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State v. Clark

June 10, 2010

STATE OF NORTH DAKOTA, PLAINTIFF AND APPELLEE
v.
BRANDEN THURMAN CLARK, DEFENDANT AND APPELLANT



Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Lawrence E. Jahnke, Judge.

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

AFFIRMED.

Opinion

[¶1] Branden Clark appeals two criminal judgments convicting him of theft of property and issuing a check without an account. He also appeals an order revoking his probation and resentencing him to incarceration in four cases. We affirm.

I.

[¶2] Clark was sentenced in 2005 on four criminal charges-theft by deception, issuing a check without sufficient funds, theft of property, and theft of services-and, after incarceration, subject to supervised probation on each. He subsequently faced new charges of class C felony theft of property and class A misdemeanor issuing a check without an account. The State petitioned to revoke his probation in the four original cases, alleging he had violated the conditions of his probation.

[¶3] Clark appeared before the district court and admitted he violated the conditions of his probation in each of the four cases. The district court revoked his probation and resentenced him to incarceration.

[¶4] Clark also informed the district court he wanted to "plead guilty" to the new charges and signed criminal judgments on each, stating he had appeared before the district court and entered a plea of guilty. The district court sentenced Clark to four years' incarceration in the felony theft case, to run consecutively to the revocation of probation sentences, and thirty days' incarceration in the misdemeanor case of issuing a check without an account, to run concurrently.

[¶5] Clark appeals, arguing he was sentenced without first entering a guilty plea to the charges of theft of property and issuing a check without an account.

[¶6] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal is timely under N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 29-28-06.

II.

[¶7] Clark's sole argument on appeal is that he did not enter a guilty plea to the two criminal charges, and thus he was denied the constitutional right to due process.

[¶8] A guilty plea must be entered knowingly, intelligently, and voluntarily. State v. Blurton, 2009 ND 144, ¶ 10, 770 N.W.2d 231. Rule 11 of the North Dakota Rules of Criminal Procedure governs pleas and provides a framework for determining whether a plea is knowingly and voluntarily entered. See N.D.R.Crim.P. 11; see also Blurton, at ¶ 10. Rule 11 provides that a court may not accept a plea of guilty without first addressing the defendant in open court and advising the defendant of the rights waived by entering a guilty plea, the nature of each charge to which the defendant is pleading, any maximum possible penalty, any mandatory minimum penalty, and the court's authority to order restitution. N.D.R.Crim.P. 11(b)(1). "The purpose of the procedure outlined in Rule 11(b) is to ensure that the defendant is fully aware of the consequences of a guilty plea before he enters his plea." Froistad v. State, 2002 ND 52, ¶ 25, 641 N.W.2d 86 (quoting State v. Boushee, 459 N.W.2d 552, 555 (N.D. 1990)). The rule does not require ritualistic compliance, but the district court must substantially comply with the rule to ensure the defendant enters a voluntary and intelligent guilty plea. Blurton, at ¶ 10.

[ΒΆ9] Clark contends he did not enter a guilty plea before the district court. On each charge-theft of property and issuing a check without an account-Clark signed criminal judgments stating he "appeared before the Court and . . . entered a plea of guilty." Additionally, the record reflects that the district court addressed Clark in open court and advised him of the rights waived by entering a guilty plea and that Clark stated his intention to plead guilty several times. In State v. Storbakken, 246 N.W.2d 78 (N.D. 1976), a guilty plea was challenged "solely because the trial judge did not restate Storbakken's constitutional rights eo nomine [by name] at the time he accepted the plea, and because the trial judge did not follow the exact format of questioning spelled out in Rule 11 of the North Dakota Rules of Criminal Procedure." State v. Storbakken, 246 N.W.2d 78, 82 (N.D. 1976). This Court ...


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