City of Grand Forks v. Thong

That the Municipal Court in Grand Forks ND, lacked jurisdiction to proceed with the charge of theft of property after defendant's retained counsel had filed a timely demand for jury trial, and that the ensuing municipal court bench trial was contrary to law, without jurisdiction, clearly erroneous, and amounted to an abuse of discretion by the Trial Court.

2. That the municipal court erred in permitting defendant's counsel who had failed to file a Rule 11.2 motion to withdraw -- and had failed to effectively notify the defendant of his intention to withdraw -- to make an unscheduled appearance before the Court on 28 February 2001, engage with the Judge in an exparte dialogue adverse to his client, and withdraw from further representation on the theft charge.

3. That there was not -- and could not have been -- any factual basis for the charge of failure to appear in Municipal Court on 28 February 2001, since the Clerk charged defendant with violation of a penalty provision under the traffic and motor vehicle code section of the city code, and since no appearance was ever scheduled for, or noticed by, the Court for that date. Defendant was betrayed -- both by the attorney retained to represent him and by the Court process itself. Not only did Clerk and Judge of the Municipal Court falsely charge defendant with the crime of failure to appear, they further colluded to confiscate the bond posted by the defendant in the amount of $301.00, forfeiting the bond because the defendant was not in court on 28 February 2001. The City Attorney, with actual knowledge of the falsity of the charge of failure to appear, went forward with the prosecution, both in Municipal and District Court; and both the defendant's new counsel and the District Court inexcusably failed to ascertain that the charge was based on a false allegation.

4. That based on the incomplete record forwarded by the Municipal Court, and the fact that defendant had filed a timely demand for jury trial, the District Court was clearly erroneous, and was without jurisdiction, in proceeding with the case as an appeal from the municipal court and scheduling the action as a bench trial, rather than to proceed by way of the properly and timely demanded jury trial.

5. That neither of the attorneys who provided representation to Appellant, met the standard of providing effective assistance of counsel.

STATEMENT OF THE CASE

Benjamin Th"ng, a native of Viet-Nam, now a naturalized US Citizen, earned a PhD in Mathematics at State University of New York in 1984. Dr Thong has no criminal record, and had never been previously arrested. During the 2000-2001school year, he was teaching at the University of North Dakota, and residing in Grand Forks(1). On 6 January 2001, Benjamin Thong, who had been talking to an acquaintance outside Super One Foods in Grand Forks, was taken into custody by a store security worker who claimed that Benjamin Thong had taken a package of cooked chicken and put it in a "satchel type bag". Benjamin Thong denied the claim of theft. The police were called and a citizen's arrest complaint signed for theft of property. There was conflicting testimony regarding the brown "satchel type bag" [Tr P 20] in which items were supposedly located, but no such bag was ever turned over to the police, offered in evidence, nor did the investigating officer have any notes or other recall of the bag at trial. Tr p 15-16. A witness who saw Benjamin Thong in the store did not recall that he had any such bag with him. Tr p 99 but a city witness, Steve Iseman, testified that Benjamin Thong had "a brown paper bag" when he was booked at the jail. Tr p 44, ll 14-18.

Following his arrest, Benjamin Thong posted bail for the theft charge in the amount of $301.00 [according to a court bond schedule] through the Correction Center, and was released. The bond receipt directed an appearance in Municipal Court on 09 Jan 2001. See App p 21. Following his release, Benjamin Thong contacted David Dusek, an attorney, whose office he had seen on the route followed by the Grand Forks City Bus(2): Benjamin Thong told David Dusek that he wanted a jury trial, and David Dusek agreed to represent Benjamin Thong for a retainer of $750.00. This retainer was paid to Dave Dusek, in the form of two money orders on 12 January 2001 and acknowledged by Dusek in his testimony before the Court . Tr p 61. The recollection of the Clerk was that David Dusek called her to continue the initial appearance from 9 Jan 2001 to 16 Jan 2001, as permitted by the Court Rules. See Tr P 55. Subsequently, David Dusek called the office of the Clerk of the Municipal Court on 16 Jan 2001, advised the clerk that he was representing Benjamin Thong and orally entered a "Not Guilty" Plea on his behalf. (3) Tr p 55, ll 11-19. The Clerk next sent out a letter dated 16 Jan 2001 to David Dusek, showing a "cc" to "Ben Ong" - with no address indicated on the letter - advising that a hearing was scheduled for "Friday, March 2, 2001" at 9:30 am and that the "request jury by" date was 14 February 2001. See App p 22

On 24 January 2001, David Dusek testified that he talked to Benjamin Thong about the noticed trial date of 02 March, saying that, "we talked about the jury request". [Tr p 64, ll 14-15]. At that point in the testimony, the Court interrupted David Dusek, and there was no followup question by counsel.

On 14 February 2001, David Dusek went to the office of the Clerk of the Municipal Court and signed, in blank, the form utilized by the Municipal Court for demanding a jury trial. See App 23. On the same day - 14 Feb 2001 - Darla McLaren, the Clerk of the Municipal Court dated and signed a letter addressed to the District Court stating, in part:

Honorable District Court Judge

Grand Forks District Court

Grand Forks, North Dakota.

Attached is citation #4098439. Ben Ong has requested a jury trial. Therefore under the North Dakota law, Municipal Court has no jurisdiction and must transfer this case to the District Court.

Dated this 14th day of February, 2001.

