### File d 5 /1 6 /1 9 b y Cle r k o f S u p r e m e Co u r t IN THE S UPREME COURT S TATE OF NORTH DAKOTA

2019 ND 135

Jessy Duane Olson, Petitioner and Appellant

v.
State of North Dakota, Respondent and Appellee

No. 20180268

Appeal f rom the District Court of Cass County , East Central Judicial District, the Honorable Thom as R. Olson, Judge.

AFFIRMED. Opinion of

the Court by McEvers, Justice

. Garrett D. Ludwig , Mandan, ND, f or petitioner and appellant.
Reid A. Brady (argued), Assistant State’s Attorney , and Nicholas Sam uelson (appeared), under the Rule on L im ited Practice of Law by Law Students, Fargo, ND, f or respondent and appellee.Olson v. State No. 20180268

McEvers, Justice. [ ¶1] Jessy Olson a p p e als a district court order deny ing his a p plication f

or postconviction relief

. O lson argues accom

plice to m urder is not a c o gnizable of f ense, and h e r e c eived inef

f ective assistance of counsel and his guilty pleas to the charge s o f

accom plice to m

urd e r a n d c onspiracy t o com m it aggravated assault were not voluntary . W e af

f i rm

.

I [ ¶2] In May 2015, Olson and others were involved in a f i ght o utside a bar in Fargo. Three i ndividuals sustained serious injuries, including Joey Gaarsland, who later died f rom his i n

j u r i es. Olson was arrested and charged with m urder and t hree counts of conspiracy to com m it aggravated assault. The district court appointed an a ttorney to represent Olson throughout the proceeding. [ ¶3] I n March 2 016, the State am ended the crim inal charges against O lson

. T h e State am ended t he m

urder charge to accom

plice to m urder and dism i ssed one of the
counts of conspiracy t o com m i t aggravated a ssault. T he State alleged Olson acted as

an accom plice to Gaarsland’s m

urder by aiding another in c om m itting the of f ense that resulted in Gaarsland’s death. [ ¶4] Olson an d t h e State entered into a written “ Prof f er Agreem ent” r elating to a resolution of the case. Olson a greed to cooperate with t he State in the prosecution of the other def

endants. The agreem ent provided Olson would plead guilty and the State would recom m end no m o r e than twenty y ears in priso n a n d Olson would b e f ree to
argue f or a lesser sentence. Af

ter signing the agreem ent, Olson entered Alford pleas
to accom plice to com m it m

urder and two counts of conspiracy to com m it aggravated assault. In October 2016, Olson was sentenced to twenty y ears in prison.

1[ ¶5] Olson applied f or post-convi c t i on relief

, a rguing his g uilty pleas w ere not knowing and voluntary , accom plice to m

urder is not a cognizable o f f ense, and he received inef

f ective representation f

rom h is attorney

. Olson requested the district court grant him

post-conviction relief

so he could withdraw his guilty pleas. [ ¶6] At an evidentiary h earing on Olson’s application, he testif ied that on t he basis of his a t t o r n e y ’ s advice, he was rushed in to pleading guilty and believed he w ould be sentenced to f

ive y ears i n prison instead of twenty y ears. The district court denied Olson’s a pplication, concluding his attorney p r ovided ef f ective representation a nd his guilty pleas were knowing and voluntary

.

I I [ ¶7] W e e m

p loy t he f

ollowing stand a rd of review in post-conviction relief proceedings: A tri a l court’s f indings of f

act i n p ost-conviction relief proceedings will not be d i s t u r bed unless t hey are clearly erroneous. Hill v. S tate , 2000 ND 143, ¶ 17, 615 N.W

. 2d 135. A f inding o f f

a c t is clearly erroneous if it is induced by an erroneous view of the law, if it is not supported by a ny evidence, or if , although there i s som e evidence to support it, a reviewing court is lef t w ith a def

i nite and f

irm conviction that a m i stake has been m a de. DeCoteau v. S tate , 2000 ND 44, ¶ 10, 608 N .W

. 2d 240. Questions of law are f ully r e viewable on appeal of a post-conviction proceeding. F alcon v. State , 1997 ND 200, ¶ 9, 570 N.W .2d 719. Peltier v. State , 2003 ND 27, ¶ 6, 657 N.W .2d 238.

