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State v. Lium

December 16, 2008

STATE OF NORTH DAKOTA, PLAINTIFF AND APPELLEE
v.
TRAVIS CHARLES LIUM, DEFENDANT AND APPELLANT



Appeal from the District Court of Cass County, East Central Judicial District, the Honorable John Charles Irby, Judge.

The opinion of the court was delivered by: Maring, Justice.

AFFIRMED.

Opinion of the Court by Maring, Justice.

[¶1] Travis Charles Lium appeals a district court order on remand denying his motion to withdraw his guilty plea. Holding the district court did not abuse its discretion in concluding Lium failed to establish a fair and just reason existed to allow him to withdraw his guilty plea, we affirm.

I.

[¶2] We briefly reiterate the facts and procedure set forth in State v. Lium, 2008 ND 33, 744 N.W.2d 775 ("Lium I"), leading to this appeal. In June 2006, the State charged Lium with attempted murder, a class A felony, alleging he stabbed his former girlfriend's boyfriend with a knife and struck him with a vehicle. On February 1, 2007, Lium entered into a written plea agreement, whereby he would plead guilty under North Carolina v. Alford, 400 U.S. 25 (1970), to aggravated assault and reckless endangerment, both class C felonies. The plea agreement provided the State would ask the district court to impose incarceration for five years for each charge, to be served consecutively. The agreement also stated that Lium could argue for a lesser sentence, but for no less incarceration than seven and one-half years.

[¶3] At the change-of-plea hearing, the district court informed Lium that he would be waiving his rights by pleading guilty, and it reviewed the plea agreement with him. Lium confirmed that he understood the plea agreement, the elements of the charges against him, and had reviewed the plea agreement with his attorney. Lium acknowledged no threats had been made to induce him to enter the plea. The district court accepted Lium's guilty pleas. At the end of the hearing, the court ordered a presentence investigation.

[¶4] In a February 23, 2007, letter to the district court, Lium wrote "to clear up any ambiguity . . . as to what [he felt was] fair in regards to [his] sentencing." Lium stated, "[the prosecutor was] not willing to be reasonable in regards to their sentencing recommendations or charges." Lium informed the court he sought a "minimal time of incarceration." Lium also complained that "the attorneys handling this case have been atrocious," he "had no intentions of killing or seriously injuring anyone," and he "was not confident in [his] attorneys' preparation for trial, since they never came to visit [him] on the specifics of [his] case." In the letter, Lium told the court he wanted to rescind his pleas if the court felt obligated to impose the sentences provided in the plea agreement. He also stated he wanted a new attorney or may want to represent himself. Lium closed the letter by stating he "would like an amicable end to this case, but sitting in prison for seven and a half years is not [an] amicable conclusion. I appreciate your fairness. You are my only chance for a just punishment in this case without the costs of a trial."

[¶5] Before sentencing, Lium retained different counsel and moved to withdraw his guilty pleas. In an affidavit in support of his motion, Lium stated "[his] original attorney appeared to want [to] quit [his] representation of [Lium] if [Lium] did not accept the terms of the plea agreement"; "[he] did not understand that [he] would have an opportunity to seek replacement counsel if [his] original counsel had in fact quit"; "approximately one (1) hour before [his] Change of Plea hearing[,] [Lium] saw the plea agreement for the first time"; and "[b]ut for the threats of [his] attorney to cease his representation of [Lium], [he] would never have agreed to enter into a guilty plea in open court." Lium also stated he "[did] not feel [he was] guilty of the charges [he was] accused of and only agreed to the plea agreement out of fear of having to represent [himself] based upon [his] previous attorney's threats."

[¶6] The district court denied Lium's motion, concluding Lium's pleas were voluntary and intelligent and withdrawal of the guilty plea was not necessary to correct a manifest injustice. Lium appealed the denial of his motion to withdraw his guilty pleas.

[¶7] During oral argument to this Court in Lium I, the State conceded it had suffered no prejudice by relying on the plea. This Court reversed the denial of Lium's motion to withdraw and remanded the case for the district court to determine whether there was a fair and just reason to allow Lium to withdraw his pleas.

[¶8] On remand, the district court did not hold further proceedings. Based on a review of the file, transcript, counsels' arguments and motions, and Lium's supporting affidavit, the district court denied Lium's motion to withdraw his guilty plea. The district court concluded Lium failed to establish a fair and just reason to allow him to withdraw. The court found Lium's affidavit did not "state any words or actions that amounted to a threat," that Lium's attorney's advice was "well given," and Lium's demeanor at the change-of-plea hearing did not indicate "that his plea was anything other than voluntary." The court also found:

The Defendant fully understood the plea agreement and freely and ...


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