[¶ 1] The State of North Dakota appealed from an order granting Peter Wright’s application for post-conviction relief and ordering a new trial. We reverse and remand, concluding Wright failed to demonstrate he was prejudiced by the alleged ineffective assistance of his trial counsel.
I
[¶ 2] In January 2000, Wright was working at Dakota Boys Ranch, a coeducational residential facility for troubled youth in Fargo. On January 4, 2000, a thirteen-year-old female resident told staff members that Wright had engaged in sexual intercourse with her in her room at approximately 5:00 a.m. that morning. The victim was transported to a local hospital, and her panties were given to the police. Subsequent testing found semen on the inside front of the victim’s panties, and DNA testing established that Wright was the source of the semen. When Wright was interviewed by police, he denied having intercourse with the victim on January 4, but signed a written statement admitting that on January 3 she had fondled his penis until he ejaculated.
[¶ 3] Wright was charged with gross sexual imposition for the January 3 and 4, 2000, incidents. At trial, the victim testified Wright had engaged in sexual contact with her on several occasions, including the January 4 incident. The State presented Wright’s written statement admitting the January 3 incident and presented evidence showing Wright’s semen was found on the victim’s panties.
[¶ 4] Wright denied that he had engaged in any sexual acts with the victim. He testified that from approximately 4:45 a.m. to 6:00 a.m. he was on the telephone in the office at Dakota Boys Ranch speaking with Wendy Brownlee, a female friend from North Carolina. He stated that during this conversation he and Brownlee discussed sex, and he masturbated and ejaculated. He claimed he then wiped himself with a blue towel and placed the towel into a basket of dirty laundry, and the victim later that morning removed some of her dirty clothes from the basket before they were washed. Wright further testified he was being sarcastic when he admitted to police officers he had engaged in the January 3 incident with the victim and when he signed and initialed the written confession.
[¶ 5] Wright’s trial counsel did not call Brownlee as a witness. The jury returned a verdict of guilty and, on February 22, 2001, Wright was sentenced to serve ten years in the penitentiary. Wright did not appeal from the criminal judgment.
[¶ 6] In March 2003 Wright filed an application for post-conviction relief, alleging his trial counsel had rendered ineffective assistance when he failed to secure Brownlee’s presence and testimony at the criminal trial. Wright and his trial counsel testified at the post-conviction hearing, and Brownlee’s deposition and telephone records were admitted. The trial court determined that counsel’s failure to present Brownlee’s testimony at the criminal trial fell below an objective standard of reasonableness and that Wright was prejudiced by counsel’s conduct. The court ordered a new trial, and the State appealed.
II
[¶ 7] The district court had jurisdiction under N.D. Const, art. VI, § 8, and
Ill
[¶ 8] The State contends the district court erred in concluding Wright had established that trial counsel’s performance was deficient and that Wright was prejudiced by the deficient performance.
[¶ 9] Post-conviction relief proceedings are civil in nature and are governed by the North Dakota Rules of Civil Procedure.
Laib v. State,
[¶ 10] The Sixth Amendment of the United States Constitution and N.D. Const, art. I, § 12, guarantee a criminal defendant the right to effective assistance of counsel.
E.g., Heckelsmiller v. State,
In accord with the two-pronged test established in Strickland v. Washington,466 U.S. 668 ,104 S.Ct. 2052 ,80 L.Ed.2d 674 (1984), a defendant claiming ineffective assistance of counsel bears the 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. The defendant must first overcome the “strong presumption” that trial counsel’s representation fell within the wide range of reasonable professional assistance, and courts must consciously attempt to limit the distorting effect of hindsight. Heckelsmiller, at ¶ 3; Ernst v. State,2004 ND 152 , ¶ 9,683 N.W.2d 891 .
To meet the “prejudice” prong of the Strickland test the defendant carries the heavy burden of establishing a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. The defendant must prove not only that counsel’s assistance was ineffective, but must specify how and where trial counsel was incompetent and the probable different result. Unless counsel’s errors are so blatantly and obviously prejudicial that they would in all cases, regardless of the other evidence presented, create a reasonable probability of a different result, the prejudicial effect of counsel’s errors must be assessed within the context of the remaining evidence properly presented and the overall conduct of the trial.