/s/ Darla McLaren

Darla McLaren, Clerk of Court

Grand Forks Municipal Court.

cc: Gary Euren

Police Officer

Intoxilyzer Operator

[Emphasis - bold and double underlining - added]. See App p 24

Neither the letter NOR the case file were, in fact forwarded to the District Court pursuant to the timely filed Jury Trial Demand.

On 28 February 2001, David Dusek appeared, without a scheduled appearance, in Municipal Court, and without filing a Rule 11.2 NDROC motion, requested that the Court permit him to withdraw. David Dusek represented that he had sent Benjamin Thong a letter telling him to appear in court on 28 Feb 2001 but the letter was returned to David Dusek since it had been sent to an erroneous address that David Dusek had gotten off the original citation(4). Tr p 66, l 15- p 67 l 03 ; App p 41. David Dusek also claimed to have reported to the Municipal Court that he had sent Benjamin Thong "emails [that] had gone unanswered" [Tr p 66, l 5], but also noted that "because he did not do a return receipt on it", he did not know whether the only email that -supposedly- referenced the 2 March bench trial "court date" [if there had been no jury election] was received by Benjamin Thong [Tr p 63, ll 2-24]. There was no claim, by way of testimony, that Dusek sent Benjamin Thong an email, or any other form of communication except the returned letter - that even mentioned a supposed 28 February "court appearance". There was, apparently no record made of any basis for the withdrawal request, but after David Dusek talked to Judge Eslinger, the Clerk testified that the "Judge granted that [request]". Tr p 51, l 17. At the same time, "The Court [sic] then was directed to forfeit his [Benjamin Thong's] $301 bond and the Judge ordered a failure to appear to be done". Tr p 51, ll 18-19. There was no written or other request presented by David Dusek to void the jury trial demand that he had filed at Defendant's direction on 14 February 2001. Although it does not appear in the Municipal Court record, The Municipal Judge evidently also directed the Clerk on 28 February 2001, to "disregard" the demand for jury trial as signed and dated 14 February 2001. In any event, the theft file was retained in Municipal Court. A complaint, charging Benjamin Thong with failure to appear under City Ordinance 8-1503 (13) [sic] was signed by Darla McLaren, Clerk of the Municipal Court, before the Judge of the Municipal Court on 01 March 2001. Based on the sworn complaint, Judge Eslinger issued a warrant dated 01 March 2001. App P 25.

Benjamin Thong was arrested at his apartment on 27 March 2001, and taken directly to the Municipal Court. Following his appearance on the charges of Failure to Appear and Theft of Property, Benjamin Thong contacted David Dusek, who went to see him at the jail, but refused to take further action on behalf of Benjamin Thong. Tr p 67 ll 13-25. Benjamin Thong subsequently contacted Kevin Spaeth, paid him a retainer of $1000.00, posted a new bond of $2000.00 with the Municipal Court, and was, again, released.

There was a Court trial in Municipal Court on 02 May 2001 before Judge Eslinger in Municipal Court and Benjamin Thong was found Guilty of the charges of theft and failure to appear. Sentence on the theft charge included a fine of $151, and 2 days in jail, suspended for 2 years. Sentence on the Failure to Appear charge included a fine of $101, and 2 days in jail, suspended for 2 years. App 28 and 29

Benjamin Thong, through Kevin Spaeth, appealed the Municipal Court convictions to the District Court, having paid a further retainer of $1500 to Kevin Spaeth. The only appearance in the District Court was for the hearing on 18 September 2001. Following hearing, the District Court entered an oral order, simply affirming the municipal court forms for judgment and sentences, as entered on 02 May See Tr p 107, l 22 - p108 l 13.

This appeal followed by way of a pro se notice of appeal, prepared by Attorney Kevin Spaeth, dated 24 September 2001 and thereafter filed with the Supreme Court.

Law and Argument

Until 14 Feb 2001, the procedure followed in the theft case appears to have been fairly "regular", operating under the relatively informal procedures established by the Grand Forks Municipal Court.

AFTER 14 February 2001, the procedure in this case rapidly and inexplicably collapsed and degenerated into a bizarre, Kafkaesque, nightmare, in which there was not only a wholesale disregard, but a concerted and organized effort to frustrate and circumvent, the requirements of due process for defendant Benjamin Thong.

1. That the Municipal Court in Grand Forks ND, lacked jurisdiction to proceed with the charge of theft of property after defendant's retained counsel had filed a timely demand for jury trial, and that the ensuing municipal court bench trial was contrary to law, without jurisdiction, clearly erroneous, and amounted to an abuse of discretion by the Trial Court.

As cited with approval in Knudsen v. Lyon 58 N.W.2d 845 (N.D. 1953)

American Jurisprudence says:

"Where judicial tribunals have no jurisdiction of the subject matter on which they assume to act, their proceedings are absolutely void in the strictest sense of the term; and a court which is competent to decide on its own jurisdiction in a given case may determine that question at any time in the proceedings of the cause, whenever that fact is made to appear to its satisfaction either before or after judgment. Accordingly, an objection for want of jurisdiction, if it exists, may be raised by answer or at any subsequent stage of the proceedings; in fact, it may be raised for the first time on appeal. A court will recognize want of jurisdiction over the subject matter even if no objection is made. Therefore, whenever a want of jurisdiction is suggested, by the court's examination of the case or otherwise, it is the duty of the court to consider it, for if the court is without jurisdiction, it is powerless to act in the case." 14 Am Jur, Courts, Sec 191, p 385.

