City of Grand Forks v. Mata

• Decision Date: 19 May 1994
• Docket Number: Cr. N
• Citation: 517 N.W.2d 626
• Parties: CITY OF GRAND FORKS, Plaintiff and Appellee, v. Juan M. MATA, a/k/a John M. Mata, Defendant and Appellant. o. 930302.
• Court: North Dakota Supreme Court

Page 626

517 N.W.2d 626

CITY OF GRAND FORKS, Plaintiff and Appellee, v. Juan M. MATA, a/k/a John M. Mata, Defendant and Appellant.

Cr. No. 930302.

Supreme Court of North Dakota.

May 19, 1994.

Gary E. Euren (argued), Asst. City Atty., Grand Forks, for plaintiff and appellee.

Faron E. Terry (argued) of Omdahl & Terry, Grand Forks, for defendant and appellant.

NEUMANN, Justice.

Juan Mata appeals from an order denying his motion for correction of sentence under N.D.R.Crim.P. 35. We affirm.

On June 16, 1992, Mata was arrested and charged with being in actual physical control of a vehicle while under the influence of alcohol in violation of the Grand Forks City Code of 1987 [G.F.C.C.]. He refused to submit to the chemical test for blood-alcohol content required by N.D.C.C. Sec. 39-20-01. Mata pled guilty to the actual physical control charge in municipal court and, without the assistance of counsel, attempted to avoid administrative revocation of his license for refusing the test by complying with N.D.C.C. Sec. 39-20-04(2). See generally Fetzer v. Director, Dept. of Transportation, 474 N.W.2d 71, 72 (N.D.1991). The Department of Transportation, concluding that Mata had not complied with the statute, refused to change the one-year revocation of his license to a 91-day suspension. See N.D.C.C. Sec. 39-06.1-10(7)(a).

Mata obtained counsel and moved to withdraw his guilty plea to the actual physical control charge. The court allowed Mata to withdraw the guilty plea, and upon the prosecutor's motion, dismissed the actual physical control charge against Mata with prejudice. The dismissal of the criminal charge did not affect administrative revocation of Mata's license. See, e.g., Asbridge v. North Dakota State Highway Commissioner, 291 N.W.2d 739, 750 (N.D.1980).

On November 22, 1992, a Grand Forks police officer stopped Mata because his vehicle's taillight was not functioning. The officer discovered that Mata's license was revoked and issued him a Uniform Summons and Complaint citation for driving while his license was revoked in violation of G.F.C.C. Sec. 8-0204. Mata requested a jury trial and the case was transferred to county court.

Mata subsequently waived a jury trial and requested a bench trial. Mata's attorney argued that Mata's due process rights were violated because he was not afforded an administrative hearing on his license revocation. However, Mata admitted to driving when he knew his license was revoked. The trial court found Mata guilty. Immediately afterward, the trial court said it intended to impose the mandatory minimum four-day jail sentence required by N.D.C.C. Sec. 39-06-42(2) ["If the ... revocation was imposed for violation of section 39-08-01 or equivalent ordinance or was governed by ... chapter 39-20, the sentence must be at least four consecutive days' imprisonment and such fine as the court deems proper."]. Mata's counsel argued that the penalty under the ordinance he was charged with violating, G.F.C.C. Sec. 8-0204, is only a fine of $500 or less, and that, under City of Fargo v. Little Brown Jug, 468 N.W.2d 392 (N.D.1991), only the less severe city penalty is permitted. The trial court determined it had "no alternative ... but to impose the mandatory four days in jail." The court sentenced Mata to serve 10 days in jail with six days suspended, and to pay a $100 fine and a $75 administrative fee.

Mata then moved to correct his sentence under N.D.R.Crim.P. 35. Mata argued that G.F.C.C. Sec. 8-0204 does not allow for imposition of a jail term, and that, if he had known he was "charged" under state law, he would have argued that a mandatory minimum four-day jail sentence could not be imposed under State v. Orr, 375 N.W.2d 171 (N.D.1985), because he was not represented by counsel at the time his license was administratively revoked. The trial court denied the motion, and Mata appealed.

I

Mata asserts that the trial court erred in sentencing him to serve four days in jail. We disagree.

Driving while a person's license is revoked is proscribed by G.F.C.C. Sec. 8-0204:

"It shall be unlawful for any person whose operator's license is suspended or revoked to operate a motor vehicle on any street, alley, avenue, park road, or public place in the City of Grand Forks; and upon conviction thereof, any such person shall be punished by a fine of not more than five hundred dollars ($500.00)."

Under G.F.C.C. Sec. 8-1601(1)(D), driving while a license is revoked in violation of Sec. 8-0204 is classified as a "Criminal offense[ ]." Disposition of criminal offenses is governed by G.F.C.C. Sec. 8-1602:

"Disposition of those traffic offenses designated herein as criminal will be in accordance with the statutory provisions contained in the North Dakota Century Code as amended, and as specifically provided in Chapter 4-18 thereof relating to municipal judges."

