State v. Howe

• Citation: 257 N.W.2d 413
• Decision Date: 01 August 1977
• Docket Number: Cr. 569
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Henry Herbert HOWE, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 413

257 N.W.2d 413

STATE of North Dakota, Plaintiff and Appellee, v. Henry Herbert HOWE, Defendant and Appellant.

Cr. 569.

Supreme Court of North Dakota.

Aug. 1, 1977.

Irvin B. Nodland, Lundberg, Conmy, Nodland, Rosenberg, Lucas & Schulz, Bismarck, and Richard B. Baer, Christensen, Baer & Thompson, Bismarck, for defendant and appellant; argued by Nodland.

Calvin N. Rolfson, Deputy Atty. Gen., Bismarck, and John T. Paulson, Barnes County States Atty., Valley City, for plaintiff and appellee; argued by Rolfson.

ERICKSTAD, Chief Justice.

Henry H. Howe appeals from a judgment and sentence upon a jury verdict convicting him of the crime of failure to appear after release, and from a subsequent order denying motions for judgment notwithstanding the jury verdict, for arrest of judgment, and alternatively for a new trial.

MOTION TO DISMISS APPEAL

Before revealing the facts and considering the substance of this appeal, we must first consider the motion by the State to dismiss this appeal because of alleged failure by Howe and his attorneys to comply with the North Dakota Rules of Appellate Procedure.

The State, in the conclusory section of its brief, maintains that Howe violated the North Dakota Rules of Appellate Procedure in ten different ways:

"1) He has filed a defective Notice of Appeal by omitting in the notice both the name of the party taking the appeal and the court to which the appeal is taken, in violation of Rule 3(c), N.D.R.App.P.

"2) He has belatedly filed a second defective notice of appeal which notice failed to state the court to which the appeal is taken in violation of Rule 3(c), N.D.R.App.P., and which notice was untimely filed seven days beyond the deadline in violation of Rule 4(b), N.D.R.App.P.

"3) He has failed to timely order the transcript from the trial court reporter, having placed the order 21 days beyond the established limits in violation of Rule 10(b), N.D.R.App.P.

"4) He has failed to transmit the complete record on appeal, including the transcript, within 40 days after filing the notice of appeal, said transcript being filed on April 13, 1977, resulting in a delay of 157 days (over 5 months) beyond the mandated deadline, all in violation of Rule 11(a), N.D.R.App.P.

"5) He has failed, within the time originally prescribed for transmittal of the record under Rule 11(a), to move the trial court for an extension of time within which to transmit the record on appeal to the Supreme Court, said delay being fifteen (15) days beyond the deadline when such motion may be properly made, all in violation of Rule 11(d), N.D.R.App.P.

"6) He has requested of the trial court an extension of the time within which to transmit the record on appeal, said request extending the time to a period beyond the maximum 90 day limit, all in violation of Rule 11(d), N.D.R.App.P. (Citation omitted.)

"7) He has failed to cause a timely transmittal of the record on appeal, including the transcript, having transmitted the transcript to the Supreme Court and the State on April 13, 1977, 156 days beyond the mandates of Rule 11(a), and 107 days beyond the mandates of Rule 11(d), all in violation of Rule 12(c), N.D.R.App.P.

"8) He has failed to apply to the North Dakota Supreme Court for any extensions of time beyond the prescribed rules limits, as permitted by Rule 26(b), N.D.R.App.P.

"9) He has failed to serve copies of all papers upon the State/appellee, and in particular, has submitted ex parte motions to the trial court without any notice to the State whatsoever, in direct violation of Rules 25(b), 25(d), 27(a), and 27(b), N.D.R.App.P.

"10) He has failed to timely serve and file his appellant's brief within forty (40) days after the deadline for filing the record, having filed his briefs on April 13, 1977, approximately 104 days beyond maximum limits and without securing proper extensions, all in violation of Rules 31(a) and 31(c), N.D.R.App.P."

Although the State has listed 10 separate violations of the Rules of Appellate Procedure, alleged violations (1) and (2) may be considered together. Numbers (3) through (8) and (10) may also be considered together, as all relate to the failure to cause a timely transmittal of the record.

