DeCoteau v. State, s. 920280
| Decision Date | 10 August 1993 |
| Docket Number | 920316,Nos. 920280,s. 920280 |
| Citation | 504 N.W.2d 552 |
| Parties | Alvin R. DeCOTEAU, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee. Civ. |
| Court | North Dakota Supreme Court |
Alvin R. DeCoteau, pro se.
Paul A. Temanson (argued), Minot, for petitioner and appellant.
Timothy C. Wilhelm (argued), Asst. State's Atty., Minot, for respondent and appellee.
Alvin DeCoteau appeals the summary denial of post-conviction relief from consecutive maximum sentences of five years each on his plea agreement of guilty to two reduced felony charges. We affirm.
For December 1988 acts in Minot, the State charged DeCoteau with criminal mischief (a class A misdemeanor), theft of property (a class C felony), and robbery (a class B felony). At his February 1989 arraignment, the trial court informed DeCoteau and his attorney that convictions on "these offenses can be treated separately," so that he could be sentenced "for each individual one, consecutively, one at a time, so when one is finished the other one starts; or concurrently, so they are all lumped together." DeCoteau pled not guilty. On March 22, the prosecutor gave notice of his intent to seek to classify DeCoteau as a special dangerous offender for sentencing, if convicted. If convicted on all three charges, DeCoteau faced a potential sentence of sixteen consecutive years. See NDCC 12.1-32-01(3), (4), and (5). If found to be a special dangerous offender under NDCC 12.1-32-09, DeCoteau potentially faced twenty more years, for a total sentence of thirty-six consecutive years.
The prosecutor, DeCoteau, and his attorney negotiated a plea agreement. A court reporter was present at the April 5, 1989 negotiations, and prepared a 20-page transcript. DeCoteau's attorney explained a possible reduction of the charges in exchange for DeCoteau's guilty plea:
[O]n March 30, 1989, I received a letter--a short time after that date ... in which discussion was made as to a possible recommendation of the Ward County State's Attorney's Office conditioned upon a plea of guilty to the offense of Aggravated Assault and Larceny of a Vehicle, in which the State of North Dakota would make a recommendation to the Court of five years on each particular charge to be served consecutively.
This would lock the Court in upon dismissal of the Robbery charge and the special dangerous offender to a maximum sentence, irrespective of the Court adopting the State's Attorney's recommendations, to a total of ten years in prison....
Further extending that, the Court could give a sentence of anywhere from one year in prison, all the way up to ten years in the North Dakota State Prison. The Court could also adopt a finding or a sentence that the term would be served concurrently. In other words, both sentences would be served at the same time which would limit the Court's, the imprisonment to 5 years.
(emphases added). During discussion, the prosecutor said to DeCoteau:
Upon acceptance of the plea by the Court, the State will recommend five years on each of the "C" felonies plead to, and that we would recommend that these sentences run concurrently.
(emphasis added). Completing his statement, however, the prosecutor added:
And at that point the Court, it is my understanding, would have to accept the plea and then can sentence from anywhere from the minimum to the maximum of five years on each charge.
(emphasis added). Later, DeCoteau inquired:
Another question I have for you is, ... you were saying something about that the Court can run the sentence concurrent after we go through this hearing Wednesday. And you also said he could get me ten years, like, mandatory ten years, is that what you were telling me?
(emphases added). After discussion, DeCoteau stated his understanding:
For my understanding, we are going to go to Court. This is what I got. We are going to go to Court and they are going to present this evidence to us, or this evidence the State's got, right? And to determine from there, the Judge is going to take it in his hands and feel what his recommendation is right there or he's going to send me to jail, whatever he feels?
(emphases added). This context clearly shows that DeCoteau agreed to plead guilty in exchange for reduced charges that had the effect of "capping" his maximum sentence at ten consecutive years, without any specific agreement by the prosecution to recommend a particular sentence.
A week later, DeCoteau appeared before the trial court, changed his plea, and was sentenced. The prosecutor reduced the charges to two class C felonies of theft of a vehicle and aggravated assault, dismissed the misdemeanor and the B felony of robbery, and withdrew the special-dangerous-offender notice. The effect reduced the potential maximum consecutive sentence from thirty-six years to ten years. For sentencing, the prosecutor recommended "five years on each of the counts plead to and ... that those sentences be run consecutively." The trial court asked DeCoteau whether he understood the prosecutor's recommendation. DeCoteau declared that he did. DeCoteau then pled guilty to each of the two reduced charges.
The factual bases for the charges were developed on the record through two witnesses. The victim, a virtual stranger to DeCoteau, testified that he grabbed her when she reached her car while leaving a Minot nightspot alone, beat her, and choked her. DeCoteau's vicious attack left her with a broken jaw and a broken cheekbone; her skull "was broke in three places, and on the one side my bone was caved all the way in;" and she had "six fractured teeth that are shattered." The victim was senseless for a day. Because the victim "was so swollen from all the bruises," extensive corrective surgery was postponed for three days. Months later, the victim still suffered from the injuries.
