Rademacher v. State

                   IN THE SUPREME COURT
                   STATE OF NORTH DAKOTA

                                 

Steven Charles Rademacher,                             Petitioner and Appellant
       v.
State of North Dakota,                                Respondent and Appellee



                                 No. 20250023

Appeal from the District Court of Williams County, Northwest Judicial District,
the Honorable Benjamen J. Johnson, Judge.

AFFIRMED.

Opinion of the Court by Bahr, Justice.

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

Nathan K. Madden, Assistant State’s Attorney, Williston, ND, for respondent
and appellee; on brief.
                               Rademacher v. State
                                  No. 20250023

Bahr, Justice.

[¶1] Steven Rademacher appeals from a district court judgment denying his
petition for postconviction relief. Rademacher argues the court erred in denying
his petition because his trial counsel provided ineffective assistance by failing to
secure a complete vehicle examination and by failing to obtain an independent
criminal responsibility evaluation. We affirm.

                                         I

[¶2] In 2019, the State charged Rademacher with one count of murder, two
counts of attempted murder, and three counts of terrorizing, after he drove his
truck into a yard, striking and killing one person and injuring others. After a
trial, the jury found Rademacher guilty of murder, attempted murder, and
terrorizing. This Court affirmed the criminal judgments on appeal. State v.
Rademacher, 

, 

.

[¶3] In 2023, Rademacher applied for postconviction relief. In his amended
petition for postconviction relief, Rademacher alleged his trial counsel provided
ineffective assistance by “failing to investigat[e his] defense that the brakes on
the vehicle had been tampered with,” and “by not requesting a criminal
responsibility evaluation by a second psychiatrist independent from the North
Dakota State Hospital.” The State opposed the petition. The State filed a motion
to dismiss, which Rademacher opposed. The district court denied the motion.

[¶4] In November 2024, the district court held an evidentiary hearing on the
petition. Rademacher’s trial counsel testified, and the State offered exhibits into
evidence, including a State Hospital evaluation report, the mechanic’s report on
the truck, and various photographs. Both parties filed post-hearing briefs. The
court denied Rademacher’s petition and entered judgment.




                                         1
                                        II

[¶5] In postconviction proceedings, the applicant has the burden to establish
the grounds for relief. Urrabazo v. State, 

, 5 N.W.3d 521. This
Court’s 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.

Jung v. State, 

, ¶ 6, 6 N.W.3d 853 (quoting Black Elk v. State, 

, 

). “The task of weighing the evidence and judging the
credibility of witnesses belongs exclusively to the trier of fact, and we do not
reweigh credibility or resolve conflicts in the evidence.” Urrabazo, ¶ 15 (quoting
Truelove v. State, 

, 

). “Conflicts in testimony are
resolved in favor of affirmance, as this Court has recognized the district court is
in a superior position to assess credibility of witnesses and weigh the evidence.”
Isxaaq v. State, 

, 

.

                                       III

[¶6] Rademacher argues the district court erred by denying his claims his trial
counsel provided ineffective assistance. This Court’s standard for claims of
ineffective assistance of counsel is well-established:

      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. The question of
      ineffective assistance of counsel is a mixed question of law and fact
      and is fully reviewable on appeal.




                                        2
Urrabazo, 

 (quoting Koon v. State, 

, 1 N.W.3d
593); see also Strickland v. Washington, 

 (1984) (establishing
the requirements for ineffective assistance of counsel). “The Strickland test is a
high bar and must be applied with scrupulous care.” Hunter v. State, 

, ¶ 10, 

.

[¶7] “To establish the first prong, the applicant 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.’” Hunter, 

, ¶ 12 (quoting Rourke v.
State, 

, 

). “To establish the second prong, ‘the
defendant must specify how and where trial counsel was incompetent and the
probable different result.’” 

 ¶ 13 (quoting Brewer v. State, 

, 

). “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” 

 (quoting Brewer, ¶ 9). “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, 

 (quoting
Rourke, ¶ 6). “If it is easier to dispose of an ineffectiveness claim on the ground
of lack of sufficient prejudice, which we expect will often be so, that course
should be followed.” Hunter, ¶ 13 (quoting Rourke, ¶ 6).

