O'Neal v. State , 2023 ND 109 ( 2023 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
JUNE 8, 2023
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2023 ND 109Jason 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.
O’Neal v. State
No. 20220353
Crothers, Justice.
[¶1] Jason O’Neal appeals from a district court order denying his post-
conviction 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
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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.
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[¶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.
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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
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