Watson v. State

                                                                                   FILED
                                                                           IN THE OFFICE OF THE
                                                                        CLERK OF SUPREME COURT
                                                                             DECEMBER 8, 2022
                                                                         STATE OF NORTH DAKOTA




                  IN THE SUPREME COURT
                  STATE OF NORTH DAKOTA

                                

James Glenn Watson,                                  Petitioner and Appellant
      v.
State of North Dakota,                              Respondent and Appellee



                         Nos. 20220103 & 20220104

Appeals from the District Court of Stark and Hettinger Counties, Southwest
Judicial District, the Honorable William A. Herauf, Judge.

AFFIRMED.

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

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

James A. Hope (argued), Assistant Stark County State’s Attorney, Dickinson,
N.D., and Pat J. Merriman (on brief), Assistant Hettinger County State’s
Attorney, for respondent and appellee.
                               Watson v. State
                          Nos. 20220103 & 20220104

Tufte, Justice.

[¶1] James Watson appeals from a district court order denying his application
for postconviction relief from two convictions entered upon a conditional plea
of guilty. He argued to the district court that the court should allow him to
withdraw his plea because he did not have effective assistance of counsel when
he pleaded guilty. We conclude Watson failed to establish the prejudice
necessary to satisfy the second prong of the Strickland test. We affirm.

                                        I

[¶2] A Golden Valley County jury found Watson guilty of continuous sexual
abuse of a child. Watson then entered a conditional Alford guilty plea to a
charge of sexual assault in Hettinger County and a charge of continuous sexual
abuse of a child in Stark County, reserving his right to appeal the district
court’s grant of the State’s motions for continuance in all three cases. This
Court reversed Watson’s conviction from Golden Valley County because of a
violation of his speedy trial right, but affirmed the other two convictions. State
v. Watson, 

, 

.

[¶3] After his Golden Valley conviction was reversed, Watson moved to
withdraw his conditional Alford plea in the Hettinger and Stark County cases,
arguing that it had been contingent upon his conviction in the Golden Valley
case. State v. Watson, 

, 

. This was the first time
he argued that his guilty plea was so conditioned. The district court denied his
motions, and this Court affirmed. Id. at ¶ 18. We concluded that the district
court did not abuse its discretion in denying Watson’s motion to withdraw his
guilty pleas in Stark and Hettinger Counties. Id. at ¶ 17.

[¶4] Watson then applied for postconviction relief in Stark and Hettinger
Counties seeking to withdraw his guilty plea because he was denied effective
assistance of counsel, claiming his lawyer, Kevin McCabe, incorrectly advised
him that if this Court reversed his Golden Valley County conviction, he would
be able to withdraw from his guilty plea in the other two counties. Watson

                                        1
alleges that he would not have pleaded guilty but for McCabe’s error. He argues
that the district court erred in denying his application, and he now appeals
that order.

[¶5] There is no express indication in the plea agreement that Watson had
the right to withdraw his guilty plea if this Court reversed the Golden Valley
County conviction. However, McCabe testified that he erroneously told Watson
in the hallway before entry of his guilty plea that if the Golden Valley judgment
was reversed by this Court, he would be able to withdraw his guilty plea in
Stark and Hettinger Counties. None of the state’s attorneys present at the
guilty plea recalled McCabe having made this statement. The district court
noted in its denial of Watson’s motion that Watson waited a year and a half
after the change of plea hearing to raise this argument and did not do so in his
initial appeal.

                                       II

[¶6] Postconviction relief proceedings “are civil in nature and governed by the
North Dakota Rules of Civil Procedure.” Chase v. State, 

, ¶ 8, 

. A criminal defendant may withdraw a guilty plea after sentencing
only by demonstrating a manifest injustice. N.D.R.Crim.P. 11(d)(2); State v.
Yost, 

, ¶ 6, 

. We will not reverse a district court’s
finding of a manifest injustice unless the court has abused its discretion. Id.;
Isxaaq v. State, 

, 

. “A court abuses its
discretion when it acts in an arbitrary, unreasonable, or unconscionable
manner, or it misinterprets or misapplies the law.” 

