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State v. Barnes

Supreme Court of North Dakota

March 24, 2015

State of North Dakota, Plaintiff and Appellee
v.
Joseph R. Barnes, Jr., Defendant and Appellant

Appeal fro the District Court of Ward County, North Central Judicial District, the Honorable Gary H. Lee, Judge.

Christene A. Reierson, Assistant State's Attorney, Minot, N.D., for plaintiff and appellee.

Eric P. Baumann (argued) and Robert W. Martin (on brief), North Dakota Public Defenders' Office, Minot, N.D., 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.

OPINION

Page 467

Kapsner, Justice.

[¶1] Joseph Barnes appeals from a criminal judgment entered after he pleaded guilty to a charge of driving under the influence of alcohol, arguing his sentence was incorrectly enhanced. Because Barnes entered a counseled, unconditional guilty plea to driving under the influence as a class A misdemeanor, he failed to preserve the issue he raised on appeal. We affirm.

I

[¶2] In December 2013, Barnes made an initial appearance in the district court after being arrested and charged for driving while under the influence of alcohol, a class A misdemeanor. Barnes was also charged for driving while his license was suspended and failure to transfer vehicle

Page 468

title, both class B misdemeanors. In April 2014, the district court held a hearing originally designated as a status conference, but which ultimately became a change of plea and sentencing hearing.

[¶3] At the outset of the hearing, Barnes, rather than the State, introduced into the record a May 2012 district court judgment and a March 2013 Minot municipal court judgment, establishing that he had two prior convictions for driving under the influence of alcohol. Although the March 2013 judgment indicates Barnes waived the right to counsel before entering his guilty plea, the May 2012 judgment makes no reference to either representation by counsel or waiver of counsel before Barnes's entry of a guilty plea. Before pleading guilty to the December 2013 charges in this case, Barnes objected to using the May 2012 judgment as a " sentencing enhancement" for driving under the influence because the judgment did not indicate Barnes either had counsel or had waived his right to counsel. After hearing argument from Barnes and the State, the district court concluded the waiver of the right to counsel in the March 2013 judgment cured any constitutional defect regarding the alleged lack of counsel or specific waiver of counsel in the May 2012 judgment.

[¶4] Barnes pleaded guilty to the charges, including driving while under the influence of alcohol as a class A misdemeanor, and the court stayed the execution ...


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