State v. BlurtonState v. Blurton
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- Kapsner
[¶ 1] Joe Blurton appeals from a judgment of conviction entered on a plea of guilty to the crime of gross sexual imposition. We affirm, concluding Blurton knowingly and voluntarily pled guilty.
I
[¶2] In September 2007, Blurton was charged with gross sexual imposition in violation of
[¶ 3] At a May 5, 2008, change-of-plea hearing, Blurton unconditionally pled guilty to an amended charge. The district court explained Blurton’s constitutional rights and that he would be giving up those rights if he pled guilty. Blurton’s attorney advised the court Blurton wanted to change his plea to an amended charge of gross sexual imposition under
[¶ 4] On June 5, 2008, Blurton’s attorney moved to withdraw as counsel at Blur-ton’s request. Blurton sent the court a letter stating he wished to “rescind” his
[¶ 5] During an October 3, 2008, sentencing hearing, Blurton’s attorney said Blurton was not attempting to withdraw his plea. Blurton was sentenced to twenty years in prison with fifteen years suspended, and five years of supervised probation.
II
[¶ 6] Blurton argues he is entitled to withdraw his guilty plea because the district court did not comply with the requirements of
[¶ 7] “Under
[¶ 8] Here, Blurton told the court before sentencing that he wished to withdraw his guilty plea, but the court did not decide whether to grant his motion because Blurton indicated at the sentencing hearing that he no longer wished to withdraw his plea. Generally, issues cannot be raised for the first time on appeal unless the alleged error rises to the level of obvious error.
A
[¶ 9] Blurton argues his plea was not knowing and voluntary because the court did not comply with the requirements for accepting a guilty plea under
[¶ 10] A guilty plea must be entered knowingly, intelligently, and voluntarily to be valid.
State v. Bates,
2007 ND 15, ¶ 13, 726 N.W.2d 595.
(A) the right to plead not guilty, or having already so pleaded, to persist in that plea;
(B) the right to a jury trial;
(C) the right to be represented by counsel at trial and at every other stage of the proceeding and, if necessary, the right to have the counsel provided under Rule 44;
(D) the right at trial to confront and cross-examine adverse witnesses, to be protected from compelled self-incrimination, to testify and present evidence, and to compel the attendance of witnesses;
(E) the defendant’s waiver of these trial rights if the court accepts a plea of guilty;
(F) the nature of each charge to which the defendant is pleading;
(G) any maximum possible penalty, including imprisonment, fíne, and mandatory fee;
(H) any mandatory minimum penalty; and
(I) the court’s authority to order restitution.
The rule does not require ritualistic compliance, but a court must substantially comply with the rule’s procedural requirements to insure the defendant is entering a voluntary and intelligent guilty plea. Abdi v. State, 2000 ND 64, ¶ 12, 608 N.W.2d 292.
[¶ 11] The court advised Blurton of his rights and complied with most of the requirements of
[¶ 12] Blurton also claims he was not informed of the nature of the charge he pled guilty to and he misunderstood the charges because the amended information charged him with violating
[¶ 13]
b. That person or someone with that person’s knowledge has substantially impaired the victim’s power to appraise or control the victim’s conduct by administering or employing without the victim’s knowledge intoxicants, a controlled substance as defined in chapter 19-03.1, or other means with intent to prevent resistance;
c. That person knows that the victim is unaware that a sexual act is being committed upon him or her;....
The amended information charged Blurton with:
GROSS SEXUAL IMPOSITION in violation ofSection 12.1-20-03(l)(c) & 3(c), N.D.C.C. in that on or about September 2, 2007, the defendant willfully engaged in a sexual act with another or caused another to engage in a sexual act and he or someone with his knowledge had substantially impaired the victim’s power to appraise or control the victim’s conduct by administrating or employing without the victim’s knowledge intoxicants, a controlled substance as defined in chapter 19-03.1, or other means with intent to prevent resistance to-wit: that on or about the above-stated date, the defendant, Joe R Blurton, engaged in a sexual act with [the victim] when defendant knew [the victim] was highly intoxicated, passed out, and unaware.
[¶ 14] While the description of the elements of the offense in the amended information included a description of the elements of
[¶ 15] We conclude Blurton’s guilty plea was knowingly and voluntarily entered, and any errors were harmless and do not rise to the level of obvious error.
