State v. Syvertson, No. 980269

• Decision Date: 13 July 1999
• Docket Number: No. 980340., No. 980270, No. 980269
• Citation: 1999 ND 137,597 N.W.2d 644
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Charles E. SYVERTSON, Defendant and Appellant. Charles E. Syvertson, Petitioner and Appellant, v. State of North Dakota, Respondent and Appellee.
• Court: North Dakota Supreme Court

597 N.W.2d 644

1999 ND 137

STATE of North Dakota, Plaintiff and Appellee, v. Charles E. SYVERTSON, Defendant and Appellant.

Charles E. Syvertson, Petitioner and Appellant, v. State of North Dakota, Respondent and Appellee.

Nos. 980269, 980270, 980340.

Supreme Court of North Dakota.

July 13, 1999.

Rehearing Denied July 29, 1999.

Charles E. Syvertson, pro se, Bismarck, for defendant and appellant/petitioner and appellant.

Wade Webb, Assistant State's Attorney, Fargo, for plaintiff and appellee/respondent and appellee.

MARING, Justice.

[¶ 1] Charles Syvertson appeals from a criminal judgment entered on August 13, 1998, seeking review of the trial court's orders denying several of his pre-trial motions. Syvertson also appeals from the trial court's order dismissing his petition for post-conviction relief. We affirm.

I

[¶ 2] The issues in this appeal stem from an information filed by the State on July 11, 1997, alleging one count of gross sexual imposition (GSI) and one count of kidnapping, both as class B felonies, stemming from an incident in West Fargo on July 10, 1997. The two-count information was numbered CR 97-2639. On November 26, 1997, the State filed a second information charging an additional count of GSI, as a class A felony, stemming from the same incident in West Fargo on July 10, 1997. This information was numbered CR 97-4965. On February 11, 1998, the trial court granted the State's motion to file a single amended information to be consolidated as CR 97-2639.

[¶ 3] Syvertson currently has a second appeal before the Court. In that appeal, Crim. No. 980027, Syvertson appealed from a criminal judgment entered on a jury verdict finding him guilty on two counts of GSI, which stemmed from two incidents with a minor girl in Fargo during late 1993. See State v. Syvertson, 1999 ND 134, 597 N.W.2d 652

. The State filed the information in that case, which we will refer to as the "Fargo case," on July 17, 1997.

A. Factual Background

[¶ 4] On July 10, 1997, at approximately 4:00 p.m., Officer Schenck of the West Fargo Police Department was dispatched to talk with Marilyn Capouch of West Fargo about the report of a suspicious vehicle in her neighborhood. Schenck interviewed Marilyn and her daughter Jennifer. Jennifer told Schenck she had been walking near her home when a man in an older brown car stopped and offered to give her a ride home, which she refused. Later, Jennifer and her mother saw the car drive by their home so they got into their car and followed the vehicle. They then called in the license plate number and the police ran a license check. The information came back as a brown, 2-door Ford registered to Syvertson. Records also showed Syvertson's driving privileges were suspended.

[¶ 5] At approximately 5:00 p.m., Sgt. Birrenkott of the West Fargo Police Department had three officers working on a possible abduction. Autumn Nelson, age 19, reported through a 911 call that she had seen a white male driving around the Vet's pool area in West Fargo and approaching young girls. Nelson reported seeing this man approach a young girl, put her bike in the trunk, and force the girl into the car.

[¶ 6] In the meantime, Officer Schenck was on patrol looking for Syvertson's car. When he located it driving on 13th Avenue in West Fargo he initiated a traffic stop at around 7:00 p.m. Syvertson was arrested for driving under suspension and taken into custody. His car was inventoried and then impounded.

[¶ 7] At approximately 7:30 p.m., a woman called the West Fargo Police Department to report that her 11-year-old daughter had just returned home, claiming she had been molested. Sgt. Birrenkott was dispatched to interview the minor child. She told him a man in a brown car stopped her outside the Vet's swimming pool and offered to help her with her bike and give her a ride home. The man got out of the car, put her bike in his trunk, and forced her to get into the car. He then drove to the St. Andrew's church parking lot where he had her take her clothes off, kissed her breasts and licked and touched her vaginal area. The minor child then said the man drove just out of town and pulled off the road where he made her get out of the car and undress again. Then he raped her. Birrenkott's interview with the minor child took place at 11:00 p.m. on July 10, 1997.

[¶ 8] At 12:43 a.m. on July 11, 1997, a magistrate issued a search warrant for, among other things, samples of Syvertson's hair, blood, semen, fingerprints, and saliva, the clothes he was wearing when arrested, and a photograph for the purposes of a line-up. The State filed the two-count information the same day.

