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State v. Atkins

Supreme Court of North Dakota

January 14, 2016

State of North Dakota, Plaintiff and Appellee
v.
Cody Michael Atkins, Defendant and Appellant

Editorial Note:

The opinion cannot be considered final until disposition of such petition for rehearing by the court or expiration of 14 days from filing date.

Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Lolita G. Hartl Romanick, Judge.

M. Jason McCarthy (argued), Assistant State's Attorney, and Meredith H. Larson (on brief), Assistant State's Attorney, Grand Forks, ND, for plaintiff and appellee.

Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.

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

OPINION

Page 677

Gerald W. VandeWalle, Chief Justice.

[¶1] Cody Atkins appealed from a criminal judgment after he pled guilty to gross sexual imposition. We affirm.

Page 678

I

[¶2] The State charged Atkins with a class AA felony for gross sexual imposition for acts that allegedly occurred in November 2013. At the probable cause hearing following Atkins' initial appearance, the State moved to amend its original information to a class A felony and amending the time of the alleged offense to September 2013. Atkins, represented by counsel at the probable cause hearing, did not object to the State's motion, and the district court allowed the State to amend its original information. The court then held an arraignment hearing, at which Atkins pled not guilty.

[¶3] At the pre-trial conference, Atkins informed the court he intended to change his plea. The court informed Atkins of his right to remain silent, his right to an attorney, and also informed him of the maximum and minimum penalties allowed by law, his right to a presumption of innocence, and his right to have the State prove his guilt beyond a reasonable doubt, among other rights. Atkins told the court he understood these rights. The court also informed Atkins it was not bound to accept any sentencing recommendations and could impose any sentence allowed by law. Atkins said he understood. The court told Atkins he would be unable to withdraw his guilty plea if it was accepted by the court. Atkins responded he understood. Atkins entered an open guilty plea. The court inquired whether anyone made promises to Atkins in exchange for the plea or if the plea was the product of threat, coercion, or intimidation. Atkins responded no. The court accepted Atkins' guilty plea, finding an adequate factual basis for the plea existed and Atkins gave the guilty plea voluntarily.

[¶4] At the sentencing hearing, the State offered its recommended sentence. The court asked for comment from Atkins' counsel and counsel informed the court he had come with a prepared argument but Atkins wished to speak for himself. Atkins began by apologizing, but proceeded to tell the court he did not commit the charged acts and admitted to doing so to protect his acquaintance. Based on these comments, Atkins' counsel told the court he was hesitant to move forward with sentencing because Atkins' comments indicated a possible desire to withdraw his plea, which counsel became aware of moments prior to the hearing. The court asked if he wanted to withdraw his plea and Atkins said he would stay with his plea and he had enough time to discuss the decision with his ...


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