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State v. Craig

Supreme Court of North Dakota

May 16, 2019

State of North Dakota, Plaintiff and Appellee
v.
Russell Frank Craig, Defendant and Appellant

          Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Bruce A. Romanick, Judge.

          Tessa M. Vaagen, Assistant State's Attorney, Bismarck, ND, for plaintiff and appellee.

          Samuel A. Gereszek, Grand Forks, ND, for defendant and appellant.

          OPINION

          MCEVERS, JUSTICE.

         [¶1] 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.

         I

         [¶2] 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.

         II

         [¶3] "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 335.

         III

         [¶4] 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.

         At no 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 ...


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