STATE of North Dakota, Plaintiff and Appellee, v. Patrick John FARRELL, Defendant and Appellant.
No. 990197
Supreme Court of North Dakota.
Feb. 22, 2000.
2000 ND 26
[¶ 10] Koble cited State v. One Black 1989 Cadillac, 522 N.W.2d 457 (N.D.1994), in support of her argument. In Black Cadillac, a law enforcement officer seized Herbert O‘Rourke‘s Cadillac on March 3, 1993, without a warrant under the authority of
[¶ 11] Importantly, Black Cadillac had a different factual and legal context than the present case. The car in Black Cadillac was taken without a warrant and was not held as evidence in a criminal trial; here the money was taken pursuant to a valid search warrant and was kept as evidence for use at trial. Further, the requirement of promptness (
[¶ 12] Although Kоble‘s brief arguably raises a constitutional argument separate from the statutory promptness argument, it was not well-articulated. However, even though the promptness requirement in
[¶ 13] We affirm.
[¶ 14] DALE V. SANDSTROM, WILLIAM A. NEUMANN, MARY MUEHLEN MARING and CAROL RONNING KAPSNER, JJ., concur.
Monty G. Mertz, Fargo, for defendant and appellant.
KAPSNER, Justice.
[¶ 1] Patrick J. Farrell appealed from a criminal judgment entered on a plea of guilty to forgery in violation of
I
[¶ 2] Farrell was charged with burglary and forgery, class C felonies, after he cashed a stolen check at a Fargo bank. Before the preliminary hearing, plеa negotiations occurred. The State informally agreed to move for dismissal of the burglary charge and make a nonbinding recommendation to the court for a one year and one day sentence of imprisonment if Farrell pled guilty to forgery.
[¶ 3] On June 17, 1999, the day set for his preliminary hearing, Farrell pled guilty to forgery.
THE COURT: First of all, Mr. Farrell, you understand that you have the right to plead guilty or not guilty as you wish to Count One, Forgery?
THE DEFENDANT: Yes, I do.
THE COURT: And you understand the nature of this charge? What it‘s about?
THE DEFENDANT: Yes.
THE COURT: Okay. You understand, sir, that if you plead guilty the maximum penalty that you could receive, it being a Class C Felony, is five years in prison and/or a Five Thousand Dollar fine?
THE DEFENDANT: Right.
THE COURT: Okay. And did you hear and understand the Constitutional Rights that the Court gave you on an earlier date?
THE DEFENDANT: Yes.
THE COURT: And do you understand that if you plead guilty, you‘d be waiving your right to any trial proceedings of any kind, including your right to cross-examine those witnеsses who would have appeared to testify against you at trial, if you had one?
THE DEFENDANT: Right.
THE COURT: And as (sic) anyone promised your (sic) anything or threatened you in any way or attempted to use force against you to get you to enter a guilty plea here today?
THE DEFENDANT: No, sir.
. . .
THE COURT: How say you Patrick John Farrell to Count One, Forgery, ... guilty or not guilty?
THE DEFENDANT: Guilty.
THE COURT: Your guilty plea is on the record. The Court finds it to be voluntary.
[¶ 4] After Farrell concurred with the prosecutor‘s recitation of the facts, the court found there was a sufficient factual basis and accepted the plea. The prosecutor then recommended Farrell be sentenced to imprisonment for one year and one day, defense counsel requested the same sentence, and the court dismissed the burglary charge with prejudice.
THE COURT: Anything you wish to state, sir?
THE DEFENDANT: No, sir.
THE COURT: How old are you, Mr. Farrell?
THE DEFENDANT: 35
THE COURT: You‘re not going to stop this, are you?
THE DEFENDANT: Oh, I believe I am.
THE COURT: Well, you seem to have quite a habit here. You‘ve got а pretty good record going. By that I mean pretty bad record, actually. And I don‘t know that we can get the money out of you or not. So it is the order and sentence of the Court that, Patrick John Farrell, on Count One Forgery, a Class C Felony, shall serve five years with the North Dakota Department of Correction and Rehabilitation, all but three of those years are suspended for the rest of the five year period. And you‘ll serve the suspended period on probation, supervised, ... And you will also pay attorney‘s fees in the amount of Three Hundred Dollars, because I find those are fair and reasonable based on my experience in this. ... Then the restitution shall be in the amount of Twelve Hundred Dollars. ... The Defendant‘s remanded to the custody of the Cass County Sheriff‘s Office. Thank you.
[¶ 5] Following a short discussion about whether his North Dakota sеntence would run concurrently with a sentence Farrell was presently serving in Minnesota, Farrell questioned the court:
THE DEFENDANT: Now did I plead to a year or to two years?