[¶7] “A guilty plea must be entered knowingly, intelligently, and voluntarily
to be valid.” State v. Hoehn, 

, 

. The criminal
defendant must at least have a “sufficient awareness of the relevant
circumstances and likely consequences.” Hart v. Marion Correctional Inst., 

 (6th Cir. 1991) (citing Brady v. United States, 

(1970)). “A defendant who pleads guilty upon the advice of counsel may only
attack the voluntary and intelligent character of the guilty plea.” Damron v.
State, 

, 

 (internal citation omitted); see also
United States v. Broce, 

 (1989). Whether or not a guilty plea

                                       2
was voluntary depends on “whether that advice was within the range of
competence demanded of attorneys in criminal cases.” 

[¶8] A manifest injustice may stem from ineffective assistance of counsel.
Everett v. State, 

, 

. A criminal defendant is
entitled to effective assistance of counsel under the Sixth Amendment and N.D.
Const. art. 1, § 12. DeCoteau v. State, 

, 

. The
defendant bears the burden to demonstrate ineffective assistance of counsel.
Abdi v. State, 

, 

 (citing State v. Skaro, 

 (N.D. 1991)). The defendant 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.” Yoney v. State, 

, 

 (citing Strickland v. Washington, 

, 687-
96, 694 (1984)). This is a “heavy burden.” Yoney, at ¶ 7.

[¶9] Watson argues on appeal that this Court should reverse the district
court’s order dismissing his application for post-conviction relief and remand
so he may withdraw his guilty pleas made in the Hettinger County and Stark
County prosecutions against him. He argues that his guilty plea was invalid
because McCabe incorrectly counseled him about the ramifications of pleading
guilty and failed to reduce the terms of the plea agreement into writing in
violation of N.D.R.Crim.P 11(a)(2), which, he argues, would have prevented
this misunderstanding. Therefore, because his counsel was ineffective, he did
not knowingly, intelligently, and voluntarily plead guilty.

                                     III

                                      A

[¶10] When applying Strickland, courts need not address both prongs if a court
can resolve the case by addressing only one prong. Morales v. State, 

, 

. To satisfy Strickland prong two as applied to guilty
pleas, the defendant must show that “‘there is a reasonable probability that,
but for counsel’s errors, he would not have pleaded guilty and would have
insisted on going to trial.’” Booth v. State, 

, 

                                  3
(quoting Lindsey v. State, 

, 

); see also
Bahtiraj v. State, 

, 

 (citing Hill v. Lockhart,

 (1985)); U.S. v. Nesgoda, 

 (8th Cir. 2009).

[¶11] An applicant for postconviction relief on the basis of ineffective
assistance of counsel “must specify how and where counsel was incompetent
and the probable different result.” Morales v. State, 

. It is
insufficient for a petitioner to merely declare with conclusory, self-serving
after-the-fact assertions that but for his counsel’s errors, the petitioner would
not have pleaded guilty. Isxaaq, 

. A defendant does not
satisfy this second prong if the evidence shows that he was “eager to plead
guilty.” Nesgoda, 

. This Court must look beyond a petitioner’s
“subjective, self-serving statement” and look to “contemporaneous evidence to
substantiate a defendant’s expressed preferences.” Isxaaq, at ¶ 11. We may
take into account the strength of the prosecution’s case as well as how the
“reasonable defendant” would take the State’s case into account. 

 at ¶¶ 17-
18. We may also factor in the reasonable defendant’s concern for “the amount
of prison time they will serve” and a defendant’s desire to limit exposure to
incarceration. Bahtiraj, 

.

[¶12] This Court has looked to the following factors to determine whether
there is a reasonable probability that, but for counsel’s errors, a defendant
would not have pleaded guilty and would have insisted on going to trial:

      (a) whether the defendant pleaded guilty in spite of knowing that
      the advice on which he claims to have relied might be incorrect, (b)
      whether pleading guilty gained him a benefit in the form of more
      lenient sentencing, (c) whether the defendant advanced any basis
      for doubting the strength of the government’s case against him,
      and (d) whether the government would have been free to prosecute
      the defendant on counts in addition to those on which he pleaded
      guilty.

