IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2023 ND 181

Sidhassan Yaqub-Sharif Isac, Petitioner and Appellant

v.

State of North Dakota, Respondent and Appellee

No. 20230100

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

the Honorable Susan L. Bailey, Judge.

AFFIRMED.

Opinion of the Court by Crothers, Justice.

Kiara C. Kraus-Parr, Grand Forks, ND, for petitioner and appellant.

Avinoor Mann (argued), under the Rule on Limited Practice of Law by Law 

Students, Kara S. Olson (appeared) and Nicholas S. Samuelson (on brief), 

Assistant State’s Attorneys, Fargo, ND for respondent and appellee.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

SEPTEMBER 28, 2023 

STATE OF NORTH DAKOTA
1

Isac v. State

No. 20230100

Crothers, Justice.

[¶1] Sidhassan Yaqub-Sharif Isac appeals from an order denying his 

application for post-conviction relief. He argues the district court erred when 

it found he was not prejudiced by his counsel’s failure to advise him of the 

immigration consequences of a criminal conviction prior to entering a guilty 

plea. He also argues the court failed to follow the proper procedure for allowing 

a witness to refresh his recollection while testifying. We affirm.

I

[¶2] Isac was born in Somalia. He came to the United States when he was 

eight years old and has lived here for roughly 20 years. He is not a United 

States citizen. In 2020, he was charged with possession of a controlled 

substance, possession of drug paraphernalia, and driving under suspension. 

He pleaded guilty and the district court sentenced him to 360 days 

imprisonment. He did not appeal. At the time of his plea he had roughly 25

other convictions, including drug and alcohol related crimes. United States 

Immigration and Customs Enforcement subsequently detained Isac pending 

proceedings to deport him to Somalia.

[¶3] Isac filed an application for post-conviction relief seeking to withdraw 

his guilty plea. He alleged Fourth Amendment violations based upon the 

length of the traffic stop leading to the charges. He later filed an amended 

petition asserting he received ineffective assistance of counsel because his 

attorney failed to advise him of the immigration consequences of a conviction. 

[¶4] The district court held an evidentiary hearing. The State called Isac’s 

criminal defense counsel, Leo Patrick O’Day, Jr., to testify. Isac objected to 

O’Day’s testimony, asserting O’Day was required to testify from memory and 

not his notes. The court warned O’Day he could not read from his notes while 

testifying. The court issued a standing instruction allowing O’Day to use his 

notes to refresh his recollection “then look up and answer the question.” O’Day 

testified he never discussed possible immigration consequences with Isac. Isac 
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testified he would not have pleaded guilty had he known the immigration 

consequences of a conviction. The court entered an order denying Isac postconviction relief. The court found O’Day was ineffective for not providing Isac 

immigration advice, but Isac failed to establish the deficient representation 

caused him prejudice. Isac appeals. 

II

[¶5] Post-conviction relief proceedings are governed by the Uniform PostConviction Procedure Act, N.D.C.C. ch. 29-32.1. An applicant for postconviction relief bears the burden of establishing grounds for relief. Morris v. 

State, 2019 ND 166, ¶ 6, 930 N.W.2d 195. Questions of law are fully reviewable. 

Id. Findings of fact are reviewed under the clearly erroneous standard of 

review. Id. “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.” Id. (quoting Curtiss v. State, 

2016 ND 62, ¶ 7, 877 N.W.2d 58).

A

[¶6] Isac argues the district court erred when it found he was not prejudiced 

by O’Day’s failure to provide him immigration advice. Isac asserts his own

testimony establishes he would have proceeded to trial had he known his plea 

would result in him facing deportation to Somalia. 