A [ ¶8] Olson argues the charge of accom plice to c o m m it m

u rder is not a cognizable crim inal of

f e nse in North Dakota. [ ¶9] Under N .D.C.C. § 12.1-16-01(1)(b), a p erson i s g uilty of m urder, a class AA f elony , if the person “[ c]auses the death of a nother hum a n b eing under circum s t ances

m anif esting extrem e indif

f erence to the value o f hum a n lif e[ .]” E xtrem e indif

f erence

m urder is a general inten t c r i me

. S t ate v. Borner , 2013 ND 141, ¶ 18, 836 N.W .2d 2383. “ Under N.D.C.C. § 12.1-16-01(1)(b), a person does n ot intend to cause t he death

of a nother hum a n-being, but rather death is a consequence o f the def endant’s willf

ul conduct.” Borner , at ¶ 1 8. “In other words, extrem e indif f erence m urder results in

an unintentional death f

rom behavior m anif

esting an e x trem e indif

f erence t o t he value of hum an lif

e.” Id. [ ¶10] The am ended inf

orm a tion c harged Olson w ith accom plice to com m i t m

urder under N.D.C.C. §§ 1 2 .1-03-01(1)(b) and 1 2.1-16-01(1)(b), claim ing Olson “acted as

an accom plice to the m

urd e r o f J o e y Gaarsland b y intending that a n of f e nse be

com m itted and a iding another in com m itting the of f e n se that resulted in the death of Joey Gaarsland.” Under N.D.C.C. § 12.1-03-01(1)(b), “[ a] p erson m ay be c onvicted of a n o f f en s e b a sed upon the conduct o f another person when: [ w]ith intent that an of f ense be com m itted, he com m ands, induces, procures, or a ids the other to com m it it, o r, having a statutory duty to prevent its com m ission, he f ails to m ake proper ef

f ort to do so.” [ ¶11] O l s o n ’s prim ary argum ent is that because c onspiracy to c o m m it extrem e indif f erence m urder i s not cognizable, a ccom plice to extrem e indif

f e rence m urder is also not cognizable. S

ee Borner , 2013 ND 141, ¶ 20, 836 N .W .2d 383 (holding “conspiracy to com m i t extrem e indif f erence m urder, under N .D.C.C. §§ 12.1-06-04 and 12.1-16-01(1)(b), is not a cognizable of f e n se”). Olson has not c ited any a uthority holding accom

plice is sy

nony m ous with conspir a c y
. In State v. Lind , 322 N.W .2d 826, 842 (N.D. 1982), this Court addressed a sim i l a r a rgum ent a nd held a coconspirator is not sy

nony m ous with accom

p lice: [ W ]e have no authority cited to us that a co-conspirator is sy nony m ous with an a ccom

plice. The North Dakota Crim inal Code is consistent in its separate t reatm e nt of co-conspirators and accom plices, as evidenced b y S e c t i o n 1 2

. 1

- 0 6

- 04(5): “ Accom plice liability f

o r of f enses c o m m i t t e d in f urtherance of the conspiracy is to be determ ined as p r o v i ded in Section 12.1-03-01.” The def inition of “accom

plice” i n Section 12.1- 03-01(1)(a) and (b), specif ies acts dif

f erent f rom those set f

orth in the def inition of “crim inal conspiracy ” in Section 12.1-06-04(1).

3[ ¶12] Other states w ith sim ilar accom plice statutes have held accom plice to extrem e indif f e r e n c e murder or reckless m anslaughter is a recognized o f f ense. In Riley v. State , 60 P.3d 204, 215-17 (Alaska Ct. App. 2002), the c o u r t d iscussed cases f rom other states i m

posing accom

plice liability f

or crim e s involving unintended injury or death. See Ex parte Simmons , 649 So. 2 d 1 2 8 2 ( Ala. 1994); Mendez v. State , 575 S.W

. 2d 36 (Tex. Crim

. A pp. 1 979); People v. N o v y , 597 N.E.2d 273 (Ill. A p p. Ct. 1992); People v. Cole , 6 25 N.E.2d 816 (Ill. A pp. C t. 1993); Hooks v. State , 4 16 A.2d 189 (Del. 1980); People v

. W heeler , 772 P.2d 101 (Colo. 1989); State v. Goodall , 407 A.2d 268 (Me. 1979); Commonwealth v. Bridges , 381 A.2d 125 (Pa. 1977). [ ¶13] In sum m arizing these courts’ decisions, the Riley c ourt, 6 0 P .3d at 215, 221, explained: [ W ]ith r espect to of

f enses that involve a resulting injury or death, these courts hold that accom

plice l i a b i lity requires proof (1) that the
accom plice intended to prom ot e o r f a cilitate another’s unlawf ul or dangerous conduct , and (2) that the accom plice acted with the culpable
m ental state specif

ied in the underly ing statute with respect to the resulting injury o r d eath. Thus, these courts uphold accom plices’ convictions f

o r unintended crim inal hom icides—e.g., “extrem e i n d i ffe r e n c e ” m

u r d e r o r reckless m anslaughter—based on proof that the accomp l i ce, acting with the culpable m ental state r equired f or the underly ing c r im e, p urposely encouraged or aided another person to engage in conduct that posed a substantial and unjustif

iable danger to hum an lif e.