Bahtiraj, 

 (quoting Chhabra v. United States, 

 (2nd Cir. 2013)).




                                       4
[¶13] Watson asserts that but for McCabe’s error, he would not have pleaded
guilty. Other than this bare assertion, he brings no other evidence to support
a finding that but for his counsel’s advice he would have proceeded to trial. The
district court found this to be a self-serving assertion in the face of other factors
that suggest he otherwise would have pleaded guilty. Strickland’s second prong
inquires whether evidence in the record shows that but for counsel’s errors
Watson would not have pleaded guilty. When we look beyond his subjective,
self-serving statements, the record supports the district court’s finding that
Watson had additional reasons to plead guilty.

[¶14] First, McCabe testified that he met with Watson to help him decide
whether he wanted to plead guilty after his Golden Valley County conviction.
Watson indicated to McCabe that he did not want to go through two more trials
in both Stark and Hettinger Counties. McCabe testified that “the whole
purpose” behind Watson’s pleading guilty was to avoid putting his family or
the State through the burdens associated with additional trials.

[¶15] Second, Watson was also motivated to accept the guilty plea because it
reduced the charges against him and his exposure to additional incarceration,
dictated that his sentences would run concurrently instead of consecutively,
and gave him credit for the time he had already served. McCabe testified that
Watson told him he would accept a plea agreement if the State would offer him
sentences in Stark and Hettinger Counties that would run concurrently, rather
than consecutively, with the Golden Valley County sentence, thus reducing the
total length of Watson’s incarceration. Watson stated in a pre-sentencing
investigation report that he was willing to do whatever it would take to get
home to his family as soon as possible.

[¶16] Third, the fact that the conditional plea reserved Watson’s right to appeal
his convictions also encouraged him to plead guilty. The sole issue in Watson’s
direct appeal to this Court was violation of his speedy trial right. Watson, 

. Watson had consistently objected to a violation of his speedy trial
right and clearly intended to appeal his convictions on the basis of this
argument at the time of his change of plea hearing. The guilty plea agreement
reserved for Watson the right to appeal his convictions on the basis of a speedy


                                         5
trial claim in each case. Therefore, the State’s agreement to this condition
would have encouraged him to plead guilty.

[¶17] The district court found that Watson’s intent at the time he pleaded
guilty was to appeal any continuance outside of the 90 days and that he
believed he would either win all three cases on appeal or lose all three cases on
appeal. The court found Watson was of the mindset that there was no need to
tie the cases together or have them be conditional or contingent upon one
another; it was an “all in either win or lose strategy.” As argued on this appeal,
Watson describes two different conditions on his guilty pleas. The first was that
in each of the two cases, he conditioned his guilty plea on a reservation of the
right to appeal his claim of a speedy trial violation in that case. The second,
central to the claim on postconviction relief, is that he conditioned each guilty
plea on the possibility that his conviction in that case would be upheld on
appeal but his conviction in the Golden Valley case would be reversed. There
is no evidence to support the argument that Watson or McCabe foresaw the
possibility of a split decision on appeal, and the district court so found. The
distinct remedies for the two scenarios highlight the significant omission of
evidence supporting both conditions on Watson’s guilty plea. If Watson’s plea
in Stark County was conditioned on his right to appeal his speedy trial claim
in that case and he was successful on appeal, he would be entitled to an
acquittal in that case. But if his plea in the Stark County case was conditioned
on the result of the appeal in the Golden Valley case, his remedy would only be
to withdraw his plea. As a result of the significant difference in remedies, the
absence of any evidence that the difference in the two distinct conditions was
discussed by Watson and McCabe supports the district court’s finding that
there was no intent by Watson to account for this less likely possibility and no
basis on which the district court might find failure to account for this
possibility would have changed Watson’s decision.

