Bumgarner v. Nooth

The applicable standard as to whether or not counsel has provided a constitutionally adequate defense is whether counsel has exercised "reasonable professional skill and judgment," and that determination is made by the court. Accordingly, a lawyer's failure to present an unsettled question of law may be considered inadequate assistance of counsel.

Bumgarner was convicted in 2004 of two counts each of first-degree rape, first-degree sexual abuse, and first-degree kidnapping, and one count of third-degree assault. The trial court did not merge any of the offenses and imposed consecutive sentences, totaling 730 months. Bumgarner then filed a post-conviction appeal, in which he asserted that his trial counsel was constitutionally inadequate for not arguing to the sentencing court that the two guilty verdicts for each charge should have merged into single convictions of each. The post-conviction court agreed with Bumgarner and granted him relief on those grounds. The State then appealed the post-conviction court's decision, arguing that there was no basis to merge the rape, sexual abuse, and kidnapping convictions. The Court of Appeals held that, under the reasoning of State v. Parkins and State v. White, the two rape charges, the two sexual abuse charges, and the two kidnapping charges, all of which arose out of the same conduct, were correctly merged for sentencing. Also, the Court held that Bumgarner's trial counsel was constitutionally inadequate for failing to argue the merger issue to the sentencing court because it was an unsettled area of law. Affirmed.