State v. Farrell, 990197.

• Decision Date: 22 February 2000
• Docket Number: No. 990197.,990197.
• Citation: 606 N.W.2d 524,2000 ND 26
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Patrick John FARRELL, Defendant and Appellant.
• Court: North Dakota Supreme Court

606 N.W.2d 524

2000 ND 26

STATE of North Dakota, Plaintiff and Appellee, v. Patrick John FARRELL, Defendant and Appellant.

No. 990197.

Supreme Court of North Dakota.

February 22, 2000.

Jennifer Lynn Thompson, Assistant State's Attorney, Fargo, for plaintiff and appellee.

Monty G. Mertz, Fargo, for defendant and appellant.

KAPSNER, Justice.

[¶ 1] Patrick J. Farrell appealed from a criminal judgment entered on a plea of guilty to forgery in violation of N.D.C.C. § 12.1-24-01. Because the trial court, in accepting Farrell's guilty plea, failed to substantially comply with the requirements of N.D.R.Crim.P. 11(c), and because the record shows Farrell did not fully understand the nature of his informal agreement for a nonbinding sentence recommendation from the State, we reverse the judgment and remand to the trial court to permit Farrell to withdraw his guilty plea.

I

[¶ 2] Farrell was charged with burglary and forgery, class C felonies, after he cashed a stolen check at a Fargo bank. Before the preliminary hearing, plea negotiations occurred. The State informally agreed to move for dismissal of the burglary charge and make a nonbinding recommendation to the court for a one year and one day sentence of imprisonment if Farrell pled guilty to forgery.

[¶ 3] On June 17, 1999, the day set for his preliminary hearing, Farrell pled guilty to forgery.

THE COURT: ... First of all, Mr. Farrell, you understand that you have the right to plead guilty or not guilty as you wish to Count One, Forgery?

THE DEFENDANT: Yes, I do.

THE COURT: And you understand the nature of this charge? What it's about?

THE DEFENDANT: Yes.

THE COURT: Okay. You understand, sir, that if you plead guilty the maximum penalty that you could receive, it being a Class C Felony, is five years in prison and/or a Five Thousand Dollar fine?

THE DEFENDANT: Right.

THE COURT: Okay. And did you hear and understand the Constitutional Rights that the Court gave you on an earlier date?

THE DEFENDANT: Yes.

THE COURT: And do you understand that if you plead guilty, you'd be waiving your right to any trial proceedings of any kind, including your right to cross-examine those witnesses who would have appeared to testify against you at trial, if you had one?

THE DEFENDANT: Right.

THE COURT: And as (sic) anyone promised your (sic) anything or threatened you in any way or attempted to use force against you to get you to enter a guilty plea here today?

THE DEFENDANT: No, sir.

....

THE COURT: How say you Patrick John Farrell to Count One, Forgery,... guilty or not guilty?

THE DEFENDANT: Guilty.

THE COURT: Your guilty plea is on the record. The Court finds it to be voluntary.

[¶ 4] After Farrell concurred with the prosecutor's recitation of the facts, the court found there was a sufficient factual basis and accepted the plea. The prosecutor then recommended Farrell be sentenced to imprisonment for one year and one day, defense counsel requested the same sentence, and the court dismissed the burglary charge with prejudice.

THE COURT: Anything you wish to state, sir?

THE DEFENDANT: No, sir.

THE COURT: How old are you, Mr. Farrell?

THE DEFENDANT: 35

THE COURT: You're not going to stop this, are you?

THE DEFENDANT: Oh, I believe I am.

THE COURT: Well, you seem to have quite a habit here. You've got a pretty good record going. By that I mean pretty bad record, actually. And I don't know that we can get the money out of you or not. So it is the order and sentence of the Court that, Patrick John Farrell, on Count One Forgery, a Class C Felony, shall serve five years with the North Dakota Department of Correction and Rehabilitation, all but three of those years are suspended for the rest of the five year period. And you'll serve the suspended period on probation, supervised,... And you will also pay attorney's fees in the amount of Three Hundred Dollars, because I find those are fair and reasonable based on my experience in this.... Then the restitution shall be in the amount of Twelve Hundred Dollars.... The Defendant's remanded to the custody of the Cass County Sheriff's Office. Thank you.

[¶ 5] Following a short discussion about whether his North Dakota sentence would run concurrently with a sentence Farrell was presently serving in Minnesota, Farrell questioned the court:

THE DEFENDANT: Now did I plead to a year or to two years?

THE COURT: You pled to Forgery.

THE DEFENDANT: Right.

THE COURT: And you got three years to serve and then two years probation. What you did was he got five years. Three years of that will be incarceration and then two years after that will be probation, supervised.

MR. NORDENG: I think what's confusing to him is that the State recommended a year and I concurred with that recommendation.