[¶18] Watson had the independent motivation to protect his family from the
stress of another trial, avoid consecutive sentences, and reduce the charges
against him, and the plea agreement did not prevent him from appealing. The
contemporaneous evidence supports the finding that Watson was eager to
plead guilty whether or not he also had a mistaken belief that he would be able


                                        6
to withdraw his guilty plea in both Hettinger County and Stark County if
he were to win on appeal only in the Golden Valley case. Watson failed to meet
his burden in the district court by asserting that but for McCabe’s
representation, he would not have pleaded guilty.

                                        B

[¶19] The applicant must additionally show the district court that the decision
to not plead guilty would have been “rational under the circumstances.” Isxaaq,

. “This standard of proof is ‘somewhat lower’ than the
common ‘preponderance of the evidence’ standard.” Bahtiraj, 

 (citing Padilla v. Commonwealth, 

 (Ky. Ct. App.
2012)). The court is required to examine and predict the “likely outcome of a
possible trial.” 

 (citing Hill, 

). Therefore, the applicant must
allege facts such as “valid defenses, a pending suppression motion that could
undermine the prosecution’s case, or the realistic potential for a lower
sentence.” 

 (citing Stiger v. Commonwealth, 

 (Ky. 2012)).
In short, not only must the movant show that he would not have pleaded guilty
but for counsel’s mistakes, but he must also show that the facts in the record
suggest that the proceeding would have probably come out differently. 

(citing United States v. Dominguez Benitez, 

 (2004)); Morales,

.

[¶20] Refusing a plea deal may be viewed as not rational if the district court
determines a defendant failed to provide evidence that the results of a trial
would have been different, failed to provide evidence in the defendant’s
defense, failed to point to weaknesses in the State’s case, or provided nothing
but a bare assertion that the defendant would not have pleaded guilty but for
the ineffective assistance of counsel. Bahtiraj, 

. A
defendant may fail to demonstrate that a refusal to plead guilty would have
been rational whenever the evidence present at the proceedings amounts to
substantial evidence of guilt. 

[¶21] Watson failed to show that not pleading guilty would have been rational
under the circumstances. The record contains nothing to indicate the outcome



                                         7
of a possible trial in Hettinger and Stark Counties may have been different
from the result in Golden Valley County.

[¶22] First, nowhere does Watson provide evidence such as valid defenses,
pending suppression motions, or the realistic potential for a lower sentence to
support the notion that a trial would have been different, nor does he point to
weaknesses in the State’s case against him as demanded by our case law. In
fact, he does not argue that the results would have been different had he gone
to trial. Contrastingly, McCabe testified that if Watson had gone to trial again,
the main defense he would have used would have been attacking the credibility
of his accuser. McCabe also testified that this was the identical defense that
Watson used and the jury rejected in the Golden Valley County trial. The fact
that a jury had previously rejected Watson’s main defense suggests that
pleading guilty was the only reasonable option for Watson.

[¶23] Second, the evidence against Watson amounts to substantial evidence of
guilt. First, the victim knew of a birthmark located near Watson’s genitals and
testified that she first saw it while performing oral sex on Watson. The State
also has photographic evidence of the birthmark. The victim had lengthy and
detailed descriptions of the sexual abuse, where it occurred, and what
happened, which suggested to the court that her testimony was true. Next, the
jury listened to a pretextual call between Watson and the victim. The victim
said to Watson, “I can’t get the fact that we had sex out of my mind.” Watson
was silent for seventeen seconds before responding, “Oh.” He didn’t deny the
victim’s statement, nor did he get angry. Instead, Watson changed the subject.
A law enforcement officer who was present at the pretextual call testified that
the victim ended the phone call because it was too emotionally difficult for her
to continue. Additionally, there was other evidence that Watson was guilty,
such as testimony by the victim’s husband and law enforcement officers who
worked on the case as well as a video recording of the Bureau of Criminal
Investigation’s interview of Watson. Psychological tests of Watson showed that
he was in denial about his actions, was very defensive, and provided conflicting
information at his psychological interview. Finally, Watson testified at his
change of plea hearing that there was enough factual evidence for the jury to
find him guilty.


                                       8
                                      IV

[¶24] The district court did not abuse its discretion in concluding that Watson
failed to demonstrate Strickland prejudice. We affirm.

