State v. Hagemann, Cr. N

• Decision Date: 02 December 1982
• Docket Number: Cr. N
• Citation: 326 N.W.2d 861
• Parties: The STATE of North Dakota, Plaintiff and Appellee, v. Perry Dean HAGEMANN, Defendant and Appellant. o. 880.
• Court: North Dakota Supreme Court

Page 861

326 N.W.2d 861

The STATE of North Dakota, Plaintiff and Appellee, v. Perry Dean HAGEMANN, Defendant and Appellant.

Cr. No. 880.

Supreme Court of North Dakota.

Dec. 2, 1982.

Neil W. Fleming, Cavalier, for defendant and appellant.

Cameron D. Sillers, State's Atty., Langdon, for plaintiff and appellee.

PAULSON, Justice.

Perry Dean Hagemann appeals from a final judgment of the District Court of Cavalier County dated March 22, 1982, dismissing his application for post-conviction relief. We affirm.

On July 27, 1981, Hagemann was arrested and charged with a class B felony, gross sexual imposition, in violation of Sec. 12.1-20-03 of the North Dakota Century Code. ¹ The information and amended criminal complaint alleged that on or about July 26, 1981, at the Senator Young Dam area within Cavalier County, the said

"Defendant engaged in a sexual act with Albert Domres; That the Defendant compelled the victim to submit by force by threatening him with serious bodily injury; That the Defendant threatened Albert Domres and Marie Domres with imminent bodily injury by holding them under gunpoint and threatening to kill them if they did not do what they were told; That the Defendant forced both Albert Domres and Marie Domres to disrobe and the Defendant engaged in sexual acts with Albert Domres by causing contact between the Defendant's mouth and the victim's penis."

Hagemann was arraigned before the District Court of Cavalier County on September 2, 1981. At his arraignment, the defendant was read the contents of the criminal information and was informed of his constitutional rights by the district court. Represented by court-appointed counsel, Hagemann entered a plea of not guilty and trial was scheduled for September 29, 1981.

On the trial date, Hagemann changed his plea from not guilty to guilty, pursuant to a plea agreement prepared by his defense counsel and the state's attorney. The plea agreement provided that in return for a guilty plea, the State would recommend that the defendant's sentence should be set at six years in the North Dakota State Penitentiary. During the hearing the trial judge asked Hagemann if he had any questions concerning the consequences of his actions, but the judge did not at that time re-advise him of his constitutional rights. In addition, the judge questioned Hagemann concerning his understanding of the plea agreement and sentencing guidelines. The court also asked Hagemann if he could remember the contents of the criminal information which was read to him at the September 2, 1981, arraignment. Hagemann replied that he had no questions regarding any of the above matters. Hagemann also replied in the negative when the trial court asked him if his change of plea was made as the result of any threats. Upon hearing a factual basis for acceptance of the plea agreement from the prosecuting attorney and defense counsel, the trial judge sentenced Hagemann to imprisonment in the State Penitentiary for six years in accordance with the terms of the plea agreement.

After being incarcerated at the penitentiary, Hagemann obtained other counsel and filed an application for post-conviction relief, pursuant to the Uniform Post-Conviction Procedure Act, Chapter 29-32, N.D.C.C., requesting that his judgment of conviction be vacated and that he be allowed to withdraw his plea of guilty and enter a plea of not guilty to the charge. In support of the application for post-conviction relief, it was alleged:

a) That the defendant did not understand the nature of the plea bargain.

b) That the defense counsel and the prosecuting attorney led the defendant to believe that the defendant had no choice but to go along with such plea bargain.

c) That the defendant does not remember doing any of the acts and there are insufficient facts presented on the record to justify the acceptance of plea.

d) Defendant failed to understand that he, by pleading guilty, would receive a six-year penitentiary sentence.

e) That the defendant was subject to undue pressure to accept the plea bargain and did not fully understand the consequences of the plea.

f) That the defendant was led to believe that there would be no mention of a weapon regarding the plea bargain and therefore that the defendant would not be sentenced under the mandatory sentencing provision regarding firearms.

g) That the defendant was surprised and confused as to why he should be sentenced immediately upon the receipt of the plea and not be allowed to call witnesses in his own behalf h) That the defendant was confused as to why he was not allowed to have a trial and present evidence.

