Olson v. State

Filed 5/16/19 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA

2019 ND 135

Jessy Duane Olson, Petitioner and Appellant

v.

State of North Dakota, Respondent and Appellee

No. 20180268

Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable Thomas R. Olson, Judge.

AFFIRMED.

Opinion of the Court by McEvers, Justice.

Garrett D. Ludwig, Mandan, ND, for petitioner and appellant.

Reid A. Brady (argued), Assistant State’s Attorney, and Nicholas Samuelson
(appeared), under the Rule on Limited Practice of Law by Law Students, Fargo, ND,
for respondent and appellee.
 Olson v. State
No. 20180268

McEvers, Justice.
[¶1] Jessy Olson appeals a district court order denying his application for post-
conviction relief. Olson argues accomplice to murder is not a cognizable offense, and
he received ineffective assistance of counsel and his guilty pleas to the charges of
accomplice to murder and conspiracy to commit aggravated assault were not
voluntary. We affirm.

I
[¶2] In May 2015, Olson and others were involved in a fight outside a bar in Fargo.
Three individuals sustained serious injuries, including Joey Gaarsland, who later died
from his injuries. Olson was arrested and charged with murder and three counts of
conspiracy to commit aggravated assault. The district court appointed an attorney to
represent Olson throughout the proceeding.
[¶3] In March 2016, the State amended the criminal charges against Olson. The
State amended the murder charge to accomplice to murder and dismissed one of the
counts of conspiracy to commit aggravated assault. The State alleged Olson acted as
an accomplice to Gaarsland’s murder by aiding another in committing the offense that
resulted in Gaarsland’s death.
[¶4] Olson and the State entered into a written “Proffer Agreement” relating to a
resolution of the case. Olson agreed to cooperate with the State in the prosecution of
the other defendants. The agreement provided Olson would plead guilty and the State
would recommend no more than twenty years in prison and Olson would be free to
argue for a lesser sentence. After signing the agreement, Olson entered Alford pleas
to accomplice to commit murder and two counts of conspiracy to commit aggravated
assault. In October 2016, Olson was sentenced to twenty years in prison.

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[¶5] Olson applied for post-conviction relief, arguing his guilty pleas were not
knowing and voluntary, accomplice to murder is not a cognizable offense, and he
received ineffective representation from his attorney. Olson requested the district
court grant him post-conviction relief so he could withdraw his guilty pleas.
[¶6] At an evidentiary hearing on Olson’s application, he testified that on the basis
of his attorney’s advice, he was rushed in to pleading guilty and believed he would
be sentenced to five years in prison instead of twenty years. The district court denied
Olson’s application, concluding his attorney provided effective representation and his
guilty pleas were knowing and voluntary.

II
[¶7] We employ the following standard of review in post-conviction relief
proceedings:
A trial court’s findings of fact in post-conviction relief
proceedings will not be disturbed unless they are clearly erroneous.
Hill v. State, 2000 ND 143, ¶ 17, 615 N.W.2d 135. 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 it, a reviewing court is left with a definite and firm
conviction that a mistake has been made. DeCoteau v. State, 2000 ND
44, ¶ 10, 608 N.W.2d 240. Questions of law are fully reviewable on
appeal of a post-conviction proceeding. Falcon v. State, 1997 ND 200,
¶ 9, 570 N.W.2d 719.
Peltier v. State, 2003 ND 27, ¶ 6, 657 N.W.2d 238.

