Froistad v. State

• Decision Date: 18 March 2002
• Docket Number: No. 20010111.,20010111.
• Citation: 2002 ND 52,641 N.W.2d 86
• Parties: Larry FROISTAD, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
• Court: North Dakota Supreme Court

641 N.W.2d 86

2002 ND 52

Larry FROISTAD, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.

No. 20010111.

Supreme Court of North Dakota.

March 18, 2002.

Monte L. Rogneby, Vogel Law Firm, Bismarck, N.D., for petitioner and appellant.

Steven J. Wild, State's Attorney, Bowman, N.D., for respondent and appellee.

SANDSTROM, Justice.

[¶ 1] Larry Froistad appealed from a Southwest Judicial District Court order denying his petition for post-conviction relief. We affirm, concluding the district court did not err in denying Froistad's petition for post-conviction relief.

I

[¶ 2] On August 7, 1998, Froistad pled guilty to murdering his daughter. He filed a motion for post-conviction relief on June 14, 2000. Froistad argued he should be allowed to withdraw his guilty plea for several reasons: (1) the court failed to honor his request to withdraw his guilty plea, (2) the court failed to establish a factual basis for his guilty plea, (3) the court failed to ensure his plea was voluntary, (4) the court violated his right to be present during the proceedings, and (5) he received ineffective assistance of counsel. His petition was denied after a post-conviction relief hearing held January 31 and February 1, 2001.

[¶ 3] The district court had jurisdiction under N.D.C.C. §§ 27-05-06 and 29-32.1-03. This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 29-32.1-14.

II

[¶ 4] An attempt to withdraw a guilty plea is treated as a motion to withdraw under N.D.R.Crim.P. 32(d). Abdi v. State, 2000 ND 64, ¶ 10, 608 N.W.2d 292 (citing State v. Hendrick, 543 N.W.2d 217, 218 (N.D.1996)); State v. Abdullahi, 2000 ND 39, ¶ 7, 607 N.W.2d 561. Rule 32(d), N.D.R.Crim.P., provides:

(d) Plea Withdrawal.

(1) The court shall allow the defendant to withdraw a plea of guilty whenever the defendant, on a timely motion for withdrawal, proves withdrawal is necessary to correct a manifest injustice.

(2) A motion for withdrawal is timely if made with due diligence, considering the nature of the allegations, and is not necessarily barred because made subsequent to judgment or sentence.

(3) In the absence of a showing that withdrawal is necessary to correct a manifest injustice, a defendant may not withdraw a plea of guilty as a matter of right once the plea has been accepted by the court. Before sentence, the court in its discretion may allow the defendant to withdraw a plea for any fair and just reason unless the prosecution has been substantially prejudiced by reliance upon the defendant's plea.

[¶ 5] The standard for withdrawal differs depending upon when the motion to withdraw is made. See, e.g., State v. Klein, 1997 ND 25, ¶¶ 12-16, 560 N.W.2d 198.

"This distinction rests upon practical considerations important to the proper administration of justice. Before sentencing, the inconvenience to court and prosecution resulting from a change of plea is ordinarily slight as compared with the public interests in protecting the right of the accused to trial by jury."

State v. Millner, 409 N.W.2d 642, 644 (N.D.1987) (quoting Kadwell v. United States, 315 F.2d 667, 670 (9th Cir.1963)).

[¶ 6] A defendant has a right to withdraw a guilty plea before it is accepted by the court. State v. Klein, 1997 ND 25, ¶ 12, 560 N.W.2d 198; State v. Welch, 356 N.W.2d 147, 149 (N.D.1984). Klein also held, when a defendant's guilty plea is part of a plea agreement, the guilty plea cannot be accepted until the plea agreement is accepted. Klein, at ¶ 19. Klein sought to follow federal case law regarding the acceptance of guilty pleas as part of plea agreements, but the case Klein followed is no longer good law. Klein relies upon United States v. Cordova-Perez, a Ninth Circuit case, for the proposition a "`plea agreement and the plea are "inextricably bound up together" such that deferment of the decision whether to accept the plea agreement carried with it postponement of the decision whether to accept the plea.'" Klein, at ¶ 19 (quoting United States v. Cordova-Perez, 65 F.3d 1552, 1556 (9th Cir.1995) (quoting United States v. Sanchez, 609 F.2d 761, 762 (5th Cir.1980))). United States v. Cordova-Perez was overruled by the United States Supreme Court in United States v. Hyde, 520 U.S. 670, 117 S.Ct. 1630, 137 L.Ed.2d 935 (1997). The Court, in Hyde, held that when a defendant has pled guilty, pursuant to a plea agreement, and the district court accepts the plea but defers decision on whether to accept the plea agreement, a "defendant may not withdraw his plea unless he shows a `fair and just reason' under Rule 32(e)." Id. at 671, 117 S.Ct. 1630. "The Court ultimately held that when the district court has accepted a defendant's plea but deferred accepting the plea agreement, the plea may not be withdrawn unless the defendant provides a `fair and just reason' under Rule 32(e)." United States v. Grant, 117 F.3d 788, 791 (5th Cir.1997) (summary of the Hyde holding). The portion of Klein relying on Cordova-Perez is overruled, and we accept the standard set forth in Hyde. Id.

