author: VANDE WALLE, Chief Justice.

text:
    2003 ND 98
    In the Interest of A.B. Norean Hoots, L.S.W., Petitioner and Appellant, v. K.B., Respondent and Appellee. F.B., A.B., and Monty Mertz, Guardian ad Litem, Respondents. Turtle Mountain Band of Chippewa, Intervenor and Appellee.
    No. 20020309.
    Supreme Court of North Dakota.
    June 17, 2003.

      Susan Lynne Bailey, Assistant State’s Attorney, Cass County Social Services, Fargo, N.D., for petitioner and appellant.
    Douglas W. Nesheim (on brief), Johnson, Ramstad <& Mottinger, PLLP, Fargo, N.D., for respondent and appellee.
    B.J. Jones (argued), Rapid City, S.D., for intervenor and appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Norean Hoots, a social worker with Cass County Social Services, (“Cass County”) appealed from a juvenile court order granting a motion by the Turtle Mountain Band of Chippewa Indians (“Turtle Mountain Tribe”) under the Indian Child Welfare Act (“ICWA”), 25 U.S.C. § 1901 et seq., to transfer jurisdiction of a parental termination proceeding from state juvenile court to the Turtle Mountain Tribal Court (“Tribal Court”). We affirm the transfer, holding the juvenile court did not commit reversible procedural error in overturning a judicial referee’s recommendation to deny the motion to transfer, holding the juvenile court did not err in transferring jurisdiction of the child custody proceeding to Tribal Court, and holding the application of ICWA to the minor child is not unconstitutional.

I

[¶ 2] A.B. was born in 1993. A.B.’s biological father, F.B., and her paternal grandmother, H.L., are enrolled members of the Turtle Mountain Tribe, and A.B. is eligible for membership in the Turtle Mountain Tribe. A.B. is therefore an “Indian child” under ICWA. See 25 U.S.C. § 1903(4). During the time relevant to this appeal, F.B. was living in the state of Washington. On March 3, 2001, A.B. was living with her mother, K.B., in Cass County, when K.B. was arrested for driving under the influence. K.B. advised police that A.B., then age 7, and two younger siblings were home alone. A.B. was placed in protective custody, and after a March 2001 juvenile court determination that she was deprived, Cass County placed her in foster care with H.L., who was living in Fargo. At the request of H.L., Cass County placed A.B. in a non-Indian foster home in October 2001. In February 2002, K.B.’s probation was revoked, and she was sentenced to two years in jail. In a motion filed on February 20, 2002, the Turtle Mountain Tribe moved under ICWA to transfer jurisdiction of child custody proceedings involving A.B. from the state juvenile court to Tribal Court. K.B. objected, and the juvenile court refused to transfer jurisdiction to Tribal Court. See 25 U.S.C. § 1911(b) (providing, in part, state court shall transfer proceeding to jurisdiction of tribe, absent objection by either parent).

[¶ 3] On June 3, 2002, Cass County petitioned the juvenile court to terminate the parental rights of K.B. and F.B. In a motion dated July 17, 2002, and filed on July 23, 2002, the Turtle Mountain Tribe moved under ICWA to transfer jurisdiction of the proceeding involving A.B. from state juvenile court to Tribal Court. K.B. did not object to this motion to transfer jurisdiction. After a September 23, 2002 hearing, a judicial referee recommended denying the motion to transfer jurisdiction, concluding it was not timely because the proceeding was at an advanced stage and a transfer of jurisdiction to Tribal Court would create a forum inconveniens. The Turtle Mountain Tribe sought review of the referee’s decision under N.D. Sup.Ct. Admin. R. 13. The juvenile court reversed the referee’s recommendation, concluding the Turtle Mountain Tribe’s motion to transfer was made within seven weeks after Cass County’s petition to terminate parental rights was filed and was timely. The juvenile court also concluded the Tribal Court was not an inconvenient forum. The juvenile court granted the Turtle Mountain Tribe’s motion to transfer jurisdiction to Tribal Court and dismissed the state court petition to terminate parental rights.

II

[¶ 4] In In the Interest of D.Q., 2002 ND 188, ¶¶ 8-9, 653 N.W.2d 713 (citations omitted), we outlined our relevant standards of review of a juvenile court proceeding initially heard by a referee and then reviewed by a district court:

“[A] district court’s review of a judicial referee’s findings and recommendations under Administrative Rule 13, § 11(b), when it is a review of the record, is governed by Rule 53, N.D.R.Civ. P.” “Under Rule 53(f)(2), N.D.R.Civ.P., the district court was obliged to accept the referee’s findings unless they were clearly erroneous.... The correctness of a referee’s findings is an issue that must be determined by the district court in the first instance.” When the district court rejects a judicial referee’s factual findings, this Court employs a two-step review of the district court’s factual determinations:
First, we must review, as a matter of law, the correctness of the district court’s reversal, under the clearly erroneous standard, of any factual findings by the judicial referee. Second, if the district court’s reversal of findings is upheld, we must then review the substitute or additional findings of the district court under the clearly erroneous standard of Rule 52(a), N.D.R.Civ.P.
A judicial referee’s conclusions of law are fully reviewable in the district court, and the district court’s conclusions of law are fully reviewable upon appeal to this Court.
In proceedings under the Uniform Juvenile Court Act, this Court’s review of a juvenile court decision is governed by N.D.C.C. § 27-20-56, which provides, in part, that an appeal from a juvenile court’s final order, judgment, or decree “must be heard by the supreme court upon the files, records, and minutes or transcript of the evidence of the juvenile court, giving appreciable weight to the findings of the juvenile court.” “This court’s review of a juvenile court’s order is similar to a trial de novo.” “We independently review the evidence, and our review is not limited to a determination of whether the juvenile court’s findings are clearly erroneous.” ‘We afford the juvenile court’s findings appreciable weight, but we are not bound by them.”

Ill

[¶ 5] Cass County argues the juvenile court erred in not allowing it adequate time to respond to the Turtle Mountain Tribe’s request for review of the referee’s decision and in reversing the referee’s decision without reviewing a tape or transcript of the evidentiary hearing before the referee.

[¶ 6] The referee recommended denying the Turtle Mountain Tribe’s motion to transfer jurisdiction in a decision issued on October 8, 2002. In a petition dated October 16, 2002, and filed with the juvenile court on October 21, 2002, the Turtle Mountain Tribe sought review of the referee’s decision under N.D. Sup.Ct. Admin. R. 13, which provides, in part:

Section 11. Procedure for Review.

(a) A review of the findings and order may be ordered at any time by a district court judge and must be ordered if a party files a written request for a review within three days after receiving the notice in Section 10(b). The request for review must state the reasons for the review.
(b) The review by a district court judge must be a review of the record, unless the court orders a hearing of the proceeding.

On October 25, 2002, without a response from Cass County and apparently without reviewing a tape or transcript of the hearing before the referee, the juvenile court reversed the referee’s decision.

[¶ 7] In In the Interest of L.A.G., 1999 ND 219, ¶¶ 6-8, 602 N.W.2d 516, we considered similar issues in the context of N.D. Sup.Ct. Admin. R. 13 and a juvenile court order reversing a referee’s denial of the State’s motion to transfer from juvenile court to district court the prosecution of a juvenile for felony possession of a controlled substance with intent to deliver. The referee recommended denial of the transfer, concluding the State had failed to establish probable cause to link the controlled substance to the juvenile. Id. at ¶ 4. The juvenile court reversed the referee’s recommendation and transferred the prosecution to district court. Id. at ¶ 5.

[¶ 8] On appeal to this Court, the juvenile argued the juvenile court erred in failing to review a transcript of the hearing before the judicial referee and in not permitting his counsel to file a brief or argue legal issues at a hearing during the review process. L.A.G., 1999 ND 219, ¶6, 602 N.W.2d 516. The hearing before the judicial referee was recorded by shorthand and the transcript prepared from the reporter’s notes apparently was not available to the juvenile court when it reversed the referee’s decision. Id. We assumed the juvenile court did not review a tape or transcript of the hearing before the judicial referee, and we concluded that claimed failure was harmless. Id. We said our review of a juvenile court’s order was similar to a trial de novo, and we concluded all the relevant factual matters presented at the evidentiary hearing were not in dispute and were included in the record reviewed by the juvenile court. Id. at ¶ 7. We said the juvenile’s counsel did not argue that any testimony during the evidentiary hearing contradicted the relevant facts developed in the police reports and affidavits reviewed by the juvenile court, and any failure by the juvenile court to review a transcript of the proceedings did not constitute reversible error. Id. at ¶¶ 6-7. In rejecting the juvenile’s argument that the juvenile court erred in not permitting him to file a brief or argue legal issues at a hearing during the review process, we said the record did not reflect that the juvenile’s counsel made any response to the State’s petition for review, or that the court prohibited the juvenile from responding. Id. at ¶8. We concluded the juvenile court did not commit reversible procedural error in its review of the referee’s recommendation. Id.

[¶ 9] Under N.D. Sup.Ct. Admin. R. 13, § 11, a district court may order a review of a referee’s findings and order at any time and must order a review if requested by a party within three days after receiving written notice of the right to review. The rule does not necessarily contemplate a response from an opposing party before a district court reviews a referee’s decision and does not preclude an opposing party from asking a district court for reconsideration. Nothing in the current N.D. Sup.Ct. Admin. R. 13, required the juvenile court to allow a response from Cass County before the court considered the Turtle Mountain Tribe’s request for review of the referee’s decision.

