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Parshall v. State

Supreme Court of North Dakota

March 8, 2018

Russell Bruce Parshall, Petitioner and Appellant
v.
State of North Dakota, Defendant and Appellee

         Appeal from the District Court of Morton County, South Central Judicial District, the Honorable Sonna M. Anderson, Judge.

          Danny L. Herbel, Bismarck, ND, for petitioner and appellant.

          Allen M. Koppy, Morton County States Attorney, Mandan, ND, for defendant and appellee.

          OPINION

          CROTHERS, JUSTICE.

         [¶ 1] Russell Bruce Parshall appeals from the district court's order denying his application for post-conviction relief. Parshall petitioned the district court to vacate a criminal conviction for refusal to submit to a blood test in 2014. We reverse and remand, concluding the district court erred in its interpretation of the plea agreement.

         I

         [¶ 2] On July 28, 2015 Parshall pled guilty to "Driving Under the Influence N.D.C.C. § 39-08-01 (First Offense Refusal)" by a N.D.R.Crim.P. 43 plea agreement. Parshall's Rule 43 Change of Plea and Sentencing Appearance Waiver listed the charge without the parenthetical "(First Offense Refusal);" however, both the formal plea agreement section of the document and the later criminal judgment included the parenthetical.

         [¶ 3] Parshall timely applied for post-conviction relief, arguing the United States Supreme Court's holding in Birchfield v. North Dakota, 136 S.Ct. 2160 (2016), was a retroactively applicable substantive rule of constitutional law that prohibited the State from imposing criminal liability for refusing a warrantless blood test. In opposing Parshall's application the State argued the factual basis in the plea agreement supported both general driving while impaired and refusal to submit to the blood test. The district court found Parshall entered a guilty plea to the general charge of driving under the influence, not merely refusal:

"While the refusal to submit to a warrantless blood draw is constitutionally protected activity and no longer supports a criminal offense after Birchfield, the Court finds that Parshall entered a plea to the general charge of Driving Under the Influence. In addition to refusing the blood draw, Parshall admitted to the factual basis of driving without headlights or taillights at 1:00 a.m. on the city streets in Mandan, Morton County, that the officer smelled a strong odor of alcohol, that the defendant had slurred speech and bloodshot, watery eyes, that the defendant had poor motor function and could not walk without stumbling and that the defendant failed each of the field sobriety tests. The factual basis, as supplied by Parshall, supported a finding that he was actually impaired by alcohol in addition to refusing the blood test."

         [¶ 4] The district court declined to rule on the retroactivity of Birchfield, 136 S.Ct. 2160 (2016): "The Court need not make that ruling, as the Court finds that the ruling in Birchfield made the statute regarding conviction by refusal to provide a blood sample unconstitutional from the moment of passage." Parshall appeals.

         II

         [¶ 5] Our standard of review for denial of an application for post-conviction relief is well-established. "Post-conviction relief proceedings are civil in nature and are governed by the North Dakota Rules of Civil Procedure." Burke v. State, 2012 ND 169, ¶10, 820 N.W.2d 349.

"In post-conviction relief proceedings, a district court's findings of fact will not be disturbed unless they are clearly erroneous under N.D.R.Civ.P. 52(a). Cue v. State, 2003 ND 97, ¶ 10, 663 N.W.2d 637. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if it is not supported by the evidence, or if, although there is some evidence to support it, a reviewing court is left with a definite and firm conviction that a mistake has been made. DeCoteau v. State, 2000 ND 44, ¶ 10, 608 N.W.2d 240. Questions of law are fully reviewable on appeal of a post-conviction proceeding. Peltier v. State, 2003 ND 27, ¶ 6, 657 N.W.2d 238."

Greywind v. State, 2004 ND 213, ¶ 5, 689 N.W.2d 390.

         [¶ 6] Two subsections of N.D.C.C. § 39-08-01(1) (2015) apply in this case:

"1. A person may not drive or be in actual physical control of any vehicle upon a highway or upon public or private areas to which the public has a right of access for vehicular use in this state if any of the following apply:
...
b. That person is under the influence of ...

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