State v. Abuhamda, 923 N.W.2d 498

In March 2017 police searched two stores owned by Falesteni Abuhamda and seized items containing CBD, Delta‑9‑THC, hashish, marijuana, and paraphernalia. Abuhamda was charged on seven counts (delivery/possession of controlled substances, paraphernalia offenses, advertising, and possession of marijuana).
Abuhamda moved to dismiss Counts 1, 2, 4, and 5 and to suppress evidence, arguing CBD products and related items were legal and paraphernalia liability required specific intent or use. The State presented forensic testimony that the seized substances were controlled.
The district court denied the motion to dismiss and suppress. Abuhamda entered a pretrial diversion for Counts 1, 2, and 5; pleaded guilty to Counts 3, 4, 6, and 7; and the court deferred imposition of sentence on the guilty pleas.
Abuhamda appealed the denial of his pretrial dismissal/suppression motion and the order deferring sentence on Count 4, asserting (for Count 4) his guilty plea was conditional to preserve appellate review.
The Supreme Court considered whether it had jurisdiction to review the pretrial diversion orders, whether to exercise supervisory jurisdiction, and whether Count 4’s conditional plea was preserved.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Appealability of order approving pretrial diversion (Counts 1, 2, 5)	State: Order approving pretrial diversion is not among appealable orders in N.D.C.C. § 29‑28‑06	Abuhamda: Should be able to appeal denial of dismissal/suppression despite diversion; asks Court to review	Held: No jurisdiction—orders approving pretrial diversion are not appealable; appeal dismissed on Counts 1, 2, 5.
Supervisory jurisdiction request	State: No basis; statutory appeal route governs	Abuhamda: Court should exercise supervisory jurisdiction because diversion agreement purported to allow appeal and denial is unjust	Held: Court declines to exercise supervisory jurisdiction—not an extraordinary case, no showing of public importance or lack of adequate remedy.
Preservation of conditional guilty plea (Count 4)	State: No transcript/writing shows conditional plea; nothing preserved for appeal	Abuhamda: Plea was conditional and reserved right to appeal denial of pretrial motion	Held: Not preserved—record lacks the required writing or transcript showing substantial compliance with N.D.R.Crim.P. 11(a)(2); Count 4 affirmed.
Merits of motion to dismiss/suppress	State: Forensic testimony established substances were controlled under ND law	Abuhamda: CBD/legal status and paraphernalia law challenge	Held: Court did not reach merits because of jurisdictional and preservation rulings; lower court’s denial stands for Count 4 by lack of preserved appellate issue.

State v. Robideaux, 475 N.W.2d 915 (N.D. 1991) (appeal rights are purely statutory)
State v. Jorgenson, 914 N.W.2d 485 (N.D. 2018) (orders approving pretrial diversion are not appealable under § 29‑28‑06)
State v. Trevino, 807 N.W.2d 211 (N.D. 2011) (conditional guilty plea under N.D.R.Crim.P. 11(a)(2) may be recognized where record shows intent and consent)
State v. Barnes, 860 N.W.2d 466 (N.D. 2015) (limits on exceptions to Rule 11(a)(2) writing requirement)
State v. Trosen, 547 N.W.2d 735 (N.D. 1996) (an order deferring imposition of sentence can serve as a judgment of conviction for appealability)
State v. Berger, 683 N.W.2d 897 (N.D. 2004) (discussion of appealability of deferred‑sentence orders)
State v. Deutscher, 766 N.W.2d 442 (N.D. 2009) (treating unauthorized appeals as requests for supervisory writs)
State, ex rel. Harris v. Lee, 782 N.W.2d 626 (N.D. 2010) (standards for exercising supervisory jurisdiction)