[¶ 10] Moreover, the record before the juvenile court includes an affidavit of Hoots and an affidavit of Marilyn Poitra, the ICWA coordinator for the Turtle Mountain Tribe. Hoots and Poitra were the only witnesses who testified at the hearing before the judicial referee. The affidavits of Hoots and Poitra were part of the record, as well as the other juvenile court records leading up to the termination petition. Although Cass County claims there are disputed facts, we conclude the relevant facts necessary for the resolution of this case are not in dispute, and as we discuss in more detail later, the issues involved in this case are legal issues. Under these circumstances, we conclude the juvenile court’s apparent failure to review a tape or transcript of the hearing was harmless, and the juvenile court did not commit reversible procedural error in its review of the judicial referee’s recommendation.

IV

[¶ 11] Cass County argues the juvenile court erred in reversing the referee’s decision because there was good cause under ICWA to deny the Turtle Mountain Tribe’s motion to transfer jurisdiction to the Tribal Court. Cass County contends the Turtle Mountain Tribe’s motion to transfer was not timely and the Tribal Court is an inconvenient forum.

[¶ 12] Congress enacted ICWA in 1978 as the product of a rising concern for the consequences of state welfare practices which resulted in the separation of many Indian children from their families and tribes through adoption or foster care placement in non-Indian homes. See Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989). See also Jesse C. Trentadue and Myra A. DeMontigny, The Indian Child Welfare Act of 1978: A Practitioner’s Perspective, 62 N.D. L.Rev. 487, 494-501 (1986). In enacting ICWA, Congress declared a national policy to

protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.

25 U.S.C. § 1902.

Congress explicitly found
(3) that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest, as trustee, in protecting Indian children who are members of or are eligible for membership in an Indian tribe;
(4) that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions; and
(5)that the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.

25 U.S.C. § 1901.

[¶ 13] At the heart of ICWA is 25 U.S.C. § 1911, a dual jurisdictional scheme for child custody proceedings involving an Indian child. See Holyfield, 490 U.S. at 36, 109 S.Ct. 1597. Under 25 U.S.C. § 1911(a), except where jurisdiction is vested in the State by existing Federal law, a tribal court has exclusive jurisdiction over a child custody proceeding involving an Indian child “who resides or is domiciled within the reservation” of that child’s tribe. See Holyfield, at 36, 109 S.Ct. 1597. In Holyfield, at 47-53, 109 S.Ct. 1597, the United States Supreme Court defined domicile for an illegitimate minor child to mean the domicile of the child’s mother.

[¶ 14] For an Indian child not domiciled or residing within the reservation of the child’s tribe, 25 U.S.C. § 1911(b) creates concurrent but presumptive tribal court jurisdiction, see Holyfield, 490 U.S. at 36, 109 S.Ct. 1597, and provides

In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child’s tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child’s tribe: Provided, that such transfer shall be subject to declination by the tribal court of such tribe.

[¶ 15] ICWA defines an “Indian child” as “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” 25 U.S.C. § 1903(4). Under 25 U.S.C.1903(1), a “child custody proceeding” means and includes foster care placement, termination of parental rights, preadoptive placement, and adoptive placement. A.B. is the biological minor child of F.B., an enrolled member of the Turtle Mountain Tribe, and is an “Indian child” under 25 U.S.C. § 1911(b). Absent good cause to the contrary, 25 U.S.C. § 1911(b) thus creates presumptive Tribal Court jurisdiction over any child custody proceeding involving A.B., including a foster care placement proceeding or a termination of parental rights proceeding.

[¶ 16] ICWA does not define “good cause to the contrary,” but the Bureau of Indian Affairs has issued guidelines which, although not binding, are helpful for determining good cause. Department of the Interior, Bureau of Indian Affairs, Guidelines for State Courts; Indian Child Custody Proceedings — Part III, 44 Fed.Reg. 67583 et seq. (1979) (“BIA Guidelines”). See, e.g., People in Interest of J.L.P., 870 P.2d 1252, 1257 (Colo.Ct.App.1994); In the Interest of Armell, 194 Ill.App.3d 31, 141 Ill.Dec. 14, 550 N.E.2d 1060, 1065 (1990). The burden of establishing good cause to deny a transfer is upon the party opposing the transfer. BIA Guidelines, at 67591. See Interest of J.L.P., 870 P.2d at 1257; Armell, 141 Ill.Dec. 14, 550 N.E.2d at 1064. As relevant to this case, the BIA Guidelines state that good cause to deny transfer of a child custody proceeding to tribal court exists if the proceeding is at an advanced stage when the petition to transfer is received, or if the evidence to decide the case could not be adequately presented in the tribal court without undue hardship to the parties or the witnesses. BIA Guidelines, § C.3(b)(i) and (in) at 67591.

A

[¶ 17] Here, the referee decided the relevant time period for determining whether the Turtle Mountain Tribe’s motion to transfer jurisdiction was timely was when Cass County initiated the foster care proceeding in March 2001. The referee effectively decided the foster care proceeding was part of the termination proceeding and concluded the July 2002 motion to transfer jurisdiction was filed at an advanced stage of the child custody proceeding and was untimely. The juvenile court disagreed, concluding the relevant time for deciding whether the July 2002 motion to transfer was timely was after Cass County filed the June 3, 2002 petition to terminate parental rights, because a foster care placement proceeding and a termination of parental rights proceeding are two separate proceedings under the definition of “child custody proceeding.” See 25 U.S.C. § 1903(1). The juvenile court decided the Turtle Mountain Tribe filed its motion to transfer jurisdiction approximately seven weeks after the petition to terminate parental rights was filed, and the termination proceeding was not at an advanced stage when the transfer motion was filed.

[¶ 18] Under 25 U.S.C. § 1903(1), a “child custody proceeding” means and includes foster care placement, termination of parental rights, preadoptive placement, and adoptive placement. Foster care placement means “any action removing an Indian child from its parent or Indian custodian for temporary placement in- a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated.” 25 U.S.C. § 1903(l)(i). A termination of parental rights proceeding means “any action resulting in the termination of the parent-child relationship.” 25 U.S.C. § 1903(l)(ii). The plain language of those definitions distinguishes between a foster care placement proceeding and a termination of parental rights proceeding. By definition, a foster care placement proceeding seeks to temporarily remove an Indian child from the child’s parent or Indian custodian without terminating parental rights, while a termination of parental rights proceeding seeks to end the parent-child relationship. Those proceedings have different purposes in the realm of a “child custody proceeding.” The plain language of 25 U.S.C. § 1911(b) authorizes transfer motions for either foster care placement proceedings or for termination of parental rights proceedings, and the judicial referee’s interpretation of 25 U.S.C. § 1911(b) would subsume an Indian tribe’s right to request transfer of a termination proceeding into its right to request transfer of an earlier foster care placement proceeding. The juvenile court’s interpretation of “child custody proceeding” correctly distinguishes between proceedings for “foster care placement” and “termination of parental rights” and recognizes the different purposes that may trigger each proceeding. We conclude, as a matter of law, the juvenile court correctly interpreted ICWA to measure the relevant time period for a motion to transfer jurisdiction in this case from the filing of the petition to terminate parental rights.

[¶ 19] Cass County’s petition to terminate parental rights was filed on June 3, 2002. In a motion dated July 17, 2002, and filed on July 23, 2002, the Turtle Mountain Tribe moved to transfer jurisdiction of the proceeding to Tribal Court. The Turtle Mountain Tribe’s motion to transfer was some seven weeks after the petition to terminate parental rights was filed, and the transfer motion was filed about one week before a pre-trial conference and about two weeks before the scheduled trial.

[¶ 20] The commentary to the BIA Guidelines states that good cause exists to deny a transfer if a party waits until the case is almost complete and asks that it be transferred to another court and retried. BIA Guidelines, at 67590. The requirement for a timely motion to transfer is intended “to encourage the prompt exercise of the right to petition for transfer in order ‘to avoid unnecessary delays [, because l]ong periods of uncertainty concerning the future are generally regarded as harmful to the well-being of children.” Id. at 67591-67592. The requirement for a timely motion to transfer is a proven weapon against disruption caused by obstructionist tactics, because “[i]f a transfer petition must be honored at any point before judgment, a party could wait to see how the trial is going in state court and then obtain another trial if it appears the other side will win.” Id. at 67590. The commentary to the BIA Guidelines indicates the requirement for a timely motion to transfer precludes a party from using delay tactics to “wear down the other side by requiring the case to be tried twice.” Id. At a minimum, the BIA Guidelines contemplate that a motion to transfer is not timely if transfer would require a retrial.

[¶ 21] Whether a motion for transfer jurisdiction is timely is determined on a case-by-case basis, and some courts have held that transfer petitions are not timely if filed on the morning of trial, see In re Termination of Parental Rights of Wayne R.N., 107 N.M. 341, 757 P.2d 1333, 1335-36 (1988), or after trial has commenced. See In re Termination of Parental Rights of Laurie R., 107 N.M. 529, 760 P.2d 1295, 1299 (1988). Other courts have held that transfer motions filed after the final dispo-' sition of the case are not timely. See People In re S.G.V.E., 2001 SD 105, ¶¶ 25-28, 634 N.W.2d 88; Matter of A.P., 1998 MT 176, ¶ 22, 289 Mont. 521, 962 P.2d 1186.

[¶ 22] Here, we reject Cass County’s characterization that the Turtle Mountain Tribe filed the transfer motion on the “eve of trial.” Rather, the transfer motion was filed about seven weeks after the termination petition was filed and two weeks before the scheduled trial. Although the requirement for a timely motion encourages the prompt exercise of the right to transfer jurisdiction and the Turtle Mountain Tribe’s motion to transfer could have been made earlier, under the circumstances of this case we agree with the juvenile court that the transfer motion was not at an advanced stage of the proceeding to terminate parental rights. We therefore conclude the motion to transfer jurisdiction was not untimely.

