State v. Yost

• Decision Date: 11 July 2018
• Docket Number: 20170360,20170359,Nos. 20170358,s. 20170358
• Citation: 914 N.W.2d 508
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Dale YOST, Defendant and Appellant
• Court: North Dakota Supreme Court

914 N.W.2d 508

STATE of North Dakota, Plaintiff and Appellee

v.Dale YOST, Defendant and Appellant

Nos. 20170358

20170359

20170360

Supreme Court of North Dakota.

Filed July 11, 2018

Joshua E. Frey, McHenry County State's Attorney, Towner, ND, for plaintiff and appellee.

Eric P. Baumann, Minot, ND, for defendant and appellant.

Crothers, Justice.

[¶ 1] Dale Gene Yost appeals from an order denying his motion to withdraw guilty pleas and amended criminal judgments. Yost argues the district court abused its discretion in denying withdrawal of his guilty pleas, did not advise him of his rights before his pleas, and erred in amending the amended judgments because the district court lacked jurisdiction. Yost also argues he received ineffective assistance of counsel. We affirm the district court's denial of Yost's motion, vacate the district court's second amended judgment, and remand for correction of the first amended judgment.

I

[¶ 2] In October 2012 the State charged Yost with eleven counts of gross sexual imposition involving five minors. State v. Yost , 2014 ND 209, ¶ 2, 855 N.W.2d 829 ( Yost I ). At the November 7, 2012 initial appearance, the district court advised Yost of the potential criminal penalties and his rights as listed in N.D.R.Crim.P. 11(b). In August 2013 Yost entered Alford pleas to five counts and the State dismissed six counts as part of a plea agreement. Yost I , at ¶ 3. Attorney William Hartl represented Yost in these proceedings and the district court ordered presentence investigations after the change of plea hearing. Id.

[¶ 3] Yost requested the Commission on Legal Counsel for Indigents appoint him new counsel and filed with the district court multiple requests for a new attorney or claims of ineffective assistance of counsel. Yost I , at ¶¶ 3-5. In January 2014 Yost appeared without counsel at a sentencing hearing because the court permitted Hartl to withdraw before the hearing. Yost I , at ¶ 7. Yost appealed in February 2014. This Court reversed and remanded for resentencing on a narrow ruling that the record from the sentencing hearing did "not establish Yost knowingly and intelligently waived his right to counsel, nor did his conduct rise to the functional equivalent of a voluntary waiver...." Yost I , at ¶ 23.

[¶ 4] Following the 2014 appeal, Yost's second appointed counsel withdrew. On October 20, 2016 Yost's third appointed counsel filed a motion to withdraw guilty pleas. The district court held a motion hearing on April 21, 2017, and on September 8, 2017, filed an order denying the motion. The district court amended the criminal judgment on October 6, 2017, after a sentencing hearing. Yost filed his first notice of appeal on October 9, 2017. On February 1, 2018 the district court amended the amended criminal judgment. Yost filed a second notice of appeal on February 21, 2018.

II

[¶ 5] Yost argues the district court used the wrong standard in denying withdrawal of his guilty plea. Rule 11(d), N.D.R.Crim.P., governs withdrawal of guilty pleas and provides:

"(1) In General. A defendant may withdraw a plea of guilty:

(A) before the court accepts the plea, for any reason or no reason; or

(B) after the court accepts the plea, but before it imposes sentence if:

(i) the court rejects a plea agreement under Rule 11(c)(5) ; or

(ii) the defendant can show a fair and just reason for the withdrawal.

(2) Finality of a Guilty Plea. Unless the defendant proves that withdrawal is necessary to correct a manifest injustice, the defendant may not withdraw a plea of guilty after the court has imposed sentence.

(3) Prosecution Reliance on Plea. If the prosecution has been substantially prejudiced by reliance on the defendant's plea, the court may deny a plea withdrawal request."

[¶ 6] We have interpreted Rule 11(d) to recognize three standards for withdrawing a guilty plea:

"The standard for a plea withdrawal differs depending upon when the motion to withdraw the guilty plea is made. A defendant has a right to withdraw a guilty plea before it is accepted by the court. After a guilty plea is accepted, but before sentencing, the defendant may withdraw a guilty plea if necessary to correct a manifest injustice, or, if allowed in the court's discretion, for any ‘fair and just’ reason unless the prosecution has been prejudiced by reliance on the plea. When a court has accepted a plea and imposed sentence, the defendant cannot withdraw the plea unless withdrawal is necessary to correct a manifest injustice. The decision whether a manifest injustice exists for withdrawal of a guilty plea lies within the trial court's discretion and will not be reversed on appeal except for an abuse of discretion. An abuse of discretion under N.D.R.Crim.P. [11](d) occurs when the court's legal discretion is not exercised in the interest of justice. The trial court must exercise its sound discretion in determining whether a ‘manifest injustice’ or a ‘fair and just reason’ to withdraw a guilty plea exists."

