Filed 5/16/19 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2019 ND 135

Jessy Duane Olson, Petitioner and Appellant

v.

State of North Dakota, Respondent and Appellee

No. 20180268

Appeal from the District Court of Cass County, East Central Judicial District,

the Honorable Thomas R. Olson, Judge.

AFFIRMED.

Opinion of the Court by McEvers, Justice.

Garrett D. Ludwig, Mandan, ND, for petitioner and appellant.

Reid A. Brady (argued), Assistant State’s Attorney, and Nicholas Samuelson

(appeared), under the Rule on Limited Practice of Law by Law Students, Fargo, ND,

for respondent and appellee.
Olson v. State

No. 20180268

McEvers, Justice.

[¶1] Jessy Olson appeals a district court order denying his application for postconviction relief. Olson argues accomplice to murder is not a cognizable offense, and

he received ineffective assistance of counsel and his guilty pleas to the charges of

accomplice to murder and conspiracy to commit aggravated assault were not

voluntary. We affirm.

I

[¶2] In May 2015, Olson and others were involved in a fight outside a bar in Fargo. 

Three individuals sustained serious injuries, including JoeyGaarsland, who later died

from his injuries. Olson was arrested and charged with murder and three counts of

conspiracy to commit aggravated assault. The district court appointed an attorney to

represent Olson throughout the proceeding.

[¶3] In March 2016, the State amended the criminal charges against Olson. The

State amended the murder charge to accomplice to murder and dismissed one of the

counts of conspiracy to commit aggravated assault. The State alleged Olson acted as

an accomplice to Gaarsland’s murder by aiding another in committing the offense that

resulted in Gaarsland’s death.

[¶4] Olson and the State entered into a written “Proffer Agreement” relating to a

resolution of the case. Olson agreed to cooperate with the State in the prosecution of

the other defendants. The agreement provided Olson would plead guilty and the State

would recommend no more than twenty years in prison and Olson would be free to

argue for a lesser sentence. After signing the agreement, Olson entered Alford pleas

to accomplice to commit murder and two counts of conspiracy to commit aggravated

assault. In October 2016, Olson was sentenced to twenty years in prison.

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[¶5] Olson applied for post-conviction relief, arguing his guilty pleas were not

knowing and voluntary, accomplice to murder is not a cognizable offense, and he

received ineffective representation from his attorney. Olson requested the district

court grant him post-conviction relief so he could withdraw his guilty pleas.

[¶6] At an evidentiary hearing on Olson’s application, he testified that on the basis

of his attorney’s advice, he was rushed in to pleading guilty and believed he would

be sentenced to five years in prison instead of twenty years. The district court denied

Olson’s application, concluding his attorneyprovided effective representation and his

guilty pleas were knowing and voluntary.

II

[¶7] We employ the following standard of review in post-conviction relief

proceedings:

A trial court’s findings of fact in post-conviction relief

proceedings will not be disturbed unless they are clearly erroneous. 

Hill v. State, 2000 ND 143, ¶ 17, 615 N.W.2d 135. A finding of fact is

clearly erroneous if it is induced by an erroneous view of the law, if it

is not supported by any 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. DeCoteau v. State, 2000 ND

44, ¶ 10, 608 N.W.2d 240. Questions of law are fully reviewable on

appeal of a post-conviction proceeding. Falcon 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 accomplice to commit murder is not a cognizable

criminal offense in North Dakota.

[¶9] Under N.D.C.C. § 12.1-16-01(1)(b), a person is guilty of murder, a class AA

felony, if the person “[c]auses the death of another human being under circumstances

manifesting extreme indifference to the value of human life[.]” Extreme indifference

murder is a general intent crime. State v. Borner, 2013 ND 141, ¶ 18, 836 N.W.2d

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383. “Under N.D.C.C. § 12.1-16-01(1)(b), a person does not intend to cause the death

of another human-being, but rather death is a consequence of the defendant’s willful

conduct.” Borner, at ¶ 18. “In other words, extreme indifference murder results in

an unintentional death frombehavior manifesting an extreme indifference to the value

of human life.” Id.

[¶10] The amended information charged Olson with accomplice to commit murder

under N.D.C.C. §§ 12.1-03-01(1)(b) and 12.1-16-01(1)(b), claiming Olson “acted as

an accomplice to the murder of Joey Gaarsland by intending that an offense be

committed and aiding another in committing the offense that resulted in the death of

Joey Gaarsland.” Under N.D.C.C. § 12.1-03-01(1)(b), “[a] person may be convicted

of an offense based upon the conduct of another person when: [w]ith intent that an

offense be committed, he commands, induces, procures, or aids the other to commit

it, or, having a statutory duty to prevent its commission, he fails to make proper effort

to do so.”

