State v. Hamann, Cr. N

• Decision Date: 19 January 1978
• Docket Number: Cr. N
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Bonnie HAMANN, Defendant and Appellant. o. 609.
• Court: North Dakota Supreme Court

Page 495

262 N.W.2d 495

STATE of North Dakota, Plaintiff and Appellee, v. Bonnie HAMANN, Defendant and Appellant.

Cr. No. 609.

Supreme Court of North Dakota.

Jan. 19, 1978.

Dale W. Moench, Asst. State's Atty., Dickinson, for plaintiff and appellee.

Jerome L. Jaynes, Hettinger, for defendant and appellant.

SAND, Justice.

The appellant, Bonnie Hamann, pleaded guilty to theft of property and a judgment of conviction was entered in Stark County Court with Increased Jurisdiction on 26 April 1977. She was sentenced on 8 June 1977 to a period of 30 days in the Stark County jail, of which 10 days were suspended for a period of one year, provided she had no criminal violations during that time.

The defendant made a motion for reduction of sentence dated 14 June 1977. She also moved the court for permission to withdraw her guilty plea on the ground that she was not involved in the offense to which she entered a guilty plea and because "she pled guilty contrary to her own will and desire and was coerced into pleading guilty by her attorney who promised her she would not serve any time in the jail if she pled guilty." ¹

At a post-conviction hearing held 17 June 1977, the court denied the defendant's motion for a reduced sentence because it could not "see any compelling reason to grant it." The court also denied defendant's motion to withdraw her plea.

The defendant filed a notice of appeal and a motion to stay the judgment. The court granted the motion to stay its judgment until her appeal had been exhausted, and also released the defendant on her own recognizance pending appeal.

On appeal, defendant contended that the trial court did not fully comply with Rule 11 of the North Dakota Rules of Criminal Procedure before accepting her plea of guilty. She also asserted that the trial court erred in denying her motion to withdraw her plea of guilty.

The defendant was originally charged on 10 November 1976 with the offense of criminal attempt (theft), a felony, in violation of § 12.1-06-01 of the North Dakota Century Code. On 14 April 1977 the State moved to amend the criminal complaint to charge the defendant with theft of property, in violation of § 12.1-23-02(3), NDCC, a misdemeanor. This motion was made on the basis of a plea agreement between the State and the defendant. The State also informed the court it had insufficient evidence to prove the criminal attempt charged in the original complaint. Pursuant to the plea bargain, the State agreed to move to amend the complaint, based on the evidence, and the defendant agreed to plead guilty to the amended charge, subject to the approval of the court.

The defendant, represented by counsel, entered her guilty plea at the 26 April 1977 hearing. At that hearing, the plea agreement was presented to the court, after which the court asked, "Is that the plea agreement as understood by the Defendant?" Her attorney answered yes, and added:

"My client claims that she did not know that these two bandages were there. However, the evidence which I have examined would indicate that she should have known, and, most likely, the trier of the facts, that she did know these two bandages were in her apartment. So we have bargained and agreed to plead to the charge as stated by Mr. Moench."

The court then asked:

"Bonnie, do you understand the results of the plea to the Amended Complaint, if, in fact, the motion is granted?

"THE DEFENDANT: Yes, I do.

"THE COURT: Do you understand that you subject yourself to the maximum penalty of $500.00 or a thirty-day jail sentence, or both?

"THE DEFENDANT: Yes, I do.

"THE COURT: Okay. Are you willing then to accept this plea agreement as offered by the State?

"THE DEFENDANT: Yes, I am."

The court granted the motion to amend the criminal complaint, read the amended complaint, and asked the defendant to enter a plea. The defendant then entered her guilty plea. The court ascertained that her plea was entered pursuant to the plea agreement and also asked:

"Is part of the plea agreement that the State would make no recommendation, or was there anything discussed?

"MR. MOENCH (State's Attorney): I don't think that's part of the plea agreement. However, I don't have any particular recommendation, Your Honor, regarding this matter."

The court continued the case for sentencing to 25 May 1977.

Because of intervening events, the sentencing was delayed until 8 June 1977, at which time the defendant was represented by different counsel. The attorney who represented her in the plea negotiations with the State and when she entered her plea of guilty requested permission to withdraw from the case. The court granted its permission on 25 May 1977. The defendant obtained a second attorney who represented her when the court sentenced her to 30 days in the county jail, ten days suspended for a one year period, provided she would incur no criminal charges during that time.

