author: MINGE, Judge.

text:
    ALLETE, INC., d/b/a Minnesota Power, Appellant, v. GEC ENGINEERING, INC., et al., Respondents.
    No. A06-881.
    Court of Appeals of Minnesota.
    Jan. 30, 2007.
    John H. Bray, Kanuit & Bray, Ltd., Hermantown, MN, for appellant.
    Mark L. Knutson, Dryer Storaasli Knut-son & Pommerville, Ltd., Duluth, MN, for respondents.
    Considered and decided by MINGE, Presiding Judge; SHUMAKER, Judge; and HUDSON, Judge.
   OPINION

MINGE, Judge.

Appellant claimed a security interest in, and sought to garnish, property originally located in Missouri which had been acquired by respondent, a Texas resident, and moved to Texas. Appellant challenges the district court’s summary judgment determination that it did not have a security interest in the property. Respondent challenges the jurisdiction of Minnesota courts. Because we conclude appellant did not have a security interest in the property, we affirm.

FACTS

In December of 2000, appellant Minnesota Power, Inc. negotiated an economic-development loan with respondent GEC Engineering, Inc. (GEC), a start-up company that was attempting to develop technology to convert diesel engines to run on cleaner-burning propane or natural gas. GEC and appellant are Minnesota corporations. To secure the loan, GEC executed a security agreement dated December 28, 2000. As collateral for the loan, the security agreement granted appellant a security interest in, “[a]ll equipment and inventory located at Borrower’s facility at 510 W. 3rd Avenue North, Aurora, Minnesota.” A financing statement listing equipment and inventory located at that Minnesota site was filed in this state.

Appellant’s agreement to make a loan to GEC was based on its understanding that GEC, then operating in Missouri, was relocating to appellant’s service area in Aurora, Minnesota. But by April 15, 2001, the target moving date, GEC had not relocated to Aurora and was experiencing financial difficulty. Appellant and GEC then filed a standard Minnesota UCC-1 financing statement in Missouri. The financing statement states:

This financing statement covers the following types or items of property.... A. All equipment and inventory located at Borrower’s facility located at 116 Holloway Road, Ballwin, MO[.]

The financing statement was recorded on May 3, 2001 and signed by respondent Jerry Brougher, the then-president of GEC. GEC never moved to Aurora, and early in 2002, the company ceased its operations and became insolvent. GEC failed to repay its loan with appellant, and appellant obtained a default judgment against GEC in Minnesota.

The subject of this dispute is a diesel engine that GEC purchased in Minnesota on April 15, 1999, to develop a prototype engine that would enable it to design and manufacture conversion kits for other engines. GEC bought the engine in South St. Paul and shipped the engine to CK Engineering (CK) in Ballwin, Missouri. GEC used CK’s Missouri location for its operations. CK assisted in the testing and development of the engine. But GEC never paid CK for its services, and apparently abandoned the engine and other property at CK’s site when it ceased operating. To recover some of the money owed to CK for its work on and storage of the engine, CK sought to sell the engine. In the summer of 2004, respondent Danielle Dellhomme purchased the engine from CK Engineering for $18,000. Respondent was an investor in and former director of GEC. She is a Texas resident. CK shipped the engine to respondent in Texas, where it is currently stored. The engine was never located in Aurora, Minnesota. Although it appears that respondent was aware of appellant’s loan to GEC and that she had visited Minnesota as a part of GEC’s business, the record does not indicate that she was personally involved with or personally liable for GEC’s debt to appellant.

During its post-judgment collection process in Minnesota state courts, appellant learned respondent was in possession of the engine and the testing equipment attached to it, property it claims was collateral for its loan tó GEC. Appellant served respondent with Minnesota garnishment pleadings and moved the Minnesota district court for an order requiring her to surrender and deliver the engine to appellant. Respondent claimed that the Minnesota court lacked subject matter and personal jurisdiction, that appellant did not have a security interest in the engine, that even if it once had a security interest, it was displaced by the possessory mechanics lien of CK, and that the rights she acquired from CK were superior to the claims of appellant. After discovery, the district court granted summary judgment in favor of respondent and found that appellant never held a security interest in the engine. This.appeal followed.

ISSUE

Does appellant have a valid security interest in the disputed engine?

ANALYSIS

The threshold question is which state’s law governs the determination of whether appellant has a valid security interest in the disputed engine. As a commercial transaction, this dispute is subject to the UCC. We note that Minnesota, Missouri, and Texas have all adopted the UCC. See Minn.Stat. ch. 336 (2006); Mo. Ann. Stat. ch. 400 (West 2006); Tex. Bus. & Com. Code Ann. §§ 1.101-9.709 (Vernon 2006). There is also no claim that either the UCC or the caselaw in the various states differs with respect to the issue before us, and the parties do not dispute the proper choice of law. Under the circumstances, this is what is often called a “false conflict.” See Alside, Inc. v. Larson, 300 Minn. 285, 293, 220 N.W.2d 274, 279 (1974); Restatement (Second) of Conflict of Laws § 186 cmt. c (1971); 16 Am.Jur.2d Conflict of Laws § 85 (1998). Accordingly, we apply Minnesota law.

The issue is whether appellant has a security interest in the disputed engine. When reviewing the district court’s grant of summary judgment, we ask whether there are any genuine issues of material fact and whether the district court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). When the district court grants summary judgment based on the application of a statute to undisputed facts, the result is a legal conclusion, reviewed de novo by the appellate court. Lefto v. Hoggsbreath Enters., Inc., 581 N.W.2d 855, 856 (Minn.1998).

Minn.Stat. § 336.9-203 (2006) governs the attachment and enforceability of security interests. Subdivision (a) of that section provides that “[a] security interest attaches to collateral when it becomes enforceable against the debtor.... ” Minn. Stat. § 336.9-203(a). A security interest in collateral “is enforceable against the debtor and third parties” if three conditions are met:

(1) value has been given;
(2) the debtor has rights in the collateral or the power to transfer rights in the collateral ... and
(3) one of the following conditions is met:
(A) the debtor has authenticated a security agreement that provides a description of the collateral

Minn.Stat. § 336.9-203(b). Here, the parties do not dispute that value was given or that GEC had rights in the engine. . The parties only dispute whether GEC “authenticated” a security agreement that provides a description of the collateral, sufficient to create a security interest in the engine.

The UCC defines “security agreement” as “an agreement that creates or provides for a security interest.” Minn.Stat. § 336.9-102(a)(73) (2006). A more general UCC definition section states that an “agreement” is a “bargain of the parties in fact, as found in their language or inferred from other circumstances, including course of performance, course of dealing, or usage of trade....” Minn.Stat. § 336.1-201(3) (2006).

We do not understand appellant to claim that the parties’ original security agreement created a security interest in the engine. Nor could it. The plain language of the security agreement only grants appellant a security interest in equipment “located at Borrower’s facility at 510 W. 3rd Avenue North, Aurora, Minnesota.” It is undisputed that the engine was never located in Aurora. We consistently give a contract its “plain and ordinary meaning ... even if the result is harsh.” Denelsbeck v. Wells Fargo & Co., 666 N.W.2d 339, 346-47 (Minn.2003) (quotation omitted).

Appellant seizes on the UCC’s flexible definitions of “security agreement” and “agreement” to argue that the financing statement the parties filed in Missouri creates a material fact issue as to whether the parties amended the original security agreement to give appellant a security interest in the engine. Although the UCC does not explicitly address the question of whether a financing statement can boot strap a lender into a secured status, there are several provisions that are relevant to the answer.

The drafters of the UCC contemplated a distinction between a security agreement and a financing statement, and defined the two terms differently. See Minn.Stat. '§ 336.9-102(a)(39), (73) (2006). It follows that the drafters understood the two documents to have different functions.Our caselaw confirms that the purpose of a financing statement is different from an agreement creating a security interest in collateral. “In contrast [to a security agreement], the financing statement serves the purpose of putting nonparties such as other subsequent creditors on notice that the debtor’s property is encumbered.” Prod. Credit Ass’n of W. Cent. Minn. v. Bartos, 430 N.W.2d 238, 241 (Minn.App.1988).

The language used in security agreements and financing statements reflects their functions. The security agreement must somehow state that a lien is created in identifiable collateral. Minn.Stat. § 336.9-102(a)(73). By contrast, the financing statement is a bare-bones document that simply gives names and addresses and a description of property. In fact, until recently, the Minnesota standard form financing statement had no language that mentioned the term “security interest” or even referred to the described property as “collateral.” Compare Minn. R. 8260.0600, subp. 3 (1995), with Minn. R. 8280.0040, subp. 2 (2005) (setting forth earlier and current standard forms for UCC-1, the'latter of which uses the word “collateral” in the heading above the space provided for a description of the property).

The question we face is whether a financing statement with limited language can amend the plain and unambiguous description of collateral in a security agreement. We recognize that courts have found that a financing statement, in conjunction with other writings, constitutes a security agreement creating a security interest in property. See In re Numeric Corp., 485 F.2d 1328, 1332 (1st Cir.1973) (“[A]n adequate [security] agreement can be found when a financing statement is considered together with other documents.”). But we are aware of no court that has held that a standard financing statement, standing alone or with only par-ol evidence, is sufficient as a matter of law to create a security interest in collateral, or to amend an unambiguous security agreement. See id. at 1331 (“A considerable body of case law has- developed to the effect that a standard form financing statement, taken alone, cannot also be considered a ‘security agreement’ that satisfies § 9-203(l)(b).”).

