Peltier v. State, No. 20020232-20020235.

Citation657 N.W.2d 238,2003 ND 27
Decision Date05 March 2003
Docket Number No. 20020232-20020235.
PartiesTyronne PELTIER, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.
CourtUnited States State Supreme Court of North Dakota

Scott R. Thompson, Thompson & Thompson, Devils Lake, N.D., for petitioner and appellant.

Lonnie Olson, State's Attorney, Devils Lake, N.D., for respondent and appellee.

SANDSTROM, Justice.

[¶ 1] Tyrone Peltier appealed from an order denying his motion for post-conviction relief. We conclude Peltier did not receive an illegal sentence when the trial court imposed consecutive sentences upon revocation of probation after Peltier had originally pled guilty under a plea agreement calling for concurrent sentences. We affirm.

I

[¶ 2] On February 19, 1997, Peltier pled guilty to four class C felony charges arising in Ramsey County. The plea was the result of an oral plea agreement between Peltier and the State, which was disclosed in open court. After advising Peltier of the information required under N.D.R.Crim.P. 11, finding a factual basis for the plea, and determining the plea was voluntarily made, the trial court accepted the plea agreement and sentenced Peltier according to its terms. On a first charge of terrorizing, the trial court sentenced Peltier to serve four years in prison with one year suspended, followed by five years of supervised probation upon his release. On a charge of reckless endangerment, the trial court sentenced Peltier to serve five years in prison with three years suspended, followed by five years of supervised probation upon his release. On a second charge of terrorizing, the trial court sentenced Peltier to serve five years in prison with three years suspended, followed by five years of supervised probation upon his release. On a charge of felon in possession of a firearm, the trial court sentenced Peltier to serve five years in prison with three years suspended, followed by five years of supervised probation upon his release. Adhering to the terms of the plea agreement, the trial court further ordered the sentences on the reckless endangerment, felon in possession of a firearm, and second terrorizing charges to run concurrently with the sentence on the first terrorizing charge.

[¶ 3] After serving four years in prison, Peltier was placed on supervised probation to complete his sentence. On September 11, 2001, Peltier's probation officer filed a petition to revoke his probation. At a hearing on November 29, 2001, Peltier admitted that he violated the terms of his probation, and the trial court revoked it. The trial court sentenced Peltier to serve the remaining three years in prison on the second terrorizing charge and to serve the remaining three years in prison on the reckless endangerment charge, the sentences to be served consecutively. The trial court sentenced Peltier to serve the remaining one year in prison on the first terrorizing charge and to serve the remaining three years in prison on the charge of felon in possession of a firearm, both sentences to be served concurrently with the sentence on the second terrorizing charge. Peltier was therefore sentenced to serve six years in prison.

[¶ 4] On February 21, 2002, Peltier filed an application for post-conviction relief, alleging the trial court violated state law when it imposed consecutive sentences upon revocation of his probation, because the original plea agreement required concurrent sentences. Peltier also claimed the trial judge was improperly biased against him at the probation revocation hearing. Following an evidentiary hearing, the trial court denied Peltier's application for post-conviction relief. The court ruled, "[t]he record of sentencing reflects no restriction on the Court in giving consecutive sentences to the defendant."

[¶ 5] The trial court had jurisdiction under N.D.C.C. §§ 27-05-06 and 29-32.1-03. Peltier's appeal is timely under N.D.C.C. § 29-32.1-14 and N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. §§ 29-28-06 and 29-32.1-14.

II

[¶ 6] A trial court's findings of fact in post-conviction relief proceedings will not be disturbed unless they are clearly erroneous. Hill v. State, 2000 ND 143, ¶ 17, 615 N.W.2d 135. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if it is not supported by any 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. Falcon v. State, 1997 ND 200, ¶ 9, 570 N.W.2d 719.

A

[¶ 7] Peltier argues the trial court violated state law when it imposed consecutive sentences upon revocation of his probation, because the original plea agreement with the State called for concurrent sentences. A sentence 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 part:

If the defendant violates a condition of probation at any time before the expiration or termination of the period, the court may continue the defendant on the existing probation, with or without modifying or enlarging the conditions, or may revoke the probation and impose any other sentence that was available under section 12.1-32-02 [relating to sentencing alternatives] or 12.1-32-09 [relating to dangerous special offenders] at the time of initial sentencing or deferment.

