State v. Storbakken

• Decision Date: 29 September 1976
• Docket Number: Cr. N
• Citation: 246 N.W.2d 78
• Parties: STATE of North Dakota, Plaintiff-Appellee, v. Lowell D. STORBAKKEN, Defendant-Appellant. o. 556.
• Court: North Dakota Supreme Court

Page 78

246 N.W.2d 78

STATE of North Dakota, Plaintiff-Appellee, v. Lowell D. STORBAKKEN, Defendant-Appellant.

Cr. No. 556.

Supreme Court of North Dakota.

Sept. 29, 1976.

Syllabus by the Court

1. A defendant is presumed to be competent to enter a plea of guilty until reasonable grounds are established to the court to the contrary.

2. Whenever there is reason to doubt the defendant's fitness to proceed, or reason to believe that mental disease or defect will otherwise become an issue in the case, the court may order the defendant to undergo an examination.

3. The trial court did not err in accepting a plea of guilty by the defendant where the record reveals that the defendant had successfully completed eleven years of school, was a sheetrock hanger by occupation, had not used drugs or alcohol for a period of time, and was represented by competent counsel at all stages of the proceedings; the trial court's observation of the defendant's demeanor and responses at two different hearings on defendant's plea of guilty; and defendant did not provide any supporting evidence that his plea was not knowingly, intelligently, and voluntarily entered.

4. A waiver of the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by the Fourteenth Amendment, of the right to trial by jury, and the right to confront one's accusers--all of which are involved when a plea of guilty is entered in a criminal trial--must be established.

5. It is not required that an accused, who seeks to enter a guilty plea, be advised by name of his right against compulsory self-incrimination, his right to trial by jury, or his right to confront and cross-examine witnesses against him.

6. While inquiry must be fully developed on the record, it need not assume any predetermined ritualistic form to comply with Rule 11 of the North Dakota Rules of Criminal Procedure, but, rather, the proper scope of the examination of the defendant will in each case depend on the complexity of the case.

7. Neither the due process clause of the Fourteenth Amendment of the United States Constitution nor Rule 11 of the North Dakota Rules of Criminal Procedure, requiring the court, before accepting a guilty plea, to determine that such a plea is made voluntarily with an understanding a the nature of the charge and the consequences of the plea, requires that a defendant be specifically advised of all of his constitutional rights at subsequent hearings where such rights are fully explained at the arraignment hearing and where defendant is represented by competent counsel.

8. The subjective relief of a defendant as to the length of sentence that will be imposed or his hope for leniency, unsupported by any promises from the government or indications from the court, is insufficient to invalidate a guilty plea as unknowingly, unintelligently, or involuntarily entered.

9. The language of § 12.1--01--01(2), N.D.C.C., constitutes a saving clause and in effect provides that the penalties under the prior criminal statutes, repealed or amended by Title 12.1, N.D.C.C., remain in full force as to crimes committed prior to the repeal of those statutes.

10. Where defendant through his counsel specifically requests that the defendant be sentenced under the provisions of the former criminal code and sentence imposed was within the limitations provided by such criminal code, the court did not err in proceeding under the former criminal code.

David Garcia, Devils Lake, for defendant and appellant.

Thomas B. Jelliff, State's Atty. and Earle R. Myers, Jr., Asst. State's Atty., Grand Forks, for plaintiff and appellee.

PAULSON, Judge.

Lowell D. Storbakken (hereinafter Storbakken) was convicted of the crime of grand larceny by entering his plea of guilty before the district court of Grand Forks County. He was thereafter sentenced to a term of three years in the state penitentiary. After being incarcerated in the penitentiary, Storbakken filed an application for a post-conviction hearing under the Uniform Post Conviction Procedure Act, Chapter 29--32 of the North Dakota Century Code, alleging that his constitutional and statutory rights had been violated. His application was dismissed by the district court without a hearing and Storbakken has appealed from the district court's order, pursuant to the provisions of § 29--32--09, N.D.C.C. A perusal of the record does not indicate that Storbakken was given an opportunity to reply to the district court's dismissal of his application for a post-conviction hearing, pursuant to § 29--32--06(2), N.D.C.C., nor does the record indicate that Storbakken requested such a hearing in the district court.

