State v. Hoffarth, Cr. N

Decision Date14 May 1990
Docket NumberCr. N
Citation456 N.W.2d 111
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. Robert Dale HOFFARTH, Defendant and Appellant. o. 890227.
CourtNorth Dakota Supreme Court

Tom P. Slorby (argued), State's Atty., Minot, for plaintiff and appellee.

Benjamin C. Pulkrabek (argued), Mandan, for defendant and appellant.

MESCHKE, Justice.

Robert Dale Hoffarth appealed from judgments of conviction, following his guilty pleas, for manslaughter and reckless endangerment. We affirm.

On the evening of September 19, 1988 Hoffarth became engaged in an argument with Elaine Olson and Mark Gaarder in the parking lot of a Minot bar. During the argument Hoffarth drew a revolver. In an ensuing struggle between Olson and Hoffarth the revolver was fired, wounding Olson and killing Hoffarth's companion, Robert Franstvog, Jr.

Hoffarth was charged with murder and criminal attempt. He pled not guilty. Later, he pled guilty to amended charges of manslaughter and reckless endangerment. Hoffarth was sentenced as a dangerous special offender to twenty years in prison on the manslaughter conviction and to five years, concurrently, on the reckless endangerment conviction.

On appeal, Hoffarth contended that the trial court did not follow the procedures required by NDCC 12.1-32-09 in sentencing him as a dangerous special offender. Specifically, Hoffarth asserted that he did not receive a five-day notice of the dangerous special offender hearing and that the State did not present timely evidence to prove that Hoffarth was a dangerous special offender.

The prosecution filed a notification that Hoffarth would be treated as a dangerous special offender under NDCC 12.1-32-09(1)(e) because he used a dangerous weapon in committing the offense. As this court ruled in State v. Wells, 265 N.W.2d 239 (N.D.1978), the dangerous special offender statute creates no new crime, but rather increases the penalty for conviction of an offense.

At the change-of-plea hearing on May 23, 1989, the trial court scheduled the sentencing and advised Hoffarth:

I will set 1:30 p.m., July 7, as the sentencing date. And in the meantime I will order a presentence investigation.

Mr. Hoffarth, would you please stand.

* * * * * *

There are some things that I want to explain to you for the record. I have just indicated that I would order a presentence investigation. That investigation will be submitted in the form of a report and you and your attorney and the State's Attorney would have access to that prior to the time of sentencing. The State is seeking to invoke the special dangerous offender statute and it is my interpretation of the law that when this takes place the Court is required to order a presentence investigation, and also to set a sentencing date at which time the sentencing hearing will be conducted to consider all the matters relevant to sentencing including the issue of special dangerous offender status.

Now, Mr. Hoffarth, at the sentencing you will be able to cross-examine any witnesses that the State might choose to present on the issue of disposition. You will also be entitled to present any witnesses that you might want to present bearing on disposition and you are also entitled to the process of the Court to compel the attendance of those witnesses.

Matters contained in the presentence report will be considered by the Court in imposing sentence and in considering the issue of the special dangerous offender status. You will be provided as I have indicated earlier with a copy of that report in a reasonable time in advance of the sentencing hearing. And you will be given an opportunity to present evidence should you disagree with any part of that report.

It was permissible for the trial court to combine the dangerous special offender hearing and the sentencing hearing into one proceeding. State v. Jensen, 333 N.W.2d 686 (N.D.1983). We conclude that at the May 23, 1989 hearing Hoffarth received adequate and timely notice of the later dangerous special offender hearing.

Under NDCC 12.1-32-09(4), the trial court can sentence a defendant as a dangerous special offender "[i]f it appears by a preponderance of the information, including information submitted during the trial of such felony and the sentencing hearing and so much of the presentence report as the court relies upon, that the defendant is a dangerous special offender...." The trial court was informed by the presentence report and by testimony given at the change-of-plea hearing on May 23, 1989, that Hoffarth used a firearm in committing the crimes. It was unnecessary for the trial court to require the prosecution to repeat that evidence at the dangerous special offender hearing. We conclude that the trial court followed the statutory procedure in sentencing Hoffarth as a dangerous special offender.

Hoffarth contended that the trial court did not follow the procedures required under NDRCrimP 11(c) before accepting Hoffarth's guilty pleas. NDRCrimP 11(c) 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.