Justice Sandstrom's dissent in Roise v. Kurtz 1998 ND 228, 587 N.W.2d 573 at Paragraph 18, cites language to the effect that:

The rule that a reviewing court will address only issues raised in the trial court is not absolute. It is a limitation on the parties to an appeal and not on the reviewing court, and there are numerous situations in which a reviewing court may reach an issue notwithstanding the fact of its being presented for the first time on appeal. Among the most important of these classes of issues are those going to the subject-matter jurisdiction of the court below, or of the reviewing court. In addition, an issue may be treated by an appellate court, although not raised below, where --

-- it is one of sufficient public concern.

-- it is an issue of judicial administration that seriously affects the fairness, integrity, or reputation of public judicial proceedings.

-- it is plainly decisive of the entire controversy on the merits and there was no possible advantage to be had by either party in not obtaining a ruling on it in the trial court.

-- it is one of law only.

-- it affects the right to maintain the action.

-- it involves plain error.

The present appeal involves such a case.

As recited in City of Bismarck v. Fettig, 1999 ND 193, 601 N.W.2d 247

7. The North Dakota Constitution provides: "The right of trial by jury shall be secured to all, and remain inviolate." Art. I, § 13. The North Dakota Constitution may provide more protection to its citizens than the Federal Constitution. Altevogt, 353 N.W.2d at 766.

The present statutory process for obtaining a jury trial in municipal court is set forth at NDCC 40-18-15.1. Captioned: Transfer to district court - Expenses of prosecution - Division of funds and expenses between city, county, and state, the relevant portion of the statute provides that:

A matter may be transferred to district court for trial only if within twenty-eight days after arraignment the defendant has requested in writing to transfer the case to district court and to exercise the defendant's right to a jury trial.

Fettig, Id, expressly upheld the requirement of N.D.C.C. 40-18-15.1 that put the burden on the defendant to demand a jury trial, in writing, within 28 days of arraignment in order to exercise the defendant's right to a trial by jury. Inherent however in the Fettig decision is that when a defendant has timely filed a request for Jury trial, s/he will then be accorded his "inviolate" right under the North Dakota Constitution to this form of trial. Although the focus has shifted from waiver to election, the fundamental importance of the jury trial -- and the ability to raise the issue on appeal even where there has been an "implied waiver" -- as set out in State v. Kranz 353 N.W.2d 748 (N. D. 1984) is still relevant:

The Sixth Amendment to the United States Constitution, applicable to the States through the Fourteenth Amendment, requires that defendants accused of serious crimes be afforded the right to a trial by jury. Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 1447, 20 L.Ed.2d 491 (1968).1 The purpose of the jury trial is to prevent governmental oppression and arbitrary law enforcement. Brown v. Louisiana, 447 U.S. 323, 330, 100 S.Ct. 2214, 2221, 65 L.Ed.2d 159 (1980); Williams v. Florida, 399 U.S. 78, 87, 100, 90 S. Ct. 1893, 1898-99, 1905, 26 L.Ed.2d 446 (1970); Duncan v. Louisiana, supra, 391 U.S. at 155-56, 88 S. Ct. at 1451. The right to be tried by one's peers is fundamental to the American system of criminal justice; "an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge." Duncan, supra, 391 U.S. at 149, 156, 88 S. Ct. at 1447, 1451.

Article I, Section 13, of the Constitution of the State of North Dakota reads, in part: "The right of trial by jury shall be secured to all, and remain inviolate."

The great importance and public interest in jury trials as the normal and preferred mode of fact-finding in criminal cases precludes a defendant from waiving the right to trial by jury without the express, intelligent consent of the defendant and consent of the prosecutor and judge.2 Adams v. United States ex rel. McCann, supra; Patton v. United States, supra.

In Kortgaard, supra, the defendant, his attorneys, and the state's attorney each affirmatively expressed in open court their satisfaction with the trial court's order excusing a seriously ill juror and directing that the trial continue with the remaining eleven jurors. The defendant was convicted and thereafter petitioned the Supreme Court for a writ of habeas corpus, contending that a jury trial in a criminal case could not be waived under our State constitutional provision securing the right to trial by jury. Relying primarily on the Supreme Court's decision in Patton, supra, Chief Justice Burke, speaking for the Court in Kortgaard, said:

"It is not necessary that the right of trial by jury should be more than a guaranty to the accused, for, so long as it is guaranteed, it remains inviolate. No power can take it away from him. He is not required to demand it. He is entitled to it when he remains mute; but it may be to his advantage to waive it and plead guilty . . . . His doing so does not establish a dangerous precedent . . . , for his waiver affects only himself and it is not a precedent for any other case. It is not even a precedent for himself in case of another trial, for in every trial he is entitled to a constitutional jury unless he affirmatively waives it with the approval of the state's attorney and the sanction of the court." Kortgaard, supra, 267 N.W. at 444. [Emphasis added.]

****

Considering the facts of the instant case, we agree with Kranz that he was denied his right to a jury trial. In our view the waiver of such an "inviolate" right, "essential for preventing miscarriages of justice and for assuring that fair trials are provided for all defendants," Duncan, supra, 391 U.S. at 158, 88 S.Ct. at 1452, must be a matter of certainty and not implication. Accordingly, we find that the record does not reveal that Kranz expressly and intelligently consented to the waiver of his right to a trial by jury.

