IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2021 ND 132

Travis Eugene Yoney, Petitioner and Appellant

v.

State of North Dakota, Respondent and Appellee

No. 20200359

Appeal from the District Court of Ward County, North Central Judicial 

District, the Honorable Gary H. Lee, Judge.

REVERSED AND REMANDED.

Opinion of the Court by Tufte, Justice, in which Chief Justice Jensen and 

Justices VandeWalle and Crothers joined. Justice McEvers filed an opinion 

concurring and dissenting.

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

Todd A. Schwarz, Assistant State’s Attorney, Minot, N.D., for respondent and 

appellee.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

JULY 22 2021 

STATE OF NORTH DAKOTA
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Yoney v. State

No. 20200359

Tufte, Justice.

[¶1] Travis Yoney appeals from a district court order summarily dismissing

his application for postconviction relief. He argues he received ineffective 

assistance of counsel because his attorney’s proposed jury instructions for 

attempted murder included the culpability of “knowingly,” which Yoney claims 

is a non-cognizable offense. We recently held in Pemberton v. State, 2021 ND 

85, ¶ 13, 959 N.W.2d 891, that attempted knowing murder is not a cognizable 

offense. We conclude Yoney failed to demonstrate he received ineffective 

assistance of counsel. However, on the basis of Pemberton, we reverse the order

and remand with instructions to vacate Yoney’s attempted murder conviction.

I

[¶2] In 2019, a jury found Yoney guilty of numerous crimes, including 

burglary, attempted murder, terrorizing, reckless endangerment, unlawful 

possession of a firearm, and violation of an order prohibiting contact. The 

district court sentenced Yoney to thirty years in prison.

[¶3] On appeal, Yoney argued attempt to knowingly commit murder was a 

non-cognizable offense. State v. Yoney, 2020 ND 118, ¶ 5, 943 N.W.2d 791.

Yoney challenged the district court’s attempted murder jury instruction 

stating he acted to “intentionally or knowingly cause the death of John Doe.” 

Id. at ¶ 6. We declined to address the argument, holding Yoney invited the 

error because he submitted a jury instruction for attempted murder with the 

culpability of “knowingly.” Id. at ¶¶ 12-13.

[¶4] Yoney applied for postconviction relief, claiming ineffective assistance of 

counsel. He alleged his attorney submitted a defective jury instruction that 

included “knowingly” as a culpability for attempted murder. Yoney argued 

attempted murder is a specific intent crime and he could not have been 

convicted of attempted murder while acting “knowingly.” Yoney also asserted 

his attorney was ineffective because he conceded guilt without Yoney’s 

approval. Yoney requested that the court vacate his conviction.
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[¶5] The State responded to Yoney’s application and moved for summary 

dismissal. The State argued Yoney’s counsel was not constitutionally 

ineffective and any alleged deficient performance by his counsel did not 

prejudice him. The district court summarily dismissed Yoney’s application for 

postconviction relief.

II

[¶6] Postconviction relief proceedings are civil proceedings governed by the 

North Dakota Rules of Civil Procedure. Myers v. State, 2017 ND 66, ¶ 7, 891 

N.W.2d 724. A district court may summarily dismiss an application for 

postconviction relief if there is no genuine issue of material fact and the moving 

party is entitled to judgment as a matter of law. N.D.C.C. § 29-32.1-09(3). We 

review an appeal from summary dismissal of an application for postconviction 

relief as we would review an appeal from a summary judgment. Myers, at ¶ 7. 

If the State moves for summary dismissal, an applicant must present 

competent admissible evidence by affidavit or other comparable means which 

raises a genuine issue of material fact. Henke v. State, 2009 ND 117, ¶ 11, 767 

N.W.2d 881. The party opposing a motion for summary dismissal is entitled to 

all reasonable inferences to be drawn from the evidence and is entitled to an 

evidentiary hearing if a reasonable inference raises a genuine issue of material 

fact. Myers, at ¶ 7.

III

[¶7] Yoney claims the district court erred in summarily dismissing his 

application for postconviction relief, because he received ineffective assistance 

of counsel in the underlying criminal proceeding.

