State v. Craig
State v. Craig
Opinion
[¶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
*101
is necessary to correct a manifest injustice."
State v. Bates
,
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
,
IV
[¶5] Craig argues that under N.D.R.Ct. 3.2(a)(3), the district court was required to hold an oral argument on his motion once he requested it. Rule 3.2(a)(3), N.D.R.Ct., states:
If any party who has timely served and filed a brief requests oral argument, the request must be granted. A timely request for oral argument must be granted even if the moving party has previously served notice indicating that the motion is to be decided on briefs. The party requesting oral argument must secure a time for the argument and serve notice upon all other parties. Requests for oral argument or the taking of evidence must be made not later than seven days after expiration of the time for filing the answer brief. If the party requesting oral argument fails within 14 days of the request to secure a time for the argument, the request is waived and the matter is considered submitted for decision on the briefs. If an evidentiary hearing is requested in a civil action, notice must be served at least 21 days before the time specified for the hearing.
(Emphasis added);
see
Hageness v. Davis
,
[¶6] Additionally, the fact that a hearing has been scheduled does not ensure the non-requesting party is guaranteed that hearing unless he affirmatively completes the Rule 3.2 hearing request steps on his own.
Johnson
,
[¶7] Craig requested an oral argument on August 17, 2018. While Craig did not comply with Rule 3.2(a)(3), because he did not secure and notice the hearing, on October 4, 2018, the calendar control clerk issued a notice to appear for a hearing scheduled on October 16, 2018. On October 16, 2018, the hearing was cancelled "per judge" without explanation. Here, the district court provided electronic notice to the parties on its own by issuing the notice to appear on October 4, 2018. Therefore, the court removed the hearing setting process from the requirements of Rule 3.2, alleviating Craig's duty to complete the steps of the rule. There would be no reason for Craig to secure and serve notice of a hearing that was already scheduled by the court. We conclude the district court abused its discretion by cancelling the October 16, 2018 hearing without giving Craig an opportunity to be heard.
See
State v. Nelson
,
*103 V
[¶8] Craig requests this Court assign a different judge if the case is remanded. Craig did not request the district judge recuse or disqualify himself prior to this appeal. He argues the district judge ignored the applicable rules to accommodate the State, creating an appearance of impropriety.
[¶9] We have held:
The rules of judicial conduct provide that a judge is required to avoid impropriety and the appearance of impropriety in all the judge's activities. Farm Credit Bank v. Brakke ,512 N.W.2d 718 , 720 (N.D. 1994). The law presumes a judge is unbiased and not prejudiced. Id . (citation omitted). We have said a ruling adverse to a party in the same or prior proceeding does not render a judge biased so as to require disqualification. Id . The test for the appearance of impartiality is one of reasonableness and recusal is not required in response to spurious or vague charges of impartiality. Id . at 721.
Rath v. Rath
,
[¶10] Here, Craig's only assertion of judicial impropriety rests on his perception the district court misapplied the applicable rules to his detriment. However, we have stated that "[a]n erroneous opinion as to the merits of the case or the law relating to the proceedings is not evidence of bias."
Datz v. Dosch
,
VI
[¶11] We reverse the district court's order and amended order denying Craig's motion to withdraw his guilty plea and remand for a hearing on the motion. Craig's request for assignment of a different district court judge on remand is denied.
[¶12] Lisa Fair McEvers
Daniel J. Crothers
Jerod E. Tufte
Jon J. Jensen
I concur in the result.
Gerald W. VandeWalle, C.J.
Reference
- Full Case Name
- STATE of North Dakota, Plaintiff and Appellee v. Russell Frank CRAIG, Defendant and Appellant
- Cited By
- 7 cases
- Status
- Published
- Syllabus
- A district court abused its discretion by scheduling a hearing on defendant's motion and then cancelling the hearing without explanation leaving the defendant unable to complete a hearing request under N.D.R.Ct. 3.2(a)(3) on his own. A district court judge's ruling regarding the merits of the case or the law relating to the proceedings does not evidence bias to support reassignment on remand.