State v. Thorstad

• Decision Date: 19 January 1978
• Docket Number: No. 599,599
• Citation: 261 N.W.2d 899
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Michael THORSTAD, Defendant and Appellant. Crim.
• Court: North Dakota Supreme Court

Page 899

261 N.W.2d 899

STATE of North Dakota, Plaintiff and Appellee, v. Michael THORSTAD, Defendant and Appellant.

Crim. No. 599.

Supreme Court of North Dakota.

Jan. 19, 1978.

Rehearing Denied Feb. 2, 1978.

Donald L. Jorgensen, Asst. State's Atty., Dickinson, for plaintiff and appellee.

Lundberg, Conmy, Nodland, Rosenberg, Lucas & Schulz, Bismarck, for defendant and appellant; argued by Irvin B. Nodland, Bismarck.

SAND, Justice.

Michael Thorstad, the defendant, appealed from a Stark County district court order revoking his probation and from the judgment imposing sentence.

The basic criminal proceedings charged the defendant with one count of breaking into a vehicle and one count of theft. The district court appointed counsel for defendant. The case came on for trial, and shortly thereafter, on 26 February 1976, a plea bargain agreement was reached between the prosecutor and the defendant through his counsel. The relevant provisions of the plea bargain agreement were that the imposition of sentence would be deferred provided the defendant, within one year, paid the damages caused by the break-in, to the owner of the vehicle, or paid the insurance company if it had paid for the repairs, and reimbursed Stark County the moneys it expended for his court-appointed counsel. The plea bargain agreement was submitted to, approved and accepted by the court, whereupon the defendant pleaded guilty.

The following unrelated incidents took place: On 3 March 1976 the defendant appeared before the county court on a driving-while-intoxicated charge, was found guilty, and was sentenced to 30 days in the State Farm. On another unrelated matter he was also sentenced to an additional 160-day term in the State Farm for a parole violation. As a result, the defendant spent the period from 3 March 1976 to 23 July 1976 in the State Farm. On 10 December 1976 a petition to revoke Thorstad's probation was filed with the court alleging that Thorstad was in possession of stolen property in violation of a previous probation order. A hearing on the revocation petition was held on 15 December 1976, and the court found that Thorstad violated his probation by knowingly and voluntarily being in possession of stolen property. The court revoked the previous order deferring imposition of sentence and issued a new order again deferring imposition of sentence, which order incorporated the condition of restitution and reparation stated in the 26 February 1976 order.

Another petition dated 17 March 1976 to revoke defendant's (26 February 1976) probation was filed with the court, alleging Thorstad violated his probation by failing to pay the replacement costs of the window (damages) to the owner of the vehicle and by failing to reimburse Stark County for money expended for his court-appointed attorney, on or before 25 February 1976 as provided for in the deferred imposition of sentence order. After a hearing, the court revoked the probation and sentenced the defendant to two years in the State Penitentiary, suspending the second full year upon the condition that within one year of the defendant's release from the State Penitentiary he make reparation to the owner of the vehicle or to the insurance company for damages (broken window), and reimburse Stark County for all court costs and attorney fees incurred and paid as a result of the defendant's criminal activity.

Thorstad appealed and contended: (1) that the trial court violated his constitutional right under the Due Process and the Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution when it made restitution and reparation a condition of parole without first having a hearing pursuant to § 12.1-32-08, North Dakota Century Code, and subsequently revoked his parole because restitution and reparation were not made within the time specified; and (2) that the evidence of the violation of the condition of probation was insufficient to sustain a revocation because the State did not establish by a preponderance of the evidence that the defendant intended to violate the condition of probation or that the defendant had the ability to pay.

We will first consider whether or not a restitution or reparation hearing as contended by Thorstad was required.

Section 12.1-32-08, NDCC, provides as follows:

"Prior to imposing restitution or reparation as a sentence or condition of probation, the court shall hold a hearing on the matter with notice to the prosecuting attorney and to the defendant as to the nature and amount thereof. . . ."

It then sets forth the various determinations the court is required to make.