The Sixth Amendment of the 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) 
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counsel’s representation fell below an objective standard of 

reasonableness and (2) there is a reasonable probability that, but 

for counsel’s unprofessional errors, the result of the 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.

Olson v. State, 2019 ND 135, ¶ 19, 927 N.W.2d 444 (quoting Everett v. State, 

2015 ND 149, ¶ 7, 864 N.W.2d 450).

A

[¶8] Yoney argues his attorney was ineffective by submitting an improper

jury instruction for attempted murder. He asserts the instruction that included 

the culpability of “knowingly” allowed him to be convicted of a non-cognizable 

offense. Yoney argues attempted knowing murder is a non-cognizable offense 

under this Court’s decision in State v. Swanson, 2019 ND 181, 930 N.W.2d 645.

[¶9] In Swanson, 2019 ND 181, ¶ 13, this Court concluded “the term 

knowingly, when used in conjunction with N.D.C.C. § 12.1-16-01(1)(a), permits 

an individual to be convicted of a murder when they did not have the purpose 

(synonymous with intent) to cause the death of another human being.” We held 

“[c]onspiracy to ‘knowingly’ commit a murder is a non-cognizable offense 

because it allows an individual to be convicted of the offense without an intent 

to cause the death of another human being.” Id. at ¶ 15. We also stated, 

“Because the inclusion of ‘knowingly’ in the jury instruction allowed the jury 

to convict Swanson of conspiracy to commit murder without an intent to cause 

the death of another human being, the instruction was improper and allowed 

Swanson to have potentially been convicted of a non-cognizable offense.” Id. at 

¶ 14.

[¶10] While Yoney’s present appeal was pending, we held in Pemberton v. 

State, 2021 ND 85, ¶ 13, 959 N.W.2d 891, that “an attempted ‘knowing’ murder

is a non-cognizable offense.” The attempted murder jury instruction at issue 

was similar to the one in Yoney’s case, stating Pemberton “[a]ttempted to 
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intentionally or knowingly cause the death of another human being.” Id. at 

¶ 15. We stated:

Because the offense of attempted murder requires the accused to 

have the intent to complete the commission of the underlying 

crime by causing the death of another and a “knowing” murder 

under N.D.C.C. § 12.1-16-01(1)(a) does not require the accused to 

have the intent to cause the death of another, a “knowing murder” 

cannot be the basis for an attempted murder conviction.

Id. at ¶ 13. We concluded the attempted murder instruction with “knowingly” 

as a culpability “allowed the jury to find Pemberton guilty of a non-cognizable 

offense.” Id. at ¶ 17. We reversed the district court’s order denying Pemberton’s 

application for postconviction relief. Id. at ¶ 28.

[¶11] Swanson was decided after Yoney’s trial and was the first case to address

the statutory definition of “knowingly” under N.D.C.C. § 12.1-02-02 in

conjunction with conspiracy and N.D.C.C. § 12.1-16-01(1)(a). In Dominguez v. 

State, 2013 ND 249, ¶ 22, 840 N.W.2d 596, decided before Yoney’s trial, this 

Court held the offense of attempted murder under N.D.C.C. § 12.1-16-01(1)(b), 

extreme indifference murder, is a non-cognizable offense. We held the offense 

of attempted murder requires the accused to have “an intent to kill.” Id. This 

Court also noted, “When there is evidence of an intent to kill, a person can be 

convicted of attempted murder under N.D.C.C. §§ 12.1-06-01 and 12.1-16-

01(1)(a) for attempting to knowingly or intentionally cause the death of 

another human being.” Id. at ¶ 19; see also Pemberton, 2021 ND 85, ¶ 14 

(noting that although the statement in Dominguez may have been overly broad 

by including the word “knowingly,” this Court was clear that the state must 

prove the accused had an intent to kill).

[¶12] At the time Yoney’s counsel submitted the proposed jury instruction, this 

Court’s statement in Dominguez, 2013 ND 249, ¶ 19, suggesting a person can 

be convicted of attempted murder under N.D.C.C. § 12.1-16-01(1)(a) for 

attempting to knowingly or intentionally cause the death of another had not 

yet been further explained by our decisions in Swanson and Pemberton. We 

cannot conclude Yoney has shown his counsel’s representation fell outside the

broad range of reasonableness for submitting an attempted murder jury 
5

instruction that included the culpability of “knowingly.” The district court did 

not err in concluding Yoney received effective assistance of counsel.