                                          A

[¶8] Rademacher argues he received ineffective assistance of counsel when his
trial counsel, Steven Mottinger, failed to secure a “complete” vehicle
examination. Specifically, Rademacher argues Mottinger should have had the
vehicle’s brake system examined.

[¶9] Addressing the first prong of the Strickland test, the district court found:

             Attorney Mottinger testified that Rademacher brought up a
      possible issue with the accelerator sticking in the vehicle that he was
      driving. Mottinger testified that Rademacher never brought up the
      possibility that his vehicle’s brakes were defective. Mottinger
      testified that there was no evidence indicating that the vehicle’s
      brakes were defective. Mottinger testified that he did not have any
      reason to investigate an issue with the vehicle’s brakes as there was

                                          3
      no evidence indicating there was an issue with the brakes and
      Rademacher did not bring up the issue to Mottinger.
            ....
            The record before the Court indicates that Rademacher was
      not concerned about the vehicle’s brakes prior to trial. Rademacher
      did not bring up a possible issue with the brakes to Attorney
      Mottinger. There was no evidence in the case that indicated a
      possible defect with the brakes.

[¶10] Later, the district court found “there were multiple pieces of evidence
indicating that there was no issue with the vehicle’s brakes[.]” That evidence
included:

      Rademacher’s statement to investigators that he had driven the
      vehicle to Montana earlier in the day; the fact that Rademacher
      initially drove away, slowed down, and executed a U-turn to drive
      back to where the incident took place; the fact that he drove the
      vehicle from the scene; and the fact that law enforcement observed
      him drive the vehicle into a gas station and stop the vehicle without
      issue prior to detaining Rademacher.

[¶11] Based on its findings, the district court concluded Rademacher “failed to
demonstrate [his] trial counsel’s representation fell below an objective standard
of reasonableness,” and Rademacher “failed to show that his trial counsel was
ineffective due to the alleged brake issue.”

[¶12] After reviewing the record, we conclude the district court’s findings of fact
are not clearly erroneous. We further conclude the court did not err in
determining Rademacher failed to establish his trial counsel’s failure to
investigate the vehicle’s brake system under the facts of this case fell below an
objective standard of reasonableness.

                                        B

[¶13] On appeal, Rademacher argues he received ineffective assistance of
counsel when his trial counsel failed to obtain an independent criminal
responsibility evaluation.




                                        4
                                        1

[¶14] Although unclear, Rademacher appears to argue that, although the North
Dakota State Hospital conducted an evaluation regarding his fitness to proceed,
it did not conduct a criminal responsibility evaluation. Rademacher asserts the
district court identified his argument as “a lack of a criminal responsibility
evaluation.”

[¶15] Rademacher cites Johnson v. State, 

, 

, for the
proposition he was entitled to a criminal responsibility examination. In Johnson,
Johnson argued “his counsel’s representation was ineffective because the
attorney did not request a second, independent mental evaluation.” Id. ¶ 3. We
stated the petitioner “was entitled to one competent evaluation at public
expense.” Id. ¶ 22. We explained, “We have held that a psychiatric evaluation is
not deficient merely because a State Hospital employee has conducted it.” Id.
¶ 21. Noting an evaluation was completed by the North Dakota State Hospital,
we concluded “[c]ounsel’s actions did not fall below an objective standard of
reasonableness, because Johnson was entitled to and received one evaluation.”
Id. ¶ 22. Rademacher asserts his case “is distinguishable from Johnson in critical
ways,” asserting Johnson received a forensic evaluation addressing criminal
responsibility while he did not.

[¶16] Rademacher misstates the issue before the district court. After being
appointed counsel, Rademacher filed an amended petition for postconviction
relief. The amended petition alleged Rademacher’s trial counsel “was ineffective
by not requesting a criminal responsibility evaluation by a second psychiatrist
independent from the North Dakota State Hospital.” (Emphasis added.)
Rademacher reiterated that was the issue at the hearing. As discussed below, the
testimony at the hearing addressed why Mottinger did not request “an
independent evaluator as opposed to one that was employed by the state
hospital[.]” Similarly, in his post-hearing brief, Rademacher asserted “attorney
Mottinger did not take steps to secure an independent mental health evaluator
to determine if Mr. Rademacher was criminally responsible for the conduct
which took place on July 19th, 2019.” He later argued, “Although an evaluation
was conducted through the State Hospital, attorney Mottinger did not follow up


                                        5
and secure a second opinion to confirm if a viable defense existed.” (Emphasis
added.)

