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Edward Waslaski, Jr v. State of North Dakota

April 4, 2013

EDWARD WASLASKI, JR.,
PETITIONER AND APPELLANT
v.
STATE OF NORTH DAKOTA,
RESPONDENT AND APPELLEE



Appeal from the District Court of Pembina County, Northeast Judicial District, the Honorable M. Richard Geiger, Judge.

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

N.D. Supreme CourtWaslaski v. State,

2013 ND 56

This opinion is subject to petition for rehearing. [Go to Documents]

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AFFIRMED.

Opinion of the Court by Sandstrom, Justice.

[¶1] Edward Waslaski appeals from a district court order denying his petition for post-conviction relief on charges he pled guilty to 24 years ago. We affirm.

I

[¶2] In October 1988, Waslaski pled guilty to 39 counts of burglary under a plea agreement. A district court sentenced him to twelve years' imprisonment with three years suspended and 71 days credit for time served. Waslaski served his time. He was subsequently convicted of federal crimes. In October 2011, Waslaski applied for post-conviction relief, arguing he would not have taken the 1988 plea agreement had he known the crimes could be used as sentencing factors for future crimes. His attorney moved to dismiss the charges or recreate a transcript, arguing that Waslaski's guilty plea was not entered knowingly, intelligently, or voluntarily and that because the trial court transcripts had been destroyed, Waslaski's recitation of the facts should be used. At oral argument Waslaski's lawyer acknowledged there had never been a transcript. The court reporter's handwritten notes were destroyed ten years after the case was completed. North Dakota Supreme Court Administrative Rule 19 requires that court records be retained in accordance with the records retention schedule, 21 years in felony cases. The stenographer who took the handwritten notes is dead, as is the district judge who sentenced Waslaski in those cases.

[¶3] The district court denied Waslaski's motion to dismiss or "recreate" a transcript and asked the parties to brief the issue of whether there was any duty by the Court at the time the petitioner pleaded guilty in October of 1988 to advise him of the potential for enhanced sentencing and penalties in future convictions. The State then briefed the issue and sought summary disposition.

[¶4] The district court denied Waslaski's application for post-conviction relief, concluding there was never a duty of the court to inform Waslaski of potential future penalty enhancements if he committed other crimes and he was not entitled to relief. The district court also ruled Waslaski was not entitled in the absence of a stenographer's notes to speculate 24 years later that those notes might reveal an error warranting post-conviction relief.

[¶5] On appeal, Waslaski argues he was prejudiced because his counsel was unable to review a transcript or file and he should be able to use his recitation of fact in the absence of a transcript. He also argues his original guilty plea was not entered knowingly, intelligently, or voluntarily and he received ineffective assistance of counsel.

[¶6] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 29-32.1-03. Waslaski's appeal is timely under N.D.R.App.P. 4(d). This Court has jurisdiction under N.D. Const. art. ...


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