Here, the security agreement contains an explicit description of property that is limited to equipment located at a specific address in Aurora, Minnesota and certain other assets. There is nothing in the original security agreement that even implies that the security interest extends to equipment not located at that site. Appellant is correct that the Missouri financing statement implies a willingness to grant a security interest in the engine which is located in Missouri. Further, there is evidence that GEC’s business plan for moving to Minnesota had collapsed, that appellant had advanced funds, and that the engine in question was of interest to appellant as collateral. Appellant’s argument has a certain appeal. But there is nothing from the debtor that grants appellant a security interest in the collateral located in Missouri. The financing statement used in this proceeding has no reference to the described property as collateral. Other than the financing statement, appellant offers only obscure references to the engine in vaxious items of correspondence as evidence of such an amendment. These references are largely comments by appellant’s employees. The comments from GEC are oblique at best and require considerable interpolation.

If we were simply dealing with the imponderables of what constitutes adequate evidence of negligence, summary judgment dismissal of appellant’s claim would be premature. However, the case before us does not turn on the weight of the evidence. Instead, we must determine the level of formality needed to establish a prima facie case that the parties amended a written contract with an explicit definition of collateral. Appellant’s claims compete with rights of not just a debtor, whose interests in property that is not collateral can be overridden by executing on a judgment, but of other interested parties. Thus, we require an objective standard. Absent an indication that there is admissible evidence that the claimed amendment meets the core requirements needed to establish a security interest in the claimed additional collateral, there is not an adequate showing that appellant’s claim can survive summary judgment. These core requirements include words granting a lien or security interest. See Minn.Stat. § 336.9-203(b). Some written evidence or acceptable substitute is needed to establish that such a grant of a lien was made.

Here, because there is no admissible evidence in the record that GEC actually granted a security interest in the equipment in Missouri to appellant, we conclude that appellant has no security interest in the disputed engine as a matter of law and that the district court did not err in ordering summary judgment.

Because we conclude that appellant does not have a security interest, we do not reach the questions of whether Minnesota courts had jurisdiction over respondent or whether the interest she acquired from CK Engineering was superior to appellants.

DECISION

Because, on the undisputed facts of this case, appellant has no valid security interest in the disputed property as a matter of law, we affirm.

Affirmed.

      . At the time of the loan transaction, appellant, Alíete, Inc., used the name Minnesota Power. In the interest of consistency, we use Minnesota Power and appellant in this opinion.

      . Minnesota has adopted the Uniform Commercial Code (UCC). See Minn.Stat. ch. 336 (2006). The UCC provides for a standardized financing statement, known as UCC-1, adopted by the National Conference of Commissioners on Uniform State Laws and set forth in the state regulations. See Minn.Stat. § 336.9-521(a) (2006); Minn. R. 8280.0040, subp. 2 (2005). Article 9 of the UCC was revised and, as revised, enacted effective July 1, 2001. See 2000 Minn. Laws ch. 399, Art. 1, § 130, at 672. The parties do not claim and it does not appear that this revision has any effect on the matters at issue in this appeal. For ease of reference, all citations and quotations are from the currently effective law.

      .Although this action started as a collection proceeding against GEC and its former president, they are not involved in the present garnishment action and appeal. “Respondent” in this opinion only refers to Dellhom-me.


source: Caselaw Access Project

author: HUDSON, Judge.

license: Public Domain

text:
    Adar O. YWSWF, Relator, v. TELEPLAN WIRELESS SERVICES, INC., Respondent, Department of Employment and Economic Development, Respondent.
    No. A06-324.
    Court of Appeals of Minnesota.
    Jan. 30, 2007.

      Lisa Hollingsworth, Southern Minnesota Regional Legal Services, Inc., Shakopee, MN; and Charles H. Thomas, Mankato, MN, for relator.
    Frank Vogl, Edward P. Sheu, Best & Flanagan LLP, Minneapolis, MN, for respondent Teleplan.
    Linda A. Holmes, Lee B. Nelson, Minnesota Department of Employment and Economic Development, St. Paul, MN, for respondent Department.
    Considered and decided by MINGE, Presiding Judge; SHUMAKER, Judge; and HUDSON, Judge.
   OPINION

HUDSON, Judge.

Relator brings a certiorari appeal from the decision of the unemployment law judge (ULJ) that she quit employment and was disqualified from receiving unemployment benefits. She seeks remand, arguing that she did not receive a fair hearing, that the ULJ failed to make the credibility findings required by Minn.Stat. § 268.105, subd. 1(c) (Supp.2005), and that the ULJ erred by failing to order an additional evidentiary hearing pursuant to MinmStat. § 268.105, subd. 2(c) (Supp.2005). . Because (a) a review of the record demonstrates that relator received a fair hearing; (b) the ULJ’s findings provide reasons for the credibility determination made by the ULJ that are supported by substantial evidence; and (c) relator did not make a showing that an additional evidentiary hearing was required, we affirm.

FACTS

Respondent Teleplan Wireless Services employed relator Adar Ywswf on the second shift as a permanent full-time employee, where her job was testing Nokia cell phones. She worked from February 21, 2005, until October 11, 2005. She asserted that she was laid off, while Teleplan claimed that she quit. .

Relator established an unemployment benefits account, and the Department of Employment and Economic Development (DEED) made an initial determination of disqualification, finding that she could have continued working for Teleplan on the first shift, but instead chose to quit. Relator appealed, and a telephone hearing was conducted by the unemployment law judge (ULJ). Relator appeared pro se, as did the employer, who was represented by its director of human resources, Shirley Cur-ran.

Curran testified that the amount of work available on the Nokia phones on the second-shift had been decreasing, which affected ten people, including relator. At the same time, the employer received new work from Motorola, which would require an additional 16 to 20 employees on the first shift. The company preferred to hire experienced workers. Curran testified that she and an assistant met with the ten Nokia workers on the second shift individually, including relator, and offered them jobs on the first shift beginning Monday, October 17, 2005. She noted that although many people who work on the second shift have particular reasons for doing so, because the employer was seeking experienced workers, it nonetheless wanted to offer these employees an opportunity to move to first shift. Seven of the ten turned down the offer to work on the first shift, including relator.

Curran testified that relator said that she was going to school in the morning and could not accept the first-shift job. Cur-ran, who was surprised to hear this, congratulated relator, explained that there was no other work on the second shift so that her employment would end that night, and discussed her benefits upon leaving the job. When asked by the ULJ whether relator understood that the employer was offering her first-shift work, Curran testified: “When [relator] told me that she was going to school in the morning and couldn’t go to first shift it was pretty clear to me that she understood that I was offering her first shift because she was telling me the reason • why she couldn’t go to first shift.”

After Curran testified, the ULJ asked relator whether she had any questions for Curran. Relator said “Yes, I strongly disagree.” The ULJ said “Okay, but do you have a question, or do you just want to state your position?” Relator responded “I strongly disagree with what she said.” The ULJ then asked relator to explain what she disagreed with.

Relator testified that she was laid off after the Nokia work ended. She denied that Curran had spoken to her about the first-shift work before she was laid off and also denied that she told Curran that she was in school and therefore could not work first shift. The ULJ asked her how Cur-ran would have learned that she was attending school if relator had not told her. Relator explained that she had worked for the company previously on a temporary basis while she was attending school. She offered her school transcript and she testified that she had last attended school in December 2004.

Relator initially denied meeting with Curran before her job ended. She then explained that the Nokia workers were taken to Curran’s office one by one. She was the last to be taken there and she was told that there was no job. She again testified that she had not been told about the first-shift job. After some additional testimony from both witnesses, the hearing ended.

The ULJ found that Curran offered relator a first-shift job working on Motorola phones and that relator informed Curran that the first-shift hours conflicted with her school schedule and that she could not accept the offer. The ULJ specifically found that relator’s assertions to the contrary were not credible. Because continued employment was available but relator decided not to accept it, the ULJ ruled that relator voluntarily quit and was disqualified from receiving unemployment benefits.

Relator requested reconsideration and submitted additional documents. The ULJ amended one of the findings and affirmed the earlier decision. This certio-rari appeal followed.

ISSUES

I. Did relator receive a fair hearing?

II. Did the ULJ make the credibility findings required by Minn.Stat. § 268.105, subd. 1(c) (Supp.2005)?

III. Did the ULJ err by not ordering an additional evidentiary hearing based on evidence not submitted at the initial hearing under Minn.Stat. § 268.105, subd. 2(c) (Supp.2005)?

ANALYSIS

Under the current statutory standard of review, this court will review a decision by the ULJ as follows:

The Minnesota Court of Appeals may affirm the decision of the unemployment law judge or remand the case for further proceedings; or it may reverse or modify the decision if the substantial rights of the petitioner may have been prejudiced because the findings, inferences, conclusion, or decision are:
(1) in violation of constitutional provisions;
(2) in excess of the statutory authority or jurisdiction of the department;
(3) made upon unlawful procedure;
(4) affected by other error of law;
(5) unsupported by substantial evidence in view of the entire record as submitted; or
(6) arbitrary or capricious.

MinmStat. § 268.105, subd. 7(d) (Supp. 2005). Questions of law are reviewed de novo, while findings that are supported by substantial evidence will not be disturbed. Id.; Skarhus v. Davanni’s, Inc., 721 N.W.2d 340, 344 (Minn.App.2006). An appellate court will “defer to an agency’s conclusions regarding conflicts in testimony, the weight given to expert testimony and the inferences to be drawn from testimony.” In re Excess Surplus Status of Blue Cross & Blue Shield of Minn., 624 N.W.2d 264, 278 (Minn.2001).

