Giwa v. StateGiwa v. State
- Reporters:
- , , ,
- Before:
- Jensen
Lead Opinion
[¶ 1] Haruna Muntari Giwa appeals a summary dismissal of his application for post-conviction relief based on a newly adopted rule of criminal procedure. We affirm the district court’s order summarily dismissing Giwa’s application for post-conviction relief.
I
[¶ 2] Giwa pleaded guilty to interference with a telephone during an emergency call,
[¶ 3] As part of’ his guilty plea, Giwa signed an acknowledgment of rights, waiver of appearance, plea agreement, and plea on November 16, 2015. The acknowledgment of rights Giwa signed included that he understood he had the right to remain silent, right to counsel, right to a jury trial, and right to cross-examine witnesses and present evidence. However, the acknowledgment and plea documents did not include information about the possible immigration consequences if Giwa was not a United States citizen.
[¶ 4] On June 16, 2016, Giwa applied for post-conviction relief, arguing he was not advised of “the right to a jury trial, the right to. cross-examine adverse witnesses, the right to- be protected from compelled self-incrimination or to testify and present evidence.” The State moved for summary disposition and dismissal. In ’ September 2016, Giwa filed an affidavit repeating these allegations as part of his opposition to the State’s motion for summary disposition and dismissal. Giwa also argued he was not informed of the potential immigration status consequences if he pleaded guilty to interference with a telephone during an emergency call. Further, Giwa contends he did not know DHS would terminate his parole and detain him due to pleading guilty to a crime. ,On March 14, 2017, the district court held a hearing on the State’s motion for summary disposition.
[¶ 5] The district court denied Giwa’s application for post-conviction relief and granted the State’s motion for summary disposition under
II
[¶6] On appeal from the summary dismissal of an application for post-conviction relief, this Court “construes the application in the light most favorable to the applicant and accepts the well-pleaded. allegations as true.” Greywind v. State, 2015-ND 231, ¶ 7, 869 N.W.2d 746 (quoting Wong v. State, 2010 ND 219, ¶ 9, 790 N.W.2d 757). This Court “will affirm a dismissal for failure to state a claim if it would be impossible for the applicant to prove a claim for which relief can be granted.” Id, A district court’s findings of fact in post-conviction relief proceedings will not be disturbed unless they are clearly erroneous. Greywind v. State, 2004 ND 213, ¶ 5, 689 N.W.2d 390. Additionally, questions of law are fully reviewable. Id.
A ’
[¶ 7] Giwa argues this Court should apply N.D.R.Crim.P. ll(b)(l)(j) because “[a] significant change in substantive or procedural law has occurred which, in the interest of justice, should be applied retrospectively.”
[¶ 8] Currently, N.D.R.Crim.P. ll(b)(l)(j) requires the district court to inform defendants “that, if convicted, a defendant who is not a United States citizen may be removed from- the United States, denied citizenship, and denied admission to the United States in the future.” This addition to Rule 11 became effective on March 1, 2016.
[¶ 9] Prior to the amendment to
[¶ 10] There is no indication that N.D.R.Crim.P. .U(b)(l)(j) was intended to apply retroactively. Giwa entered his guilty plea approximately four months pri- or to Rule ll(b)(l)(j)’s effective date. Further, the amendment to
B
[¶ 11] Giwa argues the district court failed to acknowledge his argument that his guilty plea was not knowingly, voluntarily, or intelligently made. Giwa contends he would not have pleaded guilty if he had been advised about the immigration consequences. Giwa providéd no indication in his affidavit that he was forced, coerced, or otherwise under duress while he signed the plea‘agreement.
[¶ 12] “A guilty plea must be entered knowingly, intelligently, and voluntarily to be valid.” Sambursky v. State, 2006 ND 223, ¶ 9, 723 N.W.2d 524. Further, this Court has determined, “[d]ue process is satisfied when the whole record clearly reflects the defendant’s knowledge of the rights being waived.... A guilty plea is valid if it represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” Greywind, 2004 ND 213, ¶ 5, 689 N.W.2d 390 (citations omitted). In Sam-bursky, the defendant argued his guilty plea was not knowing and voluntary because the district court did not advise him about a consequence of his plea. Sambur-sky, at ¶ 8. This Court concluded the district court was not required to notify the defendant of that specific consequence, and the district court’s failure to advise the defendant did not affect the voluntary or knowing nature of the plea. Id. at ¶¶ 10-11.
[¶ 13] Here, like in Sambursky, the district court was not required to notify Giwa of a consequence of his plea. Giwa only raised an issue with his plea in relation‘to his knowledge about the deportation consequences. The district court was not required to advise Giwa and its failure to do so did not affect the voluntary or knowing nature of the plea.
■ [¶ 14] Additionally, Giwa signed and acknowledged his rights and his plea, along with the factual basis for his guilty plea. Giwa argues there is a factual dispute about the voluntariness of the plea which the district court failed to acknowledge. The district court determined Giwa signed the acknowledgment of rights and waiver of his right to counsel in its memorandum opinion, noting the district court previously accepted that plea agreement in November 2015.- Construing the evidence presented to the district court in the light most favorable to Giwa, the district court did not clearly err in concluding Giwa’s plea was voluntary, intelligent, and knowing. Because N.D.R.Crim.P. ll(b)(l)(j) is not retroactive and the district court properly determined the plea was voluntary, knowing, and intelligent,, summary disposition was appropriate.
Ill
[¶ 15] We affirm the district court’s order summarily dismissing Giwa’s application for post-conviction relief.
[¶ 16] Jon J. Jensen Jerod E. Tufte Daniel J. Crothers Lisa Fair McEvers Gerald W. VandeWalle, C.J.
Concurrence Opinion
concurring specially.
[¶ 17] I concur with the result and have signed the majority opinion based on the arguments made by the Petitioner below. Mr. Giwa’s arguments below were that N.D.R.Crim.P. ll(b)(l)(j) should be applied retrospectively and that his plea was not knowing and voluntary because hé pleaded guilty -without knowing what the consequences would be, I agree with the majority that N.D.R.Crim.P. ll(b)(l)(j)
[¶ 18] However, I write separately to point out that had Mr. Giwa made an argument and presented evidence that his plea was forced, coerced or made under duress, the result here may have been different. Reviewing the plea agreement prepared by the State and signed by Mr. Giwa, there is no reference to the requirement under