IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2023 ND 109

Jason Travis O’Neal, Petitioner and Appellant

v.

State of North Dakota, Respondent and Appellee

No. 20220353

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

the Honorable Stephannie N. Stiel, Judge.

AFFIRMED.

Opinion of the Court by Crothers, Justice.

Scott O. Diamond, Fargo, ND, for petitioner and appellant; submitted on brief.

Brianna K. Kraft, Assistant State’s Attorney, Fargo, ND, for respondent and 

appellee; submitted on brief.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

JUNE 8, 2023 

STATE OF NORTH DAKOTA
1

O’Neal v. State

No. 20220353

Crothers, Justice.

[¶1] Jason O’Neal appeals from a district court order denying his postconviction relief application. O’Neal argues the court abused its discretion and 

erred by denying his application. We affirm.

I

[¶2] On August 24, 2020, O’Neal was charged with attempted murder. On 

April 19, 2021, O’Neal pleaded guilty to the charge of attempted murder and 

was sentenced to 15 years. On March 22, 2022, O’Neal filed an application for 

post-conviction relief based on newly discovered evidence and ineffective 

assistance of counsel. On October 14, 2022, a post-conviction evidentiary 

hearing was held. On December 1, 2022, the district court issued an order 

denying O’Neal’s application. O’Neal timely appealed. 

II

[¶3] O’Neal argues he is entitled to post-conviction relief because new 

evidence was discovered after he pleaded guilty. He claims the district court 

abused its discretion by denying his application for post-conviction relief and

he is entitled to withdraw his guilty plea, receive appointment of new counsel, 

and receive a new trial.

[¶4] Post-conviction relief is available under N.D.C.C. § 29-32.1-01(1)(e) when 

“[e]vidence, not previously presented and heard, exists requiring vacation of 

the conviction or sentence in the interest of justice.” Applications based on 

newly discovered evidence are reviewed as a motion for a new trial based on 

newly discovered evidence under N.D.R.Crim.P. 33. The standard is well

established:

“Under N.D.R.Crim.P. 33(a), the trial court may grant a new trial 

to the defendant if required in the interests of justice. To prevail 
2

on a motion for a new trial on the ground of newly discovered 

evidence, the defendant must show (1) the evidence was discovered 

after trial, (2) the failure to learn about the evidence at the time of 

trial was not the result of the defendant’s lack of diligence, (3) the 

newly discovered evidence is material to the issues at trial, and (4) 

the weight and quality of the newly discovered evidence would 

likely result in an acquittal. A motion for new trial based upon 

newly discovered evidence rests within the discretion of the trial 

court, and we will not reverse the court’s denial of the motion 

unless the court has abused its discretion. If the newly discovered 

evidence is of such a nature that it is not likely to be believed by 

the jury or to change the results of the original trial, the court’s 

denial of the new trial motion is not an abuse of discretion. A trial 

court abuses its discretion if it acts arbitrarily, unreasonably, 

unconscionably, or when its decision is not the product of a rational 

mental process leading to a reasoned decision.”

Kovalevich v. State, 2018 N.W.2d 184, ¶ 5, 915 N.W.2d 644.

[¶5] O’Neal argues new evidence may have been discovered if the alleged 

weapon had been forensically tested. Specifically, he claims new evidence of an 

alternative perpetrator may have been discovered. The district court found 

O’Neal did not meet the burden for post-conviction relief based on new evidence 

because he knew before the trial about the potential evidence that could come 

from forensic testing of the weapon. The court’s findings are supported by the 

record; however those findings ignore the statutory threshold that new 

evidence “exists.” See N.D.C.C. § 29-32.1-01(1)(e). Here, O’Neal only claimed 

new evidence may exist, or may have been discovered. Therefore, the district

court did not abuse its discretion in denying O’Neal’s application for relief 

based on newly discovered evidence. 