On the appeal from the district court's dismissal of Storbakken's application for post-conviction relief, four areas of inquiry are raised: (1) whether Storbakken possessed the necessary mental competency to plead guilty; (2) whether Storbakken was sufficiently advised of his constitutional rights at the time he entered his plea of guilty to satisfy the due process standards set forth in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and the procedural standards mandated in Rule 11, N.D.R.Crim.P.; (3) whether Rule 11, N.D.R.Crim.P., governing the use of plea negotiations was sufficiently complied with; and (4) whether the governing law, punishment, and procedural provisions of the North Dakota Century Code were set out with sufficient clarity to serve as a basis for a knowledgeable plea.

I. COMPETENCY TO PLEAD

Section 12.1--04--06, N.D.C.C., provides, in pertinent part:

'Whenever . . . there is reason to doubt his (the defendant's) fitness to proceed, or reason to believe that mental disease or defect will otherwise become an issue in the case, the court may order the defendant to undergo an examination * * *'

The question herein addressed is whether such 'reason to doubt' existed so as to require further inquiry than that afforded by the district court. Such an inquiry is a requirement of the constitutional due process standard enunciated by the United States Supreme Court in Pate v. Robinson, 383 U.S. 375, 385--386, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), mandating that, once evidence creating a reasonable doubt as to a defendant's competency is raised, a competency hearing is required. Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Rand v. Swenson, 501 F.2d 394 (8th Cir. 1974); Moore v. United States, 464 F.2d 663 (9th Cir. 1972); and State v. Fischer, 231 N.W.2d 147 (N.D.1975).

The only suggestion contained on the record in the district court that Storbakken might not be competent to plead came at the sentencing hearing on November 3, 1975, twenty-five days after the plea was entered. ¹ While making his oral plea for leniency at such hearing, Storbakken's attorney made oral reference to an injury Storbakken had received when he was twelve years old, which accident, Storbakken's father indicated, may have caused some brain damage. No evidence was submitted in support of this contention other than reference to Storbakken's inability to use alcohol or drugs, as well as to his past criminal behavior. ²

In evaluating these oblique allegations of incompetence, the district court had before it a presentence investigation report from the district parole officer, with attached reports from the North Dakota State Hospital and a state parole agent for Minnesota. The court also relied upon Storbakken's courtroom demeanor and answers to questions directed to him by the court which revealed, among other facts: that Storbakken had completed the eleventh grade of high school; that he was employed as a sheetrock hanger; that he was married; that he was on parole for a burglary conviction in Minnesota; and that it was Storbakken's understanding that the State was to make no recommendation as to sentencing for conviction on this charge. Due process does not mandate a full-blown hearing every time there is the slightest evidence of incompetency. See Curry v. Estelle, 531 F.2d 766 (5th Cir. 1976); and United States ex rel. Roth v. Zelker, 455 F.2d 1105 (2nd Cir. 1972). Based on the record before the court, we conclude that there is no 'reason to doubt' the competency of Mr. Storbakken such as to require further inquiry than that afforded by the

district court.

II. WAIVER OF CONSTITUTIONAL RIGHTS AND

COMPLIANCE WITH RULE 11(b) and (c), N.D.R.Crim.P.

It is necessary to examine the voluntariness of Storbakken's guilty plea. ³ There are federal guidelines to follow when considering guilty pleas. In Boykin v. Alabama, 395 U.S. 238, 242--243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the United States Supreme Court stated:

'A plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment. * * *

'Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the State by reason of the Fourteenth. (Citation omitted.) Second, is the right to trial by jury. (Citation omitted.) Third, is the right to confront one's accusers. (Citation omitted.) We cannot presume a waiver of these three important federal rights from a silent record.'

And, in Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), the United States Supreme Court stated:

'Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.'

And, in Griffith v. Wyrick, 527 F.2d 109, 112 (8th Cir. 1975), the Eighth Circuit Court of Appeals stated:

'Whether a waiver of constitutional rights is effective is an issue governed by federal standards. (Citation omitted.) A...