State v. Bates , 2007 ND 15, ¶ 6, 726 N.W.2d 595 (citations and quotation marks omitted). "A court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, or it misinterprets or misapplies the law." State v. Pixler , 2010 ND 105, ¶ 7, 783 N.W.2d 9.

"While there is a preference to liberally allow a defendant to withdraw a guilty plea, withdrawal is not a matter of right.... Furthermore, a defendant has the burden of proving that a fair and just reason supports withdrawal of a guilty plea. Once a defendant establishes a fair and just reason, the burden then shifts to the State to establish that it would be prejudiced by granting leave to withdraw. To establish prejudice, the State must show prejudice beyond that found in the ordinary case. Substantial prejudice is established if the prosecution shows, for example, that vital physical evidence has been discarded, that a chief government witness has died, or that fifty-two witnesses who have come from all over the United States and from overseas naval bases have been dismissed. Courts do not inquire into the matter of prejudice unless the defendant first shows a good reason for being allowed to withdraw his plea."

State v. Lium , 2008 ND 232, ¶ 13, 758 N.W.2d 711 (citations and quotation marks omitted).

A

[¶ 7] Yost argues the district court should have allowed withdrawal as a matter of right because the remand from Yost I vacated the judgment, eliminated the original acceptance of guilty pleas, and placed Yost in the first stage of guilty plea withdrawal. This argument ignores the effect of our holding in Yost I , at ¶ 24, which reversed and remanded for "resentencing with appointed counsel" only. The district court accepted the guilty plea in 2013 at the initial change of plea hearing, evidenced by its statements in court, the presentence investigation, and the sentence at issue in Yost I, all of which depended on an accepted guilty plea. See State v. Welch , 356 N.W.2d 147, 148-49 (N.D. 1984) (reversing denial of a motion to withdraw guilty plea where district court did not accept plea and defendant withdrew before acceptance and sentence). In rejecting Yost's motion to withdraw, the district court found prior acceptance of the guilty plea. We agree with the district court and reject Yost's argument that he could withdraw his guilty pleas as a matter of right.

[¶ 8] Having determined the district court accepted Yost's guilty plea, the decision before us is whether the district court should have applied the fair and just reasons or manifest injustice standard. See Bates , 2007 ND 15, ¶ 6, 726 N.W.2d 595. The district court denied Yost's motion under the manifest injustice standard but made sufficient findings to deny the motion under the fair and just reasons standard. For the reasons explained below, we affirm the district court's order because the district court provided adequate findings under either standard. See State v. DeCoteau , 325 N.W.2d 187, 191 (N.D. 1982) (affirming denial of motion to withdraw guilty plea under both manifest injustice and fair and just reasons standards).

B

[¶ 9] Yost argues the district court should have applied the "fair and just reason" standard. This standard applies when the district court accepts a plea but has not issued a sentence. See N.D.R.Crim.P. 11(d) ; Bates , 2007 ND 15, ¶ 6, 726 N.W.2d 595.

[¶ 10] In State v. Millner , 409 N.W.2d 642, 644 (N.D. 1987), we concluded the trial court impliedly found the defendant advanced a "fair and just reason" for withdrawal where the trial court found the state would be substantially prejudiced if the defendant withdrew his guilty plea. " ‘[S]ubstantial prejudice’ ... requires a showing by the State that there are specific factors present which demonstrate that withdrawal of the plea will be more prejudicial to it than in the ordinary case. Failure to require such a specific showing would create an exception which would swallow the rule." Id. We reversed because the trial court relied on generalities rather than making specific findings. Id.

[¶ 11] While we have not explicitly adopted factors to show fair and just reasons, federal courts use a list of nonexclusive factors to evaluate defendants' claims for withdrawal of guilty pleas. The federal factors include amount of time elapsed between the plea and the motion for withdrawal, presence or absence of a reason for failure to move earlier, defendant's experience, assistance of counsel, and prejudice to the State. See U.S. v. Ellis , 470 F.3d 275, 281-286 (6th Cir. 2006) (analyzing seven factors to determine whether defendant showed fair and just reasons for withdrawal of plea); U.S. v. Mugan , 441 F.3d 622, 630-31 (8th Cir. 2006), cert. denied , 549 U.S. 890, 127 S.Ct. 191, 166 L.Ed.2d 157 (2006) (finding no abuse of discretion in denying motion to withdraw plea where defendant did not develop factual record, understood plea agreement, and waited five months to move for withdrawal); 1A Wright and Leopold, Federal Practice & Procedure ...