[¶ 11] 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.
Laib,
[¶ 12] The trial court appears to have applied an erroneous legal standard in assessing the prejudice prong of the
Strickland
test. Citing
State v. McLain,
[¶ 13] The State presented substantial evidence of Wright’s guilt. The victim described the events of January 4, 2000, testifying that Wright entered her room at about 5:00 a.m., pulled her panties down to her knees, and placed his penis in her vagina. She testified she had put these panties on the previous evening and did not take them off until she gave them to a nurse at the hospital. Subsequent testing showed semen on the inside front of her panties, and the State’s expert witness testified that the location of the seminal fluid on the panties would be consistent with “post-coital drainage or from perhaps having semen on the external genitalia.” DNA testing established that Wright was the source of the semen on the victim’s panties.
[¶ 14] Wright claims he masturbated and wiped himself with a towel while discussing sex with Brownlee on the telephone, and then placed the towel in a laundry basket containing some of the victim’s dirty clothes. According to Wright, the victim shortly thereafter retrieved some dirty clothes from the laundry basket, and some of Wright’s semen on the towel must have gotten on the victim’s panties while in the basket together. In order to accept Wright’s explanation, the jury would have to believe that Wright masturbated and wiped himself with a towel without being seen or heard by a coworker sitting in an adjacent area; he then placed the towel in the basket of the victim’s dirty clothes, and semen from the towel only came into contact with the inside front of the victim’s panties; the victim a few minutes later decided to retrieve dirty clothes from the laundry basket and put on the panties containing Wright’s semen; and the victim coincidentally decided to make a false accusation of sexual contact against Wright on the same day.
[¶ 16] More significantly, Brownlee’s testimony would have directly contradicted Wright’s alibi theory that he could not have had sex with the victim at or near 5:00 a.m. because he was on the phone with Brownlee from 4:45 a.m. to 6:00 a.m. Brownlee testified she called Wright at 4:45 a.m. Her phone records, which were produced by the telephone company under subpoena, show that Brownlee called Wright in Fargo at 4:45 a.m. North Carolina time, which would have been 3:45 a.m. Fargo time. The records show the duration of the call was 88 minutes. Thus, in contradiction to Wright’s testimony that he was on the phone with Brownlee from 4:45 a.m. to approximately 6:00 a.m., that he looked at the clock and noticed the time when he got off the phone, and that shortly thereafter the milkman buzzed to be let into the building at 6:00 a.m., Brownlee’s testimony and phone records establish conclusively that the telephone call from Brownlee lasted from 3:45 a.m. to 5:13 a.m. Fargo time. Rather than aid his defense and establish a reasonable probability of a different result, Brownlee’s testimony directly contradicts Wright’s theory of the timeline and his alibi that he could not have gone to the victim’s room at any time between 4:45 a.m. and 6:00 a.m.
[¶ 17] Furthermore, Brownlee’s testimony would only have been relevant to the January 4 incident. Wright was also charged with the January 3 incident, and his written, signed statement, in which he admitted that on January 3 the victim had fondled his penis and he had ejaculated, was admitted into evidence. Wright’s claim that he was being sarcastic when he orally admitted the incident to the officers, initialed the written confession in several places, and signed each page of the three-page confession defies logic. The State needed to prove only one of the two charged incidents to support Wright’s conviction of gross sexual imposition, and Wright’s signed, written statement admitting the January 3 incident was presented and admitted into evidence at trial.
[¶ 18] Viewing counsel’s failure to call Brownlee as a witness in light of the remaining evidence and the overall conduct of the trial, we conclude Wright failed to establish a reasonable probability that, but for the alleged errors of counsel, the result of his criminal trial would have been different. We reverse the district court’s order granting Wright’s application for post-conviction relief and ordering a new trial, and we remand for entry of judgment denying the application.