State v. Decker

• Decision Date: 30 October 1970
• Docket Number: Cr. N
• Citation: 181 N.W.2d 746
• Parties: STATE of North Dakota, Plaintiff and Respondent, v. James J. DECKER, Defendant and Appellant. o. 395.
• Court: North Dakota Supreme Court

Page 746

181 N.W.2d 746

STATE of North Dakota, Plaintiff and Respondent, v. James J. DECKER, Defendant and Appellant.

Cr. No. 395.

Supreme Court of North Dakota.

Oct. 30, 1970.

Rehearing Denied Dec. 23, 1970.

Syllabus by the Court

1. A defendant charged with the commission of a misdemeanor and sentenced upon his plea of guilty is entitled to a reversal of the judgment of conviction and sentence and to a new trial when without fault or negligence on his part he is unable to procure a correct and complete transcript of the proceedings leading to and including his sentence.

Mackoff, Kellogg, Kirby & Kloster, Dickinson, for defendant and appellant.

Helgi Johanneson, Atty. Gen., Bismarck, Bruce R. Howe, State's Atty., and Albert J. Hardy, Asst. State's Atty., Dickinson, for plaintiff and respondent.

ERICKSTAD, Judge.

In this case, the defendant James Decker appeals from a county court order of the 20th of April, 1970, denying his motion for a new trial, 'from the finding and conviction, dated April 7, 1970, of the defendant on a charge of driving while driver's license suspended, as well as from any judgment entered thereon, notice of entry of judgment not having been served upon the defendant or upon counsel having been appointed to represent said defendant.'

The pertinent part of the motion filed with the court on the 16th of April, 1970, reads:

COMES NOW the Defendant, James Decker, and moves the Court for an order vacating any Judgment heretofore entered in the above entitled matter whereby the above named Defendant was sentenced to serve six (6) months at the State Farm at Bismarck, North Dakota, and further moves the Court for an order granting a new trial upon said charges on the ground and for the reason that without fault or negligence of the Defendant, the Defendant is unable to procure a correct and complete transcript of the evidence and proceedings had in said matter and that said Judgment of Conviction is otherwise deficient in material respects.

This Motion is based upon the provisions of Section 29--24--02(8), North Dakota Century Code, as amended; State v. Hapip, 174 N.W.2d 717 (N.D.1970); and upon the Affidavit of Ward M. Kirby, Attorney, hereto attached.

The pertinent part of Mr. Kirby's affidavit reads:

Affiant further states that he has caused search to be made of the records contained in the above entitled proceedings at the offices of the County Judge, County Court of Increased Jurisdiction, Stark County, North Dakota, and that he finds therein no judgment of conviction completed in accordance with the provisions of the statute and further that it does not appear that there was any transcript made or kept of the proceedings had preliminary to the finding of a conviction of the above named defendant on a charge of driving a motor vehicle while his driver's license was suspended or revoked.

The pertinent part of the trial court's order denying the motion reads:

* * * the Court having considered said Motion for new trial and arrest of Judgment, if any has been entered, and the Court being of the opinion that the provisions of Section 29--24--02 do not apply and that the recent North Dakota Supreme Court decision of State v. Hapip, 174 N.W.2d 717, is not applicable to the proceedings had in this matter, the Court finds that the aforesaid Motion is without merit.

The record as it relates to Mr. Decker's prosecution prior to the filing on his behalf of a motion for new trial consists of a uniform traffic summons and complaint which charges him with 'driving while under suspension in violation of Sec. 39--06--42 of the N.D. Century Code'; a document entitled 'Pre-sentence Investigation', disclosing traffic violations since June 1967; a copy of the clerk's notes dated April 7, 1970; an instrument entitled 'Conviction' signed by the county judge and filed in that court on April 7, 1970; an order of the county court of April 7, 1970, committing the defendant to the State Farm or to the county jail for six months; a document entitled 'Commitment' dated the 7th of April, 1970, signed by the county judge, placing the defendant in the warden's custody; a document entitled 'Notes of County Judge' signed by the judge; a document signed by the county judge entitled 'Judgment-Criminal Action' dated April 7, 1970, but not filed until April 20, 1970.

