified that he was driving his motorcycle with his ten-year-old daughter as a passenger down a
[¶ 14] Clark’s allegations of ineffective assistance of counsel can be grouped into four categories. He claims his trial counsel failed to adequately prepare for the jury trial, failed to impeach Gerou, failed to introduce evidence and call witnesses to support his defense, and failed to object to hearsay statements made by a witness.
A
[¶ 15] Clark argues his trial attorney was not adequately prepared “for jury trial, including voir dire, opening statement, witness questioning, closing argument, jury instructions, and generally presenting applicant’s version of events and defense.” Clark claims his trial attorney did not interview defense witnesses, prepare defense witnesses to testify, or consult with him about preparing his defenses.
[¶ 16] Most of Clark’s allegations are conclusory and insufficient “to overcome the presumption that his attorney’s conduct falls within the wide range of reasonable professional assistance.”
State v. McLain,
[¶ 17] Addressing the alleged inadequate trial preparation of Clark’s attorney, the district court also said:
Clark suggests [his attorney] was not adequately prepared to question witnesses. In support of this argument, he argues that [his attorney] didn’t subpoena one witnеss until the second day of trial. He doesn’t indicate how subpoen-ing [sic] the witness the second day prejudiced him. He also argues that [his attorney] should have spent time preparing [Clark’s daughter] to testify. [Clark’s daughter] was only eleven years old, and had [his attorney] spent more time preparing her to testify, it might well have appeared he was coaching her.
[¶ 18] We conclude Clark has failed to establish that his trial attorney’s trial preparation fell below the objective standard of reasonableness or that he was prejudiced by the alleged deficient performance.
B
[¶ 19] Clark argues his trial attorney was ineffective because he failed to
[¶ 20] Whether Clark struck Gerou was not a contested issuе at trial. Clark testified and admitted that he hit Gerou in the head several times during the incident. In addressing Clark’s contention, the district court said:
Clark asserts [his attorney] should have cross-examined the victim more harshly to point out inconsistencies. Such cross-examination might have created more sympathy for the victim and the inconsistencies were not material to the charges against Clark. A reasonable trial attorney might well have proceeded as [his attorney] did.
“This Court does not second guess matters of trial strategy.”
Patten,
C
[¶ 21] Clark claims he received ineffective assistance of counsel because his trial attorney failed to introduce certain evidence and call certain witnesses in his defense.
[¶ 22] Clark submitted the affidavit of Kim Ekre, the foreman of the sand and gravel company employing Gerou at the time of the incident. Ekre stated in his аffidavit that “Gerou could not have been on his sixth or seventh load” of gravel when the incident occurred as Gerou had testified. He stated Gerou’s truck was not located “directly next to” a farm, but was parked “approximately 3/8 mile south” of the .farm. Ekre stated that, contrary to Gerou’s testimony, he did not blade the roads “every 15-18 truck loads.” He further stated Gеrou refused medical assistance after the incident.
[¶23] Trivial inconsistencies in testimony of the sand and gravel company employees concerning the actual work performed would have had little, if any, impeachment value. The precise location of where Gerou’s truck was stopped at the time of the incident was not relevant to any issue before the jury when Clark admitted hitting Gerou. Furthermore, it was uncontested that Gerou initially refused medical care at the scene of the incident. Ekre simply had nothing to offer in support of Clark’s defense.
[¶ 24] In response to Clark’s claim that his trial attorney should have called additional witnesses, the district court noted that “[n]one of those witnesses hаd direct knowledge of the incident between Clark and Gerou.” Although Clark claims that his trial attorney should have requested that Gerou be tested for drugs, the court said a request for a drug test “surely would have been denied if not related to the time of the incident.” Clark claims his trial attorney also should have introduced his motorcycle helmet in evidence to demоnstrate that he did not strike Gerou with the helmet, as Gerou claimed, because Gerou’s head injuries were not consistent with injuries that would have been inflicted with a helmet. Clark admitted striking Gerou. His trial attorney cannot be faulted for making a strategic decision to keep
[¶ 25] We cоnclude Clark has failed to establish his attorney’s performance was deficient in this regard.
D
[¶ 26] Clark contends he received ineffective assistance of counsel because his trial attorney did not object to hearsay statements made by a witness.
[¶ 27] Gerou testified that after the incident two people he encountered told him to “ ‘stop’ ” and thаt “I shouldn’t move any more.” Clark argues his trial attorney should have objected to this “inadmissible hearsay” because “the statements added credibility to Gerou’s testimony and indicated that Gerou had suffered severe injuries.” A trial attorney’s failure to object to hearsay testimony can be attributed to trial strategy.
State v. Schweitzer,
IV
[¶ 28] We conclude the district court’s findings of fact are not clearly erroneous, and Clark has failed to establish that his trial attorney’s representation fell below an objective standard of reasonableness or that Clark was prejudiced by counsel’s alleged deficient performance. The order denying Clark’s application for post-conviction relief is affirmed.