State v. Mathisen, Cr. N

• Decision Date: 23 October 1984
• Docket Number: Cr. N
• Citation: 356 N.W.2d 129
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Bob MATHISEN, a.k.a. Robert Mathisen, Defendant and Appellant. os. 987 and 995 to 1001.
• Court: North Dakota Supreme Court

Page 129

356 N.W.2d 129

STATE of North Dakota, Plaintiff and Appellee, v. Bob MATHISEN, a.k.a. Robert Mathisen, Defendant and Appellant.

Cr. Nos. 987 and 995 to 1001.

Supreme Court of North Dakota.

Oct. 23, 1984.

Owen K. Mehrer, State's Atty., Dickinson, for plaintiff and appellee; argued by Ronald L. Hilden, Asst. State's Atty., Dickinson.

James D. Gion, Regent, for defendant and appellant.

SAND, Justice.

Robert O. Mathisen appealed from judgments of conviction on eight counts of issuing checks without sufficient funds and from an amended judgment finding him in contempt for failure to comply with the conditions of a prior judgment. After the appeal was taken Mathisen filed a motion to vacate the convictions and dismiss the appeal on the basis that NDCC Sec. 6-08-16, as amended in 1983, was declared unconstitutional by State v. Fischer, 349 N.W.2d 16 (N.D.1984).

The events leading to this appeal cover a lengthy span of time and encompass a host of intertwining judicial hearings and actions by the Stark County court. This case commenced on 6 June 1981 with a criminal complaint charging Mathisen with issuing two checks totaling $200.00 without sufficient funds in violation of North Dakota Century Code Sec. 6-08-16. Mathisen's trial was set for 23 October 1981 but he failed to appear and the court issued a warrant for his arrest.

Over one year later, on 17 January 1983, Mathisen was arrested pursuant to the warrant and then released on personal recognizance pending his next court appearance. Mathisen failed to appear at his hearing and shortly thereafter was arrested on a bench warrant. On 4 March 1983 Mathisen appeared without counsel and pleaded guilty to the two counts of issuing a check without sufficient funds. The court accepted the plea and sentenced Mathisen to twenty days in jail, with ten days suspended on the condition he pay $200 in restitution and $100 in costs before 15 April 1983 and have no criminal convictions for one year. Mathisen failed to pay the restitution or costs. On 4 May 1983 he appeared before the court pursuant to an order to show cause why he had not complied with the terms of the criminal judgment. The order to show cause hearing was continued twice to allow Mathisen to secure counsel and was finally scheduled for 30 June 1983.

Contemporaneously with the foregoing events, between 2 February 1983 and 8 March 1983, Mathisen was charged by the Stark County state's attorney with eight counts of issuing a check without sufficient funds in violation of NDCC Sec. 6-08-16. On 17 May 1983, at one of his numerous appearances before the court on these charges, Mathisen, without counsel, waived his right to a jury trial. Mathisen was then instructed to appear on 30 June 1983 for his trial and on the order to show cause hearing, which had been scheduled for the same day. Mathisen failed to appear on 30 June 1983 and once again an arrest warrant was issued.

Mathisen's next appearance before the Stark County court occurred approximately six and a half months later on 9 December 1983 following his arrest. ¹ A date was set for Mathisen's trial and then was rescheduled after he requested court-appointed counsel. William Heth was appointed to represent Mathisen on the check charges, the order to show cause, and on the extradition matter. ²

On 10 January 1984 Mathisen, represented by Heth, appeared in Stark County court for his trial on the check charges. ³ On the day of the trial, at Mathisen's request, Heth moved for a jury trial. The court in denying the motion held that Mathisen, after being fully advised of his constitutional rights, made a knowing and intelligent oral waiver of his right to a jury trial in open court on 17 May 1983. The court further noted that Mathisen had numerous opportunities and a significant period of time to request a jury trial but failed to do so.

At the trial Mathisen's sole defense was his testimony that when issuing the eight checks he was under the impression there were sufficient funds deposited in his account. In July 1979 Mathisen deposited a cashier's check for $4,100.00 in this account. Shortly thereafter payment on the cashier's check was stopped. Mathisen testified he was unaware payment could be stopped on a cashier's check. The court found Mathisen guilty on all eight counts of issuing a check without sufficient funds and sentenced him to 30 days in jail on each of the eight counts, with 15 days suspended on each count conditioned upon his making full restitution, paying costs of $328, and reimbursing Stark County for the fees of his court-appointed attorney, all by 1 October 1984. The court further ordered that Mathisen's period of confinement in Stark County was to run concurrently with any period of confinement served in South Dakota. At his subsequent order to show cause hearing Mathisen was found in contempt for failing to comply with any conditions of the previous criminal judgment and the court sentenced him to 10 days in jail, to be served concurrently with the prior sentence, and ordered restitution and costs to be paid.

