State v. Bates

• Decision Date: 01 February 2007
• Docket Number: No. 20060179.,20060179.
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Jimmie Lee BATES, Defendant and Appellant.
• Court: North Dakota Supreme Court

726 N.W.2d 595

2007 ND 15

STATE of North Dakota, Plaintiff and Appellee v. Jimmie Lee BATES, Defendant and Appellant.

No. 20060179.

Supreme Court of North Dakota.

February 1, 2007.

COPYRIGHT MATERIAL OMITTED

Gary L. Delorme (argued), Assistant State's Attorney, Fargo, ND, for plaintiff and appellee.

L. Patrick O'Day Jr. (argued), Fargo, ND, for defendant and appellant.

KAPSNER, Justice.

[¶1] Jimmie Lee Bates appeals from a criminal judgment entered upon a plea of guilty, claiming the district court erred in denying his motion to withdraw the guilty plea. After considering the issues as Bates raises them, we conclude the district court did not abuse its discretion in denying the motion to withdraw the guilty plea and Bates failed to establish he received ineffective assistance of counsel. We affirm.

I

[¶2] Bates was charged with continuous sexual abuse of a child and promoting obscenity to minors in March 2005. Prior to trial, the state's attorney filed an amended information, charging Bates with one count of gross sexual imposition (GSI). On March 20, 2006, Bates entered an Alford¹ plea to the amended information. The court informed the parties that the joint sentencing recommendation would be considered a plea agreement under N.D.R.Crim.P. 11, and Bates would be entitled to change his plea if the court did not accept the recommendation. The judge engaged in a colloquy with Bates as required under Rule 11 and found Bates' plea was knowing and voluntary.

[¶3] After receiving Bates' plea, the court asked the State for a factual basis. The State outlined Bates' history with the victim's mother, his access to the now eight-year-old victim, and the victim's repeated identification of Bates as her molester. The State also outlined when Bates had sexual contact with the victim. The court then asked Bates whether he disagreed or had anything to add to the State's factual basis. Bates' attorney corrected the State's factual rendition with respect to the duration of the sexual abuse occurring in North Dakota. Bates made no other disputes or objections to the factual basis at the change of plea proceeding. The court accepted the plea.

[¶4] Prior to imposing sentence, the district court ordered a pre-sentence investigation. Bates was reluctant to cooperate with the investigator, claiming one was just done on him in 2003. On May 4, 2006, approximately two months after the change of plea proceeding but before his sentence was imposed, Bates filed a motion to withdraw his guilty plea based on "a manifest injustice; and/or for the fair and just reason that Defendant maintains his innocence and cannot in good conscience plead guilty to a charge he did not commit." The court held a hearing to address the motion, where Bates testified his conscience would not allow him to maintain his guilty plea. On cross-examination, Bates acknowledged he was satisfied with his attorney's representation, he was knowledgeable of the criminal justice system, and he was fully advised on the consequences of his change of plea. The court denied the motion to withdraw the guilty plea on June 5, 2006, finding the guilty plea voluntary, intelligent, and the plea withdrawal was not necessary to correct a manifest injustice. The district court did not address whether Bates had established a "fair and just reason" for the plea withdrawal. On July 10, 2006, the court accepted the joint sentencing recommendation and sentenced Bates to ten years in prison, running concurrently with a previous felony conviction.

II

[¶5] On appeal, Bates argues "[i]t is necessary to allow Defendant to withdraw the Alford plea ... to correct a manifest injustice...." Specifically, Bates argues the district court "abused its discretion, because there was no factual basis for the plea and the plea was not voluntarily made." Bates also claims he received ineffective assistance of counsel. The State argues the district court properly exercised its discretion in denying Bates' motion to withdraw his plea after accepting a factual basis and Bates failed to establish a valid claim of ineffective assistance of counsel. Neither party argues, on appeal, that withdrawal of a guilty plea is subject to the "fair and just reason" standard contained in N.D.R.Crim.P. 32(d)(3). "We will not consider issues not adequately briefed, argued, or supported on appeal." State v. Harmon, 1997 ND 233, ¶ 29, 575 N.W.2d 635. Therefore, we limit our discussion on the withdrawal of Bates' guilty plea to whether the district court abused its discretion in concluding the plea withdrawal was not necessary to correct a manifest injustice. See id.