B •

[¶ 23] The judicial referee also decided the Tribal Court would be a forum inconveniens, stating if the Turtle Mountain Tribe’s motion to transfer jurisdiction was granted, the proceeding would be terminated and there would be no forum in which to present evidence related to the long term deprivation of A.B. and her best interests. The referee also stated all the evidence relating to the child’s best interest was in the juvenile court’s jurisdiction. The juvenile court rejected the referee’s determination, concluding there was no hardship in transferring jurisdiction to the Tribal Court because the Tribal Court had offered to hear the case in Fargo. The juvenile court said a dismissal of the state termination proceeding was a procedural formality to allow the Tribal Court to take jurisdiction.

[¶ 24] The referee’s decision reflects an erroneous conclusion that there would be no forum in which to present evidence related to the deprivation of A.B. and her best interests if the transfer was granted. The referee’s conclusion ignores that ICWA gives the Tribal Court presumptive jurisdiction over child custody proceedings involving an Indian child and there is no reason to believe the Tribal Court will not fulfill its obligations regarding A.B. Moreover, the commentary to the BIA Guidelines states that application of a modified doctrine of “forum non conveniens” may limit transfers to cases involving Indian children who do not five very far from a reservation, but the problem may be alleviated by having tribal courts come to the witnesses and a transfer may be conditioned on having a tribal court meet in the city where the family fives. BIA Guidelines, at 67591. Because the Tribal Court has offered to sit in Fargo for proceedings relating to A.B., we see no reason for concluding the Tribal Court is unable to adequately deal with issues pertaining to A.B. We affirm the juvenile court’s decision granting the transfer of jurisdiction to the Tribal Court.

V

[¶ 25] Cass County argues the judicial referee and the juvenile court erred in refusing to consider evidence regarding AB.’s best interest in the context of the motion to transfer jurisdiction.

[¶ 26] Although one of the goals of ICWA is to protect the best interests of an Indian child, see 25 U.S.C. § 1902, the issue here is the threshold question regarding the proper forum for that decision. See Holyfield, 490 U.S. at 53, 109 S.Ct. 1597 (stating Supreme Court asked to decide legal question of who makes custody determination of Indian child, not the outcome of the decision, which is placed in the hands of tribal court). We agree with those courts that have concluded the best interest of the child is not a consideration for the threshold determination of whether there is good cause not to transfer jurisdiction to a tribal court. See J.L.P., 870 P.2d at 1258-59; Armell, 141 Ill.Dec. 14, 550 N.E.2d at 1064-67; In re C.E.H., 837 S.W.2d 947, 954 (Mo.Ct.App.1992); Matter of Guardianship of Ashley Elizabeth R, 116 N.M. 416, 863 P.2d 451, 456 (1993); Yavapai-Apache Tribe v. Mejia, 906 S.W.2d 152,169-70 (Tex.Ct.App.1995).

VI

[¶ 27] Relying primarily on In re Santos Y., 92 Cal.App.4th 1274, 112 Cal. Rptr.2d 692 (2001), Cass County argues the transfer of jurisdiction to Tribal Court under ICWA and the circumstances of this case violated A.B.’s constitutional rights. The Turtle Mountain Tribe responds that Cass County did not raise this issue in the review before the juvenile court and is precluded from raising it on appeal.

[¶ 28] Cass County raised this constitutional issue at the hearing before the judicial referee, but the referee ruled in favor of Cass County without addressing it. The juvenile court reversed the referee’s recommendation but did not address the constitutional issue. Whether a statute violates the federal or state constitutions is a question of law and is fully reviewable on appeal. Best Products Co., Inc. v. Spaeth, 461 N.W.2d 91, 96 (N.D.1990). Assuming, without deciding, that Cass County, as an entity with foster-care custody of A.B., has standing to raise her constitutional claims, because of our de novo review of juvenile court proceedings, we now consider and resolve the constitutional issue in order to infuse a degree of finality into these proceedings involving jurisdiction under ICWA for a child custody proceeding. See L.A.G., 1999 ND 219, ¶ 7, 602 N.W.2d 516.

[¶ 29] Cass County argues the transfer of jurisdiction to Tribal Court violates A.B.’s rights to substantive due process and to equal protection under the federal and state constitutions. Cass County asserts ICWA substantially interferes with A.B.’s fundamental right to a stable and permanent placement and requires different treatment for Indian and non-Indian children. Cass County argues strict scrutiny applies to ICWA’s statutory intrusion on those rights and claims the Turtle Mountain Tribe’s interests, which ICWA purports to promote, are not compelling under substantive due process and equal protection standards. Cass County argues “[b]lind application of the ICWA, coupled with excessive delay and/or failure of the Tribe to proffer appropriate placement options for children, increases the likelihood that an Indian child’s placement will be disrupted and permanence delayed.” Cass County urges us to apply the existing Indian family doctrine to prevent the unconstitutional application of ICWA to A.B. under the facts of this case.

[¶ 30] In Santos, 112 Cal.Rptr.2d at 699, the California Court of Appeals accepted similar arguments and held that application of ICWA to an Indian child was unconstitutional under the Fifth, Tenth, and Fourteenth Amendments to the United States Constitution. See also In re Bridget R., 41 Cal.App.4th 1483, 49 Cal. Rptr.2d 507 (1996). In Santos, 112 Cal. Rptr.2d at 726, the court explained ICWA was unconstitutional as applied to a child whose “sole connection with the Tribe [was] a one-quarter ‘Minnesota Chippewa Tribe’ genetic contribution from an enrolled blood line, an enrollment based on that genetic contribution.” The child, who was then two and a half years old, had been living in foster care since his birth and with his “de facto parents” since he was three months old, id. at 697, and there “was no Indian family” to preserve. Id. at 726.

[¶ 31] Under those circumstances, the court concluded ICWA violated the child’s substantive due process rights:

We do not disagree with the proposition that preserving Native American culture is a significant, if not compelling, governmental interest. We do not, however, see that interest being served by applying the ICWA to a multiethnic child who has had a minimal relationship with his assimilated parents, particularly when serving the tribal interests “can serve no purpose which is sufficiently compelling to overcome the child’s fundamental right to remain in the home where he ... is loved and well cared for, with people to whom the child is daily becoming more attached by bonds of affection and among whom the child feels secure to learn and grow.”

Santos, 112 Cal.Rptr.2d at 726.

The court also concluded ICWA violated the child’s equal protection rights:

“application of ICWA which is triggered by an Indian child’s genetic heritage, without substantial social, cultural or political affiliations between the child’s family and a tribal community, is an application based solely, or at least predominantly, upon race and is subject to strict scrutiny under the equal protection clause.” The test we apply is whether the classification serves a “compelling governmental interest” and is “narrowly tailored” to achieve its goal.
The facts upon which we relied in concluding that application of the ICWA to this Minor constituted a violation of substantive due process lead to the conclusion that application of the ICWA to the Minor constitutes a violation of equal protection of the laws under the Fifth and Fourteenth Amendments to the United States Constitution. The record reflects that the Minor has no association with the Tribe other than genetics, i.e., his one-quarter “Minnesota Chippewa blood” from an enrolled bloodline of the Tribe. Whether we characterize this genetic association as racial, ethnic, or ancestry, a determination based on “blood,” on its face invokes strict scrutiny to determine whether the classification serves a compelling governmental interest and is narrowly tailored to achieve that interest. We find that it does not.

Santos, 112 Cal.Rptr.2d at 730 (citations omitted).

[¶ 32] The court further concluded there was not a substantial nexus between ICWA and the Indian Commerce Clause because

Application of the ICWA to a child whose only connection with an Indian tribe is a one-quarter genetic contribution does not serve the purpose for which the ICWA was enacted, “to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families”. For the reasons discussed above, as applied to this minor, the ICWA impermissibly intrudes on a power reserved to the states, their care of dependent children.

Santos, 112 Cal.Rptr.2d at 731 (citations omitted).

[¶ 33] The decision by the California Court of Appeals in Santos was based, in large part, on an existing Indian Family exception to ICWA, in which courts have addressed tensions between the best interests of Indian children, families, and tribes by refusing to apply ICWA to situations in which an Indian child is not being removed from an existing Indian family with a significant connection to the Indian community. Santos, 112 Cal.Rptr.2d at 715-17. The Santos court recognized a split of authority between state courts adopting the existing Indian Family exception and state courts declining to adopt the exception. See Santos, at 716-17 n. 16 (stating nine courts had adopted the exception and nine had rejected it).

[¶ 34] To the extent Santos relies on an existing Indian Family exception, we reject that analysis because it is contrary to the plain language of ICWA, which was enacted not only to preserve interests of Indian children and Indian families, but also to protect a tribe’s interest in the welfare of its children and the maintenance of its culture. See 25 U.S.C. §§ 1901, 1902. The judicial adoption of an exception to ICWA would thwart a tribe’s interest in its Indian children and ignore the plain language of ICWA, which does not require an Indian child to be part of an existing Indian family or the family to be involved with the tribe. Moreover, the United States Supreme Court effectively undermined the existing Indian Family exception in Holyfield, 490 U.S. at 49-53, 109 S.Ct. 1597, when it stated that ICWA reflects congressional concern about the impact on tribes by the large number of Indian children adopted by non-Indians and emphasized that the tribe has an interest in the child which is distinct and separate from the interest of the child or the parents.

