from the District Court of Cass County, East Central Judicial
District, the Honorable John Charles Irby, Judge.
J. Viste, Assistant State's Attorney, for plaintiff and
appellee; submitted on brief.
Russell J. Myhre, for defendant and appellant; submitted on
1] Michael Cox appeals from a criminal judgment entered after
he pled guilty to assault. Cox argues his guilty plea was
involuntary and the case should be remanded to the district
court for a decision on his motions to withdraw his guilty
plea. We affirm the judgment.
2] On January 26, 2016, Cox was charged with aggravated
assault, a felony. The State alleged Cox willfully caused
serious bodily injury to another by striking an individual in
the head with a full can of beer and breaking the
individual's nose and orbital bones.
3] At a May 3, 2016, dispositional conference Cox informed
the district court that he had not received all of the
discovery he requested from the State. The court advised Cox
to discuss the matter with his attorney.
4] Cox subsequently entered a plea agreement and the
information was amended reducing the charge to misdemeanor
assault. Cox pled guilty on May 12, 2016, and the court
sentenced Cox to one hundred nine days of incarceration with
credit for one hundred nine days served. The court also
waived all fees. On May 12, 2016, a criminal judgment was
entered. On June 9, 2016, Cox filed a notice of appeal.
5] Cox claims he attempted three times to file a motion to
withdraw his guilty plea but the motions were rejected by the
clerk of court and the district court did not determine
whether he is entitled to withdraw his guilty plea. Cox's
appendix includes copies of three handwritten motions to
withdraw his guilty plea dated June 7, 2016; June 15, 2016;
and June 16, 2016. Each purported motion contains a stamp
stating, "This document does not conform to N.D.R.Ct.
3.1(b) and will not be considered by the Court unless signed
by your attorney of record in this case." The stamps are
dated and signed by a district court deputy clerk of court.
The three motions are not included in the district court
record. The court record does include the "State's
Return to Defendant's Motion for Rule 11(d)(2)
Relief." The district court did not adjudicate Cox's
motions or address the State's return, presumably because
the motions were never filed.
6] On appeal, this Court advised Cox that the appendix
contained documents not included in the record and that the
nature of the action on the cover page of the brief
referenced an unfiled motion to withdraw the guilty plea.
This Court further advised Cox that documents not in the
record would not be considered on appeal and that he should
refer to N.D.R.App.P. 10(h) if he intended to have the
documents included in the record and the motion filed in the
district court. Cox did not move to correct or supplement the
record, and Cox's attorney did not file a motion to
withdraw the guilty plea.
7] Cox argues he did not receive all of the discovery he
requested and he could not make a knowing, intelligent and
voluntary guilty plea without viewing all of the relevant
information. Cox requests this Court remand his case for the
district court to determine whether he is entitled to
withdraw his plea.
8] Cox's motions to withdraw his guilty plea were not
filed and are not included in the record. No motions are
pending. Any arguments related to withdrawing the guilty plea
are raised for the first time on appeal. This Court does not
address issues raised for ...