[¶17] Contrary to Rademacher’s assertion in his brief before this Court, the
district court did not identify the issue as “a lack of a criminal responsibility
evaluation.” Rather, the court stated Rademacher alleged ineffective assistance
of counsel because “his trial counsel failed to have a second independent
psychiatrist evaluate Rademacher[.]”

[¶18] “We have long held that issues not raised or considered in the district court
cannot be raised for the first time on appeal.” State v. Thompson, 

,
16 N.W.3d 204 (quoting State v. Powley, 

, 

). “In
postconviction relief proceedings we have held issues not raised in the
application for relief cannot be raised for the first time on appeal.” Bridges v.
State, 

, 

. The issue raised by Rademacher in his
amended petition, at the hearing, and in his post-hearing brief was whether his
trial counsel was ineffective by not requesting a second evaluation by an
independent mental health evaluator. Rademacher did not assert at the district
court that there was no criminal responsibility evaluation. Because the issue
raised on appeal was not raised in the district court, we decline to address it.

                                        2

[¶19] Rademacher argues the district court erred in denying postconviction
relief “because it improperly conflated the distinct concepts of fitness to proceed
and criminal responsibility.”

[¶20] “Fitness to proceed” and “lack of criminal responsibility” are separate and
distinct concepts. Compare N.D.C.C. § 12.1-04-04(1) with N.D.C.C. § 12.1-04.1-01.
The process for an examination or evaluation for fitness to proceed and lack of
criminal responsibility differ. Compare N.D.C.C. § 12.1-04-07 with N.D.C.C. ch.
12.1-04.1.

[¶21] The record reflects that Rademacher’s initial trial counsel filed expedited
motions for evaluations for criminal responsibility and fitness to proceed. The
district court granted both motions and ordered evaluations. An evaluation from

                                        6
the State Hospital to determine Rademacher’s present mental condition and
fitness to proceed was filed in October 2019. Trial attorney Mottinger was
assigned to represent Rademacher later that month.

[¶22] At the hearing on the application, Rademacher’s attorney had the
following exchange with Mottinger:

      Q. Okay. So now I—I would note that prior to your involvement in
      the case, there was—and Attorney Madden had commented on this
      earlier—there was a criminal responsibility evaluation that was
      requested by Attorney Nehring. Do you recall that?
      A. Yes.
      Q. When you took the case over, did you review that evaluation?
      A. I did.
      Q. Now, obviously, that wasn’t used at trial, was it?
      A. No.
      Q. And I—I suspect why is because it wasn’t favorable to Mr.
      Rademacher?
      A. That would be correct.

Rademacher’s attorney asked Mottinger whether he could have requested “an
independent evaluator as opposed to one that was employed by the state
hospital[.]” Mottinger answered he could have. In response to questions by
Rademacher and, later, the State, Mottinger testified why he did not believe a
second evaluation was necessary.

[¶23] The State asked Mottinger if he was “asked about mental health
evaluations,” to which he responded affirmatively. When asked, “[Y]ou had
indicated that you had reviewed the competency evaluation and the criminal
responsibility evaluation?” Mottinger responded, “Yes.” The following
exchange occurred later:

      Q. So reviewing that and looking at the evidence in this particular
      case, you decided to not seek an additional evaluation?
      A. Based on my review of the evaluation, my conversations with Mr.
      Rademacher, that was my decision.




                                      7
[¶24] The testimony at the hearing referenced “a criminal responsibility
evaluation,” “evaluations,” and “the competency evaluation and the criminal
responsibility evaluation.” The parties also asked Mottinger why he did not
request a second evaluation. Despite this evidence, Rademacher claims the
district court “noted” in its order that “there was no criminal responsibility
evaluation completed by the State [H]ospital.” Rademacher misstates the court’s
order.