[¶25] Daniel J. Crothers
      Lisa Fair McEvers
      Jerod E. Tufte



Jensen, Chief Justice, dissenting.

[¶26] I respectfully dissent.

                                       I

[¶27] James Glenn Watson was charged with sexual abuse of a minor in four
different counties: Golden Valley, Stark, Hettinger, and Billings. The cases
were not consolidated, but much of the pretrial proceedings were held jointly
and the cases proceeded along a parallel schedule. Oftentimes a single order
was issued with multiple case captions for filing in the different counties.
Throughout the proceeding the parties frequently discussed the possibility of
a joint resolution and the cases were handled as a single collective case.

[¶28] The State moved to dismiss the Billings County case before any of the
cases were tried or guilty pleas had been entered. The State’s motion to dismiss
asserted, “Pursuant to very recently received investigative reports, the State
will not be able to prove the above charge . . . .” The motion was granted.

[¶29] Prior to trial in any of the counties, Watson challenged the continuation
of the prosecutions through an assertion his right to a speedy trial had been
violated in all three of the cases. His request to dismiss the cases was denied
and he was convicted on several counts in the first county to proceed to trial,
Golden Valley County. Watson appealed, alleging in part the case should have
been dismissed because his right to a speedy trial had been violated.

[¶30] Following his conviction in Golden Valley County, Watson was advised
by his attorney to plead guilty in the cases pending in the remaining two

                                       9
counties. Watson’s counsel advised him that if he were successful on appeal in
the Golden Valley County case he would be able to withdraw his guilty pleas
in Stark and Hettinger Counties. Relying on that advice he entered conditional
guilty pleas, denying he committed the offenses but acknowledging there was
sufficient evidence to support a conviction, and preserving his right to appeal
the denial of his request to dismiss the cases because his right to a speedy trial
had been vacated.

[¶31] On direct appeal, this Court addressed Watson’s assertion the district
court erred in denying his motions to dismiss the proceedings asserting speedy
trial violations in each of the counties. This Court reversed the denial of
Watson’s motion to dismiss in the Golden Valley County case, but affirmed the
denial of the motions in the other counties. State v. Watson, 

, 

.

[¶32] Watson subsequently sought to withdraw his guilty pleas in Stark and
Hettinger Counties, asserting he had entered conditional pleas under the
representation that if he prevailed on his assertion his speedy trial rights had
been violated, he would be allowed to withdraw the pleas. Specifically Watson
asserted the following:

      In this case, Watson plead guilty following his conviction in Golden
      Valley County on similar charges. His reason for pleading guilty
      was contingent on the fact that he was convicted in Golden Valley
      County. He also wanted to save the State, as well as his family the
      stigma of going through another trial. He also was led to believe
      that pleading guilty on this charge really wouldn’t matter because
      any sentence that he would receive would run concurrently and in
      conjunction with any sentence that he would receive in the Golden
      Valley County case. In fact, sentencing for all three county cases
      was held on the same date of March 13, 2018. Because Golden
      Valley County case 17-2017-CR-34 was eventually overturned by
      the North Dakota Supreme Court, Watson should be allowed to
      withdraw his guilty pleas in Stark County (Case No. 45-2017-CR-
      00596) and Hettinger County (Case No. 21-2017-CR-00030).

[¶33] The judgments in Stark and Hettinger Counties noted the pleas were
conditional, preserving the right to appeal the denial of Watson’s motion to

                                       10
dismiss because his speedy trial rights had been violated. Although the pleas
were conditional, the judgments did not cross-reference or otherwise couple the
result in the Golden Valley County case to the other counties and no written
agreement between the State and Watson had been prepared indicating the
results of the Golden Valley case were coupled to the cases. The district court
denied the motions to withdraw. This Court affirmed citing to the failure to
formally couple the result of the Golden Valley County case to the conditional
guilty pleas in the other counties. State v. Watson, 

, 

.

