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State v. Wallace

Supreme Court of North Dakota

October 3, 2018

State of North Dakota, Plaintiff and Appellee
v.
William J. Wallace, Defendant and Appellant

          Appeal from the District Court of Ward County, North Central Judicial District, the Honorable Todd L. Cresap, Judge, Reversed And Remanded.

          William J. O'Driscoll, Assistant State's Attorney, Minot, ND, for plaintiff and appellee.

          William J. Wallace, self-represented, Jamestown, ND, defendant and appellant; submitted on brief.

          OPINION

          JENSEN, JUSTICE.

         [¶ 1] William Wallace appeals from a second amended criminal judgment entered after he pleaded guilty to luring minors by computer or other electronic means. We conclude the district court did not substantially comply with N.D.R.Crim.P. 11 when the court failed to inform Wallace of and determine that he understood the five-year mandatory minimum period of probation. We reverse and remand to the district court to allow Wallace to withdraw his plea of guilty and for further necessary proceedings.

         I

         [¶ 2] In September 2016, the State charged Wallace with luring minors by computer or other electronic means under N.D.C.C. § 12.1-20-05.1, a class C felony. On October 3, 2017, the district court held a change of plea and sentencing hearing. At the hearing Wallace entered an open plea of guilty to the charge. Wallace was sentenced to a five-year prison term, with all but eighteen months suspended, and four years' probation. The criminal judgment was filed on October 5, 2017.

         [¶ 3] On October 11, 2017, the State moved the district court to amend the criminal judgment to reduce Wallace's probation to three years. The court filed the first amended criminal judgment with a three-year probation term on November 9, 2017. On December 1, 2017, the State again moved the court to amend the criminal judgment to correct the length of probation to impose the mandatory minimum five- year period of probation required by N.D.C.C. § 12.1-32-06.1(4).

         [¶ 4] On December 26, 2017, while the second motion to amend was pending, Wallace filed the first of multiple notices of appeal. On December 28, 2017, these appellate proceedings were stayed to allow the district court an opportunity to consider the second motion to amend the judgment. On March 6, 2018, the district court filed a second amended criminal judgment increasing Wallace's probation by imposing a five-year term of probation consistent with the mandatory minimum period of probation required by N.D.C.C. § 12.1-32-06.1(4). Wallace filed an additional notice of appeal on March 22, 2018.

         II

         [¶ 5] Wallace argues on appeal, among other things, that he was incorrectly charged, that he was "entrapped" by law enforcement, that the district court erred in denying him court-appointed counsel, that the court erred in amending the criminal judgment, and that the court erred in denying his demand for a change of judge. He also claims he was unaware that by pleading guilty he would be subject to a five-year mandatory minimum period of probation.

         [¶ 6] Rule 11, N.D.R.Crim.P., governs pleas and provides the procedural framework for entering pleas. "To be valid, a guilty plea must be entered knowingly, intelligently, and voluntarily." State v. Trevino, 2011 ND 232, ¶ 6, 807 N.W.2d 211. "Generally, a defendant who voluntarily pleads guilty 'waives the right to challenge non-jurisdictional defects and may only attack the voluntary and intelligent character of the plea.'" Id. (quoting State v. Blurton, 2009 ND 144, ¶ 18, 770 N.W.2d 231).

         [¶ 7] Under N.D.R.Crim.P. 11, before accepting a guilty plea, the district court must advise the defendant of certain rights, including "any mandatory minimum penalty." See N.D.R.Crim.P. 11(b)(1)(H). "The requirement to advise the defendant under N.D.R.Crim.P. 11 is mandatory and binding upon the court." Sambursky v. State, 2006 ND 223, ¶ 9, 723 N.W.2d 524. This Court has recognized that" N.D.R.Crim.P. 11 does not require 'ritualistic compliance'; however, a court must 'substantially comply with the rule's procedural requirements' to ensure a defendant is entering a voluntary and intelligent guilty plea." Trevino, 2011 ND 232, ¶ 8, 807 N.W.2d 211.

         [¶ 8] In its briefing to this Court, the State asserts that the district court went through the N.D.R.Crim.P. 11 colloquy during Wallace's change of plea hearing, that the court determined Wallace had been advised of his rights and waived another reading of his rights, and that the record supports a determination that Wallace's change of plea was knowingly and willfully made. However, the State concedes the record does not disclose whether Wallace ...


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