B. Procedural Background

[¶ 9] On July 14, 1997, Syvertson made an initial appearance and was appointed indigent defense counsel. On July 29, 1997, Syvertson waived a preliminary hearing and requested an independent psychiatric evaluation, which the court granted. The evaluation was received and filed with the court on September 10, 1997.

[¶ 10] On October 6, 1997, the State gave notice of intent to prosecute Syvertson as a habitual offender under N.D.C.C. § 12.1-32-09, which the court ordered sealed on October 16, 1997. Four days later the information appeared in a Fargo newspaper.

[¶ 11] On November 26, 1997, after receipt of DNA test results, the State filed an amended information alleging an additional count of GSI (a rape charge), as a class A felony. Because a preliminary hearing had not been held on the additional count, the trial court initially denied joinder of the two informations. The State then filed a separate information, numbered CR 97-4965, on December 23, 1997. Shortly after, Syvertson made an initial appearance on the one count information and, among other things, elected to proceed pro se on that count.

[¶ 12] On January 15, 1998, a preliminary hearing was held on CR 97-4965. The court found probable cause and bound it over for trial. At a hearing on February 4, 1998, the court granted the State's motion to join the two informations. At the hearing, Syvertson's court-appointed counsel argued against joinder of the informations; however, Syvertson was not allowed to speak on his own behalf regarding the State's motion.

[¶ 13] On March 18, 1998, the court heard 21 motions Syvertson or his counsel had filed since January 10, 1998. Nearly all of the motions were denied. On August 12, 1998, Syvertson conditionally pled guilty under N.D.R.Crim.P. 11(a)(2), preserving his right to appeal all adverse pre-trial rulings. The trial court accepted the plea agreement, reduced the two class B felonies to 10 years each, and specifically stated the sentence was imposed without regard to Syvertson's habitual offender status. As a result, Syvertson was sentenced 12 years for one count of GSI (class A felony); 10 years for one count of GSI (class B felony); and 10 years for one count of kidnapping (class B felony). The court further ordered the three sentences to run concurrently but consecutive to the sentence imposed in the Fargo case. Syvertson timely appealed.

[¶ 14] On August 27, 1998, Syvertson filed a petition for post-conviction relief, alleging the State failed to produce certain documentary evidence relating to the convictions which are the subject of his direct appeal. The state moved for dismissal of the application due to the fact that, in part, the basis for Syvertson's application was an alleged discovery violation occurring after his guilty plea. The district court dismissed, concluding "the petition fails to state any sort of a colorable claim under the Post-Conviction Procedure Act." Upon Syvertson's timely appeal from the district court's order denying his post-conviction relief petition, the two appeals were consolidated.

II

[¶ 15] Syvertson raises several issues on appeal. We will address only those which merit our attention.

A

[¶ 16] Syvertson argues he was denied due process because the State's request to have him sentenced as a habitual offender, although ordered to be sealed, was later disclosed in a Fargo newspaper.

[¶ 17] Section 12.1-32-09, N.D.C.C., provides for extended sentences for dangerous special or habitual offenders. Unlike his appeal in Syvertson, 1999 ND 134, 597 N.W.2d 652, there was no jury in this case. Here, Syvertson claims he was prejudiced by the trial court's knowledge of the State's intent to prosecute him as a habitual offender, but unlike the federal cases upon which Syvertson relies, "[t]he North Dakota enhanced sentencing statute contains no language prohibiting the trial judge from learning of the notice prematurely." Syvertson, 1999 ND 134, ¶ 30, 597 N.W.2d 652. "The obvious intention of the statute is to keep this information from being disclosed to the jury." Id. at ¶ 31. Clearly, it was not error for the trial court to have knowledge of the State's intent to prosecute Syvertson as a habitual offender. In any event, we fail to see how Syvertson was prejudiced by the court's knowledge of this information as the court specifically sentenced him "without regard to N.D.C.C. § 12.1-32-09(1)(c) and ... whether the defendant was a habitual offender."

B

[¶ 18] Syvertson also contends the trial court erroneously denied his request for a second, independent psychiatric evaluation.

[¶ 19] On July 29, 1997, Syvertson, through court-appointed defense counsel, requested a psychological examination under N.D.C.C. §§ 12.1-04-06 and 12.1-04.1-02 to determine his competency to stand trial and his competency at the time of the alleged offenses. The psychiatric evaluation concluded Syvertson was fit to proceed with trial and did not lack substantial capacity to comprehend the harmful nature of his acts at the time they were committed. Syvertson argues the evaluation "outstepped its bounds," however, when it concluded, among other things, he was malingering, a pedophile, and had "sexual pre-occupation" which made him a threat to society. Because this violated his fifth and sixth amendment rig...