Detective Debbie Ness testified about identifying DeCoteau as the victim's assailant, and about recovery of someone else's car that DeCoteau stole soon after the assault. When arrested, DeCoteau was driving the stolen car with "blood on his clothing, on himself, inside the car." An item from the victim's purse, with her name on it, was found on DeCoteau at his arrest. Other identifiable items from the victim's purse, without her name on them, were also recovered from DeCoteau. The court accepted the prosecutor's recommendation and sentenced DeCoteau to two consecutive five-year terms of imprisonment.
Without an attorney, DeCoteau sought a writ of habeas corpus in September 1989, arguing that the plea agreement required the five-year terms to be concurrent. The trial court denied the writ. Again on his own, DeCoteau applied for post-conviction relief in December 1989. Arguing that there was no genuine issue of material fact, the State moved for summary disposition. The trial court summarily denied DeCoteau's application.
DeCoteau appealed, with the assistance of counsel, arguing that he was not informed of his right to apply for court-appointed counsel in seeking post-conviction relief. In State v. DeCoteau, 464 N.W.2d 605, 606-07 (N.D.1990), we held that, under NDCC 29-32.1-03(6), "failure of the clerk to notify DeCoteau that assistance of counsel may be available and to inform him of the procedure for obtaining counsel affected DeCoteau's statutory right to such information and constitutes reversible error."
On remand, the trial court appointed counsel to assist DeCoteau. His counsel first obtained an order that gave DeCoteau credit for 109 days that he spent in custody before sentencing. See NDCC 12.1-32-02(2). Then, arguing breach of the plea agreement, ineffective assistance of counsel, and denial of due process, and relying entirely on the transcripts of the April 5 plea negotiations and the April 12 change of plea and sentencing, DeCoteau renewed his application for post-conviction relief to "enforc[e] the plea agreement" or to conduct a resentencing "where arguments could be made ... for a concurrent sentencing."
In a response on March 11, 1992, the prosecutor moved for summary judgment. On May 28, 1992, without tendering any additional evidence, DeCoteau's counsel advised the trial court "that this matter has been submitted to the Court for its decision."
In September 1992, after examining the transcripts, the trial court reasoned:
By any reasonable objective standard, the record quite clearly indicates that DeCoteau knew that, upon entering pleas of guilty to the [reduced] charges against him, [the sentencing judge] could order him imprisoned for ten years. That is exactly what happened.
The trial court summarily denied the application.
DeCoteau appealed on his own initiative, and new counsel was appointed to assist him. Because the notice of appeal was untimely filed, we remanded to the trial court to determine whether there was excusable neglect that extended the time for appeal. DeCoteau v. State, 499 N.W.2d 894 (N.D.1993). The trial court extended the time, and we now have jurisdiction on appeal.
We review an appeal from a summary denial of post-conviction relief like we review an appeal from a summary judgment. State v. Wilson, 466 N.W.2d 101, 103 (N.D.1991). The Uniform Post-Conviction Procedure Act authorizes summary disposition only if "there is no genuine issue as to any material fact...
To continue reading
Request your trial
-
Owens v. State
...and is entitled to an evidentiary hearing if a reasonable inference raises a genuine issue of material fact. See DeCoteau v. State, 504 N.W.2d 552, 556 (N.D.1993). However, once the moving party has initially shown there is no genuine issue of material fact, the burden shifts to the opposin......
-
State v. Lium
...Bay v. State, 2003 ND 183, ¶ 12, 672 N.W.2d 270 (same); Peltier v. State, 2003 ND 27, ¶¶ 9-12, 657 N.W.2d 238 (same); DeCoteau v. State, 504 N.W.2d 552, 558 n. 2 (N.D.1993) (same); State v. Thompson, 504 N.W.2d 315, 319 (N.D.1993) [¶ 12] In DeCoteau, 504 N.W.2d at 558 n. 2, we recognized th......
-
Peltier v. State
...that does not comply with a promise of a plea agreement is illegal, entitling a defendant to post-conviction relief. DeCoteau v. State, 504 N.W.2d 552, 556 (N.D.1993). [¶ 8] Peltier relies on N.D.C.C. § 12.1-32-07(6), which provides in If the defendant violates a condition of probation at a......
-
State v. Kovalevich
... ... Nace, 371 N.W.2d 129, 131 n.3 (N.D. 1985)); see also ... State v. Johnson, 571 N.W.2d 372, 374-75 (N.D. 1997) ... (holding second Rule 35(a) motion to correct illegal sentence ... was barred by misuse of process provision of the Uniform ... Postconviction Procedure Act); DeCoteau v. State, ... 504 N.W.2d 552, 556 (N.D. 1993) (stating Nace's ... "holding about challenging an illegal sentence by ... post-conviction proceedings is still sound") ... [¶11] ... While these post-conviction remedies "co-exist for ... similar purposes" and may be used ... ...