PAOLA v. STATE (2026)

[¶1] Tayven Paola appeals from a judgment denying his application for postconviction relief. He argues the district court erred in finding he failed to prove ineffective assistance of his trial counsel. We affirm, concluding the district court did not err in finding Paola failed to establish he received ineffective assistance of counsel.

I

[¶2] In the underlying criminal case (08-2023-CR-02516), the State charged Paola with four counts of gross sexual imposition, class A felony; patronizing a minor for commercial sexual activity, class A felony; contributing to the deprivation or delinquency of a minor, class C felony; luring minors by computer, class C felony; and indecent exposure, class A misdemeanor. Paola retained counsel. The State offered a plea agreement, which included a 20-year sentence for each class A felony, with 10 years suspended, followed by a period of probation, along with several fees and conditions of probation. On the lesser charges, the State offered straight time sentences of the statutory maximum penalty for each count, with all counts to run concurrently with each other. On counsel's advice, Paola rejected the offer.

[¶3] In December 2023, Paola entered open guilty pleas on all charges. In April 2024, the district court sentenced Paola to three consecutive terms of 20 years (10 years suspended) on two counts of gross sexual imposition and the charge of patronizing a minor for commercial sexual activity; 5 years (all but 30 months suspended) on the remaining felony charges; and 360 days on the misdemeanor charge, all concurrent with the gross sexual imposition charge in Count 3, along with varying terms of supervised probation. Paola received credit for 219 days for time already served.

[¶4] Paola filed an application for postconviction relief in November 2024, requesting a new trial and withdrawal of his guilty plea. Relevant to this appeal, Paola alleged his trial counsel provided ineffective assistance in advising him to reject the State's plea offer. Following an evidentiary hearing, the district court issued an order denying Paola's application and entered judgment on February 3, 2026. Paola appeals.

II

[¶5] Paola argues the district court clearly erred in finding he failed to establish ineffective assistance of his trial counsel and, therefore, his guilty pleas were not entered voluntarily, intelligently, or knowingly.

[¶6] “Postconviction relief proceedings are civil in nature and governed by the North Dakota Rules of Civil Procedure to the extent the rules do not conflict with the Uniform Postconviction Procedure Act, N.D.C.C. ch. 29-32.1.” Friesz v. State, 2026 ND 124, ¶ 2, ––– N.W.3d ––––. The standard of review for postconviction proceedings is well-established:

In reviewing post-conviction proceedings, the district court's factual findings will not be disturbed on appeal unless the findings are clearly erroneous. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, it is not supported by any evidence, or if we are left with a definite and firm conviction a mistake has been made. Questions of law are fully reviewable. Ineffective assistance of counsel is a mixed question of fact and law, which is fully reviewable on appeal.

Steinbach v. State, 2015 ND 34, ¶ 9, 859 N.W.2d 1 (cleaned up).

[¶7] The applicant has the burden of establishing the grounds for postconviction relief. Belyeu v. State, 2024 ND 133, ¶ 6, 9 N.W.3d 648. An applicant claiming ineffective assistance of counsel has the burden of proving both prongs of the two-prong Strickland test:

(1) [C]ounsel's representation fell below an objective standard of reasonableness, and (2) the defendant was prejudiced by counsel's deficient performance. The applicant must first overcome the strong presumption counsel's representation fell within the wide range of reasonable professional assistance. To meet the “prejudice” prong of the test, the applicant must establish a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. The applicant must prove that his counsel's assistance was ineffective and must specify how and where counsel was incompetent and the probable different result. Unless counsel's errors are so blatantly and obviously prejudicial that they would in all cases, regardless of the other evidence presented, create a reasonable probability of a different result, the prejudicial effect of counsel's errors must be assessed within the context of the remaining evidence properly presented and the overall conduct of the trial. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome of the proceeding.

Steinbach, 2015 ND 34, ¶ 10, 859 N.W.2d 1 (cleaned up); see Strickland v. Washington, 466 U.S. 668, 687-96, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

A

[¶8] Paola argues his trial counsel was ineffective in advising him to reject the State's plea offer.

[¶9] This Court has said:

To establish a defendant received ineffective assistance of counsel in the context of plea bargains, the defendant must show that his counsel's representation fell below an objective standard of reasonableness and that the outcome of the plea process would have been different with competent advice. To establish the prejudice prong of the Strickland test, the defendant must show:

that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed.

Steinbach, 2015 ND 34, ¶ 39, 859 N.W.2d 1 (cleaned up) (quoting Lafler v. Cooper, 566 U.S. 156, 164, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012)).