[¶11] Olson’s primary argument is that because conspiracy to commit extreme

indifference murder is not cognizable, accomplice to extreme indifference murder is

also not cognizable. See Borner, 2013 ND 141, ¶ 20, 836 N.W.2d 383 (holding

“conspiracy to commit extreme indifference murder, under N.D.C.C. §§ 12.1-06-04

and 12.1-16-01(1)(b), is not a cognizable offense”). Olson has not cited any authority

holding accomplice is synonymous with conspiracy. In State v. Lind, 322 N.W.2d

826, 842 (N.D. 1982), this Court addressed a similar argument and held a coconspirator is not synonymous with accomplice:

[W]e have no authority cited to us that a co-conspirator is synonymous

with an accomplice. The North Dakota Criminal Code is consistent in

its separate treatment of co-conspirators and accomplices, as evidenced

bySection 12.1-06-04(5): “Accomplice liabilityfor offenses committed

in furtherance of the conspiracy is to be determined as provided in

Section 12.1-03-01.” The definition of “accomplice” in Section 12.1-

03-01(1)(a) and (b), specifies acts different from those set forth in the

definition of “criminal conspiracy” in Section 12.1-06-04(1).

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[¶12] Other states with similar accomplice statutes have held accomplice to extreme

indifference murder or reckless manslaughter is a recognized offense. In Riley v.

State, 60 P.3d 204, 215-17 (Alaska Ct. App. 2002), the court discussed cases from

other states imposing accomplice liability for crimes involving unintended injury or

death. See Ex parte Simmons, 649 So.2d 1282 (Ala. 1994); Mendez v. State, 575

S.W.2d 36 (Tex. Crim. App. 1979); People v. Novy, 597 N.E.2d 273 (Ill. App. Ct.

1992); People v. Cole, 625 N.E.2d 816 (Ill. App. Ct. 1993); Hooks v. State, 416 A.2d

189 (Del. 1980); People v. Wheeler, 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 summarizing these courts’ decisions, the Riley court, 60 P.3d at 215, 221,

explained:

[W]ith respect to offenses that involve a resulting injury or death, these

courts hold that accomplice liability requires proof (1) that the

accomplice intended to promote or facilitate another’s unlawful or

dangerous conduct, and (2) that the accomplice acted with the culpable

mental state specified in the underlying statute with respect to the

resulting injury or death. Thus, these courts uphold accomplices’

convictions for unintended criminal homicides—e.g., “extreme

indifference”murder or reckless manslaughter—based on proofthat the

accomplice, acting with the culpable mental state required for the

underlying crime, purposely encouraged or aided another person to

engage in conduct that posed a substantial and unjustifiable danger to

human life.

. . . . 

In conclusion: The Model Penal Code was written to impose

accomplice liability for crimes involving unintended injury or death if

the accomplice intentionally promotes or facilitates the conduct that

produces the injury or death, even though the accomplice did not intend

this result. Among the states that have complicity statutes based on the

Model Penal Code, most courts have interpreted their statutes this way. 

[¶14] The authorities cited have accomplice statutes based in part on Model Penal

Code § 2.06(3) (1962), relating to liability for conduct of another:

(3) A person is an accomplice of another person in the commission

of an offense if:

(a) with the purpose of promoting or facilitating the

commission of the offense, he

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(i) solicits such other person to commit it, or

(ii) aids or agrees or attempts to aid such other person

in planning or committing it, or

(iii) having a legal duty to prevent the commission of

the offense, fails to make proper effort so to do; or

(b) his conduct is expressly declared by law to establish his

complicity.

[¶15] Our accomplice statute, N.D.C.C. § 12.1-03-01, is derived from § 401 of the

proposed Federal Criminal Code. See Lind, 322 N.W.2d at 841 (“Section 401(1) of

the proposed Federal Criminal Code is virtually identical in all material respects to

Section 12.1-03-01(1), N.D.C.C.”); Final Report of the Nat’l Comm’n on Reform of

Federal Criminal Laws § 401, at 33 (1970). The proposed Federal Criminal Code

Working Papers state “The language proposed in the draft [of § 401] is substantially

that used in most of the recent State revisions and the Model Penal Code.” I Working

Papers of the Nat’l Comm’n on Reform of Federal Criminal Laws 154-55 (1970)

(citing Model Penal Code § 2.06).

[¶16] Olson asserts accomplice to murder requires aid with intent that murder be

committed. He claims that because Gaarsland’s death was unintentional, he cannot

be charged with accomplice to extreme indifference murder. We disagree.