***

Trial by jury is the normal and, with occasional exceptions, the preferable mode of disposing of issues of fact in criminal cases above the grade of petty offenses. In such cases the value and appropriateness of jury trial have been established by long experience, and are not now to be denied. Not only must the right of the accused to a trial by a constitutional jury be jealously preserved, but the maintenance of the jury as a fact-finding body in criminal cases is of such importance and has such a place in our traditions, that, before any waiver can become effective, the consent of government counsel and the sanction of the court must be had, in addition to the express and intelligent consent of the defendant. And the duty of the trial court in that regard is not to be discharged as a mere matter of rote, but with sound and advised discretion, with an eye to avoid unreasonable or undue departures from that mode of trial or from any of the essential elements thereof, and with a caution increasing in degree as the offenses dealt with increase in gravity." [Emphasis added.]

***

We conclude that the trial court's failure to obtain an express jury trial waiver from Kranz constituted an error of constitutional dimension which may be reviewed on appeal even though not objected to at the time of trial. See State v. Schneider, 270 N.W.2d 787, 792 (N.D. 1978); Rule 52, N.D.R.Crim.P. Upon review of the entire record and the probable effect of the error in light of all the evidence, we cannot declare a belief that the error was harmless beyond a reasonable doubt. In trial to the court there was presented conflicting testimony concerning whether or not Kranz threatened the alleged victim with imminent serious bodily injury. The credibility of witnesses and weight to be given their testimony is for the trier of fact, which in this instance should have been a jury. Therefore the judgment of the trial court cannot stand and must be reversed.

In this case, the defendant, through counsel, filed a written demand for Jury Trial - and transfer to the district court, on 14 Feb 2001 a date within the 28 day period after defendant was arraigned, as calculated by the Clerk of the Municipal Court. See App 22, 23 & 24. Although the demand was timely filed with the Clerk, and although the Clerk prepared the transmittal letter to the district court, expressly noting that:

Attached is citation #4098439. Ben Ong(5) has requested a jury trial. Therefore under the North Dakota law, Municipal Court has no jurisdiction and must transfer this case to the District Court.

[Emphasis added]. The Clerk of the Municipal Court, inexplicably, failed to then perform her ministerial duty of sending the file, with the transmittal letter, to the District Court. Two weeks later, David Dusek spontaneously appeared in Municipal Court asking to withdraw from the case. During her testimony in District Court, the Clerk of the Municipal Court offers the self serving explanation for not forwarding the file as being that:

6 THE WITNESS: The next contact I had was on

7 February 14. Attorney David Dusek came into our office.

8 It was the last day to sign for a jury request so he did

9 sign it on that day. He asked that the request be held

10 because he had not be able to contact his client as of yet.

11 He indicated that he believed he was retained at that time

12 because there was a money order taped to his door at his

13 office and he was still trying to correspond with the

14 Defendant by e-mail with no success.

15 Q Okay. So at this point the Defendant had never appeared in

16 court?

17 A Correct.

18 Q And the Attorney David Dusek came in, requested the jury

19 trial. So did you just wait at that point? Did you set it

20 on the calendar for something? How do you handle that?

21 A I believe I would have talked to the city prosecutor

22 indicating that Mr. Dusek asked that it be held and I would

23 just leave it in the prosecutor's hands to correspond with

24 the attorney.

This testimony is, of course, inconsistent with David Dusek's acknowledgment during HIS testimony that he had been retained on 12 January 2001,[Tr p 61, l 18, and had talked to Benjamin Thong on 24 January 2001 and that "we talked about the jury request". Tr p 63, ll 7-10. Presumably - logically - if David Dusek acknowledged that he "talked about the jury request" with his client, and David Dusek thereafter filed a jury request, it may be assumed that such an act would have been done at his client's request and direction.

Even if the above testimony by the clerk is accurate, it was impermissible, at best, for the Clerk without any authority whatsoever - to fail to process the jury trial demand and transmit the case to the District Court. Significantly, in transmitting the record to the District Court for appeal after the eventual trial in Municipal Court, Darla McLaren certified the record but omitted the timely demand for a jury trial filed on 14 Feb 2001 as well as the transmittal document that she herself had prepared on that date: it is just not there - See App p 16. On 28 February 2001, during David Dusek's unscheduled appearance, it would be expected-or at least hoped-that the Municipal Judge looked at the file - and would have seen the jury demand, unless the clerk concealed it from him as well. At that point, the obligation of the Court would have been to act to correct the failure of the clerk to perform the ministerial act of sending the file to the District Court, as cited in Burgener v. Bushaw 545 N.W.2d 163 (N.D. 1996) where:

Because the court clerk failed to perform the ministerial act of entering judgment, the court should have entered judgment nunc pro tunc.

citing Oates v. Oates, 866 F.2d 203, 208 (6th Cir.), cert. denied, 490 U.S. 1109, 109 S. Ct. 3163, 104 L. Ed. 2d 1025 (1989).

It is difficult to contemplate an action that would more clearly define a "ministerial act" than the process to be followed by the Clerk of the Municipal Court upon the timely filing of a notice of demand for jury trial: the statute simply does not contemplate or provide for the Clerk or the Court - to exercise any discretion whatsoever to "decide" how to deal with such a demand: the clear, unequivocal ministered duty is to transfer the case to the District Court for Jury Trial.