B
[¶ 16] Blurton claims the evidence in the record does not support the factual basis, and the factual basis does not support his conviction. A factual basis is a statement of facts that assures the defendant is guilty of the charged offense. Bates, 2007 ND 15, ¶ 8, 726 N.W.2d 595. The defendant must admit to conduct in the factual basis that constitutes the charged offense and the court should compare each element of the charged offense to the facts the defendant admits. Id.
[¶ 17] When comparing the factual basis Blurton admitted to at the change of plea hearing with the elements of gross sexual imposition under
on September 2nd of 2007, the victim in this matter . . . had been drinking earlier in the day. First of all, she was staying with her mom in Detroit Lakes, she came up here to Cass County. Her and her boyfriend met, they wentaround to several — various hotels. They had looked at four or five hotels. One of the hotels was the hotel in which this incident occurred. However, they did not end up getting a room there. They got a room at Sunset.
She then went to the bar where she admittedly had too much to drink. She drank some whiskey and cokes, she had a lot to drink. She then showed up at the — I believe it’s the Motel 6 in Fargo, one of the hotels that they had been to earlier that day. She went in and tried to get her room, she was not able to do so. She was highly intoxicated.
She went back out to her car where she passed out. While she was passed out, the Defendant did come into her car one time, we’re not quite sure what he did. He left the car. We have witnesses from the second floor of Motel 6 that saw this all go on. He then returns to the car where she’s still passed out. He — she’s highly intoxicated, unable to really control what she’s doing or the situation. He forces her to have oral sex with him. He does tell her “Shut up, bitch,” as well as other things to her. She is highly intoxicated, Your Honor, and she’s unable to fend for herself or give consent to this action.
Blurton agreed the factual basis was correct. Blurton admitted that he engaged in a sexual act with the victim and he knew the victim was unaware the act was being committed. The factual basis was sufficient to support the guilty plea.
[¶ 18] Blurton also claims the evidence in the record does not support the factual basis. He claims there should be statements from witnesses, physical and medical evidence of the victim’s intoxication, and other evidence. However, a defendant who voluntarily pleads guilty waives the right to challenge non-jurisdictional defects and may only attack the voluntary and intelligent character of the plea. McMorrow v. State, 2003 ND 134, ¶ 5, 667 N.W.2d 577. Because Blurton pled guilty and admitted the factual basis proposed by the State was correct, he waived the right to argue the evidence was insufficient to support the factual basis.
Ill
[¶ 19] Blurton argues his trial counsel was ineffective because his counsel did not effectively assert Blurton’s rights. He also raises claims of prosecutorial misconduct and evidence manipulation.
[¶ 20] A defendant claiming ineffective assistance’ of counsel must show his counsel’s performance was deficient and prejudiced the defendant. Bates, 2007 ND 15, ¶ 19, 726 N.W.2d 595. Generally, ineffective assistance of counsel claims should be raised in a post-conviction proceeding to allow the parties to fully develop a record of the counsel’s performance and its impact on the defendant’s claim. Id. When a claim is raised on direct appeal:
we review the record to decide if the assistance of counsel was plainly defective. Unless the record affirmatively shows ineffectiveness of constitutional dimensions, the complaining party must show some evidence in the record to support the claim. Representations and assertions of appellate counsel are not enough to establish a claim of ineffective assistance.
Id. (citations omitted).
[¶ 21] On this record, we are unable to determine why certain strategies were used and there is not evidence Blurton’s counsel was plainly defective. The record is inadequate to determine Blurton’s ineffective assistance of counsel claim, but the issue may be pursued in a post-conviction proceeding where an adequate record can
[¶ 22] Blurton also raised claims of prosecutorial misconduct and evidence manipulation. However, these issues were not raised before the district court and this Court will not consider the issues for the first time on appeal. See State v. Kieper, 2008 ND 65, ¶ 16, 747 N.W.2d 497. Furthermore, Blurton waived the right to challenge any non-jurisdietional defects occurring before the entry of his guilty plea. McMorrow, 2003 ND 134, ¶ 5, 667 N.W.2d 577.
IV
[¶ 23] We conclude Blurton’s guilty plea was knowing and voluntary. We affirm his conviction.
[¶ 24] GERALD W. VANDE WALLE, C.J., DALE V. SANDSTROM, DANIEL J. CROTHERS, and MARY MUEHLEN MARING, JJ., concur.