State v. Wester

• Decision Date: 31 January 1973
• Docket Number: Cr. N
• Parties: STATE of North Dakota, Plaintiff-Respondent, v. Vernon Dale WESTER, Defendant-Applicant. o. 435.
• Court: North Dakota Supreme Court

Page 109

204 N.W.2d 109

STATE of North Dakota, Plaintiff-Respondent, v. Vernon Dale WESTER, Defendant-Applicant.

Cr. No. 435.

Supreme Court of North Dakota.

Jan. 31, 1973.

Syllabus by the Court

1. A plea must be made in open court either at the time of the arraignment or at such other time as may be allowed to defendant for that purpose. § 29--14--20, N.D.C.C.

2. In no case shall a plea of guilty be put in by anyone except the defendant himself, in open court, unless the defendant is a corporation, in which case it may be put in by counsel. § 29--14--21, N.D.C.C.

3. A defendant's expression of guilt, in order to constitute a plea of guilty, must be made in response to a question by the court as to how the defendant pleads and must be couched in language indicating that the defendant is formally making a plea rather than merely making an informal and spontaneous statement as to his guilt.

4. A trial court should arraign individuals charged with different offenses separately, ask each defendant in open court how he pleads to the specific offense for which he is charged, require each defendant to enter his plea orally in open court and in the presence of his counsel, unless counsel is waived, and require the court reporter to make a verbatim record of the proceedings.

5. When no plea is taken and judgment is pronounced on the theory that a guilty plea has been entered, the judgment is a nullity and, therefore, void.

Robert O. Wefald, Bismarck, for defendant-applicant.

Thomas F. Kelsch, State's Atty., and Dennis A. Schneider, Asst. State's Atty., for plaintiff-respondent.

ERICKSTAD, Judge.

On December 10, 1971, Vernon Dale Wester was sentenced in the district court of Burleigh County to imprisonment in the State Penitentiary for a term of three years, commencing at twelve o'clock noon on that day, with credit to be given for 88 days previously spent in custody and confinement.

Thereafter, Mr. Wester filed with the trial court the following: an application for a post-conviction hearing on April 19, 1972; an application for a writ of habeas corpus on May 19, 1972; a supplementary application for a post-conviction hearing on May 27, 1972; and an application for a writ of habeas corpus on June 14, 1972. All applications were heard and decided against Mr. Wester on June 27, 1972. Written orders quashing the writ of habeas corpus issued on the one application and denying post-conviction relief were executed by the court on the 26th of October 1972.

Mr. Wester has now filed with this court an application for a writ of habeas corpus in which he states that he is being confined in the penitentiary 'contrary to law in that he was never allowed to enter a plea of either not guilty or guilty nor any other plea in this action and that he was convicted without entering a plea'.

A review of the record discloses that the trial court did not ask for a plea, that Wester did not enter a plea either orally or in writing, and that his counsel did not enter a plea for him.

How could a person be sentenced and imprisoned in the State Penitentiary under such circumstances? The record discloses how this occurred.

On August 31, 1971, the trial court attempted to arraign five different defendants on five different charges. These five defendants, in addition to four others who were to be arraigned shortly thereafter, were all represented by Mr. Kent Higgins, the public defender.

The court first had the five defendants identify themselves by name. Thereafter, Mr. Dennis Schneider, the assistant State's attorney, filed separate informations and gave to each of the defendants a copy of the information which contained the charge against him. The court then established by inquiry of each of the defendants whether they were satisfied with their counsel, Mr. Higgins, to which they each replied in the affirmative. After the court had informed the group of their statutory and constitutional rights, counsel for the defendants informed the court that he thought that all of the defendants 'would be prepared to waive the reading of the informations inasmuch as they each had a copy'.

The court then informed the defendant Robert K. Cole of the charge against him and asked him for his plea. Cole entered the oral plea of guilty. Thereafter, the court, Mr. Schneider and Mr. Higgins each in turn asked the defendant Cole a number of questions, apparently to help the court in determining whether it would accept the plea, inasmuch as sentencing was to be postponed and to follow a later presentencing hearing as requested by Mr. Higgins.