[¶7] A post-conviction relief application seeking to withdraw a guilty plea is 

treated as a motion made under N.D.R.Crim.P. 11(d), which requires the 

defendant establish a manifest injustice absent withdrawal of the plea. Kremer 

v. State, 2020 ND 132, ¶ 5, 945 N.W.2d 279. When an applicant seeks to 

withdraw a guilty plea based upon ineffective assistance of counsel, the 

applicant bears the heavy burden of satisfying the two-part test set out by 

Strickland v. Washington, 466 U.S. 668 (1984). The applicant must show (1) 

his “counsel’s representation fell below an objective standard of 

reasonableness,” and (2) “there is a reasonable probability that, but for 
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counsel’s errors, he would not have pleaded guilty and would have insisted on 

going to trial.” Isxaaq v. State, 2021 ND 148, ¶¶ 8-9, 963 N.W.2d 260.

[¶8] Under the first prong, defense counsel’s representation is measured 

against “prevailing professional norms.” Isxaaq, 2021 ND 148, ¶ 10 (quoting 

Bahtiraj v. State, 2013 ND 240, ¶ 10, 840 N.W.2d 605). If it is clear a noncitizen 

defendant will be deported, a constitutionally competent counsel would advise 

his client of that certainty. Isxaaq, at ¶ 10. If the immigration consequences 

are uncertain, a constitutionally competent counsel “need do no more than 

advise a noncitizen client that pending criminal charges may carry a risk of 

adverse immigration consequences.” Id. (quoting Padilla v. Kentucky, 559 U.S. 

356, 369 (2010)). Prong one is not an issue in this case. The State does not 

challenge the district court’s holding that Isac received ineffective assistance

when his counsel failed to provide any advice concerning the potential 

immigration consequences of a conviction. 

[¶9] The issue before the Court is whether the district court erred when it 

found Isac failed to prove prejudice under prong two. Prong two requires a 

determination as to whether, absent his counsel’s deficient representation, Isac 

“would not have pleaded guilty and would have insisted on going to trial.” 

Isxaaq, 2021 ND 148, ¶ 9. We have noted a “progression in the law” on the 

standard for determining whether a criminal defendant has been prejudiced 

by counsel’s failure to provide advice concerning the immigration consequences 

of a guilty plea. Id. at ¶ 21. In Bahtiraj, we explained a defendant must prove 

that rejecting a plea deal would have been “rational under the circumstances,” 

and the inquiry is informed by “an examination and prediction of the likely 

outcome of a possible trial.” 2013 ND 240, ¶ 16. We noted a defendant may 

meet his or her burden by establishing, for example, the existence of a valid 

defense, a meritorious motion to suppress evidence, or the potential for 

obtaining a lower sentence. Id.

[¶10] After our decision in Bahtiraj, the United States Supreme Court 

explained “there is more to consider than simply the likelihood of success at 

trial.” Lee v. United States, 582 U.S. 357, 367 (2017). The question requires an 

examination of “what an individual defendant would have done” had he 
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received competent advice. Id. at 368. “[T]he possibility of even a highly 

improbable result may be pertinent to the extent it would have affected his 

decision making.” Id. For example, when a defendant’s choice to go to trial will 

“almost” certainly lead to deportation, but pleading guilty will guarantee it, 

the decision to throw a “Hail Mary” and go to trial may be rational. Id. at 369-

71. However, a defendant’s after-the-fact assertions about his decision making, 

on their own, are not sufficient to meet the burden. Id. at 369. “Judges should 

instead look to contemporaneous evidence to substantiate a defendant’s 

expressed preferences.” Id.

[¶11] Isac does not assert the crimes he pleaded guilty to are mandatory 

deportation crimes. He admits that, at the time he pleaded guilty, the 

immigration consequences of his plea were uncertain. He asserts a competent 

defense counsel would have consulted an immigration attorney to give him the 

information he needed to accurately assess his situation. Yet the record 

contains nothing indicating what that advice may have been. See Lee, 582 U.S. 

at 367 (stating a decision to plead guilty involves assessing the consequences 

of a conviction). Isac claims such evidence is unnecessary because we now know 

for certain his plea resulted in deportation proceedings. However, the district 

court is required to determine what Isac would have done had he received 

competent advice—not what he would have done with the benefit of hindsight. 

