State v. Johnson, Cr. 1092

• Decision Date: 28 October 1985
• Docket Number: Cr. 1092,C
• Citation: 376 N.W.2d 15
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Kenneth A. JOHNSON, Defendant and Appellant. r. 1093.
• Court: North Dakota Supreme Court

Page 15

376 N.W.2d 15

STATE of North Dakota, Plaintiff and Appellee, v. Kenneth A. JOHNSON, Defendant and Appellant.

Cr. 1092,

Cr. 1093.

Supreme Court of North Dakota.

Oct. 28, 1985.

A.F. Arnason, Asst. State's Atty., Grand Forks, for plaintiff and appellee.

Thomas B. Jelliff, Grand Forks, for defendant and appellant.

ERICKSTAD, Chief Justice.

Kenneth A. Johnson, the defendant, appeals from the judgment of the Grand Forks County Court, denying his motion for correction of sentence. We reverse and remand for resentencing.

In October of 1981 Johnson pleaded guilty to being in physical control [of a motor vehicle while under the influence of alcohol] in violation of Sec. 39-08-01, N.D.C.C. Nothing in the record of the trial proceedings sheds any light on the circumstances surrounding this guilty plea. Johnson was convicted of a second violation of Sec. 39-08-01, N.D.C.C., in March 1983. Johnson was represented by counsel during this second proceeding.

On October 15, 1984, Johnson, with counsel, pleaded guilty to the charges of driving under the influence of alcohol (DUI) and driving while license expired, both of which were class B misdemeanors only. The court accepted the guilty pleas and imposed the minimum mandatory penalty for a third offense of Sec. 39-08-01. ¹

Johnson timely appealed to our Court. This appeal, however, was withdrawn and Johnson made a motion under Rule 35, N.D.R.Crim.P., for correction of sentence. Johnson argued that the court, when imposing the penalty for his October 15, 1984, conviction, should not have considered his October 1981 guilty plea and, accordingly, he should have been sentenced as a second offender and not as a third offender. ² The basis for this argument was that Johnson was not represented by counsel and was never advised of his right to counsel in connection with the October 1981 guilty plea. This was the first time he had so contended. He had not so argued at any time before or during the October 15, 1984, trial proceedings. Johnson filed an affidavit in support of his Rule 35 motion stating that he "was never advised of his right to counsel or the consequences of his plea of guilty to the charge of physical control." This affidavit accompanied the motion for correction of sentence and was dated February 20, 1985. Johnson relied heavily on Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980), in support of his argument. ³ On March 5, 1985, Johnson's motion for correction of sentence was denied.

On appeal, Johnson contends that his earlier guilty plea to actual physical control cannot be used to enhance the punishment for his subsequent conviction of DUI as there is no proof that he was advised of his right to counsel or of his right to waive his right to counsel before he pleaded guilty to the 1981 charge. Johnson argues that the trial court, in sentencing him as a third offender instead of a second offender, violated his rights guaranteed by the sixth and fourteenth amendments to the United States Constitution and Article I, Section 12, of the North Dakota Constitution.

We recently held that a DUI conviction cannot be used to enhance the penalty of a subsequent DUI conviction when there is no proof that the defendant waived his right to counsel before pleading guilty to the earlier DUI charge. State v. Orr, 375 N.W.2d 171 (N.D.1985). We hold that Orr is controlling in this case.

The judgment of the trial court is therefore reversed and the...