It is submitted that the act of filing the demand for jury trial operated to divest the Municipal Court of Grand Forks of any further jurisdiction to act in the case of City v Ben Thong, except to complete the ministerial act of transmitting the - complete - file to the District Court for a jury trial on the charge of theft of property.

Amazingly, the Municipal Court, on 28 February 2001 - two full weeks after the filing of a timely demand for jury trial -- acting in the absence of jurisdiction, permitted David Dusek to appear and - to the extreme detriment and prejudice of the defendant - withdraw from further representation, and further decided to disregard the jury demand, forfeit the bond posted by Benjamin Thong, and issue a bench warrant on a charge of failure to appear all in violation and apparent disregard of the ND Rules of Court, the procedural rights of the defendant, and the provisions of the Rules for Lawyer Discipline, and the code of Judicial conduct.

It is evident from the record that there was no Court appearance scheduled in this case for 28 February 2001. In a letter that was sent by David Dusek to Benjamin Thong but was returned since David Dusek did not have a correct address - David Dusek falsely represented that

You have an appearance scheduled for Grand Forks Municipal Court on February 28, 2001, at 8:30 a.m., at the Grand Forks Police Department for the above entitled matter.

See App 40, 41. .

In fact, the only appearances that were ever scheduled in the Municipal Court were:

1. The initial appearance, set for 09 Jan 2001, continued by David Dusek to 16 January 2001. See Tr p 56, l 15 thru p 57 - l 10.

2. The appearance for 16 January 2001, satisfied by the call from David Dusek to the Clerk advising that he was representing Benjamin Thong and that a "not guilty" plea was to be entered on his behalf. See Tr p 60, ll 7-9.

3. The court trial date of 02 March 2001 which would have been vacated by the filing of the timely demand for jury trial that David Dusek testified he had discussed with Benjamin Thong. See Tr P 64, ll 12- 15.

Even the Clerk, despite her other actions and errors in regard to this case, did not testify that there was any scheduled appearance in this case for 28 February 2001, characterizing the process [after her testimony about the jury trial demand notice] as:

2. On February 28th Attorney Dusek appeared in our court

3. asking to talk with Judge Eslinger regarding the case.

Tr p 51. David Dusek, in short, simply "made up" an imaginary court appearance for his letter at App 40. There is nothing to indicate that the Judge, on 28 February 2001 was even advised that there had been no actual notice given to Benjamin Thong of the bogus appearance for 28 Feb 2001 2001. Although David Dusek's dialogue with the Judge on 28 February 2001 does not appear of record, the result was that the Judge permitted David Dusek to withdraw as counsel, forfeited Benjamin Thong bond in the amount of $301, issued a bench warrant on a new charge of "failure to appear", and decided to disregard the timely demand for jury trial. Judging from the results of the discussion, it may be presumed that David Dusek did not communicate anything to the Judge that would have been favorable to the client who had retained him with $750 and that he had a -- legal and ethical duty to represent.

Practice in Municipal Court, as in all other courts, is governed by the requirements of the ND Rules of Court, pursuant to Rule 1.1, providing that:

Rule 1.1. Scope.

Consistent with subject matter jurisdiction, these rules apply to all trial courts of this state in all civil and criminal cases, and to all appellate courts of this state unless a specific appellate rule, Supreme Court administrative rule, or Supreme Court order applies.

The procedure for withdrawing as an attorney for a party is governed and controlled by Rule 11.2, NDROC, providing that:

Rule 11.2. Withdrawal of attorneys.

(a) Notice of withdrawal. An attorney's appearance for a party may only be withdrawn upon leave of court. Reasonable notice of the motion for leave to withdraw must be given by personal service, by registered or certified mail, or via a third-party commercial carrier providing a traceable delivery, directed to the party at the party's last known business or residence address.

(b) Motion to withdraw. The motion for leave to withdraw must be in writing and, unless another attorney is substituted, must state the last known address of the party represented.

It would appear from the record of this proceeding that David Dusek failed to comply with any of the requirements of Rule 11.2: there was no "notice given by personal service, by registered or certified mail, or via a third-party commercial carrier providing a traceable delivery"; and there was no notice OR motion "in writing". Significantly, all of these deficiencies about the attempt of David Dusek to withdraw would or should have been immediately obvious to the Judge of the Municipal Court: clearly there was nothing in writing, let alone any adequate notice. Action by the Court on 28 February 2001 was taken without jurisdiction, in disregard of the Court Rules, was improper, prejudicial, and inappropriate, and clearly amounted to an abuse of the Court's discretion. See: Canon 3, ND Code of Judicial Conduct. See also: Disciplinary Bd. of Supreme Court v. Robb, 1999 ND 161, 598 N.W.2d 808 (1999) [Attorney's attempt to withdraw from representation of client in criminal matter by making an ex parte communication with the court warranted 60-day suspension from the practice of law].

Beyond the question of jurisdiction, above, this issue addresses what is, in essence, a sufficiency of the evidence question. The case of City of Jamestown v. Neumiller 2000 ND 11, 604 N.W.2d 441 sets the standard of review on such a case as:

5. We review a challenge to the sufficiency of the evidence by drawing all inferences in favor of the verdict. State v. Lusby, 1998 ND 19, P5, 574 N.W.2d 805. Reversal is warranted only if, after viewing the evidence and all reasonable evidentiary inferences in the light most favorable to the verdict, no rational factfinder could have found the defendant guilty beyond a reasonable doubt. Id. ; State v. Johnson, 425 N.W.2d 903, 906 (N.D. 1988) (indicating "in a criminal trial to the court without a jury, our standard of review is the same as if the case had been tried to a jury").

