Parshall v. State, 20170301

• Decision Date: 08 March 2018
• Docket Number: No. 20170301,20170301
• Citation: 908 N.W.2d 434
• Parties: Russell Bruce PARSHALL, Petitioner and Appellant v. STATE of North Dakota, Defendant and Appellee
• Court: North Dakota Supreme Court

908 N.W.2d 434

Russell Bruce PARSHALL, Petitioner and Appellant
v.
STATE of North Dakota, Defendant and Appellee

No. 20170301

Supreme Court of North Dakota.

Filed March 8, 2018

Danny L. Herbel, Bismarck, ND, for petitioner and appellant.

Allen M. Koppy, Morton County States Attorney, Mandan, ND, for defendant and appellee.

Crothers, Justice.

¶ 1] Russell Bruce Parshall appeals from the district court’s order denying his application for post-conviction relief. Parshall petitioned the district court to vacate a criminal conviction for refusal to submit to

[908 N.W.2d 435

a blood test in 2014. We reverse and remand, concluding the district court erred in its interpretation of the plea agreement.

I

¶ 2] On July 28, 2015 Parshall pled guilty to "Driving Under the Influence N.D.C.C. § 39-08-01 (First Offense Refusal)" by a N.D.R.Crim.P. 43 plea agreement. Parshall’s Rule 43 Change of Plea and Sentencing Appearance Waiver listed the charge without the parenthetical "(First Offense Refusal);" however, both the formal plea agreement section of the document and the later criminal judgment included the parenthetical.

[¶ 3] Parshall timely applied for post-conviction relief, arguing the United States Supreme Court’s holding in Birchfield v. North Dakota , ––– U.S. ––––, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016), was a retroactively applicable substantive rule of constitutional law that prohibited the State from imposing criminal liability for refusing a warrantless blood test. In opposing Parshall’s application the State argued the factual basis in the plea agreement supported both general driving while impaired and refusal to submit to the blood test. The district court found Parshall entered a guilty plea to the general charge of driving under the influence, not merely refusal:

"While the refusal to submit to a warrantless blood draw is constitutionally protected activity and no longer supports a criminal offense after Birchfield , the Court finds that Parshall entered a plea to the general charge of Driving Under the Influence. In addition to refusing the blood draw, Parshall admitted to the factual basis of driving without headlights or taillights at 1:00 a.m. on the city streets in Mandan, Morton County, that the officer smelled a strong odor of alcohol, that the defendant had slurred speech and bloodshot, watery eyes, that the defendant had poor motor function and could not walk without stumbling and that the defendant failed each of the field sobriety tests. The factual basis, as supplied by Parshall, supported a finding that he was actually impaired by alcohol in addition to refusing the blood test."

[¶ 4] The district court declined to rule on the retroactivity of Birchfield , ––– U.S. ––––, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016) : "The Court need not make that ruling, as the Court finds that the ruling in Birchfield made the statute regarding conviction by refusal to provide a blood sample unconstitutional from the moment of passage." Parshall appeals.

II

[¶ 5] Our standard of review for denial of an application for post-conviction relief is well-established. "Post-conviction relief proceedings are civil in nature and are governed by the North Dakota Rules of Civil Procedure." Burke v. State , 2012 ND 169, ¶ 10, 820 N.W.2d 349.

"In post-conviction relief proceedings, a district court’s findings of fact will not be disturbed unless they are clearly erroneous under N.D.R.Civ.P. 52(a). Cue v. State , 2003 ND 97, ¶ 10, 663 N.W.2d 637. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if it is not supported by the evidence, or if, although there is some evidence to support it, a reviewing court is left with a definite and firm conviction that a mistake has been made. DeCoteau v. State , 2000 ND 44, ¶ 10, 608 N.W.2d 240. Questions of law are fully reviewable on appeal of a post-conviction proceeding. Peltier v. State , 2003 ND 27, ¶ 6, 657 N.W.2d 238."

Greywind v. State , 2004 ND 213, ¶ 5, 689 N.W.2d 390.

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¶ 6] Two subsections of N.D.C.C. § 39-08-01(1) (2015) apply in this case:

"1. A person may not drive or be in actual physical control of any vehicle upon a highway or upon public or private areas to which the public has a right of access for vehicular use in this state if any of the following apply:

...

b. That person is under the influence of intoxicating liquor.