Defendant Frances Ellison was then asked by the court if she wished to enter her plea at that time. Counsel Higgins asked that the court defer the entry of a plea on Mrs. Ellison's part until such time as 'they could be prepared to proceed with the presentencing hearing'. When the court granted this request, counsel Higgins made a similar request for deferment of the entry of the plea on the part of the other three defendants.

On September 15, 1971, Mr. Wester was brought before the court, at which time the following colloquy took place.

'THE COURT: I believe the situation in Mr. Wester's case is we had gotten through the plea of guilty?

'MR. HIGGINS: I think not, your Honor. Mr. Wester has not taken the stand. I think the situation is the same as the other cases, he entered an oral plea of guilty but the Court has not accepted the plea formally.'

It is obvious that both the court and counsel were in error, for the defendant had not been asked to enter a plea nor had he entered one.

Following the foregoing colloquy the court asked Wester to take the stand and after being sworn to testify to the truth, Wester was examined concerning the circumstances surrounding the charge of obtaining money and property by false pretenses, first by his counsel, then by the assistant State's attorney, and finally by the court.

At the conclusion of this examination, which covers approximately twenty pages of the transcript, the court said:

'For the record, the defendant's plea of guilty to the crime charged is accepted and the Clerk is directed to record and make an entry of such plea.'

Pursuant to the recommendations of the assistant State's attorney and counsel for the defendant, the court deferred imposition of sentence.

In the order deferring imposition of sentence dated September 15, 1971, the court imposed certain conditions, the pertinent condition being 3(d) thereof, which prohibited the defendant from leaving the state prior to the expiration of the probationary period without permission of the court or the board of pardons.

On December 10, 1971, the State, through the assistant State's attorney of Burleigh County, filed an amended application with the district court which requested a hearing and demanded a revocation of the order deferring the imposition of sentence, on the ground that the defendant left the state in the month of October 1971 without permission of the court or the board of pardons.

At the commencement of the hearing, in the presence of the defendant, the public defender informed the court that the defendant admitted all of the allegations incorporated in paragraphs 1, 2, and 3 of the amended application.

Paragraph 1 asserted that on September 15, 1971, the defendant pleaded guilty to the crime of obtaining money by false pretenses, and that on that date the court entered an order deferring imposition of sentence for a period of four years.

Paragraph 2 asserted that paragraph 3(d) of the order prohibited the defendant from leaving the state of North Dakota prior to the expiration of the probationary period without permission of the court or the board of pardons.

Paragraph 3 asserted that the defendant during the month of October 1971 left the state without permission of the court or the board of pardons.

When the defendant was given an opportunity to explain his conduct, he said: 'I know I am guilty of the offense and I am supposed to be sentenced because I violated--when you gave me a deferred imposition of sentence you were placing some of your faith in my character and I violated it and I knew what the consequences were going to be--'

When, near the end of the hearing, Wester was asked if he had any legal cause to show why judgment should not be pronounced against him, he answered, 'No, sir.' The court then sentenced Wester to the State Penitentiary for a period of three years, with credit to be given him for the 88 days during which he was in custody prior to the deferment order.

On June 27, 1972, when the applications for writs of habeas corpus and the application for a post-conviction hearing were heard, the court informed Wester that it had read the transcripts and, summarizing the conclusions it derived therefrom, it said: '(T)hey indicate that you had a hearing, that you entered a plea, and that you were given a deferred, I believe, sentence at that time, were you not?' In response thereto, Wester said, 'Yes, sir.'

Later, when he was told by the court that he entered a plea on September 15, 1971, he responded, 'Yes.' Still later during the hearing when he was asked by the State's attorney as to whether he entered a plea of guilty, he again answered, 'Yes.' He stated that he knew he was to receive a deferred sentence, but didn't know the length of deferment. Later in the same hearing, State's attorney Thomas Kelsch, making a statement to the court, asserted that Wester had knowingly and voluntarily pleaded to the charges.

It was near the close of this hearing that Mr. Jack Christensen, who was now representing Wester through appointment of the court, asserted that Wester had not entered a plea at the time of arraignment or at the time of sentencing or at any other time. He asked that the applications be amended to so state.

In ruling against Wester, the court informed him that he might renew his application for a writ of habeas corpus before the supreme court, or that he...