Justia Criminal Law Opinion Summaries

Dale Burke appealed a judgment dismissing his application for post-conviction relief after the district court denied his motion for DNA testing. In 1998, Burke was convicted of murdering Edmund Huotari and Larry Nelson, and for committing arson to conceal the bodies. Burke appealed the criminal judgment entered upon a jury verdict finding him guilty of two counts of murder and one count of arson. Upon review, the Supreme Court held the district court did not err in denying Burke's request for DNA testing under N.D.C.C. 29-32.1-15 and the court did not err in summarily denying his post-conviction relief application. Accordingly, the Court affirmed the denial of Burke's application for post-conviction relief.

Defendant Scott Kruckenberg appealed a the trial court order that denied his application for post-conviction relief. Defendant was charged with delivery of methamphetamine. The State filed a notice of intent to seek habitual offender finding, alleging Defendant had previously been convicted of three other methamphetamine-related felonies. The State filed an amended notice of intent to seek habitual offender finding and a jury trial was held. The amended notice was the same in all respects as the original notice, except it excluded one of the previously alleged prior convictions. Defendant was subsequently convicted of delivery of methamphetamine. Following the trial, a bifurcated hearing was held. At the hearing, the trial court first found Defendant was a habitual offender and then sentenced him to twenty-five years' imprisonment. Defendant appealed his conviction, and the Supreme Court affirmed. Then Defendant applied for post-conviction relief alleging ineffective assistance of counsel. On appeal, he contended the trial court erred because it did not address his claims of an illegal sentence resulting from alleged defects in the amended notice of intent to seek habitual offender finding, and the court erred by not determining he received ineffective assistance of counsel because his counsel failed to object to the alleged defects in the amended notice of intent to seek habitual offender finding. Upon review, the Supreme Court reversed and remanded the trial court's order denying the application for post-conviction relief to allow the trial court to make detailed findings of fact and conclusions of law and to address Defendant's arguments that his sentence was imposed in violation of North Dakota's habitual offender statute and that his attorney was ineffective for failing to raise the issue.

Defendant Kyle T. Mackey appealed a trial court's order for amended judgment and amended judgment denying and dismissing his application for post-conviction relief. In April 2010, Defendant pled guilty to one count of gross sexual imposition ("GSI") and another count of GSI was diverted for the duration of Defendant's imprisonment and probation. The trial court sentenced Defendant to thirty years in prison. The court ordered Defendant to serve eight years and suspended the remaining twenty-two years for five years. Defendant appealed. In early 2011, while the appeal was pending, Defendant moved to withdraw his guilty plea, arguing the sentence did not conform to the plea agreement and alleging the sentence was illegal. The trial court amended Defendant's sentence, reducing it to fifteen years, and Defendant filed a second appeal of the court's order. The Supreme Court affirmed the trial court's order amending his sentence and denying his motion to withdraw his guilty plea. Defendant filed an application for post-conviction relief seeking to withdraw his guilty plea; he claimed he lacked an understanding of the law in relation to the facts of his case and his plea was not voluntary. The trial court dismissed Defendant's application. Defendant unsuccessfully moved for reconsideration, and for the first time, alleged he received ineffective assistance of counsel. Between the testimony of the facts underlying Defendant's GSI offense during the sentencing hearing and the factual allegations contained in the criminal information, a sufficient factual basis for his guilty plea was established. Defendant's remaining arguments were not meritorious, and the Supreme Court declined to address them on appeal. Accordingly, the Court affirmed the trial court's amended judgment dismissing Defendant's application for post-conviction relief.

Defendant Travis Trainor Lutz appealed a criminal judgment entered after he conditionally pled guilty to the charge of driving under the influence. In September 2011, Defendant was charged with driving under the influence and submitted to a blood draw, which was conducted by a nurse. The State notified Defendant of its intent to introduce an analytical report at trial under N.D.R.Ev. 707. Defendant objected and demanded the State produce the arresting officer, the nurse who drew his blood sample, the lab analysts, including Stephanie Kleinjan, who conducted the chemical test, and Lisa Hentges, who prepared the volatiles solution used during the chemical test, and any evidence custodians or mail clerks involved in the matter. Defendant filed a motion in limine seeking to exclude the analytical report without the requested witnesses' presence at trial. The State opposed Defendant's motion, arguing it was in compliance with N.D.R.Ev. 707 because it planned to call Kleinjan and the arresting officer at trial. The district court held a hearing on the matter and denied Defendant's motion in limine. Defendant withdrew his plea of not guilty and entered a conditional guilty plea, reserving the right to appeal the district court's decision on his motion in limine. Defendant and the State filed a stipulation for the conditional plea, and the district court entered a criminal judgment. Rule 707, N.D.R.Ev., when read with N.D.C.C. 39-20-07, requires the State to produce at trial the nurse who drew Defendant's blood sample. The rule does not require the State to produce the individual who prepared the volatiles solution, the mail carriers, or the evidence custodians. Because the Supreme Court concluded the State was required to produce at trial the nurse who drew Defendant's blood, the Court reversed and remanded for further proceedings.

