Wilson v. State

• Decision Date: 18 July 2013
• Docket Number: Nos. 20120425-20120428.,s. 20120425-20120428.
• Citation: 833 N.W.2d 492,2013 ND 124
• Parties: Scott Robert WILSON, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
• Court: North Dakota Supreme Court

833 N.W.2d 492

2013 ND 124

Scott Robert WILSON, Petitioner and Appellant

v.STATE of North Dakota, Respondent and Appellee.

Nos. 20120425-20120428.

Supreme Court of North Dakota.

July 18, 2013.

Patrick S. Rosenquist, Grand Forks, N.D., for petitioner and appellant.

Jessica J. Binder, State's Attorney, Stanton, N.D., for respondent and appellee.

SANDSTROM, Justice.

[¶ 1] Scott Wilson appeals a district court judgment denying his petition for post-conviction relief. Concluding the district court's findings are not clearly erroneous, we affirm.

I

[¶ 2] Wilson was charged with four counts of issuing a check with insufficient funds or credit on July 27, 2010. Wilson requested court-appointed counsel, which the district court denied, finding he was not indigent. A trial was set for January 27, 2011, but Wilson later requested a change of plea, and the trial was rescheduled for February 15. The court instructed Wilson he could re-apply for court-appointed counsel or retain a private attorney.

[¶ 3] Before the jury trial began, Wilson told the court he had tried to retain an attorney three weeks earlier, calling “five or six of them,” and had offered to pay five hundred to a thousand dollars above the retainer, but each attorney declined. Wilson provided no evidence other than his statement that he had made efforts to retain an attorney. He stated he had again applied for court-appointed counsel, but he said his application was denied because he was not indigent. This application and denial do not appear in the record before us. The court told Wilson:

Here's the problem with the Court. We were set for a jury trial already once in this case on January 24th.... You were not ready to go at that point and indicated you would be doing a change of plea. Then you changed your mind, which you have every right to do, and you wanted your jury trial reinstated. So approximately three weeks later we now have that jury trial. This has been charged out since August. So you have known since August that you have been facing these charges, yet you haven't done anything about it. The fact that you waited until the last minute and couldn't get someone to handle it, unfortunately is not something the Court can look at.

Wilson told the court he understood what a pretrial hearing is. Representing himself, Wilson questioned a potential juror about her relationship with his wife, and the court removed that juror for cause. When asked by the court whether he needed to review the jury instructions, Wilson replied, “I mean, it's pretty simple—or not simple, but black and white and to the point.” The court explained to Wilson when the instructions would be read, and educated him about his choosing whether or not to testify. Wilson questioned witnesses and gave a closing statement. Afterthe trial, he told the court he thought a pre-sentence investigation would be appropriate before his sentencing hearing.

[¶ 4] On February 15, 2011, a jury found Wilson guilty of all counts of issuing checks without sufficient funds. After a pre-sentence investigation, the district court sentenced him to two consecutive five-year terms of imprisonment with two years suspended and two consecutive terms of 30 days in jail with 20 days suspended and required he pay restitution. Wilson was not advised of his right to appeal at the time of sentencing. Wilson appealed to this Court, which dismissed his appeal as untimely. On May 24, 2012, representing himself, Wilson petitioned for post-conviction relief, alleging he should have been appointed counsel. Wilson again requested court-appointed counsel, which the district court granted. Through his court-appointed counsel, Wilson filed a supplement to his application, alleging the district court erred in denying him counsel at all stages of the proceeding in violation of the Sixth Amendment to the United States Constitution. He also argued that, under Peguero v. United States, 526 U.S. 23, 119 S.Ct. 961, 143 L.Ed.2d 18 (1999), the district court had a duty to inform him of his right to appeal and his sentence was cruel and unusual.

[¶ 5] At his post-conviction hearing, Wilson testified he requested court-appointed counsel, but the court, finding he was not indigent, had denied his request. Wilson continued to represent himself and claimed to have made efforts to hire private counsel. He testified he contacted three attorneys, all of whom declined because of the limited time available before trial. He testified that he said many times he did not know what he was doing and that he never once said he waived his right to counsel. He testified that after he reviewed the transcript of his sentencing hearing, he was not informed of his right to appeal. Wilson applied for court-appointed counsel for his first appeal to this Court, and the district court denied his request.