[¶17] Olson was charged with accomplice under N.D.C.C. § 12.1-03-01(1)(b),

whereby one may be convicted of an offense based upon the conduct of another when,

with intent that an offense be committed, he or she aids the other to commit it. That

language is similar to the Model Penal Code § 2.06(3) language cited above. With

respect to extreme indifference murder, the language of N.D.C.C. § 12.1-03-01(1)(b)

does not require an accomplice intend that murder be committed, only the intent that

an offense be committed.

[¶18] Extreme indifference murder under N.D.C.C. § 12.1-16-01(1)(b) is a general

intent crime and death is a consequence of a defendant’s willful conduct. Borner,

2013 ND 141, ¶ 18, 836 N.W.2d 383. “A person engages in conduct: ‘Willfully’ if

he engages in the conduct intentionally, knowingly, or recklessly.” N.D.C.C. §

12.1-02-02(1)(e). Olson also plead guilty to conspiracy to commit aggravated assault,

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agreeing to engage in willful conduct causing serious bodily injury to another human

being. See N.D.C.C. §§ 12.1-06-04 and 12.1-17-02(1). Under this factual situation,

Olson could be charged with accomplice to extreme indifference murder by agreeing

to willfully aid in the aggravated assault upon Gaarsland under circumstances

manifesting extreme indifference to the value of human life that ultimately led to

Gaarsland’s death. We agree with the reasoning of the authorities discussed above

and conclude accomplice to extreme indifference murder is a cognizable offense

under North Dakota law.

B

[¶19] Olson argues the district court erred in denying his application for

post-conviction relief because he received ineffective assistance of counsel in the

underlying criminal proceeding.

The Sixth Amendment ofthe United States Constitution, applied

through the Fourteenth Amendment to the States, and Article I, Section

12, of the North Dakota Constitution guarantee criminal defendants

effective assistance of counsel. State v. Garge, 2012 ND 138, ¶ 10, 818

N.W.2d 718. An ineffective assistance of counsel claim involves a

mixed question of law and fact, fully reviewable by this Court. 

Flanagan [v. State], 2006 ND 76, ¶ 9, 712 N.W.2d 602. In order to

prevail on a post-conviction claim for ineffective assistance of counsel,

an applicant must show (1) counsel’s representation fell below an

objective standard of reasonableness and (2) there is a reasonable

probabilitythat, but for counsel’s unprofessional errors,the result ofthe

proceeding would have been different. Strickland v. Washington, 466

U.S. 668, 687-96, 694 (1984). An applicant raising a post-conviction

claim for ineffective assistance of counsel has the “heavy burden” of

establishing the requirements of the two-prong Strickland test.

Flanagan, at ¶ 10.

Everett v. State, 2015 ND 149, ¶ 7, 864 N.W.2d 450.

[¶20] Olson argues his trial attorney rushed him into pleading guilty to the amended

complaint. Olson claims he was under the belief he would receive a five-year prison

sentence and his attorney did not inform him the State would recommend twenty

years. Olson argues the district court should have appointed him a new attorney.

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[¶21] At the post-conviction hearing, Olson testified he did not learn that the State

would recommend twenty years imprisonment until months after the March 2016

change of plea hearing. Olson testified he called his attorney and requested to

withdraw his guilty pleas, and his attorney refused. Olson testified that after the

phone call, his attorney requested to withdraw and Olson wrote a letter to the district

court requesting a new attorney. At a September 2016 hearing on the matter, Olson

explained he thought he would be receiving a five-year prison sentence. After an

exchange between Olson, the court, and Olson’s attorney, Olson agreed to work it out

with his attorney. The court denied Olson’s request for a new attorney.

[¶22] Olson’s attorney testified he discussed the “Proffer Agreement” with Olson

before the change of plea hearing. He testified he advised Olson of his rights and

explained to Olson several times the State would ask for twenty years in prison and

he would argue for five years. The “Proffer Agreement,” signed by Olson, his

attorney, and the State, explicitly states the “State would cap its recommendation at

20 years imprisonment,” and “Olson will be free to argue for whatever sentence he

deems appropriate.”

[¶23] The district court found Olson’s trial attorney provided effective assistance of

counsel. The court found Olson’s trial attorney’s assistance was “well above the

necessary standard of care that lawyers have to give to their clients.” The court found

the attorney provided Olson with appropriate legal advice, met with Olson on many

occasions, and testified credibly at the post-conviction hearing. The court’s findings

relating to Olson’s trial attorney have support in the record and we are not left with

a definite and firm conviction a mistake was made. We conclude the court’s findings

of fact are not clearly erroneous, and the court did not err in rejecting Olson’s

ineffective assistance of counsel claim.