I

We first address relator’s argument that she did not receive a fair hearing. The unemployment law judge (ULJ) is to conduct the evidentiary hearing as an “evidence gathering inquiry” rather than “an adversarial proceeding” and “shall ensure that all relevant facts are clearly and fully developed.” Minn.Stat. § 268.105, subd. 1(b) (Supp.2005). The ULJ “shall exercise control over the hearing procedure in a manner that protects the parties’ rights to a fair hearing.” Minn. R. 3310.2921 (2005); Miller v. Int’l Express Corp., 495 N.W.2d 616, 618 (Minn.App.1993) (stating official conducting hearing has obligation to recognize and interpret the parties’ claims, particularly when the parties are pro se). Each party may examine .witnesses, cross-examine the other party’s witnesses, and offer and object to exhibits. Minn. R. 3310.2921.

Relator contends that she did not receive a fair hearing because the ULJ did not assist her and was unfair in a number of ways. She argues that the ULJ did not explain cross-examination or assist her in cross-examining Curran; that- the ULJ failed to ask Curran probing questions or ask her for corroborating evidence; that the ULJ asked Curran leading questions; and that the ULJ cut’ off relator’s questions. We have read the transcript thoroughly. The ULJ did not use the term “cross-examine,” but instead asked relator if she had questions for Curran and asked her to explain why she disagreed with Curran. The ULJ questioned Curran about the factual dispute, asked whether relator understood that she was being offered a first-shift job, and allowed relator to fully explain her position. Relator’s arguments have no merit; to the contrary, the ULJ conducted an even-handed, fair hearing.

Next, relator contends that when she referred to her college transcript at the hearing, the ULJ erred because she did not inquire further about it or receive it into evidence. The ULJ “should assist unrepresented parties in the presentation of evidence.” Minn. R. 3310.2921. “All competent, relevant, and material evidence, including records and documents in the possession of the parties which are offered into evidence, shall be part of the hearing record.” Minn. R. 3310.2922 (2005). The ULJ may receive any evidence that possesses probative value but “may exclude any evidence which is irrelevant, immaterial, unreliable, or unduly repetitious.” Id.

Although the ULJ did not receive the transcript into evidence, the ULJ nonetheless made findings that took into account relator’s claim that she had not been in school at the time she left employment, which is the fact that the transcript was offered to show. The ULJ stated that even if relator had not been currently attending school, as she maintained, the ULJ would nonetheless credit Curran’s testimony that relator told her she could not accept the first shift because she was attending school. Further, on relator’s motion for reconsideration in which she did specifically offer the school transcript for the ULJ to consider, the ULJ reiterated that whether relator was actually attending school at the time of the quit was not controlling. Instead, the ULJ found that relator conveyed to Curran that she could not accept the first-shift work at the time of the offer because it conflicted with her school schedule. Thus, relator cannot show any prejudice from the ULJ’s failure to receive the transcript into evidence. See Plowman v. Copeland, Buhl & Co., 261 N.W.2d 581, 585 (Minn.1977) (holding that under circumstances of case, failure to formally admit documents was harmless).

Finally, relator argues that the ULJ failed to take into account that she is not a native English speaker, that her accent is somewhat difficult to understand, and that her syntax is sometimes nonstandard. The Department of Employment and Economic Development (DEED) is required to provide an interpreter, when necessary, upon the request of a party. Minn. R. 3310.2911 (2005). There is no indication that relator requested an interpreter, that she did not understand the proceedings, or that the ULJ did not understand her. To the contrary, our review of the transcript shows that she made her claims and assertions very clear.

In conclusion, none of relator’s claims has merit. Relator has not shown that her substantial rights were prejudiced because the decision was made on unlawful procedure or affected by error of law. Minn. Stat. § 268.105, subd. 7(d).

II

Next, relator argues that the ULJ failed to make statutorily required credibility findings in a case that hinged on the credibility of the parties.

The requirement that relator refers to is found in Minn.Stat. § 268.105, subd. 1(c) (Supp.2005), and is part of statutory changes that the legislature made in 2005 to the procedure under which parties obtain review of unemployment-benefits decisions. 2005 Minn. Laws ,ch. 112, art. 2, § 34. Previously, the ULJ conducted an evidentiary hearing and made an initial decision, which was subject to de novo review by the senior unemployment review judge (SURJ). Minn.Stat. § 268.105, subd: 2(c) (2004). The SURJ’s decision was final and could then be challenged by a certiorari appeal to this court. Id., subds. 2(c), 7(a) (Supp.2005). Under this scheme, the supreme court held that deference should be given to the decision by the commissioner’s representative (subsequently SURJ), not the referee (now ULJ). Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn.1995). This was based on statutory language that gave the commissioner’s representative the authority to disregard the referee’s factual findings and make his or her own findings, based on the evidence, despite the fact that the referee conducted the evidentiary hearing. Id.

The 2005 amendments changed this procedure. 2005 Minn. Laws ch. 112, art. 2, § 34. Under the amended system, the ULJ continues to conduct the evidentiary hearing and make the initial determination. Minn.Stat. § 268.105, subd. 1(b) (Supp.2005). But rather than providing that a party may seek de novo review from a higher-level decision-maker, a party now must request reconsideration from the same ULJ who conducted the initial evi-dentiary hearing. Id., subd. 2(a) (Supp. 2005). The ULJ may modify the findings and decision, set the decision aside for an additional evidentiary hearing, or affirm. Id. The ULJ’s decision modifying or affirming the earlier decision is now the final decision, and a party may seek certiorari review from that decision. Id., subds. 2(f), 7(a).

Relator argues that because the unemployment-benefits appeal process no longer includes the commissioner’s representative’s or SURJ’s review of the ULJ’s decision and the ULJ’s decision is reviewed pursuant to Minn.Stat. § 268.105, subd. 7(d), the law in Tuff regarding deference to the decision by the commissioner’s representative no longer applies. The point that the supreme court made in Tuff was that the commissioner’s representative had statutory authority to conduct a de novo review of the ULJ’s decision and that therefore this court should defer to the decision by the commissioner’s representative rather than the ULJ. 526 N.W.2d at 51. Under the current statute, it is the ULJ who conducts a de novo review in an evidentiary hearing, which is subject only to reconsideration by the same ULJ, not de novo review by another layer at the agency level. Minn.Stat. § 268.105, subd. 2(a). Consequently, this court now must defer to the decision by the ULJ if required under the relevant standard of review. See Skarhus, 721 N.W.2d at 344 (providing that this court defers to credibility decisions by the ULJ).

Next, we address relator’s argument that the ULJ did not provide reasons for crediting or discrediting the testimony of witnesses as required by statute. In conjunction with the changes in the statute outlined above, the legislature also inserted a provision that, in the initial order, the ULJ must make specific findings regarding credibility as follows: “When the credibility of an involved party or witness testifying in an evidentiary hearing has a significant effect on the outcome of a decision, the [ULJ] must set out the reason for crediting or discrediting that testimony.” Minn.Stat. § 268.105, subd. 1(c).

The ULJ found that relator was offered the opportunity to work on the first shift but that she told Curran, the director of human resources, that she could not accept the offer because of her school schedule. The ULJ addressed the credibility determination as follows:

We have considered Ywswf s contention that she was not offered the opportunity to continue her employment on the first shift, and [that she did not] convey to the director of human resources that she could not accept the opportunity because it conflicted with her school schedule, but do not find her assertions to be credible. The director of human resources credibly testified that all 10 employees, including Ywswf, were offered the opportunity to work on the first shift and that three employees accepted the offer while seven, including Ywswf, declined the opportunity because of personal conflicts. Further, the director credibly testified that she was unaware that Ywswf had been enrolled in school and first learned of her schooling when Ywswf explained that she could not accept the position because it conflicted with her school schedule. And, although Ywswf may not currently be attending school, as she maintained, we, nevertheless, find the director of human resources’ testimony that this was the reason offered by Ywswf for her decision to decline continued employment to be credible.

Relator asserts that in the above paragraph, the ULJ failed to specify any reason for discrediting relator’s testimony that she was not offered first-shift work and that she did not tell the director she could not accept such an offer because of her school schedule. Relator contends that merely citing the parties’ testimony does not constitute a finding as to credibility. See Dean v. Pelton, 437 N.W.2d 762, 764 (Minn.App.1989) (stating that merely reciting parties’ claims does not constitute making findings of fact).

We first review the factors that might be considered in making credibility determinations by agency decision-makers. For example, a workers’ compensation judge did not credit an employee’s testimony because it was unreliable due to the employee’s mental difficulties, but also because he denied making certain statements in a prior deposition. Even v. Kraft, Inc., 445 N.W.2d 831, 835 (Minn.1989). The judge rejected the employee’s wife’s testimony because of her “selective recall” of events. Id. The supreme court, noting that “[assessment of witnesses’ credibility is the unique function of the trier of fact,” found nothing remiss in the judge’s evaluation of the witnesses’ testimony. Id. In another agency appeal, this court ruled substantial evidence supported the findings, where the witness’s testimony that was credited was corroborated by other testimony and evidence, while another’s testimony that was not credible was deemed not believable based on the facts asserted. Saif Food Market v. Comm’r, Dep’t of Health, 664 N.W.2d 428, 430-31 (Minn.App.2003).

Finally, for a list of other factors that may be relevant in determining the credibility of a witness, we refer to the instructions given to a jury for evaluating the credibility of witnesses in a civil trial. 4 Minnesota Practice, CIVJIG 12.15 (2006).

1. Will a witness gain or lose if this ■ case is decided a certain way?
2. What is the witness’s relationship to the parties?
3. How did a witness learn the facts? How did he or she remember and tell the facts?
4. What was his or her manner?
5. What was his or her age and experience?
6. Did the witness seem honest and sincere?
7. Was the witness frank and direct?
8. Is the testimony reasonable compared with other evidence?
9. Are there any other factors that bear on believability and weight?
In addition, you should rely upon your own experience, good judgment, and common sense.

