State v. Schumacher, Cr. N

• Decision Date: 01 March 1990
• Docket Number: Cr. N
• Citation: 452 N.W.2d 345
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Marcus SCHUMACHER, Defendant and Appellant. os. 890246, 890247.
• Court: North Dakota Supreme Court

Page 345

452 N.W.2d 345

STATE of North Dakota, Plaintiff and Appellee, v. Marcus SCHUMACHER, Defendant and Appellant.

Cr. Nos. 890246, 890247.

Supreme Court of North Dakota.

March 1, 1990.

Thomas H. Falck, Jr., Asst. State's Atty., Grand Forks, for plaintiff and appellee.

E.J. Rose, of Evans & Moench, Ltd., Bismarck, for defendant and appellant.

VANDE WALLE, Justice.

Marcus Schumacher appealed from a district court order denying his motion to withdraw a guilty plea. We reverse and remand.

Schumacher was originally charged with murder and attempted murder arising out of his involvement in an October 9, 1988, shooting in which one person was killed and another was wounded. Pursuant to a plea agreement, the State filed amended informations reducing the charges to manslaughter and reckless endangerment, and Schumacher entered an open plea of guilty to the charges. The court accepted the plea and judgments of conviction were entered.

Schumacher subsequently obtained new counsel and filed a motion to withdraw his guilty plea, asserting that he had received ineffective assistance of counsel and that the trial court had failed to comply with the mandates of Rule 11, N.D.R.Crim.P. Following two evidentiary hearings, the court determined that Schumacher had not received ineffective assistance of counsel and that Rule 11 had been complied with. Schumacher has appealed from the order denying his motion.

The dispositive issue on appeal is whether the trial court followed the dictates of Rule 11, N.D.R.Crim.P.

Because a firearm was involved, Schumacher was subject to the mandatory minimum sentencing provisions of Section 12.1-32-02.1, N.D.C.C. Rule 11(b)(2), N.D.R.Crim.P., provides:

"(b) Advice to Defendant. 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, informing him of and determining that he understands the following:

* * * * * *

"(2) The mandatory minimum punishment, if any, and the maximum possible punishment provided by the statute defining the offense to which the plea is offered...."

The procedures of Rule 11 are mandatory and binding upon the court. State v. Hagemann, 326 N.W.2d 861 (N.D.1982); State v. Mortrud, 312 N.W.2d 354 (N.D.1981).

The State concedes that the court did not advise Schumacher of the mandatory minimum sentence prior to accepting the guilty plea. The State argues, however, that there has been substantial compliance with Rule 11, in accordance with State v. Hagemann, supra, and State v. Storbakken, 246 N.W.2d 78 (N.D.1976), because review of the entire record demonstrates that Schumacher was aware of the mandatory minimum sentence. Specifically, the State contends that at the sentencing hearing Schumacher's counsel requested imposition of the mandatory minimum sentence and that the record of the hearings on Schumacher's motion to withdraw his plea demonstrates that counsel had discussed the mandatory minimum sentence with Schumacher prior to entry of his guilty plea.

The fact that the mandatory minimum sentencing procedure was discussed and argued by counsel at the sentencing hearing, after the plea had been accepted, does not cure the failure to comply with the requirements of Rule 11. The purpose of the procedure outlined in Rule 11(b) is to ensure that the defendant is fully aware of the consequences of a guilty plea before he enters his plea. That purpose is not satisfied by evidence showing that counsel raised the issue during sentencing proceedings, after the plea had been made and accepted.

Nor is the failure to comply with Rule 11 cured by the testimony of Schumacher's trial counsel that he discussed mandatory minimum sentencing with Schumacher. Although we have stated in Hagemann, supra, and Storbakken, supra, that we will consider the entire record when reviewing the knowing and voluntary nature of a guilty plea, we will not rely upon testimony regarding matters which occurred outside the courtroom to determine this issue.

In Storbakken and Hagemann, the defendants had been fully advised of their rights by the court on the record at their arraignments. In each case, the trial court failed to readvise the defendant of all these rights at the time the defendant changed his plea to guilty. The defendants challenged their convictions based upon the courts' failure to readvise them of their rights at the time their guilty pleas were entered and the courts' failure to follow the exact format of questioning spelled out in Rule 11. We held that Rule 11 does not require strict adherence to a specific legal ritual. We stressed, however, that the defendants had been fully advised of their rights by the court at their arraignments, and we concluded that "the record of the arraignment, in conjunction with the record of the change-of-plea hearing, clearly revealed that the defendant had knowledge of the rights he was waiving by pleading guilty ... [and] was aware of the consequences of his guilty plea." State v. Hagemann, supra, 326 N.W.2d at 866.

Neither Hagemann nor Storbakken holds that a trial court's failure to personally advise the defendant under Rule 11 can be cured by allegations that the defendant received knowledge of his rights from other sources. This case demonstrates the need for the trial court to advise the defendant upon the record in accordance with Rule 11. Schumacher asserts that his trial counsel gave him erroneous advice regarding the mandatory minimum sentence for these two offenses, that he therefore was not fully cognizant of the possible consequences of his guilty plea, and that this erroneous information constituted ineffective assistance of counsel. The Explanatory Note to Rule 11 suggests that this situation presents the very evil sought to be avoided by the requirements of Rule 11(b)(2):

"Subdivision (b)(2) requires that the court inform the defendant of and determine that he understands 'the mandatory minimum punishment, if any, and the maximum possible punishment provided by the statute defining the offense to which the...