[¶ 7] If a district court rejects a plea agreement after a defendant has pled guilty, the court shall "afford the defendant the opportunity to then withdraw the plea." N.D.R.Crim.P. 11(d)(4).

[¶ 8] "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." Klein, 1997 ND 25, ¶ 13,560 N.W.2d 198; see also State v. Sisson, 1997 ND 158, ¶ 14, 567 N.W.2d 839.

[¶ 9] "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.'" Klein, 1997 ND 25, ¶ 15, 560 N.W.2d 198; see also Abdi v. State, 2000 ND 64, ¶ 10, 608 N.W.2d 292. The finding of whether a manifest injustice exists, which would necessitate the withdrawal of a guilty plea, rests within the court's discretion and will not be reversed on appeal except for an abuse of discretion. Abdi, 2000 ND 64, ¶ 10, 608 N.W.2d 292. "An abuse of discretion under N.D.R.Crim.P. 32(d) occurs when the court's legal discretion is not exercised in the interests of justice." Abdi, at ¶ 10 (citing State v. Dalman, 520 N.W.2d 860, 862 (N.D.1994)).

III

[¶ 10] A defendant's oral statement may be treated as a motion to withdraw a guilty plea. State v. Farrell, 2000 ND 26, ¶ 7, 606 N.W.2d 524. In Farrell, the district court refused to accept the sentence recommendation the State and Farrell had agreed upon. Id. at ¶ 4. After he was given a lengthier sentence than recommended, Farrell specifically asked, "Well then I have a right to change my plea then also, don't I?" Id. at ¶ 5. The district court responded he did not have a right to change his plea and proceeded with the sentencing hearing. Id. at ¶ 5. The case was remanded to the district court to permit Farrell to withdraw his guilty plea because the district court did not substantially comply with the requirements of N.D.R.Crim.P. 11(c). Id. at ¶¶ 21-22.

[¶ 11] Other jurisdictions have treated oral statements at sentencing hearings as motions to withdraw guilty pleas. See Connecticut v. Johnson, 253 Conn. 1, 751 A.2d 298, 329 (2000) ("Your honor, I would just like to say that my plea of guilty was not voluntary and ... was not made with my full understanding and I ask that the court ... permit me to withdraw my plea."); United States v. Casey, 951 F.2d 892, 893 (8th Cir.1991) ("Well, quite honestly, Judge, because of the prosecution's intimidation, coercion, threats of scandal and slander, and almost downright blackmail, I think, under any ordinary circumstances, one might consider a plea of guilty."); United States v. Turner, 898 F.2d 705, 713 (9th Cir.1990) ("I feel that I am being blamed for a lot of stuff I didn't do.").

[¶ 12] Froistad entered his guilty plea on August 7, 1998. The district court conducted a Rule 11 inquiry and approved the plea agreement in all respects, subject to a review of the presentence report. In the two months between his plea of guilty and his sentencing hearing, Froistad claims he made six attempts to withdraw his guilty plea. Of the six attempts, only two were directed to the district court and could possibly be considered attempts to withdraw his guilty plea. In his October 8, 1998, response to the presentence investigation report, Froistad wrote, "With all these facts in consideration, it seems clear that the defendant should be afforded every opportunity to be fairly represented in court. At the very least, he should be permitted to withdraw the guilty plea, dismiss the San Diego attorneys and be appointed an attorney by the court."

[¶ 13] At his sentencing hearing, also held on October 8, 1998, the district court provided Froistad with several opportunities to request a withdrawal of his guilty plea.

THE COURT: Very well, Mr. Froistad, you have the right to address the Court and submit such comments as you choose. You may do so at this time. You may remain seated, if you are more comfortable, or stand, whatever you choose.

MR. FROISTAD: Your Honor, I guess the only thing I really have to say is that I'm not innocent of everything but I am innocent of murder. The physical evidence says so. If I'd had some decent representation, I wouldn't be here now. I'm sorry for what I did do. I can't take it back. That's probably a good way to end.

THE COURT: You may take your time and submit any additional comments as you wish. If you'd like to take a moment to make sure that you've collected all of your thoughts. Do you wish to add anything else, Mr. Froistad?

MR. FROISTAD: No.

At this point, the district court "accepted the negotiated plea agreement in all respects."

[¶ 14] Again before the district court imposed Froistad's sentence, it gave him an opportunity to speak.

THE COURT: Alright. I am prepared now to impose

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