Isac v. State

                                                                              FILED
                                                                      IN THE OFFICE OF THE
                                                                   CLERK OF SUPREME COURT
                                                                       SEPTEMBER 28, 2023
                                                                    STATE OF NORTH DAKOTA


                  IN THE SUPREME COURT
                  STATE OF NORTH DAKOTA

                                

Sidhassan Yaqub-Sharif Isac,                         Petitioner and Appellant
      v.
State of North Dakota,                              Respondent and Appellee



                                No. 20230100

Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable Susan L. Bailey, Judge.

AFFIRMED.

Opinion of the Court by Crothers, Justice.

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

Avinoor Mann (argued), under the Rule on Limited Practice of Law by Law
Students, Kara S. Olson (appeared) and Nicholas S. Samuelson (on brief),
Assistant State’s Attorneys, Fargo, ND for respondent and appellee.
                                 Isac v. State
                                 No. 20230100

Crothers, Justice.

[¶1] Sidhassan Yaqub-Sharif Isac appeals from an order denying his
application for post-conviction relief. He argues the district court erred when
it found he was not prejudiced by his counsel’s failure to advise him of the
immigration consequences of a criminal conviction prior to entering a guilty
plea. He also argues the court failed to follow the proper procedure for allowing
a witness to refresh his recollection while testifying. We affirm.

                                       I

[¶2] Isac was born in Somalia. He came to the United States when he was
eight years old and has lived here for roughly 20 years. He is not a United
States citizen. In 2020, he was charged with possession of a controlled
substance, possession of drug paraphernalia, and driving under suspension.
He pleaded guilty and the district court sentenced him to 360 days
imprisonment. He did not appeal. At the time of his plea he had roughly 25
other convictions, including drug and alcohol related crimes. United States
Immigration and Customs Enforcement subsequently detained Isac pending
proceedings to deport him to Somalia.

[¶3] Isac filed an application for post-conviction relief seeking to withdraw
his guilty plea. He alleged Fourth Amendment violations based upon the
length of the traffic stop leading to the charges. He later filed an amended
petition asserting he received ineffective assistance of counsel because his
attorney failed to advise him of the immigration consequences of a conviction.

[¶4] The district court held an evidentiary hearing. The State called Isac’s
criminal defense counsel, Leo Patrick O’Day, Jr., to testify. Isac objected to
O’Day’s testimony, asserting O’Day was required to testify from memory and
not his notes. The court warned O’Day he could not read from his notes while
testifying. The court issued a standing instruction allowing O’Day to use his
notes to refresh his recollection “then look up and answer the question.” O’Day
testified he never discussed possible immigration consequences with Isac. Isac

                                       1
testified he would not have pleaded guilty had he known the immigration
consequences of a conviction. The court entered an order denying Isac post-
conviction relief. The court found O’Day was ineffective for not providing Isac
immigration advice, but Isac failed to establish the deficient representation
caused him prejudice. Isac appeals.

                                        II

[¶5] Post-conviction relief proceedings are governed by the Uniform Post-
Conviction Procedure Act, N.D.C.C. ch. 29-32.1. An applicant for post-
conviction relief bears the burden of establishing grounds for relief. Morris v.
State, 

, 

. Questions of law are fully reviewable.

 Findings of fact are reviewed under the clearly erroneous standard of
review. 

 “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 the finding, a reviewing court is left with a definite
and firm conviction a mistake has been made.” 

 (quoting Curtiss v. State,

, 

).

                                         A

[¶6] Isac argues the district court erred when it found he was not prejudiced
by O’Day’s failure to provide him immigration advice. Isac asserts his own
testimony establishes he would have proceeded to trial had he known his plea
would result in him facing deportation to Somalia.

[¶7] A post-conviction relief application seeking to withdraw a guilty plea is
treated as a motion made under N.D.R.Crim.P. 11(d), which requires the
defendant establish a manifest injustice absent withdrawal of the plea. Kremer
v. State, 

, 

. When an applicant seeks to
withdraw a guilty plea based upon ineffective assistance of counsel, the
applicant bears the heavy burden of satisfying the two-part test set out by
Strickland v. Washington, 

 (1984). The applicant must show (1)
his “counsel’s representation fell below an objective standard of
reasonableness,” and (2) “there is a reasonable probability that, but for



                                         2
counsel’s errors, he would not have pleaded guilty and would have insisted on
going to trial.” Isxaaq v. State, 

, 

.

[¶8] Under the first prong, defense counsel’s representation is measured
against “prevailing professional norms.” Isxaaq, 

 (quoting
Bahtiraj v. State, 

, 

). If it is clear a noncitizen
defendant will be deported, a constitutionally competent counsel would advise
his client of that certainty. Isxaaq, at ¶ 10. If the immigration consequences
are uncertain, a constitutionally competent counsel “need do no more than
advise a noncitizen client that pending criminal charges may carry a risk of
adverse immigration consequences.” 

 (quoting Padilla v. Kentucky, 

 (2010)). Prong one is not an issue in this case. The State does not
challenge the district court’s holding that Isac received ineffective assistance
when his counsel failed to provide any advice concerning the potential
immigration consequences of a conviction.

[¶9] The issue before the Court is whether the district court erred when it
found Isac failed to prove prejudice under prong two. Prong two requires a
determination as to whether, absent his counsel’s deficient representation, Isac
“would not have pleaded guilty and would have insisted on going to trial.”
Isxaaq, 

. We have noted a “progression in the law” on the
standard for determining whether a criminal defendant has been prejudiced
by counsel’s failure to provide advice concerning the immigration consequences
of a guilty plea. Id. at ¶ 21. In Bahtiraj, we explained a defendant must prove
that rejecting a plea deal would have been “rational under the circumstances,”
and the inquiry is informed by “an examination and prediction of the likely
outcome of a possible trial.” 