[¶25] The State submitted as an exhibit the State Hospital’s fitness to proceed
evaluation of Rademacher. Referring to that evaluation, the district court wrote,
“It does not appear that that evaluation was done to determine if Rademacher
was criminally responsible in accordance with N.D.C.C. § 12.1-04.1.” The court’s
statement a specific evaluation did not appear to be a criminal responsibility
evaluation was not a finding “there was no criminal responsibility evaluation
completed by the State [H]ospital.” Unlike the report of a fitness to proceed
examination, which must be provided to the court under N.D.C.C. § 12.1-04-
07(3), the court’s order for a criminal responsibility evaluation ordered the
evaluation “be in writing and made and sent to Defense counsel only[.]” Thus,
only Rademacher had access to and could file the criminal responsibility
evaluation. The court did not hold no criminal responsibility evaluation was
completed.

[¶26] As previously noted, the issue raised in Rademacher’s amended petition
and restated at trial is whether his trial counsel “was ineffective by not
requesting a criminal responsibility evaluation by a second psychiatrist
independent from the North Dakota State Hospital.” (Emphasis added.) The
testimony at the hearing focused on the criminal responsibility evaluation, as did
Rademacher’s post-hearing brief. Despite this, in its memorandum decision, the
district court identified the issue as whether Rademacher’s “trial counsel failed
to have a second independent psychiatrist evaluate Rademacher for lack of fitness
to proceed[.]” (Emphasis added.) In its decision, the court stated, “Rademacher’s
first trial attorney requested an evaluation of Rademacher regarding his fitness
to proceed at trial. . . . The evaluation complied with the requirements of N.D.C.C.
§ 12.1-04-07(4) and concluded that Rademacher was fit to proceed to trial.”
(Emphasis added.) The court further explained, “Mottinger testified that the

                                         8
particulars of Rademacher’s cases did not warrant a second evaluation regarding
Rademacher’s fitness to proceed.” (Emphasis added.) The court concluded,

      The record before the Court indicates that Rademacher was fit to
      proceed to trial. Rademacher has failed to show that his trial
      attorney’s representation fell below an objective standard of
      reasonableness as it relates to requesting an additional evaluation
      regarding Rademacher’s fitness to proceed.

(Emphasis added.) The court did not address trial counsel’s alleged failure to
obtain an independent criminal responsibility evaluation.

[¶27] Rule 52(a), N.D.R.Civ.P., requires, “In an action tried on the facts without
a jury . . . the [district] court must find the facts specially and state its conclusions
of law separately.” N.D.R.Civ.P. 52(a). We have explained:

      [T]he district court is required to make such findings of fact and
      conclusions of law that are sufficient to enable the appellate court to
      understand the factual determinations made by the district court
      and the basis for its conclusions of law. To this end, the district
      court’s “findings of fact . . . should be stated with sufficient
      specificity to assist the appellate court’s review and to afford a clear
      understanding” of the district court’s decision.

In re Est. of Haugen, 

, 

 (quoting Haugrose v.
Anderson, 

, 

).

[¶28] The district court’s findings do not address the issue in dispute at the
postconviction relief hearing and do not allow meaningful appellate review. See
Haugrose, 

. We conclude the court’s specific findings do not
support the court’s denial of Rademacher’s petition for postconviction relief as
to this issue.

                                           3

[¶29] The State notes, “Rademacher did not present any expert testimony from
an evaluator during the hearing on his petition. Rademacher did not present any
evidence showing that he lacked the ability to appreciate the consequences of his


                                           9
actions.” Based on these assertions, the State argues “Rademacher did not show
a reasonably probable different outcome if he had additional evaluations”;
“Rademacher failed to present anything showing an objectively reasonable
different outcome had another evaluation been ordered.”

[¶30] The district court did not address the second prong of the Strickland test
when addressing this issue because it denied Rademacher’s petition on the first
prong. Although the court made insufficient findings to support its denial of
Rademacher’s petition under the first prong, “[w]e will not set aside a district
court’s decision simply because the court applied an incorrect reason, if the result
is the same under the correct law and reasoning.” Chase v. State, 

, 14 N.W.3d 37 (quoting Myers v. State, 

, 

).
Here, the court’s denial of Rademacher’s petition was the correct result, as a
matter of law, under the second prong of the Strickland test.