. . . . In conclusion: The Model Penal Code was wr i tten to im pose accom plice liability f

or crim es involving unintended i njury or death if the accom

plice intentionally prom otes or f acilitates the c o n d

u c t t hat produces the injury or death, even t hough the accom plice did not i ntend this result. Am ong the states that have com plicity statutes based o n the Model P enal Code, m ost courts have interpreted their statutes this way

. [ ¶14] The authorities cited have a ccom plice statutes b ased in part on Model Penal Code § 2.06(3) (1962), relating to liability f or conduct of

another: (3) A person is a n accom plice of another person i n the c o m m ission of an of f ense if : (a) with the purpose of prom oting or f aci l i t a t ing the
com m ission of

the of f ense, he 4(i) solicits such other person to com m it it, or (ii) aids or agrees or attem pts to aid s uch other person in planning or com m itting it, or (iii) having a legal d

uty to prevent t he com m i ssion of the of f ense, f ails to m ake proper ef

f ort so to do; or (b) his conduct is expressly declared by law to establish his
com plicity

. [ ¶15] Our accom

plice statute, N.D.C.C. § 12.1-03-01, is derived f r om § 401 of

the proposed Federal Crim inal Code. See Lind , 3 22 N

. W .2d at 841 (“Section 401(1) of the proposed Federal Crim inal Code is virtually identical in all m aterial res p e c t s to Section 12.1-03-01(1), N.D.C.C.”); F inal Report of the Nat’l Comm’n on Reform of Federal Criminal Laws § 401, at 33 (1970). The proposed Fede r a l C r i m i nal Code W o rking Papers state “The language proposed in the d raf t [ of § 4 01] is substantially that used in m ost of the recent State revisions and the Model Penal C ode.” I W orking Papers of the Nat’l C

omm’n on Reform of Federal Criminal Laws 154-55 (1970) (citing Model Penal Code § 2.06). [ ¶16] Olson asserts accom plice to m

urder requires aid with intent that m urder be

com m itted. He claim s that because Gaarsland’s death was unintentional, he cannot be charged with accom

plice to extrem e indif

f erence m u rder. W e disagree. [ ¶17] Olson was charged with ac com plice under N.D.C.C. § 12.1-03-01(1)(b), whereby one m ay be convicted of an of f ense based upon the conduct of another w hen, with i ntent that an o f

f ense be com m itted, he or she aids the other to com m it it. That language is sim ilar to t he M o d e l P e n a l Code § 2.06(3) l anguage cited above. W ith respect to extrem e indif

f e rence m urder, the language of N.D.C.C. § 12.1-03-01(1)(b) does not require an accom plice intend that m

urder b e com m itted, only the intent that an of f e nse be com m itted. [ ¶18] Extrem e i ndif

f erence m urder under N.D.C.C. § 12.1-16-01(1)(b) is a general intent crim e and deat h i s a c onsequence of a d ef endant’s willf

ul conduct. Borner , 2013 ND 1 41, ¶ 18, 836 N.W .2d 383. “A person engages i n conduct: ‘W illf ully ’ if h e e n g a ges in the conduct intentionally , k nowingly , or r ecklessly .” N.D.C.C. § 12.1-02-02(1)(e). Olson also plead guilty to c onspiracy to com m it aggravated assault, 5agreeing to engage in willf ul c onduct causing s erious bodily injury t o another hum an being. See N.D.C.C. §§ 12.1-06-04 and 1 2.1-17-02(1). Under t his f actual situation, Olson could b e charged with accom plice to extrem e indif

f erence m u rder by agreeing
to willf u lly aid i n the agg r a v a t e d assault upon Gaarsland u nder circum s t ances

m anif es t i n g e x trem e indif

f e rence to the value of hum an lif e that u ltim ately led to Gaarsland’s death. W e agree with t h e r e a s o ning of t he a uthorities discussed above and conclude accom

p l ice to extr e me i n d i f

f erence m urder is a cognizable of

f ense under North Dakota law.

B [ ¶19] Olson argues the district court erred in d eny ing his application f or p o st-conviction relief because he received inef f ective assistance of counsel in t h e underly ing crim inal proceeding.

