KELLER v. STATE (2019)

Supreme Court of North Dakota.

Thomas Jeames KELLER, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee

No. 20180391

Decided: May 16, 2019

Scott O. Diamond, Fargo, ND, for petitioner and appellant; submitted on brief. Brian D. Grosinger, Assistant State’s Attorney, Mandan, ND, for respondent and appellee; submitted on brief.

[¶1] Thomas Jeames Keller appealed from a district court order denying his application for post-conviction relief. Keller argues the district court erred in denying his application for post-conviction relief because Keller was prejudiced by ineffective assistance of counsel when his attorney failed to obtain a pre-sentence investigation report prior to sentencing. We summarily affirm under N.D.R.App.P. 35.1(a)(7) because Keller did not show 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. See Booth v. State, 2017 ND 97, ¶ 13, 893 N.W.2d 186 (a defendant who pleads guilty knowingly and voluntarily cannot show in what manner actual prejudice resulted from his trial counsel’s failure to investigate more thoroughly).

Per Curiam.

[¶2] Gerald W. VandeWalle, C.J. Jerod E. Tufte Daniel J. Crothers Lisa Fair McEvers Jon J. Jensen