State v. Haverluk

• Citation: 432 N.W.2d 871
• Decision Date: 06 December 1988
• Docket Number: Cr. N
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Neal Matt HAVERLUK, Defendant and Appellant. o. 880061.
• Court: United States State Supreme Court of North Dakota

Page 871

432 N.W.2d 871

STATE of North Dakota, Plaintiff and Appellee, v. Neal Matt HAVERLUK, Defendant and Appellant.

Cr. No. 880061.

Supreme Court of North Dakota.

Dec. 6, 1988.

Thomas J. Gunderson, Dickinson, for defendant and appellant.

Tom M. Henning, Asst. States Atty., Dickinson, for plaintiff and appellee.

GIERKE, Justice.

This is an appeal by Neal Matt Haverluk (Haverluk) from a conviction of driving while under the influence of alcohol, a class A misdemeanor, in violation of Section 39-08-01, N.D.C.C. Haverluk was sentenced to serve one year at the North Dakota State Farm and to pay a fine in the amount of $1,000.00 and costs in the amount of $1,400.00. We affirm.

On April 19, 1987, Haverluk was arrested on the charge of driving under the influence of intoxicating liquor, a class B misdemeanor, in violation of Section 39-08-01, N.D.C.C. The State subsequently moved to amend the complaint to charge the offense as a class A misdemeanor on the basis that it was Haverluk's fourth violation of Section 39-08-01 or equivalent ordinances in a seven-year period or since July 1, 1981. ¹ An amended criminal complaint was filed on June 25, 1987.

On July 8, 1987, Haverluk filed a motion to dismiss the amended complaint based on retroactive application of Section 39-08-01. A hearing on the motion to dismiss was held on July 30, 1987. The trial court, in a memorandum opinion dated September 28, 1987, denied the motion to dismiss the complaint but advised that, if convicted, Haverluk's sentence will be imposed consistent with a first offense. On October 12, 1987, the State filed a motion for reconsideration or clarification of the trial court's memorandum opinion. After reconsidering its previous decision, the trial court issued on November 25, 1987, a memorandum ordering Haverluk to be tried on a class A misdemeanor charge.

A jury trial was held on February 18, 1988. During trial, the State offered and the trial court received into evidence three previous criminal judgments of conviction for the offense of driving under the influence of alcohol or equivalent violations. Haverluk was convicted of the offense of driving under the influence of alcohol, a class A misdemeanor, in violation of Section 39-08-01 of the North Dakota Century Code. Haverluk filed this appeal on February 25, 1988.

Haverluk raises two issues on appeal. Haverluk contends that the penalty provisions contained in Section 39-08-01 were not intended to apply retroactively and therefore the trial court erred in considering his prior convictions between July 1, 1981, and July 1, 1983. Haverluk also contends that there was insufficient evidence of representation of counsel or waiver of counsel in his prior driving under the influence convictions to enhance the penalty of a subsequent conviction and therefore the trial court erred in sentencing him for a class A misdemeanor offense.

Haverluk maintains that the driving under the influence convictions between July 1, 1981, and July 1, 1983, cannot be considered to enhance the penalty of this subsequent conviction for driving under the influence. Basically, Haverluk's argument is one of ex post facto application ² of the sentencing provisions of Section 39-08-01, N.D.C.C., by considering for sentencing purposes the convictions before July 1, 1983, the effective date of the 1983 amendments to Section 39-08-01 and since July 1, 1981, the end date under Section 39-08-01.1 ³ for considering prior convictions for enhancement.

In Reiling v. Bhattacharyya, 276 N.W.2d 237, 239 (N.D.1979), this Court explained retroactivity as follows:

"A statute is applied retroactively when it is applied to a cause of action that arose prior to the effective date of the statute. A statute is applied prospectively when it is applied to a cause of action that arose subsequent to the effective date of the statute."

In the instant case, the charge of driving under the influence of alcohol in violation of Section 39-08-01 of the North Dakota Century Code arose from the incident on April 19, 1987, which is subsequent to the effective date of the 1983 sentencing amendments of the statute.

In State v. Lebus, 339 N.W.2d 564 (N.D.1983), this Court was asked to address the certified question of whether or not consideration of prior convictions predating the effective date of the 1983 amendments to Section 39-08-01 which enhance the offense was an ex post facto application of the statute. Although the Court, in State v. Lebus, supra, determined it was not a proper question for certification, the Court, in footnote 3, recognized several other state jurisdictions which have upheld the use of prior driving under the influence convictions to enhance punishment for subsequent driving under the influence convictions. ⁴ Additionally, in State v. Lebus, supra at 566 n. 3, this Court quoted favorably from Thompson v. Thompson, 78 N.W.2d 395, 400 (N.D.1956), with regard to the ex post facto issue as follows:

" 'The general rule is that where augmented punishments are provided for a second offense the fact that the first offense was committed before the enactment of the statute does not render the application of the statute violative of the ex post facto prohibition.

