Brandon Jerome Schwitzer v. State of North Dakota

Bismarck, North Dakota postconviction relief criminal defense lawyer represented the Plaintiff.

[¶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 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 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.

Affirmed





Schweitzer v. State, 2024 ND 151, 20240045 (N.D. Jul 18, 2024)