Defendant Sarah Pavlicek appealed a criminal judgment entered against her after a jury found her guilty of abuse or neglect of a child. Defendant lived with her boyfriend, their son, Defendant's daughter from a previous relationship, and L.B., the boyfriend's daughter from a previous relationship. In October 2010, a teacher at L.B.'s school received a phone call from Defendant regarding a mark on L.B.'s face. When L.B. arrived at school, the teacher was suspicious of the mark on L.B.'s face and also found bruises on L.B.'s back. The teacher followed school reporting procedures, and Burleigh County Social Services became involved. The teacher testified that when Defendant arrived at the school to discuss L.B.'s injuries with the staff, she did not seem concerned about L.B. On appeal, Defendant argued the guilty verdict was not supported by sufficient evidence and claims the jury rendered legally inconsistent verdicts. Defendant also contended the court erred by "refus[ing] to give a proper jury instruction on parental discipline." Upon review, the Supreme Court held that Defendant's conviction was supported by competent evidence, the jury verdicts were not legally inconsistent, and the court did not err in denying Defendant's requested jury instruction.

Defendant Anthony Perales appealed an amended criminal judgment that revoked his probation and imposed a sentence of fourteen years' incarceration followed by five years supervised probation. Defendant argued on appeal that the sentence was illegal because the district court lacked authority to impose probation and that fourteen years' incarceration was cruel and unusual punishment. Upon review, the Supreme Court reversed and remanded for further proceedings. The Court concluded that the district court erred by ordering Defendant to serve additional probation following his release.

The State of North Dakota, through Adams County State's Attorney Aaron Roseland, petitioned for a supervisory writ to direct the district court to withdraw its pretrial order holding N.D.R.Ev. 707 required the State to produce at trial the person who drew Gwen Bohmbach's blood on the charge of driving under the influence. Bohmbach was arrested for driving under the influence and submitted to a blood draw, which was conducted by a nurse. The State notified Bohmbach that it intended to introduce the analytical report at trial. Bohmbach sent the State a subpoena to serve on the nurse who drew her blood. The State moved to quash the subpoena, arguing N.D.R.Ev. 707 did not require it to produce the nurse who drew Bohmbach's blood because the nurse had no knowledge of the analytical report. The district court, after a hearing on the motion, concluded the State was required to produce the nurse at trial. Upon review of the matter, the Supreme Court concluded this was an appropriate case in which to exercise its supervisory jurisdiction. Because the Court held N.D.R.Ev. 707, when construed with N.D.C.C. 39-20-07, requires the State to produce at trial the individual who drew Bohmbach's blood, the Court denied the State's petition.

In 2011, the City of Johnston charged Appellant Matthew Johnston with driving under the influence after police arrested him for driving his bicycle into a parked vehicle. Appellant moved to dismiss the charge, arguing a bicycle (moved under human power) is not a "vehicle" under N.D.C.C. 39-08-01. The district court denied Appellant's motion, and after a hearing to reconsider the motion, the court again denied it. Appellant conditionally pled guilty to the charge, reserving his right to have this Court review whether a bicycle is considered a "vehicle" for the purposes of driving under the influence. The City of Lincoln responded that the legislature intended a bicycle to be considered a "vehicle" under N.D.C.C. 39-08-01 because N.D.C.C. 39-07-01 provides: "For the purposes of chapters 39-08 through 39-13, a bicycle or a ridden animal must be deemed a vehicle." The Supreme Court affirmed Appellant's conviction.

Plaintiff-Appellant Randy Holkesvig appealed a district court order that modified an order enjoining him from filing certain further lawsuits without leave of court and denying his request for leave to commence four new ones. In 2008, Holkesvig was charged with stalking and violating a disorderly conduct restraining order. After pleading guilty to the stalking charge, Holkesvig sued Peter Welte, Meredith Larson, and Chris Smith, individuals involved in the criminal proceedings against Holkesvig. The district court granted summary judgment for the defendants, awarding them costs and disbursements. Holkesvig appealed, and the decision was affirmed. During the pendency of the appeal, Holkesvig filed additional pleadings and documents with the district court. The district court issued an order awarding the defendants $1,000 in attorney fees and prohibiting Holkesvig from filing further documents with the court, except to the extent required to resume or continue his appeal. Despite the district court's order, Holkesvig continued to file documents with the district court, resulting in Welte, Larson, and Smith filing a motion to strike the documents and to impose sanctions against Holkesvig for violating the court's order. In March 2011, without holding a hearing, the district court found Holkesvig in contempt of court, struck his additional documents, and ordered him to pay the defendants a $1,000 remedial sanction for the contempt. The March 2011 order also enjoined Holkesvig from commencing any new lawsuits based on the events related to his underlying criminal conviction without obtaining leave of court. Holkesvig appealed the March 2011 order, which was reversed and remanded because Holkesvig did not receive a hearing on the contempt motion. Upon review, the Supreme Court affirmed, concluding the district court acted within its discretion in denying Holkesvig's motion to file four new lawsuits and in prohibiting him from filing certain further lawsuits.

Petitioner Larry Rubey appealed a district court order that denied his petition for discharge from civil commitment as a sexually dangerous individual. Upon review, the Supreme Court affirmed, concluding the court's order was not based on an erroneous view of the law and the court did not err in concluding the State established by clear and convincing evidence that Rubey remained a sexually dangerous individual.