State v. Slapnicka, 1094

• Decision Date: 28 October 1985
• Docket Number: No. 1094,1094
• Citation: 376 N.W.2d 33
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Curtis SLAPNICKA, Defendant and Appellant. Crim.
• Court: North Dakota Supreme Court

Page 33

376 N.W.2d 33

STATE of North Dakota, Plaintiff and Appellee, v. Curtis SLAPNICKA, Defendant and Appellant.

Crim. No. 1094.

Supreme Court of North Dakota.

Oct. 28, 1985.

Glenn Dill, Asst. State's Atty., Kenmare, for plaintiff and appellee.

Schoppert Law Firm, New Town, for defendant and appellant; argued by Thomas K. Schoppert.

ERICKSTAD, Chief Justice.

The defendant, Curtis Slapnicka, appeals from the lower court judgment denying his application for post-conviction relief. We affirm.

Curtis Slapnicka was convicted of driving under the influence of intoxicating liquor on January 7, 1982, before the county justice in Bottineau County Court. The court imposed a fine of $150. No prison sentence was issued. On October 18, 1982, Slapnicka was convicted of actual physical control [of a motor vehicle while under the influence of intoxicating liquor]. No details concerning this conviction are in the record. Slapnicka was arrested on September 24, 1983, and charged with "[driving] vehicle while under the influence of alcohol" in violation of Section 39-08-01, N.D.C.C., ¹ and with driving while license suspended in violation of Section 39-06-17, N.D.C.C.

On January 9, 1984, Slapnicka, through his attorney, pleaded guilty to a class A misdemeanor in connection with the September 24, 1983, arrest. ² This guilty plea was the result of a plea bargain arranged by Slapnicka's attorney and the assistant states attorney. This plea bargain involved Slapnicka pleading guilty to driving under the influence in exchange for the State dismissing the charge of driving while license suspended. The court accepted the plea, imposed a fine of $1,000 plus $50 costs, sentenced Slapnicka to 120 days imprisonment with 60 days suspended for one year, and ordered a referral for addiction evaluation.

Slapnicka, after retaining other counsel, filed an application for post-conviction relief. In support of this application, Slapnicka argued that his January 7, 1982, conviction should not have been used to enhance the penalty of his January 9, 1984, conviction. The basis of this argument was that Slapnicka did not have counsel, was not advised of his constitutional right to counsel in connection with his January 7, 1982, conviction, and that this conviction, according to Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980), should not have been used to enhance the subsequent conviction. ³

On September 21, 1984, the trial court entered its judgment denying Slapnicka's application for post-conviction relief. The court's ruling was based upon the finding that Slapnicka was represented by competent counsel on January 9, 1984, when he entered a plea pursuant to an agreement. The court also found that the plea agreement was entered into in good faith by Slapnicka and the State. The fact that new counsel had a different view of the applicable law or of the appropriateness of the plea agreement was not considered material by the court.

In his brief on appeal, Slapnicka argues that Baldasar v. Illinois, id., forbids his uncounseled guilty plea of January 7, 1982, from being used to enhance the penalty of his January 9, 1984, conviction. In oral argument, however, counsel for Slapnicka reluctantly conceded that we should address the question of the finality of a guilty plea with advice of counsel before addressing the issues raised by Baldasar.

Generally, a voluntary plea of guilty waives all nonjurisdictional defects alleged to have occurred prior to the guilty plea. State v. Gilley, 289 N.W.2d 238, 240 (N.D.1980); State v. Barlow, 193 N.W.2d 455, 457 (N.D.1971). This includes alleged violations of constitutional rights. Gilley, 289 N.W.2d at 240; Barlow, 193 N.W.2d at 457. Applying these rules to the case at hand, we find that Slapnicka, in pleading guilty to a third DUI or physical control offense, waived all violations of constitutional rights alleged to have occurred before the guilty plea was entered. Slapnicka's guilty plea, accordingly, waived the alleged unconstitutionality of using an uncounseled guilty plea to enhance the penalty of a subsequent DUI conviction. Were it not for this waiver, this case would be controlled by State v. Orr, 375 N.W.2d 171 (N.D. Oct. 1, 1985).

While Slapnicka does not specifically allege the issue of incompetency of counsel, he does imply that his attorney acted unwisely at the January 9, 1984, proceeding. He argues in his supplemental brief that he "can see no logical reason why" his attorney did not challenge the court's use of his January 7, 1982, uncounseled guilty plea to enhance his subsequent conviction. Slapnicka, in hindsight, bases his argument upon his belief that he would have received a shorter sentence had his attorney adopted a different strategy.

The standard of effective counsel is not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance. State v. Wolf, 347 N.W.2d 573, 575 (N.D.1984); State v. Carr, 346 N.W.2d 723, 726 (N.D.1984). In a criminal case, the defense counsel is presumed competent and adequate, and the burden is on the party alleging incompetence to present evidence to overcome this presumption. United States v. Cronic, 466 U.S. 648, ----, 104 S.Ct. 2039, 2046, 80 L.Ed.2d 657, 667 (1984); State v. Wolf, 347 N.W.2d at 575. When a party attempts to show ineffective assistance of counsel in a criminal case, he can do so "only by pointing to specific errors made by...