The Sixth Am e ndm ent of the United States Co n s t i t u t i o n, applied through the Fourteenth Am e ndm e n t to the States, and Article I, Section 12, of the North D akota Constitution guarantee crim inal def endants ef f ective assistance of counsel. State v. Garge , 2012 ND 138, ¶ 10, 8 18 N.W .2d 71 8

. A n i nef

f ective assistance of counsel claim involves a m ixed question of l aw and f a c t, f ully r eviewable b y this Court. F l a n a g a n [ v. State ], 2006 ND 76, ¶ 9, 712 N.W .2d 602. In order to prevail on a post-conviction claim f or inef f ective assistance of counsel,
an appli c a nt m

ust show ( 1 ) counsel’s representation f ell b elow an objective standard of reasonableness and (2) there is a r e a sonable probability that, but f

or counsel’s u nprof

essional errors , t

h e r esult of the proceeding would have been dif f erent. Strickland v. W

ashington , 4 66 U.S. 668, 687-96, 694 (1984). An applicant raising a post-conviction claim f or inef f ective assistance of counsel has t h e “ h e a vy burden” of establishing the requirem ents of the two-prong Stricklan d t e st. Flanagan , at ¶ 10. Everett v. State , 2015 ND 149, ¶ 7, 864 N.W .2d 450. [ ¶20] Olson argues h is trial attorney rushed him into pleading guilty to the am ended

com plaint. Olson claim s he was under the belief he would receive a f ive-y ear p rison
sentence and hi s a t t o r n ey did not inf orm him the State would recom m end twenty
y ears. Olson argues the district court should have appointed him a new attorney

. 6[ ¶21] At t he p o st-conviction hearing, Olson testif ied he did not learn that t he State would recom m end twenty y ears im prisonm e n t until m onths af ter the March 2 0 16 change of plea hearing. Olson testif ied h e c alled his attorney a nd requested to withdraw his g u i l t y pleas, and his attorney ref used. Olson testif

ied that af

ter the phone call, his attorney requested to withdraw and Olson w rote a letter to the district
court requesting a new attorney

. At a S e ptem b er 2 016 hearing on t he m atter, Olson explained h e t h o u g h t he would be r eceiving a f ive-y e ar prison sentence. Af ter an exchange b etween Olson, t he court, and O lson’s attorney , Olson agreed t o w ork it out with his attorney . The court denied Olson’s request f or a new attorney

. [ ¶22] O l s o n ’s attorney testif i ed he discussed the “Prof f er Agreem ent” w ith Olso n bef ore the change of plea hearing. He testif i ed he a d v i s e d O l s o n of his rights and explained to Olson several tim es the State would ask f or twenty y ears in prison and he would a rgue f

or f ive y ears. The “Prof

f er Agreem ent,” s ign e d b y Olson, his attorney , and the State, explicitly states the “State would cap its recom m endation at 20 y ears im

prisonm ent,” and “Olson will be f r ee to argue f

or w hatever sentence he deem s appropriate.” [ ¶23] The district court f o und Olson’s trial attorney provided e f f e ctive assistance of counsel. The court f

o u nd Olson’s trial attorney ’s assistance was “well above the
necessary standard of care t hat lawy ers h ave to give to their clients.” T he c ourt f ound the attorney provided Olson with appropriate legal advice, m et with Olson on m any occasions, and testif

ied credibly at the post-conviction hearing. The court’s f indings relating to Olson’s trial attorney have support in the record and we are not lef t with

a def inite a nd f irm conviction a m istake was m ade. W e conclude the court’s f indings of f act are not clearly erroneous, an d t h e c o u r t did n ot err in r ejecting O lson’s inef f ective assistance of

counsel claim

.

C [ ¶24] Olson argues his guilty pleas were no t voluntary because the district court f ailed to com

ply with N.D.R.Crim .P. 11 at the change of plea hearing. 7[ ¶25] W hen a def endant a pplies f or post-conviction relief seeking to w it h d r aw a guilty plea , w e g e n erally treat the application as one m ade under N.D.R.Crim .P. 1 1(d). Everett , 2015 N D 1 4 9, ¶ 14, 864 N .W .2d 450. U nder N.D.R.Crim .P. 11(d)(2), a def endant m a y not withdraw a guilty plea af t er the district c o urt has im posed sentence unless the def

endant shows w ithdrawal i s necessary to correct a ma n i f e s t injustice. W h ether there has been a m anif est i n j u s t ice supporting withdrawal o f the plea lies within the court’s discretion. State v. Y ost , 2018 ND 157, ¶ 6, 914 N.W