" 'A statute prescribing a heavier punishment for second offenders is not invalid as ex post facto, even though the first offense was previously committed; the punishment is of the second offense only, but is more severe because of the class in which the defendant placed himself by his first offense.' Sutherland, Statutory Construction, Third Edition, Section 2306."

In State v. Willis, 332 N.W.2d 180, 185 (Minn.1983), the Supreme Court of Minnesota held that the use of prior convictions to increase the penalty for an underlying substantive offense committed after the effective date of a statute providing for increased penalties does not constitute ex post facto application of the statute.

We do not believe that the consideration of prior convictions occurring before the effective date of the enhancement statute was ex post facto. Accordingly, we do not believe that the trial court erred in considering, for sentencing purposes, Haverluk's driving under the influence convictions between July 1, 1981, and July 1, 1983.

Haverluk maintains that prior driving under the influence convictions cannot be used to enhance the penalty of a subsequent conviction when there is insufficient evidence of representation of counsel or waiver of counsel in the earlier convictions. Haverluk asserts that there was insufficient evidence of representation of counsel or waiver of counsel in his prior driving under the influence convictions to allow the enhancement of the penalty for this subsequent driving under the influence conviction.

After reviewing the record, we note that the uncounseled conviction argument was not directly raised before the trial court and is raised for the first time on appeal. Generally, issues or matters not presented to the trial court will not be considered for the first time on appeal. See e.g., State v. Brown, 420 N.W.2d 5, 7 (N.D.1988); State v. Jones, 418 N.W.2d 782, 783 (N.D.1988); State v. Manke, 361 N.W.2d 247, 249 (N.D.1985); State v. Ronngren, 361 N.W.2d 224, 231 (N.D.1985). A limited exception to this general principle is set forth in Rule 52 of the North Dakota Rules of Criminal Procedure.

Rule 52 of the North Dakota Rules of Criminal Procedure provides as follows:

"(a) Harmless error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.

"(b) Obvious error. Obvious errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court."

Thus, even though the general rule is that an issue will not be noticed unless raised at trial, an error that infringes upon substantial rights of the defendant is noticeable notwithstanding lack of an objection. See Rule 52(b), N.D.R.Crim.P.; see also State v. Kraft, 413 N.W.2d 303, 307 (N.D.1987); State v. Miller, 388 N.W.2d 522, 522 (N.D.1986).

The power to notice obvious error is exercised cautiously and only in exceptional circumstances where a serious injustice has been suffered by the defendant. State v. Kraft, supra; State v. Janda, 397 N.W.2d 59, 70 (N.D.1986); Explanatory Note to Rule 52, N.D.R.Crim.P.; see also State v. Johnson, 379 N.W.2d 291, 293 (N.D.), cert. denied, 475 U.S. 1141, 106 S.Ct. 1792, 90 L.Ed.2d 337 (1986). In assessing the possibility of error concerning substantial rights under Rule 52(b), N.D.R.Crim.P., we must examine the entire record and the probable effect of the actions alleged to be in error in light of all the evidence. State v. Johnson, supra; State v. Rindy, 299 N.W.2d 783, 785-786 (N.D.1980).

We note that the error complained of in the instant case allowed the elevation of the offense from a class B misdemeanor to a class A misdemeanor. Accordingly, we believe the alleged error is the type which comes within the meaning of Rule 52(b), N.D.R.Crim.P., and may be noticed on appeal even though it was not brought to the attention of the trial court.

In State v. Orr, 375 N.W.2d 171 (N.D.1985), this Court found that prior uncounseled convictions cannot be used to enhance a term of imprisonment for a subsequent offense. Further, in State v. Orr, supra at 179, we stated that "the State, in seeking to imprison Orr as a second offender based on his earlier presumptively void uncounseled conviction, had the burden to overcome this presumption...." Accordingly, in State v. Orr, this Court held that a silent record was insufficient to overcome the presumption that the prior uncounseled conviction was void for enhancement purposes.

After reviewing the record in the instant case, we find that it is not completely silent as to whether or not Haverluk was represented by counsel in his previous driving under the influence convictions. The certified criminal judgment from Stark...