State v. Schweitzer

• Decision Date: 05 January 1994
• Docket Number: Cr. N
• Citation: 510 N.W.2d 612
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Kenneth Adam SCHWEITZER, Jr., Defendant and Appellant. o. 930167.
• Court: North Dakota Supreme Court

Page 612

510 N.W.2d 612

STATE of North Dakota, Plaintiff and Appellee, v. Kenneth Adam SCHWEITZER, Jr., Defendant and Appellant.

Cr. No. 930167.

Supreme Court of North Dakota.

Jan. 5, 1994.

Constance L. Cleveland, Asst. State's Atty., Fargo, for plaintiff and appellee.

Leslie D. Johnson, Fargo, for defendant and appellant.

VANDE WALLE, Chief Justice.

Kenneth Adam Schweitzer, Jr., appealed from a criminal judgment and commitment entered pursuant to his plea of guilty to robbery. We reverse and remand to allow Schweitzer to withdraw his guilty plea.

On March 9, 1993, Schweitzer was charged with the January 1993 robbery of a Fargo Subway restaurant. The criminal information alleged that, during the commission of the crime, Schweitzer "threatened" an employee "by his use and possession of a silver in color metal .22 caliber tear gas pistol." The penalty section of the information listed the crime as a class B felony and stated that there was a mandatory minimum sentence of four years imprisonment under Sec. 12.1-32-02.1, N.D.C.C.

Schweitzer entered into a plea agreement with the State. Under the agreement, the State recommended a six-year term of imprisonment at the State Penitentiary, with the final two years suspended and served under supervised probation. The plea agreement did not address parole eligibility and the parties decided to have the applicability of Sec. 12.1-32-02.1 determined by the court.

At the beginning of a combined change-of-plea and sentencing hearing, the trial court informed Schweitzer of the maximum penalty he could receive under the law and other matters required by Rule 11, N.D.R.Crim.P., but did not inform Schweitzer of the mandatory minimum penalty under Sec. 12.1-32-02.1 if he were found to have used a dangerous weapon during commission of the crime. Schweitzer entered a guilty plea and, after hearing a factual basis for the plea from the prosecutor, the trial court accepted the plea.

The trial court then considered whether the mandatory minimum sentencing law applied. The State offered in evidence, without objection, the tear gas gun Schweitzer used in the robbery. The trial court heard arguments of the prosecutor and Schweitzer's attorney on whether the gun constituted a "dangerous weapon." The trial court found that the gun was a "dangerous weapon" within the meaning of the statute, that Schweitzer threatened another with it, and that the mandatory minimum sentence of four years imprisonment without benefit of parole was therefore applicable. The court accepted the parties' plea agreement, but added to it the mandatory minimum sentencing requirement that the four years of actual incarceration be served without benefit of parole.

I

Schweitzer asserts that the trial court erred in determining that the gun involved in the robbery was a dangerous weapon justifying imposition of a mandatory minimum sentence. We disagree.

Section 12.1-32-02.1, N.D.C.C., provides:

"12.1-32-02.1. Minimum prison terms for armed offenders. Notwithstanding any other provisions of this title, minimum terms of imprisonment shall be imposed upon an offender and served without benefit of parole when, in the course of committing an offense, he inflicts or attempts to inflict bodily injury upon another, or threatens or menaces another with imminent bodily injury with a dangerous weapon, an explosive, or a firearm. Such minimum penalties shall apply only when possession of a dangerous weapon, an explosive, or a firearm has been charged and admitted or found to be true in the manner provided by law, and shall be imposed as follows:

"1. If the offense for which the offender is convicted is a class A or class B felony, the court shall impose a minimum sentence of four years' imprisonment.

"2. If the offense for which the offender is convicted is a class C felony, the court shall impose a minimum sentence of two years' imprisonment.

"This section applies even when being armed is an element of the offense for which the offender is convicted."

Under Sec. 12.1-01-04(6), N.D.C.C., a "dangerous weapon" includes:

"any weapon which will expel, or is readily capable of expelling, a projectile by the action of a spring, compressed air, or compressed gas including any such weapon, loaded or unloaded, commonly referred to as a BB gun, air rifle, or CO sub2 gun; and any projector of a bomb or any object containing or capable of producing and emitting any noxious liquid, gas, or substance."