...

e. That individual refuses to submit to any of the following:

(1) A chemical test, or tests, of the individual’s blood, breath, or urine to determine the alcohol concentration or presence of other drugs, or combination thereof, in the individual’s blood, breath, or urine, at the direction of a law enforcement officer under section 39-06.2-10.2 if the individual is driving or is in actual physical control of a commercial motor vehicle; or

(2) A chemical test, or tests, of the individual’s blood, breath, or urine to determine the alcohol concentration or presence of other drugs, or combination thereof, in the individual’s blood, breath, or urine, at the direction of a law enforcement officer under section 39-20-01; ...."

[¶ 7] We interpret plea agreements according to general contract principles. State v. Lium , 2008 ND 33, ¶ 12, 744 N.W.2d 775, reh’g denied ; see State v. Hamann , 262 N.W.2d 495, 502 (N.D. 1978) ("[A]n approved plea bargaining agreement has qualities similar to that of a contract."); State v. Thorstad , 261 N.W.2d 899, 902 (N.D. 1978) ("[C]ourts ... treat court-approved plea bargain agreements similar to contracts."). "[T]his court will independently examine and construe [a] contract to determine if the district court erred in its interpretation of it." General Elec. Credit Corp. of Tenn. v. Larson , 387 N.W.2d 734, 736 (N.D. 1986).

[¶ 8] The State contended and the district court ruled Parshall pled guilty to general driving under the influence. However, the parties’ intent can be ascertained from the plea agreement itself. See Bakken v. Duchscher , 2013 ND 33, ¶ 16, 827 N.W.2d 17 (concluding rules of contract interpretation and extrinsic evidence were unnecessary to interpret an option agreement with clear and unambiguous language). The plea agreement signed by Parshall states "Defendant hereby pleads guilty to a charge of COUNT I DRIVING UNDER THE INFLUENCE N.D.C.C. § 39-08-01 (First Offense Refusal) a Class B Misdemeanor." The criminal judgment mirrors this language. From this we conclude the district court erred in interpreting the factual basis following the plea agreement to determine Parshall pled guilty to general driving under the influence when the plain language indicated refusal. See N.D.R.Crim.P. 11(b)(3) ("Determining the Factual Basis for a Plea.").

III

[¶ 9] Parshall argues the United States Supreme Court’s holding in Birchfield retroactively voids his criminal conviction. ––– U.S. ––––, 136 S.Ct. 2160, 2185-86, 195 L.Ed.2d 560 (2016) ; see Montgomery v. Louisiana , ––– U.S. ––––, 136 S.Ct. 718, 729, 193 L.Ed.2d 599 (2016) ("[W]hen a new substantive rule of constitutional law controls the outcome of a case, the Constitution requires state collateral review courts to give retroactive effect to that rule."). Parshall also argues he is entitled to a return of the fine and fees paid under the voided conviction. See Nelson v. Colorado , ––– U.S. ––––, 137 S.Ct. 1249, 1255-56, 197 L.Ed.2d 611 (2017) (ruling a state

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is obliged to return funds taken if conviction is invalidated on review). Because the district court declined to rule on these issues, we remand this case to the district court for resolution of these issues. See Overboe v. Farm Credit Servs. of Fargo , 2001 ND 58, ¶ 14, 623 N.W.2d 372 (declining to review retroactive application of statutory amendment until sufficiently raised and briefed in an appropriate case).

IV

¶ 10] The district court erred in its interpretation of Parshall’s plea agreement. We reverse the order and remand for further proceedings.

[¶ 11] Daniel J. Crothers

Lisa Fair McEvers

Gerald W. VandeWalle, C.J.

McEvers, Justice, concurring specially.

[¶ 12] I agree with, and have signed with the Majority. Parshall moved to vacate his first offense refusal conviction, alleging he pleaded guilty to conduct that did not constitute a crime. I write separately to point out, that regardless of whether the Birchfield decision applies retroactively to final convictions, Parshall has another potential remedy available to him. Rather than moving to vacate the conviction, Parshall could have moved the district court to allow him to withdraw his guilty plea or pleas under the principles of N.D.R.Crim.P. 11(d)(2), if he can show a manifest injustice.

[¶ 13] This Court has stated:

Generally, when a post-conviction relief applicant seeks to withdraw a guilty plea, the district court looks to whether relief is necessary to correct a "manifest injustice." " ‘When a defendant applies for post-conviction relief seeking to withdraw a guilty plea, we ... treat the application as one made under N.D.R.Crim.P. [11](d).’ " "Withdrawal is allowed when necessary to correct a manifest injustice."

Lindsey v. State , 2014 ND 174, ¶ 16, 852 N.W.2d 383 (citations omitted). An argument could be made that a guilty plea is not knowing and voluntary when the underlying statutory provision for the crime is later found unconstitutional.

[¶ 14] Relying on Nelson v. Colorado , Parshall also argued on appeal that he is entitled to return...