Here, the way in which the director learned the facts and the manner in which she described them appear most relevant. See id. Key to the ULJ’s credibility determination was testimony by Curran that she first learned of relator’s schooling when relator explained that she could not accept the position because it conflicted with her schooling. The director thus had the information about relator’s schooling, which she would not have known unless the events occurred as she testified. Further, her version was very detailed and specific. Id. In contrast, relator testified she had worked for the company earlier on a temporary basis and that she had also attended school earlier, but there was no testimony showing that Curran had knowledge of her schooling until she offered relator the first-shift position and relator turned it down. The ULJ’s findings are supported by substantial evidence and provide the statutorily required reason for her credibility determination.

Ill

Finally, relator contends that the ULJ erred when she failed to consider as persuasive newly discovered evidence in reconsidering the decision and that the matter should be remanded for an additional evidentiary hearing. This court will defer to the ULJ’s decision not to hold an additional hearing. Skarhus, 721 N.W.2d at 345 (addressing request for an additional evidentiary hearing under subdivision 2(d)).

Under the current version of the statute, a party may request reconsideration from the ULJ who initially heard the appeal. Minn.Stat. § 268.105, subd. 2(a), (e) (Supp. 2005). Upon such a request, the ULJ may modify the findings and decision, set aside the findings and decision and direct that an additional evidentiary hearing be conducted, or affirm the findings and decision. Id., subd. 2(a). The ULJ must order an additional evidentiary hearing upon a showing that evidence that was not submitted at the initial hearing “(1) would likely change the outcome of the decision and there was good cause for not having previously submitted that evidence; or (2) would show that the evidence that was submitted at the evidentiary hearing was likely false and that the likely false evidence had an effect on the outcome of the decision.” Id., subd. 2(c).

In her motion for reconsideration, relator provided the ULJ with the copy of her school transcript that she had referred to in the initial hearing, showing that she had last attended school in fall semester 2004. She also provided three notarized statements from coworkers on the second-shift Nokia line, in which they asserted that they had been laid off with no other option, that to their knowledge relator had not quit or refused any opportunity offered to her on her last day of work, and that they all proceeded to claim unemployment benefits. Finally, relator provided two notices regarding earlier layoffs that the employer had sent her to comply with federal law.

The provision under Minn.Stat. § 268.105, subd. 2(c)(1), will be addressed first. To obtain an additional evidentiary hearing under this section, a relator must show that there is good cause for not having submitted the evidence previously and that such evidence would likely change the outcome of the decision. Id. As to good cause, although relator did not address this in her principal brief, she asserted in her reply brief that she had no reason to know that the employer would not be truthful or that she would have to refute the assertion that she was offered first-shift work until after the hearing. But the record shows that the initial disqualification by DEED was based on the finding that she could have continued working for the employer on the first shift, but instead chose to leave employment. A packet of information that relator received before the initial hearing also contains documents with the employer’s assertion that relator was offered a first-shift position but refused because of school. Relator’s claim has no merit and she has not shown good cause for failing to submit the evidence previously and she cannot prevail under subdivision 2(c)(1).

Next, we address Minn.Stat. § 268.105, subd. 2(c)(2), which provides for an additional evidentiary hearing upon a showing that the evidence submitted at the initial evidentiary hearing was “likely false” and had an effect on the outcome of the hearing. Relator argues that her evidence would directly refute the employer’s assertions.

First; as to the transcript, the ULJ considered the fact that it was offered to prove that relator was not attending school at the time she left employment in both the initial order and the order on reconsideration. Second, the statements by the three affiants do not directly address the testimony as to whether relator was offered a first-shift job. Further, we defer to the ULJ where the ULJ already had made a credibility determination based on the testimony of the two witnesses who had participated in the conversation. Finally, the notices as to earlier layoffs are not relevant to the credibility determination. Relator has not shown that she was entitled to an additional evidentiary hearing under Minn.Stat. § 268.105, subd. 2(c)(2).

DECISION

The ULJ’s decision that relator is not qualified to receive unemployment benefits is affirmed, and there are rio grounds to remand the matter to the ULJ' for an additional evidentiary hearing.

Affirmed.

      . Before 2004, the decision-maker' was the commissioner's representative; in 2004, the legislature designated the SURJ as the decision-maker, but otherwise did not make significant changes to the procedure. 2004 Minn. Laws ch. 183, § 71.

      . The unemployment law judge was then referred to as the referee.

      . The bracketed language was added by the ULJ when she amended her findings in the order on reconsideration.


author: HALBROOKS, Judge.

text:
    STATE of Minnesota, Appellant, v. Robert Joseph JORDAN, Respondent.
    No. A06-1445.
    Court of Appeals of Minnesota.
    Jan. 30, 2007.

      Lori Swanson, Attorney General, St. Paul, MN; and Thomas F. Murtha IV, Aitkin County Attorney, Aitkin County Courthouse, Aitkin, MN, for appellant.
    Mark D. Nyvold, Special Assistant State Public Defender, St. Paul, MN, for respondent.
    Considered and decided by HALBROOKS, Presiding Judge; RANDALL, Judge; and STONEBURNER, Judge.
   OPINION

HALBROOKS, Judge.

Appellant challenges the district court’s decision to exclude evidence seized by law enforcement pursuant to an invalid nighttime search warrant and subsequent dismissal of the complaint. Because we conclude that the search was a technical violation of the statute and not a constitutional violation due to the fact that respondent was not home when the warrant was executed, we conclude that the district court erred in applying the exclusionary rule to suppress the evidence seized during the search and that the error had a critical impact on the outcome of the case. We therefore reverse and remand for trial.

FACTS

At 4:24 a.m. on December 11, 2004, based on previous controlled buys of methamphetamine, Mille Lacs County Sheriffs Office Investigator Jim Osowski presented a search-warrant application to the district court seeking a nighttime search of the premises located at 27438 110th Street in Isle and the persons of respondent Robert Joseph Jordan and Julie Ann Jordan, who were identified as residents at that address. The application stated that a search outside the hours of 7:00 a.m. to 8:00 p.m. was necessary to prevent the loss of the objects of the search or to protect the searchers or the public because

[a]t the -time the controlled buys were done at Jordan’s Isle residence Robert Jordan, and Julie Jordan, possessed the Methamphetamines. It is unknown when individuals subject to search specifically, Robert Jordan and Julie Jordan, are at the residence, therefore officers may have to execute this warrant after 8:00 p.m. when both individuals subject to search are at the residence. Additionally, many individuals unknown to law enforcement have been identified in the Jordan home during the course of the controlled buys. On one occasion 13 such individuals were present. Execution of the Search Warrant after 8:00 p.m. when Robert and Julie Jordan are home should filter out innocent individuals and protect the searchers by having less individuals to secure. In addition, your Affiant received additional current information after the hours of 9:00 p.m. By the time your Affiant learned this current and relevant information and prepared the search warrant, it was well after the hours of 8:00 P.M. Your Affiant believes that if service of this search warrant is delayed, large amounts of evidence will be lost through sales to individuals.

The district court issued a search warrant on the morning of December 11 that included a provision allowing for a nighttime search, stating “[t]he Court further finds that a nighttime search outside the hours of 7 a.m. and 8 p.m. is necessary to prevent the loss, destruction, removal of the objects of said search, or to protect the searchers or the public.” Law enforcement executed the search warrant at approximately 6:00 a.m. on December 11. Although three people were present and asleep in the residence when the search took place, neither respondent nor Julie Jordan was there. As a result of the search, officers found methamphetamine, drug paraphernalia, surveillance cameras, police scanners, more than $1,000 in cash, and firearms. Respondent was subsequently charged with third-degree controlled-substance crime in violation of Minn.Stat. § 152.023, subd. 2(1) (2004).

Respondent'moved to suppress the evidence seized during the search and to dismiss the complaint. Respondent argued that there was no probable cause to issue a search warrant that included a nighttime-entry clause and that the search-warrant application did not contain a sufficiently particularized reason to justify a nighttime entry.

The district court granted respondent’s motion to suppress the evidence, determining that while there was sufficient probable cause to justify issuance of the search warrant, the application “did not contain a sufficiently particularized reason to justify a nighttime entry.” The district court therefore concluded that because the nighttime search constituted a violation of a constitutional nature, the evidence seized during the. search should be suppressed. As a result, the district court granted respondent’s motion to dismiss, concluding that, absent the excluded evidence, there was “insufficient evidence to proceed.” This appeals follows.

ISSUE

Did the district court err in suppressing evidence obtained during the execution of a nighttime search warrant held to be invalid under Minn.Stat. § 626.14 (2004), when respondent was not present at the time law enforcement executed the- warrant?

ANALYSIS

“When reviewing pretrial orders on motions to suppress evidence, we independently review the facts and determine, as a matter of law, whether the district court erred in its ruling.” State v. Bourke, 718 N.W.2d 922, 927 (Minn.2006) (citing State v. Harris, 590 N.W.2d 90, 98 (Minn.1999)). “The district court’s factual findings are reviewed under the clearly erroneous standard, but we review the district court’s legal determinations de novo.” Id. “In order to prevail in an appeal from a pretrial order, the state must show clearly and unequivocally that the district court erred in its judgment and that, unless reversed, the error will have a critical impact on the outcome of the trial.” State v. Jones, 518 N.W.2d 67, 69 (Minn.App.1994) (citing State v. Webber, 262 N.W.2d 157, 159 (Minn.1977)), review denied (Minn. July 27, 1994). Respondent concedes critical impact in this case.