The District Court of Cavalier County dismissed the defendant's application for post-conviction relief, pursuant to the provisions of Sec. 29-32-06, N.D.C.C., and an order was entered accordingly. Hagemann appeals.

Hagemann's major contention on appeal is that the district court abused its discretion in dismissing his application for post-conviction relief because Hagemann did not understand the effect of his entry of a guilty plea and, therefore, did not knowingly and intelligently enter his plea of guilty under the standards prescribed by Rule 11, North Dakota Rules of Criminal Procedure. We believe that the gist of Hagemann's argument that his plea of guilty was not given voluntarily and intelligently can be reduced to three contentions: (1) that substantial compliance with Rule 11(b), N.D.R.Crim.P., did not exist when, although the defendant was advised of his constitutional rights at his arraignment on September 2, 1981, ² he was not re-advised of his rights or specifically asked whether or not he recalled them at the change-of-plea hearing on September 29, 1981; (2) that substantial compliance with Rule 11(e), N.D.R.Crim.P., did not exist because there was an insufficient factual basis adduced for the guilty plea and because the district court did not specifically inquire of the defendant as to the factual basis of the plea; and, (3) that the totality of the circumstances indicate that the defendant was confused and was not aware of the rights he was waiving and of the consequences of his plea of guilty. We will address each contention in turn.

I

The law with respect to guilty pleas is well settled. ³ In State v. Storbakken, 246 N.W.2d 78, 82 (N.D.1976), we stated:

"There are federal guidelines to follow when considering guilty pleas. In Boykin v. Alabama, 395 U.S. 238, 242-243, 89 S.Ct. 1709 [1711], 23 L.Ed.2d 274 (1969), the United States Supreme Court stated:

" 'A plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment....

* * *

" 'Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth.... Second, is the right to trial by jury.... Third, is the right to confront one's accusers.... We cannot presume a waiver of these three important federal rights from a silent record.'

"And in Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463 [1468], 25 L.Ed.2d 747 (1970), the United States Supreme Court stated:

" 'Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.' "

See also State v. Barlow, 193 N.W.2d 455, 458 (N.D.1971).

Rule 11(b), N.D.R.Crim.P., which largely codifies the principles in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) [see Explanatory Note to subdivision (b) of Rule 11, N.D.Rules of Court '81 Pamph.], outlines some of the requirements a court must follow in accepting a guilty plea. These procedures are mandatory and binding upon the court. State v. Mortrud, 312 N.W.2d 354, 356 (N.D.1981); State v. McKay, 234 N.W.2d 853, 859 (N.D.1975). Rule 11(b), N.D.R.Crim.P., provides in pertinent part:

"(b) Advice to Defendant. 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, informing him of and determining that he understands the following:

"(1) The nature of the charge to which the plea is offered;

"(2) The mandatory minimum punishment, if any, and the maximum possible punishment provided by the statute defining the offense to which the plea is offered;

"(3) That the defendant has the right to plead not guilty, or to persist in that plea if it has already been made, or to plead guilty;

"(4) That if he pleads guilty there will not be a further trial of any kind, so that by pleading guilty he waives the right to a trial by jury or otherwise and the right to be confronted with the witnesses against him; ...

Hagemann does not claim that all of the applicable rights set forth in Boykin, supra, and in Rule 11(b) were not conveyed to him, nor does he claim that he did not understand their meaning at the time he was apprised of them at his arraignment on September 2, 1981. Rather, he argues that the district court erred in not re-advising him of these rights at the time he entered his plea of guilty on September 29, 1981. A review of the record of the September 2 arraignment proceedings ⁴ reveals that Hagemann was informed of all of his necessary rights and that the district court did determine that Hagemann understood these rights and the charge brought against him.

This case is substantially similar to the fact situation in State v. Storbakken, 246 N.W.2d 78 (N.D.1976). In Storbakken, supra, the defendant challenged the validity of his guilty plea solely because the trial court did not restate his constitutional rights eo nomine at the time it accepted the plea, and because the trial court did not follow the exact format of questioning...