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City of Dickinson v. Etienne

Supreme Court of North Dakota

August 6, 2015

City of Dickinson, Plaintiff and Appellee
v.
Byishimo Etienne, Defendant and Appellant

Appeal from the District Court of Stark County, Southwest Judicial District, the Honorable Zane Anderson, Judge.

Elizabeth A. Ebert, Dickinson, N.D., for plaintiff and appellee.

Ryan A. Keefe, Bismarck, N.D., for defendant appellant.

Gerald W. VandeWalle, C.J., Lisa Fair McEvers, Carol Ronning Kapsner, Dale V. Sandstrom, Daniel J. Crothers.

OPINION

Gerald W. VandeWalle, Chief Justice.

[¶1] Byishimo Etienne appealed from a district court judgment affirming a municipal court order denying his motion to vacate his guilty plea to a charge of simple assault domestic violence. We conclude we do not have jurisdiction, and we dismiss the appeal.

I

[¶2] In March 2013, the City of Dickinson charged Etienne with simple assault

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domestic violence, alleging he violated Dickinson Municipal Code § 25.08.010. On March 21, 2013, Etienne personally appeared before the Dickinson municipal judge and signed a document stating that the judge had explained the notification of rights to Etienne and that he did not wish to consult with an attorney and waived his right to assistance of an attorney. Etienne also signed a notification of rights and acknowledgment, stating he had been orally informed of rights listed on a preprinted form and understood those rights, including that if he pled guilty, there would not be a trial of any kind and he would give up his right to a trial and to confront witnesses as well as his privilege against self-incrimination. On April 4, 2013, Etienne appeared without counsel and pled guilty to the charge.

[¶3] Etienne claimed he subsequently learned the deportation consequences of his conviction, and in May 2014, he moved to vacate his guilty plea. The municipal court denied Etienne's motion, ruling he failed to show either the court or the prosecutor had an obligation to inform him that deportation may result from his guilty plea. The municipal court concluded withdrawal of Etienne's guilty plea was not necessary to correct a manifest injustice.

[¶4] Etienne appealed to the district court, and the court ruled it had jurisdiction under N.D.C.C. § 29-28-06(5) to hear Etienne's appeal from the municipal court's decision denying his motion to vacate the guilty plea because the municipal court's decision affected Etienne's substantial rights. The district court nevertheless affirmed the municipal court's denial of Etienne's motion to vacate the guilty plea, concluding withdrawal was not necessary to correct a manifest injustice.

II

[¶5] Etienne generally argues his guilty plea should be vacated to correct a manifest injustice. He argues the municipal court abused its discretion in denying his motion to vacate his guilty plea, because the municipal court had a constitutional obligation to notify him of possible immigration consequences of his guilty plea under the rationale of Padilla v. Kentucky,559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) (holding the Sixth Amendment requires defense counsel to advise noncitizen defendants of immigration consequences of a guilty plea and failure to do so constitutes ineffective assistance of counsel). Etienne claims Padilla changed the principle that deportation is a collateral consequence of a criminal proceeding, which was the basis of this Court's decision in State v. Dalman,520 N.W.2d 860 (N.D. 1994) that sentencing courts need not inform defendants of collateral consequences of deportation for a guilty plea to be voluntary. ...


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