A post-conviction hearing was held on 17 June 1977 at which the defendant asked for a reduction of sentence. The court denied the motion for the reduction of sentence and also denied a motion for withdrawal of the guilty plea.

At the initial proceedings before the plea bargain agreement was reached and prior to the entry of her guilty plea, the defendant signed an affidavit and waiver on 23 November 1976, at which time she had pleaded not guilty to the offense of criminal attempt in a written statement. In this affidavit and waiver statement, the defendant enumerated her constitutional rights, including, in part:

"I understand that I have the right to remain silent.

"I understand that I am entitled to trial by jury and do hereby request same."

The defendant changed her plea from not guilty to guilty at the 26 April 1977 hearing pursuant to a plea bargain agreement.

We consider first defendant's contention that Rule 11, N.D.R.Crim.P., was not sufficiently complied with by the court. The defendant asserts that:

1. The court did not inform her of the constitutional rights she would be waiving by pleading guilty;

2. The court failed to personally address the defendant concerning her plea to determine if it was voluntary or the result of promises apart from a plea bargain;

3. The nature of the offense charged in the amended complaint was not explained to her;

4. She was not informed of the "minimum possible" punishment for the offense; and

5. The court failed to determine whether there was a factual basis for her plea of guilty.

The United States Supreme Court, in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), noted that a plea of guilty to an offense acts as a waiver of several constitutional rights, including the Fifth Amendment privilege against self-incrimination; the right to trial by jury; and the right to confront one's accusers. The Court also said, "We cannot presume a waiver of these three important federal rights from a silent record." Boykin, supra at 243, 89 S.Ct. at 1712.

Later, in Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), the United States Supreme Court said that waivers of constitutional rights must be voluntary and knowing.

The North Dakota Supreme Court, in State v. Storbakken, 246 N.W.2d 78, 83 (1976), held that

"Neither Rule 11 nor compliance with Boykin due process standards states that the trial judge must specifically inform a defendant, eo nomine, of his rights he waives by pleading guilty. (Citations omitted.) It is sufficient to satisfy due process that such knowledge on the part of the defendant is clearly reflected from the whole record, not just the interrogation of the defendant by the trial court."

It is clear from the record that the defendant was aware of her constitutional rights. At the time she originally pleaded not guilty to the offense charged, she signed a written affidavit and waiver in which she enumerated her constitutional rights and said that she understood them. We note that the defendant was represented by counsel at all stages of the proceedings.

Although the court did not restate the defendant's constitutional rights at the time it accepted her guilty plea or follow the exact format of Rule 11, N.D.R.Crim.P., the court did personally address the defendant to determine whether her plea was voluntary and intelligent. This court, in State v. Storbakken, supra at 83, said that there is no requirement that the court follow a "specific legal ritual" in determining that a plea is voluntary and intelligent.

The defendant has also charged that the court failed to personally address her concerning her plea to determine whether it was voluntary or the result of promises apart from a plea bargain. She specifically claims that she was coerced into pleading guilty by her attorney, who promised her she would not serve any time in jail if she pleaded guilty. At the post-conviction hearing the court interrogated defendant on this point.

"Q And you're telling the Court but for that advice you wouldn't have entered your plea of guilty? Is that what you're saying?

"A I don't really understand this, because I was told that no one would believe Gary Pavlicek if he told the truth because I associated with him, so they would assume that he was lying to protect me. And it was explained to me also this way: Mr. Greenwood said, 'If you go to court on those burglaries, you don't have a chance of winning them.' I said, 'How about if Gary Pavlicek gets up and says what he has to say?' He said, 'That doesn't matter. Burglaries are a felony. You'll lose your cattle buying license. And this is a misdemeanor, and you won't.'

"Q So you took a chance for something certain versus something uncertain?

"A I listened to my attorney, because that's what I (was) advised to do over and over again.

"Q Did this Court at any time ever tell you that you would not be jailed?

"A No.

"Q Did it tell you more than once that the jail sentence could be thirty days?

"A Yes.

"Q Did the States Attorney's office ever tell you that...