B

[¶13] Yoney argues his attorney was ineffective because he admitted guilt on 

his behalf without his consent. Yoney contends his attorney conceded guilt at 

trial during his Rule 29 motion for acquittal by stating Yoney violated a 

protection order. Yoney also claims that during closing argument his attorney 

conceded that Yoney may have had a rifle, but that he never pointed the rifle 

at John Doe.

[¶14] The district court concluded the attorney’s alleged concessions made at 

the Rule 29 motion were made outside the presence of the jury and would not 

have affected the outcome of the case. The court concluded the attorney’s 

statement during closing argument that Yoney had a rifle was a trial strategy:

In this case, the cards given to attorney Migdal included the 

fact that a bullet was fired from outside, and into John Doe’s home. 

A second bullet was fired inside the home, through the ceiling. A 

third card was that virtually all of the evidence established that it 

was Travis Yoney who possessed the rifle and who fired it.

What was attorney Migdal to do? He could not just ignore 

the facts and say they did not exist. He could not argue mistaken 

identity. The police responded to the scene and found Travis Yoney 

still in John Doe’s residence. He could not ethically and in good 

faith argue some fantastical theory of the case that had no basis in 

fact or law. How then to best play the cards dealt ethically, in good 

faith, and with a modicum of credibility before a jury? These are 

questions of trial strategy and tactics that a lawyer, not the client, 

controls.

. . . .

Travis Yoney asserts that attorney Migdal’s concession that 

he possessed a rifle, but did not point it [at] John Doe fell below 

reasonable standards. A review of the transcript reveals that 

attorney Migdal, faced with the overwhelming evidence that it was 

Travis Yoney who came to John Doe’s residence armed with a rifle, 
6

and who fired it into John Doe’s home, attempted to convince the 

jury that Travis Yoney did not point the firearm [at] John Doe in 

order to negate an argument of intent to murder. He further 

suggested that Travis Yoney may have possessed the firearm as a 

measure of self-defense. To the extent that any concession was 

made, it was done without admission that Travis Yoney intended 

to kill anyone. The argument was made in an effort to negate 

intent. This is permissible.

[¶15] We agree with the district court’s conclusion that Yoney was not 

prejudiced by his attorney’s trial strategy. See United States v. Rosemond, 958 

F.3d 111, 122 (2d Cir. 2020) (stating that when there is overwhelming evidence 

against a defendant, counsel may make certain concessions without 

prejudicing the defendant). Additionally, Yoney did not present competent 

admissible evidence demonstrating he specifically instructed his attorney to 

pursue a different trial strategy. The court appropriately granted summary 

dismissal.

IV

[¶16] While we agree with the district court that Yoney did not receive 

ineffective assistance of counsel, we must determine what impact our decision 

in Pemberton has on his argument that attempted knowing murder is a noncognizable offense. In Yoney’s direct appeal, he raised the same argument we 

addressed in Pemberton about whether attempt to knowingly commit murder 

was a non-cognizable offense. Yoney, 2020 ND 118, ¶ 5. However, we declined 

to address the argument, concluding Yoney invited the error because his 

attorney submitted a jury instruction for attempted murder with the 

culpability of “knowingly.” Id. at ¶¶ 12-13.

[¶17] At the time of Yoney’s April 2019 trial, it was not clearly established that 

attempted knowing murder was a non-cognizable offense. See State v. Lott, 

2019 ND 18, ¶ 8, 921 N.W.2d 428 (“There is no obvious error when an 

applicable rule of law is not clearly established.”); see also Bell v. State, 1998 

ND 35, ¶ 34, 575 N.W.2d 211 (stating waived error may provide the basis for 

reversal if it constitutes obvious error affecting a substantial right). Just as 

Pemberton was prejudiced because the attempted murder instruction with
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“knowingly” as a culpability allowed the jury to find him guilty of a noncognizable offense, we conclude Yoney was prejudiced in the same manner.

[¶18] This Court, on its own motion, may “notice errors to which no exception 

has been taken, if the errors are obvious, or if they otherwise seriously affect 

the fairness, integrity, or public reputation of judicial proceedings.” State v. 

