IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2024 ND 151
Brandon Jerome Schweitzer, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee
No. 20240045
Appeal from the District Court of Burleigh County, South Central Judicial District, the
Honorable Jackson J. Lofgren, Judge.
AFFIRMED.
Opinion of the Court by Crothers, Justice.
Kiara C. Kraus-Parr, Grand Forks, ND, for petitioner and appellant.
Dennis H. Ingold, Assistant State’s Attorney, Bismarck, ND, for respondent and appellee.
Schweitzer v. State
No. 20240045
Crothers, Justice.
[¶1] Brandon Schweitzer appeals from a district court order denying his petition and
amended petition for postconviction relief. He argues he received ineffective assistance of
counsel when he pleaded guilty to four charges of fleeing a police officer, the underlying
events occurred the same day during four pursuits over a five-hour span. Schweitzer alleges
his attorney failed to advise him of a potential double jeopardy defense, failed to file a
motion to dismiss some of the multiple fleeing charges, and failed to give him appropriate
advice on whether to withdraw his guilty plea. We affirm.
I
[¶2] On August 15, 2022, around 8:37 p.m., Schweitzer was driving a motorcycle
without a license plate in Bismarck, North Dakota. Police tried to stop Schweitzer, but he
rapidly sped away. The police attempted to again stop Schweitzer at 9:39 p.m., 11:14 p.m.,
and 1:20 a.m. During the pursuits, a North Dakota Highway Patrol aircraft and unmarked
police vehicles followed Schweitzer. The aircraft and unmarked police vehicles monitored
Schweitzer, but did not attempt to stop Schweitzer. On August 16, police apprehended
Schweitzer at 1:43 a.m. The State charged Schweitzer with one count of reckless
endangerment, four counts of fleeing a police officer, and one count of driving under
suspension.
[¶3] On August 25, 2022, the district court held a change of plea hearing. The court
reviewed Schweitzer’s charges and specifically noted “[c]ounts 2, 3, 4, and 5—are fleeing
a peace officer at different times during that day.” The court noted two charges occurred
while fleeing on a motorcycle and two charges occurred while fleeing in a motor vehicle.
The court asked Schweitzer if he understood the charges, and he responded he did. After a
discussion about waiving the preliminary hearing, the court asked Schweitzer again if he
understood the charges, reviewed the charges with his attorney, and asked if Schweitzer
understood the potential penalties. Schweitzer responded he did.
[¶4] The district court asked Schweitzer if he “had enough time to discuss this matter”
with his attorney, and Schweitzer responded he did. The court asked if Schweitzer needed
to have a private conversation with his attorney and Schweitzer responded, “I don’t believe
so.” The court asked Schweitzer if he had any questions about any of the information given
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to him, and he responded he did not. After this exchange, the court asked Schweitzer for a
third time if he understood each fleeing charge correlated to a specific time he fled from
police, and Schweitzer said he understood. The court continued stating, “[b]ecause they’re
broken up in the affidavit. So I just wanted to make sure you understood why there’s four
charges on the same day but for the same offense. Okay. So you have no questions about
that at all?” Schweitzer responded that he did not have any questions.
[¶5] During Schweitzer’s change of plea hearing, the district court asked: “There’s four
counts of fleeing a police officer, second or subsequent offense, for each of those
individually, do you plead not guilty or guilty?” Schweitzer pleaded guilty. The court asked
if anyone forced or threatened Schweitzer to plead guilty and if his plea was of his “own
free will and choice after discussing it with your attorney?” Schweitzer said he was not
forced or threatened and the plea was made of his own free will. The court found
Schweitzer made his plea voluntarily.
[¶6] The district court asked Schweitzer if he wanted to review the affidavit, and
Schweitzer responded that he already discussed it with his attorney over the phone.
Undeterred, the court went through the affidavit, and Schweitzer confirmed he fled from
police when their lights were on at high speeds on a motorcycle at first and then in a car.
When asked for any further factual basis, the State added:
“The first attempted traffic stop was approximately 2037 hours; that was with
the motorcycle. Second stop was—approximately was 2139 on the
motorcycle again. And the third attempted stop was at approximately 2314;
that was near 6020 South 12th Street with Officer Jensen. And the fourth stop
was near 1812 Bell Street. And then that is when the North Dakota Highway
Patrol troopers placed spike strips, and Brandon Schweitzer’s vehicle
eventually came to a stop near 2500 block of East Boulevard Avenue.”
The court found a factual basis for Schweitzer’s six counts and sentenced him.
[¶7] On November 1, 2022, Schweitzer filed a petition for postconviction relief, claiming
his sentence was not authorized by law because he received “successive prosecutions and
punishments for the same offense.” He claimed his sentence violated the double jeopardy
clause of the Fifth Amendment of the United States Constitution. Schweitzer’s
postconviction hearing was scheduled for July 2023.
[¶8] On March 20, 2023, Schweitzer moved for a summary disposition. On May 31,
2023, the district court denied the motion citing State v. Kurtenbach and stating, “[a]n
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unconditional guilty plea waives all nonjurisdictional [sic] defects alleged to have occurred
prior to the guilty plea, including a double jeopardy claim.” 2009 ND 190, ¶ 2,
776 N.W.2d
582. On August 2, 2023, Schweitzer amended his petition to include a claim of ineffective
assistance of counsel because his attorney offered “no opposition to the charges as filed”
and allowed Schweitzer to plead guilty to the charges, which caused his “Fifth Amendment
double jeopardy rights to be violated.” An evidentiary hearing was held on January 8, 2024.