Mata does not assert on appeal that G.F.C.C. Sec. 8-0204 is a special provision that should govern over the general penalty provision of G.F.C.C. Sec. 8-1602 in case of irreconcilable conflict, thereby precluding imposition of a jail sentence in this case. See N.D.C.C. Sec. 1-02-07. Rather, Mata's argument is premised on an alleged lack of notice. He complains that he received no notice that he might be facing a mandatory minimum four-day jail sentence for driving while his license was revoked because the traffic citation referenced only G.F.C.C. Sec. 8-0204, which imposes a fine of not more than $500. The citation contains no reference to G.F.C.C. Sec. 8-1602, which incorporates into the city code the penalties provided under the North Dakota Century Code. According to Mata, imposition of the jail sentence violates his sixth amendment right "to be informed of the nature and cause of the accusation," as well as the protections afforded by N.D.R.Crim.P. 7(c).

The charging document in this case, the traffic citation, is the equivalent of a criminal information. State v. Medearis, 165 N.W.2d 688, 692 (N.D.1969). To satisfy sixth amendment standards, a criminal information is sufficient if it is specific enough to advise the defendant of the charge against him, to enable him to prepare for trial, and to plead the result in bar of a subsequent prosecution for the same offense. Russell v. United States, 369 U.S. 749, 763-764, 82 S.Ct. 1038, 1047, 8 L.Ed.2d 240 (1962); State v. Niska, 380 N.W.2d 646, 648 (N.D.1986); State v. Lind, 322 N.W.2d 826, 844 (N.D.1982). The provisions of N.D.R.Crim.P. 7(c) are intended to implement the sixth amendment notice requirement. Explanatory Note to N.D.R.Crim.P. 7. The information must contain a plain, concise, and definite written statement of the essential elements of the offense. City of Minot v. Bjelland, 452 N.W.2d 348, 350 (N.D.1990). In considering the sufficiency of a criminal information, technicalities have been abolished, and it is only necessary to plead an offense in its usually designated name in plain, ordinary language. City of Wahpeton v. Desjarlais, 458 N.W.2d 330, 333 (N.D.1990). Mere defects, inaccuracies, or omissions in an information do not affect the subsequent proceedings, unless as a result, no offense is charged. Desjarlais. As N.D.R.Crim.P. 7(c) explains:

"The indictment or information must state for each count the official or customary citation of the statute, rule, regulation, or other provision of law which the defendant is alleged to have violated. Error in the citation or its omission is not ground for dismissal of the indictment or information or for reversal of a conviction if the error or omission did not prejudicially mislead the defendant."

The traffic citation listed "Driving while under revocation" as the offense, the day, date, and time of the violation, and the street and city where the offense occurred. G.F.C.C. Sec. 8-0204 was listed as the provision violated. We believe that the citation was sufficiently specific to advise Mata of the charge against him, even though it did not refer to the penalty provision, G.F.C.C. Sec. 8-1602.

Although it has been suggested that, as a matter of good practice, an information should contain a reference to the penalty section of a statute, there is no absolute requirement to this effect. 1 Wright, Federal Practice and Procedure: Criminal 2d Sec. 124 (1982), and cases cited therein. A prior conviction that enhances a sentence, but not the seriousness of the offense, is not regarded as an element of an offense. City of Fargo v. Cossette, 512 N.W.2d 459, 462 (N.D.1994). Thus, penalty provisions which permit enhanced sentencing for certain crimes do not add an element to an offense and need not be directly charged in an information. 8 Moore's Federal Practice p 7.04 (2d ed. 1994), and cases cited therein. But compare N.D.R.Crim.P. 11(b)(2) [court may not accept guilty plea without personally informing defendant of any mandatory minimum punishment provided by statute defining offense]; State v. Schweitzer, 510 N.W.2d 612 (N.D.1994); State v. Schumacher, 452 N.W.2d 345 (N.D.1990).

Here, N.D.C.C. Sec. 39-06-42(2) does not enhance a sentence or an offense; rather, the statute merely provides a minimum sentence for a particular type of driving-while-under-revocation conviction. City of Fargo v. Bommersbach, 511 N.W.2d 563, 565 (N.D.1994). Therefore, no sixth amendment violation occurred in this case by failing to list the penalty provision in the traffic citation.

Mata asserts that Rule 7(c) was violated because he was prejudicially misled by the traffic citation. He also relies on State v. Gahner, 413 N.W.2d 359, 362 (N.D.1987), in which we recognized that " 'a defendant must receive reasonable notice and an opportunity to be heard' even as to a sentence-enhancing" condition [quoting Oyler v. Boles, 368 U.S. 448, 452, 82 S.Ct. 501, 503, 7 L.Ed.2d 446 (1962) ]. However, even if we treat Sec. 39-06-42(2) as enhancing a sentence [but see Bommersbach ], we believe Mata received reasonable notice and an opportunity to be heard and was...