[¶ 35] We also reject Cass County’s assertion that the compelling interest standard applies to its constitutional challenges to ICWA.

[¶ 36] The United States Supreme Court has consistently rejected claims that laws that treat Indians as a distinct class violate equal protection. See Washington v. Confederated Bands and Tribes of Yakima Indian Nation, 439 U.S. 463, 499-502, 99 S.Ct. 740, 58 L.Ed.2d 740 (1979); Delaware Tribal Bus. Comm. v. Weeks, 430 U.S. 73, 84-90, 97 S.Ct. 911, 51 L.Ed.2d 173 (1977); Fisher v. District Court, 424 U.S. 382, 390-91, 96 S.Ct. 943, 47 L.Ed.2d 106 (1976); Morton v. Mancari, 417 U.S. 535, 551-55, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974). See also Matter of Appeal in Pima County, 130 Ariz. 202, 635 P.2d 187, 193 (1981); In re Marcus S., 638 A.2d 1158, 1159 (Me.1994); Matter of Miller, 182 Mich.App. 70, 451 N.W.2d 576, 579 (1990); State ex rel. Children’s Servs. Div. v. Graves, 118 Or.App. 488, 848 P.2d 133, 134 (1993); Matter of Guardianship of D.L.L. & C.L.L., 291 N.W.2d 278, 281 (S.D. 1980). The different treatment of Indians and non-Indians under ICWA is based on the political status of the parents and children and the quasi-sovereign nature of the tribe. See Pima County, at 193; Marcus S., at 1159; Miller, at 579; Graves, at 134; D.L.L. & C.L.L., at 281. We apply the rational basis test to Cass County’s substantive due process and equal protection challenges, and we conclude ICWA is rationally related to the protection of the integrity of American Indian families and tribes and is rationally related to the fulfillment of Congress’s unique guardianship obligation toward Indians. See Pima County, at 193; Marcus S., at 1159; Miller, at 579; Graves, at 134; D.L.L. & C.L.L., at 281. We hold ICWA does not deny AB.’s right to equal protection or substantive due process.

[¶ 37] The Tenth Amendment reserves all nondelegated powers to the states. D.L.L. & C.L.L., 291 N.W.2d at 281. Congress derives its power to regulate Indian matters from Art. I, § 8 of the United States Constitution, which delegates to Congress the power to regulate commerce with Indian Tribes. Congress’s plenary power to legislate Indian matters is well established, and we conclude ICWA is a rational exercise of that power which does not violate the Tenth Amendment. See D.L.L. & C.L.L., at 281.

VII

[¶ 38] We affirm the juvenile court order transferring jurisdiction of child custody proceedings involving A.B. to the Tribal Court and dismissing the petition to terminate parental rights.

[¶ 39] CAROL RONNING KAPSNER, MARY MUEHLEN MARING, WILLIAM A. NEUMANN, and DALE V. SANDSTROM, JJ., concur.

      . We nevertheless recognize N.D. Sup.Ct. Admin. R. 13 does not provide detailed guidance for district court review of a judicial referee's decision, and we refer this rule to the Joint Procedure Committee for appropriate study.


source: Caselaw Access Project

author: KAPSNER, Justice. VANDE WALLE, Chief Justice,

license: Public Domain

text:
    2003 ND 97
    Christopher M. CUE, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.
    No. 20030013.
    Supreme Court of North Dakota.
    June 17, 2003.

      Mark L. Greenwood, Mark Greenwood Law Office, Dickinson, ND, for petitioner and appellant.
    Tom M. Henning (on brief), State’s Attorney, Dickinson, ND, for respondent and appellee.
   KAPSNER, Justice.

[¶ 1] Christopher M. Cue appeals from a district court order denying his motion for post-conviction relief. The district court made a finding, following an eviden-tiary hearing, that Cue’s credit for time served was properly computed; therefore, Cue is not entitled to a remand under N.D.C.C. § 29-32.1-11. Cue has not affirmatively established by the record that he is entitled to additional credit for time served in connection with this case, and the record does not demonstrate the district court’s finding was clearly erroneous. We affirm.

I

[¶ 2] On May 19, 2000, Cue pled guilty to simple assault of a peace officer. The district court sentenced Cue to serve two years in prison with all but 15 days suspended for two years, and placed Cue on supervised probation for two years. On October 30, 2000, Cue’s probation officer filed a petition to revoke his probation for violating conditions of probation. The district court ordered Cue’s probation revoked on November 30, 2000, and sentenced Cue to prison for two years with two years suspended, conditioned upon Cue being on supervised probation for two years and Cue meaningfully participating in treatment at the Tompkins Rehabilitation and Corrections Unit (“Tompkins”) for a period not to exceed 120 days.

[¶ 3] On February 15, 2001, Cue’s probation officer filed a petition for revocation of probation because Cue was kicked out of Tompkins after failing to meaningfully participate in treatment there. On April 17, 2001, the court found Cue to be in willful violation of the court’s order for failing to participate in treatment at Tompkins; Cue’s probation was continued under the sentence imposed by the court on November 30, 2000.

[¶ 4] A petition for revocation of probation was filed on May 22, 2001, after Cue violated a condition of probation. On June 7, 2001, the district court found Cue violated a condition of probation and sentenced Cue to the North Dakota Department of Corrections for two years, granting Cue 103 days of credit for time served in custody and at Tompkins. In July 2001, Cue moved the court to increase his credit for time spent in custody. On August 6, 2001, the court amended its order giving Cue credit for 108 days.

[¶ 5] In September 2001, Cue moved for credit for time in custody under N.D.C.C. § 12.1-32-02(2). The district court denied Cue’s motion, determining the earlier calculation is correct. In November 2001, Cue filed an amendment to his motion for credit for time in custody. The district court denied Cue’s motion for credit, concluding it was without jurisdiction to act under N.D.R.Crim.P. 35. In January 2002, Cue filed a motion for correction of a clerical mistake. The district court denied Cue’s motion.

[¶ 6] In September 2002, Cue moved for post-conviction relief, alleging the court’s failure to give Cue credit for 161 days of incarceration was in violation of N.D.C.C. § 12.1-32-02(2) and the Fifth and Fourteenth Amendments to the United States Constitution. Following an evi-dentiary hearing, the district court held “[t]he State of North Dakota has correctly computed credit for time served. The motion is denied.” Cue appeals from the order denying his motion for post-conviction relief.

II

[¶ 7] Cue argues the district court’s two sentence order denying his motion does not adequately explain why his request for relief was not granted. Cue contends he is entitled to a remand, under N.D.C.C. § 29-32.1-11, for the purpose of making explicit findings of fact and conclusions of law.

[¶ 8] The relevant parts of N.D.C.C. § 29-32.1-11 provide:

1. The court shall make explicit findings on material questions of fact and state expressly its conclusions of law relating to each issue presented.
2. If the court rules that the applicant is not entitled to relief, its order must indicate whether the decision is based upon the pleadings, is by summary disposition, or is the result of an evidentia-ry hearing.

The district court, in its order denying Cue’s motion for post-conviction relief, stated: “The State of North Dakota has correctly computed credit for time served. The motion is denied.” The district court made a finding following an evidentiary hearing that Cue’s credit for time served was properly computed and concluded relief should be denied. Although the district court did not explicitly state its decision was based on evidence presented at the evidentiary hearing, the district court issued its order five days after the hearing and it Is reasonable to infer that the court’s decision was the result of the evi-dentiary hearing. Cue’s argument that the case should be remanded under N.D.C.C. § 29-32.1-11 is without merit.

Ill

[¶ 9] Cue argues the district court erroneously determined he is not entitled to additional credit for time served in connection with the charges in this case. Cue asserts he is entitled to an additional 50 to 54 days of credit for time spent in custody.

[¶ 10] In post-conviction relief proceedings, a district court’s findings of fact will not he disturbed unless they are clearly erroneous. Hill v. State, 2000 ND 143, ¶ 17, 615 N.W.2d 135 (citing DeCoteau v. State, 2000 ND 44, ¶ 10, 608 N.W.2d 240). “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.” Id.

[¶ 11] N.D.C.C. § 12.1-32-02(2) “requires a court to give a criminal defendant, upon sentencing, credit for all time spent in custody as a result of the criminal charge or conduct for which the sentence is being imposed.” State v. Trudeau, 487 N.W.2d 11, 15 (N.D.1992). Section 12.1-32-02(2), N.D.C.C., provides:

Credit against any sentence to a term of imprisonment must be given by the court to a defendant for all time spent in custody as a result of the criminal charge for which the sentence was imposed or as a result of the conduct on which such charge was based. “Time spent in custody” includes time spent in custody in a jail or mental institution for the offense charged, whether that time is spent prior to trial, during trial, pending sentence, or pending appeal.

The district court’s order for revocation of probation and fourth amended criminal judgment sentenced Cue to two years imprisonment, crediting Cue for 103 days for time Cue had spent in custody and at Tompkins. Cue moved the court to increase his credit for time served, and the court amended its order increasing Cue’s credit to 108 days.

[¶ 12] Cue has the burden of showing he is entitled to additional sentence credit for time served in custody. See Hires v. State, 688 So.2d 414, 414-15 (Fla.Dist.Ct.App.1997) (affirming defendant’s sentence because the defendant did not carry the burden of showing error); Brattain v. State, 111 N.E.2d 774, 776 (Ind.Ct.App.2002) (stating defendant failed to demonstrate error when he failed to present any documentation to the trial court that he was entitled to credit for time served and failed to present an adequate record showing the trial court erred); State v. Wilkinson, 539 N.W.2d 249, 252 (Minn.Ct.App.1995) (stating the offender has the burden to establish entitlement to specific jail credit); State v. Moore, 1994, 1994 WL 245481, *3, Tenn. Crim.App. LEXIS 358, *9 (Tenn.Crim. App. June 8, 1994) (denying defendant’s request for credits for jail time because defendant failed to meet his burden of establishing an adequate record on appeal).