On 01 March 2001, Henry Eslinger, Judge of the Municipal, Court issued a warrant for the arrest of Benjamin Thong on a charge of failure to appear, based upon the sworn statement of Darla McLaren, Clerk of the Court, that:

Ben Ong [sic] did, on or about the 28th day of February 2001, ... commit the crime and offense of Failure to Appear, committed as follows, to wit: That at said time and place the said Ben Ong [sic] did then and there wilfully and unlawfully fail to appear in Grand Forks Municipal Court on the 28th day of February 2001, in accordance with his promise to appear on said day on the charge of Theft, in violation of Section 8-1503 (13) [sic] of the Grand Forks City Code.

App 25.

As a threshold issue, the entire text of City Code Section 8-1503 (13) the actual ordinance that Benjamin Thong was alleged to have violated in the sworn statement of Darla McLaren and was convicted of in both the Municipal and District Court reads as follows:

(13) Any person violating the provisions of subsections five (5) and/or six (6) of section 8-1203 pertaining to snowmobiles, upon conviction, shall be subject to a fine of not less than one hundred thirty dollars ($130.00) nor more than five hundred dollars ($500.00), for each violation.

App 39.

It does not appear that Darla McLaren had any basis for charging the defendant with an offense relating to the operation of a snowmobile so we will have to engage in the investigation // speculation that neither Judge Eslinger, nor Judge Medd, nor Attorney Kevin Spaeth, nor Prosecutor Kristi Pettit appears to have engaged in: What could Darla McLaren have been trying to do? The next paragraph, Section 8-1503 (14) reads that:

(14) Upon issuance of a summons, citation, or notice to appear in municipal court by an officer of the City of Grand Forks, the person to whom such summons, citation, or notice is issued may, at the discretion of the officer, be released from custody upon receipt from such person a written promise to appear at the time and place mentioned in the summons, citation, or notice. Any person refusing to give such written promise to appear shall be taken into custody and held for appearance before the judge of the municipal court at the next scheduled session of said court. Any person willfully violating the written promise to appear shall be subject to the penalties prescribed as follows, regardless of the disposition of the charge upon which the person originally was halted:

[Penalty provisions omitted]. App 39.

Now subsection 14 would, at first glance, appear to be what it was that Darla McLaren intended to [but did not] allege as the criminal act. In fact, however, Section 8-1503 is a subsection of Chapter VIII of the Grand Forks City Code, a chapter entitled Traffic and Motor Vehicles. Article 15 of Chapter VIII addresses Penalties, Fees and Fines for Traffic and Motor Vehicle Offenses only. Subsection 8-1503, Penalties for specified offenses. Addresses sanctions for traffic and motor vehicle offenses. The "failure to appear" language is applicable only to a case involving the citation issued by an officer for a Chapter VIII, motor vehicle or traffic violation. As noted above, Benjamin Thong does not own a motor vehicle so it is difficult to comprehend why Darla McLaren attempted to charge him with a violation of any provision contained in the Chapter on Traffic and Motor Vehicles. See App 33 - 39: The Index for the Grand Forks City Code, and entire text of Chapter VIII, Article 15, section 8-1503 [1- 14], all of which is located at:

http://www.grandforksgov.com/Government/citycode.htm

The enquiry - before it becomes pure speculation - about Darla McLaren's intention ends here: if not the operation of a snowmobile, or the failure to appear after the issuance of a citation for a traffic or motor vehicle offense then what? Is the City of Grand Forks so desperate for the income from bond forfeitures that they have decided to make up charges? Perhaps the state should audit the books. Who can tell. What is significant is that -- Evidently no one involved in this case even attempted to find out, let alone to "set the record straight".

Of particular note are the recitation of the words "in accordance with his promise to appear" in Darla McLaren's statement made under oath, and therefore under penalty of perjury. App 25. From review of the entire record, it does not appear that Benjamin Thong ever, to anyone, made a "promise to appear" on any day, let alone on 28 February 2001. The bond receipt gave a notice of an appearance for 09 Jan 2001 but that could not be construed as a promise. The telephone call by Benjamin Thong's attorney, David Dusek, noted the attorney's appearance and the entry of a plea of not guilty as permitted by the Rules of the Municipal Court. The first actual physical appearance was set for 02 March 2001 for trial if the defendant had not made a timely request for a jury trial by 14 Feb 2001, and was obviated when such a timely request was, in fact, filed with the Clerk. So: what is the source of the - supposed "promise to appear", in Municipal Court, on 28 February 2001 at some unstated time? Far more significant is the matter of why it was that no one: not the prosecutor, not the defendant's attorney; not Judge Eslinger, and not Judge Medd ever asked the questions to determine that the charge itself was a fraud and a lie? Perhaps Court Officials are more readily listened to than foreign born citizens who speak imperfect English i.e. "strangers".

Darla McLaren, under oath, executed her complaint before Judge Eslinger, who thereupon issued a warrant for the arrest of Benjamin Thong.