[¶10] To establish the first prong of the Strickland test, an applicant must surmount the “strong presumption” 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. Rademacher v. State, 2025 ND 137, ¶ 7, 23 N.W.3d 915. “Courts should not upset a plea solely because of post hoc assertions from a defendant about how he would have pleaded but for his attorney's deficiencies.” Lee v. United States, 582 U.S. 357, 369, 137 S.Ct. 1958, 198 L.Ed.2d 476 (2017). “[S]trict adherence to the Strickland standard [is] all the more essential when reviewing the choices an attorney made at the plea bargain stage.” Premo v. Moore, 562 U.S. 115, 125, 131 S.Ct. 733, 178 L.Ed.2d 649 (2011). As noted in Premo:

The art of negotiation is at least as nuanced as the art of trial advocacy, and it presents questions further removed from immediate judicial supervision. There are, moreover, special difficulties in evaluating the basis for counsel's judgment: An attorney often has insights borne of past dealings with the same prosecutor or court ․

Id.

[¶11] Regarding the first prong, the district court found:

While Mr. Paola may have received a different sentence had he accepted the State's plea offer and not proceeded on an open plea basis, the Court cannot find Mr. Bolinske's advice to proceed with the open plea amounted to ineffective assistance [of] counsel. The Court cannot second-guess Mr. Bolinske's strategy through the distorting effects of hindsight to find his representation related to the plea offer from the State fell below an objective standard of reasonableness just because Mr. Paola ultimately received a longer sentence proceeding on an open plea basis than he would have had he accepted the State's plea offer. Thus, the Court does not find Mr. Paola has overcome the strong presumption that Mr. Bolinske's representation fell within the wide range of reasonableness.

[¶12] Paola's trial counsel testified at the postconviction hearing that he has handled many similar cases over 25 years. When he was retained, Paola had already admitted to much of the conduct alleged in an interview with law enforcement. After reviewing discovery, trial counsel saw no viable defenses or motions to make in Paola's defense. Based on the evidence and subject matter of the charges, he did not believe Paola would prevail at trial. Based on his experience and consideration of Paola's lack of criminal history and acceptance of responsibility, trial counsel believed open pleas would result in a lesser sentence than what the State had offered. He testified that in 25 years, his clients had been sentenced higher than was recommended by the State fewer than ten times. He advised Paola to reject the offer, but he left the ultimate decision of whether to reject the plea up to Paola. Paola testified that his trial counsel never promised him any specific sentencing outcome.

[¶13] Where trial counsel has conducted a thorough investigation of the relevant law and facts, the strategic choices that follow are virtually unchallengeable. Noorlun v. State, 2007 ND 118, ¶ 12, 736 N.W.2d 477. “Tactical decisions, whether wise or unwise, successful or unsuccessful, cannot ordinarily form the basis of a claim of ineffective assistance.” Mattei-Albizu v. United States, 699 F. Supp. 2d 404, 409 (D.P.R. 2010) (relying on United States v. Ortiz Oliveras, 717 F.2d 1, 4 (1st Cir. 1983) (“Only where a defense decision is completely unreasonable, not merely wrong, so that it bears no relationship to a possible defense strategy, is further review into counsel's competence required.”)). This Court will not second guess or impose the distorting effect of hindsight upon trial counsel's strategy or tactics when counsel provides coherent, rational reasons in support of those decisions. Truelove v. State, 2020 ND 142, ¶ 11, 945 N.W.2d 272; Noorlun, ¶ 14. Based on counsel's testimony at the postconviction hearing, counsel based his advice to reject the State's offer on his experience defending similar criminal cases, mitigating factors in Paola's favor, and the evidence available at the time of the offer. Counsel's advice was a strategic decision that we will not second-guess through the distorting effect of hindsight.

[¶14] “Merely because a defendant does not prevail in a criminal prosecution that involves strategic choices by trial counsel does not mean those choices constitute ineffective assistance of counsel.” Noorlun, 2007 ND 118, ¶ 12, 736 N.W.2d 477. The record contains no evidence that Paola disagreed with his counsel's plea strategy or that counsel rejected the State's offer against Paola's wishes. Both Paola and his trial counsel testified that Paola made the ultimate decision to reject the State's offer. Because Paola agreed with his counsel's strategy at the time he rejected the offer, Paola cannot in retrospect assert ineffective assistance because he received a longer sentence than he would have had he accepted the State's offer.

[¶15] We conclude Paola failed to establish his trial counsel's strategic advice—to reject a plea offer and enter an open plea of guilty with the goal of receiving a lesser sentence than the State offered—fell below an objective standard of reasonableness. The district court's finding Paola failed to establish his counsel's assistance fell below an objective standard of reasonableness is not clearly erroneous.