After serious deliberation, we conclude that the provisions of § 12.1-32-08, NDCC, apply in situations where the defendant either is found guilty or pleaded guilty to a criminal charge and the amounts or the issues of restitution or reparation are uncertain or are in dispute. However, we do not believe it applies where restitution or reparation was resolved by agreement with the defendant through plea-bargaining procedures even though the specific amount is not known and is to be determined later. When a defendant agrees to pay for the damage he caused and has a general idea of the amount, but not the specific amount in dollars and cents, which is to be determined later, he cannot later claim in the absence of fraud, that he was not made aware of the amount or that he did not agree to the amount.

After a voluntary agreement has been reached on the issues of restitution and reparation it would be a useless gesture to proceed under § 12.1-32-08, NDCC.

We do not believe that justice requires the performance of an idle act (§ 31-11-05(23), NDCC), which it would be to require a restitution or reparation hearing after the defendant has agreed to make restitution or reparation, as the case may be. Neither can we conclude that restitution or reparation may be a condition of parole or probation only after a hearing has been held pursuant to § 12.1-32-08, NDCC, if the conditions were agreed to by defendant as a result of plea bargaining.

In State v. Spiekermeier, 256 N.W.2d 877 (N.D.1977), no hearing was held pursuant to § 12.1-32-08, NDCC, and on appeal the case was remanded for such hearing. However, in Spiekermeier not only was the amount of restitution in dispute but also whether or not the damages to a vehicle were caused by or resulted from the defendant's violations of law so as to bring the damages within the restitution or reparation provision. In the instant case, there was an agreement acknowledging and identifying the damages, with the specific dollars and cents to be determined later by consulting certain persons or officials.

Plea bargaining in some form, either in the open or under obscure circumstances, has been a part of the criminal process for many years, and has been legitimatized in recent years by a number of States and the United States Government.

North Dakota, in 1973, began treating plea bargaining realistically by adopting Rule 11, North Dakota Rules of Criminal Procedure, in which plea bargaining is officially recognized and regulated.

The United States Supreme Court in Santobello v. New York, 404 U.S. 257, 260, 261, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971), with reference to plea bargaining, said:

"The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called 'plea bargaining,' is an essential component of the administration of justice. Properly administered, it is to be encouraged. If every criminal charge were subjected to a full-scale trial, the States and the Federal Government would need to multiply by many times the number of judges and court facilities.

"Disposition of charges after plea discussions is not only an essential part of the process but a highly desirable part for many reasons. It leads to prompt and largely final disposition of most criminal cases; it avoids much of the corrosive impact of enforced idleness during pre-trial confinement for those who are denied release pending trial; it protects the public from those accused persons who are prone to continue criminal conduct even while on pretrial release; and, by shortening the time between charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned. See Brady v. United States, 397 U.S. 742, 751-752, 90 S.Ct. 1463, 25 L.Ed.2d 747, 758 (1970).

"However, all of these considerations presuppose fairness in securing agreement between an accused and a prosecutor. It is now clear, for example, that the accused pleading guilty must be counseled, absent a waiver. (Citation omitted.) Fed. Rule Crim.Proc. 11, governing pleas in federal courts, now makes clear that the sentencing judge must develop, on the record, the factual basis for the plea, as, for example, by having the accused described the conduct that gave rise to the charge. The plea must, of course, be voluntary and knowing and if it was induced by promises, the essence of those promises must in some way be made known."

In Bryan v. United States, 492 F.2d 775, 781 (5th Cir. 1974), cert. denied 419 U.S. 1079, 95 S.Ct. 668, 42 L.Ed.2d 674 (1974), reh. denied 419 U.S. 1117, 95 S.Ct. 798, 42 L.Ed.2d 817 (1975), the Court said that at the time of accepting pleas of guilty:

"The court shall state that plea agreements are permissible and that the defendant and all counsel have a duty to disclose the existence and details of any agreement which relates to the plea tendered. Specific inquiry shall be made as to the existence of such an agreement before a plea is accepted. The defendant shall be placed under oath. These are minimum practices and are not intended to circumscribe any additional procedures or inquiries deemed by any court to be pertinent to the issue of plea propriety in any case."

In Johnson v. Beto, 466 F.2d 478, 480 (5th Cir. 1972), the Court noted some contract elements in plea...