. 2d 508. A
court abuses its discretion under N.D.R.Crim .P. 1 1(d) when its l egal discretion is not exercised in the interest o f ju s t i c e. Y ost , at ¶ 18. In determ i ning whether t he court abused its discretion, we m ay be required t o review the court’s prelim inary f indings of f act, whic h w i l l n ot be disturbed unless they a re clearly erroneous. Greywind v. State , 2004 ND 213, ¶ 7, 689 N.W .2d 390. [ ¶26] Rule 1 1, N .D.R.Crim .P., governs guilty pleas. Bef ore accepting a guilty plea, the district court m

ust inf orm the def

endant of t he f

o llowing u n d e r N .D.R.Crim .P. 11(b)(1): (A) the right to plead not guilty , or having already so pleaded, to persist in that plea; (B) the right to a jury

trial; (C) the right t o be represented by counsel at trial and at e very other stage of the proceeding and, i f n e c essary , the right t o h ave the counsel provided under Rule 44; (D) the r i g h t at trial to c onf ront a n d cross-exam ine adverse witnesses, to be protected f rom com pelled self

-incrim ination, to testif

y and present evidence, and to com pel the attendance of

witnesses; (E) the def

endant’s waiver of these trial r ights if the court accepts a plea of

guilty ; (F) the nature of each charge to which the def endant is pleading; (G) any m axim

um possible p enalty , including im prisonm ent, f ine, and m andatory

f ee; (H) any m andatory

m inim um penalty ; (I) the court’s authority to order restitution; and (J) that, if convicted, a d ef e n dant w ho is not a United States citizen m a y be rem oved f

rom the United States, denied c i tizenship, and denied adm ission to the United States in the f uture.

8Rule 11, N.D.R.Crim .P., does not require the court’s advice t o f ollow a ritualistic, predeterm ined f

orm ality , but the court m

ust substantially com

ply with the p rocedural requirem ents of the rule t o ensure the def endant’s guilty plea i s voluntary

. Y ost , 2018 ND 157, ¶ 20, 914 N.W

. 2d 508. A trial court is not required to readvise a def endant of e a ch of his rights at a change of p lea h e aring, provide d the c ourt d eterm ines that the def endant was properly advised at arraignm ent, a n d that the def endant
now recalls t hat advice. It is suf f icient to satisf

y due p rocess if the def endant’s k

nowledge of his r ights is clearly r ef lected f rom the whole record. Id. (quoting State v. Gunwall , 522 N.W

. 2 d 183, 185 (N.D. 1994)). [ ¶27] Olson claims t h a t a f ter the State am ended the inf orm a tion, the district court f ailed under N.D. R

. C r i m

. P. 11(b)(1)(G) to inf orm him of the m a x im

um possible penalty f or accom plice to m u rder. [ ¶28] At h is initial appearance, the district court inf orm ed Olson that m

urder was a class AA f

elony and carried a m a x im um sentence of lif

e im prisonm ent without parole. Olson stated he understood the charges against him . At the change of plea hearing,
t h e State i nf

orm ed the court that accom plice to m

urder c arried the sam e level o f of f ense and the sam e potential penalties as m u rder. Olson’s attorney d id not object
to the State’s m o tion t o am e nd. Olson’s attorney indicated he reviewed the am ended inf orm ation with Olson and waived a f orm al reading of the a m ended i nf orm ation. The c ourt asked Olson about the earlier h earing where he had been read his rights and inf orm ed of the charges against him

. Olson s tated he rem em bered b e i n g r ead his rights a nd he understood them

. The court a sked Olson w hether he w a s pleading guilty

or not guilty to the charge of accom plice to m

urder, a class A A f

e lony , a n d Olson replied “Guilty .” The c ourt asked Olson whether he was pleading g uilty voluntarily and Olson responded h e was. The court f ound “there is suf

f i cient f actual basis f

or the pleas which are m ade pursuant to the A lford case, and that t he guilty pleas are entered f reely and voluntarily .”

9[ ¶29] The p ost-conviction court determ ined the district court com plied w i t h the requirem ents of N

. D

. R

. C rim .P. 11 and Olson’s guilty pleas were knowing and voluntary

. F rom the entire record, we conclude the court in the underly i ng c rim inal
p r o c e eding substantially com plied with Rule 11 bef

ore accepting Olson’s gu i l t y p l e a s

. Olson f ailed to establish withdrawal of his guilty p leas was necessary to correct a

m anif est injustice.

III [ ¶30] Olson’s r em a ining argum ents are either unnecessary to o ur decision or without

m erit. The order deny ing O lson’s application f o r post-conviction relief

is af f irm ed. [ ¶31] Lisa Fair McEvers Daniel J. Crothers Jerod E. Tuf

te Jon J. Jensen Gerald W . VandeW alle, C.J.

10