Morales v. State
Morales v. State
Opinion
[¶1] Edward Morales appeals from a district court order summarily dismissing his application for post-conviction relief. Morales conditionally pled guilty to causing his wife's death while operating a motor vehicle while under the influence of alcohol in violation of N.D.C.C. § 39-08-01.2(1). He applied for post-conviction relief, alleging ineffective assistance of counsel. The district court summarily dismissed the application, reasoning that Morales had raised only conclusory allegations and generic claims. We affirm the district court's order.
I
[¶2] Morales was driving a mini-van in an RV park when he collided with a goose-neck trailer. His wife, a passenger in the mini-van, died as a result of this collision. A blood test indicated Morales had a 0.209 percent blood alcohol concentration. Morales was charged with a class A felony of causing a death while operating a motor vehicle while under the influence of alcohol in violation of N.D.C.C. § 39-08-01.2(1). Nicole Foster was appointed as his attorney. Before trial the State learned Morales had been convicted in Florida of causing a death while driving under the influence, which would require a ten year mandatory minimum sentence on conviction for the pending charge. Morales conditionally pled guilty and was sentenced to ten years' imprisonment, with three years to be suspended for three years after his release. The plea agreement preserved Morales' right to appeal a suppression issue and avoided a mandatory minimum sentence of ten years in prison followed by probation subject to a mandatory 24/7 testing condition. Morales unsuccessfully appealed his criminal judgment.
See
State v. Morales
,
[¶3] Morales filed a pro se post-conviction relief application. The district court appointed counsel for Morales. Through counsel, Morales filed an amended application and attached his affidavit. The State moved to dismiss the application. Morales responded to the State's motion to dismiss but did not provide further evidence. In support of his opposition to summary dismissal, he referenced his affidavit, the plea hearing transcript, and the disciplinary actions and opinions against Foster. The district court summarily granted the State's motion to dismiss the application, concluding Morales had raised only conclusory allegations insufficient to defeat the motion for summary dismissal. Morales appeals.
II
[¶4] "The issue of ineffective assistance of counsel is a mixed question of law and fact and is fully reviewable by this
*405
Court."
Brewer v. State
,
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. For summary judgment purposes, the evidentiary assertions of the party opposing the motion are assumed to be true.
Stein , at ¶ 5 (internal citation omitted). A "genuine issue of material fact" is present if "reasonable minds could draw different inferences and reach different conclusions from the undisputed facts."
Leavitt v. State
,
[¶5] The State "has the initial burden of showing an absence of a genuine issue of material fact."
Klose v. State
,
[¶6] When arguing ineffective assistance of counsel, the applicant has the burden to establish grounds for relief.
Brewer
,
*406
Ude v. State
,
III
[¶7] Morales's evidence is his affidavit and, by reference, the plea hearing transcript and the disciplinary opinions against attorney Foster. Morales alleges Foster was ineffective when she assured him he would win on appeal. For an ineffective assistance of counsel claim, the "record and transcripts are generally not adequate," because the "allegations ... allege incidents outside of the record."
Stein
,
[¶8] When applying the
Strickland
test, "[c]ourts need not address both prongs ... and if a court can resolve the case by addressing only one prong it is encouraged to do so."
Rourke v. State
,
[¶9] Morales states in his affidavit that he would not have pled guilty but for Foster telling him that the Supreme Court would overturn his case if he pled guilty. He also states that "I believe I did not do" the crime, and that he is not guilty. He continued, "I want to have my day in court and to be able to explain that what happened to my wife was an accident, not a crime." Morales insisted he wanted to plead " 'no contest' because pleading guilty would sound like I am lying." Morales never claims that, absent the advice he alleges he received from his attorney, he would have insisted on pleading not guilty and going to trial, which is required by prong two of the
Strickland
test,
id.
at ¶ 13 (quoting
Hill
,
[¶10] Courts "require something more than defendant's subjective, self-serving statement that, with competent advice, he would not have pled guilty and would have insisted on going to trial."
Bahtiraj
,
[¶11] Morales did not state in his affidavit that he would have insisted on proceeding to trial. Although he claims he would not have pled guilty, he states he wanted to plead "no contest," a plea that does not exist in North Dakota. Also, Morales neither provided a rational defense to his charge nor showed an expectation of a lesser sentence upon re-trial. To the contrary, Morales acknowledges he has been advised by post-conviction counsel "there is a good chance that I will be resentenced to more time." There was ample evidence Morales was guilty of violating N.D.C.C. § 39-08-01.2(1).
See
State v. Morales
,
IV
[¶12] Because Morales's affidavit contains only conclusory allegations, he did not raise an issue of material fact on Strickland's prejudice prong. We affirm the district court's order summarily dismissing Morales's post-conviction relief application.
[¶13] Jerod E. Tufte
Daniel J. Crothers
Lisa Fair McEvers
Jon J. Jensen
Gerald W. VandeWalle, C.J.
Reference
- Full Case Name
- Edward Reynaldo MORALES, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee
- Cited By
- 5 cases
- Status
- Published
- Syllabus
- Summary dismissal of a post-conviction application for ineffective assistance of counsel is appropriate if the applicant does not claim that, but for his attorney's errors, he would have insisted on going to trial.