[¶ 13] In this case, the evidence in the record is conflicting and confusing. In July 2001, Cue moved the district court for credit of 127 days for time served in custody and ten days later filed a supplement to his motion seeking 184 days of credit for time served. The State argued it is possible Cue should be credited for 108 days for time spent in custody, and the court amended its order giving Cue credit for 108 days. In September 2002, Cue argued in his post-conviction relief proceedings that he is entitled to 161 days of credit for time served in custody. The State asserted its calculations indicate Cue was over credited 38 days for time spent in custody for the cases occurring during the time period at issue. Cue appealed the district court’s order denying his motion for post-conviction relief to this Court, arguing he is entitled to an additional 50 to 54 days of credit for time spent in custody. The State conceded it is arguable that Cue may be entitled to an additional 9 days of credit for time served in custody; however, the State contends the accuracy of Cue’s claim for additional credit cannot be clearly supported by the record.

[¶ 14] Cue’s arguments during the proceedings related to this case have been inconsistent; Cue has argued that he is entitled to additional credit in the amount of 19 days, 50 to 54 days, and 76 days. The exhibits presented to the district court seeking to establish the time Cue spent in custody are internally inconsistent and Cue’s testimony conflicts with the exhibits. Cue asserted at an evidentiary hearing that he has spent 158 days in custody for the case at issue. The only records Cue presented to the district court are from the Southwest Multi-County Correction Center. These records indicate Cue spent 58 days in custody for this case. The State presented a document listing 132 days as the total amount of time Cue was incarcerated for all his cases at the Southwest Multi-County Correction Center. Cue’s testimony regarding the dates he was incarcerated for this case conflict with the records he presented to the district court. Cue has not established with evidence in the record that he was not properly credited for the time he spent in custody.

[¶ 15] Cue has also asserted he is entitled to credit for time served at the Stutsman County jail; however, the only evidence Cue presented to ascertain the dates for the time served at the jail was his own testimony. The credibility of witnesses is left to the trial court to determine. State v. Toepke, 485 N.W.2d 792, 795 (N.D.1992). Because the trial court found that days of credit had been properly calculated, it is apparent that Cue’s assertions, without supporting documentation, did not persuade the trial court. Cue did not meet his burden of proving he is entitled to additional credit. Although the State concedes Cue could, arguably, be entitled to an additional 9 days of credit, the evidence in the record does not establish Cue is entitled to additional days of credit.

[¶ 16] The district court made a finding that Cue’s credit for time served was correctly computed and “ ‘[t]he presumption is that the trial court’s rulings were correct, and the burden is upon the appellant to show affirmatively by the record that the rulings were incorrect.’ ” Crosby v. Sande, 180 N.W.2d 164, 172 (N.D.1970) (quoting Erickson v. Wiper, 33 N.D. 193, 157 N.W. 592, 602 (1916)). We conclude Cue has not affirmatively established by the record that he is entitled to additional credit for time served in this case, and the record does not demonstrate that the district court was clearly erroneous.

rv

[¶ 17] We conclude the district court order made a finding, following an eviden-tiary hearing, that Cue’s credit for time served was properly computed; therefore, Cue is not entitled to a remand under N.D.C.C. § 29-32.1-11. Cue failed to affirmatively establish by the record that he is entitled to additional credit for time served in connection with this ease, and the record does not demonstrate that the district court’s finding was clearly erroneous. The order of the district court is affirmed.

[¶ 18] MARY MUEHLEN MARING, WILLIAM A. NEUMANN, and DALE V. SANDSTROM, JJ„ concur.

VANDE WALLE, Chief Justice,

dissenting.

[¶ 19] I agree with the majority that it is Cue’s burden to show he is entitled to additional credit on his sentence for time served in custody. However, to the extent his inability to make that showing is due to the records of the penal institutions or the courts, I disagree with the conclusion reached by the majority. Cue did, as the majority notes, make inconsistent arguments as to the amount of additional credit he should receive. However, the State concedes the records are not clear and we do not know to what extent Cue’s inconsistent arguments are due to incomplete or inaccurate records, for which Cue is not responsible.

[¶ 20] The State further concedes it is arguable Cue may be entitled to an additional nine days of credit but notes it cannot be clearly supported by the record. If the State cannot decipher the appropriate records of the penal institutions and the courts, we cannot expect Cue to do so. I would remand this matter to the trial court to determine, at the very least, whether or not Cue is entitled to the nine-day credit. If the trial court is unable, because of the state of the records, to make a determination, it should order the respective record keepers to explain the records and to make them as accurate as possible. Public trust and confidence in our system of justice demands no less.


author: MARING, Justice.

text:
    2003 ND 99
    STATE of North Dakota, Plaintiff and Appellant, v. Jessica Lynn TOGNOTTI, Defendant and Appellee.
    No. 20030015.
    Supreme Court of North Dakota.
    June 17, 2003.

      Mark Rainer Boening, Assistant State’s Attorney, Fargo, ND, for plaintiff and appellant.
    Monty Grant Mertz, Fargo, ND, for defendant and appellee.
   MARING, Justice.

[¶ 1] The State appealed from an order suppressing evidence in the prosecution of Jessica Lynn Tognotti for possession of drug paraphernalia. We hold that, incident to a valid arrest of an occupant in a vehicle, the arresting officer can search the contents of a nonarrested occupant’s purse, if the purse was in the vehicle at the time of the arrest and the occupant was not instructed by the officer to leave it in the vehicle upon exiting. We overrule State v. Gilberts, 497 N.W.2d 93, 99 (N.D. 1993), to the extent its rationale is contrary to our holding in this case, reverse the order suppressing evidence, and remand for further proceedings.

I

[¶ 2] The facts relevant to the suppression motion are undisputed, and the parties stipulated that Tognotti’s affidavit and the arresting officer’s report constitute the record evidence on the suppression motion.

[¶ 3] While patrolling in Fargo, at approximately 10:15 p.m., on April 24, 2002, Officer Todd Wahl observed a vehicle being driven with its headlights off. Tognot-ti was driving the vehicle, accompanied by her infant daughter, her husband, and a friend, Wendell Deeoteau. After the officer stopped the vehicle, he checked the occupants’ identifications, and then returned to his police car to check for outstanding arrest warrants. The officer discovered an outstanding arrest warrant on Deeoteau for having failed to pay child support. The officer arrested Decoteau and placed him in his police car. After requesting that Tognotti and her husband exit their vehicle, the officer conducted a search of the vehicle’s interior. The officer searched Tognotti’s purse, which was lying on the driver’s side of the front seat. In the purse, he discovered a “sunglass case” with drug paraphernalia inside it, including a syringe, a spoon, three ends of what appeared to be a tied baggie, and a small amount of what appeared to be methamphetamine residue. The officer arrested Tognotti, and she was charged with class C felony possession of drug paraphernalia.

[¶ 4] Tognotti filed a motion to suppress the evidence the officer discovered during the search of her purse, on the grounds the search violated her Fourth Amendment constitutional rights against unreasonable search and seizure. After a hearing, the trial court concluded the search fell within the purview of this Court’s decision in Gilberts, 497 N.W.2d at 99, and granted Tognotti’s motion to suppress.

II

A.

[¶ 5] The State appealed, as authorized under N.D.C.C. § 29-28-07(5), from the order granting the motion to suppress. When reviewing a trial court’s ruling on a motion to suppress, we defer to the trial court’s findings of fact and resolve conflicts and testimony in favor of affir-mance. State v. Haverluk, 2000 ND 178, ¶ 7, 617 N.W.2d 652. After resolving conflicting evidence in favor of affirmance, we affirm the trial court’s decision unless there is insufficient competent evidence to support the decision or the decision goes against the manifest weight of the evidence. Id. Questions of law are fully reviewable. State v. Gregg, 2000 ND 154, ¶ 20, 615 N.W.2d 515.

[¶ 6] The trial court concluded the officer’s search of Tognotti’s purse following Decoteau’s arrest was an improper search incident to the arrest which violated Tog-notti’s constitutional rights. We agree with the trial court that the circumstances in this case are not legally distinguishable from the facts in Gilberts. However, in view of the United States Supreme Court decision in Wyoming v. Houghton, 526 U.S. 295, 302, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999), and subsequent cases from other jurisdictions applying the rationale of that decision to searches incident to arrest, we believe that it is appropriate at this time to reexamine Gilberts and to adopt a bright-line rule for searching containers found in a vehicle which is searched incident to an arrest.

B.

[¶ 7] The Fourth Amendment of the United States Constitution, applicable to the states through the Fourteenth Amendment, protects individuals from unreasonable searches and seizures. State v. Lanctot, 1998 ND 216, ¶5, 587 N.W.2d 568. A warrantless search is unreasonable under the Fourth Amendment unless it falls within a recognized exception to the requirement for a search warrant. Id. A search incident to a valid custodial arrest is an exception to the warrant requirement. Id.

