Hoffarth v. State, No. 930307

• Court: United States State Supreme Court of North Dakota
• Writing for the Court: SANDSTROM; VANDE WALLE
• Citation: 515 N.W.2d 146
• Parties: Robert HOFFARTH, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee. Civ.
• Docket Number: No. 930307
• Decision Date: 20 April 1994

Page 146

515 N.W.2d 146 Robert HOFFARTH, Petitioner and Appellant,
v.
STATE of North Dakota, Respondent and Appellee. Civ. No. 930307. Supreme Court of North Dakota. April 20, 1994.

Page 148

Benjamin C. Pulkrabek, Mandan, for petitioner and appellant.

Douglas L. Mattson, State's Atty., Minot, for respondent and appellee.

SANDSTROM, Justice.

Robert Hoffarth appeals from a district court summary judgment denying his application for post-conviction relief. Hoffarth claims he should be allowed to withdraw his plea of guilty to manslaughter and reckless endangerment because: (1) at his arraignment, the district court incorrectly informed him of the possible mandatory sentence, in violation of Rule 11(b), N.D.R.Crim.P.; (2) his trial counsel failed to properly inform him of the possible sentence; and, (3) the length of his sentence was the result of gender bias.

We affirm, holding (1) because the issue of compliance with Rule 11(b) was raised by Hoffarth in his direct appeal, he is barred from raising it again in this post-conviction proceeding, (2) because Hoffarth was correctly informed by the court of possible maximum and mandatory sentences, his claim of ineffective assistance of counsel is meritless; and, (3) Hoffarth failed to present credible evidence establishing a prima facie claim of gender bias.

I

The facts underlying Hoffarth's conviction were summarized by this Court in Hoffarth's direct appeal. On September 13, 1988, in a Minot bar's parking lot, Hoffarth argued with Elaine Olson and Mark Gaarder. Hoffarth drew a revolver. During the struggle between Olson and Hoffarth that followed, the revolver was fired, wounding Olson and killing Hoffarth's companion, Robert Franstvog, Jr. State v. Hoffarth, 456 N.W.2d 111, 112 (N.D.1990).

Hoffarth was originally charged with murder, a class AA felony, and criminal attempt (to commit murder) a class A felony. On May 23, 1989, as part of a plea agreement, Hoffarth pled guilty to reduced charges of manslaughter and reckless endangerment. Hoffarth was sentenced to twenty years for manslaughter and five years for reckless endangerment, to be served concurrently in the North Dakota State Penitentiary.

Hoffarth appealed his conviction claiming the district court did not follow the procedures required by the dangerous special offender statute; the district court did not advise him of his rights as required by Rule 11(b), N.D.R.Crim.P.; and, he was denied effective assistance of counsel because his attorney did not fully protect his rights under the dangerous special offender statute and Rule 11(b). Hoffarth at 112-15. This Court rejected Hoffarth's claims, concluding Hoffarth had received adequate and timely notice of the dangerous special offender hearing; the district court had substantially complied with Rule 11, N.D.R.Crim.P.; and, Hoffarth had not been denied effective assistance of counsel because his rights under the dangerous special offender statute and Rule 11 were not violated. Hoffarth.

In April 1993, Hoffarth began this post-conviction relief proceeding. Hoffarth claims he should be allowed to withdraw his guilty plea because: (1) the district court violated Rule 11(b)(2), N.D.R.Crim.P., by informing him improperly of the possible mandatory sentence on the criminal attempt charge; (2) he was denied effective assistance of counsel because his attorney did not properly inform him of the correct sentence; and, (3) the length of his sentence was the result of gender bias.

The district court summarily dismissed Hoffarth's application for post-conviction relief, concluding Hoffarth's first two claims had been finally adjudicated in Hoffarth's direct appeal. The district court concluded Hoffarth had not raised a prima facie case of gender bias.

II

The standard of review for a summary denial of post-conviction relief is like the review of an appeal from a summary judgment. DeCoteau v. State, 504 N.W.2d 552, 556 (N.D.1993); State v. Wilson, 466 N.W.2d 101, 103 (N.D.1991). Summary disposition is appropriate only if "there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." N.D.C.C. Sec. 29-32.1-09(1).

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All reasonable inferences favor the defendant at all preliminary stages of a post-conviction proceeding. Wilson at 105. If a reasonable inference raises a genuine issue of material fact, the defendant is entitled to an evidentiary hearing. N.D.C.C. Sec. 29-32.1-09(2); State v. Skjonsby, 338 N.W.2d 628 (N.D.1983).

The question here is whether the State was entitled to judgment denying Hoffarth's application for post-conviction relief as a matter of law.

III

Hoffarth's first two claims are based on an apparent misstatement by the district court during Hoffarth's arraignment. While explaining the criminal attempt charge, the court mistakenly confused the word "mandatory" for the word "maximum."

"THE COURT: You have heard the reading of the Information setting forth the charges. There are two charges. Count 1 charges you with the crime of Murder. That's an AA felony. The maximum penalty for Murder is life imprisonment. It carries a mandatory parole component of 30 years. And Count 2 charges you with Criminal Attempt. That's a class A felony. Mandatory penalty for a class A felony is 20 years incarceration or a fine of $10,000 or both. There is also a mandatory minimum that applies to these offenses of four years incarceration. Do you understand that?

"THE DEFENDANT: Not exactly. I know it's not a minor charge.

"THE COURT: Because of the allegation of the use of the firearm it's a mandatory minimum sentence of four years. Now with that explanation I am going to proceed to inform you of your other basic constitutional rights." (Emphasis added.)

Hoffarth claims he pled guilty to the reduced charges because he believed, based on the judge's misstatement at the arraignment, he was facing a twenty-year mandatory minimum sentence for the attempt charge.

Hoffarth contends the misstatement violated his rights under Rule 11(b)(2), N.D.R.Crim.P., which provides, in part:

"Advice to defendant. The court may not accept a plea of guilty without first, by addressing the defendant personally [except as provided in Rule 43(c) ] in open court, informing the defendant of and determining that the defendant understands the following:

* * * * * *

2. The mandatory minimum punishment, if any, and the maximum possible punishment provided by the statute defining the offense to which the plea is offered;"

Hoffarth also claims he was denied his right to counsel because his court-appointed attorney informed him after the arraignment that he was facing two life sentences. Hoffarth argues, he would not have entered into the plea bargain if the district court had correctly stated the possible sentence, and if his trial counsel had properly informed him of the possible sentence.

N.D.C.C. Sec. 29-32.1-12, provides:

"Affirmative defenses--Res judicata--Misuse of process.

1. An application for postconviction relief may be denied on the ground that the same...