Yoney v. State

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
JULY 22 2021
STATE OF NORTH DAKOTA

IN THE SUPREME COURT
STATE OF NORTH DAKOTA

2021 ND 132

Travis Eugene Yoney, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee

No. 20200359

Appeal from the District Court of Ward County, North Central Judicial
District, the Honorable Gary H. Lee, Judge.

REVERSED AND REMANDED.

Opinion of the Court by Tufte, Justice, in which Chief Justice Jensen and
Justices VandeWalle and Crothers joined. Justice McEvers filed an opinion
concurring and dissenting.

Kiara C. Kraus-Parr, Grand Forks, N.D., for petitioner and appellant.

Todd A. Schwarz, Assistant State’s Attorney, Minot, N.D., for respondent and
appellee.
 Yoney v. State
No. 20200359

Tufte, Justice.

[¶1] Travis Yoney appeals from a district court order summarily dismissing
his application for postconviction relief. He argues he received ineffective
assistance of counsel because his attorney’s proposed jury instructions for
attempted murder included the culpability of “knowingly,” which Yoney claims
is a non-cognizable offense. We recently held in Pemberton v. State, 2021 ND
85, ¶ 13, 959 N.W.2d 891, that attempted knowing murder is not a cognizable
offense. We conclude Yoney failed to demonstrate he received ineffective
assistance of counsel. However, on the basis of Pemberton, we reverse the order
and remand with instructions to vacate Yoney’s attempted murder conviction.

I

[¶2] In 2019, a jury found Yoney guilty of numerous crimes, including
burglary, attempted murder, terrorizing, reckless endangerment, unlawful
possession of a firearm, and violation of an order prohibiting contact. The
district court sentenced Yoney to thirty years in prison.

[¶3] On appeal, Yoney argued attempt to knowingly commit murder was a
non-cognizable offense. State v. Yoney, 2020 ND 118, ¶ 5, 943 N.W.2d 791.
Yoney challenged the district court’s attempted murder jury instruction
stating he acted to “intentionally or knowingly cause the death of John Doe.”
Id. at ¶ 6. We declined to address the argument, holding Yoney invited the
error because he submitted a jury instruction for attempted murder with the
culpability of “knowingly.” Id. at ¶¶ 12-13.

[¶4] Yoney applied for postconviction relief, claiming ineffective assistance of
counsel. He alleged his attorney submitted a defective jury instruction that
included “knowingly” as a culpability for attempted murder. Yoney argued
attempted murder is a specific intent crime and he could not have been
convicted of attempted murder while acting “knowingly.” Yoney also asserted
his attorney was ineffective because he conceded guilt without Yoney’s
approval. Yoney requested that the court vacate his conviction.

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[¶5] The State responded to Yoney’s application and moved for summary
dismissal. The State argued Yoney’s counsel was not constitutionally
ineffective and any alleged deficient performance by his counsel did not
prejudice him. The district court summarily dismissed Yoney’s application for
postconviction relief.

II

[¶6] Postconviction relief proceedings are civil proceedings governed by the
North Dakota Rules of Civil Procedure. Myers v. State, 2017 ND 66, ¶ 7, 891
N.W.2d 724. A district court may summarily dismiss an application for
postconviction relief if there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. N.D.C.C. § 29-32.1-09(3). We
review an appeal from summary dismissal of an application for postconviction
relief as we would review an appeal from a summary judgment. Myers, at ¶ 7.
If the State moves for summary dismissal, an applicant must present
competent admissible evidence by affidavit or other comparable means which
raises a genuine issue of material fact. Henke v. State, 2009 ND 117, ¶ 11, 767
N.W.2d 881. The party opposing a motion for summary dismissal is entitled to
all reasonable inferences to be drawn from the evidence and is entitled to an
evidentiary hearing if a reasonable inference raises a genuine issue of material
fact. Myers, at ¶ 7.

III

[¶7] Yoney claims the district court erred in summarily dismissing his
application for postconviction 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)

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 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.

