State v. Thompson, Cr. N

• Decision Date: 10 August 1993
• Docket Number: Cr. N
• Citation: 504 N.W.2d 315
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Ronald Scott THOMPSON, Defendant and Appellant. o. 930057.
• Court: North Dakota Supreme Court

Page 315

504 N.W.2d 315

STATE of North Dakota, Plaintiff and Appellee, v. Ronald Scott THOMPSON, Defendant and Appellant.

Cr. No. 930057.

Supreme Court of North Dakota.

Aug. 10, 1993.

Patricia L. Burke, State's Atty., Bismarck, for plaintiff and appellee.

Michael R. Hoffman, Bismarck, for defendant and appellant.

SANDSTROM, Justice.

We are asked to allow a defendant to withdraw his guilty plea because the trial judge did not follow the State's nonbinding recommendation for sentencing.

Ronald Scott Thompson seeks to withdraw his plea of guilty to the charge of gross sexual imposition, ¹ a class B felony. ² Thompson entered his guilty plea based on the State's agreement to recommend a sentence of no more than six years to be served concurrently with other sentences. The State made that recommendation. The judge imposed a greater sentence: a ten-year sentence to be served consecutively with other sentences. Three of the ten years were suspended subject to attendance at the prison sex offender's program. Three months later, the defendant moved to withdraw his plea. The trial court denied the motion. We affirm.

Shortly before 8:00 on the morning of December 20, 1991, Thompson entered the home of a 42-year-old Bismarck woman he did not know. Using physical force, and pressing a knife against the victim's throat, he pulled her from the shower. He forced her to engage in an oral sexual act. The victim was cut with the knife and suffered other physical injuries. Thompson ordered the woman into the shower. She entered the bathroom and turned on the shower, but to preserve evidence, she did not enter the shower. As soon as Thompson left the house, she called 911, reported the offense, and gave a detailed description of the man. Thompson was spotted on foot a short distance away. An officer saw him enter a house. After the house was surrounded officers were admitted by another occupant of the house. Thompson had entered the shower and put some clothing in the washing machine.

Physical evidence included semen and pubic hair at the crime scene, and clothing secured by search warrant.

On August 18, 1992, the day set for trial, Thompson changed his plea to guilty.

"THE COURT: Before the Court receives the plea, Miss Burke, is this plea based upon any agreement or arrangement between the parties?

"MS. BURKE: Yes, Your Honor, to the following extent. We have agreed that the Court will ask to have a presentence investigation that is presently being performed with regard to Mr. Thompson on the Class B felony and two Class C felonies be expanded to include this charge and that sentencing on this case will be had after the sentencing on that case.

"There is also a cap on the state's recommendation of time in this particular case and how it refers to that other case and the Court should be aware of that.

"THE COURT: What is the cap?

"MS. BURKE: The cap is that the state will recommend no more than six years to be served.

"THE COURT: Is that to run concurrently to the other one?

"MS. BURKE: But that would be the cap on the state's recommendation. They're not in the other case bound by this. In other words, that is Judge Schneider's case and that is completely separate from this.

"Those are some burglaries--one B burglary and C burglary and I think a criminal trespass. I should point out for the Court that present in the courtroom is the victim in this case. She has been in contact with my office--very close contact. I have had occasion to talk to her and she is aware of what is being recommended by the state and what is being proposed here.

"THE COURT: Mr. Thompson, other than--first of all, I guess, Mr. Hoffman. Would you agree that that is the recommendation of the state as it was relayed to you as you discussed it with your client?

"MR. HOFFMAN: Yes.

"THE COURT: Mr. Thompson, other than what Miss Burke just described as a recommendation for sentencing in this case, were there any other promises that were made to you to get you to plead guilty today?

"THE DEFENDANT: No, sir.

"THE COURT: Did anybody threaten or harass you in any fashion to get you to plead guilty today?

"THE DEFENDANT: No, sir.

"THE COURT: Do you believe that based upon that recommendation and the conferences that you had with your attorney that this is your own free and voluntary act?

"THE DEFENDANT: Yes, sir."

Thompson described for the court how he had committed the offense. The court inquired about the victim:

"THE COURT: Miss Burke, you say that you have discussed this matter with the victim and the recommendation the state is making is satisfactory as far as they're concerned?