“[T]he exclusionary rule is a judicially created tool designed to safeguard Fourth Amendment rights.” State v. Chandler, 267 S.C. 138, 226 S.E.2d 553, 555 (1976) (citing United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974)). In Mapp v. Ohio, 367 U.S. 643, 645, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081 (1961), the United States Supreme Court held that the exclusionary rule applies to the States through the Fourteenth Amendment.

MinmStat. § 626.14 (2004) provides that a search warrant may be served only between the hours of 7:00 a.m. and 8:00 p.m. unless the court determines on the basis of facts stated in the affidavits that a nighttime search outside those hours is necessary to prevent the loss, destruction, or removal of the objects of the search or to protect the searchers or the public. The search warrant shall state that it may be served only between the hours of 7:00 a.m. and 8:00 p.m. unless a nighttime search outside those hours is authorized.

“Underlying the Minnesota statutory rule ...’ is the belief that a nighttime search of a home involves a much greater intrusion upon privacy and is presumably more alarming than an ordinary daytime search of a home.” State v. Lien, 265 N.W.2d 833, 839-40 (Minn.1978); see also State v. Winchell, 363 N.W.2d 747, 750 (Minn.1985) (stating that in adopting section 626.14 “[t]he legislature recognized that entry into a residence in the middle of the night is a greater invasion of residential privacy than entry during the 'daytime”).

. Here, the state does not argue that the district court erred in determining that the warrant application did not contain sufficient facts to support a nighttime search. Instead, the state contends that the district court should not have suppressed the evidence obtained during the search pursuant to the invalid nighttime search warrant when respondent was not home when the search warrant was executed. Specifically, the state argues that the violation was statutory rather. than constitutional in nature and, therefore, does not justify suppression of the evidence.

The distinction between a statutory and a constitutional violation was articulated by the Minnesota Supreme Court in Lien. In that case, an officer applied to the district court for a warrant to search the defendant and his residence for controlled substances and paraphernalia. 265 N.W.2d at 835-36. The application requested a nighttime search “to prevent the loss, destruction or removal of the objects of the search because ... it is unknown when the person described herein will be at the premises described herein.” Id. at 836 (quotation marks omitted). The district court issued a search warrant authorizing a nighttime search. Id.

On the same day, at 8:50 p.m., officers stationed themselves outside the defendant’s home in preparation for executing the warrant when the defendant returned home. Id. The, officers observed a number of people entering and exiting the defendant’s residence, and after observing a person fitting the description of the defendant enter the apartment shortly after 9:00 p.m., the officers approached the building. Id. The officers could not see into the apartment; but the front door was slightly open, and the officers pushed the door open and entered the apartment. Id. In the course of the search, the officers found marijuana and drug paraphernalia. Id. But the district court subsequently suppressed the evidence obtained during the search, concluding that the “affidavit in support of the application for a search warrant did not contain a sufficient factual showing to justify inclusion of [the] clause[ ] authorizing ... nighttime execution of the warrant.” Id.

On appeal, the Minnesota Supreme Court agreed “that the police did not make a sufficient showing to justify inclusion of the nighttime search clause.” Id. at 840. But despite its determination that the application did not make a sufficient showing, the supreme court held that the evidence obtained during the search should not be suppressed. Id. The supreme court reasoned that the “police acted in good faith and that any error committed [wa]s attributable to the magistrate, who should have required the police to make a clearer showing of need before granting the nighttime search clause.” Id. The supreme court recognized that while the general rule against nighttime searches may have a “constitutional dimension,” the error in that case was a technical violation of the statute, not a constitutional violation. Id. at 839, 841. In support of its conclusion that there was no constitutional violation, the supreme court noted that (1) the warrant was executed at a reasonable hour when most people would still be awake; (2) the defendant had just returned home and was fully clothed; (3) there was considerable activity in the apartment; and (4) the defendant’s door was partly open. Id. at 841. The supreme court thus concluded:

In short, the intrusion was not the kind of nighttime intrusion — with people being roused out of bed and forced to stand by in their night clothes while the police conduct the search — -that our statutory rule against nighttime execution of search warrants is primarily designed to prevent. Thus, while there was a technical violation of our statute, the violation was not of a constitutional nature, and therefore ... does not require the exclusion of the evidence seized.

Id.

Here, the district court recognized and cited to the Minnesota Supreme Court’s decision in Lien, stating:

Even though the inclusion of the nighttime search clause was not supported by the information in the affidavit, it does not follow that evidence obtained pursuant to the warrant should be suppressed. The circumstances of the case dictate whether a violation should have this result. If the violation is merely technical, it does not have constitutional ramifications.

But the district court ultimately concluded that the facts here were distinguishable from Lien.

The district court noted that (1) the search warrant was executed between 5:27 a.m. and 6:00 a.m., roughly one hour to one and one-half hours before “daytime”; (2) all three people in the residence at the time the warrant was executed were asleep; and (3) there was no evidence to suggest that people were coming and .going from the residence at the time of or just prior to the search, that there was activity in the residence, or that the door was open. Based on these facts, the district court concluded that the circumstances of the search amounted to a constitutional violation and, therefore, the evidence seized during the search should be suppressed.

We agree that the three individuals who were roused from their sleep in the early morning hours and forced to stand by idly as law-enforcement authorities searched the home have a legitimate argument that a violation of their constitutional rights occurred, and, consequently, that the evidence against them should be suppressed. But we draw a distinction between those individuals and respondent, who was absent when the warrant was executed. Because respondent was not present when the search took place, the Lien court’s policy concern with individuals “being roused out of bed and forced to stand by in their night clothes while the police conduct [a] search” is not triggered.

A few courts have addressed the issue of whether one has a reasonable expectation of privacy in his home when that individual is not present so that the execution of an invalid nighttime search warrant amounts to a constitutional violation requiring suppression of any evidence seized. For instance, in State v. Iverson, 187 N.W.2d 1, 11, 27 (N.D.1971), a search warrant was issued authorizing a search of defendant’s vehicle and residence in daytime or nighttime after defendant had already been taken into custody. During the search, evidence was seized that was subsequently admitted at defendant’s trial. Iverson, 187 N.W.2d at 11, 27.

Defendant argued, in part, that because the search violated North Dakota’s nighttime search statute, the evidence seized pursuant to the warrant should not have been admitted into evidence. A at 27. Although the North Dakota Supreme Court determined that the search warrant was issued and executed in violation of the statute, the court held that the right under the statute to be free from nighttime searches was a “statutory right rather than a constitutional right under the Fourth Amendment,” and, therefore, exclusion of the evidence was not warranted. Id. at 32-33. The court reasoned that the purpose of the nighttime search statute was “to protect a person and not a place from the peculiar abrasiveness of official intrusions at such periods,” and that defendant’s

privacy during the evening could not have been invaded by a search of his residence pursuant to a search warrant issued on affidavits that lacked the positive statement required by [the nighttime search statute], because he was incarcerated at the time of the search warrant pursuant to his lawful arrest.

Id. at 33. The North Dakota Supreme Court concluded that, due to defendant’s absence, “the authorization of a nighttime search of [his] residence was harmless error,” and, thus, “the items seized pursuant to the nighttime search of [the] residence were properly admitted in evidence at ... trial.” Id.

The court in Iverson discussed United States v. Ravich, 421 F.2d 1196 (2d Cir. 1970), a federal case dealing with the issue of a nighttime search under Fed.R.Crim.P. 41(c), a rule containing language similar to North Dakota’s nighttime search statute. 187 N.W.2d at 32-33. In Ravich, police officers arrested defendants at approximately 6:30 p.m. in their motel room. 421 F.2d at 1199. The officers did not conduct a search of the motel rooms at that time but did post two policemen near the entrance. Id. Later that night, officers obtained warrants to search the motel rooms after presenting affidavits and sworn oral testimony, which the district court determined to be sufficient to establish probable cause. Id. at 1199-1200. At approximately 11:00 p.m., officers executed the search warrants, despite the fact that the warrants did not contain a direction that they could be executed at night. Id. at 1200.

Defendants subsequently moved to suppress the evidence seized, arguing that the search warrants did not comply with either Louisiana state law or Fed.R.Crim.P. 41(c) because they did not contain a direction that they would be executed at night and because “the moving affidavits were not ‘positive’ that the property constituting the object of the search was in the place to be searched.” Id. But the Second Circuit Court of Appeals held that the evidence obtained during' the search was lawfully seized, stating “that under the special circumstances of this .case the defects in the warrant were not such as to require exclusion of the evidence seized under them.” Id. at 1201. These special circumstances included the fact that the district court judge “must have known that the warrants might be executed at night” and the Second Circuit’s determination that the affidavits and oral testimony met the probative standards for authorizing a nighttime search under rule 41(c). Id. But the North Dakota Supreme Court, in interpreting Ravich, opined that

the special circumstances must have also included the fact that Ravich and his companions were already in custody as the result of a lawful arrest; that the Fourth Amendment protects people, not places; that there ivas no one in the motel rooms when the search was made; and that the same result would have been obtained if the officers had delayed their search until daylight.

Iverson, 187 N.W.2d at 33 (emphasis added).

Our conclusion in this matter is consistent with the United States Supreme Court’s recent decision in Hudson v. Michigan, — U.S.—,—, 126 S.Ct. 2159, 2163-64, 165 L.Ed.2d 56 (2006), where the Court held that a violation of the constitutionally based knock-and-announce rule (often viewed as an area of the law that is analogous to nighttime searches) did not require the suppression of all evidence obtained during the search. The Hudson Court expressed its caution when applying the exclusionary rule, noting that “[sjuppression of evidence ... • has always been [a] last resort,” and thus concluded:

In sum, the social costs of applying the exclusionary rule to knock-and-announce violations are considerable; the incentive to such violations is minimal to begin with, and the extant deterrences against them are substantial — incomparably greater than the factors deterring warrantless entries when Mapp was decided. Resort to the massive remedy of suppressing evidence of guilt is unjustified.