Olson v. State, 2019 ND 135, ¶ 19, 927 N.W.2d 444 (quoting Everett v. State,
2015 ND 149, ¶ 7, 864 N.W.2d 450).

A

[¶8] Yoney argues his attorney was ineffective by submitting an improper
jury instruction for attempted murder. He asserts the instruction that included
the culpability of “knowingly” allowed him to be convicted of a non-cognizable
offense. Yoney argues attempted knowing murder is a non-cognizable offense
under this Court’s decision in State v. Swanson, 2019 ND 181, 930 N.W.2d 645.

[¶9] In Swanson, 2019 ND 181, ¶ 13, this Court concluded “the term
knowingly, when used in conjunction with N.D.C.C. § 12.1-16-01(1)(a), permits
an individual to be convicted of a murder when they did not have the purpose
(synonymous with intent) to cause the death of another human being.” We held
“[c]onspiracy to ‘knowingly’ commit a murder is a non-cognizable offense
because it allows an individual to be convicted of the offense without an intent
to cause the death of another human being.” Id. at ¶ 15. We also stated,
“Because the inclusion of ‘knowingly’ in the jury instruction allowed the jury
to convict Swanson of conspiracy to commit murder without an intent to cause
the death of another human being, the instruction was improper and allowed
Swanson to have potentially been convicted of a non-cognizable offense.” Id. at
¶ 14.

[¶10] While Yoney’s present appeal was pending, we held in Pemberton v.
State, 2021 ND 85, ¶ 13, 959 N.W.2d 891, that “an attempted ‘knowing’ murder
is a non-cognizable offense.” The attempted murder jury instruction at issue
was similar to the one in Yoney’s case, stating Pemberton “[a]ttempted to

3
intentionally or knowingly cause the death of another human being.” Id. at
¶ 15. We stated:

Because the offense of attempted murder requires the accused to
have the intent to complete the commission of the underlying
crime by causing the death of another and a “knowing” murder
under N.D.C.C. § 12.1-16-01(1)(a) does not require the accused to
have the intent to cause the death of another, a “knowing murder”
cannot be the basis for an attempted murder conviction.

Id. at ¶ 13. We concluded the attempted murder instruction with “knowingly”
as a culpability “allowed the jury to find Pemberton guilty of a non-cognizable
offense.” Id. at ¶ 17. We reversed the district court’s order denying Pemberton’s
application for postconviction relief. Id. at ¶ 28.

[¶11] Swanson was decided after Yoney’s trial and was the first case to address
the statutory definition of “knowingly” under N.D.C.C. § 12.1-02-02 in
conjunction with conspiracy and N.D.C.C. § 12.1-16-01(1)(a). In Dominguez v.
State, 2013 ND 249, ¶ 22, 840 N.W.2d 596, decided before Yoney’s trial, this
Court held the offense of attempted murder under N.D.C.C. § 12.1-16-01(1)(b),
extreme indifference murder, is a non-cognizable offense. We held the offense
of attempted murder requires the accused to have “an intent to kill.” Id. This
Court also noted, “When there is evidence of an intent to kill, a person can be
convicted of attempted murder under N.D.C.C. §§ 12.1-06-01 and 12.1-16-
01(1)(a) for attempting to knowingly or intentionally cause the death of
another human being.” Id. at ¶ 19; see also Pemberton, 2021 ND 85, ¶ 14
(noting that although the statement in Dominguez may have been overly broad
by including the word “knowingly,” this Court was clear that the state must
prove the accused had an intent to kill).

[¶12] At the time Yoney’s counsel submitted the proposed jury instruction, this
Court’s statement in Dominguez, 2013 ND 249, ¶ 19, suggesting a person can
be convicted of attempted murder under N.D.C.C. § 12.1-16-01(1)(a) for
attempting to knowingly or intentionally cause the death of another had not
yet been further explained by our decisions in Swanson and Pemberton. We
cannot conclude Yoney has shown his counsel’s representation fell outside the
broad range of reasonableness for submitting an attempted murder jury

4
instruction that included the culpability of “knowingly.” The district court did
not err in concluding Yoney received effective assistance of counsel.

