FOLEY v. STATE (2026)

[¶1] Christopher Lee Foley appeals from a district court judgment denying his application for postconviction relief. Following an evidentiary hearing, the district court found that Foley failed to demonstrate his counsel's representation fell below an objective standard of reasonableness and failed to show that he was prejudiced by the alleged deficient performance. On appeal, Foley argues his counsel's failure to present any mitigating argument at sentencing and waiver of the statutorily required presentence investigation report was objectively unreasonable representation. He asks this Court to reverse the judgment and “order a new sentencing hearing” or to alternatively “allow him to withdraw his plea to correct a manifest injustice.”

[¶2] “An applicant seeking to withdraw his guilty plea alleging ineffective assistance of counsel must surmount the two-prong test set out by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).” Isxaaq v. State, 2021 ND 148, ¶ 8, 963 N.W.2d 260. “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.” Id. ¶ 12 (citation omitted). “To satisfy the first prong under Strickland, an applicant must show his or her counsel's representation fell below an objective standard of reasonableness.” Id. ¶ 9 (citation omitted). “To satisfy the second prong, an applicant must establish 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.” Id. “A defendant does not satisfy [the] second prong if the evidence shows that he was ‘eager to plead guilty.’ ” Watson v. State, 2022 ND 215, ¶ 11, 982 N.W.2d 604 (quoting United States v. Nesgoda, 559 F.3d 867, 870 (8th Cir. 2009)). When an applicant for postconviction relief seeks to withdraw his guilty plea, the district court considers whether relief is necessary to correct a manifest injustice, which this Court reviews for an abuse of discretion. Isxaaq, ¶ 7.

[¶3] Foley argues his counsel was deficient at sentencing, and seeks a new sentencing hearing, but he did not provide this Court a copy of the sentencing hearing transcript. “The appellant assumes the consequences and risk for failure to file a transcript of a hearing.” Smith v. Erickson, 2019 ND 48, ¶ 9, 923 N.W.2d 503. Foley does not claim that but for counsel's errors he would not have pleaded guilty and would have proceeded to trial. Foley was eager to plead guilty. After review of the record, we conclude the district court did not err by concluding Foley's claims fail the prejudice prong of Strickland. Watson, 2022 ND 215, ¶ 11, 982 N.W.2d 604 (explaining when evidence shows a defendant eagerly pleaded guilty, the prejudice prong is not satisfied). Without establishing prejudice, Foley cannot show a manifest injustice necessary to withdraw his guilty plea. See Isxaaq, 2021 ND 148, ¶ 29, 963 N.W.2d 260. The district court did not abuse its discretion by denying Foley's request to withdraw his guilty plea. We summarily affirm the district court judgment denying Foley's application for postconviction relief under N.D.R.App.P. 35.1(a)(2) and (4).

Per Curiam.

[¶4] Lisa Fair McEvers, C.J. Jerod E. Tufte Jon J. Jensen Douglas A. Bahr Mark A. Friese