With regard to the issuance of a warrant, N.D.R.Crim.P., Rule 4. Arrest warrant or summons upon complaint, provides:

If it appears to the magistrate from the complaint, and from any affidavit filed with the complaint, that there is probable cause to believe that a criminal offense has been committed by the defendant, a warrant for the arrest of the defendant upon the complaint shall issue to any officer authorized by law to execute it. [Except as provided in subdivision (a)(2) of this rule.] The finding of probable cause shall be based upon evidence, which may be hearsay in whole or in part, provided there is a substantial basis for believing the source of the hearsay to be credible and for believing that there is a factual basis for the information furnished.

Judge Eslinger, by signing the warrant [App 25] found that there was "probable cause" for its issuance. Probable Cause? Probable Cause?? For what: driving a snowmobile? violation of a traffic offense? For violating a non-existent promise to appear? What in the world were they doing; what were the Judge and the Clerk thinking; in the Grand Forks Municipal Court on the morning of 28 February 2001?

On 18 September 2001, when the matter finally came before Judge Medd on appeal, he made initial enquiries about the inadequacy of the record, and the charging documents, starting with:

21 THE COURT: Please be seated. This is an

22 appeal from the city conviction. I was looking at the file

23 last evening and trying to, I guess, decipher it a little

24 bit. There is no criminal Information filed, it's being

25 charged on, just on a citation form. The charge is theft

1 of property, shoplifting. There is a -- the conviction, it

2 just says found guilty. It doesn't say found guilty of

3 what and there are two, two docket sheets. Defendant found

4 guilty, it shows a fine and then there's another found

5 guilty and another fine so it doesn't say found guilty of

6 what. I don't quite understand it.

7 MS. PETIT: Your Honor, there are two charges,

8 actually. The first one is the underlying theft charge,

9 the second one is a failure to appear and so there were two

10 docket entries for each separate charge.

11 THE COURT: I don't see there's any charge here

12 for failure to appear. Is there a Complaint?

13 MS. PETIT: As far as I knew it had all been

14 sent over. We have a copy of the citation and the docket

15 sheet.

16 THE COURT: I did mention to the City before

17 that the citations are for traffic violations and if

18 there's going to be a criminal charge there needs to be a

19 charging document. I don't even think this is an official

20 charging document.

And continuing thereafter: Tr pp 05-08. Unfortunately for the Judicial Process -- and the defendant in this case -- Judge Medd terminated his enquiry before he ascertained critical facts regarding the case. Note that the District Court docket sheet for this case , at entries 8 and 9, show that the two information sheets for theft and for failure to appear were actually filed on 19 September 2001 AFTER the District Court trial. The Information documents are at App 9 and 10, showing the filing stamp of 19 September by the District Court.

On 8 May 2001, Darla McLaren, as Clerk of the Municipal Court certified the two records for the case, on appeal to the District Court. See App xxx. Specifically, the attestation was that

I do hereby certify that the foregoing is a true, full and correct copy of the record of all proceedings in said cause as the same may appear on my docket, and that the attached papers, embracing the Summons-Complaint, copy of citation, written notice of appeal, are all the files, exhibits and papers in said action.

/s/ Darla McLaren

Darla McLaren, Clerk of Court

In the record relating to Citation 4098439, relating to the Theft charge, the docket sheet lists six entries, with two noteworthy facts:

First: that there is no indication of any scheduled appearance for 28 February 2001 the entry on 16 January for the Not Guilty Plea notes the next appearance as "3-02-01 at 9:30 a.m.".

Second: that the certification of the record does NOT include the demand for Jury Trial, filed by David Dusek on behalf of his client on 14 Feb 2001 with the Clerk of the Municipal Court. It is just not there at all, and was NOT included in the record that was actually sent to the District Court, now filed with the Supreme Court. App 13. Where is the discretionary authority of the Clerk of the municipal court to decide what documents will be certified as the record of the case?

Evidently certifying the record as a "true, full and correct copy" and attesting that what is being certified constitutes, "all the files, exhibits and papers in said action" must have a very specialized meaning for Darla McLaren.

Certainly, it would have been of benefit to Counsel, Judge Medd and, of course, the Defendant had the Clerk of the Municipal Court complied with her statutory duty -- and her oath -- to transmit the full record to the District Court(6). Judge Medd: generally careful, precise and thorough, could have considered the question of the jurisdiction of the district court to proceed with a bench trial in light of the fact that there had been a timely demand filed by defendant to exercise his constitutional right to a trial by jury, after discussion with his then attorney. The failure to provide this critical portion of the record operated to blind side both Judge Medd and Justice herself.

5. That neither of the attorneys who provided representation to Appellant, met the standard of providing effective assistance of counsel.

Notwithstanding what was done by the Municipal Judge, the Municipal Clerk and the City Prosecutor, it is also evident that the defendant lacked the effective assistance of counsel in this case. Woehlhoff v. State, 487 N.W.2d 16 (N.D. 1992) addresses the test for ineffective assistance claims in that:

There is a two-part test for allegedly ineffective assistance of counsel. First, a defendant must show that counsel's representation fell below an objective standard of reasonableness. Second, the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A defendant must demonstrate both deficient representation by counsel and prejudice caused by the deficient representation.

"Ineffective assistance" claims are generally disfavored and in ordinary circumstances, difficult to establish:

... unless the record affirmatively shows ineffectiveness of constitutional dimensions, defendant must show some form of proof, and without a record scrutinizing the reasons underlying counsel's conduct, adjudging that conduct subpar is virtually impossible. State v. Touche, 549 N.W.2d 193 (N.D. 1996).

