from the District Court of Cass County, East Central Judicial
District, the Honorable Steven E. McCullough, Judge.
Brady, Fargo, N.D., for plaintiff and appellee.
Gereszek, Grand Forks, N.D., for defendant and appellant.
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
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.
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.
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
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
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.
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 ...