THE COURT: And I went beyond the State's recommendation.

MR. NORDENG: The Court did not follow it.

THE COURT: Because of your record. It was a recommendation. It wasn't a plea bargain.

THE DEFENDANT: Well then I have a right to change my plea then also, don't I?

THE COURT: No. Not on a recommendation. On a plea bargain you would. Not on a recommendation.

THE DEFENDANT: So I can plead guilty and then you can change the sentence into whatever you want then.

THE COURT: No, a recommendation is like a contractor's estimate. They give you an estimate for the job and, you know, it turns out to be more. This is just a recommendation. It's not a bargain. They say they'll recommend, you know, a year and a day. You and your attorney say, well, that sounds good. We hope the Judge takes it. You come in front of the Judge and the Judge doesn't take it. No problem. The Supreme Court of North Dakota says on a recommendation that's the way it can be handled. On a plea bargain it would be different. So that's the way that works. So you can finish Minnesota, then come over to us. Okay. Thank you.

[¶ 6] Farrell appealed from the criminal judgment and commitment.

II

[¶ 7] Although Farrell made no formal motion to withdraw his guilty plea under N.D.R.Crim.P. 32(d), we treat this case as if a formal motion had been made by Farrell and denied by the trial court. After the court pronounced sentence, Farrell immediately expressed confusion over what had happened and told the judge he believed he had the right to change his plea. The court told him "[n]o," and proceeded to explain the difference between a plea "bargain" and a "recommendation," and closed the hearing. These circumstances are tantamount to a request by Farrell to withdraw his guilty plea and a refusal by the trial court to allow him to do so.

[¶ 8] After a court has accepted a guilty plea and imposed sentence, a defendant cannot withdraw the plea unless withdrawal is necessary to correct a manifest injustice. State v. Klein, 1997 ND 25, ¶ 15, 560 N.W.2d 198. A manifest injustice may result from procedural errors by the sentencing court. State v. Gunwall, 522 N.W.2d 183, 185 (N.D.1994). The determination of a manifest injustice is ordinarily within the trial court's discretion, and will be reversed on appeal only for an abuse of discretion. State v. Hobus, 535 N.W.2d 728 (N.D.1995). A trial court abuses its discretion when it acts in an arbitrary, unreasonable, or capricious manner, or misinterprets or misapplies the law. Berlin v. State, 604 N.W.2d 437, 2000 ND 13, ¶ 14.

[¶ 9] Before accepting a guilty plea, the trial court must advise the defendant of certain rights under N.D.R.Crim.P. 11. State v. Magnuson, 1997 ND 228, ¶ 16, 571 N.W.2d 642. The advice required to be given by Rule 11 is mandatory and binding on the court. State v. Schumacher, 452 N.W.2d 345, 346 (N.D. 1990). Although Rule 11 does not require any ritualistic, predetermined formality by the trial court, the court must substantially comply with the procedural requirements of the rule to ensure the defendant is entering a voluntary plea of guilty. State v. Hoffarth, 456 N.W.2d 111, 113 (N.D. 1990).

[¶ 10] Farrell argues the trial court failed to substantially comply with the requirements of N.D.R.Crim.P. 11(c), which provides:

Insuring that the plea is voluntary. The court shall not accept a plea of guilty without first, by addressing the defendant personally [except as provided in Rule 43(c)] in open court, determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement. The court shall also inquire as to whether the defendant's willingness to plead guilty results from previous discussion between the prosecuting attorney and the defendant or the defendant's attorney.

Specifically, Farrell contends he should have been allowed to withdraw his guilty plea because the trial court did not ask Farrell whether his guilty plea resulted from previous discussions with the prosecuting attorney, and because he was not advised the court could reject the prosecutor's recommended sentence.

[¶ 11] This Court has previously dealt with guilty plea challenges based on the second sentence of N.D.R.Crim.P. 11(c) and the nonbinding nature of plea-negotiated recommendations for sentencing. In State v. Beckman, 1999 ND 54, ¶ 9, 591 N.W.2d 120, and Hoffarth, 456 N.W.2d at 113, the defendants sought to have their guilty pleas withdrawn because the trial court did not ask them whether their pleas resulted from prior discussions between the defendant and the prosecuting attorney. This Court noted the purpose of the second sentence of Rule 11(c) is for the trial court to ascertain whether the plea of guilty is the product of plea negotiations. Beckman, at ¶ 11; Hoffarth, at 114. Although the trial court did not ask the question in words that mirrored the second sentence of Rule 11(c), we held there was substantial compliance with the rule in those cases because the very information the rule was designed to elicit had nevertheless been discussed during the guilty plea hearing. Beckman, at ¶ 14; Hoffarth, at 114. In Beckman, at ¶¶ 12-14, the attorneys explicitly told the trial court there was no plea agreement in the...