Whether the defendant was in possession of a dangerous weapon while committing the offense charged is a question for the trier of fact. State v. Sheldon, 312 N.W.2d 367 (N.D.1981).

The State offered in evidence only the gun to establish that it was a dangerous weapon. Additionally, in reciting the factual basis for the guilty plea, the prosecutor informed the court that during the robbery Schweitzer held the gun near the Subway employee's body and the employee was shaking so badly he could not open the cash register. The trial court made detailed findings on the nature of the weapon based on his own observations of it and counsels' arguments:

"[T]he .22 caliber tear gas revolver used by the Defendant in the robbery in this case, and which uses a standard primer fired powder loaded .22 shell with tear gas and a wad in the front of it instead of lead, or which can fire regular .22 blanks, with a barrel partially opened all the way through does qualify as a 'dangerous weapon' capable of inflicting 'bodily injury' as defined in Section 12.1-01-04(4) of the North Dakota Century Code.

"The Court further finds that ... the tear gas revolver ... is a 'dangerous weapon' since it 'is readily capable of expelling ... compressed gas ...' or is 'any object capable of producing and emitting any noxious liquid, gas, or substance.'

"[T]he weapon is capable of causing 'bodily injury' by the weapon's partially opened barrel, which obviously not only allows the tear gas to escape forward by carrying it through the partially opened barrel and out the front via the carrier of exploded gun powder fired by an exploding primer cap contained in the shell casing, but ... such gas and/or exploding powder exiting the barrel can cause an injury, be it a burn or loss of an eye, or some similar injury, which is considered a 'bodily injury' defined in the pertinent statute as meaning 'any impairment of physical condition, including physical pain.' Section 12.1-01-04(4)."

Schweitzer asserts that the trial court erred in finding that the tear gas gun was a dangerous weapon without the aid of any "qualified testimony" as to its dangerousness which he contends is required by Sec. 29-26-18, N.D.C.C. We reject this argument.

Schweitzer did not object to the State's introduction of the gun in evidence. Nor did Schweitzer argue to the trial court that it could not make a determination as to the gun's dangerousness without the aid of "qualified testimony." As a result, these grounds for attack cannot be raised on appeal. See, e.g., State v. Wishnatsky, 491 N.W.2d 733 (N.D.1992).

Schweitzer's argument that tear gas is not capable of producing bodily injury is without merit. We are satisfied, as was the trial court, that tear gas, which is commonly defined as "[a]ny of various agents that on dispersal, usually from grenades or projectiles, irritates the eyes and causes blinding tears," The American Heritage Dictionary, at p. 1248 (2d College ed. 1985), can cause "bodily injury" as defined in Sec. 12.1-01-04(4), N.D.C.C.

The weapon, perhaps the best evidence of its dangerousness, appeared to the trial court to be fully capable of firing. If the weapon was incapable of firing or expelling anything, as Schweitzer claims, we believe he had the responsibility of presenting evidence to support his argument. He did not do so.

For purposes of this guilty plea proceeding, we conclude there was substantial evidence to support the trial court's findings that the tear gas gun was a dangerous weapon and that Schweitzer threatened another with it. The trial court correctly concluded that the mandatory minimum sentencing provisions of Sec. 12.1-32-02.1, N.D.C.C., were applicable in this case.

II

Schweitzer asserts that he should be allowed to withdraw his guilty plea because the trial court, before accepting his plea, failed to personally advise him under Rule 11(b)(2), N.D.R.Crim.P., of the possible application of a mandatory minimum sentence. We agree.

Rule 11(b)(2) provides:

"(b) Advice to defendant. The court may not accept a plea of guilty without first, by addressing the defendant personally [except as provided in Rule 43(c) ] in open court, informing the defendant of and determining that the defendant 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;"

We have often stated that the procedures outlined in Rule 11 are mandatory and binding upon the court. See, e.g., State v. Parisien, 469 N.W.2d 563 (N.D.1991).

This case is governed by our decision in State v. Schumacher, 452 N.W.2d 345 (N.D.1990). In Schumacher, the trial court did not advise the defendant, prior to accepting his guilty plea, of the mandatory minimum sentence under Sec. 12.1-32-02.1, N.D.C.C., for using a firearm...