THE COURT: You pled to Forgery.
THE DEFENDANT: Right.
THE COURT: And you got three years to serve and then two years probation. What you did was he got five years. Three years of that will be incarceration and then two years after that will be probation, supervised.
MR. NORDENG: I think what‘s confusing to him is that the State recommended a year and I concurred with that recommendation.
THE COURT: And I went beyond the State‘s recommendation.
MR. NORDENG: The Court did not follow it.
THE COURT: Because of your record. It was a recommendation. It wasn‘t a plea bargain.
THE DEFENDANT: Well then I have a right to change my plea then also, don‘t I?
THE COURT: No. Not on a recommendation. On a plea bargain you would. Not on a recommendation.
THE DEFENDANT: So I can plead guilty and then you can change the sentence into whatever you want then.
THE COURT: No, a recommendation is like a contractоr‘s estimate. They give you an estimate for the job and, you know, it turns out to be more. This is just a recommendation. It‘s not a bargain. They say they‘ll recommend, you know, a year and a day. You and your attorney say, well, that sounds good. We hope the Judge takes it. You come in front of the Judge and the Judge doesn‘t take it. No problem. The Supreme Court of North Dakota says on a recommendation that‘s the way it can bе handled. On a plea bargain it would be different. So that‘s the way that works. So you can finish Minnesota, then come over to us. Okay. Thank you.
[¶ 6] Farrell appealed from the criminal judgment and commitment.
II
[¶ 7] Although Farrell made no formal motion to withdraw his guilty plea under
[¶ 8] After a court has accepted a guilty plea and imposed sentence, a defendant cannot withdraw the plea unless withdrawal is necessary to correct a manifest injustice. State v. Klein, 1997 ND 25, ¶ 15, 560 N.W.2d 198. A manifest injustice may result from procedural errors by the sentencing court. State v. Gunwall, 522 N.W.2d 183, 185 (N.D.1994). The determination of a manifest injustice is ordinarily within the trial court‘s discretion, and will be reversed on appeal only fоr an abuse of discretion. State v. Hobus, 535 N.W.2d 728 (N.D.1995). A trial court abuses its discretion when it acts in an arbitrary, unreasonable, or capricious manner, or misinterprets or misapplies the law. Berlin v. State, 604 N.W.2d 437, 2000 ND 13, ¶ 14.
[¶ 9] Before accepting a guilty plea, the trial court must advise the defendant of certain rights under
[¶ 10] Farrell argues the trial court failed to substantially comply with the requirements of
Insuring that the plea is voluntary. The court shall not accept a plea of guilty without first, by addressing the defendant personally [except as provided in
Rule 43(c) ] in open court, determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement. The court shall also inquire as to whether the defendant‘s willingness to plead guilty results from previous discussion between the prosecuting attorney and the defendant or the defendant‘s attorney.
Specifically, Farrell contends he should have been allowed to withdraw his guilty plea because the trial court did not ask Farrell whether his guilty plea resulted from previous discussions with the prosecuting attorney, and because he was not advised the court could reject the prosecutor‘s recommended sentence.
[¶ 11] This Court has previously dealt with guilty plea challenges based on the second sentence of
[¶ 12] In State v. Halton, 535 N.W.2d 734, 736 (N.D.1995), and State v. Thompson, 504 N.W.2d 315, 319 (N.D.1993), the defendants, who, like Farrell, had reached an agreement with the State to plead guilty if the prosecutors recommended certain sentences, argued they should be allowed to withdraw their guilty pleas because the trial court did not specifically advise them that the court was not bound by the State‘s recommended sentence. We rejected the defendants’ arguments and hеld their due process rights were satisfied because the defendants’ knowledge of the nonbinding nature of the sentence recommendation was clearly reflected from the whole record. Halton, at 737; Thompson, at 319. In Halton, at 736-37, the defendant had signed a document stating he may not withdraw his plea if the court exceeds the prosecution‘s recommendation and the defendant essentially testified the court was free to choose an appropriate sentence. In Thompson, at 317-19, the prosecutor told the court in the defendant‘s presence the plea was the result of an agreement to only recommend a certain sentence and the court was not bound by it, and the defendant‘s understanding of the nonbinding nature of the recommendation was further evidenced by the untimely nature of his request to withdraw the plea, made three mоnths after the prosecutor‘s sentence recommendation was rejected.
