State v. BrameState v. Brame
REMANDED.
Opinion of the Court by Jensen, Chief Justice.
Megan E. Kummer, State‘s Attorney, Wahpeton, ND, for plaintiff and appellee; submitted on brief.
Laura C. Ringsak, Bismarck, ND, for defendant and appellant; submitted on brief.
State v. Brame
No. 20230024
Jensen, Chief Justice.
[¶1] Charles Brame appeals from a criminal judgment of conviction for two counts of sexual assault. Brame argues the district court failed to abide by Rule 11 of the North Dakota Rules of Criminal Procedure and was biased in sentencing him. We retain jurisdiction and remand to provide the State an opportunity to file any relevant transcripts which may show the district court substantially complied with Rule 11.
I
[¶2] Brame was charged with two counts of sexual assault. At the pretrial conference, Brame рled guilty to both counts of sexual assault. The district court accepted Brame‘s guilty pleas finding the pleas were made voluntarily and knowingly. Brаme was then sentenced according to the joint sentencing recommendation. Brame now appeals, arguing the court failed to abide by
[¶3] On appeal, Brame provided a transcript limited to the hearing during which he changed his pleas to guilty. The State requested this Court grant additional time to file its brief to provide the State with an opportunity to produce transcripts from additional proceedings to establish, if necessary, substantial compliance with
II
[¶4] Brame argues the district court violated
(1) The court may not accept a plea of guilty without first, by addressing the defendant persоnally [except as provided in
Rule 43(b) ] in open court, informing the defendant of and determining that the defendant understands the following:(A) the right to pleаd 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 stаge 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-examinе adverse witnesses, to be protected from compelled self-incrimination, to testify and present evidence, and to compеl 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, fine, and mandatory fee;
(H) any mandatory minimum penalty;
(I) the court‘s authority to order restitution; and
(J) that, if convicted, а 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 futurе.
[¶5] Brame concedes he did not challenge in the district сourt the court‘s compliance with Rule 11 nor did he move to withdraw his guilty pleas. We do not address issues not raised in the district court, unless the alleged error arises to the level of obvious error affecting substantial rights under
[¶6] On the record before us, Brame is able to demonstrate a potential error, because the district court did not strictly comply with Rule 11 at the pretrial conference when his pleas of guilty were accepted.
[¶7] Next, Brame must show the error was plain. “A ‘plain’ error is a ‘clear’ or ‘obvious’ deviation from current law.” State v. Landrus, 2022 ND 107, ¶ 10, 974 N.W.2d 676. Rule 11 requirеs the district court to personally advise the defendant of the Rule 11 requirements before accepting a guilty plea.
[¶8] Finally, to establish obvious error, Brame must show the error, which was plain, affected his substantial rights. Hoehn, 2019 ND 222, ¶ 24. “If an error does not affect the defendant‘s substantial rights, then it must be disregarded.” Id. (citing
[¶9] Brame has provided this Court with a limited portion of the record. Specifically, he provided only the transcript of the hearing during which he changed his pleas to guilty, аnd no other transcripts from other proceedings in the case. We have previously determined that if the district court advised the defendant of the Rule 11 requirements at a hearing prior to the hearing during which a guilty plea is accepted,
[¶10] Brame‘s failure to raise the issue in the district court coupled with this Court‘s denial of the State‘s request to produce transcripts of the earlier procеedings has effectively denied the State an opportunity to demonstrate the court substantially complied with Rule 11. In order to prove substantial compliance, the State may show Brame was advised of the Rule 11 requirements at any previous hearing. We conclude it is necessary to provide the State an opportunity to demonstrate substantial compliance with
III
[¶11] Brame asserts the district court was biased in sеntencing him. “A judge is presumed by law to be unbiased and not prejudiced.” State v. Vickerman, 2022 ND 184, ¶ 23, 981 N.W.2d 881 (quoting State v. Jacobson, 2008 ND 73, ¶ 6, 747 N.W.2d 481). Brame provides no legal argument or factual support as to how thе court was biased and thus has waived this issue. See State v. Smith, 2023 ND 82, ¶ 28, 989 N.W.2d 490 (when a party fails to provide supporting argument for an issue listed in the brief, the party is deemed to have waived that issue). We conclude his assertion of bias is without merit.
IV
[¶12] The district court failed to comply with the requirements of
[¶13] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr