from the District Court of McHenry County, Northeast Judicial
District, the Honorable Anthony Swain Benson, Judge.
E. Frey, McHenry County State's Attorney, Towner, ND, for
plaintiff and appellee.
P. Baumann, Minot, ND, for defendant and appellant.
1] Dale Gene Yost appeals from an order denying his motion to
withdraw guilty pleas and amended criminal judgments. Yost
argues the district court abused its discretion in denying
withdrawal of his guilty pleas, did not advise him of his
rights before his pleas, and erred in amending the amended
judgments because the district court lacked jurisdiction.
Yost also argues he received ineffective assistance of
counsel. We affirm the district court's denial of
Yost's motion, vacate the district court's second
amended judgment, and remand for correction of the first
2] In October 2012 the State charged Yost with eleven counts
of gross sexual imposition involving five minors. State
v. Yost, 2014 ND 209, ¶ 2, 855 N.W.2d 829 (Yost
I). At the November 7, 2012 initial appearance, the
district court advised Yost of the potential criminal
penalties and his rights as listed in N.D.R.Crim.P. 11(b). In
August 2013 Yost entered Alford pleas to five counts
and the State dismissed six counts as part of a plea
agreement. Yost I, at ¶ 3. Attorney William
Hartl represented Yost in these proceedings and the district
court ordered presentence investigations after the change of
plea hearing. Id.
3] Yost requested the Commission on Legal Counsel for
Indigents appoint him new counsel and filed with the district
court multiple requests for a new attorney or claims of
ineffective assistance of counsel. Yost I, at
¶¶ 3-5. In January 2014 Yost appeared without
counsel at a sentencing hearing because the court permitted
Hartl to withdraw before the hearing. Yost I, at
¶ 7. Yost appealed in February 2014. This Court reversed
and remanded for resentencing on a narrow ruling that the
record from the sentencing hearing did "not establish
Yost knowingly and intelligently waived his right to counsel,
nor did his conduct rise to the functional equivalent of a
voluntary waiver...." Yost I, at ¶ 23.
4] Following the 2014 appeal, Yost's second appointed
counsel withdrew. On October 20, 2016 Yost's third
appointed counsel filed a motion to withdraw guilty pleas.
The district court held a motion hearing on April 21, 2017,
and on September 8, 2017, filed an order denying the motion.
The district court amended the criminal judgment on October
6, 2017, after a sentencing hearing. Yost filed his first
notice of appeal on October 9, 2017. On February 1, 2018 the
district court amended the amended criminal judgment. Yost
filed a second notice of appeal on February 21, 2018.
5] Yost argues the district court used the wrong standard in
denying withdrawal of his guilty plea. Rule 11(d),
N.D.R.Crim.P., governs withdrawal of guilty pleas and
"(1) In General. A defendant may withdraw a plea of
(A) before the court accepts the plea, for any reason or no
(B) after the court accepts the plea, but before it imposes
(i) the court rejects a plea agreement under Rule 11(c)(5);
(ii) the defendant can show a fair and just reason for the
(2) Finality of a Guilty Plea. Unless the defendant proves
that withdrawal is necessary to correct a manifest injustice,
the defendant may not withdraw a plea of guilty after the
court has imposed sentence.
(3) Prosecution Reliance on Plea. If the prosecution has been
substantially prejudiced by reliance on the defendant's
plea, the court may deny a plea withdrawal request."
6] We have interpreted Rule 11(d) to recognize three
standards for withdrawing a guilty plea:
"The standard for a plea withdrawal differs depending
upon when the motion to withdraw the guilty plea is made. A
defendant has a right to withdraw a guilty plea before it is
accepted by the court. After a guilty plea is accepted, but
before sentencing, the defendant may withdraw a guilty plea
if necessary to correct a manifest injustice, or, if allowed
in the court's discretion, for any 'fair and
just' reason unless the prosecution has been prejudiced
by reliance on the plea. When a court has accepted a plea and
imposed sentence, the defendant cannot withdraw the plea
unless withdrawal is necessary to correct a manifest
injustice. The decision whether a manifest injustice exists
for withdrawal of a guilty plea lies within the trial
court's discretion and will not be reversed on appeal
except for an abuse of discretion. An abuse of discretion
under N.D.R.Crim.P. (d) occurs when the court's legal
discretion is not exercised in the interest of justice. The
trial court must exercise its sound discretion in determining
whether a 'manifest injustice' or a 'fair and
just reason' to withdraw a guilty plea exists."
State v. Bates, 2007 ND 15, ¶ 6, 726 N.W.2d 595
(citations and quotation marks omitted). "A court abuses
its discretion when it acts in an arbitrary, unreasonable, or
unconscionable manner, or it misinterprets or misapplies the
law." State v. Pixler, 2010 ND 105, ¶ 7,
783 N.W.2d 9.
"While there is a preference to liberally allow a
defendant to withdraw a guilty plea, withdrawal is not a
matter of right.... Furthermore, a defendant has the burden
of proving that a fair and just reason supports withdrawal of
a guilty plea. Once a defendant establishes a fair and just
reason, the burden then shifts to the State to establish that
it would be prejudiced by granting leave to withdraw. To
establish prejudice, the State must show prejudice beyond
that found in the ordinary case. Substantial prejudice is
established if the prosecution shows, for example, that vital
physical evidence has been discarded, that a chief government
witness has died, or that fifty-two witnesses who have come
from all over the United States and from overseas naval bases
have been dismissed. Courts do not inquire into the matter of
prejudice unless the defendant first shows a good reason for
being allowed to withdraw his plea."
State v. Lium, 2008 ND 232, ¶ 13, 758 N.W.2d
711 (citations and quotation marks omitted).
7] Yost argues the district court should have allowed
withdrawal as a matter of right because the remand from
Yost I vacated the judgment, eliminated the original
acceptance of guilty pleas, and placed Yost in the first
stage of guilty plea withdrawal. This argument ignores the
effect of our holding in Yost I, at ¶ 24. which
reversed and remanded for "resentencing with appointed
counsel" only. The district court accepted the guilty
plea in 2013 at the initial change of plea hearing, evidenced
by its statements in court, the presentence investigation,
and the sentence at issue in Yost I, all of which depended on
an accepted guilty plea. See State v.
Welch, 356 N.W.2d 147, 148-49 (N.D. 1984) (reversing
denial of a motion to withdraw guilty plea where district
court did not accept plea and defendant withdrew before
acceptance and sentence). In rejecting Yost's motion to
withdraw, the district court found prior acceptance of the
guilty plea. We agree with the district court and reject
Yost's argument that he could withdraw his guilty pleas
as a matter of right.
8] Having determined the district court accepted Yost's
guilty plea, the decision before us is whether the district
court should have applied the fair and just reasons or
manifest injustice standard. See Bates, 2007 ND 15,
¶ 6, 726 N.W.2d 595. The district court denied
Yost's motion under the manifest injustice standard but
made sufficient findings to deny the motion under the fair
and just reasons standard. For the reasons explained below,
we affirm the district court's order because the district
court provided adequate findings under either standard.
See State v. DeCoteau, 325 N.W.2d 187, 191 (N.D.
1982) (affirming denial of motion to withdraw guilty plea
under both manifest injustice and fair and just reasons
9] Yost argues the district court should have applied the
"fair and just reason" standard. This standard
applies when the district court accepts a plea but has not
issued a sentence. See ...