The errors in this case, however, range far beyond some hair splitting issue of whether additional investigation should have been performed; whether a witness should - or should not - have been called, whether the defendant should testify, or other "trial strategy"kinds of questions. What happened in this case, as detailed above, and in the transcript of the proceedings, was nothing less than a "legal meltdown" of the judicial process, in which the lawyers played a significant role: how can David Dusek's false claim that Benjamin Thong was supposed to appear on 28 February and his ex parte communication with the judge that resulted in an additional charge; a forfeiture of the bond; and the issuance of an arrest warrant be considered by any rational observer as a part of any conceivable "trial strategy". The failure of Kevin Spaeth to walk across the street to look at the Municipal Court file and find the - timely - jury trial demand in the Clerk's office, as well as his failure to find out that the failure to appear charge was false and that the statute itself was improperly cited for the charge, cannot be viewed as other than "ineffectiveness of constitutional dimensions". The questions that should have been asked of Darla McLaren and Dave Dusek to extract the truth and were not... Trial Strategy? NOT !

Had Benjamin Thong had effective counsel, he would have had a jury trial on the charge of theft, in which he could have addressed the myriad flaws and problems with the City's case AND the charge of "failure to appear" would have either never been filed or would have been dismissed, as a false pleading. The defendant in this case was irrevocably damaged by inept and ineffective counsel and, with regard to David Dusek, by malicious counsel.

SUMMARY OF ARGUMENT

That the procedure applied in prosecuting the defendant: by two Courts, a Municipal Court Clerk who misrepresented facts and falsified the record, and the City Attorney charged with fairly administering justice -- as compounded by ineffective assistance of counsel from each of his retained counsel resulted in a catastrophic miscarriage of justice that completely disregarded the defendant's procedural and substantive due process rights as guaranteed under the Constitutions of both North Dakota and the United States.

Such a wholesale meltdown and disregard of the requirements of due process and constitutional protections cannot be permitted to stand.

CLAIM FOR RELIEF

1. That the Court reverse the conviction for Failure to Appear, and remand the matter for dismissal of the charge by the Trial Court.

2. That the Court reverse the conviction for Theft of Property, and remand the matter for trial by jury in the district court, or dismissal by the trial court.

3. That the Court vacate the Municipal Court's forfeiture of Benjamin Thong's bond for his supposed failure to appear on 28 Feb 2001, and order that the bond amount of $301 be refunded to him forthwith.

4. That in the alternative, and upon a determination that there is no adequate alternative remedy, the Court exercise its discretionary authority to issue a supervisory writ to the Municipal Court under N.D. Const. art. VI, § 2, and N.D.C.C. § 27-02-04 to address and correct the extraordinary errors presented by this case, and to prevent further error and injustice from damaging either the legal system or those in a similar position to that of the defendant herein.

4. For such other and further relief as is deemed fitting, proper and appropriate based on the facts and circumstance of the case.

Respectfully Submitted this 20 December 2001

____
Henry H. Howe, NDID 03090
Attorney at Law
421 DeMers Avenue
Grand Forks ND 58201
701 772-4225
Attorney for the Appellant, Benjamin Th"ng

1. He now teaches at the University of Minnesota in Minneapolis.

2. Dr Thong does not own a car, and either walks or utilizes public transportation.

3. It is a permitted procedure in the Grand Forks Municipal Court for an attorney to orally contact the clerk to enter a not guilty plea, without a personal appearance or an appearance by the Client. If there is a bench trial in the Grand Forks Municipal Court, it often happens that neither the attorney nor the client appears in Court before the actual day of the trial.

4. The address on the citation, written down by the police officer who was called to Super One Foods, was recorded by the officer as 201 N 21st St, Grand Forks. In fact the correct address at that time was: 102 No 21st St, Grand Forks .

5. There was also some representation by the Clerk that Benjamin Thong had given a "false name" an issue that is referenced in the transcript of the hearing. The spelling on the citation was taken by the police officer from the form prepared by the security worker at Super One Foods. Thong is a Vietnamese name, which, properly written, contains two accent marks over the O, in the form of Th"ng, Correctly pronounced, the O is greatly emphasized and could he heard by the casual listener as th"ng I will attempt to pronounce this name correctly during argument in the Court.

6. . Darla McLaren's ability to selectively define the record was evident, also, when present counsel for Benjamin Thong attempted to obtain in a complete copy of the Municipal Court file directly, for the purpose of comparing it with what had actually been sent to the District Court. There was a request that file notes made by the Clerk of the Court for her testimony in the District Court, that were actually in the case file, and had been prepared on City time so that she could testify about her role as the Clerk of the Court for that case were declared by Darla McLaren to be "non-public" and were not provided. Perhaps she also regards the Demand for Jury Trial as a "non-public" document. See App p 15. .

City of Grand Forks,				)
				)
	Plaintiff Appellee,			)
				)	NDSC Case No 20010246
	vs.	)
				)	Dist Ct Case No 01-K-01404
Benjamin Th"ng	)
	Defendant Appellant.		)

Henry H. Howe NDID 03090
Attorney at Law
421 DeMers Avenue
Grand Forks ND 58201
701 772 4225
Attorney for Defendant Appellant