B

[¶13] Yoney argues his attorney was ineffective because he admitted guilt on
his behalf without his consent. Yoney contends his attorney conceded guilt at
trial during his Rule 29 motion for acquittal by stating Yoney violated a
protection order. Yoney also claims that during closing argument his attorney
conceded that Yoney may have had a rifle, but that he never pointed the rifle
at John Doe.

[¶14] The district court concluded the attorney’s alleged concessions made at
the Rule 29 motion were made outside the presence of the jury and would not
have affected the outcome of the case. The court concluded the attorney’s
statement during closing argument that Yoney had a rifle was a trial strategy:

In this case, the cards given to attorney Migdal included the
fact that a bullet was fired from outside, and into John Doe’s home.
A second bullet was fired inside the home, through the ceiling. A
third card was that virtually all of the evidence established that it
was Travis Yoney who possessed the rifle and who fired it.

What was attorney Migdal to do? He could not just ignore
the facts and say they did not exist. He could not argue mistaken
identity. The police responded to the scene and found Travis Yoney
still in John Doe’s residence. He could not ethically and in good
faith argue some fantastical theory of the case that had no basis in
fact or law. How then to best play the cards dealt ethically, in good
faith, and with a modicum of credibility before a jury? These are
questions of trial strategy and tactics that a lawyer, not the client,
controls.

....

Travis Yoney asserts that attorney Migdal’s concession that
he possessed a rifle, but did not point it [at] John Doe fell below
reasonable standards. A review of the transcript reveals that
attorney Migdal, faced with the overwhelming evidence that it was
Travis Yoney who came to John Doe’s residence armed with a rifle,

5
 and who fired it into John Doe’s home, attempted to convince the
jury that Travis Yoney did not point the firearm [at] John Doe in
order to negate an argument of intent to murder. He further
suggested that Travis Yoney may have possessed the firearm as a
measure of self-defense. To the extent that any concession was
made, it was done without admission that Travis Yoney intended
to kill anyone. The argument was made in an effort to negate
intent. This is permissible.

[¶15] We agree with the district court’s conclusion that Yoney was not
prejudiced by his attorney’s trial strategy. See United States v. Rosemond, 958
F.3d 111, 122 (2d Cir. 2020) (stating that when there is overwhelming evidence
against a defendant, counsel may make certain concessions without
prejudicing the defendant). Additionally, Yoney did not present competent
admissible evidence demonstrating he specifically instructed his attorney to
pursue a different trial strategy. The court appropriately granted summary
dismissal.

IV

[¶16] While we agree with the district court that Yoney did not receive
ineffective assistance of counsel, we must determine what impact our decision
in Pemberton has on his argument that attempted knowing murder is a non-
cognizable offense. In Yoney’s direct appeal, he raised the same argument we
addressed in Pemberton about whether attempt to knowingly commit murder
was a non-cognizable offense. Yoney, 2020 ND 118, ¶ 5. However, we declined
to address the argument, concluding Yoney invited the error because his
attorney submitted a jury instruction for attempted murder with the
culpability of “knowingly.” Id. at ¶¶ 12-13.

[¶17] At the time of Yoney’s April 2019 trial, it was not clearly established that
attempted knowing murder was a non-cognizable offense. See State v. Lott,
2019 ND 18, ¶ 8, 921 N.W.2d 428 (“There is no obvious error when an
applicable rule of law is not clearly established.”); see also Bell v. State, 1998
ND 35, ¶ 34, 575 N.W.2d 211 (stating waived error may provide the basis for
reversal if it constitutes obvious error affecting a substantial right). Just as
Pemberton was prejudiced because the attempted murder instruction with

6
“knowingly” as a culpability allowed the jury to find him guilty of a non-
cognizable offense, we conclude Yoney was prejudiced in the same manner.