[¶8] The United States Supreme Court defined the scope of a search incident to arrest in Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), holding that an officer making a lawful custodial arrest may search the arrestee and the area within the arrestee’s immediate control. In New York v. Belton, 453 U.S. 454, 457-61, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) (citations omitted), the Court explained the applicability of the Chimel rule to automobile searches:

Specifically, the Court held in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, that a lawful custodial arrest creates a situation which justifies the contemporaneous search without a warrant of the person arrested and of the immediately surrounding area. Such searches have long been considered valid because of the need “to remove any weapons that [the arrestee] might seek to use in order to resist arrest or effect his escape” and the need to prevent the concealment or destruction of evidence.
In short, “[a] single, familiar standard is essential to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront.”
But no straightforward rule has emerged from the litigated cases respecting the question involved here — the question of the proper scope of a search of the interior of an automobile incident to a lawful custodial arrest of its occupants.
[W]e hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.
It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the ar-restee, so also will containers in it be within his reach. Such a container may, of course, be searched whether it is open or closed, since the justification for the search is not that the arrestee has no privacy interest in the container, but that the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have.

[¶ 9] The court in Belton established a bright-line rule for police searches of the interior of a vehicle when the occupants of the vehicle have been arrested. In Belton, however, all of the occupants of the vehicle had been arrested prior to the officer’s search of the vehicle’s interior. A slightly different factual situation was presented to this Court in Gilberts, 497 N.W.2d at 94-95, wherein the officer arrested the driver of a vehicle and then proceeded to search the interior of the vehicle, including the jacket of a nonarrested occupant in the vehicle. This Court concluded the officer’s search of the jacket violated the passenger’s constitutional rights:

When [the officer] reached into Gil-berts’s jacket pocket he knew that the jacket belonged to Gilberts, not the arrested driver. Furthermore, [the officer] had seen that the jacket had been “draped down around [Gilberts’s] back” and that Gilberts was “kind of sitting on it.” Under these circumstances, we hold that the Belton rationale does not justify [the officer’s] search of Gilberts’s jacket. Standing alone, the driver’s arrest was an inadequate ground for this intrusion upon Gilberts’s constitutional rights against unreasonable search and seizure of his person and property.

Gilberts, 497 N.W.2d at 97. The Gilberts decision was authored by Justice Herbert Meschke, with Justice Beryl Levine concurring. Chief Justice Vande Walle filed a special concurring opinion, joined by Surrogate Judge Ralph J. Erickstad, in which he stated,

So much for the “bright-line” test for determining the scope of a search of an automobile pursuant to a lawful custodial arrest as established by New York v. Belton. The Belton decision was prompted by the need to establish straight forward and workable rules to apply to the scope of a search of an automobile after the arrest of the occupant.
Because the jacket, although not actually worn by Gilberts, was “draped around his neck,” I believe this is a close case. Because of these circumstances, but recognizing, as I do, that it does blur the “bright-line” test of Belton, I reluctantly concur in the result reached by the majority.

Gilberts, 497 N.W.2d at 99 (citation omitted).

[¶ 10] Since the Gilberts decision, this Court has continued to recognize the Bel-ton rule that once a person has been lawfully arrested an officer may search the passenger compartment of the arrestee’s vehicle without a warrant. See, e.g., State v. Erbele, 554 N.W.2d 448, 451 (N.D.1996). In State v. Wanzek, 1999 ND 163, ¶ 15, 598 N.W.2d 811 (citations omitted), this Court held that the Belton rationale authorizes an officer to search a vehicle incident to arrest, irrespective of whether the arrest occurs inside or nearby the stopped vehicle:

We are not persuaded by the line of cases which hold an arrestee is an occupant only when arrested inside the vehicle or where the police initiate contact with the arrestee before the arrestee exits the vehicle. In our view, these decisions undermine the purposes behind the “bright-line” rule established in Belton. The purposes behind Belton were two-fold: to create a single familiar standard to guide police officers in automobile searches and to eliminate the need for litigation in every case to determine whether the passenger compartment of the vehicle is within the scope of a search incident to arrest. Furthermore, these decisipns raise grave public policy issues because they create serious concerns for the safety of officers and others. By drawing a distinction between an occupant and a recent occupant of a vehicle, we would encourage individuals to avoid lawful searches of their vehicles by rapidly exiting or moving away from the vehicle as officers approached. Police officers should not have to race from their vehicles to the arrestee’s vehicle to prevent the arres-tee from getting out of the vehicle in order to conduct a valid search. If Bel-ton is read to preclude searches where police contact occurs after the suspect exits the vehicle, suspects could conceal evidence and weapons by merely stepping outside the vehicle whenever they saw an officer approaching.

Recognizing the Belton rule was designed to provide a bright line to guide officers in performing vehicle searches incident to a lawful arrest, this Court in Wanzek refused to impose a difficult to administer limitation upon such searches.

[¶ 11] Upon reexamining our rationale in Gilberts, we conclude that imposing a restriction on searches of a vehicle incident to arrest based upon ownership of containers or other articles inside the vehicle unnecessarily dims the bright-line rule as announced by Belton. The need to maintain a clear and workable rule for police searches is evident from the reasoning of the United States Supreme Court in Wyoming v. Houghton, 526 U.S. 295, 302-06, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999), wherein the Court concluded that a police officer can, consistent with the Fourth Amendment, search a passenger’s personal belongings inside a vehicle when the officer has probable cause to believe the vehicle contains contraband:

When there is probable cause to search for contraband in a car, it is reasonable for police officers — like customs officials in the founding era — to examine packages and containers without a showing of individualized probable cause for each one. A passenger’s personal belongings, just like the driver’s belongings or containers attached to the car like a glove compartment, are “in” the car, and the officer has probable cause to search for contraband in the car.
Passengers, no less than drivers, possess a reduced expectation of privacy with regard to the property that they transport in cars, which “trave[l] public thoroughfares.”
Effective law enforcement would be appreciably impaired without the ability to search a passenger’s personal belongings when there is reason to believe contraband or evidence of criminal wrongdoing is hidden in the car. As in all car-search cases, the “ready mobility” of an automobile creates a risk that the evidence or contraband will be permanently lost while a warrant is obtained.
To require that the investigating officer have positive reason to believe that the passenger and driver were engaged in a common enterprise, or positive reason to believe that the driver had time and occasion to conceal the item in the passenger’s belongings, surreptitiously or with friendly permission, is to impose requirements so seldom met that a “passenger’s property” rule would dramatically reduce the ability to find and seize contraband and evidence of crime.... But once a “passenger’s property” exception to car searches became widely known, one would expect passenger-confederates to claim everything as their own. And one would anticipate a bog of litigation — in the form of both civil lawsuits and motions to suppress in criminal trials — involving such questions as whether the officer should have believed a passenger’s claim of ownership, whether he should have inferred ownership from various objective factors, whether he had probable cause to believe that the passenger was a confederate, or to believe that the driver might have introduced the contraband into the package with or without the passenger’s knowledge. When balancing the competing interests, our determinations of “reasonableness” under the Fourth Amendment must take account of these practical realities. We think they militate in favor of the needs of law enforcement, and against a personal-privacy interest that is ordinarily weak.

Later decisions in other jurisdictions have applied the rationale of the United States Supreme Court in Houghton to searches incident to arrest. State v. Ray, 260 Neb. 868, 620 N.W.2d 83, 89 (2000); State v. Lopez, 198 Ariz. 420, 10 P.3d 1207, 1210-11 (App.2000); see also State v. Matejka, 241 Wis.2d 52, 621 N.W.2d 891, 896 (2001) (extending the Houghton rationale to third party consent search of a passenger’s jacket in an automobile).

[¶ 12] The Supreme Court of Nebraska in State v. Ray, 260 Neb. 868, 620 N.W.2d 83, 89 (2000), applied the Houghton rationale to a vehicle search incident to arrest:

We agree that Belton established a bright-line rule which permits a war-rantless search of the passenger compartment of a vehicle and containers situated therein incident to the lawful arrest of any occupant of the vehicle. We further agree that the reasoning of Wyoming v. Houghton, 526 U.S. 295, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999), leads to the logical conclusion that the scope of such search extends to items of property within the passenger compartment at the time of the search belonging to an occupant of the vehicle who was not arrested.

See also State v. Steele, 613 N.W.2d 825, 830 (S.D.2000) (following the reasoning in Houghton, the court concluded that upon arresting the driver of a vehicle for probation violations and securing him in a patrol car, officers were justified in searching a passenger’s purse which was observed on the front seat of the vehicle at the time of the arrest).

[¶ 13] Courts in other jurisdictions, although not relying upon the Houghton decision, have concluded that the Belton bright-line rule should be applied to allow an officer to search containers belonging to nonarrested passengers when the officer is conducting a vehicle search incident to the arrest of another occupant. See State v. Parker, 88 Wash.App. 273, 944 P.2d 1081, 1085 (1997); People v. McMillon, 892 P.2d 879, 884 (Colo.1995); People v. Mitchell, 36 Cal.App.4th 672, 42 Cal.Rptr.2d 537, 540 (1995); State v. Moore, 619 So.2d 376, 377 (Fla.App.1993). These cases are persuasive.

[¶ 14] We hold an arresting officer’s search of a purse belonging to a nonarrest-ed occupant which is voluntarily left in the vehicle is a valid search incident to the arrest of a passenger in the vehicle. We overrule our decision in Gilberts to the extent it is contrary to our holding in this case.

Ill

[¶ 15] Here, Officer Wahl examined the contents of Tognotti’s purse, which had been lying beside her on the seat in the vehicle, after arresting another occupant of the vehicle. At the suppression hearing, although the parties agreed the facts were not in dispute, the trial judge inquired “I’m interested — if the passenger had taken the purse with her ... what if the [o]ffieer told her to leave her purse?” Tognotti’s attorney responded that his client was present and would testify that the officer told her to leave her purse in the vehicle. The judge stated he did not think that fact was going to “turn this case,” and no testimony was taken regarding whether Tognotti voluntarily left her purse in the vehicle when she exited or whether the officer instructed her to leave the purse in the vehicle. We conclude this is a relevant fact which could affect the outcome of the motion to suppress.

