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State v. Cox

Supreme Court of North Dakota

February 16, 2017

State of North Dakota, Plaintiff and Appellee
v.
Michael Jonathan Cox, Defendant and Appellant

         Appeal from the District Court of Cass County, East Central Judicial District, the Honorable John Charles Irby, Judge.

          Leah J. Viste, Assistant State's Attorney, for plaintiff and appellee; submitted on brief.

          Russell J. Myhre, for defendant and appellant; submitted on brief.

          OPINION

          CROTHERS, JUSTICE.

         [¶ 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.

         I

         [¶ 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.

         II

         [¶ 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 ...


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