[¶16] “[C]ourts need not address both prongs of the Strickland test and are encouraged to resolve a case by addressing only one prong, if possible.” Brooks v. State, 2026 ND 85, ¶ 2, 34 N.W.3d 119. Because the first prong is dispositive, we need not address the second prong.

B

[¶17] Paola argues his trial counsel rendered ineffective assistance by signing, without his knowledge, a waiver under N.D.R.Crim.P. 43 of Paola's right to be personally present.

[¶18] A defendant's presence is required at the initial appearance, arraignment, plea, every stage of trial, and sentencing. N.D.R.Crim.P. 43(a)(1). Under the rule, “presence” includes appearing by reliable electronic means. N.D.R.Crim.P. 43(a)(2). With judicial permission, a defendant need not be present under certain circumstances:

(1) Felony Offense.

(A) The offense is punishable by imprisonment for more than one year, and with a represented defendant's written consent, and written acknowledgment that the defendant was advised of the rights listed in Rules 5(b)(1) and (2) and 5(c), the preliminary hearing, the arraignment, and entry of a not guilty plea may occur in the defendant's absence.

(B) The offense is classified as a C felony under N.D.C.C. § 12.1-32-01(4), and with a represented defendant's written consent and written acknowledgment that the defendant was advised of the rights listed in Rules 5(b)(1) and (2) and 11(b), entry of a guilty plea or sentencing may occur in the defendant's absence.

(2) Misdemeanor Offense or Infraction. The offense is punishable by fine or by imprisonment for not more than one year, or both, and with the defendant's written consent and written acknowledgment that the defendant was advised of the rights listed in Rules 5(b)(1) and (3) and 11(b), the arraignment, plea, trial, or sentencing may occur in the defendant's absence.

N.D.R.Crim.P. 43(b)(1)-(2).

[¶19] An appellant's brief must contain citations to the record showing the party preserved an issue for review or, alternatively, a statement of grounds for seeking review of an unpreserved issue. N.D.R.App.P. 28(b)(7)(B)(ii). Paola's brief on appeal includes citations to testimony about the waiver at the postconviction hearing; it does not include citations to the record showing the argument was preserved or any grounds for reviewing a non-preserved argument.

[¶20] Paola did not raise this argument to the district court in his postconviction relief application, at the postconviction hearing, or otherwise. At the hearing, the court admitted the Rule 43 waiver as an exhibit and heard testimony relating to the waiver. Paola testified that he had no knowledge of the Rule 43 waiver and he thought reliable electronic means was the default manner of appearance. Upon inquiry of whether Paola desired to bring any additional information about the waiver to the court's attention, Paola responded, “Not that I can come up with or think of, sorry, no.” Paola raised no argument on the Rule 43 waiver in his post-hearing brief and the court did not address the argument.

[¶21] Mere allusion or reference to a potential issue is insufficient to preserve an issue for appellate review. See State v. Ronngren, 361 N.W.2d 224, 231 (N.D. 1985) (“Defense counsel's comment, ‘So much for sequestering,’ was insufficient to raise the issue for consideration by the trial court and therefore insufficient to preserve the issue on appeal.”).

[¶22] The record reflects that Paola did not properly raise the issue in the district court. When a party raises an argument on appeal that the party did not present to the district court, despite having the opportunity to do so, this Court will decline to consider the merits of that argument. See State v. Conley, 1998 ND 5, ¶ 21, 574 N.W.2d 569 (“When a defendant fails to argue a position on a pretrial motion to suppress, and does not attempt to show just cause for the untimely presentation of the position here, we will decline to consider the merits of that position.”). In Rademacher, Rademacher's amended petition for postconviction relief, the postconviction hearing, and the post-hearing briefing all raised the issue of whether trial counsel provided ineffective assistance by not requesting a second, independent fitness-to-proceed evaluation. 2025 ND 137, ¶¶ 14, 18, 23 N.W.3d 915. The issue Rademacher raised on appeal was whether counsel was ineffective by not requesting a criminal responsibility evaluation. Id. ¶ 14. Because Rademacher's argument on appeal differed from the argument presented to the district court, this Court declined to address it. Id. ¶ 18.

[¶23] Like in Rademacher, we conclude Paola failed to preserve the argument for appellate review, and we decline to address it.

III

[¶24] We have considered Paola's remaining arguments and conclude they are either without merit or unnecessary for our decision. We affirm the district court's judgment denying Paola's application for postconviction relief.

Fair McEvers, Chief Justice.

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