III

[¶6] O’Neal argues his court-appointed counsel was ineffective because she 

did not compel forensic testing on any evidence and pushed him toward a plea 

deal. Therefore, O’Neal claims the district court erred in denying his 

application for post-conviction relief. O’Neal claims he is entitled to withdraw 

his guilty plea, receive appointment of new counsel, and a new trial.
3

[¶7] To prove post-conviction relief based on ineffective assistance of counsel 

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

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

probability that, but for the counsel’s unprofessional errors, the result of the 

proceeding would have been different.” Bahtiraj v. State, 2013 ND 240, ¶ 9, 

840 N.W.2d 605; see also Strickland v. Washington, 466 U.S. 668, 688, 694, 104 

S.Ct. 2052, 80 L.Ed.2d 674 (1984).

[¶8] The standard of review for a claim of ineffective assistance of counsel in 

a post-conviction proceeding is well established:

“Post-conviction relief proceedings are civil in nature and governed 

by the North Dakota Rules of Civil Procedure. Flanagan v. State,

2006 ND 76, ¶ 9, 712 N.W.2d 602. Whether a petitioner received 

ineffective assistance of counsel is a mixed question of law and fact 

and is fully reviewable on appeal. Klose v. State, 2005 ND 192, 

¶ 10, 705 N.W.2d 809. Under N.D.R.Civ.P. 52(a), the district court’s 

findings of fact will not be disturbed on appeal unless clearly 

erroneous. ‘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 the finding, a 

reviewing court is left with a definite and firm conviction a mistake 

has been made.’ Heckelsmiller v. State, 2004 ND 191, ¶ 5, 687 

N.W.2d 454.”

Roe v. State, 2017 ND 65, ¶ 5, 891 N.W.2d 745.

[¶9] O’Neal argues his counsel was ineffective because she did not request 

forensic testing of evidence. O’Neal’s counsel testified she did not request 

forensic testing on the weapon because it would not have been helpful to the 

defense. She said the State had sufficient evidence even without the weapon to 

prove the case against O’Neal beyond a reasonable doubt. Counsel also testified

O’Neal wanted the weapon tested for the victim’s DNA but forensic testing for 

the victim’s DNA would not have been necessary because the victim’s injuries 

were not at issue in this matter. O’Neal’s counsel testified she did not request 

forensic testing on the other evidence because again it would not have been 

helpful to the defense. She said O’Neal’s DNA likely would have been on most 

of the evidence since he was living in the house where the victim was injured. 
4

The district court found prior to O’Neal’s plea, O’Neal and his counsel had 

extensive discussions about the forensic testing and ultimately decided not to 

pursue this defense strategy. 

[¶10] O’Neal also argues his counsel was ineffective because she forced him 

into a plea deal. O’Neal does not offer any evidence to show his counsel forced

him to take a plea deal. In fact, O’Neal testified his counsel was doing her job 

when she informed him the State had sufficient evidence against him and there 

were risks of going to trial. O’Neal also testified his counsel never stated he did 

not have a right to go to trial or that she did not want to go to trial.

[¶11] Based on these facts, the district court found O’Neal did not meet the 

burden for post-conviction relief based on ineffective assistance of counsel. The

court’s findings were not induced by an erroneous view of the law and were

supported by evidence. The court did not clearly err in finding O’Neal did not 

show his counsel’s representation was below the standard of reasonableness 

nor a reasonable probability that but for this alleged error the result would 

have been different.

IV

[¶12] The district court did not abuse its discretion in finding O’Neal did not 

meet the burden for post-conviction relief based on newly discovered evidence. 

The court also did not err in finding O’Neal did not meet the burden for relief 

based on ineffective assistance of counsel. We affirm the district court’s order 

denying O’Neal’s application for post-conviction relief. 

[¶13] Jon J. Jensen, C.J. 

Daniel J. Crothers 

Lisa Fair McEvers 

Jerod E. Tufte

Douglas A. Bahr