. We noted a defendant may
meet his or her burden by establishing, for example, the existence of a valid
defense, a meritorious motion to suppress evidence, or the potential for
obtaining a lower sentence. 

[¶10] After our decision in Bahtiraj, the United States Supreme Court
explained “there is more to consider than simply the likelihood of success at
trial.” Lee v. United States, 

 (2017). The question requires an
examination of “what an individual defendant would have done” had he


                                        3
received competent advice. 

. “[T]he possibility of even a highly
improbable result may be pertinent to the extent it would have affected his
decision making.” 

 For example, when a defendant’s choice to go to trial will
“almost” certainly lead to deportation, but pleading guilty will guarantee it,
the decision to throw a “Hail Mary” and go to trial may be rational. 

 at 369-
71. However, a defendant’s after-the-fact assertions about his decision making,
on their own, are not sufficient to meet the burden. 

. “Judges should
instead look to contemporaneous evidence to substantiate a defendant’s
expressed preferences.” 

[¶11] Isac does not assert the crimes he pleaded guilty to are mandatory
deportation crimes. He admits that, at the time he pleaded guilty, the
immigration consequences of his plea were uncertain. He asserts a competent
defense counsel would have consulted an immigration attorney to give him the
information he needed to accurately assess his situation. Yet the record
contains nothing indicating what that advice may have been. See Lee, 

 (stating a decision to plead guilty involves assessing the consequences
of a conviction). Isac claims such evidence is unnecessary because we now know
for certain his plea resulted in deportation proceedings. However, the district
court is required to determine what Isac would have done had he received
competent advice—not what he would have done with the benefit of hindsight.

[¶12] The district court assessed the strength of the State’s case as strong. The
court noted Isac admitted to law enforcement that he owned the drugs and
drug paraphernalia that were found in the vehicle he was driving. The court
also found Isac had approximately 25 convictions, and he had been warned of
the potential immigration consequences of a guilty plea “innumerable times”
during arraignments, by the judge herself, by his “multiple prior defense
counsel,” and by a “colloquy with a Judge in a prior case.” Despite these
warnings, Isac did not offer evidence to show he requested more information
about immigration consequences, sought reassurance that his immigration
status was not implicated, or made efforts to obtain an immigration attorney.
On this record, the district court’s finding that Isac did not show prejudice from
his counsel’s deficient representation is not clearly erroneous.



                                        4
                                        B

[¶13] Isac argues the district court did not follow the proper procedure for
allowing O’Day to refresh his recollection. He claims the court’s procedure
effectively allowed O’Day to offer his notes into evidence rather than testify
from memory.

[¶14] We review a district court’s evidentiary rulings for an abuse of discretion.
State v. Peters, 

, 

. “A court abuses its
discretion when it acts in an arbitrary, capricious, or unreasonable manner,
when it misinterprets or misapplies the law, or when its decision is not the
product of a rational mental process leading to a reasoned decision.” State v.
Shaw, 

, 

. An appellant challenging the district
court’s admission of evidence in a bench trial bears a heavy burden:

      “In the trial of a nonjury case, it is virtually impossible for a trial
      judge to commit reversible error by receiving incompetent
      evidence, whether objected to or not. An appellate court will not
      reverse a judgment in a nonjury case because of the admission of
      incompetent evidence, unless all of the competent evidence is
      insufficient to support the judgment or unless it affirmatively
      appears that the incompetent evidence induced the court to make
      an essential finding which would not otherwise have been made.”

Matter of Estate of Froemke, 

, --- N.W.2d --- (quoting Zundel
v. Zundel, 

, 

).

[¶15] Witnesses must testify from personal knowledge. N.D.R.Ev. 602. Adverse
parties are entitled to production of writings used by witnesses to refresh their
recollection while testifying. N.D.R.Ev. 612(b). We have explained the
procedure:

      “First, witnesses must show a need to refresh their memory, and
      second, witnesses must confirm that the notes will assist them in
      refreshing their memory. Witnesses may not testify directly from
      the notes, but can use the notes to assist in their recollection. A
      district court has broad discretion to control the use of evidence to
      refresh memory and determine whether witnesses are using a


                                        5
      writing to refresh their memory, or whether they are effectively
      offering the writing for its truth.”

Cmty. Homes of Bismarck, Inc. v. Main, 

, ¶ 11, 

(citations omitted); see also Leno v. Dir., N.D. Dep’t of Transp. 

, 

.

[¶16] Isac objected during the evidentiary hearing, asserting O’Day was
improperly reading from notes. The district court responded: “I’ll just give a
standing instruction that you may refresh your recollection and then you can
indicate when you’re ready to respond.” The court agreed with Isac’s counsel:
“she’s correct that you can’t read from your notes. I am allowing you to refresh
your recollection, then look up and answer the question.” The court found
O’Day needed to refresh his recollection given “[h]e has hundreds and
hundreds of files.” Isac did not move the court to order production of the notes.
The court correctly applied the law by allowing O’Day to use notes to refresh
his recollection. On this record, the district court did not abuse its discretion.

                                      III

[¶17] We affirm the order denying Isac’s application for post-conviction relief.

[¶18] Jon J. Jensen, C.J.
      Daniel J. Crothers
      Lisa Fair McEvers
      Jerod E. Tufte
      Douglas A. Bahr




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