Mathisen, acting pro se, ⁴ subsequently filed a series of motions for post-conviction relief. The Stark County court denied Mathisen's motions for a new trial, change of venue, arrest of judgment, and twice rejected a petition for writ of habeas corpus. Mathisen also petitioned this Court for habeas corpus relief which was denied. The Stark County court granted Mathisen's motion for a stay of execution of the sentence conditioned upon the posting of a $1,000 cash bond. Mathisen, unable to post the bond, served the entire unsuspended portion of his jail sentence and subsequently was extradited to South Dakota. On 18 May 1984 Mathisen's court-appointed counsel filed a motion in this Court seeking to vacate Mathisen's eight convictions and dismiss this appeal.

The defense by its motion and appeal raised the following issues:

1. Does State v. Fischer, 349 N.W.2d 16 (N.D.1984), which declared NDCC Sec. 6-08-16 unconstitutional, require this Court to vacate the convictions?

2. Is a defendant's belief that he possessed sufficient funds a valid defense to NDCC Sec. 6-08-16?

3. Did Mathisen effectively waive his right to a jury trial?

Mathisen contended that by implication State v. Carpenter, 301 N.W.2d 106 (N.D.1980) and State v. Fischer, 349 N.W.2d 16 (N.D.1984), necessitate holding North Dakota Century Code Sec. 6-08-16, as in effect in 1981, unconstitutional as violative of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, and Art. I, Secs. 21 and 22, of the North Dakota Constitution.

In Carpenter, NDCC Sec. 6-08-16.2 (S.L.1977, Ch. 77) was attacked as violating equal protection. Section 6-08-16.2 pertained to instances when the issuance of a nonsufficient funds (NSF) check constituted a class C felony. Section 6-08-16.2 required the holder of an NSF check to send a written notice to the drawer informing him the check had been dishonored and demanding payment within ten days. Section 6-08-16.2 specifically provided in part:

"... if the drawer pays the holder of the instrument within thirty days after receiving written notice of payment ... that fact shall constitute an affirmative defense to a criminal prosecution under this section."

The defendant in Carpenter argued that NDCC Sec. 6-08-16.2 unconstitutionally discriminated on the basis of wealth. The defendant claimed that only those individuals unable to satisfy the NSF check upon notice of dishonor were prosecuted and, therefore, Sec. 6-08-16.2 impermissibly burdened some individuals, i.e., indigents, while not burdening others similarly situated, i.e., issuers of NSF checks financially able to pay the holder after notice of dishonor.

The Carpenter Court determined that in equal protection claims criminal statutory classifications based upon wealth require an intermediate standard of judicial review. Carpenter, supra at 110. Applying that standard this Court held the above-quoted language of Sec. 6-08-16.2 violated equal protection:

"While the state interest in preventing the issuance of nonsufficient fund checks is important, the classification based upon the ability of a defendant to pay for an affirmative defense to criminal prosecution is not substantially related to that interest. Thus, the classification based upon wealth constitutes a denial of equal protection to Carpenter, and, therefore, Sec. 6-08-16.2, N.D.C.C., is constitutionally infirm." 301 N.W.2d at 110.

Subsequently, in Fischer, supra, the reasoning of Carpenter was applied to determine that NDCC Sec. 6-08-16, as amended by the 1983 Legislature (S.L.1983, Ch. 116), also violated equal protection. NDCC Sec. 6-08-16 as amended provided in part:

"A notice of dishonor must be sent by the holder of the check upon dishonor, prior to the institution of a criminal proceeding, the notice to be in substantially the following form: ... Payment to holder of the face amount of the instrument, plus any collection fees or costs, not exceeding the additional sum of ten dollars, shall constitute a defense to a criminal charge brought hereunder if paid within ten days from receipt of this notice of dishonor."

The Fischer Court held this language of Sec. 6-08-16 was substantially identical to the language declared unconstitutional in Carpenter. NDCC Sec. 6-08-16, by its 1983 amendments, therefore violated equal protection by creating a classification based on wealth with no substantial relationship to any important state interest. Fischer, supra at 18.

Mathisen contended that NDCC Sec. 6-08-16, as in effect in 1981, contained language substantially equivalent to the statutes later declared unconstitutional in Carpenter and Fischer and, therefore, by implication is equally unconstitutional. However, the language of the 1981 version of Sec. 6-08-16 is significantly dissimilar to the statutory provisions declared unconstitutional in Carpenter and Fischer. Unlike ...