[¶34] Watson subsequently petitioned the district court in Stark and Hettinger
Counties for post-conviction relief. He asserted he was denied effective
assistance of counsel because his attorney provided him with incorrect advice
leading him to believe he would be able to withdraw his guilty pleas if he
prevailed in the Golden Valley County case, or was ineffective by failing to
adequately create a record confirming that if he prevailed in the Golden Valley
County case he would be able to withdraw his guilty pleas. Watson’s lawyer
testified that he told Watson prior to the entry of the guilty pleas that if the
Golden Valley judgment was overturned by this Court, he would be able to
withdraw his guilty plea in Stark and Hettinger Counties. Watson indicated
that he would not have entered guilty pleas in Stark or Hettinger County but
for the advice of his counsel. His petitions were denied and Watson initiated
the current appeal.

[¶35] The majority notes the district court relied upon the approximately year
and one-half between Watson’s initial guilty pleas and his requests to withdraw
those pleas. Majority, at ¶ 5. The court’s reliance on the lapse of time is
misplaced. Watson would not have been aware if there was an issue until after
his request to withdraw the guilty pleas had been denied. He entered his guilty
pleas, all three cases were appealed, he prevailed in the Golden Valley case, he
filed his motions to withdraw his guilty pleas in Stark and Hettinger Counties,
and it was not until the district court ruled on those motions that he would
have been aware there were problems with the advice he had received or the
failure to properly record his conditional pleas.



                                      11
                                         II

[¶36] “Postconviction proceedings are civil in nature and the applicant must
establish the grounds for relief.” Thomas v. State, 

, 

. As we noted in Thomas:

     The standard of review in postconviction proceedings is well
     established:

           “A trial court’s findings of fact in a post-conviction proceeding
           will not be disturbed on appeal unless clearly erroneous
           under N.D.R.Civ.P. 52(a). A finding 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 a mistake has been made. Questions of
           law are fully reviewable on appeal of a post-conviction
           proceeding.”

     Hunter [v. State, 

], at ¶ 11[, 

] (quoting
     Brewer v. State, 

, 

).

            To prevail on a claim for ineffective assistance of counsel, the
     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. Hunter, 

,
     ¶ 10, 

 (citing Strickland v. Washington, 

, 

, 

 (1984)). The question of
     ineffective assistance of counsel is a mixed question of law and fact
     and is fully reviewable on appeal. Hunter, at ¶ 11. However, a
     court’s findings of fact in a postconviction proceeding will not be
     reversed on appeal unless they are clearly erroneous under
     N.D.R.Civ.P. 52(a). State v. Steen, 

, 

.

Thomas, at ¶¶ 6-7.




                                       12
                                        III

[¶37] To prevail on his claim for relief, Watson must show his counsel's
representation fell below an objective standard of reasonableness. Watson
asserted in the district court the following:

      As a result of his conviction in the Golden Valley County file, Mr.
      Watson entered conditional pleas of guilty to the remaining
      charges. Mr. Watson contends that he did so based upon a specific
      and firm assurance from his trial counsel that if he was successful
      in overturning the Golden Valley conviction, then he would then
      be allowed to withdraw his pleas of guilty on the remaining files
      and argue those cases in front of a jury if necessary.

[¶38] Watson’s counsel testified during the post-conviction proceedings he had
advised Watson that if he prevailed on appeal in the Golden Valley proceedings
he would be able to withdraw his guilty pleas in Stark and Hettinger Counties.
This advice was provided before the entry of the pleas. The district court
appears to have balanced the testimony of Watson’s counsel against the
testimony of the prosecutors who testified they did not recall any discussions
to couple the appellate result of the Golden Valley case with the other cases.
This balancing is misplaced. Regardless of whether Watson’s counsel had an
agreement and failed to place the agreement of the record, or he gave Watson
erroneous advice, he failed to preserve Watson’s right to withdraw his guilty
pleas. Watson’s counsel’s representation fell below an objective standard of
reasonableness. Watson has satisfied the first prong of the Strickland test. The
majority has elected not to address whether the representation was ineffective,
permissibly relying on the conclusion Watson failed to show there is a
reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.

                                        IV

[¶39] Watson is required to show there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. Both the district court and the majority spend significant time
speculating about Watson’s motives for entering guilty pleas in Stark and
Hettinger Counties. What both the district court and the majority fail to do is

                                      13
address Watson’s actual assertions, and ignoring the context within which the
guilty pleas were made.

