State v. EastgateState v. Eastgate
Chase R. Lingle, Assistant State’s Attorney, Mandan, ND, for plaintiff and appellee.
Leah J. Viste, Fargo, ND, for defendant and appellant.
Friese, Justice.
[¶1] Thomas Eastgate appeals from a district court order revoking probation following a November 4, 2025 revocation hearing on five criminal cases consolidated for this appeal. We reverse the orders revoking probation and remand for a new revocation hearing consistent with this opinion.
I
[¶2] An initial appearance on the revocation petitions occurred on October 21, 2025. Attorney Vinje entered a limited appearance to represent Eastgate only at the initial appearance. The district court identified various probation revocation petitions filed before various judges, scheduling all of them for a later single revocation proceeding. The court asked Eastgate: “Are you going to fill out an application [for appointed counsel]?” Before Eastgate answered, the court stated, “I’m assuming that you are going to intend to retain Mr. Vinje.” Eastgate then answered, “Yes, Your Honor.”
[¶3] The district court set bond, which Eastgate later posted. On November 3, 2025—thirteen days after the initial appearance and the day before the scheduled revocation hearing—Eastgate filed a pro se request seeking a continuance in one of the five cases. Eastgate indicated he needed additional time to “retain/consult counsel” and to “gather records and witness statements,” among other reasons, and he requested 30 additional days. That same day, the court denied the continuance request without explanation, and Eastgate filed an application for indigent defense services.
[¶4] At the hearing the next day, the district court denied the application for appointment of counsel after concluding Eastgate did not meet eligibility criteria. The court proceeded with the revocation hearing and subsequent resentencing. The court discussed Eastgate’s representation:
THE COURT: Obviously, you made the bond that was set by the judge. In the bonds[, the] indication was that you were going to be
retaining your own attorney. I think in some instances, you were represented by private counsel in the underlying matters. But in this particular case, you were not—you did not retain counsel. You don’t have any with you. Have you retained counsel, Mr. Eastgate? MR. EASTGATE: No, I have not, Your Honor.
THE COURT: And you made [an] application in one of the five cases for appointment of counsel. The financial affidavit that was filed does not meet the criteria of [the] statute. Unfortunately, you do have an income. And sometimes that’s a blessing to have an income, but in this case, what it does is put you in a position where you’re not entitled to appointment of counsel. So you understand you’re here today representing yourself. Do you understand that?
MR. EASTGATE: Yes, I do, Your Honor.
The court did not ask Eastgate whether he wished to represent himself or address the dangers or disadvantages of self-representation. The court did not determine whether Eastgate’s appearance without counsel resulted from unavailability of counsel or Eastgate’s voluntary choice. The court simply proceeded. During the hearing, Eastgate did not cross-examine the probation officer and offered no testimony on the alleged violations. The court determined Eastgate willfully violated the terms of his probation and resentenced him to five years in prison on each count, served concurrently. Eastgate appeals.
II
[¶5]
[¶6] Eastgate also argues the district court abused its discretion when it denied his request for a continuance. “The decision to grant or deny a motion for a continuance rests with the district court.” Everett v. State, 2008 ND 199, ¶ 25, 757 N.W.2d 530 (quoting State v. Kunkel, 452 N.W.2d 337, 339 (N.D. 1990)). This Court reviews a district court’s decision on a motion for continuance under an abuse of discretion standard. Id. A court abuses its discretion by acting unreasonably, arbitrarily, or unconscionably. Id.
A
[¶7]
In General. The hearing must be in open court with:
- (i) the probationer present;
- (ii) a prior written notice of the alleged violation given to the probationer; and
- (iii) representation by retained or appointed counsel unless waived.
The rule plainly requires representation—unless waived by the probationer. Determining whether a probationer waived the right to counsel is a two-step inquiry: first, we determine whether the waiver was voluntary; second, we determine whether the waiver was knowing and intelligent. See State v. Lewellyn, 2025 ND 98, ¶ 9, 21 N.W.3d 108 (quoting State v. Rodriguez, 2020 ND 261, ¶ 9, 952 N.W.2d 233).
[¶8] Proceeding with a revocation hearing without representation for the probationer or without finding the probationer waived the right to counsel facially violates
[¶9] Second, waiver requires the district court to determine whether the decision to proceed without counsel was knowingly and intelligently made. Specifically, the court must ensure the probationer was “made aware of the dangers and disadvantages of self-representation so the record establishes the defendant knows what he is doing and his choice is made with eyes open.” Lewellyn, 2025 ND 98, ¶ 9 (quoting Rodriguez, 2020 ND 261, ¶ 10). As with the voluntariness prong, the court made no findings to establish Eastgate understood the consequences of proceeding without counsel. The record contains no inquiry into Eastgate’s familiarity with revocation proceedings and no advisory regarding the dangers or disadvantages of self-representation.
[¶10] The State argues Eastgate failed to preserve the right-to-counsel issue because he did not object. An objection is not the only mechanism to preserve error. See
B
[¶11] Eastgate argues that, because he was facing a substantial period of incarceration, “a brief continuance was not out of line.” We review a district court’s denial of a continuance motion for an abuse of discretion. State v. McGowen, 2020 ND 121, ¶ 19, 943 N.W.2d 817 (citation omitted). “A district court abuses its discretion by acting unreasonably, arbitrarily, or unconscionably.” Id. Eastgate moved for a continuance thirteen days after the initial appearance and the day before the scheduled revocation hearing, seeking 30 additional days to gather records and witness statements and to secure counsel. He also applied for appointment of counsel. The court denied both requests and proceeded with the hearing. The record shows the continuance request was to secure counsel and to prepare for the hearing. The record does not reveal the court’s rationale for denying the requested continuance. We conclude the district court’s order denying Eastgate’s motion for a continuance is unreasonable based on the record and the requirements of
III
[¶12] We reverse the orders revoking probation in all five of Eastgate’s consolidated cases and remand for a new revocation hearing consistent with this opinion.
[¶13] Lisa Fair McEvers, C.J.
Jerod E. Tufte
Jon J. Jensen
Douglas A. Bahr
Mark A. Friese