Id. at 2163, 2168; see also Pa. Bd. of Probation & Parole v. Scott, 524 U.S. 357, 363, 118 S.Ct. 2014, 2014, 141 L.Ed.2d 344 (1998) (stating the exclusionary rule should be applied only “where its deterrence benefits outweigh its substantial social costs”) (quotation omitted).

DECISION

Because we conclude that, with respect to respondent, the execution of the invalid nighttime search warrant at respondent’s home when he was not present amounted to a statutory violation rather than a violation of respondent’s constitutional rights, the district court erred in suppressing the evidence and dismissing the complaint. As a result, we reverse and remand for trial.

Reversed and remanded.

      . See United States v. Searp, 586 F.2d 1117, 1122, 1125 (6th Cir.1978) (holding evidence seized during execution of nighttime search warrant that violated Fed.R.Crim.P. 41(c)(1) should not b.e excluded where defendant was not present when the search of home took place because "there was neither a possibility of bad faith conduct on the part of the police, nor prejudice to the defendant, " and "no substantial right of the defendant ha[d] been infringed”; therefore, the search was "reasonable” under the Fourth Amendment); Gamble v. State, 473 So.2d 1188, 1195-96 (Ala.Crim.App.1985) (holding that while "[a]n error ... may have been committed with respect to the issuance” of a search warrant for defendant’s car that was executed at night, suppression of the evidence seized was unnecessary because defendant "was not subjected to an abusive, arbitrary intrusion into his home in the middle of the night, but was already in custody and his vehicle under surveillance”) (alteration in original) (quotation omitted); Commonwealth v. Camperson, 437 Pa.Super. 355, 650 A.2d 65, 67, 70-71 (1994) (holding suppression of evidence was not required for seizure of drugs conducted pursuant to potentially invalid nighttime search warrant, when defendant was in custody both when police obtained search warrant and when search of home was conducted at 10:30 p.m., because violation of the state's nighttime search rule, if any, was technical in nature and appellant was not disadvantaged thereby); State v. Chandler 267 S.C. 138, 226 S.E.2d 553 (1976) (holding evidence should not be suppressed when police searched defendant’s home at nighttime while defendant was in jail, despite the fact that the search warrant authorized a search in the daytime only, because violation was statutory in nature). But see Henry v. State, 373 A.2d 575, 578 (Del.1977) (holding that evidence seized during search of defendant’s home while defendant was in custody of the police should be suppressed because search warrant was issued in violation of state nighttime search statute).

      . The statute provided that
      [t]he magistrate issuing a search warrant must insert a direction in the warrant that it be served in the daytime, unless the affidavits are positive that the property is on the person or in the place to be searched. In that case he may insert a direction that it be served at any time of the day or night.

        Iverson, 187 N.W.2d at 32 (quoting N.D. Cent. Code § 29-29-10 that was superseded in 1980 by N.D. R.Crim. P. 41).


author: CROTHERS, Justice.

text:
    2007 ND 17
    STATE of North Dakota, Plaintiff and Appellee v. Jerry PROELL, Defendant and Appellant.
    No. 20060222.
    Supreme Court of North Dakota.
    Feb. 1, 2007.

      Ladd R. Erickson, State’s Attorney, Washburn, ND, for plaintiff and appellee.
    Justin Vinje (argued) and Ralph A. Vin-je, Vinje Law Firm, Bismarck, ND, for defendant and appellant.
   CROTHERS, Justice.

[¶ 1] Jerald V. Proell appeals from the criminal judgment and the district court’s decision denying the motion to suppress evidence seized during his arrest under a federal arrest warrant. The district court found probable cause supported the original search warrants leading to the issuance of the federal arrest warrant. Proell contends the district court erred in denying his motion to suppress evidence because probable cause did not exist to support the original search warrants and therefore evidence obtained from the search incident to arrest was inadmissible. We affirm the district court judgment.

[¶ 2] Proell was arrested at his residence under a federal arrest warrant on September 27, 2005. Arresting officers found methamphetamine and a glass smoking pipe containing residue in Proell’s front sweatshirt pocket. Proell was charged in state court with possession of drug paraphernalia and possession of methamphetamine. He-was also charged in federal court on weapons charges resulting from evidence seized during his arrest.

[¶ 3] In October of 2005, Proell moved in federal court to suppress evidence seized during the search, but his motion was denied. He has appealed the United States District Court’s denial of his motion to suppress to the Eighth Circuit Court of Appeals. In May of 2006, Proell also moved in state court to suppress evidence seized during the search, contending the federal arrest warrant was issued on the basis of previous illegal search warrants. He argued the evidence seized under the federal arrest warrant was “fruit of the poisonous tree” and should be suppressed. Proell’s motion to suppress in state court was denied.

I

[¶ 4] Proell asserts this Court must stay our proceedings or remand to the state district court pending the outcome of his federal appeal on the denial of his motion to suppress evidence because the state is in privity with the federal prosecutors and that both prosecutions are “one and the same.” He argues estoppel and a reversal by the Eighth Circuit Court of Appeals on his motion to suppress evidence will bind this Court and preclude a contrary ruling. Proell’s argument fails for several reasons.

[¶ 5] First, the North Dakota and federal prosecutions are not “one and the same” and the two jurisdictions are not acting in privity with one another. North Dakota is prosecuting Proell for unlawful possession of drugs and drug paraphernalia under state law. The federal prosecution stems from Proell’s illegal possession of firearms under United States law. The prosecutions are therefore quite different, even though their origin is connected.

[¶ 6] Second, North Dakota is a sovereign, separate from the federal government. See Heath v. Alabama, 474 U.S. 82, 88, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985). Each state’s power to prosecute is derived from its inherent sovereignty, not from the federal government. Id. at 89, 106 S.Ct. 433. When prosecuting entities are separate sovereigns, as they are here, the circumstances of the case and the specific interests of each sovereign are irrelevant. Id. at 92, 106 S.Ct. 433. As a result of our inherent sovereignty, state court proceedings are not ancillary to federal proceedings and this Court is not in privity with, or bound by, the federal court’s decision on Proell’s motion to suppress evidence.

[I]f a federal court suppresses certain evidence on Fourth Amendment grounds, that ruling does not foreclose a state court from holding that this same evidence is admissible against the same defendant in a state prosecution. By the same-token, if certain evidence was ruled inadmissible on Fourth Amendment grounds in a state prosecution, and the defendant benefitting from that ruling is later subjected to a federal prosecution in which the same evidence is offered, the federal court may “make an independent determination” as to the admissibility of the evidence.

W. LaFave, Search and Seizure § 11.2(g) (4th ed. 2004). We therefore reject Proell’s argument North Dakota cannot proceed until, or contrary to, the federal court’s ultimate decision on his federal charges. From this conclusion it follows that North Dakota need not and will not stay its proceedings until Proell’s federal appeal is fully adjudicated.

II

[¶ 7] Proell next asserts the district court erred in denying his motion to suppress, arguing insufficient information supported probable cause for issuance of the original search warrants. In early April of 2005, the son of Proell’s longtime girlfriend was implicated in a poaching investigation. On April 6, 2005, law enforcement officers obtained a warrant from a district court judge to search both the girlfriend’s property and Proell’s property, which are situated on adjacent lots in Garrison, and to which the girlfriend’s son had access. Officers found deer antlers, eagle talons and a rifle in the girlfriend’s residence located at 78 3rd Avenue SW. Meanwhile at the Proell address, 79 4th Avenue SW, officers also found marijuana, a Beretta pistol identified in the indictment, and $2,000 cash. After this discovery, the search was stopped and an additional search warrant was sought. The second search warrant was issued by the same district court judge, also on April 6, 2005. The State did not pursue charges stemming from these two searches. Federal grand jury proceedings against Proell began after the searches and resulted in an indictment and the September 2005 federal arrest warrant. Proell was arrested under this federal arrest warrant and did not challenge the search conducted incident to his arrest. Peace officers are authorized to make arrests under a warrant. N.D.C.C. § 29-06-02; N.D.R.Crim.P. 4. Officers “executing a warrant or other process in good faith and under color of law shall be deemed to be acting lawfully.” N.D.C.C. § 12.1-08-02(2).

[¶ 8] “ ‘The Fourth Amendment of the United States Constitution, made applicable to the states by the Fourteenth Amendment, and Article I, § 8 of the North Dakota Constitution protect individuals from unreasonable searches and seizures by the government.’ ” State v. Gregg, 2000 ND 154, ¶ 22, 615 N.W.2d 515 (quotation omitted). The United States Supreme Court has defined a Fourth Amendment search as an intrusion into a person’s reasonable expectation of privacy. Id.; see Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). “When an individual reasonably expects privacy in an area, the government ... must obtain a search warrant unless the intrusion falls within a recognized exception to the warrant requirement.” Gregg, at ¶ 23. One exception to the warrant requirement is when a search is conducted incident to a valid arrest. Cf. New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) (when a police officer has made a lawful arrest of the occupant of an automobile, the officer may, “as a contemporaneous incident of that arrest, search the passenger compartment of that automobile” without a warrant).

[¶ 9] The officers here were executing an arrest warrant. The officers were acting lawfully under N.D.C.C. § 29-06-02. Proell has made no contrary showing. Therefore, the contraband yielded is admissible against Proell because it was found in a search incident to a valid arrest unless the search is invalidated on another basis.

[¶ 10] Proell argues the other basis is the “fruit of the poisonous tree” doctrine. He asks that this Court go behind the facially valid arrest warrant and determine probable cause did not exist for issuance of the original search warrants. We question whether the doctrine requires that analysis under the circumstances of this case and leave the answer for another day because of the status of the record before us.

[¶ 11] When Proell challenged the probable cause finding in his motion to suppress, the state district court received evidence about circumstances of the arrest, briefs and the transcript of the proceeding on Proell’s motion before the federal district court. The state district court was not provided with all of the evidence presented to the search warrant-issuing judge. Based on the record before it, the state district court concluded the subsequent arrest warrant and arrest were not “fruit from a poisonous tree.”

[¶ 12] “Whether probable cause exists to issue a search warrant is a question of law.” State v. Ebel, 2006 ND 212, ¶ 12, 723 N.W.2d 375. This Court reviews a search warrant’s validity using the totality-of-the-cireumstances approach, independent of the district court’s determination. Id. at ¶ 13. We consider all information for probable cause together, and we test affidavits executed in support of a warrant in a commonsense and realistic fashion. State v. Rage, 1997 ND 175, ¶ 10, 568 N.W.2d 741.

[¶ 13] The record before this Court does not contain the original search warrants that Proell claims were defective. Nor does the record contain the affidavits or other evidence considered .by the search warrant-issuing judge. Absent this record, we are unable to review Proell s claim the underlying warrants were improperly issued. We therefore reject Proell’s argument that the contraband seized during a facially lawful arrest must be suppressed.

Ill

[¶ 14] Proell argues in two different contexts that this case should be remanded to the district court for further proceedings. He first claims appellate review is impossible because the state court’s order denying suppression is lacking in law or facts. He next argues remand is required because the state district court relied too extensively on the federal district court’s order denying suppression. We reject these claims because the absence of records used to obtain the underlying search warrant prevent judicial review at any level, and because the state district court does not err as a matter of law by citing to and incorporating by reference the holding of the federal court. But see State v. LaMorie, 558 N.W.2d 329, 331 (N.D.1996) (holding the district court erred by relying solely on a federal magistrate’s report sent to the court after the hearing and not admitted into the record). In any event, a district court “is presumed to have done its duty.” State v. Syvertson, 1999 ND 134, ¶ 21 n. 3, 597 N.W.2d 652.

IV

[¶ 15] We note this case comes to us after Proell conditionally plead guilty to the drug paraphernalia and drug possession charges. The State concedes there was a conditional guilty plea, although the criminal judgment does not reflect the conditional nature of the plea; the record contains Proell’s offer to conditionally plead guilty filed thirteen days after the criminal judgment was entered. For the purposes of this appeal, we have considered Proell’s conditional plea of guilty. But we note N.D.R.Crim.P. 11(a)(2) requires “the consent of the court and the prosecuting attorney.” So that we know the district court and the prosecuting attorney agree upon the motion or the issues to be appealed, this case should serve as a reminder of these requirements.

[¶ 16] We also note that Proell’s appendix contains items not in the record before the district court. “Only items in the record may be included in the appendix. The author’s signature on the brief, under [N.D.R.App.P.] 32, certifies compliance with this rule.” N.D.R.App.P. 30(a)(1). “This rule prohibits parties from trying to sway this Court with materials and information that were not before the district court.” Schwan v. Folden, 2006 ND 28, ¶ 13, 708 N.W.2d 863.

V

[¶ 17] We affirm the district court judgment.

[¶ 18] GERALD W. VANDE WALLE, C.J., DALE V. SANDSTROM, CAROL RONNING KAPSNER, and MARY MUEHLEN MARING, JJ., concur.


author: KAPSNER, Justice.

text:
    2007 ND 15
    STATE of North Dakota, Plaintiff and Appellee v. Jimmie Lee BATES, Defendant and Appellant.
    No. 20060179.
    Supreme Court of North Dakota.,
    Feb. 1, 2007.

      Gary L. Delorme (argued), Assistant State’s Attorney, Fargo, ND, for plaintiff and appellee.
    L. Patrick O’Day Jr. (argued), Fargo, ND, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Jimmie Lee Bates appeals from a criminal judgment entered upon a plea of guilty, claiming the district court erred in denying his motion to withdraw the guilty plea. After considering the issues as Bates raises them, we conclude the district court did not abuse its discretion in denying the motion to withdraw the guilty plea and Bates failed to establish he received ineffective assistance of counsel. We affirm.

I

[¶ 2] Bates was charged with continuous sexual abuse of a child and promoting obscenity to minors in March 2005. Prior to trial, the state’s attorney filed an amended information, charging Bates with one count of gross sexual imposition (GSI). On March 20, 2006, Bates entered an Alford plea to the amended information. The court informed the parties that the joint sentencing recommendation would be considered a plea agreement under N.D.R.Crim.P. 11, and Bates would be entitled to change his plea if the court did not accept the recommendation. The judge engaged in a colloquy with Bates as required under Rule 11 and found Bates’ plea was knowing and voluntary.

[¶ 3] After receiving Bates’ plea, the court asked the State for a factual basis. The State outlined Bates’ history with the victim’s mother, his access to the now eight-year-old victim, and the victim’s repeated identification of Bates as her molester. The State also outlined when Bates had sexual contact with the victim. The court then asked Bates whether he disagreed or had anything to add to the State’s factual basis. Bates’ attorney corrected the State’s factual rendition with respect to the duration of the sexual abuse occurring in North Dakota. Bates made no other disputes or objections to the factual basis at the change of plea proceeding. The court accepted the plea.

[¶ 4] Prior to imposing sentence, the district court ordered a pre-sentence investigation. Bates was reluctant to cooperate with the investigator, claiming one was just done on him in 2003. On May 4, 2006, approximately two months after the change of plea proceeding but before his sentence was imposed, Bates filed a motion to withdraw his guilty plea based on “a manifest injustice; and/or for the fair and just reason that Defendant maintains his innocence and cannot in good conscience plead guilty to a charge he did not commit.” The court held a hearing to address the motion, where Bates testified his conscience would not allow him to maintain his guilty plea. On cross-examination, Bates acknowledged he was satisfied with his attorney’s representation, he was knowledgeable of the criminal justice system, and he was fully advised on the consequences of his change of plea. The court denied the motion to withdraw the guilty plea on June 5, 2006, finding the guilty plea voluntary, intelligent, and the plea withdrawal was not necessary to correct a manifest injustice. The district court did not address whether Bates had established a “fair and just reason” for the plea withdrawal. On July 10, 2006, the court accepted the joint sentencing recommendation and sentenced Bates to ten years in prison, running concurrently with a previous felony conviction.

II

[¶ 5] On appeal, Bates argues “[i]t is necessary to allow Defendant to withdraw the Alford plea ... to correct a manifest injustice.... ” Specifically, Bates argues the district court “abused its discretion, because there was no factual basis for the plea and the plea was not voluntarily made.” Bates also claims he received ineffective assistance of counsel. The State argues the district court properly exercised its discretion in denying Bates’ motion to withdraw his plea after accepting a factual basis and Bates failed to establish a valid claim of ineffective assistance of counsel. Neither party argues, on appeal, that withdrawal of a guilty plea is subject to the “fair and just reason” standard contained in N.D.R.Crim.P. 32(d)(3). “We will not consider issues not adequately briefed, argued, or supported on appeal.” State v. Harmon, 1997 ND 233, ¶ 29, 575 N.W.2d 635. Therefore, we limit our discussion on the withdrawal of Bates’ guilty plea to whether the district court abused its discretion in concluding the plea withdrawal was not necessary to correct a manifest injustice. See id.

Ill

[¶ 6] The standard for a plea withdrawal differs depending upon when the motion to withdraw the guilty plea is made. Froistad v. State, 2002 ND 52, ¶ 5, 641 N.W.2d 86. A defendant has a right to withdraw a. guilty plea before it is accepted by the court. Id. at ¶ 6. “ ‘After a guilty plea is accepted, but before sentencing, the defendant may withdraw a guilty plea if necessary to correct a manifest-injustice, or, if allowed in the court’s discretion, for any “fair and just” reason unless the prosecution has been prejudiced by reliance on the plea.’ ” Id. at ¶'8 (quoting State v. Klein, 1997 ND 25, ¶ 13, 560 N.W.2d 198). When a court has accepted a plea and imposed sentence, the defendant cannot withdraw the plea unless withdrawal is necessary to correct a manifest injustice. Id. at ¶ 9. “The decision whether a manifest injustice exists for withdrawal of a guilty plea lies within the trial court’s discretion and will not be reversed on appeal except for -an abuse of discretion.” State v. Abdullahi, 2000 ND 39, ¶ 7, 607 N.W.2d 561 (citing State v. Hendrick, 543 N.W.2d 217, 219 (N.D.1996)). An abuse of discretion under N.D.R.Crim.P. 32(d) occurs when the court’s legal discretion is not exercised in the interest of justice. Abdullahi, at ¶ 7 (citing State v. Dalman, 520 N.W.2d 860, 862 (N.D.1994)). The trial court must exercise its sound discretion in determining whether a “manifest injustice” or a “fair and just reason” to withdraw a guilty plea exists. See Froistad, at ¶ 9; Abdi v. State, 2000 ND 64, ¶ 10, 608 N.W.2d 292.

A

[¶ 7] Bates argues the district court abused its discretion in denying his motion to withdraw his guilty plea. To support his argument, Bates claimed the court committed a procedural error by not establishing a factual basis for the Alford plea. We conclude the district court properly determined there was a sufficient factual basis for the guilty plea under N.D.R.Crim.P. 11(b)(3)!