Hoffarth asserted, specifically, that the trial court did not inquire as to whether Hoffarth's willingness to plead guilty resulted from prior discussions between the prosecuting attorney and Hoffarth or Hoffarth's attorney.

At the May 23, 1989 hearing the prosecutor told the court that he was amending the charges to manslaughter and reckless endangerment and that it was his understanding that Hoffarth would be pleading guilty to those charges. Later in the hearing, the prosecutor told the court:

Your Honor, no agreement has been reached between the State and the defense as to sentencing. I have advised the defense as to what the recommendation of the State would be and that would be a sentence of 20 years on the Manslaughter and 5 years on the Reckless Endangerment to be served consecutively, which is the maximum penalty available.

From these statements the court knew that discussions had occurred between the prosecution and the defense but that Hoffarth's willingness to plead guilty was not induced by an agreement for a reduced sentence recommendation by the State.

To make certain that Hoffarth's plea was voluntary the trial court questioned him:

THE COURT: Mr. Hoffarth, in your decision to enter a plea of guilty to these charges did anyone threaten you to get you to plead guilty?

MR. HOFFARTH: No, Your Honor.

* * * * * *

THE COURT: Has anyone made any promises to you to get you to plead guilty to these charges?

MR. HOFFARTH: No.

THE COURT: Has anyone promised that you would receive a certain sentence in exchange for your plea of guilty to either charge?

MR. HOFFARTH: No.

THE COURT: Have you decided to plead guilty after considering all of the alternatives, including the probability of the outcome should you stand trial on the original charge? In other words what I am getting at, have you considered the alternatives and have you come to this decision of your own free will after considering these alternatives?

MR. HOFFARTH: Yes.

Thus, the trial court ascertained by direct inquiry that Hoffarth pled guilty voluntarily and without undue compulsion.

Rule 11(d) of the Federal Rules of Criminal Procedure is substantively identical to our Rule 11(c), NDRCrimP. The United States Court of Appeals for the Eighth Circuit, in construing the federal...

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  • State v. Murphy
    • United States
    • North Dakota Supreme Court
    • 5 November 2014
    ...N.W.2d 211 ; State v. Blurton, 2009 ND 144, ¶ 10, 770 N.W.2d 231 ; Abdi v. State, 2000 ND 64, ¶ 12, 608 N.W.2d 292 ; State v. Hoffarth, 456 N.W.2d 111, 113–14 (N.D.1990) ; State v. Storbakken, 246 N.W.2d 78, 83 n. 5 (N.D.1976). [¶ 8] Murphy contends the district court failed to properly inf......
  • State v. Trevino
    • United States
    • North Dakota Supreme Court
    • 13 December 2011
    ...intelligent guilty plea. Blurton, 2009 ND 144, ¶ 10, 770 N.W.2d 231; Abdi v. State, 2000 ND 64, ¶ 12, 608 N.W.2d 292; State v. Hoffarth, 456 N.W.2d 111, 113–14 (N.D.1990); State v. Storbakken, 246 N.W.2d 78, 83 n. 5 (N.D.1976); see also N.D.R.Crim.P. 52(a) (“Any error, defect, irregularity ......
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    • United States
    • North Dakota Supreme Court
    • 30 March 2000
    ...agreements. Farrell, 2000 ND 26, ¶¶ 15-17, 606 N.W.2d 524; see also State v. Beckman, 1999 ND 54, ¶ 10, 591 N.W.2d 120; State v. Hoffarth, 456 N.W.2d 111, 114 (N.D.1990). In Farrell, at ¶ 17, we described the reason for the second sentence of N.D.R.Crim.P. The provisions of N.D.R.Crim.P. 11......
  • State v. Parisien
    • United States
    • North Dakota Supreme Court
    • 7 May 1991
    ...State v. Boushee, 459 N.W.2d 552, 555 (N.D.1990) (citing State v. Storbakken, 246 N.W.2d 78 (N.D.1976)). See also, State v. Hoffarth, 456 N.W.2d 111, 113 (N.D.1990); Schumacher, 452 N.W.2d at 347; Hagemann, 326 N.W.2d at On September 17, 1990, Parisien appeared before the County Court for R......
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