C

[¶24] Olson argues his guilty pleas were not voluntary because the district court

failed to comply with N.D.R.Crim.P. 11 at the change of plea hearing.

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[¶25] When a defendant applies for post-conviction relief seeking to withdraw a

guiltyplea,we generallytreat the application as one made under N.D.R.Crim.P. 11(d). 

Everett, 2015 ND 149, ¶ 14, 864 N.W.2d 450. Under N.D.R.Crim.P. 11(d)(2), a

defendant may not withdraw a guilty plea after the district court has imposed sentence

unless the defendant shows withdrawal is necessary to correct a manifest injustice. 

Whether there has been a manifest injustice supporting withdrawal of the plea lies

within the court’s discretion. State v. Yost, 2018 ND 157, ¶ 6, 914 N.W.2d 508. A

court abuses its discretion under N.D.R.Crim.P. 11(d) when its legal discretion is not

exercised in the interest of justice. Yost, at ¶ 18. In determining whether the court

abused its discretion, we may be required to review the court’s preliminary findings

of fact, which will not be disturbed unless they are clearly erroneous. Greywind v.

State, 2004 ND 213, ¶ 7, 689 N.W.2d 390.

[¶26] Rule 11, N.D.R.Crim.P., governs guilty pleas. Before accepting a guilty plea,

the district court must inform the defendant of the following under 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 to be represented by counsel at trial and at every

other stage of the proceeding and, if necessary, the right to have the

counsel provided under Rule 44;

(D) the right at trial to confront and cross-examine adverse

witnesses, to be protected from compelled self-incrimination, to testify

and present evidence, and to compel the attendance of witnesses;

(E) the defendant’s waiver of these trial rights if the court

accepts a plea of guilty;

(F) the nature of each charge to which the defendant is

pleading;

(G) anymaximumpossible penalty, including imprisonment,

fine, and mandatory fee;

(H) any mandatory minimum penalty;

(I) the court’s authority to order restitution; and

(J) that, if convicted, a defendant who is not a United States

citizen may be removed from the United States, denied citizenship, and

denied admission to the United States in the future.

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Rule 11, N.D.R.Crim.P., does not require the court’s advice to follow a ritualistic,

predetermined formality, but the court must substantially comply with the procedural

requirements of the rule to ensure the defendant’s guilty plea is voluntary. Yost, 2018

ND 157, ¶ 20, 914 N.W.2d 508.

A trial court is not required to readvise a defendant of each of his rights

at a change of plea hearing, provided the court determines that the

defendant was properly advised at arraignment, and that the defendant

now recalls that advice. It is sufficient to satisfy due process if the

defendant’s knowledge of his rights is clearly reflected from the whole

record.

Id. (quoting State v. Gunwall, 522 N.W.2d 183, 185 (N.D. 1994)).

[¶27] Olson claims that after the State amended the information, the district court

failed under N.D.R.Crim.P. 11(b)(1)(G) to inform him of the maximum possible

penalty for accomplice to murder.

[¶28] At his initial appearance, the district court informed Olson that murder was a

class AA felonyand carried amaximumsentence oflife imprisonment without parole. 

Olson stated he understood the charges against him. At the change of plea hearing,

the State informed the court that accomplice to murder carried the same level of

offense and the same potential penalties as murder. Olson’s attorney did not object

to the State’s motion to amend. Olson’s attorney indicated he reviewed the amended

information with Olson and waived a formal reading of the amended information. 

The court asked Olson about the earlier hearing where he had been read his rights and

informed of the charges against him. Olson stated he remembered being read his

rights and he understood them. The court asked Olson whether he was pleading guilty

or not guilty to the charge of accomplice to murder, a class AA felony, and Olson

replied “Guilty.” The court asked Olson whether he was pleading guilty voluntarily

and Olson responded he was. The court found “there is sufficient factual basis for the

pleas which are made pursuant to the Alford case, and that the guilty pleas are entered

freely and voluntarily.”

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[¶29] The post-conviction court determined the district court complied with the

requirements of N.D.R.Crim.P. 11 and Olson’s guilty pleas were knowing and

voluntary. From the entire record, we conclude the court in the underlying criminal

proceeding substantiallycomplied with Rule 11 before accepting Olson’s guiltypleas. 

Olson failed to establish withdrawal of his guilty pleas was necessary to correct a

manifest injustice.

III

[¶30] Olson’s remaining arguments are either unnecessary to our decision or without

merit. The order denying Olson’s application for post-conviction relief is affirmed.

[¶31] Lisa Fair McEvers

Daniel J. Crothers

Jerod E. Tufte

Jon J. Jensen

Gerald W. VandeWalle, C.J.

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