III

[¶6] The standard for a plea withdrawal differs depending upon when the motion to withdraw the guilty plea is made. Froistad v. State, 2002 ND 52, ¶ 5, 641 N.W.2d 86. A defendant has a right to withdraw a guilty plea before it is accepted by the court. Id. at ¶ 6. "`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.'" Id. at ¶ 8 (quoting State v. Klein, 1997 ND 25, ¶ 13, 560 N.W.2d 198). 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. Id. at ¶ 9. "The decision whether a manifest injustice exists for withdrawal of a guilty plea lies within the trial court's discretion and will not be reversed on appeal except for an abuse of discretion." State v. Abdullahi, 2000 ND 39, ¶ 7, 607 N.W.2d 561 (citing State v. Hendrick, 543 N.W.2d 217, 219 (N.D.1996)). An abuse of discretion under N.D.R.Crim.P. 32(d) occurs when the court's legal discretion is not exercised in the interest of justice. Abdullahi, at ¶ 7 (citing State v. Dalman, 520 N.W.2d 860, 862 (N.D.1994)). The trial court must exercise its sound discretion in determining whether a "manifest injustice" or a "fair and just reason" to withdraw a guilty plea exists. See Froistad, at ¶ 9; Abdi v. State, 2000 ND 64, ¶ 10, 608 N.W.2d 292.

A

[¶7] Bates argues the district court abused its discretion in denying his motion to withdraw his guilty plea. To support his argument, Bates claimed the court committed a procedural error by not establishing a factual basis for the Alford plea. We conclude the district court properly determined there was a sufficient factual basis for the guilty plea under N.D.R.Crim.P. 11(b)(3).

[¶8] A factual basis is a statement of facts to assure the defendant is guilty of the crime charged. See Kaiser v. State, 417 N.W.2d 175, 178 (N.D.1987). In Kaiser, we discussed the manners in which a factual basis may be established, which include:

First, the court could inquire directly of the defendant concerning the performance of the acts which constituted the crime. Secondly, the court could allow the defendant to describe to the court in his own words what had occurred and then the court could question the defendant. Thirdly, the court could have the prosecutor make an offer of proof concerning the factual basis for the charge.

Id. We have also stated, "[t]o establish a factual basis for the plea, the court must ascertain `that the conduct which the defendant admits constitutes the offense charged in the indictment or information or an offense included therein to which the defendant has pleaded guilty.' The court accepting the plea should compare the elements of the crime charged to the facts admitted to by the defendant." Froistad, 2002 ND 52, ¶ 19, 641 N.W.2d 86 (citations omitted).

[¶9] The factual basis in this case was sufficient to support Bates' guilty plea. The state's attorney established the defendant met the victim's mother and moved to Texas with her. Bates, the victim's mother, the victim, and several other children lived together while in Texas. They moved back to Fargo, North Dakota. Bates was convicted on another charge and incarcerated while he was living in Fargo with the victim's family. After Bates was removed from the home, the victim began to act out in a sexual manner. When questioned, the child indicated Bates had given her those sexual ideas and she was acting out on them. The victim was interviewed twice on videotape, where she told a social worker and a police officer Bates had touched her on her vagina, on her buttocks, and had put his penis in her mouth. The victim described the place these events occurred. The victim was medically examined several years after the occurrences, with no conclusive proof to corroborate the child's statements.

[¶10] The court then asked Bates, through his counsel, whether he had anything in response to the State's factual rendition. Bates' counsel made a minor modification to the State's factual basis, noting the amended information alleged the victim was molested between the ages of three to five, where the factual basis supported molestation between the ages of four to five. Bates' counsel acknowledged that, if Bates chose to go to trial, "it's more likely than not that [a jury would] find guilt." The court accepted the factual basis to support the plea. The court then ordered a pre-sentence investigation before sentencing.

[¶11] When comparing the factual basis with the elements of GSI, the factual basis addresses each essential element of the crime. Bates was charged under N.D.C.C. § 12.1-20-03, which requires the State to prove the defendant engaged in a sexual act with another who was less than fifteen years old at the time of the contact. The State addressed the victim's relationship with Bates, where the offenses occurred, the sexual conduct Bates was being charged with, and the victim's age.

[¶12] The district court did not err when it determined the factual basis was sufficient to support the guilty plea.

B

[¶13] Bates also claims the district court abused its discretion in...