Appeal from the District Court of Morton County, South Central Judicial District, the Honorable Thomas J. Schneider, Judge.
The opinion of the court was delivered by: VandeWalle, Chief Justice.
[¶1] Craig Allen Irwin appealed from the district court order denying his motion to withdraw his guilty plea to a fifth charge of driving under the influence of intoxicating liquor ("DUI") in seven years. We affirm because withdrawal of Irwin's guilty plea was not necessary to correct a manifest injustice.
[¶2] On June 13, 2007, Irwin was arrested for DUI in Burleigh County. The Burleigh County State's Attorney's Office charged him the following day with his fourth DUI in seven years. Two weeks after his Burleigh County arrest, Irwin was arrested again for DUI in Morton County. The Morton County State's Attorney's Office charged him with a fifth DUI in seven years, a class C felony.
[¶3] Irwin pled guilty to the Burleigh County charge on December 7, 2007, and was sentenced to one year in the custody of the Department of Corrections with three months suspended for two years, a $1000 fine, and fees. He pled guilty to the Morton County charge on January 23, 2008. The district court sentenced Irwin to five years in the custody of the Department of Corrections, to be served concurrently with his Burleigh County sentence.
[¶4] Two years later, Irwin moved to withdraw his guilty plea under N.D.R.Crim.P. 32(d).*fn1 The district court concluded:
Irwin did... plead guilty to and was convicted of the fourth DUI offense on December 7, 2007. The Court relied on this information when it concluded that a fifth or subsequent DUI offense had occurred in a seven-year period. The factual basis upon which the Court accepted Irwin's guilty plea was, and is, sound. Irwin has not suffered manifest injustice.
[¶5] The district court also rejected Irwin's argument that the DUI statute, N.D.C.C. § 39-08-01, was an unconstitutional bill of attainder. The district court explained Irwin was not denied a jury trial, as he pled guilty to both the Burleigh County and Morton County charges.
[¶6] We note this is not a direct appeal from Irwin's conviction for his fifth DUI in seven years. It is an appeal from the district court's judgment denying his motion to withdraw his guilty plea. Under N.D.R.Crim.P. 32(d)(2), as it read at the time of Irwin's motion, "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." State v. Blurton, 2009 ND 144, ¶ 7, 770 N.W.2d 231 (citing State v. Lium, 2008 ND 33, ¶ 17, 744 N.W.2d 775). The determination of a manifest injustice is within the district court's discretion and this Court will not overturn it unless the district court abused its discretion. Id. (citing Lium, at ¶ 20).
[¶7] Irwin argues he has suffered a manifest injustice because on the date of his DUI in Morton County, he had only been convicted of three DUIs in the past seven years. His fourth DUI charge was still pending. North Dakota's DUI statute, N.D.C.C. § 39-08-01, states, in pertinent part:
A person violating this section or equivalent ordinance is guilty of a class B misdemeanor for the first or second offense in a five-year period, of a class A misdemeanor for a third offense in a five-year period, of a class A misdemeanor for the fourth offense in a seven-year period, and of a class C felony for a fifth or subsequent offense in a seven-year period. The minimum penalty for violating this section is as provided in subsection 4. The court shall take judicial notice of the fact that an offense would ...