Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Sonja Clapp, Judge.
The opinion of the court was delivered by: Maring, Justice.
This opinion is subject to petition for rehearing. [Go to Documents]
[Download as WordPerfect] Concurrences [ 1 ] [ 2 ] filed.
Opinion of the Court by Maring, Justice.
[¶1] Veronica Trevino appeals from a criminal judgment entered after she conditionally pled guilty to reckless driving. Because we conclude the trial court erred in holding that reckless driving is a strict liability offense with no culpability requirement, we reverse the judgment and remand for further proceedings to allow Trevino to withdraw her guilty plea.
[¶2] In July 2009, the State charged Trevino with reckless driving under N.D.C.C. § 39-08-03(1) alleging she drove a vehicle "recklessly in disregard of the rights or safety of others." The State alleged that in June 2009, Trevino drove to the Emerado police chief residence, where she confronted the police chief, and she left the residence at a high rate of speed, crashing into a residence across the road.
[¶3] A trial was scheduled for October 2010. The State filed a motion in limine, seeking to prevent Trevino from introducing into evidence certain expert testimony regarding her mental health at the time of the alleged criminal violation. On October 18, 2010, Trevino filed a notice of expert witness, and the State objected to the late disclosure. On October 19, 2010, the State moved to amend the information, charging Trevino with reckless driving under either N.D.C.C. § 39-08-03(1) or (2). The State also argued reckless driving is a strict liability offense without a culpability requirement. Trevino filed a memorandum regarding the culpability for reckless driving, arguing that more than ordinary negligence was required to prove reckless driving. Trevino subsequently filed a request to withdraw her notice of expert witness, a response to the State's motion in limine, and a reply to the State's brief addressing the culpability for reckless driving. Trevino also submitted proposed jury instructions, including instructions defining "recklessly" and addressing the defense of lack of criminal responsibility.
[¶4] In November 2010, the trial court held that reckless driving is a strict liability offense and that Trevino would therefore be precluded from raising the defense of lack of criminal responsibility under N.D.C.C. § 12.1-04.1-01. Trevino entered a conditional guilty plea to the charge of reckless driving.
[¶5] Trevino argues the trial court erred in concluding that reckless driving is a strict liability offense and that no culpability requirement was necessary to convict her. Trevino conditionally pled guilty to reckless driving and appealed from the criminal judgment. The criminal judgment, however, does not reflect that Trevino's guilty plea was conditional, nor is there a separate writing filed in the case specifying the issues reserved for appeal. See N.D.R.Crim.P. 11(a)(2) ("defendant may enter a conditional plea of guilty, reserving in writing the right to have an appellate court review an adverse determination of a specified pretrial motion"); State v. Proell, 2007 ND 17, ¶ 15, 726 N.W.2d 591 (considering conditional plea valid where record contained defendant's offer to conditionally plead guilty filed thirteen days after the criminal judgment was entered). We initially address whether Trevino has preserved the culpability issue for review.
[¶6] To be valid, a guilty plea must be entered knowingly, intelligently, and voluntarily. State v. Clark, 2010 ND 106, ¶ 8, 783 N.W.2d 274; State v. Blurton, 2009 ND 144, ¶ 10, 770 N.W.2d 231. Rule 11, N.D.R.Crim.P., governs pleas and provides a procedural framework for entering pleas. Generally, a defendant who voluntarily pleads guilty "waives the right to challenge non-jurisdictional defects and may only attack the voluntary and intelligent character of the plea." Blurton, 2009 ND 144, ¶ 18, 770 N.W.2d 231; see also McMorrow v. State, 2003 ND 134, ¶ 5, 667 N.W.2d 577.
[¶7] Rule 11(a)(2), N.D.R.Crim.P., however, permits a defendant to enter a conditional guilty plea, reserving in writing the right to appeal an adverse determination of specified pretrial motions, including motions in limine. See State v. Bjerklie, 2006 ND 173, ¶ 4, 719 N.W.2d 359; State v. Winkler, 552 N.W.2d 347, 356 (N.D. 1996). Rule 11(a)(2), N.D.R.Crim.P., provides:
With the consent of the court and the prosecuting attorney, a defendant may enter a conditional plea of guilty, reserving in writing the right to have an appellate court review an adverse determination of a specified pretrial motion. A defendant who prevails on appeal must be allowed to withdraw the plea. (Emphasis added.)
