Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Branden T. Clark v. Leann K. Bertsch

September 12, 2011

BRANDEN T. CLARK, PETITIONER,
v.
LEANN K. BERTSCH,
RESPONDENT.



The opinion of the court was delivered by: Ralph R. Erickson, Chief Judge United States District Court

ORDER REVERSING REPORT AND RECOMMENDATION (DOC. #14), ADOPTING REPORT AND RECOMMENDATION (DOC. #22), AND DENYING ALL OTHER MOTIONS AS MOOT

I.INTRODUCTION

The Court has received a Report and Recommendation from the Honorable Karen K. Klein, United States Magistrate Judge, pursuant to 28 U.S.C. § 636, recommending that Respondent Leann K. Bertsch's motion to dismiss be granted and Petitioner Branden Clark's petition for habeas relief be dismissed with prejudice (Doc. #14). After the Report was filed, Clark filed a motion for an evidentiary hearing (Doc. #17), which the Magistrate Judge has recommended be denied (Doc. #22). Clark has also filed motions to appoint counsel (Docs. #23 & 25), objections to the Magistrate Judge's Reports and Recommendations (Docs. #26, 28, & 30), a motion for leave to conduct discovery (Doc. #32), and a motion for a hearing (Doc. #33). The Court, having carefully reviewed the record, the pending motions, and the Magistrate Judge's Reports and Recommendations, now issues this memorandum opinion and order.

II.SUMMARY OF DECISION

The Due Process Clause of the Fourteenth Amendment prohibits a state court from imprisoning a person who has not entered a guilty plea or been convicted following a trial. A guilty plea that has been implied or inferred from the record does not pass constitutional muster.

Likewise, a defendant should not be estopped from asserting a constitutional violation because he signed a criminal judgment that said he entered a guilty plea when the record unambiguously established that no such plea was taken. Accordingly, Branden Clark's Petition for Writ of Habeas Corpus is GRANTED and his 2009 state court convictions for theft of property and issuing a check without an account are hereby VACATED.

III.ISSUES

Although there are a number of tangential issues raised in this action, including whether there was an improper disclosure of attorney-client privileged material, whether this Court ought to consider that communication, and whether discovery ought to be allowed, the determinative issue to be resolved is simple. Clark contends the state court denied his constitutional right to due process when it sentenced him without a plea of guilty and without a trial. Resolution of this issue renders all other motions filed by Clark moot.

IV.FACTUAL AND PROCEDURAL BACKGROUND

The facts are not in dispute. Clark was sentenced in 2005 for committing four offenses: theft by deception, issuing a check without sufficient funds, theft of property, and theft of services. State v. Clark, 783 N.W.2d 274, 275 (N.D. 2010). He was placed on supervised probation following incarceration. Id. While on probation, Clark was charged with two new offenses: felony theft of property and issuing a check without an account. Id. In addition to charging Clark with the new offenses, the State of North Dakota petitioned to revoke his probation in the four original cases. Id.

Clark appeared before the district court and admitted he violated the terms of his probation. Id. The district court revoked Clark's probation and resentenced him to concurrent five-year terms of imprisonment on each offense. Id. At this same time, the district court sentenced Clark to a consecutive four years term of imprisonment on the new charge of felony theft and thirty days on the new charge of issuing a check without an account, which was ordered to run consecutive to the revocation sentences and concurrent to the sentence for theft.

The state court record reflects that Clark expressed, on more than one occasion, a desire to plead guilty to the new charges. Indeed, Clark signed criminal judgments on the charges, stating he had appeared before the district court and entered pleas of guilty. While the record unequivocally establishes that Clark intended to plead guilty, the district court never took a guilty plea from Clark. At one point, the district court told Clark that the case was becoming complicated and it would not accept a guilty plea from Clark without Clark first speaking with an attorney.

Before sentencing, the prosecutor was aware that the court did not take a plea on the pending charges (Doc. #12, p. 5 of 6).*fn1 It was her belief that the court's intent was to dispose of both the revocation petition and the new charges in a single hearing. Id. It is indisputable that the court never accepted a guilty plea from Clark on the new charges.

Clark appealed from the two criminal judgments convicting him of theft of property and issuing a check without an account.*fn2 The North Dakota Supreme Court recognized that the district court failed to comply with N.D. R. Crim. P. 11, but affirmed the convictions on the ground that the record, as a whole, clearly reflected Clark's knowledge that he was waiving his rights by pleading guilty and voluntarily ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.