A
[¶8] Olson argues the charge of accomplice to commit murder is not a cognizable
criminal offense in North Dakota.
[¶9] Under N.D.C.C. § 12.1-16-01(1)(b), a person is guilty of murder, a class AA
felony, if the person “[c]auses the death of another human being under circumstances
manifesting extreme indifference to the value of human life[.]” Extreme indifference
murder is a general intent crime. State v. Borner, 2013 ND 141, ¶ 18, 836 N.W.2d
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383. “Under N.D.C.C. § 12.1-16-01(1)(b), a person does not intend to cause the death
of another human-being, but rather death is a consequence of the defendant’s willful
conduct.” Borner, at ¶ 18. “In other words, extreme indifference murder results in
an unintentional death from behavior manifesting an extreme indifference to the value
of human life.” Id.
[¶10] The amended information charged Olson with accomplice to commit murder
under N.D.C.C. §§ 12.1-03-01(1)(b) and 12.1-16-01(1)(b), claiming Olson “acted as
an accomplice to the murder of Joey Gaarsland by intending that an offense be
committed and aiding another in committing the offense that resulted in the death of
Joey Gaarsland.” Under N.D.C.C. § 12.1-03-01(1)(b), “[a] person may be convicted
of an offense based upon the conduct of another person when: [w]ith intent that an
offense be committed, he commands, induces, procures, or aids the other to commit
it, or, having a statutory duty to prevent its commission, he fails to make proper effort
to do so.”
[¶11] Olson’s primary argument is that because conspiracy to commit extreme
indifference murder is not cognizable, accomplice to extreme indifference murder is
also not cognizable. See Borner, 2013 ND 141, ¶ 20, 836 N.W.2d 383 (holding
“conspiracy to commit extreme indifference murder, under N.D.C.C. §§ 12.1-06-04
and 12.1-16-01(1)(b), is not a cognizable offense”). Olson has not cited any authority
holding accomplice is synonymous with conspiracy. In State v. Lind, 322 N.W.2d
826, 842 (N.D. 1982), this Court addressed a similar argument and held a co-
conspirator is not synonymous with accomplice:
[W]e have no authority cited to us that a co-conspirator is synonymous
with an accomplice. The North Dakota Criminal Code is consistent in
its separate treatment of co-conspirators and accomplices, as evidenced
by Section 12.1-06-04(5): “Accomplice liability for offenses committed
in furtherance of the conspiracy is to be determined as provided in
Section 12.1-03-01.” The definition of “accomplice” in Section 12.1-
03-01(1)(a) and (b), specifies acts different from those set forth in the
definition of “criminal conspiracy” in Section 12.1-06-04(1).

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[¶12] Other states with similar accomplice statutes have held accomplice to extreme
indifference murder or reckless manslaughter is a recognized offense. In Riley v.
State, 60 P.3d 204, 215-17 (Alaska Ct. App. 2002), the court discussed cases from
other states imposing accomplice liability for crimes involving unintended injury or
death. See Ex parte Simmons, 649 So.2d 1282 (Ala. 1994); Mendez v. State, 575
S.W.2d 36 (Tex. Crim. App. 1979); People v. Novy, 597 N.E.2d 273 (Ill. App. Ct.
1992); People v. Cole, 625 N.E.2d 816 (Ill. App. Ct. 1993); Hooks v. State, 416 A.2d
189 (Del. 1980); People v. Wheeler, 772 P.2d 101 (Colo. 1989); State v. Goodall, 407
A.2d 268 (Me. 1979); Commonwealth v. Bridges, 381 A.2d 125 (Pa. 1977).
[¶13] In summarizing these courts’ decisions, the Riley court, 60 P.3d at 215, 221,
explained:
[W]ith respect to offenses that involve a resulting injury or death, these
courts hold that accomplice liability requires proof (1) that the
accomplice intended to promote or facilitate another’s unlawful or
dangerous conduct, and (2) that the accomplice acted with the culpable
mental state specified in the underlying statute with respect to the
resulting injury or death. Thus, these courts uphold accomplices’
convictions for unintended criminal homicides—e.g., “extreme
indifference” murder or reckless manslaughter—based on proof that the
accomplice, acting with the culpable mental state required for the
underlying crime, purposely encouraged or aided another person to
engage in conduct that posed a substantial and unjustifiable danger to
human life.
....
In conclusion: The Model Penal Code was written to impose
accomplice liability for crimes involving unintended injury or death if
the accomplice intentionally promotes or facilitates the conduct that
produces the injury or death, even though the accomplice did not intend
this result. Among the states that have complicity statutes based on the
Model Penal Code, most courts have interpreted their statutes this way.
[¶14] The authorities cited have accomplice statutes based in part on Model Penal
Code § 2.06(3) (1962), relating to liability for conduct of another:
(3) A person is an accomplice of another person in the commission
of an offense if:
(a) with the purpose of promoting or facilitating the
commission of the offense, he
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 (i) solicits such other person to commit it, or
(ii) aids or agrees or attempts to aid such other person
in planning or committing it, or
(iii) having a legal duty to prevent the commission of
the offense, fails to make proper effort so to do; or
(b) his conduct is expressly declared by law to establish his
complicity.
[¶15] Our accomplice statute, N.D.C.C. § 12.1-03-01, is derived from § 401 of the
proposed Federal Criminal Code. See Lind, 322 N.W.2d at 841 (“Section 401(1) of
the proposed Federal Criminal Code is virtually identical in all material respects to
Section 12.1-03-01(1), N.D.C.C.”); Final Report of the Nat’l Comm’n on Reform of
Federal Criminal Laws § 401, at 33 (1970). The proposed Federal Criminal Code
Working Papers state “The language proposed in the draft [of § 401] is substantially
that used in most of the recent State revisions and the Model Penal Code.” I Working
Papers of the Nat’l Comm’n on Reform of Federal Criminal Laws 154-55 (1970)
(citing Model Penal Code § 2.06).
[¶16] Olson asserts accomplice to murder requires aid with intent that murder be
committed. He claims that because Gaarsland’s death was unintentional, he cannot
be charged with accomplice to extreme indifference murder. We disagree.
[¶17] Olson was charged with accomplice under N.D.C.C. § 12.1-03-01(1)(b),
whereby one may be convicted of an offense based upon the conduct of another when,
with intent that an offense be committed, he or she aids the other to commit it. That
language is similar to the Model Penal Code § 2.06(3) language cited above. With
respect to extreme indifference murder, the language of N.D.C.C. § 12.1-03-01(1)(b)
does not require an accomplice intend that murder be committed, only the intent that
an offense be committed.
[¶18] Extreme indifference murder under N.D.C.C. § 12.1-16-01(1)(b) is a general
intent crime and death is a consequence of a defendant’s willful conduct. Borner,
2013 ND 141, ¶ 18, 836 N.W.2d 383. “A person engages in conduct: ‘Willfully’ if
he engages in the conduct intentionally, knowingly, or recklessly.” N.D.C.C. §
12.1-02-02(1)(e). Olson also plead guilty to conspiracy to commit aggravated assault,
5
agreeing to engage in willful conduct causing serious bodily injury to another human
being. See N.D.C.C. §§ 12.1-06-04 and 12.1-17-02(1). Under this factual situation,
Olson could be charged with accomplice to extreme indifference murder by agreeing
to willfully aid in the aggravated assault upon Gaarsland under circumstances
manifesting extreme indifference to the value of human life that ultimately led to
Gaarsland’s death. We agree with the reasoning of the authorities discussed above
and conclude accomplice to extreme indifference murder is a cognizable offense
under North Dakota law.