[¶31] To establish the second prong of the Strickland test, Rademacher “carries a
heavy burden” to establish a reasonable probability that, but for his trial
counsel’s error, the result of the proceeding would have been different. Lindeman
v. State, 

, 14 N.W.3d 883; see also Almklov v. State, 

, 17 N.W.3d 583 (stating a petitioner “bears a heavy burden” to prevail on a
postconviction claim of ineffective assistance). Although the question of
ineffective assistance of counsel is generally a mixed question of fact and law, no
factual issue exists when an applicant presents no evidence trial counsel’s
ineffectiveness undermined confidence in the outcome of the case. Lindeman, ¶ 8
(“Lindeman’s failure to provide any evidence he was substantially prejudiced by
the alleged ineffectiveness of his counsel is dispositive of this appeal.”).

[¶32] In Lindeman, Lindeman argued “his trial attorneys’ failure to file a motion
to suppress his confessions amounted to ineffective assistance of counsel because
had a motion to suppress been filed, counsel could have provided argument on
false confessions which would have made a difference in the outcome of the
case.” 

. However, Lindeman failed to “explain why or how he
would have prevailed on a motion to suppress his confessions.” 

 “In the
absence of supporting evidence,” we concluded Lindeman failed to meet his
burden. We also rejected Lindeman’s ineffective counsel claim because his trial


                                        10
attorney failed to make a request for an expert witness. Id. ¶ 10. We concluded
“Lindeman failed to prove the testimony of an expert would have been in his
favor. His conclusory allegations are not enough to amount to a showing of
prejudice.” Id. ¶ 12; see also Chisholm v. State, 

, 

(affirming district court’s denial of postconviction relief on the ground trial
counsel was deficient by failing to present expert witness testimony regarding
the psychological condition of dissociation when petitioner presented no
evidence of what a mental health expert would have said or testified to).

[¶33] Similarly, in State v. Schlickenmayer, 

 (N.D. 1985),
Schlickenmayer claimed he received ineffective assistance of counsel because his
counsel did not call certain witnesses to testify. However, Schlickenmayer failed
to “name or demonstrate how any potential witnesses, who could have been
called to testify at the trial, could have testified in his favor.” 

 As a result, this
Court explained: “Conclusory allegations that counsel failed to call certain
witnesses without indicating what the testimony would have been, how it might
have affected the outcome of the trial, or what prejudice may have resulted from
the failure to call them, do not support a claim of ineffective assistance of
counsel.” Id.; see also Almklov, 

 (“Almklov’s conclusory allegations
that his counsel failed to call certain witnesses without providing evidence of
what the testimony would have been, how it might have affected the outcome of
the trial, or what prejudice may have resulted from the failure to call them, does
not support a claim of ineffective assistance of counsel.”); Matthews v. State, 

, 

 (concluding petitioner’s “testimony as to what the
witnesses might say is not sufficient evidence as to what the witnesses would
say”); Damron v. State, 

, 

 (“A defendant must
offer evidence that any additional witnesses would have aided the defense’s
claim.”); State v. Ricehill, 

 (N.D. 1987) (declining “to begin the
ineffective-assistance-of-counsel analysis” when the record was “devoid of any
indication” of what the witness’s testimony would have been; “we require some
form of proof, e.g., an affidavit by the proposed witness, or testimony in a post-conviction-relief proceeding”).

[¶34] Similarly, as a matter of law, Rademacher could not meet his burden on
showing trial counsel’s decision not to obtain a second criminal responsibility

                                           11
evaluation undermined confidence in the outcome of his case without presenting
some evidence that the second opinion would have supported a lack of criminal
responsibility defense. Rademacher presented no such evidence. Rather,
ignoring his heavy burden of proof, Rademacher asserted a second opinion
addressing criminal responsibility “might have supported a lack of criminal
responsibility defense.”

[¶35] We conclude Rademacher failed, as a matter of law, to establish the second
prong of his claim his trial counsel was ineffective by failing to obtain an
independent criminal responsibility evaluation.

                                      IV

[¶36] We affirm the district court’s judgment.

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




                                      12