Whitman, 2013 ND 183, ¶ 10, 838 N.W.2d 401 (quoting United States v. 

Atkinson, 297 U.S. 157, 160 (1936)). To deny Yoney the postconviction relief 

granted to Pemberton would seriously affect the fairness, integrity, and public 

reputation of the criminal jury trial. See Coppage v. State, 2014 ND 42, ¶¶ 30, 

34-35, 843 N.W.2d 291 (noticing obvious error and granting postconviction 

relief on the basis of the Dominguez decision); Whitman, at ¶¶ 11, 18 (reversing 

conviction for non-cognizable offense on the basis of State v. Borner, 2013 ND 

141, 836 N.W.2d 383 despite appellant’s failure to raise issue). As we did in 

Whitman and Coppage, in the context of convictions for non-cognizable 

offenses, we exercise our discretion to notice this error on the basis of our 

decision in Pemberton and reverse the district court’s order denying 

postconviction relief. We grant Yoney postconviction relief under N.D.C.C. 

§ 29-32.1-01(1)(a), vacate the amended criminal judgment for attempted 

murder, and remand for a new trial on that charge.

V

[¶19] Yoney’s remaining arguments are without merit or not necessary to our

decision. We agree with the district court’s order to the extent the court denied 

Yoney’s application for postconviction relief on the grounds of ineffective 

assistance of counsel; however, we reverse the order and remand with 

instructions to vacate Yoney’s attempted murder conviction.

[¶20] Jon J. Jensen, C.J.

Gerald W. VandeWalle

Daniel J. Crothers

Jerod E. Tufte
8

McEvers, Justice, concurring and dissenting.

[¶21] I agree with the majority opinion’s conclusion that the district court did 

not err in concluding Yoney did not meet his burden of proving ineffective 

assistance of counsel regarding the jury instruction submitted by his trial 

attorney. Majority, at ¶ 12. While allegations of ineffective assistance of 

counsel usually merit an evidentiary hearing, Yoney’s claim fails as a matter 

of law. The court, citing cases from other jurisdictions, concluded defense 

attorneys are not ineffective for failing to be clairvoyant or for failing to 

anticipate a change in existing law. See State v. Sanders, 855 N.W.2d 350 

(Neb. 2014); Lee v. State, 91 N.E.3d 978 (Ind. Ct. App. 2017); Felton v. State, 

753 S.W.2d 34 (Mo. Ct. App. 1988). See also Olsen v. State, 2014 ND 173, ¶ 10, 

852 N.W.2d 372 (“when the law is unsettled, the failure to raise an issue is 

objectively reasonable and therefore not deficient performance for purposes of 

an ineffective assistance of counsel claim”).

[¶22] I also agree that it was obvious error to instruct the jury that Yoney could 

be convicted of “knowingly” attempting to murder, which is a non-cognizable 

offense. Majority, at ¶ 18. However, it could not have been obvious to the 

district court, when at the time the trial was held, and at the time the court 

decided Yoney’s application for post-conviction relief, this Court had not yet 

decided Pemberton v. State, 2021 ND 85, 959 N.W.2d 891, the first case stating 

a person cannot commit an attempted knowing murder. See State v. Martinez, 

2021 ND 42, ¶ 69, 956 N.W.2d 772 (McEvers, J., dissenting) (stating we should 

not expect our trial courts to be clairvoyant regarding newly announced 

standards established by this Court). It is only obvious to us on this appeal 

based on the holding in Pemberton. In addition, as I explained in my separate 

opinion in Pemberton, ¶¶ 30-35, I would remand the case to the district court 

to determine whether the error in this case is harmless.

[¶23] Not all constitutional errors require automatic reversal; rather the State 

must “prove beyond a reasonable doubt that the error complained of did not 

contribute to the verdict obtained.” Clark v. State, 2001 ND 9, ¶ 15, 621 

N.W.2d 576. We have said “a conviction does not have to be set aside 

automatically if the jury is instructed on multiple theories of guilt and one of 

the theories is invalid.” Dominguez v. State, 2013 ND 249, ¶ 26, 840 N.W.2d 
9

596. In this case, the district court described the evidence against Yoney as 

“overwhelming”—“overwhelming evidence that it was Travis Yoney who came 

to John Doe’s residence armed with a rifle, and who fired it into John Doe’s 

home.” Yoney’s appellate post-conviction counsel concedes in the appellate 

brief, “According to testimony at trial, on August 23, 2018, Mr. Yoney went to 

the home of Mr. John Doe and Ms. Jane Doe. A shot was fired into the home. 