[¶9] In the order denying the petition and amended petition, the district court found
Schweitzer and his attorney discussed his case before the change of plea hearing and the
attorney recommended “waiting to offer pleas of guilty but Schweitzer wanted to” resolve
the matters. The court also found that the attorney “indicated the information delineated
the charges” because they occurred at different times, separate pursuits, and involved
fleeing on a motorcycle and in a car. The court found Schweitzer “provided little relevant
credible testimony.” The court found Schweitzer failed to cite caselaw establishing
“multiple counts of Fleeing a Peace Officer” were not appropriate because the charges
“involved the same suspect in the same jurisdiction on the same day” and “were separated
by the method of transportation, time, and location.” The court also found Schweitzer failed
to show his attorney was ineffective “for failing to raise a legal argument no authority
supports.”
[¶10] The district court found Schweitzer did not meet the first prong of the Strickland
test because he failed to show his attorney’s “performance fell below an objective standard
of reasonableness.” The court denied Schweitzer’s petition and amended petition.
Schweitzer timely appealed.
II
[¶11] “Postconviction relief proceedings are civil in nature and governed by the North
Dakota Rules of Civil Procedure.” Bridges v. State, 2022 ND 147, ¶ 5,
977 N.W.2d 718.
“Questions of law are fully reviewable on appeal of a post-conviction proceeding.”
Chatman v. State,
2018 ND 77, ¶ 6,
908 N.W.2d 724 (quoting Middleton v. State,
2014 ND
144, ¶ 5,
849 N.W.2d 196). “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).” Black
Elk v. State,
2023 ND 150, ¶ 5,
994 N.W.2d 394 (quoting Hunter v. State,
2020 ND 224, ¶
11,
949 N.W.2d 841). A clearly erroneous finding exists 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
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to support it, a reviewing court is left with a definite and firm conviction a mistake has
been made.” Black Elk, at ¶ 5 (quoting Hunter, at ¶ 11).
[¶12] Schweitzer argues he received ineffective assistance of counsel when he pleaded
guilty to four charges of fleeing police. He alleges the four charges occurred during the
same event and day, which he contends runs afoul of double jeopardy. He also alleges his
attorney should have given him notice of a potential double jeopardy defense.
[¶13] For a defendant to prevail on a claim for ineffective assistance of counsel, a party
applying the Strickland test 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. The question of ineffective assistance of counsel is a mixed
question of law and fact and is fully reviewable on appeal.”
Koon v. State, 2023 ND 247, ¶ 21,
1 N.W.3d 593 (quoting Kratz v. State,
2022 ND 188, ¶
12,
981 N.W.2d 891). “Courts need not address both prongs of the Strickland test, and if a
court can resolve the case by addressing only one prong it is encouraged to do so.”
Urrabazo v. State,
2024 ND 67, ¶ 13,
5 N.W.3d 521 (quoting Rourke v. State,
2018 ND
137, ¶ 6,
912 N.W.2d 311). “The Strickland test is a high bar and must be applied with
scrupulous care.” Hunter,
2020 ND 224, ¶ 10.
[¶14] The defendant must “overcome the ‘strong presumption’ that trial counsel’s
representation fell within the wide range of reasonable professional assistance, and courts
must consciously attempt to limit the distorting effect of hindsight” when establishing the
first Strickland prong. Hunter,
2020 ND 224, ¶ 12 (quoting Rourke,
2018 ND 137, ¶ 5).
The court must find whether “the identified acts or omissions were outside the wide range
of professionally competent assistance,” which must be weighed “in light of all the
circumstances.” Strickland v. Washington,
466 U.S. 668, 690 (1984). The attorney’s
misconduct must have prejudiced the defendant. Garcia v. State,
2004 ND 81, ¶ 5,
678
N.W.2d 568.
[¶15] When a “defendant pleads guilty on the advice of counsel, the defendant may only
attack the voluntary and intelligent character of the guilty plea.” Black Elk,
2023 ND 150,
¶ 16 (quoting Abdi v. State,
2021 ND 110, ¶ 10,
961 N.W.2d 303). “The voluntariness of
such a guilty plea turns on ‘whether that advice was within the range of competence
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demanded of attorneys in criminal cases.’” Damron v. State, 2003 ND 102, ¶ 9,
663
N.W.2d 650 (quoting Tollett v. Henderson,
411 U.S. 258, 267 (1973)).
[¶16] The district court found Schweitzer failed to show his attorney’s advice fell below
the objective standard of reasonableness. Fleeing a police officer occurs when a driver of
a motor vehicle “willfully fails or refuses to bring the vehicle to a stop, or who otherwise
flees or attempts to elude, in any manner, a pursuing police vehicle or peace officer, when
given a visual or audible signal to bring the vehicle to a stop.” N.D.C.C. § 39-10-71(1).
The court found Schweitzer failed to provide substantive law supporting his claim that four
counts of fleeing police during four pursuits on the same day violated the double jeopardy
clause. Therefore, the court did not err when it found Schweitzer failed to meet his high
burden of proving ineffective assistance of counsel. Moreover, the court’s findings that
Schweitzer failed to provide any law, rule, or evidence supporting his unfounded,
conclusory statements that he received ineffective assistance of counsel during his change
of plea hearing were not clearly erroneous. The court’s findings were not induced by an
erroneous view of the law, evidence exists to support the findings, and on the entire record,
this Court is not left with a definite and firm conviction a mistake was made.
III
[¶17] The district court did not err in denying Schweitzer’s petition and amended petition
for postconviction relief. We affirm.
[¶18] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Michael P. Hurly, D.J.
[¶19] The Honorable Michael P. Hurly, D.J., sitting in place of Bahr, J., disqualified.
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