[¶ 6] The district court denied Wilson's application for post-conviction relief. The court found, under Peguero, the trial court's failure to inform Wilson of his right to appeal was harmless error. The court found Wilson knew he was not entitled to court-appointed counsel, because he was not indigent and he showed no evidence other than his testimony that he had tried to retain counsel. The court concluded Wilson failed to take responsibility for his situation, and his conduct at trial constituted the functional equivalent of a voluntary waiver of his right to counsel. Finally, the court found Wilson's sentence was lengthy, but not grossly disproportionate, because of Wilson's substantial criminal history.

[¶ 7] Wilson argues he was prejudiced because the trial court failed to notify him of his right to appeal and the district court erred in concluding he waived his right to counsel.

[¶ 8] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 29–32.1–03. Wilson's appeal is timely under N.D.R.App.P. 4(d). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 29–32.1–14.

II

A

[¶ 9] “Post-conviction relief proceedings are civil in nature and are governed by the North Dakota Rules of Civil Procedure.” Waslaski v. State, 2013 ND 56, ¶ 7, 828 N.W.2d 787. The district court's findings of fact in a post-conviction proceeding will not be disturbed on appeal unless they are clearly erroneous under N.D.R.Civ.P. 52(a). Odom v. State, 2010 ND 65, ¶ 10, 780 N.W.2d 666. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if it is not supported by any evidence, or if, although there is some evidence to support the finding, a reviewing court is left with a definite and firm conviction a mistake has been made. Sambursky v. State, 2008 ND 133, ¶ 7, 751 N.W.2d 247.

[¶ 10] Wilson argues he was prejudiced when the trial court failed to notify him of his right to appeal under N.D.R.Crim.P. 32. Rule 32(a)(3) provides:

After imposing sentence in a case that has gone to trial, the court must advise the defendant of the defendant's right to appeal and of the right of a person who is unable to pay the costs of an appeal to apply for appointment of counsel for purposes of appeal. The court is under no duty to advise the defendant of any right of appeal when sentence is imposed following a plea of guilty.

Although Wilson argued in his post-conviction relief hearing that Peguero should be applied, here he argues the district court should not have applied it but should have applied the standard this Court set in State v. Carmody, 243 N.W.2d 348 (N.D.1976), which he did not argue to the district court.

[¶ 11] In Carmody, decided decades before Peguero, this Court held, “The failure to advise a convicted defendant of his right to appeal requires remand for resentencing and reinstatement of the right of appeal.” 243 N.W.2d at 350. In Peguero, the United States Supreme Court held that “a court's failure to give a defendant advice required by the Federal Rules is a sufficient basis for collateral relief only when the defendant is prejudiced by the court's error.” 526 U.S. at 27, 119 S.Ct. 961. The State argues we should adopt the Peguero standard.

[¶ 12] In Carmody, this Court looked to the explanatory note of N.D.R.Crim.P. 37, which provided, “The provision in Rule 32 which requires that the defendant be advised of his right to appeal ... is clearly a necessary part of a valid sentence and until it is given, the 10–day period for taking an appeal cannot begin to run because there is no valid sentence in existence.” 243 N.W.2d at 350.See also Paige v. United States, 443 F.2d 781 (4th Cir.1971); United States v. Benthien, 434 F.2d 1031 (1st Cir.1970); Nance v. United States, 422 F.2d 590 (7th Cir.1970); and United States v. Smith, 387 F.2d 268 (6th Cir.1967).

[¶ 13] The Eighth Circuit Court of Appeals, in United States v. Drummond, disagreed with the four circuit court cases cited in Carmody and above and concluded a Rule 52(a), Fed.R.Crim.P., harmless error analysis should instead be used:

We believe that disturbing the finality of a judgment by reinstating a defendant's right to appeal entails similarly high social costs that are acceptable only when a defendant has actually been deprived of the right to appeal.... [W]e decline to adopt the per se approach to Rule 32(a)(2) violations and instead hold that Rule 52(a) requires the reviewing court to determine whether the Rule 32(a)(2) violation actually prejudiced the defendant's right to appeal.

903 F.2d 1171, 1174 (1990). In Peguero, the United States Supreme Court wrote to the importance of Rule 32:

The requirement that the district court inform a defendant of his right to appeal serves important functions. It will often be the case that, as soon as sentence is imposed, the defendant will be taken into custody and transported elsewhere, making it difficult for the defendant to maintain contact with his attorney.... In addition, if the defendant is advised of the right by the judge who imposes sentence, the defendant will realize that the...