State v. Atkins, 2016 ND 13

Cody Atkins was charged with gross sexual imposition; the State amended the charge and alleged date from November 2013 to September 2013 at a probable-cause hearing; Atkins did not object and later pled not guilty at arraignment.
At a pretrial conference Atkins informed the court he intended to change his plea; the court personally advised him of rights under N.D.R.Crim.P. 11 and Atkins entered an open guilty plea, which the court accepted as voluntary with a factual basis.
At sentencing Atkins apologized but then stated he had not committed the acts and had pleaded guilty to protect an acquaintance; defense counsel expressed concern this indicated Atkins might wish to withdraw his plea.
The court confirmed Atkins wanted to stand by his plea, reminded him it was not bound by recommendations, and proceeded to sentence Atkins; a criminal judgment was entered.
On appeal Atkins sought to withdraw his plea, arguing ineffective assistance of counsel and Rule 11 noncompliance; he had not moved to withdraw the plea in the district court, so the trial court never ruled on those claims.
The Supreme Court limited review to issues properly before it on direct appeal and considered only the ineffective-assistance claim, finding the record inadequate to show counsel was plainly defective and affirming the judgment.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Atkins received ineffective assistance of counsel on the record before this Court	State: the appellate record lacks evidence to show counsel was plainly defective; claims are better raised in post-conviction proceedings	Atkins: counsel was deficient for not requesting continuances after amendment, not supplementing statements at sentencing, and not moving to withdraw plea after Atkins’s sentencing comments	The court held the direct-appeal record is inadequate to show counsel was plainly defective; claim should be pursued in post-conviction proceedings
Whether the district court’s Rule 11 colloquy was defective such that manifest injustice allows plea withdrawal	State: not properly preserved; district court not asked to rule	Atkins: alleged substantial noncompliance with N.D.R.Crim.P. 11 warrants withdrawal	Court declined to decide because issue was not preserved in district court

State v. Vondal, 803 N.W.2d 578 (N.D. 2011) (issues not raised in district court are generally inappropriate for appeal)
State v. Keener, 755 N.W.2d 462 (N.D. 2008) (standard for ineffective assistance on direct appeal; review for plain deficiency)
State v. Schweitzer, 735 N.W.2d 873 (N.D. 2007) (statements of appellate counsel insufficient to establish ineffectiveness)
State v. Bertram, 708 N.W.2d 913 (N.D. 2006) (requirement that record support ineffective-assistance claims on direct appeal)
State v. Strutz, 606 N.W.2d 886 (N.D. 2000) (post-conviction proceedings appropriate when direct-appeal record is inadequate to decide ineffectiveness)