[¶ 16] There is no automatic search rule for companions of an arrestee. State v. Heitzmann, 2001 ND 136, ¶ 11, 632 N.W.2d 1. A law enforcement officer may conduct a frisk or a pat down search of a person only when the officer possesses an articulable suspicion the individual is armed and dangerous. Id. Although the bright-line rule in Belton allows an officer to search the interior of a vehicle upon arresting an occupant of the vehicle, Bel-ton does not authorize the search of another occupant of the vehicle merely because the occupant was there when the arrest occurred, and Belton does not authorize a search of a nonarrested passenger based solely on the arrest of the driver or another occupant of the vehicle. State v. Newsom, 132 Idaho 698, 979 P.2d 100, 102 (1998). Consequently, if Tognotti was standing outside the vehicle with her purse when her passenger, Decoteau, was arrested, the officer could not conduct a pat down of Tognotti or search Tognotti’s person or purse without probable cause that she was involved in criminal activity or an articulable suspicion that she was armed and presently dangerous. See State v. Grant, 361 N.W.2d 243, 247 (N.D.1985).

[¶ 17] Other courts have held that an officer cannot order a nonarrested occupant of a vehicle to leave a purse inside the vehicle and then search it incident to the arrest of another occupant of the vehicle. State v. Boyd, 275 Kan. 271, 64 P.3d 419, 427 (2003); State v. Newsom, 132 Idaho 698, 979 P.2d 100, 102 (1998); State v. Seitz, 86 Wash.App. 865, 941 P.2d 5, 8 (1997). But see State v. Steele, 613 N.W.2d 825, 830 (S.D.2000) (holding officer’s search of purse after requesting no-narrested occupant to leave the purse in the vehicle comports with federal constitutional protections). Also, Justice Breyer in his concurring opinion in Houghton, 526 U.S. at 308, 119 S.Ct. 1297 (citations omitted), emphasized that a purse is a special personal container and a search of it very nearly involves the same intrusion as the search of the person herself:

Purses are special containers. They are repositories of especially personal items that people generally like to keep with them at all times. So I am tempted to say that a search of a purse involves an intrusion so similar to a search of one’s person that the same rule should govern both. However, given this Court’s prior cases, I cannot argue that the fact that the container was a purse automatically makes a legal difference, for the Court has warned against trying to make that kind of distinction. But I can say that it would matter if a woman’s purse, like a man’s billfold, were attached to her person. It might then amount to a kind of “outer clothing,” which under the Court’s cases would properly receive increased protection.

[¶ 18] Also persuasive is the rationale of the Kansas Supreme Court in Boyd, 64 P.3d at 427, that an officer infringes upon Fourth Amendment rights if, upon ordering a woman from a vehicle, he instructs her to leave her purse in the vehicle and then attempts to conduct a search of the purse as part of a search of the vehicle:

Here the officer found no drugs on Las-siter and had no probable cause to believe illegal drugs were in the car when Boyd was told by the officer to get out of the car. Thus, at that point, the officer did not have probable cause to search Boyd or her purse. The officer had no right to order her to leave her purse in the car. The State conceded at oral argument that if Boyd would have been allowed to take her purse with her the officer could not have lawfully searched her or her purse. If we hold an officer can lawfully order a passenger to leave her purse in the car and thereby make it subject to search, then what prevents the officer from ordering the passenger to remain in the car, thus subjecting her to be subsequently searched along with the car. The protection of the Fourth Amendment cannot be defined at the discretion of a law enforcement officer. The heightened privacy interest and expectation in the present case is sufficient to tip the balance from governmental interest in effective law enforcement, which outweighed the privacy interest in Houghton where the purse was voluntarily left in the back seat unclaimed. We hold that where a passenger is told by a police officer to get out of a lawfully stopped vehicle and in response to the officer’s order to leave her purse in the vehicle, puts the purse down and exits the vehicle, a subsequent search of the purse as part of a search of the vehicle violates the passenger’s Fourth Amendment right against unreasonable search and seizure.

[¶ 19] Similarly, the Supreme Court of Idaho in Newsom, 979 P.2d at 102, held that when a nonarrested passenger exits a vehicle which has been properly stopped by law enforcement, the passenger is entitled to take her purse with her and is not required by Belton to leave it in the vehicle for the officer to search. Thus, “the police cannot create a right to search a container by placing it within the passenger compartment of a car or by ordering someone else to place it there for them.” State v. Holland, 135 Idaho 159, 15 P.3d 1167, 1171 (2000); see also Seitz, 941 P.2d at 8 (a valid arrest of a driver does not justify the search of a passenger’s purse, where the purse is not in the car at the time of the search, but rather is on the passenger’s person and the passenger is outside the car).

[¶ 20] A purse, like a billfold, is such a personal item that it logically carries for its owner a heightened expectation of privacy, much like the clothing the person is wearing. We are, therefore, persuaded by the foregoing court decisions that the Fourth Amendment is violated when an officer directs that a purse be left in the vehicle and then proceeds to search the purse incident to the arrest of another passenger in the vehicle.

[¶ 21] We conclude the factual issue whether Officer Wahl instructed Tognotti to leave her purse in the vehicle or whether she voluntarily left it there when the officer asked her to exit the vehicle is both relevant and dispositive of the motion to suppress evidence in this case. If the officer did not instruct Tognotti to leave the purse in the vehicle, he was entitled to search it incident to the arrest of passenger, Decoteau. If, however, Officer Wahl instructed Tognotti to leave the purse in the vehicle, her Fourth Amendment rights against unreasonable search and seizure would preclude him from searching the purse incident to Decoteau’s arrest. Under that circumstance, the motion to suppress should be granted.

[¶ 22] In its December 30, 2002, order granting the motion to suppress, the trial court found, “Ms. Tognotti left her purse on the driver’s seat, at the officer’s direction.” That finding, on the record before the court, however, is without any evidentiary support. We conclude that finding is against the manifest weight of the evidence and is not supported by sufficient competent evidence. Consequently, we reverse the court’s order granting the motion to suppress, and we remand with instructions that the court hold a limited evidentiary hearing on this relevant fact issue and make a redetermination on the motion.

[¶23] The order is reversed and the case is remanded.

[¶ 24] GERALD W. VANDE WALLE, C.J., CAROL RONNING KAPSNER, WILLIAM A. NEUMANN, and DALE V. SANDSTROM, JJ., concur.


author: SANDSTROM, Justice.

text:
    2003 ND 102
    Michael D. DAMRON, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.
    No. 20020295.
    Supreme Court of North Dakota.
    June 17, 2003.

      Richard E. Edinger, Fargo, N.D., for petitioner and appellant.
    Wade L. Webb, Assistant State’s Attorney, Fargo, N.D., for respondent and ap-pellee.
   SANDSTROM, Justice.

[¶ 1] Michael Damron is appealing an East Central Judicial District Court judgment dismissing his post-conviction claim of ineffective assistance of counsel. He argues he was not afforded effective assistance, because his attorney failed to advise him on his plea agreement and failed to interview alibi witnesses or investigate the facts surrounding the incident in question. We conclude the trial court did not err in dismissing Damron’s post-conviction relief claim of ineffective assistance of counsel when Damron failed to provide any eviden-tiary support for his allegations. We affirm.

I

[¶ 2] On May 23, 1997, under a conditional plea agreement, Damron pled guilty to theft of property and to five counts of tampering with or damaging a public service. Under the agreement, the charge of burglary was dismissed, and Damron preserved the right to appeal matters regarding the search warrant and the trial court’s denial of his motion to suppress evidence seized in the execution of that warrant. Damron appealed on the warrant issue. We affirmed, concluding that under the totality-of-the-circumstances test, the magistrate had probable cause to issue the search warrant. State v. Damron, 1998 ND 71, ¶ 26, 575 N.W.2d 912. On January 21 or 22, 1995, Damron burglarized the Site on Sound electronics store in Fargo. Id. at ¶ 2. A search of his apartment under a warrant resulted in a list of items found, including various burglary tools, plans of telephone communication devices or alarm systems, stolen electronic or stereo equipment, and footwear with a distinctive diamond pattern on the heel. Id. The affidavit provided for the search warrant stated:

[Ejntry into the building was probably gained through forcible entry of a rear garage door on the back of the Site on Sound building. The burglar disabled an on-site audible alarm system inside of the Site on Sound building by cutting wires inside of the building. It was also determined that suspect must have passed through a motion detector device intended to send a silent alarm to the Fargo Police Department. It was later determined that the motion detector device was inactive because U.S. West telephone lines outside of the Site on Sound building had also been cut. Therefore, the silent alarm was inactive. Your affiant further learned in the investigation that the burglar took approximately $60,000 worth of stereo and electronic equipment from Site on Sound by loading it into a truck which had been left inside of the Site on Sound building.

Id.

[¶ 3] Damron applied for post-conviction relief, arguing sixteen claims. On May 19, 2000, the district court dismissed fifteen of Damron’s claims and granted a hearing on his ineffective-assistance-of-counsel claim. On August 27, 2002, a hearing, which included live and deposition testimony and exhibits, was held on Damron’s claim of ineffective assistance of counsel. The district court denied post-conviction relief on September 13, 2002, and rendered a judgment of dismissal on September 18, 2002. On October 18, 2002, Damron appealed.

