Sambursky v. State

SANDSTROM, Justice,

concurring in part and dissenting in part.

[¶ 29] I concur in that part of the majority opinion concluding the district court did not err in finding Sambursky’s guilty plea was knowingly and voluntarily made. I disagree, however, with the conclusion that Sambursky raised genuine issues of material fact precluding summary disposition of his ineffective assistance of counsel claim, and I therefore dissent from Parts IV and V of the majority opinion.

[¶ 30] The majority concludes Sambur-sky has raised a genuine issue of material fact on whether his attorney’s conduct fell below the standard of reasonable professional assistance under the “performance” prong of the Strickland test. See Majority Opinion at K120-21. Sambursky based his claim of ineffective assistance of counsel solely upon his allegation that his attorney did not advise him of the 85 percent service requirement under N.D.C.C. § 12.1-32-09.1. In State v. Raulston, 2005 ND 212, ¶ 15, 707 N.W.2d 464, this Court stated it was “unlikely” that counsel’s failure to inform- the defendant of the 85 percent service requirement would fall outside the wide range of reasonable professional assistance. Raulston therefore indicates that counsel’s failure to advise the defendant of the 85 percent service requirement does not per se fall below the objective standard of reasonable representation. The majority at ¶¶ 18-19 suggests Raul-ston is distinguishable because Sambursky alleged that his attorney “actively misinformed” him of the effects of the law. Sambursky’s affidavit filed with the application for post-conviction relief does not support either Sambursky’s assertions or the majority’s conclusion.

' [¶ 31] Sambursky argued on appeal that “Mr. Sambursky’s attorney did not inform him of the 85% rule even though he specifically asked about minimum time to serve for violent crimes.” In his affidavit, Sambursky stated that “[b]efore I entered into any sort of plea negotiations I specifically asked my attorney a number of times if I had to serve any sort [of] minimum amount of time,” and “I also told my attor*533ney that some of the inmates in the Grand Forks County Corrections Center informed me about some sort of minimum amount of time I had to serve because my crime was violent.” Sambursky claimed his counsel responded “no” to these questions.

[¶ 32] The allegations in Sambursky’s affidavit show, at best, that he asked whether there was a mandatory minimum sentence for the charged crimes. The 85 percent service requirement imposes a condition of parole, not a mandatory minimum sentence. Raulston, 2005 ND 212, ¶ 12, 707 N.W.2d 464; State v. Magnuson, 1997 ND 228, ¶21, 571 N.W.2d 642. Counsel therefore was not in error in responding in the negative when Sambursky asked if there was a mandatory minimum sentence. Furthermore, Sambursky’s questions must be viewed in context. He alleged that these discussions took place “[b]efore I entered into any sort of plea negotiations.” At that point, it would have been pure speculation to consider the application and effect of N.D.C.C. § 12.1-32-09.1 upon Sambursky’s sentence. Prior to entering into plea negotiations, there remained a possibility that the' charges might be reduced or Sambursky would not be sentenced to imprisonment, and in those instances the 85 percent requirement would not apply. See N.D.C.C. § 12.1-32-09.1 (85 percent rule applies only to certain enumerated offenses and only if the defendant receives a sentence of imprisonment). In this context, Sambursky’s asking whether there was “some sort of minimum amount of time” indicates he was asking whether there was a mandatory minimum sentence.

[¶ 33] In addition, even after Sambur-sky entered into the plea agreements it was not a certainty that the 85 percent requirement of N.D.C.C. § 12.1-32-09.1 would apply. The plea agreements state the sentence was a recommendation only, and expressly indicated the trial court was “not bound by the recommendation.” The court therefore could have imposed any sentence within the allowable range for Sambursky’s offenses. Since there was no mandatory minimum sentence, the court could have imposed a sentence that did not include any period of incarceration. The 85 percent requirement under N.D.C.C. § 12.1-32-09.1 applies only if the defendant “receives a sentence of imprisonment.”

[¶ 34] The majority at ¶ 26 further concludes Sambursky raised a genuine issue of material fact concerning the “prejudice” prong of the Strickland analysis. Sambur-sky alleged in his appellate brief that his affidavit stated “he would not have entered into plea agreements had he received information about the [85 percent] rule.” Sambursky’s affidavit, however, does not support that assertion. In the affidavit, Sambursky stated, “[h]ad I known that I would have to serve 30 years in prison I would have never signed a plea agreement,” and “[h]ad I known the truth I would have never signed that paper.” Sambursky certainly had to be aware of the possibility he would have to serve 30 years, inasmuch as the plea agreement explicitly provided for a recommendation of 30 years’ incarceration. Furthermore, even with the application of N.D.C.C. § 12.1-32-09.1, Sambursky could serve a sentence significantly shorter than 30 years. In addition to the possible 15 percent reduction from the sentence imposed, the statute explicitly provides the 85 percent service rule does not apply if the sentence is commuted. N.D.C.C. § 12.1-32-09.1; see also N.D.C.C. ch. 12-55.1. Sambursky’s affidavit says he would not have pleaded guilty had he known he would have to serve 30 years, not had he known about the statute.

*534[¶ 35] The party seeking summary dismissal of a petition for post-conviction relief may, in some cases, make an initial showing of a lack of a genuine issue of material fact by pointing out there is an absence of evidence to support the non-moving party’s case. Weaver v. State, 2003 ND 47, ¶ 6, 658 N.W.2d 352; Steinbach v. State, 2003 ND 46, ¶ 12, 658 N.W.2d 355. The nonmoving party is then put on his proof to provide competent evidence to support his claim. Vandeberg v. State, 2003 ND 71, ¶ 6, 660 N.W.2d 568; Weaver, at ¶ 6. The party resisting the motion may not merely rely upon the pleadings or unsupported conclusory allegations, but must present competent, admissible evidence demonstrating a genuine issue of material fact. Stembach, at ¶ 10.

[¶ 36] In this case, the State made an initial showing of a lack of evidence in the record to support Sambursky’s claim of ineffective assistance of counsel, and he was put on his proof to present competent, admissible evidence raising a genuine issue of material fact on this issue. Sambursky failed to present evidence establishing a genuine issue of material fact. Accordingly, the district court did not err in summarily rejecting Sambursky’s claim of ineffective assistance of counsel.

[¶ 37] I would affirm the district court’s order denying Sambursky’s application for post-conviction relief.

[¶ 38] Dale V. Sandstrom, J.