(Emphasis added). Peltier argues the trial court was bound by the parties' plea agreement, which required that the sentences run concurrently, and the court could not impose consecutive sentences on revocation of probation because consecutive sentences were not an available alternative under the plea agreement at the time of the initial sentencing.

[¶ 9] Peltier's argument rests upon the assumption that he entered into a binding plea agreement with the State. The State argues the agreement was for a nonbinding recommendation of sentence. A variety of binding and nonbinding plea agreements can result from plea negotiations. See State v. Farrell, 2000 ND 26, ¶ 16, 606 N.W.2d 524

. In State v. Klein, 1997 ND 25, ¶ 17, 560 N.W.2d 198,

overruled on other grounds, Froistad v. State, 2002 ND 52, ¶ 6, 641 N.W.2d 86, this Court explained:

N.D.R.Crim.P. 11(d) governs plea agreements. We have recognized N.D.R.Crim.P. 11(d)(1) is like F.R.Crim.P. 11(e)(1). DeCoteau v. State, 504 N.W.2d 552, 558 n. 2 (N.D. 1993). Under F.R.Crim.P. 11(e)(1), there are three kinds of plea agreements. "[U]pon the entering of a plea of guilty ... the attorney for the government will do any of the following: (A) move for dismissal of other charges; or (B) make a recommendation, or agree not to oppose the defendant's request, for a particular sentence, with the understanding that such recommendation or request shall not be binding upon the court; or (C) agree that a specific sentence is the appropriate disposition of the case." F.R.Crim.P. 11(e)(1); DeCoteau.

[¶ 10] A nonbinding recommendation of sentence and a binding plea agreement under N.D.R.Crim.P. 11(d) are significantly different. See State v. Thompson, 504 N.W.2d 315, 319 (N.D.1993)

. If the parties agree to a nonbinding recommendation of sentence, the State fulfills its obligation when it makes the specified nonbinding recommendation, and the trial court may impose a harsher sentence than the one recommended without allowing the defendant to withdraw the guilty plea. Id. When presented with a binding plea agreement, the court is limited to three options: the court may accept the agreement, reject the agreement, or defer its decision until receipt of a presentence report. See Klein, 1997 ND 25, ¶ 18,

560 N.W.2d 198; N.D.R.Crim.P. 11(d)(2). If the court accepts a binding plea agreement, the court may not impose a sentence less favorable than the sentence provided for in the plea agreement. See N.D.R.Crim.P. 11(d)(3). If the court rejects a binding plea agreement, the court must inform the defendant it is not bound by the agreement, must allow the defendant to withdraw the plea, and must inform the defendant that if the defendant persists in pleading guilty, the court may impose a sentence less favorable than the one provided for in the plea agreement. See N.D.R.Crim.P. 11(d)(4).

[¶ 11] At the initial sentencing hearing, the trial court advised Peltier of the maximum sentences on each charge before it was informed of the plea agreement. Peltier's trial attorney disclosed the terms of the agreement to the trial court. On the first charge of terrorizing, Peltier's attorney described the agreement as "[f]or the plea of guilty, then the State would recommend a five-year jail sentence to serve four years." On the other three charges, Peltier's attorney said Peltier "would receive" the various sentences in exchange for the pleas. The trial court asked Peltier to plead to the charges and whether the pleas had been entered "pursuant to the plea agreement." The trial court was informed that the State had agreed to send a letter to the United States Attorney recommending that federal charges not be brought against Peltier, and the court ordered that a copy of the letter be filed with the clerk of court. The trial court said it would "adhere to the plea agreement as it has been outlined," and sentenced Peltier according to the terms disclosed in open court.

[¶ 12] Although the precise nature of the agreement is unclear from the record, the part of the agreement providing that the State would "recommend" five years with one year suspended strongly suggests that this was not a binding plea agreement, but was a nonbinding recommendation of sentence. See State v. Sisson, 1997 ND 158, ¶ 3 n. 1, 567 N.W.2d 839

. Nevertheless, for purposes of this appeal we will...

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