[¶ 4] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. §§ 28-27-01, 28-27-02.

II

[¶ 5] Damron argues he was not afforded effective assistance of counsel, because his attorney failed to adequately advise Mm on the plea agreement, failed to interview alibi witnesses, and failed to investigate the facts surrounding the incident in question.

[¶ 6] Effective assistance of counsel is guaranteed to a defendant through the Sixth Amendment to the United States Constitution, which is applied to the States through the Fourteenth Amendment, and by Article I, Section 12, of the North Dakota Constitution. “The issue of ineffective assistance of counsel is a mixed question of law and fact which is fully renewable by this Court.” Berlin v. State, 2000 ND 206, ¶ 7, 619 N.W.2d 623 (citing Falcon v. State, 1997 ND 200, ¶ 21, 570 N.W.2d 719). In analyzing an ineffective-assistance-of-counsel claim, we apply the test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See, e.g., Wilson v. State, 1999 ND 222, ¶8, 603 N.W.2d 47; State v. Robertson, 502 N.W.2d 249, 251 (N.D.1993).

[¶ 7] In Strickland, the court stated:

A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functiomng as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Strickland, 466 U.S. at 687, 104 S.Ct. 2052; see also Wilson, 1999 ND 222, ¶8, 603 N.W.2d 47; Robertson, 502 N.W.2d at 251. “The prejudice portion of the test ‘requires the defendant to establish a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different, and the defendant must point out with specificity how and where trial counsel was incompetent and the probable different result.’ ” Wilson, 1999 ND 222, ¶ 8, 603 N.W.2d 47 (quoting DeCoteau v. State, 1998 ND 199, ¶ 6, 586 N.W.2d 156). In proving that counsel’s performance was deficient, the defendant must overcome the “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052.

[¶ 8] Damron argues he repeatedly turned down any offers to plead guilty but his attorney went behind his back and negotiated a conditional plea agreement. He argues he did not have an opportumty to read the agreement before being told by his attorney to sign it. He argues he was prejudiced because, had his attorney provided him time to read the plea, he would not have pled guilty. Damron also argues that he has a touch of dyslexia and was not able to process the information read to him by the court.

[¶ 9] A defendant who pleads guilty upon the advice of counsel “may only attack the voluntary and intelligent character of the guilty plea.” Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). The volun-tariness of such a guilty plea turns on “whether that advice was within the range of competence demanded of attorneys in criminal cases.” Id. at 264, 93 S.Ct. 1602.

[¶ 10] Under N.D.R.Crim.P. 11(b), before accepting a guilty plea, a trial court must advise the defendant of certain rights:

Advice to Defendant. The court may not accept a plea of guilty without first, by addressing the defendant personally [except as provided in Rule 43(c) ] in open court, informing the defendant of and determining that the defendant understands the following:
(1) The nature of the charge to which the plea is offered;
(2) The mandatory minimum punishment, if any, and the maximum possible punishment provided by the statute defining the offense to which the plea is offered;
(3) That the defendant has the right to plead not guilty, or to persist in that plea if it has already been made, or to plead guilty;
(4) That if the defendant pleads guilty there will not be a further trial of any kind, so that by pleading guilty the defendant waives the right to a trial by jury or otherwise and the right to be confronted with adverse witnesses; and
(5)If the defendant is not represented by an attorney, that the defendant has the right to be represented by an attorney at every stage of the proceeding against the defendant and, if necessary, one will be appointed to represent the defendant, as provided in Rule 44, North Dakota Rules of Criminal Procedure.

[¶ 11] The advice required by N.D.R.Crim.P. 11(b) is mandatory. Abdi v. State, 2000 ND 64, ¶ 12, 608 N.W.2d 292; State v. Abdullahi, 2000 ND 39, ¶ 9, 607 N.W.2d 561. Although N.D.R.Crim.P. 11 does not require ritualistic, predetermined formality, a trial court must substantially comply with the procedural requirements of the rule to insure a defendant’s guilty plea is voluntary. Abdullahi, at ¶ 9, 607 N.W.2d 561.

[¶ 12] In this case, the record reflects that the trial court followed the mandates of N.D.R.Crim.P. 11 and that Dam-ron entered a voluntary conditional plea of guilty with the trial court on May 23, 1997, and again on May 29, 1997. Damron did not object at either hearing that he lacked knowledge of the plea agreement terms.

[¶ 13] A defendant is bound by his guilty plea unless he can prove “serious derelictions” on the part of his attorney that kept his plea from being knowingly and intelligently made. McMann v. Richardson, 397 U.S. 759, 774, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). In criminal cases, the defendant has the burden to present evidence to overcome the presumption that defense counsel is competent and adequate, and to do so, the defendant must point “to specific errors made by trial counsel.” State v. Slapnicka, 376 N.W.2d 33, 36 (N.D.1985).

[¶ 14] The evidence submitted at the hearing did not support Damron’s claim of a serious dereliction on the part of his attorney that would have prevented his plea from being anything other than knowingly and intelligently made. Evidence contradicting Damron’s allegations was presented at the hearing. His mother testified she communicated numerous times with Damron’s attorney about the plea agreement and relayed the information to Damron. Damron could not prove with sufficient evidence that having a trial would likely have produced a better result. The trial court stated:

Damron claims that his attorney’s advice to plead guilty was based, at least in part, by the attorney’s desire to bypass a trial in the trial court and get his appeal of the denial of the motion to suppress to the North Dakota Supreme Court. Damron testified at the August 27th, 2002 hearing that his attorney told him there was very little chance he (Damron) would escape a guilty verdict if the case went to trial because the prosecution’s case was too strong with the seized evidence being admitted and the trial was going to be held in Cass County. The motion to suppress evidence was denied once on April 25th, 1997, a motion for supervisory writ to the North Dakota Supreme Court on the issue was denied on May 9th, 1997, and the trial court denied the motion on reconsideration on May 29th, 1997. [Citations omitted]. The overwhelming evidence seized pursuant to search warrants was going to be admitted at trial. It does not seem unreasonable on counsel’s part to bypass the trial and appeal the only issue that could likely aid Dam-ron in escaping a conviction.

[¶ 15] Given that the trial court denied Damron’s motion to suppress evidence seized under the search warrant, the State’s evidence, which would have given weight to a guilty verdict, would have been admitted at trial. In this situation, advising his client to plead guilty was not a serious dereliction on the part of Damron’s attorney. But for the plea agreement, Damron could have received a substantially greater sentence.

[¶ 16] Damron argues he was denied effective assistance of counsel, because his attorney was aware of potential alibi witnesses and failed to interview them to obtain their testimony. A defendant must offer evidence that any additional witnesses would have aided the defense’s claim. State v. Wolf, 347 N.W.2d 573, 575 (N.D.1984). A case premised on ineffective assistance of counsel “ ‘requires the challenger to point out with specificity or particularity how and where the trial counsel was incompetent and the probable different result. In absence of any such showing we are compelled to reject the contention that trial counsel acted incompetently.’ ” Wolf, at 576 (quoting State v. Kroeplin, 266 N.W.2d 537, 544 (N.D.1978)).

[¶ 17] Damron argues his attorney should have subpoenaed the Fargo police officers and the Fargo detective on each of their reports in his case. He argues his attorney also should have interviewed U.S. West employees because, he claims, their testimony would have proven he did not commit the crime. He argues that their testimony would have shown that one man, such as himself, would not have been able to move the concrete cover that was removed at one of the vandalized sites. There was no trial in this case, only a plea of guilty. • Damron voluntarily pled guilty in court and did not raise these issues prior to his plea. Damron has not produced any specific evidence that the testimony of any of these additional witnesses would have caused him to refrain from pleading guilty.

[¶ 18] Damron argues his attorney failed to investigate the facts surrounding the incident in question. He argues his attorney should have investigated the facts in his case more thoroughly so that his attorney could have offered evidence to contradict the State’s evidence at the suppression hearing. He argues his attorney did not properly investigate the State’s findings of fingerprints from the two burglaries. Damron argues the police took fingerprints at both crime scenes and the police told his attorney that the prints had disappeared. He argues that his attorney should have investigated the alleged disappearance of the fingerprints. Damron argues the State claimed to have found copper filings at one of the crime scenes that allegedly matched those found on Damron’s boots. He argues his attorney should have investigated the State’s claim regarding the copper filings to prove that they did not match. Damron also argues his attorney should have brought substantial evidence to the suppression hearing that his shoe size was not the same as the size of the shoe print found outside the crime scene. Ineffective-assistance-of-counsel claims for counsel’s failure to move to suppress evidence at a suppression motion hearing must be premised on actual, not possible, prejudice to the defendant. Wolf, 347 N.W.2d at 575. The defendant must establish in what manner he was prejudiced by his attorney’s not having moved to suppress specific evidence. State v. Kroeplin, 266 N.W.2d 537, 542 (N.D.1978). Damron argues he would not have pled guilty had his attorney adequately investigated the facts or produced more alibi witnesses. Because Damron pled guilty knowingly and voluntarily, he cannot show in what manner actual prejudice resulted from his trial counsel’s failure to investigate more thoroughly or to move to suppress specific evidence. We conclude that at the suppression hearing, Damron’s counsel acted “within the range of competence demanded of attorneys in criminal cases.” Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

Ill

[¶ 19] We conclude the trial court did not err in dismissing Damron’s claim of ineffective assistance of counsel. Damron failed to meet his burden of establishing that his attorney was not acting competently and reasonably in advising him on the conditional plea of guilty, in advising him on matters regarding witness testimony, and in not filing certain suppression motions.

[¶ 20] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.