Because of our view that Mr. Decker is entitled to a new trial for the reason that the State has failed to provide him with a means of obtaining a transcript of the proceedings leading up to and including his sentencing, we shall not consider today the other issues raised by the specifications of error filed with this court on appeal except as they incidentally relate to the importance of providing a means for a defendant in a criminal case to obtain a transcript of the proceedings, whether they involve a conviction based upon a plea of guilty or a conviction based upon a finding of guilty by a judge or jury.

Of the instruments referred to as containing the record in this case, perhaps the notes of the county judge are the most illuminating and pertinent to the basic issue. They read:

(1) Those persons present in court on 3--31--70 when the defendant's rights were read and explained to him were: Wm. B. Lord, Edward Malone, Thomas Ewing, and James J. Decker. The defendant waived his right to counsel and entered a plea of guilty to the charge of driving while license suspended. April 7, 1970 at 4:30 P.M. was the time set for pronouncement of sentence.

(2) The defendant voluntarily appeared before the court at 10:00 A.M. on the 7th day of April 1970. Those present were: Ardeen Ouellette, Edward Malone, James J. Decker, Thomas Ewing, and Mrs. Anton Decker.

(3) The attached sentence was read to the defendant who made no comment when asked if he had any statement to make.

In support of his contention that he is entitled to a new trial under Section 29--24--02(8), N.D.C.C., Mr. Decker refers us to State v. Hapip, 174 N.W.2d 717 (N.D.1970).

Although that case may be distinguished from this case in that it was a litigated case in which evidence was submitted and a verdict rendered by the court, and the instant case is one wherein a plea of guilty was entered and no evidence was submitted, what we said in Hapip relative to the issue of waiver is quite relevant here. In Hapip the State contended that the defendant waived his rights to have the proceedings completely reported by failing to object to the absence of a court reporter and by trying the case without one. In finding no waiver of the right to have the proceedings therein recorded, this court, referring to Carnley v. Cochran, 269 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962), said that presuming a waiver from a silent record is impermissible.

The pertinent part of Section 29--24--02 reads as follows:

Causes for granting new trial.--When a verdict has been rendered against the defendant, the court in which the trial was had, upon his application, may grant a new trial in the following cases only:

8. When the defendant, without fault or negligence on his or her part, is unable to procure a correct and complete transcript of the evidence given and the proceedings had at the trial.

North Dakota Century Code.

Although the introductory part of Section 29--24--02 refers to the situation 'when a verdict has been rendered' and does not specifically say that in all situations where a conviction is obtained a new trial shall be granted when any of the circumstances outlined in Subsections 1 through 8 are present, since the Legislature in Subsection 8 referred not only to a complete transcript of evidence but also to a complete transcript of the proceedings, it is our view that the Legislature contemplated that a defendant should be entitled to a new trial if without fault or negligence on his part he was unable to procure a correct and complete transcript of all proceedings through sentencing.

As the defendant points out, without a complete transcript of the proceedings it is impossible for this court to ascertain whether the defendant has been afforded his statutory rights, not to mention his constitutional rights. Pertinent statutory rights are embodied in Sections 29--26--11, 29--26--12, 29--26--17, 29--26--18, 29--26--19, N.D.C.C.

The record is perhaps most dificient in showing that the provisions of Section 29--26--11 have been complied with.

Said section reads:

Defendant informed of rights.--When a defendant appears for judgment, he must be informed by the court, or by the clerk under its direction, of the nature of the charge against him, and of his plea, and the verdict, if any, thereon, and must be asked whether he has any legal cause to show why judgment should not be pronounced against him.

§ 29--26--11, North Dakota Century Code.

As early as 1961 the supreme court of Colorado found a complete record essential to the defendant's right in a criminal case to appeal from an order or judgment of the county court.

We quote a part of that decision:

As to the necessity for a reporter in criminal cases, we now deem it incumbent to say that unless it appears that a defendant has expressly waived the presence of a reporter the county must furnish a reporter in all criminal cases.

It has been said that the reason for the creation of courts of record is founded on the proposition that judicial records are not only necessary but indispensable to the administration of justice. The court hears arguments and decides upon its records; it acts by its records; its openings, sessions and adjournments can be proved only by its records; its judgments can be evidenced only by its records. The acts of a court of record are known by its records alone and cannot be established by parol testimony. The court speaks only through its records, and the judge speaks only through the court.

The statutes on criminal procedure in the county court provide such proceedings to be the same as in the district court. Decisions of ...