State v. Gustafson
| Decision Date | 12 April 1979 |
| Docket Number | Cr. N |
| Citation | 278 N.W.2d 358 |
| Parties | STATE of North Dakota, Plaintiff and Appellee, v. Scott GUSTAFSON, Defendant and Appellant. STATE of North Dakota, Plaintiff and Appellee, v. Gordon NELSON, Defendant and Appellant. os. 633, 634. |
| Court | North Dakota Supreme Court |
Greenwood, Greenwood & Greenwood, Dickinson, for defendants and appellants; argued by Mark L. Greenwood, Dickinson.
Albert J. Hardy, State's Atty., Dickinson, for plaintiff and appellee; on briefs only.
These are separate appeals asking for review under § 29-32-09, NDCC (Uniform Post-Conviction Procedure Act), from orders denying post-conviction remedies. Orders are considered judgments (see § 29-32-07, NDCC); however, no specific findings of fact or conclusions of law were made. Gustafson and Nelson moved for "judgment upon brief of appellant and to vacate judgment of trial court" because of the failure of the state's attorney to serve and file appellee's brief within 30 days after service of the appellant's brief, as required by Rule 31, NDRAppP. We decline to grant that motion as we do not consider that to be an appropriate action under Rule 13, NDRAppP. 1 We prefer to reach the merits. We reverse the judgments, set aside the convictions, and remand for further proceedings.
At an arraignment session the trial judge read a statement of basic rights to a group of suspects, which included Gustafson and Nelson, then followed with individual questioning. The state's attorney was not present but Norbert Sickler, an investigator representing the North Dakota Bureau of Criminal Investigation, was in the room and participated in some of the discussion. Both Gustafson and Nelson were present without counsel, and both entered pleas of guilty to the charge of unauthorized use of a vehicle in violation of § 12.1-23-06, NDCC. The record does not show whether Gustafson and Nelson received a copy of the complaint. At the arraignment the two complaints charged that on January 17, 1977, Gustafson and Nelson ". . . together with others, took, operated, or exercised control over a John Deere Snowmobile, 440 Cyclone, SN59783, valued at approximately $2,000.00, knowing that he did not have the consent of the owner, . . . ."
While interrogating Gustafson, the trial judge read the charge, then asked, "What plea do you enter?", and the response was "Guilty." Thereafter Gustafson was asked if he understood that he had a right to consult an attorney, and that if he wished to have one and couldn't afford one the county would appoint an attorney for him, and the answer was "Yes." The judge also asked if there had been any threats or promises and the answer was "No." When Gustafson was responding to the question, "Tell me about what happened," the judge discovered that Gustafson did not admit to taking, operating or exercising control over a snowmobile, and that there was no factual basis for the plea of guilty. The judge said, "I'm going to refuse to accept your plea of guilty at this time . . . ." At this point Sickler entered the discussion, which is as follows:
The discussion continued with Gustafson describing what happened on January 17, 1977, after which the court announced: "Okay, at this time I will accept the entry of your plea of guilty."
During the court's interrogation of Nelson, after a reading of the charge and Nelson responding with a plea of "Guilty," Nelson acknowledged that he understood that the county would appoint an attorney if he wanted one and could not afford to pay for one, and that there had been no threats or promises. In describing what happened, Nelson said he "took the Cyclone snowmobile . . . drove . . . (it) around for a while," and "ditched . . . (it) out there."
Both cases were continued for sentencing until November 23, 1977, at which time Gustafson, Nelson and an assistant prosecutor, Mr. Moench, were present. There was some preliminary discussion, which included the following question by the court to Gustafson:
"And after being advised of your rights and the Criminal Complaint against you, you entered a plea of guilty to the charge of taking a John Deere snowmobile on the 17th day of January, 1976, is that correct?"
Gustafson's response was "Mm-hmm."
The court thereupon asked if Gustafson wished to make any statement or to present any evidence in mitigation or aggravation of any sentence that might be imposed. Gustafson indicated several times that he did not understand, but finally, when the judge asked if he had any feeling about what the penalty should be, he said: "Probably probation, something like that."
Mr. Moench then recommended one-year confinement, suspended upon condition of no violations, and probation for that year. He added that
While the judge was commenting about his dissatisfaction with the recommendations, Mr. Moench interrupted and asked ". . . did we ever amend the Complaint in this particular thing?" The judge said: "The Complaint I got, it originally charged 1977." Mr. Moench said:
The judge thereupon said: "I'll amend the Complaint by crossing out the word 'Cyclone, SN59783,' and adding in there the word 'Liquefier.' " Nothing was said about changing the date from 1977 to 1976 but the complaint now shows that that change was also made.
A sentence was then pronounced a fine of $100.00 and one year at the State Farm in Bismarck for Gustafson.
At the sentencing hearing on November 23, 1977, the judge said:
"Mr. Nelson, you appeared before this Court also one week ago, were advised of your rights, and at that time entered a plea of guilty to the offense of having on the 17th day of January, 1977 "
Whereupon Mr. Moench interrupted by saying: The following discussion ensued:
Further discussion followed, including a request by the court for recommendations from Nelson and Moench for sentencing. Nelson, among other things, said: ". . . hopefully, I can get some kind of deferred sentence of some type where I could still continue on with my schooling and, hopefully, better myself."
In response to the court's inquiry, Mr. Moench recommended one-year confinement, suspended on condition of no violations, and supervised probation. The judge imposed no fine but sentenced Nelson to one year at the State Farm and then asked: "Do you have any legal cause to show today why this judgment should not be entered?" Nelson responded: "No, nothing of the legal system."
Both Gustafson and Nelson were delivered to the warden at the state penitentiary on November 23, 1977, and, shortly thereafter, they retained counsel. Gustafson and Nelson properly moved, pursuant to Rule 32(d), NDRCrimP, for permission to withdraw their pleas and for post-conviction relief. Each also moved that the court reduce or commute his sentence pursuant to Rule 35, NDRCrimP. Both Gustafson and Nelson were returned from the penitentiary for the hearing on these motions and applications on December 7, 1977.
After the December 7 hearing, when all the motions and applications were consolidated without objection, the court denied the motions to withdraw the pleas, the applications for post-conviction relief, and the motions to have the sentences reduced or commuted.
At the December 7 hearing, both Gustafson and Nelson testified that a promise had been made to them by Mr. Sickler. Gustafson said Sickler told him ". . . that we'd probably we would get probation, and after that year it would be taken off our record," and that deferred imposition "will no doubt be our sentence." Nelson said Sickler told him "that we no doubt would get probation" and "it would be wiped off our record." Mr. Sickler testified that he told them "we'd go on an imposition of delayed sentencing" and "that the States Attorney's Office had agreed to go on . . . imposition of delayed sentencing." Sickler could not recall whether he had said "no doubt" there would be a deferred imposition of sentence.
At that hearing, Mr. Moench said: He also said, "I don't believe, personally, there was a plea bargain or plea agreement involved in here, simply because I never had any contact with the two Defendants . . . ." Additional comments by Mr. Moench were: "I have no reason to doubt his (Sickler's) statement that he indicated to me we should recommend a...
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