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State v. Job

Supreme Court of North Dakota

November 20, 2019

State of North Dakota, Plaintiff and Appellee
v.
George Ludoru Job, Defendant and Appellant

          Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Steven E. McCullough, Judge.

          Reid Brady, Fargo, N.D., for plaintiff and appellee.

          Samuel Gereszek, Grand Forks, N.D., for defendant and appellant.

          OPINION

          JENSEN, JUSTICE.

         [¶1] George Job appeals from the denial of his motion to withdraw his 2008 guilty plea to the charge of aggravated assault. Job argues the district court abused its discretion by determining a manifest injustice did not result from a 2010 resentencing following the revocation of his probation. He contends the resentencing was illegal and transformed his original non-deportable offense into a deportable offense. We affirm.

         I

         [¶2] In 2008, Job plead guilty to aggravated assault, a class C felony, in violation of N.D.C.C. § 12.1-17-02. During Job's change of plea hearing, the district court informed Job of the potential deportation consequences of his plea of guilty to the aggravated assault charge. After accepting Job's plea of guilty, the court sentenced Job to one year of incarceration, all of which was suspended, and imposed a period of five years of supervised probation.

         [¶3] In 2010, the State petitioned for the revocation of Job's probation. During the probation revocation hearing, the district court informed Job of the potential deportation consequences of admitting to the probation violations. Job admitted the allegations. The court revoked Job's probation and resentenced him to 18 months of incarceration.

         [¶4] In 2018, Job moved to withdraw his 2008 guilty plea. After a hearing on Job's motion, the court denied Job's motion. The district court found that Job had failed to prove the withdrawal of his guilty plea was necessary to correct a manifest injustice.

         II

         [¶5] Rule 11 of the North Dakota Rules of Criminal Procedure governs a defendant's motion to withdraw a plea of guilty. Our review of a district court's denial of a motion to withdraw a plea of guilty is under the abuse of discretion standard of review. State v. Peterson, 2019 ND 140, ¶ 20, 927 N.W.2d 74. "An abuse of discretion under N.D.R.Crim.P. 11(d) occurs when the court's legal discretion is not exercised in the interests of justice." Id. "The trial court must exercise its sound discretion in determining whether a 'manifest injustice' or a 'fair and just reason' to withdraw a guilty plea exists." State v. Bates, 2007 ND 15, ¶ 6, 726 N.W.2d 595.

         [¶6] A motion to withdraw a plea of guilty subsequent to the plea and sentencing requires the defendant to prove "the withdrawal is necessary to correct a manifest injustice." N.D.R.Crim.P. 11(d)(2). Job contends the revocation of his sentence and imposition of an eighteen month period of incarceration transformed his original suspended sentence from a non-deportable sentence into a deportable sentence. He contends the transformation compels a finding the withdrawal of his guilty plea is necessary to correct a manifest injustice.

         III

         [¶7] Job's argument depends on the immigration consequences under federal law arising from convictions of crimes of violence. He asserts that his 2008 sentence did not trigger deportation consequences under federal law, but the subsequent 2010 illegal resentencing following the revocation of his probation did trigger deportation consequences under federal law. He contends the 2010 resentencing was illegal because it imposed a sentence greater than the original suspended sentence, and if the suspended period of incarceration from the original sentence had been imposed following the revocation of his probation, there would not have been deportation consequences. His contention the 2010 sentence is illegal relates to the application of ...


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