945 N.W.2d 279
N.D.2020Background:
- 2014 FBI search of Kremer’s residence seized computers and hard drives; child pornography was found and Kremer acknowledged ownership of the devices and material.
- Federal prosecutors and Kremer entered a stipulation: Kremer would plead guilty in state court to avoid federal prosecution that carried a 15-year mandatory minimum.
- State charged Kremer with five counts of possession; plea agreement in state court: plead to three counts, receive ten years imprisonment plus three years supervised probation; two counts dismissed. Change-of-plea hearing held Feb. 25, 2016.
- Kremer filed a post-conviction relief application in July 2018 seeking to withdraw his guilty pleas, alleging ineffective assistance of counsel and Rule 11 violations (not informed of restitution, voluntariness, lack of factual basis and lack of defendant acknowledgment).
- The district court held an evidentiary hearing and denied relief; Kremer appealed to the North Dakota Supreme Court.
- Supreme Court affirmed: Kremer failed to show Strickland prejudice and the district court substantially complied with N.D.R.Crim.P. 11.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ineffective assistance of counsel | Kremer: counsel failed to explain elements and defenses; would not have pled guilty if properly advised | State: Kremer chose state plea to avoid much harsher federal sentence; no evidence he would have gone to trial | Denied — Kremer failed to prove prejudice under Strickland; no credible evidence he would have insisted on trial |
| Rule 11(b)(1)(F) — nature of charges | Kremer: court did not adequately ensure he understood the nature/elements of each charge | State: court informed defendant and he acknowledged reading and understanding the Information | Held — substantial compliance; court explained counts and defendant said he understood |
| Rule 11(b)(3) — factual basis for plea | Kremer: court did not obtain an adequate factual basis tying his conduct to the offenses | State: prosecutor narrated discovery and FBI affidavit supplied detailed facts supporting plea | Held — substantial compliance; record (prosecutor’s statement and FBI affidavit) provided factual basis |
| Rule 11(b)(4)(A) — defendant acknowledgment | Kremer: court failed to obtain a clear acknowledgement that he admitted facts supporting plea | State: defendant acknowledged hearing the factual basis and entered the plea | Held — substantial compliance; the court obtained an acknowledgment sufficient under the rule |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two‑part ineffective assistance test: deficient performance and prejudice)
- North Carolina v. Alford, 400 U.S. 25 (recognizes a guilty plea while maintaining innocence—Alford plea)
- Lindsey v. State, 852 N.W.2d 383 (N.D.) (treats post‑conviction plea withdrawal as Rule 11(d) motion and discusses manifest injustice standard)
- Booth v. State, 893 N.W.2d 186 (N.D.) (explains Strickland application to plea bargains and prejudice showing)
- Froistad v. State, 641 N.W.2d 86 (N.D.) (describes requirement and sources for a factual basis under Rule 11)
- Libretti v. United States, 516 U.S. 29 (discusses comparison of admitted conduct to elements to establish factual basis)