[¶ 8] A factual basis is a statement of facts to assure the defendant is guilty of the crime charged. See Kaiser v. State, 417 N.W.2d 175, 178 (N.D.1987). In Kaiser, we discussed the manners in which a factual basis may be established, which include:

First, the court could inquire directly of the defendant concerning the performance of the acts which constituted the crime. Secondly, the court could allow the defendant to describe to the court in his own words what had occurred and then the court could question the defendant. Thirdly, the,court could have the prosecutor make an offer of proof concerning the factual basis for the charge.

Id. We have also stated, “[t]o establish a factual basis for the plea, the court must ascertain ■‘that the conduct which the defendant admits constitutes the offense charged in the indictment or information or an offense included therein to which the defendant has pleaded guilty.’ The court accepting the plea should compare the elements of the crime charged to .the facts admitted to by the defendant.” Froistad, 2002 ND 52, ¶ 19, 641 N.W.2d 86 (citations omitted).

[¶ 9] The factual basis in this case was sufficient to support Bates’ guilty plea. The state’s attorney established the defendant met the victim’s mother and moved to Texas with her. Bates, the victim’s mother, the victim, and several other children lived together while in Texas. They moved back to Fargo, North Dakota. Bates was convicted on another charge and incarcerated while he was living in Fargo with the victim’s family. After Bates was removed from the home, the victim began to act out in a sexual manner. When questioned, the child indicated Bates had given her those sexual ideas and she was acting out on them. The victim was interviewed twice on videotape, where she told a social worker and a police officer Bates had touched her on her vagina, on her buttocks, and had put his penis in her mouth. The victim described the place these events occurred. The victim was medically examined several years after the occurrences, with no conclusive proof to corroborate the child’s statements.

[¶ 10] The court then asked Bates, through his counsel, whether he had anything in response to the State’s factual rendition. Bates’ counsel made a minor modification to the State’s factual basis, noting the amended information alleged the victim was molested between the ages of three to five, where the factual basis supported molestation between the ages of four to five. Bates’ counsel acknowledged that, if Bates chose to go to trial, “it’s more likely than not that [a jury would] find guilt.” The court accepted the factual basis to support the plea. The court then ordered a pre-sentence investigation before sentencing.

[¶ 11] When comparing the factual basis with the elements of GSI, the factual basis addresses each essential element of the crime. Bates was charged under N.D.C.C. § 12.1-20-03, which requires the State to prove the defendant engaged in a sexual act with another who was less than fifteen years old at the time of the contact. The State addressed the victim’s relationship with Bates, where the offenses occurred, the sexual conduct Bates was being charged with, and the victim’s age.

[¶ 12] The district court did not err when it determined the factual basis was sufficient to support the guilty plea.

B

[¶13] Bates also claims the district court abused its discretion in determining his plea was knowingly and intelligently entered. Guilty pleas must be knowingly, intelligently, and voluntarily entered to be valid. Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Raulston, 2005 ND 212, ¶ 11, 707 N.W.2d 464; N.D.R.Crim.P. 11. “Defendants who voluntarily plead guilty waive the right to challenge nonjurisdictional defects occurring before entry of the guilty plea.” McMorrow v. State, 2003 ND 134, ¶ 5, 667 N.W.2d 577 (citing Eaton v. State, 2001 ND 97, ¶ 6, 626 N.W.2d 676).

[¶ 14] A guilty plea given upon the advice of counsel may only be attacked for the “voluntary and intelligent character of the guilty plea.” Id. “When determining the validity of a guilty plea, ‘[t]he longstanding test ... is “whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” ’ ” Ernst v. State, 2004 ND 152, ¶7, 683 N.W.2d 891 (quoting Houle v. State, 482 N.W.2d 24, 26 (N.D.1992) and Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)).

[¶ 15] Rule 11, N.D.R.Crim.P., provides an analytical framework for assessing whether the plea is entered into voluntarily and knowingly. Rule 11(b) requires the court to address the defendant personally to inform him of his rights and determine that he understands those rights. Id. Rule 11(b) also requires the courts to inform the defendant of the rights he is waiving by pleading guilty, the maximum possible penalty, any minimum mandatory penalties, and the court’s authority to order restitution. Id. The court must “address the defendant personally in open court ... and determine that the plea is voluntary and did not result from force, threats, or promises other than promises in a plea agreement. The court must also inquire whether the defendant’s .willingness to plead guilty results from discussion between the prosecuting attorney and the defendant or the defendant’s attorney.” Id. at 11(b)(2).

[¶ 16] Here, the district court complied with Rule 11. The court informed Bates of the allegations against him. The court inquired whether Bates understood the charges alleged in the amended information; whether Bates understood he would be required to register as a sex offender; whether he was threatened or forced into making a plea; whether he was promised anything by anyone to encourage him to enter the plea; whether he understood he could persist in his not guilty plea; whether he understood that, by pleading guilty, he waived his right to a jury trial, the right to confront witnesses and subpoena witnesses on his behalf, the right to remain silent, the right not to incriminate himself, and certain rights of appeal. Bates acknowledged, after consulting with his attorney, he was “convinced that a jury would be able to find [him] guilty[.]” The court also noted Bates had significant criminal experiences, he was aware of the consequences of proceeding to trial, he met with his attorneys over twenty times, he was articulate, and knew the scope of the evidence the State would present at trial. The district court was satisfied with the voluntariness of the plea when it was accepted, and again when Bates challenged the plea’s voluntariness in his motion to withdraw his guilty plea.

[¶ 17] The district court did not err in finding the guilty plea was voluntarily and intelligently entered.

IV

[¶ 18] Bates argues he did not receive effective assistance of counsel because his attorney failed to obtain a progress report from a private investigator. Bates also argues his counsel was ineffective because he failed to follow up with the investigator about another possible suspect for the crime. We conclude that, on direct appeal, Bates failed to establish he received ineffective assistance of counsel.

[¶ 19] A defendant claiming ineffective assistance must establish two elements: (1) counsel’s performance was deficient, and (2) counsel’s deficient performance prejudiced the defendant. State v. Palmer, 2002 ND 5, ¶ 11, 638 N.W.2d 18; Wilson v. State, 1999 ND 222, ¶ 8, 603 N.W.2d 47. To demonstrate prejudice, the defendant must establish a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different, and the defendant must specify how and where trial counsel was incompetent and the probable different result. Palmer, at ¶ 11. Normally, an ineffective assistance claim should be raised in a post-conviction proceeding, “so the parties can fully develop a record ... of counsel’s performance and its impact on the defendant’s claim.” State v. Bertram, 2006 ND 10, ¶ 39, 708 N.W.2d 913. In Bertram, at ¶ 39, we stated:

When a claim for ineffective assistance of counsel is argued on direct appeal, we review the record to decide if the assistance of counsel was plainly defective. [Palmer, 2002 ND 5, ¶ 12, 638 N.W.2d 18]. Unless the record affirmatively shows ineffectiveness of constitutional dimensions, the complaining party must show some evidence in the record to support the claim. Id. Representations and assertions of appellate counsel are not enough to establish a claim of ineffective assistance. Id. To successfully claim ineffective assistance of counsel, a defendant must establish counsel’s representation fell below an objective standard of reasonableness and the defendant was prejudiced by counsel’s deficient performance. Heckelsmiller v. State, 2004 ND 191, ¶ 3, 687 N.W.2d 454.

[¶ 20] Without the benefit of a fully-developed record, Bates’ claim fails under both prongs. Bates failed to show how his counsel’s performance was objectively deficient. Bates claims reasonable legal representation would have required counsel to contact the investigator. Here, however, we have no evidence on the record to determine whether Bates’ counsel contacted the investigator. Without more, Bates cannot overcome the strong presumption of the objective reasonableness of his attorney’s performance. See Bertram, 2006 ND 10, ¶ 39, 708 N.W.2d 913.

[¶ 21] Even assuming Bates met the first prong for sake of argument, he failed to show how his counsel’s performance prejudiced him, or the outcome would have been different but for the errors of counsel. Hill, 474 U.S. at 59, 106 S.Ct. 366; Johnson v. State, 2006 ND 122, ¶ 20, 714 N.W.2d 832; Palmer, 2002 ND 5, ¶ 11, 638 N.W.2d 18. To meet the “prejudice” prong, Bates must show that but for counsel’s failure to follow up with the investigator, he would not have pled guilty. Sambursky v. State, 2006 ND 223, ¶¶ 23-24, 723 N.W.2d 524 (citing Hill, at 52-60, 106 S.Ct. 366) (requiring defendant claiming ineffective assistance of counsel to allege he would not have pled guilty and would have insisted on going to trial but for counsel’s deficient performance). Bates did not make this allegation and the existing record does not establish this to be the case. See id.; see also Palmer, at ¶ 13.

■ [¶ 22] This record does not affirmatively show Bates’ counsel was ineffective on constitutional dimensions and Bates has not directed us to any evidence in the record to support his claim. Palmer, 2002 ND 5, ¶ 13, 638 N.W.2d 18. Although we conclude, for purposes of this appeal, that Bates’ ineffective assistance claim is merit-less, we do so without prejudice to Bates’ right to raise the issue in post-conviction proceedings. Id.

V

[¶23] After considering the issues as Bates raises them, we conclude the district court did not abuse its discretion in denying the motion to withdraw the guilty plea and Bates failed to establish he received ineffective assistance of counsel. Therefore, we affirm.

[¶ 24] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, DANIEL J. CROTHERS, and DALE V. SANDSTROM, JJ., concur.

      . An Alford plea is a type of plea that occurs when a defendant knowingly and voluntarily enters a guilty plea while maintaining his innocence. See North Carolina v. Alford, 400 U.S. 25, 38, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).