Middleton v. State , 849 N.W.2d 196 ( 2014 )

KAPSNER, Justice,

dissenting.

[¶ 23] I respectfully dissent from part IIIC of the majority opinion. Light’s procedurally deficient new trial motion precluded all substantive review of Middleton’s appellate claims. Therefore, prejudice should be presumed, ineffective assistance of counsel should be found, the district court’s order should be reversed, and the case should be remanded with leave for Middleton to file a new motion for a new trial.

[¶ 24] Middleton argues he should not be required to show prejudice, and there should be a presumption of prejudice because Light’s procedurally deficient motion constructively denied Middleton his right to appeal. Middleton’s argument is supported by this Court’s analysis in Heckelsmiller v. State, 2004 ND 191, 687 N.W.2d 454. In Heckelsmiller, trial counsel requested the sequestration of witnesses at trial, and two potential witnesses for the defense were denied the opportunity to testify because they did not comply with the sequestration order. Id. at ¶ 6. At the time of the court’s ruling on the witnesses’ testimony, trial counsel did not make an offer of proof or any other affirmative argument to justify calling the witnesses. Id. at ¶9. After being found guilty, Heckelsmiller filed a postconviction application alleging ineffective assistance of trial counsel. Id. at ¶ 2. The district court denied Heckelsmiller’s postconviction application. Id. at ¶ 1.

[¶ 25] On appeal, this Court determined Heckelsmiller’s trial counsel’s performance fell below an objective standard of reasonableness when he failed to make an offer of proof. Id. at ¶¶ 9-11. This Court reasoned “at the very least, trial counsel should have asked the court to inquire into the testimony that Donna and William Heckelsmiller did observe. If the district court judge nonetheless excluded this testimony, trial counsel would have preserved the record for appeal, permitting a meaningful appellate review of the trial judge’s refusal to allow the witnesses to testify.” Id. at ¶ 10 (citation omitted). With respect to the issue of prejudice under the ineffective assistance of counsel standard, this Court held:

We need not speculate whether or not a reasonable probability exists that Andrew Heckelsmiller would have been acquitted of a crime requiring knowing misconduct if Donna and William Heck-elsmiller were allowed to corroborate Andrew Heckelsmiller’s only defense, and if William Heckelsmiller were allowed to testify.... Rather, the significant point is that counsel’s failure to make an offer of proof prevented a meaningful appeal on the issue of whether or not Donna and William Heckelsmiller should have been allowed to testify. [State u] Heckelsmiller, 2004 ND 3, ¶ 1, 676 N.W.2d 813; cf. Whiteman [ v. State ], 2002 ND 77, ¶ 17, 643 N.W.2d 704 (overruling cases that can be construed to require defendant to demonstrate how appeal would have been meritorious in order to establish that defendant was prejudiced by attorney’s failure to preserve a requested appeal).

Id. at ¶ 12 (emphasis added).

[¶ 26] The majority concludes that the presumption of prejudice in ineffective assistance of counsel cases should be limited to those cases where counsel fails to perfect a requested appeal. However, the holding in Heckelsmiller is not so limited. The crux of that case was that counsel’s conduct prevented “a meaningful appeal.” 2004 ND 191, ¶ 12, 687 N.W.2d 454.

[¶ 27] In this case, Middleton attempted to raise two issues in his direct appeal: “the district court erred in denying his motion to release the victim’s medical records and the State engaged in prosecutorial misconduct during closing argument.” State v. Middleton, 2012 ND 181, ¶ 1, 820 N.W.2d 738. However, because Light filed an unnecessary motion for a new trial, Middleton was limited in his direct appeal to issues raised in the new trial motion. Since Light raised no issues in the new trial motion, this Court held Middleton failed to properly preserve the issues he raised on appeal. He would not have been limited in this way had the motion for a new trial not been filed. Middleton would have been better off had Light done nothing. Light’s performance in filing a procedurally deficient new trial motion prevented Middleton from receiving meaningful appellate review on any and all issues. This Court should therefore follow Heclcelsmiller and presume prejudice occurred.

[¶ 28] The majority states in ¶ 20 that it is “declin[ing] to apply Heclcelsmiller beyond its facts,” but gives no principled basis for declining to follow this Court’s own precedent. In Heclcelsmiller, this Court found the procedural default of an attorney at trial effectively deprived a criminal defendant of a meaningful appeal on whether witnesses should have been allowed to testify, citing this Court’s per curiam affirmance of Heckelsmiller’s conviction. 2004 ND 191, ¶ 12, 687 N.W.2d 454. In doing so, we equated that procedural default with the failure to file an appeal, where prejudice is presumed, by our citation to Whiteman, 2002 ND 77, 643 N.W.2d 704.

[¶ 29] The procedural default in this case was post-trial. The ineffectiveness of the attorney’s action is blatant on the record. It eliminated all issues on appeal for Middleton. Prejudice does not even need to be presumed; it is obvious on the record. If the majority is concerned the holding in Heclcelsmiller can be interpreted to presume prejudice when trial counsel’s ineffectiveness prevents meaningful appeal on a single issue, that is not Middleton’s situation. The procedural default in filing a motion for a new trial which identified no issues prevented appellate review of any issues. It is the equivalent of failing to file a notice of appeal, and the analogy here is closer to Whiteman than it was in Heclcelsmiller. On postconviction relief, when the petitioner asserts ineffectiveness of counsel, the burden on the petitioner is to establish that counsel’s performance was deficient and such deficiency resulted in prejudice. Both prongs are obvious on the record in this case. That being so, Middleton should be put in the position he was in at the time counsel’s performance harmed him. He should be allowed to file a motion for a new trial before the district court.

[¶ 30] I respectfully dissent.

[¶ 31] CAROL RONNING KAPSNER