Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Steven E. McCullough, Judge.
Tracy J. Peters, Assistant State's Attorney, Fargo, N.D., for plaintiff and appellee.
Benjamin C. Pulkrabek, Mandan, N.D., for defendant and appellant.
Carol Ronning Kapsner, Daniel J. Crothers, Jay Schmitz, D.J. I concur in the result. Dale V. Sandstrom. Opinion of the Court by Kapsner, Justice.
[¶1] Rapheal Jamell Murphy appeals from a criminal judgment entered after he pleaded guilty to one count of delivering cocaine within 1,000 feet of a school. We affirm in part, concluding Murphy's guilty plea was entered in substantial compliance with N.D.R.Crim.P. 11. However, because the district court misinterpreted N.D.C.C. § 19-03.1-23.2 in determining the scope of its discretion in sentencing Murphy, we vacate the sentence and remand for resentencing.
[¶2] In March 2013, the State charged Murphy with delivery of cocaine within 1,000 feet of a school, a class AA felony, and tampering with physical evidence, a class C felony. The information also stated Murphy had prior drug convictions in Minnesota state court. The State later amended the information to include a charge of possession of cocaine with intent to deliver within 1,000 feet of a school. In November 2013, Murphy pleaded guilty to the charge of delivery of cocaine within 1,000 feet of a school, and the district court accepted his guilty plea.
[¶3] In March 2014, the district court held a hearing addressing the remaining two charges, Murphy's prior convictions, and sentencing. At the outset of the hearing, the court permitted the State to file a second amended information, clarifying the alleged prior offenses to include an additional prior drug conviction in federal court. The court allowed Murphy to withdraw his previously entered guilty plea and enter a guilty plea to count one of the second amended information, charging him with delivery of cocaine within 1,000 feet of a school. The court also granted the State's motion to dismiss the remaining two charges against Murphy.
[¶4] The parties then presented arguments regarding sentencing, including consideration of Murphy's prior convictions in other jurisdictions and whether North Dakota law permits the court to consider deferring or suspending any part of the
mandatory minimum sentence. The district court concluded N.D.C.C. § 19-03.1-23.2 does not authorize a deferred or suspended sentence and sentenced Murphy to the mandatory minimum sentence of twenty-eight years in prison.
[¶5] Murphy argues the district court failed to properly inform him of an additional mandatory eight-year consecutive sentence required under N.D.C.C. § 19-03.1-23(3) before accepting his guilty plea at the March 2014 hearing.
[¶6] Murphy concedes on appeal that he did not raise this issue below and has not moved to withdraw his guilty plea in the district court. Issues not raised in the district court will not be addressed for the first time on appeal, unless the alleged error rises to the level of obvious error affecting substantial rights under N.D.R.Crim.P. 52(b). See State v. Henes, 2009 ND 42, ¶ 7, 763 N.W.2d 502. Under N.D.R.Crim.P. 52, any " error, defect, irregularity or variance that does not affect substantial rights must be disregarded."
[¶7] Generally, a valid guilty plea must be entered knowingly, intelligently, and voluntarily. See Sambursky v. State, 2006 ND 223, ¶ 9, 723 N.W.2d 524. Under N.D.R.Crim.P. 11, the district court must advise a defendant of certain rights, including any mandatory minimum sentence before accepting a defendant's guilty plea. Sambursky, at ¶ 9; State v. Raulston, 2005 ND 212, ¶ 11, 707 N.W.2d 464. " The requirement to advise the defendant under N.D.R.Crim.P. 11 is mandatory and binding upon the court." Sambursky, at ¶ 9; see also State v. Feist, 2006 ND 21, ¶ 24, 708 N.W.2d 870. We have also explained that N.D.R.Crim.P. 11 does not require " ritualistic compliance," but a court must " substantially comply" with the rule's procedural requirements to ensure a defendant is entering a voluntary and intelligent guilty plea. See State v. Trevino, 2011 ND 232, ¶ 8, 807 N.W.2d 211; State v. 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).
[¶8] Murphy contends the district court failed to properly inform him of an additional mandatory eight-year consecutive sentence under N.D.C.C. § 19-03.1-23(3) before accepting his guilty plea at the March 2014 hearing. The State responds, however, that the record from the three hearings in this case demonstrates Murphy had previously been informed of the applicable mandatory minimum sentence when he entered his guilty plea. The State asserts " substantial compliance" with N.D.R.Crim.P. 11 exists when considering the record in this case. See State v. Schweitzer, 510 N.W.2d 612, 615-16 (N.D. 1994) ( " [S]ubstantial compliance with Rule 11 exists if the record of the arraignment, in conjunction with the record of the change-of-plea hearing, clearly reveals that the trial court informed the defendant of the rights he was waiving by pleading guilty." ).
[¶9] Here, although the district court did not specifically inform Murphy of the additional mandatory eight-year consecutive sentence under N.D.C.C. § 19-03.1-23(3) before accepting his guilty plea at the March 2014 hearing, the transcripts of the hearings held in March 2013, November 2013, and March 2014 plainly show Murphy was informed and understood he was facing the possibility of a mandatory minimum sentence of twenty-eight years in prison for the charge of delivery of cocaine within 1,000 feet of a school. At his initial appearance in March 2013, the district court informed Murphy that with two alleged prior convictions for drug violations, plus committing the present offense within
1,000 feet of a school, the mandatory minimum sentence was twenty-eight years incarceration.
[¶10] At the November 2013 hearing, during which Murphy initially pleaded guilty to the charge, the State specifically stated there was a mandatory minimum sentence of twenty-eight years incarceration for the charge. Murphy also acknowledged that the charge came with a mandatory minimum penalty when he initially pleaded guilty at that hearing. Further, during the March 2014 hearing when he withdrew his earlier plea and entered his guilty plea to the same charge in the second amended information, ...