B
[¶19] Olson argues the district court erred in denying his application for
post-conviction 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) 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.
Everett v. State, 2015 ND 149, ¶ 7, 864 N.W.2d 450.
[¶20] Olson argues his trial attorney rushed him into pleading guilty to the amended
complaint. Olson claims he was under the belief he would receive a five-year prison
sentence and his attorney did not inform him the State would recommend twenty
years. Olson argues the district court should have appointed him a new attorney.
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[¶21] At the post-conviction hearing, Olson testified he did not learn that the State
would recommend twenty years imprisonment until months after the March 2016
change of plea hearing. Olson testified he called his attorney and requested to
withdraw his guilty pleas, and his attorney refused. Olson testified that after the
phone call, his attorney requested to withdraw and Olson wrote a letter to the district
court requesting a new attorney. At a September 2016 hearing on the matter, Olson
explained he thought he would be receiving a five-year prison sentence. After an
exchange between Olson, the court, and Olson’s attorney, Olson agreed to work it out
with his attorney. The court denied Olson’s request for a new attorney.
[¶22] Olson’s attorney testified he discussed the “Proffer Agreement” with Olson
before the change of plea hearing. He testified he advised Olson of his rights and
explained to Olson several times the State would ask for twenty years in prison and
he would argue for five years. The “Proffer Agreement,” signed by Olson, his
attorney, and the State, explicitly states the “State would cap its recommendation at
20 years imprisonment,” and “Olson will be free to argue for whatever sentence he
deems appropriate.”
[¶23] The district court found Olson’s trial attorney provided effective assistance of
counsel. The court found Olson’s trial attorney’s assistance was “well above the
necessary standard of care that lawyers have to give to their clients.” The court found
the attorney provided Olson with appropriate legal advice, met with Olson on many
occasions, and testified credibly at the post-conviction hearing. The court’s findings
relating to Olson’s trial attorney have support in the record and we are not left with
a definite and firm conviction a mistake was made. We conclude the court’s findings
of fact are not clearly erroneous, and the court did not err in rejecting Olson’s
ineffective assistance of counsel claim.

