from the District Court of Grand Forks County, Northeast
Central Judicial District, the Honorable John A. Thelen,
C. Eyre, Grand Forks County State's Attorney Office,
Grand Forks, ND, for plaintiff and appellee.
Charles J. Sheeley, Fargo, ND, for defendant and appellant.
Jonathan Guthmiller appeals from a criminal judgment after he
pled guilty to luring a minor by computer. Guthmiller argues
the district court abused its discretion when denying his
motion to withdraw his guilty plea, and erred by failing to
advise him of a mandatory period of probation. We affirm the
In April 2017 the State charged Guthmiller with luring a
minor by computer after an investigation uncovered
inappropriate sexual messages and photographs exchanged on
the social media platform Snapchat between Guthmiller and a
Guthmiller entered a plea of not guilty. The district court
scheduled trial for September 26, 2017. The parties engaged
in negotiations before trial and on September 26, 2017,
Guthmiller signed a plea agreement entering a plea of guilty
to luring a minor by computer. At the change of plea hearing
the district court confirmed Guthmiller was aware he was
changing his plea pursuant to an agreement and advised he
could proceed to trial if he or the court did not accept the
plea agreement. The court explained Guthmiller would not be
able to withdraw his plea unless the court refused to
sentence him in accordance with the agreement. Guthmiller
affirmed his decision to accept the plea agreement. The
district court verified Guthmiller was freely and voluntarily
entering his guilty plea and asked questions to ensure
Guthmiller understood his rights. Guthmiller again told the
court he desired to plead guilty.
Guthmiller told the court his counsel's representation
was satisfactory and he was not under the influence of any
intoxicants. The State provided the factual basis for the
Alford plea and Guthmiller agreed the State could prove the
factual basis beyond a reasonable doubt. The district court
accepted Guthmiller's guilty plea.
The district court ordered a presentence investigation report
and sex offender evaluation, and scheduled sentencing for
January 2018. The sentencing hearing was continued twice.
Guthmiller moved to withdraw his guilty plea based on
possible new information about purported activity on his
Snapchat account. The district court requested briefing on
the matter and on April 27, 2018, conducted a hearing on the
motion to withdraw. The court denied the motion, finding
Guthmiller failed to show a "fair and just" reason
to withdraw the guilty plea. The district court also found
the State would be prejudiced by allowing Guthmiller to
withdraw his plea. Guthmiller was sentenced on May 14, 2018,
and appealed on June 1, 2018.
Rule 11(d), N.D.R.Crim.P., governs the withdrawal of a guilty
plea and provides differing standards depending on the timing
of a motion. State v. Lium, 2008 ND 232, ¶ 11,
758 N.W.2d 711. A defendant may withdraw a guilty plea at any
time before the court accepts the plea. N.D.R.Crim.P.
11(d)(1)(A). A defendant also may withdraw a guilty plea
after the court accepts the plea, but before sentencing, if
the court rejects a plea agreement or if the defendant
demonstrates a "fair and just" reason for the
withdrawal. N.D.R.Crim.P. 11(d)(1)(B)(i)-(ii). "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."
N.D.R.Crim.P. 11(d)(2). "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." State v.
Bates, 2007 ND 15, ¶ 6, 726 N.W.2d 595. 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.
Guthmiller argues possible new information about purported
activity on his Snapchat account is a "fair and