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State v. Blurton

July 21, 2009

STATE OF NORTH DAKOTA, PLAINTIFF AND APPELLEE
v.
JOE R. BLURTON, DEFENDANT AND APPELLANT



Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Steven L. Marquart, Judge.

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

AFFIRMED.

Opinion of the Court by Kapsner, Justice.

[¶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 N.D.C.C. § 12.1-20-03(1)(a) and (3)(a), aggravated assault in violation of N.D.C.C. § 12.1-17-02(1), terrorizing in violation of N.D.C.C. § 12.1-17-04(1), and indecent exposure in violation of N.D.C.C. § 12.1-20-12.1(1)(a). Blurton was accused of sexually assaulting a woman who was passed out in a vehicle in a motel parking lot. Blurton waived his right to a preliminary hearing and entered a not-guilty plea.

[¶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 N.D.C.C. § 12.1-20-03(1)(c) and the other charges would be dismissed. The court confirmed that Blurton had an opportunity to talk to his attorney about the plea. The court said it would allow the amended information and informed Blurton that he was now charged with gross sexual imposition in violation of N.D.C.C. § 12.1-20-03(1)(c), a class A felony, and that the other charges were dismissed. Blurton said he understood he was giving up his constitutional rights and he had not been coerced or threatened into entering a guilty plea. The court asked Blurton how he pled, and Blurton said he pled guilty. The State gave the factual basis for the charge. The court asked Blurton if that was what happened, and he said, "Yes, sir, I'll agree with that." The court accepted the plea, finding there was a sufficient factual basis for the plea and that it was freely and voluntarily made. An amended information was filed, dismissing the aggravated assault, terrorizing, and indecent exposure charges, and amending the gross sexual imposition charge to a violation of N.D.C.C. § 12.1-20-03(1)(c) and (3)(b).

[¶4] On June 5, 2008, Blurton's attorney moved to withdraw as counsel at Blurton's request. Blurton sent the court a letter stating he wished to "rescind" his guilty plea and requesting an attorney. During a June 12, 2008, hearing, the court granted the attorney's motion to withdraw as Blurton's counsel. The court also decided to delay making a decision on Blurton's motion to withdraw his guilty plea until Blurton had an opportunity to consult with a new attorney and decide whether he still wanted to withdraw the plea. A new attorney was appointed to represent Blurton.

[¶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 N.D.R.Crim.P. 11, and his plea was uninformed and involuntary. Blurton also contends the factual basis for the plea was not sufficient and is not supported by evidence in the record.

[¶7] "Under N.D.R.Crim.P. 32(d), the standard for a district court's consideration of a defendant's request to withdraw a guilty plea differs depending on when the motion to withdraw is made." State v. Lium, 2008 ND 33, ¶ 17, 744 N.W.2d 775. Before the court accepts the guilty plea, the defendant may withdraw the plea at any time. Id. After a plea has been accepted but before sentencing, the defendant may withdraw a guilty plea if it is necessary to correct a manifest injustice or, at the court's discretion, for any "fair and just" reason unless the prosecution has been prejudiced by relying on the plea. Id. After a court accepts a guilty plea and imposes a sentence, the defendant cannot withdraw the plea unless the motion is timely and withdrawal is necessary to correct a manifest injustice. Id. The determination of a manifest injustice or the occurrence of a "fair and just" reason is within the court's discretion and will not be reversed on appeal unless the court abuses its discretion. Id. at ¶ 20.

[¶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. N.D.R.Crim.P. 52(b); State v. Foreid, 2009 ND 41, ¶ 13, 763 N.W.2d 475. We exercise our power to notice obvious error only in exceptional situations where a defendant has suffered a serious injustice. State v. Johnson, 2009 ND 76, ¶ 11, 764 N.W.2d 696. "To establish obvious error, a defendant must show (1) error, (2) that is plain, and (3) that affects substantial rights." Lium, 2008 ND 33, ¶ 9, 744 N.W.2d 775. The error must be a clear deviation from an applicable legal rule under current law to constitute an obvious error. Id.

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 N.D.R.Crim.P. 11. He claims he was not informed of the maximum penalty and he was not informed of the nature of the charge he pled guilty to because there were errors in the amended information.

[¶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. Rule 11, N.D.R.Crim.P., provides a framework for determining whether a plea is knowingly and voluntarily entered into. Id. at ¶ 15. When accepting a guilty plea, ...


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