[¶12] The district court assessed the strength of the State’s case as strong. The 

court noted Isac admitted to law enforcement that he owned the drugs and 

drug paraphernalia that were found in the vehicle he was driving. The court 

also found Isac had approximately 25 convictions, and he had been warned of 

the potential immigration consequences of a guilty plea “innumerable times” 

during arraignments, by the judge herself, by his “multiple prior defense 

counsel,” and by a “colloquy with a Judge in a prior case.” Despite these 

warnings, Isac did not offer evidence to show he requested more information 

about immigration consequences, sought reassurance that his immigration 

status was not implicated, or made efforts to obtain an immigration attorney. 

On this record, the district court’s finding that Isac did not show prejudice from 

his counsel’s deficient representation is not clearly erroneous.
5

B

[¶13] Isac argues the district court did not follow the proper procedure for 

allowing O’Day to refresh his recollection. He claims the court’s procedure 

effectively allowed O’Day to offer his notes into evidence rather than testify 

from memory.

[¶14] We review a district court’s evidentiary rulings for an abuse of discretion. 

State v. Peters, 2022 ND 196, ¶ 13, 981 N.W.2d 874. “A court abuses its 

discretion when it acts in an arbitrary, capricious, or unreasonable manner, 

when it misinterprets or misapplies the law, or when its decision is not the 

product of a rational mental process leading to a reasoned decision.” State v. 

Shaw, 2018 ND 32, ¶ 6, 905 N.W.2d 905. An appellant challenging the district 

court’s admission of evidence in a bench trial bears a heavy burden:

“In the trial of a nonjury case, it is virtually impossible for a trial 

judge to commit reversible error by receiving incompetent 

evidence, whether objected to or not. An appellate court will not 

reverse a judgment in a nonjury case because of the admission of 

incompetent evidence, unless all of the competent evidence is 

insufficient to support the judgment or unless it affirmatively 

appears that the incompetent evidence induced the court to make 

an essential finding which would not otherwise have been made.”

Matter of Estate of Froemke, 2023 ND 154, ¶ 13, --- N.W.2d --- (quoting Zundel 

v. Zundel, 2020 ND 150, ¶ 29, 945 N.W.2d 297).

[¶15] Witnesses must testify from personal knowledge. N.D.R.Ev. 602. Adverse 

parties are entitled to production of writings used by witnesses to refresh their 

recollection while testifying. N.D.R.Ev. 612(b). We have explained the 

procedure:

“First, witnesses must show a need to refresh their memory, and 

second, witnesses must confirm that the notes will assist them in 

refreshing their memory. Witnesses may not testify directly from 

the notes, but can use the notes to assist in their recollection. A 

district court has broad discretion to control the use of evidence to 

refresh memory and determine whether witnesses are using a 
6

writing to refresh their memory, or whether they are effectively 

offering the writing for its truth.”

Cmty. Homes of Bismarck, Inc. v. Main, 2011 ND 27, ¶ 11, 794 N.W.2d 204

(citations omitted); see also Leno v. Dir., N.D. Dep’t of Transp. 2015 ND 255, 

¶ 12, 870 N.W.2d 455.

[¶16] Isac objected during the evidentiary hearing, asserting O’Day was 

improperly reading from notes. The district court responded: “I’ll just give a 

standing instruction that you may refresh your recollection and then you can 

indicate when you’re ready to respond.” The court agreed with Isac’s counsel: 

“she’s correct that you can’t read from your notes. I am allowing you to refresh 

your recollection, then look up and answer the question.” The court found 

O’Day needed to refresh his recollection given “[h]e has hundreds and 

hundreds of files.” Isac did not move the court to order production of the notes. 

The court correctly applied the law by allowing O’Day to use notes to refresh 

his recollection. On this record, the district court did not abuse its discretion. 

III

[¶17] We affirm the order denying Isac’s application for post-conviction relief.

[¶18] Jon J. Jensen, C.J. 

Daniel J. Crothers 

Lisa Fair McEvers 

Jerod E. Tufte

Douglas A. Bahr