"MS. BURKE: Yes, Your Honor. Of course, she would like, quite honestly, as is natural for any victim, she would like to see this defendant never see the light of day again, but she is also aware of the realities of the legal system and what happens.

"She is a very intelligent, articulate woman and she has expressed to me that fact that although she knows if she had to she could have gone through, she was happier not to have to testify, this being a very personal and very traumatic thing to have to discuss in front of people you do not know."

The court then accepted the plea and delayed sentencing until the presentencing investigation and report could be completed and reviewed.

The report of the presentence investigation revealed a lengthy criminal history, and included a victim impact statement. At the sentencing hearing, the State's Attorney repeated the agreed upon sentencing recommendation, making clear it was a recommendation only:

"In this case the state agreed to make the following recommendation, and it should be clear that it is a recommendation only. The Court is not bound by it--either our recommendation or the defense recommendation.

"But we agreed to make the recommendation of six years also to start today with credit for 305 days, which is the time he spent in custody since he was arrested in December of 1991."

The defense attorney asked the court to accept the recommendation:

"In [my October 5, 1992] letter I asked the Court to accept the recommendation of six years in the North Dakota State Penitentiary and I would ask the Court to give credit back to December 20th ... I would ask the Court to follow that recommendation and sentence according to that recommendation."

The defendant declined an offer to speak on his own behalf. The judge told the defendant:

"I think your behavior and your--what occurred in this case is the sort of crime that shocks the community. It certainly shocks my conscience and I have no explanation for it and I have no compassion for you. I think you are abhorrent. I don't think we should condone it in any sense of the word.

"People should never be subjected to the behavior you forced upon another. Even worse, you did it in their home where people deserve and should expect sanctity of all places.

"The only thing good you have done in this case that I can see is come in and plead guilty. You didn't force the woman to go to trial and you didn't force the woman to testify and didn't force a jury to make a decision. That's the only thing that you have done that I can give you any credit for at all.

"On the basis of what I have done before--I have to compare what I have done. Mr. Thompson, the Court hereby sentences you to a term of ten years at the North Dakota State Penitentiary, three of said years to be suspended for a period of one year after your release, this sentence to run consecutive to those sentences just given by Judge Schneider.

"Mr. Thompson, as a condition of the suspension, the Court is going to order that you attend the sex offender's program at the North Dakota State Penitentiary for such time as those officials who are engaged in it there believe it appropriate."

Neither the defendant nor his attorney objected to the sentence at that time. Both the defendant and his attorney said they had no questions about the sentence. Three months later, the defendant moved to withdraw his plea on the grounds that the prosecutor's sentencing recommendation was not followed by the court.

The trial court denied the motion, stating: "The defendant was fully aware of his rights and no binding agreement had been entered into between the parties."

Rule 32(d), N.D.R.Crim.P., provides:

"(d) Plea Withdrawal.

"(1) The court shall allow the defendant to withdraw a plea of guilty whenever the defendant, upon a timely motion for withdrawal, proves that withdrawal is necessary to correct a manifest injustice.

"(2) A motion for withdrawal is timely if made with due diligence, considering the nature of the allegations therein, and is not necessarily barred because made subsequent to judgment or sentence.

"(3) In the absence of a showing that withdrawal is necessary to correct a manifest injustice, a defendant may not withdraw a plea of guilty as a matter of right once the plea has been accepted by the court. Before sentence, the court in its discretion may allow the defendant to withdraw a plea for any fair and just reason unless the prosecution has been substantially prejudiced by reliance upon the defendant's plea."

The standard for review of guilty pleas after sentence is "manifest injustice." The defendant has the burden of proof, and the decision is within the trial court's discretion. State v. Werre, 325 N.W.2d 172, 174 (N.D.1982). On appeal, we decide only if the court abused its discretion. Absent an abuse of discretion, the trial court's decision will stand. State v. Hamann, 262 N.W.2d 495, 501 (N.D.1978).

In this case, the State agreed to recommend a particular sentence. It was a nonbinding recommendation only. A nonbinding recommendation of sentence and a binding plea agreement under Rule 11(d), N.D.R.Crim.P., are not the same. State v. Werre, 453 N.W.2d 826 (N.D.1990). The State fulfilled its obligation when it made the specified nonbinding recommendation. See United States v. Khoury, 755 F.2d...