Appeal from the District Court of McHenry County, Northeast Judicial District, the Honorable John C. McClintock, Jr., Judge.
REVERSED AND REMANDED.
Cassey A. Breyer, Assistant State's Attorney, Towner, ND, for plaintiff and appellee.
Lee M. Grossman, Valley City, ND, for defendant and appellant.
Carol Ronning Kapsner, Lisa Fair McEvers, Daniel J. Crothers, Dale V. Sandstrom, Gerald W. VandeWalle, C.J. Opinion of the Court by Kapsner, Justice.
[¶1] Dale Yost appeals from a criminal judgment entered on an Alford plea to five counts of gross sexual imposition. We conclude the record does not establish Yost knowingly and intelligently waived his right to counsel, and his conduct did not rise to the functional equivalent of a voluntary waiver of his right to counsel. We reverse and remand for resentencing with appointed counsel.
[¶2] In October 2012, Yost was charged with eleven counts of gross sexual imposition involving five minor victims. Yost applied for court-appointed counsel, and William Hartl was appointed to represent him.
[¶3] In early August 2013, Yost requested the Commission on Legal Counsel for Indigents appoint him a new attorney, but the Commission denied his request. On August 28, 2013, while represented by Hartl, Yost entered Alford pleas to five counts of gross sexual imposition with six counts dismissed as part of a plea agreement. The judge confirmed with Yost on the record that Yost had discussed the agreement with his attorney, he was satisfied with the discussions, and he understood the consequences of entering the pleas. A presentence investigation report was ordered with sentencing to be scheduled at a later date.
[¶4] Before sentencing, on November 7, 2013, Yost filed a letter with the district court inquiring how to file a claim for ineffective assistance of counsel. The court responded to Yost stating such a claim was an " appellate issue," and the court has " no jurisdiction over the matter." On November 13, 2013, another letter from Yost was filed with the court which stated " [t]his is my complaint" for filing an ineffective assistance of counsel claim. The
court again responded to Yost stating it was " not an appropriate motion" before the court because such a claim was an " appellate issue," and it would " not be considered."
[¶5] On November 14, 2013, Hartl moved to withdraw as Yost's attorney based on Yost's letters to the court regarding Yost's ineffective assistance of counsel claim. The State responded and requested that the court permit the withdrawal, find that Yost effectively waived his right to counsel, and advise Yost of the implications of waiving his right to counsel. At the motion to withdraw hearing, the following discussion took place:
THE COURT: All right. So, the Court will order that Mr. Hartl is withdrawn from this case. Therefore, Mr. Yost, do you plan to represent ...