State of North Dakota, Plaintiff and Appellee v. Joshua Michael Peterson, Defendant and Appellant
No. 20180422
IN THE SUPREME COURT STATE OF NORTH DAKOTA
Filed 5/16/19 by Clerk of Supreme Court
2019 ND 140
Opinion of the Court by VandeWalle, Chief Justice.
Appeal from the District Court of Ward County, North Central Judicial District, the Honorable Douglas L. Mattson, Judge.
AFFIRMED.
Christopher W. Nelson, Assistant State‘s Attorney, Minot, ND, for plaintiff and appellee.
Benjamin D. Migdal, Minot, ND, for defendant and appellant.
[¶1] Joshua Michael Peterson appealed from an order denying his motion to withdraw his guilty plea. We conclude the district court did not abuse its discretion in denying Peterson‘s motion. We affirm.
I
[¶2] On April 30, 2015, the State filed a complaint charging Peterson with class B felony burglary in violation of
[¶3] The State provided a factual basis for the plea, stating Peterson fled the scene of the crime in a manner that appeared to be an attempt to strike the arresting officer with a vehicle. Peterson‘s attorney stated:
Your Honor, just in regard to the vehicle. He was fleeing the scene. He wasn‘t directing anything at an officer, but he was fleeing the scene in his vehicle. And his vehicle was eventually brought to a halt.
Peterson agreed with his counsel‘s statement. The court found Peterson knowingly, voluntarily, and intelligently entered the guilty plea and there was a sufficient factual basis. Peterson received 10 years’ imprisonment, with all but five suspended.
II
[¶5] On appeal, Peterson argues his motion to withdraw his guilty plea should have been granted because the sentencing court did not sufficiently comply with
[¶6] This Court reviews a district court‘s denial of a motion to withdraw a guilty plea under the abuse of discretion standard. State v. Feist, 2006 ND 21, ¶ 22, 708 N.W.2d 870. A district court abuses its discretion when it acts in an arbitrary, unreasonable, or capricious manner, or misinterprets or misapplies the law. Id. The provisions of
A
[¶7]
First, the court could inquire directly of the defendant concerning the performance of the acts which constituted the crime. Secondly, the court could allow the defendant to describe to the court in his own words what had occurred and then the court could question the defendant. Thirdly, the court could have the prosecutor make an offer of proof concerning the factual basis for the charge.
Id. “Ultimately though, in order to establish a sufficient factual basis an inquiry might be made of the defendant, of the attorneys for the government and the defense, of the presentence report when one
[¶8] The district court may determine a factual basis exists “from anything that appears on the record.” Mackey, 2012 ND 159, ¶ 13, 819 N.W.2d 539. “Relying on the contents of the entire record for finding a factual basis is consistent with the language of
[¶9] Here, the court found a factual basis for the guilty plea. The complaint and information alleged that Peterson “attempted to inflict bodily injury on . . . or menaced” the officer with imminent serious bodily injury while “in immediate flight” from the scene of the crime. The affidavit accompanying the complaint stated Peterson attempted to strike a police officer with the vehicle he was driving. While explaining the charges to the court, the State stated Peterson “drove the motor vehicle towards law enforcement . . . in an attempt it looked as though through the physical evidence an attempt to strike [the officer].” Based on the record, including the complaint, the information, and the State‘s explanation of events at the change of plea hearing, there was a sufficient factual basis for the guilty plea.
B
[¶10] After determining there is a factual basis for the plea, the district court must also find that the defendant either:
- acknowledges facts exist that support the guilty plea; or
- while maintaining innocence, acknowledges that the guilty plea is knowingly, voluntarily and intelligently made by the defendant and that evidence exists from which the trier of fact could reasonably conclude that the defendant committed the crime.
