Appeal from the District Court of Eddy County, Southeast Judicial District, the Honorable James M. Bekken, Judge.
The opinion of the court was delivered by: Maring, Justice.
[¶1] Preston Vandehoven appeals from a criminal judgment entered upon a plea of guilty to operating or being in actual physical control of a motor vehicle while under the influence of alcohol. We reverse the judgment and remand to allow Vandehoven to withdraw his guilty plea, concluding the district court committed obvious error when it participated in plea negotiations in violation of N.D.R.Crim.P. 11(c)(1) and failed to fully advise Vandehoven in accordance with N.D.R.Crim.P. 11(b) before accepting the guilty plea.
[¶2] Vandehoven was charged with operating or being in actual physical control of a motor vehicle while under the influence of alcohol, a third offense within a five-year period. At an April 23, 2008, pretrial conference, the district court was advised that the parties had not reached a plea agreement. The court, counsel, and Vandehoven then discussed at length a potential plea agreement to resolve the matter. Vandehoven's counsel suggested Vandehoven would be willing to plead guilty if the mandatory minimum jail sentence were imposed, but with a delayed start date of October 1, 2008, so he could continue his seasonal employment on a grain farm until the fall harvest was concluded. On April 23, 2008, Vandehoven ultimately entered a plea of guilty with the understanding that he would be sentenced to sixty days imprisonment, but that he would not have to begin serving the jail sentence until October 1, 2008. The court accepted the guilty plea and stated, "we'll finalize sentencing on October 1st and impose sixty days jail, to start at noon October 1st." The court also imposed a $1,000 fine, ordered an addiction evaluation, and indicated that Vandehoven would be placed on probation for two years.
[¶3] No judgment of conviction was entered at that time. Shortly after the April 23, 2008, hearing, Vandehoven's employer contacted the court and asked if the beginning of Vandehoven's jail term could be delayed until November 1, to ensure he would be available to work through the completion of the fall grain harvest. With the consent of the State, the start date of Vandehoven's jail term was moved to November 1, 2008.
[¶4] Vandehoven hired new counsel who, on October 23, 2008, filed a motion for a continuance of sentencing or to withdraw the guilty plea. The court issued a letter order informing counsel that Vandehoven had already been sentenced, so there was no sentencing hearing to continue. The court did, however, schedule a hearing for October 29, 2008, on Vandehoven's motion to withdraw his guilty plea. Following that hearing, the court denied Vandehoven's motion to withdraw his guilty plea. Judgment of conviction was entered on November 17, 2008, and Vandehoven appealed.
[¶5] Vandehoven contends he did not enter his guilty plea knowingly and voluntarily because the district court improperly participated in plea negotiations in violation of N.D.R.Crim.P. 11(c)(1) and did not fully advise him of the consequences of his plea in accordance with N.D.R.Crim.P. 11(b).
[¶6] Our resolution of these issues is significantly complicated by the complex and unusual procedural posture of this case.
[¶7] Vandehoven did not raise these issues in his October 23, 2008, motion to withdraw his guilty plea. On appeal, Vandehoven contends his new attorney did not become involved in the case until shortly before the motion to withdraw the guilty plea was made, and no transcript of the April 23, 2008, pretrial conference was available at that time. Thus, he contends, his counsel did not discover the district court's participation in plea negotiations and failure to properly advise Vandehoven about the consequences of his plea until after the judgment was entered and the appeal was being prepared.
[¶8] When a party in a criminal case fails to raise an issue in the district court, our review on appeal is limited to determining whether there has been obvious error. N.D.R.Crim.P. 52(b); State v. Henes, 2009 ND 42, ¶ 7, 763 N.W.2d 502; State v. Keener, 2008 ND 156, ¶ 16, 755 N.W.2d 462. To establish obvious error, a defendant must demonstrate (1) error, (2) that is plain, and (3) that affects substantial rights. State v. Myers, 2009 ND 141, ¶ 10; Henes, at ¶ 8. An alleged error must be a clear deviation from an applicable legal rule under current law to constitute obvious error. State v. Blurton, 2009 ND 144, ¶ 8; Keener, at ¶ 16.
[¶9] Further complicating our review of this case is the fact that the parties dispute whether Vandehoven had been sentenced before he moved to withdraw his guilty plea, which directly affects the standard to be applied when determining whether to allow withdrawal of the plea. We summarized the differing standards in Blurton, 2009 ND 144, ¶ 7 (citations omitted):
"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. 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. 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.
[¶10] Vandehoven contends that he was not formally sentenced at the April 23, 2008, hearing and the district court should have considered his motion to withdraw his plea under the "fair and just reason" standard. The State contends Vandehoven had been sentenced at the hearing, before he moved to withdraw his plea, and therefore the plea could only be withdrawn to correct a manifest injustice. The district court ruled that Vandehoven had been sentenced at the April 23, 2008, hearing and applied the manifest injustice standard when it denied Vandehoven's motion to withdraw his plea.
[¶11] The district court had accepted Vandehoven's guilty plea and, as between the standards for withdrawing an accepted plea, we find it unnecessary to determine which standard applies because we ultimately conclude that the district court failed to comply with N.D.R.Crim.P. 11(b) and (c) in accepting the plea and that allowing withdrawal of the plea is necessary to correct a manifest injustice. We therefore will assume, without deciding, that the more stringent manifest injustice standard applies in this case.
[¶12] Vandehoven contends the district court improperly participated in plea negotiations.
[¶13] The district court was advised at the beginning of the April 2003 pretrial conference that the parties had not reached a plea agreement. Vandehoven's counsel suggested that Vandehoven might agree to plead guilty if he could delay commencement of his jail sentence until October 1, 2008, and in the interim undergo an addiction evaluation to see if he was a candidate "for some type of in-hospital treatment." See N.D.C.C. § 39-08-01(4)(g) (if an addiction evaluation indicates a need for treatment, the court may order placement for treatment with time spent in treatment credited against any sentence of imprisonment). What followed were lengthy negotiations between the court, Vandehoven, and defense counsel, with little input or participation from the State's Attorney. The court essentially immersed itself in the plea agreement negotiations and "brokered" the deal. In discussing the proposed terms of the agreement, the court used language such as "I don't necessarily have a problem having sentencing later if the state doesn't," "the sentence be imposed that we agree on today," and "[y]ou've got to stay clean if I'm going to do this for you, to let you work." Ultimately, Vandehoven agreed to plead guilty.
[¶14] Rule 11(c)(1), N.D.R.Crim.P., explicitly prohibits the district court from participating in plea negotiations:
The prosecuting attorney and the defendant's attorney, or the defendant when acting pro se, may discuss and reach a plea agreement. The court must ...