[¶8] Here, there is no separate writing reserving the defendant's right to appeal an adverse determination, but there is a transcript of the change of plea hearing. We have said that N.D.R.Crim.P. 11 does not require "ritualistic compliance"; however, a court must "substantially comply with the rule's procedural requirements" to ensure a defendant is entering a voluntary and intelligent guilty plea. Blurton, 2009 ND 144, ¶ 10, 770 N.W.2d 231; Abdi v. State, 2000 ND 64, ¶ 12, 608 N.W.2d 292; State v. Hoffarth, 456 N.W.2d 111, 113-14 (N.D. 1990); State v. Storbakken, 246 N.W.2d 78, 83 n.5 (N.D. 1976); see also N.D.R.Crim.P. 52(a) ("Any error, defect, irregularity or variance that does not affect substantial rights must be disregarded.").
[¶9] When our rule is derived from a federal rule, we may look to the federal courts' interpretation or construction of identical or similar language as persuasive authority for interpreting our rule. State v. Runck, 534 N.W.2d 829, 831 (N.D. 1995); State v. Jenkins, 326 N.W.2d 67, 69-70 n.4 (N.D. 1982); State v. Rueb, 249 N.W.2d 506, 510 (N.D. 1976); see also N.D.R.Crim.P. 2, explanatory note. If persuasive, the advisory committee's notes also may provide guidance. Jenkins, at 70 n.4; see also Weigel v. Weigel, 1999 ND 55, ¶ 7, 591 N.W.2d 123. We consider whether the transcript of Trevino's plea hearing is sufficient to preserve her issue for review.
[¶10] North Dakota adopted its version of Rule 11(a)(2) in 1986, and it is similar to the federal rule. See N.D.R.Crim.P. 11(a)(2), explanatory note. In 1983, Rule 11(a)(2), F.R.Crim.P. was promulgated, in part, to "produce much needed uniformity in the federal system" on the permissibility of conditional pleas. See F.R.Crim.P. 11(a)(2), advisory committee notes; United States v. Pierre, 120 F.3d 1153, 1155 (11th Cir. 1997). "The rule clarified that conditional pleas are recognized and proper in the federal system." Pierre, at 1155-56. One authority has described the purposes of the federal rule's writing requirement, stating:
The writing requirement of Fed. R. Crim. P. 11(a)(2) insures that the plea is entered with the considered acquiescence of the government, prevents post-plea claims by the defendant that the plea should be deemed conditional merely because it occurred after denial of certain pretrial motions, and enables the court to verify that the issues reserved for appeal are material to the disposition of the case. Without a special writing setting forth the issues to be reserved, where the parties' statements regarding the plea are ambiguous, and in the face of the government's denial of any assent to the plea being conditional, a court may find insufficient government assention to a conditional plea and, therefore, invalidate that plea. Arraignment and Pleas, 9 Fed. Proc., L.Ed., § 22:919 (2005) (citing United States v. Yasak, 884 F.2d 996 (7th Cir. 1989)).
[¶11] In United States v. Garcia, 339 F.3d 116, 118 (2d Cir. 2003), the court of appeals acknowledged that circuit courts have split regarding whether the formal writing requirements of F.R.Crim.P. 11(a)(2) may be excused. See Garcia, at 118 (comparing United States v. Herrera, 265 F.3d 349, 352 (6th Cir. 2001) ("The rule states plainly that a conditional guilty plea must be in a writing . . . . There is no such writing in this case. Therefore, [the defendant] has waived his right to appeal the district court's order denying the pre-plea suppression motion."), with United States v. Bell, 966 F.2d 914, 916- 17 (5th Cir. 1992) (excusing Rule 11(a)(2)'s writing requirement under Rule 11(h), on grounds that failure to comply did not affect substantial rights), and Yasak, 884 F.2d at 1000 (excusing lack of writing on grounds the plea transcript text, showing consent of the government and trial court, functioned as ...