[¶ 13] In State v. Werre, 453 N.W.2d 826 (N.D.1990), the defendant argued he should be allowed to withdraw his guilty plea because he did not receive the specific sentence promised in a plea agreement for a recommended sentence. We rejected the defendant‘s argument because the record unequivocally showed the trial court specifically advised the defendant it might not follow the recommendation and the defendant acknowledged that he understood. Werre, at 826-27.
[¶ 14] The common thread in Beckman, Hoffarth, Halton, Thompson and Werre is the record in each case affirmatively established the defendant had been advised or otherwise knew the trial court was not required to follow the prosecutor‘s sentence recommendation. That thread is not present in this case.
[¶ 15] As we noted in Beckman and Hoffarth, the purpose for the Rule 11(c) inquiry whether the defendant‘s willingness to plead guilty results from previous discussions between the prosecuting attorney and the defendant is for the trial court to ascertain whether the plea of guilty is the result of plea negotiations. The State argues the purpose of the rule was served in this case because the court knew prior to the change of plea and sentencing hearing no “plea agreement” had been reached because a written plea agreement had not been filed with the court at least 24 hours before the hearing as required by a local court rule. See Local Rule 3, Plea Agreements, East Central Judicial District. The State‘s argument is flawed for two reasons.
[¶ 16] First, a variety of binding and nonbinding plea agreements can result from plea negotiations. See Klein, 1997 ND 25, ¶ 17, and DeCoteau v. State, 504 N.W.2d 552, 558 n. 2 (N.D.1993) (discussing different forms of рlea agreements). Not all plea agreements are reduced to writing. There obviously was an informal plea agreement or understanding in this case, even though it was unwritten. Farrell agreed to plead guilty to forgery in exchange for the State dropping the burglary charge and making a nonbinding recommendation of sentence. Under our rules, a plea agreement includes situations in which the defendant аgrees to plead guilty in exchange for dis
[¶ 17] Moreover, the State misperceives the intended beneficiary of the
[¶ 18] The existence of the informal agreement for a nonbinding sentence recommеndation here distinguishes Beckman and Hoffarth, where we said the purpose of the rule was fulfilled. In Beckman, there was no plea agreement whatsoever, so there was no need for the court to make further inquiry about plea negotiations. Likewise, in Hoffarth, there had been no agreement on sentencing and the prosecutor told Hoffarth the State would recommend the maximum penalty, so inquiring into plea negotiations would have revealed nothing. Here, plea discussions resulted in Farrell agreeing to plead guilty in exchange for dismissal of the burglary charge and the State‘s nonbinding recommendation of imprisonment for a year and a day. It should have been apparent to the trial judge that discussions between the prosecutor and defense counsel had resulted in this understanding. Those circumstances make clear some promise had been made to Farrell and the trial court could not rely on Farrell‘s negative response to the court‘s inquiry about promises. Where the trial court is so alerted, it must make additional inquiry to satisfy the concerns of the second sentence of Rule 11(c). The trial court‘s failure to recognize some promise had been made to Farrell led to the court‘s further failure to inquire into Farrell‘s understanding of the informal plea agreement and the voluntariness of his resulting guilty plea. Further inquiry would undoubtedly have fleshed out Farrell‘s understanding of his informal plea agreement and satisfied the requirements of
[¶ 19] There is no specific requirement in
[¶ 20] Although the State argues Farrell knew the recommendation was not binding on the trial court because the court informed him about the maximum five-year penalty he could receive if he pled guilty, we do not believe this information necessarily conveyed to Farrell that the judge in his case was not bound by the prosecutor‘s recommended sentence. Immediately after the trial court pronounced sentence, Farrell was confused and told the court he thought he would be able to withdraw his guilty plea if the recommended sentence was not accepted. Only then did the trial cоurt explain the difference between nonbinding sentence recommendations and binding plea agreements. Farrell‘s confusion and his immediate objection call into question whether his plea was voluntary; on this record we cannot conclude it was.
[¶ 21] Because the record shows the trial court did not substantially comply with the requirements of
III
[¶ 22] The criminal judgment is reversed and the case is remanded to the trial court to permit Farrell to withdraw his guilty plea.
[¶ 23] DALE V. SANDSTROM, WILLIAM A. NEUMANN and MARY MUEHLEN MARING, JJ., concur.
VANDE WALLE, Chief Justice, concurring specially.
[¶ 24] I concur in the result. The colloquy between the judge and Farrell immediately subsequent to sentencing convinces me that Farrell did not understand the effect of the discussion between the prosecuting attorney and Farrell or Farrell‘s attorney. As a result, I agree Farrell‘s plea was not voluntary within the meaning of
[¶ 25] I do not understand the majority to be abandoning the concept of binding and nonbinding plea agreements which has developed in our construction of