[¶18] This Court, on its own motion, may “notice errors to which no exception
has been taken, if the errors are obvious, or if they otherwise seriously affect
the fairness, integrity, or public reputation of judicial proceedings.” State v.
Whitman, 2013 ND 183, ¶ 10, 838 N.W.2d 401 (quoting United States v.
Atkinson, 297 U.S. 157, 160 (1936)). To deny Yoney the postconviction relief
granted to Pemberton would seriously affect the fairness, integrity, and public
reputation of the criminal jury trial. See Coppage v. State, 2014 ND 42, ¶¶ 30,
34-35, 843 N.W.2d 291 (noticing obvious error and granting postconviction
relief on the basis of the Dominguez decision); Whitman, at ¶¶ 11, 18 (reversing
conviction for non-cognizable offense on the basis of State v. Borner, 2013 ND
141, 836 N.W.2d 383 despite appellant’s failure to raise issue). As we did in
Whitman and Coppage, in the context of convictions for non-cognizable
offenses, we exercise our discretion to notice this error on the basis of our
decision in Pemberton and reverse the district court’s order denying
postconviction relief. We grant Yoney postconviction relief under N.D.C.C.
§ 29-32.1-01(1)(a), vacate the amended criminal judgment for attempted
murder, and remand for a new trial on that charge.

V

[¶19] Yoney’s remaining arguments are without merit or not necessary to our
decision. We agree with the district court’s order to the extent the court denied
Yoney’s application for postconviction relief on the grounds of ineffective
assistance of counsel; however, we reverse the order and remand with
instructions to vacate Yoney’s attempted murder conviction.

[¶20] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Jerod E. Tufte

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McEvers, Justice, concurring and dissenting.

[¶21] I agree with the majority opinion’s conclusion that the district court did
not err in concluding Yoney did not meet his burden of proving ineffective
assistance of counsel regarding the jury instruction submitted by his trial
attorney. Majority, at ¶ 12. While allegations of ineffective assistance of
counsel usually merit an evidentiary hearing, Yoney’s claim fails as a matter
of law. The court, citing cases from other jurisdictions, concluded defense
attorneys are not ineffective for failing to be clairvoyant or for failing to
anticipate a change in existing law. See State v. Sanders, 855 N.W.2d 350
(Neb. 2014); Lee v. State, 91 N.E.3d 978 (Ind. Ct. App. 2017); Felton v. State,
753 S.W.2d 34 (Mo. Ct. App. 1988). See also Olsen v. State, 2014 ND 173, ¶ 10,
852 N.W.2d 372 (“when the law is unsettled, the failure to raise an issue is
objectively reasonable and therefore not deficient performance for purposes of
an ineffective assistance of counsel claim”).

[¶22] I also agree that it was obvious error to instruct the jury that Yoney could
be convicted of “knowingly” attempting to murder, which is a non-cognizable
offense. Majority, at ¶ 18. However, it could not have been obvious to the
district court, when at the time the trial was held, and at the time the court
decided Yoney’s application for post-conviction relief, this Court had not yet
decided Pemberton v. State, 2021 ND 85, 959 N.W.2d 891, the first case stating
a person cannot commit an attempted knowing murder. See State v. Martinez,
2021 ND 42, ¶ 69, 956 N.W.2d 772 (McEvers, J., dissenting) (stating we should
not expect our trial courts to be clairvoyant regarding newly announced
standards established by this Court). It is only obvious to us on this appeal
based on the holding in Pemberton. In addition, as I explained in my separate
opinion in Pemberton, ¶¶ 30-35, I would remand the case to the district court
to determine whether the error in this case is harmless.