Testimony indicated he then broke into the house and pointed the rifle at John 

Doe. John Doe tackled Mr. Yoney, and the rifle fired into the ceiling.” In 

closing, the prosecutor did not argue Yoney should be convicted of “attempted 

knowing murder,” rather she argued to the jury:

Basic rule of firearm handling, you don’t point a firearm at 

anything you don’t intend to kill. . . .

Again, we can’t look into someone’s head to determine their intent, 

so we have to look at all the facts and circumstances surrounding 

their actions. Pointing a firearm at someone’s head shows intent 

to kill, particularly when that firearm is loaded. . . . I submit to 

you [that] carrying a firearm with a 10-round magazine certainly 

is indicative of intent to kill and pointing that rifle at [John Doe]. 

Going over there with that gun is a substantial step towards 

inflicting murder—committing murder. Pointing it at his head—

if going there with a firearm was not a substantial step, then 

certainly pointing it at him is a substantial step.

As we did in Dominguez, I would remand the case to the district court to 

determine whether the State has proven that the error in this case was 

harmless beyond a reasonable doubt.

[¶24] I also agree that Yoney’s claims concerning the concessions his attorney 

allegedly made against his wishes were properly dismissed. Majority, at ¶ 15. 

However, I write separately on this issue to emphasize counsel cannot admit 

guilt to an offense over his or her client’s objection—as a matter of trial 

strategy or otherwise. See Truelove v. State, 2020 ND 142, ¶ 8, 945 N.W.2d 

272. The Sixth Amendment to the United States Constitution protects a 

defendant’s right to make fundamental choices about his or her defense. 

McCoy v. Louisiana, 138 S.Ct. 1500, 1508 (2018). “When a client expressly 

asserts that the objective of [his defense] is to maintain innocence of the 
10

charged criminal acts, his lawyer must abide by that objective and may not 

override it by conceding guilt.” Id. at 1509; see also Truelove, at ¶ 8.

[¶25] The majority opinion affirms the district court’s dismissal of Yoney’s 

claim concerning the concessions by agreeing with the “district court’s 

conclusion that Yoney was not prejudiced by his attorney’s trial strategy.” 

Majority, at ¶ 15. The majority cites United States v. Rosemond, 958 F.3d 111, 

122 (2d Cir. 2020) for the proposition that trial counsel may make certain 

strategic concessions in the face of overwhelming evidence. However, as the 

Rosemond court noted, those “certain” strategic concessions—such as 

admitting to an element of an offense—are permissible “when the attorney 

does not concede his client’s guilt.” Id. at 121. “[E]ven in the face of 

overwhelming evidence of his guilt” a defendant maintains the right to make 

fundamental choices about his defense, “including whether to persist in 

maintaining his innocence.” Id. at 120 (quoting McCoy, 138 S.Ct. at 1508, 

1511) (quotation marks omitted).

[¶26] In this case, Yoney argued his attorney conceded his guilt against his 

wishes to two charges—prohibited possession of a firearm and violation of an 

order prohibiting contact. There is evidence in the criminal case record that 

his counsel did concede guilt to at least one of these charges. In closing 

argument, Yoney’s counsel admitted: “Yes, he violated the protection order.” 

However, Yoney has not identified or put forth any evidence his counsel’s 

strategy was against his wishes or over his objection. I would affirm the 

summary dismissal of Yoney’s claim solely on the basis that he has not 

presented any competent admissible evidence that he instructed his attorney 

not to make the concessions he now complains about—regardless of whether 

or not the strategy may have prejudiced Yoney. To do otherwise suggests the 

district court inappropriately weighed the evidence. If that was the case, 

Yoney should have been granted an evidentiary hearing, rather than having 

his claim of ineffective assistance of counsel summarily dismissed.

[¶27] Lisa Fair McEvers