[¶ 1] Darrius Patterson appeals from a district court order and judgment denying his application for post-conviction relief. Patterson argues the district court erred denying his application because he received ineffective assistance of appellate counsel. We affirm.
I
[¶ 2] In October 2013 a jury found Patterson guilty of delivering cocaine within 1,000 feet of a school. In January 2014 Patterson was sentenced to 28 years in the North Dakota Department of Corrections. On February 7, 2014, Patterson’s trial counsel filed a notice of appeal and a Rule 35 request to reduce sentence. Attorney Ben Pulkrabek was appointed to represent Patterson on appeal. The district court denied Patterson’s Rule 35 request.
[¶ 3] On May 5, 2014, Pulkrabek filed Patterson’s appellate brief. Pulkrabek testified he did not recall, prior to filing the brief, having any contact with Patterson regarding the issues for appellate review. On May 6, 2014, Pulkrabek received a letter from Patterson requesting trial transcripts and a document titled “Sentence Appeal,” in which Patterson argued his sentencing was in violation of N.D.C.C. §§ 19-03.1-23 and 19-03.1-23.1(l)(a) because his trial counsel failed to object to the admission of two out-of-state convictions for possessing controlled substances. Patterson testified he wanted to argue he could be eligible for a suspended or deferred sentence under N.D.C.C. § 19-03.1-23.2 and
State v. Murphy,
[¶ 4] Pulkrabek met Patterson in person on June 23, 2014. At the meeting Pulkrabek advised Patterson the sentencing issue could not be raised on appeal because N.D.C.C. Ch. 19-03.1 was not addressed at the sentencing hearing. Pul-krabek did not request a transcript of the sentencing hearing. Pulkrabek believed a Rule 35 request reducing sentence precludes a determination of sentencing on appeal. This Court affirmed Patterson’s conviction on October 28, 2014.
State v. Patterson,
[¶ 5] In May 2015 Patterson applied for post-conviction relief arguing he received ineffective assistance of appellate counsel because Pulkrabek did not argue sentencing, the trial court erred in sentencing by failing to consider he may be eligible for a deferred or suspended sentence under N.D.C.C. § 19-03.1-23.2 and he received ineffective assistance of trial counsel. An evidentiary hearing was held and the district court denied Patterson’s application for post-conviction relief. The district court found Patterson’s appellate counsel fell below the objective standard of reasonableness because Pulkrabek’s advice regarding the ability to raise the issue of sentencing on appeal was erroneous. However, the district court found no reasonable probability existed that Patterson’s appeal would have been decided differently even if the sentencing issue was argued. Accordingly, the district court held Patterson failed to demonstrate he was entitled to post-conviction relief. Patterson appeals.
II
[¶6] Patterson argues the district court erred denying his application
“Post-conviction relief proceedings are civil in nature and are governed by the North Dakota Rules of Civil Procedure. In post-conviction relief proceedings, a district court’s findings of fact will not be disturbed unless they are clearly erroneous under N.D.R.Civ.P. 52(a). A finding of fact is clearly erroneous if it is induced by an erroneous view of. the law, if it is not supported by the evidence, or if, although there is some evidence to support it, a reviewing court is left with a definite and firm conviction that a mistake has been made. Questions of law are fully reviewable on appeal of a post-conviction proceeding.”
Syvertson v. State,
[¶ 7] “To prevail on a postconviction claim of ineffective assistance of counsel, the petitioner has the heavy burden of proving ‘(1) counsel’s representation fell below an objective standard of reasonableness,- and (2) the petitioner was prejudiced by counsel’s deficient performance.’ ”
Ratliff v. State,
[¶ 8] The district court found error in Pulkrabek’s belief that Patterson’s Rule 35 motion to reduce sentence precluded him from raising the issue on appeal. “Our appellate review of a criminal sentence is very limited.”
State v. Ennis,
[¶ 9] The district court denied Patterson’s application based on the second prong requiring prejudice from counsel’s error.
“In order to meet the second prong, the petitioner must show there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. The petitioner must prove not only that counsel’s representation was ineffective, but must specify how and where counsel was incompetent and the probable different result. If it is easier to dispose of an ineffective assistance of counsel claim on the ground of lack of sufficient prejudice, that course should be followed.”
Ratliff,
[¶ 10] Patterson argues the district court erred in finding no reasonable probability existed that Patterson’s appeal would have been decided differently if his appellate counsel argued the sentencing issue under
Murphy.
Patterson alleges because he was sentenced by the same judge as Murphy, two months prior to Murphy, his case would have been the case -of first impression rather than Murphy and his case would have been remanded for re-sentencing had the sentencing issue been
[¶11]'⅛
Murphy
we addressed the circumstance “in which a district court explicitly and clearly on the record interprets a statute to ascertain
that it lacks discretion
in sentencing, as opposed to exercising its discretion, and specifically refuses a defendant’s request to consider matters allegedly within its discretion.... ”
Murphy,
“That is not to say, however, a court would not consider an ‘equivalent’ offense as contemplated under N.D.C.C. § 19-03.1-23(5) because the court must still find ‘extenuating or mitigating circumstances’ to justify any suspension of a sentence. A district court’s analysis could still include consideration of a defendant’s ‘equivalent’ convictions in any other state or federal jurisdiction.”
Id. We held a district court has discretion to suspend or defer a sentence under N.D.C.C. § 19-4)3;1-23.2 with or without considering prior equivalent offenses. Id. at ¶ 34.-
[¶ 12] Here, the district, court found the trial court exercised its discretion in imposing Patterson’s sentence, stating:
“Here, Patterson asserts his sentence was illegal because the trial court failed to grant him a suspended or deferred sentence. However, while the trial court had the discretion to grant Patterson a suspended or deferred sentence, it was not bound under North Dakota law to grant him such a sentence. The trial court exercised its discretion and simply decided Patterson was not entitled to a suspended or deferred sentence under chapter 19-03.1.”
The district court determined Patterson’s criminal record was such that the court did not get to the analysis it made in Murphy. At the evidentiary hearing, the district court further explained:
“I did not. do what I did in the Murphy case in Mr. Patterson’s case because of the difference in the sentencing issues. In other words, if in Mr. Murphy’s case I felt ... that there potentially were extenuating and mitigating circumstances; and, therefore, I had to directly address the issue of whether or not I had the discretion. I didn’t get to that level in Mr. Patterson’s case.”
[1113] We are not convinced the holding in Murphy requires a different result here as a matter of law. On this record Patterson is unable to meet .the heavy burden to satisfy the prejudice prong. Because the trial court exercised its discretion in sentencing Patterson,' the district court’s findings are not induced by an erroneous view of law. We conclude the district court’s findings of fact are not clearly erroneous.
Ill
[¶ 14] Denial of Patterson’s application for post-conviction relief is affirmed.