[¶23] Not all constitutional errors require automatic reversal; rather the State
must “prove beyond a reasonable doubt that the error complained of did not
contribute to the verdict obtained.” Clark v. State, 2001 ND 9, ¶ 15, 621
N.W.2d 576. We have said “a conviction does not have to be set aside
automatically if the jury is instructed on multiple theories of guilt and one of
the theories is invalid.” Dominguez v. State, 2013 ND 249, ¶ 26, 840 N.W.2d

8
596. In this case, the district court described the evidence against Yoney as
“overwhelming”—“overwhelming evidence that it was Travis Yoney who came
to John Doe’s residence armed with a rifle, and who fired it into John Doe’s
home.” Yoney’s appellate post-conviction counsel concedes in the appellate
brief, “According to testimony at trial, on August 23, 2018, Mr. Yoney went to
the home of Mr. John Doe and Ms. Jane Doe. A shot was fired into the home.
Testimony indicated he then broke into the house and pointed the rifle at John
Doe. John Doe tackled Mr. Yoney, and the rifle fired into the ceiling.” In
closing, the prosecutor did not argue Yoney should be convicted of “attempted
knowing murder,” rather she argued to the jury:

Basic rule of firearm handling, you don’t point a firearm at
anything you don’t intend to kill. . . .

Again, we can’t look into someone’s head to determine their intent,
so we have to look at all the facts and circumstances surrounding
their actions. Pointing a firearm at someone’s head shows intent
to kill, particularly when that firearm is loaded. . . . I submit to
you [that] carrying a firearm with a 10-round magazine certainly
is indicative of intent to kill and pointing that rifle at [John Doe].
Going over there with that gun is a substantial step towards
inflicting murder—committing murder. Pointing it at his head—
if going there with a firearm was not a substantial step, then
certainly pointing it at him is a substantial step.

As we did in Dominguez, I would remand the case to the district court to
determine whether the State has proven that the error in this case was
harmless beyond a reasonable doubt.

[¶24] I also agree that Yoney’s claims concerning the concessions his attorney
allegedly made against his wishes were properly dismissed. Majority, at ¶ 15.
However, I write separately on this issue to emphasize counsel cannot admit
guilt to an offense over his or her client’s objection—as a matter of trial
strategy or otherwise. See Truelove v. State, 2020 ND 142, ¶ 8, 945 N.W.2d
272. The Sixth Amendment to the United States Constitution protects a
defendant’s right to make fundamental choices about his or her defense.
McCoy v. Louisiana, 138 S.Ct. 1500, 1508 (2018). “When a client expressly
asserts that the objective of [his defense] is to maintain innocence of the

9
charged criminal acts, his lawyer must abide by that objective and may not
override it by conceding guilt.” Id. at 1509; see also Truelove, at ¶ 8.

[¶25] The majority opinion affirms the district court’s dismissal of Yoney’s
claim concerning the concessions by agreeing with the “district court’s
conclusion that Yoney was not prejudiced by his attorney’s trial strategy.”
Majority, at ¶ 15. The majority cites United States v. Rosemond, 958 F.3d 111,
122 (2d Cir. 2020) for the proposition that trial counsel may make certain
strategic concessions in the face of overwhelming evidence. However, as the
Rosemond court noted, those “certain” strategic concessions—such as
admitting to an element of an offense—are permissible “when the attorney
does not concede his client’s guilt.” Id. at 121. “[E]ven in the face of
overwhelming evidence of his guilt” a defendant maintains the right to make
fundamental choices about his defense, “including whether to persist in
maintaining his innocence.” Id. at 120 (quoting McCoy, 138 S.Ct. at 1508,
1511) (quotation marks omitted).

[¶26] In this case, Yoney argued his attorney conceded his guilt against his
wishes to two charges—prohibited possession of a firearm and violation of an
order prohibiting contact. There is evidence in the criminal case record that
his counsel did concede guilt to at least one of these charges. In closing
argument, Yoney’s counsel admitted: “Yes, he violated the protection order.”
However, Yoney has not identified or put forth any evidence his counsel’s
strategy was against his wishes or over his objection. I would affirm the
summary dismissal of Yoney’s claim solely on the basis that he has not
presented any competent admissible evidence that he instructed his attorney
not to make the concessions he now complains about—regardless of whether
or not the strategy may have prejudiced Yoney. To do otherwise suggests the
district court inappropriately weighed the evidence. If that was the case,
Yoney should have been granted an evidentiary hearing, rather than having
his claim of ineffective assistance of counsel summarily dismissed.

[¶27] Lisa Fair McEvers

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