Fleck v. State ( 2021 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
SEPTEMBER 16, 2021
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2021 ND 165Bruce Alan Fleck, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee
No. 20210089
Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable Bonnie L.Storbakken, Judge.
AFFIRMED.
Per Curiam.
Benjamin C. Pulkrabek, Mandan, ND, for petitioner and appellant.
Tessa M. Vaagen, Assistant State’s Attorney, and Jamie Schaible, third year
law student, under the Rule on Limited Practice of Law by Law Students,
Bismarck, ND, for respondent and appellee; submitted on brief.
Fleck v. State
No. 20210089
Per Curiam.
[¶1] Bruce Alan Fleck appeals from an order denying his application for post-
conviction relief following an evidentiary hearing. Fleck was sentenced to ten
years’ imprisonment following a hearing to revoke his probation. Fleck applied
for post-conviction relief alleging ineffective assistance of counsel. At the
hearing, Fleck testified he would only have disputed two of the twelve
allegations in the petition for revocation of probation. The district court found
Fleck’s attorney was adequately prepared for the revocation hearing and his
conduct fell within the wide range of reasonable professional assistance. The
court further found Fleck failed to establish he was prejudiced by his attorney’s
conduct.
[¶2] We conclude the district court’s findings regarding the prejudice prong
are not clearly erroneous. Courts need not address both prongs of the
Strickland test if the matter can be resolved by addressing only one prong.
Rencountre v. State, 2015 ND 62, ¶ 7, 860 N.W.2d 837 (citing Osier v. State,
2014 ND 41, ¶ 11, 843 N.W.2d 277); State v. Holbach, 2007 ND 114, ¶¶ 6-7,
735 N.W.2d 862 (stating that probationer does not have a Sixth Amendment
right to counsel, and assuming without deciding that the same standards apply
to a probationer’s statutory right to counsel). The court did not clearly err in
denying Fleck’s application for post-conviction relief, and we summarily affirm
under N.D.R.App.P. 35.1(a)(2).
[¶3] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
2