[¶40] Cases were initiated in four counties. Prior to the trial in Golden Valley
County the case in Billings County was dismissed pursuant to the State’s
representation it possessed insufficient evidence to support a conviction. At
that point in time Watson had prevailed in one of the four prosecutions.

[¶41] Watson challenged all of the proceedings, asserting his right to a speedy
trial had been violated in each of the proceedings. To that point, while not
formally consolidated, the cases were handled together, with joint hearings and
single orders using multiple captions to include each of the counties. The
district court, in its order denying the motions to withdraw Watson’s guilty
pleas, acknowledged the four cases were treated as a single proceeding by
noting the following:

      To me, it was all treated as one case up until the end. I didn’t know
      that it was going to be split out until the pre-trial, which was on
      the 12th of December. At that time, despite what may have been
      briefed, all counties were there. It’s clearly in the notes that
      everybody was there.

[¶42] Watson proceeded to trial in Golden Valley County and was convicted.
Both the district court and the majority fail to recognize the importance of the
timing of the conviction. To that point, Watson had only demonstrated a
willingness to proceed to trial, and nothing in the record suggests he would
have entered guilty pleas in either Stark or Hettinger Counties. To the
contrary, without the conviction the posture of the case would have remained
as three pending cases and the dismissal in Billings County. It is the conviction
that drove Watson’s subsequent guilty pleas, and as explained in his request
to withdraw his guilty pleas:

      His reason for pleading guilty was contingent on the fact that he
      was convicted in Golden Valley County. He also wanted to save the
      State, as well as his family the stigma of going through another
      trial. He also was led to believe that pleading guilty on this charge
      really wouldn’t matter because any sentence that he would receive
      would run concurrently and in conjunction with any sentence that

                                       14
      he would receive in the Golden Valley County case. In fact,
      sentencing for all three county cases was held on the same date of
      March 13, 2018.

[¶43] Watson’s trial counsel also provided the following information to the
district court:

      Prior to getting to that point—I'll be honest with you, I did not
      believe that the Supreme Court would look at three separate—I
      figured, because everything was done always together, that they
      would look at them together as one, even though that they were
      different court times specified for each case—or each county and
      each case. So when we went to the Supreme Court, this wasn’t an
      issue, and the reason this wasn’t an issue is because Mr. Watson’s
      belief, my belief, was that if the case over in Golden Valley County
      got overturned, there's nothing for this to be continued—these
      cases ran concurrent. Well, if there is no case over in Golden Valley
      County, there’s nothing to run these things concurrent with
      because that case is gone. It’s done. It’s out of there.

His counsel further explained the following:

      However, if that one—if that would have been a not guilty verdict,
      Your Honor, there’s no way that he would have plead guilty to the
      other ones. He would have had Stark County trial and he would’ve
      had Hettinger County trial. But because that one—they found him
      guilty over there, he decided that the best thing for him to do at
      that time was to accept pleas from the State in both counties and
      accept what they had to offer. But it was always conditional—it
      was always an Alford plea and it was always conditional on what
      happened over in Golden Valley County.

[¶44] The district court and the majority focus on all the potential benefits of
pleading guilty in Stark and Hettinger Counties such as a favorable plea
agreement and no additional trials. However, those circumstances would never
have arisen but for the conviction. It is the conviction in Golden Valley County
that was the motivating factor for the entry of guilty pleas, and Watson was
incorrectly advised about, or his counsel had failed to preserve, Watson’s ability
to withdraw his guilty pleas if the conviction in Golden Valley County was
overturned.

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[¶45] I am left with a firm and definite conviction that district court erred in
determining Watson failed to show there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have
been different. Watson pled guilty in Stark and Hettinger Counties following
his conviction in Golden Valley County after receiving and relying on
ineffective assistance of counsel. Absent the representation he would be able
to withdraw those pleas if successful in the Golden Valley County appeal,
Watson would not have pled guilty.

[¶46] Jon J. Jensen, C.J.
      Gerald W. VandeWalle




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