[¶11] In this case, Peterson agreed with all but one aspect of the State‘s factual statement. When questioned at the 2018 motion hearing, Peterson agreed that “the only thing [he] disagreed with” was that he did not intend to direct the vehicle at the officer when fleeing the scene. While Peterson contends his attorney‘s statement was a denial of the factual basis, the record does not support this contention. After the State gave the factual basis for the plea agreement, Peterson‘s attorney stated Peterson “was fleeing the scene. He wasn‘t directing anything at an officer, but he was fleeing the scene in his vehicle.” This statement appears to be an attempt to mitigate rather than a denial of the factual basis. Peterson‘s attorney did not argue that Peterson did not attempt to inflict bodily injury or menace the officer, just that Peterson was not specifically directing the vehicle at the officer.
[¶12] The State charged Peterson with attempting to inflict bodily injury upon or menacing the officer when he fled the scene of the burglary, a class B felony.
[¶13] Under North Dakota law, an individual can be found guilty of menacing by either “knowingly placing” or “knowingly attempting to place” an individual in fear of imminent serious bodily injury. Bruce, 2012 ND 140, ¶ 12, 818 N.W.2d 747. Here, Peterson knew he was driving the vehicle toward the officer during his attempt to flee, even if he did not intend to strike the officer. By driving in the direction of the officer, Peterson knowingly placed or attempted to place the officer in fear of serious bodily harm. That is all
III
[¶14] Peterson argues he received ineffective assistance of counsel because his attorney did not inform him
[¶15] Usually, a claim of ineffective assistance of counsel should be resolved in a post-conviction proceeding rather than on direct appeal to allow the parties to develop a record of the counsel‘s performance and its impact on the defendant‘s claim. Yost, 2018 ND 157, ¶ 23, 914 N.W.2d 508. “To successfully claim ineffective assistance of counsel, a defendant must establish counsel‘s representation fell below an objective standard of reasonableness and the defendant was prejudiced by counsel‘s deficient performance.” Id. To demonstrate prejudice, the defendant must establish a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different, and the defendant must specify how and where trial counsel was incompetent and the probable different result. Id. Here, the district court provided Peterson with a hearing and allowed him to testify on how he believed his counsel was ineffective. Peterson testified his attorney did not inform him of any requirement that he had to serve a certain portion of his sentence.
[¶16] The eighty-five percent rule Peterson refers to is found in
[¶17] This Court has found “[i]t is likely not ineffective assistance of counsel to fail to inform a defendant about the 85 percent rule.” Sambursky v. State, 2008 ND 133, ¶ 11, 751 N.W.2d 247. While “[f]ailure to inform about the 85 percent service requirement is not per se improper,” this Court has stated that “misinformation about the length of a sentence can be viewed as below the objective standard of reasonableness.” Stein v. State, 2018 ND 264, ¶ 12, 920 N.W.2d 477. Counsel does not “actively misinform” a defendant by failing to inform the defendant of the eighty-five percent service requirement. Sambursky, at ¶ 25.
[¶18] Here, the record does not show the counsel‘s assistance was plainly defective. Peterson‘s attorney did not inform him about the eighty-five percent rule attached to a guilty plea under
IV
[¶19] Peterson argues he should be allowed to withdraw his guilty plea because of manifest injustice based solely on the sentencing court‘s alleged procedural errors.
[¶20] “Unless the defendant proves that withdrawal is necessary to correct a manifest injustice, the defendant may not withdraw a plea of guilty after the court has imposed sentence.”
[¶21] “A manifest injustice may result from procedural errors by the sentencing court.” Yost, 2018 ND 157, ¶ 15, 914 N.W.2d 508. However, this Court has been reluctant to order a guilty plea withdrawn without evidence that suggests the defendant did not understand the nature of any agreement or sentencing recommendation. Id. Here, Peterson has not provided evidence that he did not understand the nature of the plea agreement. The court sentenced Peterson to ten years’ imprisonment with five years suspended, the same sentence proffered by Peterson‘s attorney when asked what the plea agreement envisioned. Even with the application of the eighty-five percent rule, Peterson cannot show he did not understand the nature of the plea agreement or sentencing recommendation. The district court did not abuse its discretion in finding manifest injustice did not exist.
V
[¶22] We affirm the district court‘s order denying Peterson‘s motion to withdraw his guilty plea.
[¶23] Gerald W. VandeWalle, C.J.
Jon J. Jensen
Lisa Fair McEvers
Jerod E. Tufte