from the District Court of Burleigh County, South Central
Judicial District, the Honorable Bruce A. Romanick, Judge.
M. Vaagen, Assistant State's Attorney, Bismarck, ND, for
plaintiff and appellee.
A. Gereszek, Grand Forks, ND, for defendant and appellant.
Russell Frank Craig appeals from a district court order and
amended order denying his motion to withdraw his guilty plea.
We reverse and remand, concluding the district court erred by
failing to give Craig a hearing.
Russell Frank Craig pleaded guilty to murder in 2007. On
August 17, 2018, Craig filed a motion under N.D.R.Ct. 3.2 to
withdraw his guilty plea under N.D.R.Crim.P. 11(d)(2) and
requested oral argument. The State did not respond. On
September 14, 2018, the district court issued a notice
inquiring whether the State's failure to respond to
Craig's motion was due to oversight. In that notice, the
court also stated: "[t]he State shall notify the Court
if it has waived a response or respond immediately to the
motion or request additional time to respond if unable to do
so immediately." On October 4, 2018, the court scheduled
the oral argument for October 16, 2018. On October 5, 2018,
the State filed a motion for extension of response time. The
court granted the extension on October 11, 2018, and the
State submitted its response to Craig's motion to
withdraw his guilty plea on October 12, 2018. Without
explanation, the court cancelled the October 16, 2018
hearing. On October 24, 2018, the court denied Craig's
motion to withdraw his guilty 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." State v.
Bates, 2007 ND 15, ¶ 6, 726 N.W.2d 595. "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." Id. "A court abuses its
discretion when it acts in an arbitrary, unreasonable, or
unconscionable manner, or it misinterprets or misapplies the
law." State v. Yost, 2018 ND 157, ¶ 6, 914
N.W.2d 508. "The interpretation of a court rule or
statute is a question of law that we review de novo."
State v. Jessee, 2018 ND 241, ¶ 9, 919 N.W.2d
Craig argues the district court erred by permitting the State
to respond later than 14 days after he submitted his motion.
He cites to N.D.R.Ct. 3.2(a)(2), which provides:
Upon serving and filing a motion, the moving party must serve
and file a brief and other supporting papers and the opposing
party must have 14 days after service of a brief within which
to serve and file an answer brief and other supporting
papers. The moving party may serve and file a reply brief
within seven days after service of the answer brief. Upon the
filing of briefs, or upon expiration of the time for filing,
the motion is considered submitted to the court unless
counsel for any party requests oral argument on the motion.
point between the submission of Craig's August 17, 2018
motion and the court's October 24, 2018 order denying his
motion did Craig object to the court's actions permitting
the State to request an extension and submit an answer.
"It is well- established that issues which are not
raised before the district court, including constitutional
issues, will not be considered for the first time on
appeal." State v.Kieper, 2008 ND 65,
¶ 16, 747 N.W.2d 497 (internal quotation omitted). We
will not decide whether the district court erred by
permitting the State to respond more than 14 ...