C
[¶24] Olson argues his guilty pleas were not voluntary because the district court
failed to comply with N.D.R.Crim.P. 11 at the change of plea hearing.
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[¶25] When a defendant applies for post-conviction relief seeking to withdraw a
guilty plea, we generally treat the application as one made under N.D.R.Crim.P. 11(d).
Everett, 2015 ND 149, ¶ 14, 864 N.W.2d 450. Under N.D.R.Crim.P. 11(d)(2), a
defendant may not withdraw a guilty plea after the district court has imposed sentence
unless the defendant shows withdrawal is necessary to correct a manifest injustice.
Whether there has been a manifest injustice supporting withdrawal of the plea lies
within the court’s discretion. State v. Yost, 2018 ND 157, ¶ 6, 914 N.W.2d 508. A
court abuses its discretion under N.D.R.Crim.P. 11(d) when its legal discretion is not
exercised in the interest of justice. Yost, at ¶ 18. In determining whether the court
abused its discretion, we may be required to review the court’s preliminary findings
of fact, which will not be disturbed unless they are clearly erroneous. Greywind v.
State, 2004 ND 213, ¶ 7, 689 N.W.2d 390.
[¶26] Rule 11, N.D.R.Crim.P., governs guilty pleas. Before accepting a guilty plea,
the district court must inform the defendant of the following under N.D.R.Crim.P.
11(b)(1):
(A) the right to plead not guilty, or having already so pleaded,
to persist in that plea;
(B) the right to a jury trial;
(C) the right to be represented by counsel at trial and at every
other stage of the proceeding and, if necessary, the right to have the
counsel provided under Rule 44;
(D) the right at trial to confront and cross-examine adverse
witnesses, to be protected from compelled self-incrimination, to testify
and present evidence, and to compel the attendance of witnesses;
(E) the defendant’s waiver of these trial rights if the court
accepts a plea of guilty;
(F) the nature of each charge to which the defendant is
pleading;
(G) any maximum possible penalty, including imprisonment,
fine, and mandatory fee;
(H) any mandatory minimum penalty;
(I) the court’s authority to order restitution; and
(J) that, if convicted, a defendant who is not a United States
citizen may be removed from the United States, denied citizenship, and
denied admission to the United States in the future.

8
Rule 11, N.D.R.Crim.P., does not require the court’s advice to follow a ritualistic,
predetermined formality, but the court must substantially comply with the procedural
requirements of the rule to ensure the defendant’s guilty plea is voluntary. Yost, 2018
ND 157, ¶ 20, 914 N.W.2d 508.
A trial court is not required to readvise a defendant of each of his rights
at a change of plea hearing, provided the court determines that the
defendant was properly advised at arraignment, and that the defendant
now recalls that advice. It is sufficient to satisfy due process if the
defendant’s knowledge of his rights is clearly reflected from the whole
record.
Id. (quoting State v. Gunwall, 522 N.W.2d 183, 185 (N.D. 1994)).
[¶27] Olson claims that after the State amended the information, the district court
failed under N.D.R.Crim.P. 11(b)(1)(G) to inform him of the maximum possible
penalty for accomplice to murder.
[¶28] At his initial appearance, the district court informed Olson that murder was a
class AA felony and carried a maximum sentence of life imprisonment without parole.
Olson stated he understood the charges against him. At the change of plea hearing,
the State informed the court that accomplice to murder carried the same level of
offense and the same potential penalties as murder. Olson’s attorney did not object
to the State’s motion to amend. Olson’s attorney indicated he reviewed the amended
information with Olson and waived a formal reading of the amended information.
The court asked Olson about the earlier hearing where he had been read his rights and
informed of the charges against him. Olson stated he remembered being read his
rights and he understood them. The court asked Olson whether he was pleading guilty
or not guilty to the charge of accomplice to murder, a class AA felony, and Olson
replied “Guilty.” The court asked Olson whether he was pleading guilty voluntarily
and Olson responded he was. The court found “there is sufficient factual basis for the
pleas which are made pursuant to the Alford case, and that the guilty pleas are entered
freely and voluntarily.”

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[¶29] The post-conviction court determined the district court complied with the
requirements of N.D.R.Crim.P. 11 and Olson’s guilty pleas were knowing and
voluntary. From the entire record, we conclude the court in the underlying criminal
proceeding substantially complied with Rule 11 before accepting Olson’s guilty pleas.
Olson failed to establish withdrawal of his guilty pleas was necessary to correct a
manifest injustice.

III
[¶30] Olson’s remaining arguments are either unnecessary to our decision or without
merit. The order denying Olson’s application for post-conviction relief is affirmed.
[¶31] Lisa Fair McEvers
Daniel J. Crothers
Jerod E. Tufte
Jon J. Jensen
Gerald W. VandeWalle, C.J.

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