As to any defects in the first and second notices of appeal, we note that a notice was in fact filed within ten days after the entry of judgment, in compliance with the jurisdictional requirement of Rule 4(d), N.D.R.App.P. The State makes no argument that the first notice of appeal In his return to the motion to dismiss the appeal, Howe did not deny that these violations occurred, though he characterized the State's description of events surrounding the violation of these rules as "overall not an accurate reflection of what has been happening in this case." He further resists the motion to dismiss upon the grounds that (1) the North Dakota Rules of Appellate Procedure are conflicting and confusing, (2) actions taken by the clerk of the Supreme Court of North Dakota and the court reporter at trial have caused delay and confusion, (3) his lawyer's "inadequacies, schedule, and errors are not the fault of the defendant," and (4) actions taken on the part of the State would render dismissal inequitable in this case.

even without the second, fails to give actual notice of the appeal in this specific case, nor does it argue that it was prejudiced in any particular way because of the lack of service noted in point (9) above. The alleged violations of time requirements must be considered in light of the strong objective of this court that whenever reasonably possible, a case should be disposed of on its merits. Dehn v. Otter Tail Power Co., 248 N.W.2d 851, 856 (N.D.1976); LeFevre Sales, Inc. v. Bill Rippley Construction Inc., 238 N.W.2d 673 (N.D.1976).

Conflicting affidavits have been submitted by Howe's attorney, Irvin Nodland, and by attorney general, Allen Olson, regarding contact between Nodland and Olson with regard to this case. Nodland asserts that negotiations initiated by the attorney general with regard to this and related cases resulted in many of the delays in this case, and that the attorney general promised that dismissal would not be sought because of such delays. These assertions are disputed by the attorney general in his affidavit. Though we have no way of knowing just who initiated these negotiations and what the exact substance of such negotiations were, we do conclude that the situation was one of confusion.

In State v. Paulson, 256 N.W.2d 556 (N.D.1977), decided today, we have dismissed a criminal appeal for failure to follow the Rules of Appellate Procedure. There, upon a review of relevant considerations brought out in opinions of this court dealing with motions to dismiss appeals and cataloged in State v. Vogan, 243 N.W.2d 382 (N.D.1976), we determined that no good cause was shown why we should not dismiss that appeal.

In Paulson, the motion to dismiss the appeal of a criminal defendant was based upon the ground that the appellant had not filed a brief upon the merits of his appeal. At the time the motion to dismiss was argued, the brief upon the merits had still not been filed nor had the specific grounds for appeal been asserted. This court had been given no indication of the basis for the appeal and nine months had expired from the date of the notice of the appeal.

In the instant case, we have the briefs on the merits before us and have heard oral arguments upon them. Regardless of who initiated negotiations between the attorney general's office and those representing the interests of Henry Howe, it is apparent from the record that such negotiations took place and that the attorney general's office was involved.

We believe that the criticism of the clerk of court's office is unwarranted as it is not the responsibility of that office to notify the parties of the time restraints, but is the responsibility of counsel to keep the time limits in mind and act accordingly. Gerhardt v. Fleck, 251 N.W.2d 764, 766 (N.D.1977).

Though the State claims to have been prejudiced by the stated violations of the Rules, we have not been shown how any prejudice could result to the State due to such violations should the merits of the appeal be decided. In that respect, this case is clearly unlike State v. Paulson, supra, which we have earlier distinguished, in which there had been no written or oral arguments upon the merits and in which we had not been apprised of the grounds for appeal. In Paulson, we noted that the defendant would still have an opportunity to attack his conviction under the Post-Conviction Procedure Act (Ch. 29-32, N.D.C.C.). Accord, State v. Vogan, supra. In this case, resort to the Post-Conviction Procedure Act As we prefer to hear appeals on their merits (Kittelson v. Havener, 239 N.W.2d 803 (N.D.1976)), and as our discretion is to be exercised in a manner to promote justice (State v. Vogan, supra ), the motion to dismiss this appeal is denied.

would be wasteful, in that the arguments of both sides on the merits are before us.

FACTS

In September of 1975, two criminal complaints and warrants of arrest were issued against Henry H. Howe, then engaged in the practice of law in Valley City, North Dakota. Both of these charges were later dismissed. One complaint charged Howe with tampering with a witness in violation of Section 12.1-09-01, N.D.C.C., and the other charged him with unlawful delivery of a controlled substance in violation of Sections 19-03.1-03, -05, and -29, N.D.C.C.

Pursuant to these arrest warrants, Barnes County deputy sheriff Loren Anderson and Valley City police officer Bernard Kracht proceeded to Howe's residence. Howe admitted them to his law office, located in his home. After allowing Howe to complete a telephone conversation that he was engaged in at the time they arrived, the officers handed him copies of the two complaints. Deputy Anderson testified that he informed Howe that he was under arrest shortly thereafter....