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.
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
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.
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 ...