MINUTES OF MEETING
Joint Committee of the Judicial Council
and the State Bar Association
for the Adoption of Rules of Criminal Procedure
July 10, 1969
The Joint Committee of the Judicial Council and the State Bar Association for the Adoption of Rules of Criminal Procedure met at 9:15 a.m., July 10, 1969, in the hearing room of the Supreme Court.
Supreme Court Judge Ralph Erickstad, Chairman;
District Judge Eugene A. Burdick;
District Judge Roy A. Ilvedson;
District Judge Norbert J. Muggli;
County Judge Kirk Smith;
First Assistant Attorney General Paul M. Sand;
Mr. John A. Graham.
Retired Supreme Court Judge James Morris;
Former Supreme Court Judge William S. Murray;
Mr. Gerald Glaser;
Mr. John Shaft;
Mr. Roger Persinger;
Mr. Robert L. Vogel.
Also present was Mrs. Rebecca Quanrud, secretary.
The chairman welcomed those present.
Arrangements were made to create a coffee fund.
The secretary distributed new copies of the first page of the minutes of May 15, made necessary by the omission of a line of the text of Rule 32(c)(2), and read a list of corrections, as follows: (1) p. 2, line 3 - revoking, not invoking; (2) p. 5, paragraph 3 line 11 -- insert the word not after the word does; (3) p. 5, paragraph 3, line 12 -- grade, not grate, (4) p. 11, line 3 of text of Rule 43 - stage, not state; (5) p. 20, halfway down page - insert the word read after Judge Smith's name.
Judge Smith moved that the minutes of the meeting of May 15-16 be approved as corrected. Mr. Graham seconded the motion. The motion carried.
The chairman called on Judge Ilvedson for his reports on Rule 32(f), regarding revocation of probation, and on the reason for Rule 43 not permitting sentencing in absentia. Judge Ilvedson asked that these reports be deferred, and it was so agreed.
The chairman called on Judge Smith for a report on his and Mr. Glaser's work on the question of whether North Dakota should adopt a Rule 40 [Commitment to Another District; Removal] or whether Rule 5 [Proceedings Before the Magistrate] should be amended to cover that field. Judge Smith read letters from Mr. Glaser and Mr. John Shaft, as follows:
[Letter of Mr. Glaser to Judge Smith and Mr. Shaft dated May 20, 1969 - heading omitted]
I decided to explore the above matter further while the subject matter was still fresh in my mind. Before attempting to draft a proposed rule, I thought it would be best to get your thoughts on what the procedure should be.
Our present statutes provide that if a warrant has been issued, the accused is taken to the issuing county (29-05-11 and 29-05-15) except that [if] it is a gross misdemeanor he is taken before a local magistrate (29-05-12). The reason for this particular distinction escapes me at the moment but perhaps one of you may know what the philosophy is.
If arrest is made without a warrant, (whether felony or misdemeanor) the accused is taken before a local magistrate (29-06-25). None of these statutes contemplate warrants issued by municipal judges inasmuch as they historically have not been considered crimes.
If a warrant is issued in a county other than where the offense occurred, 29-05-17 requires that the accused be taken before the magistrate in the county where the offense occurred, apparently without regard to the nature of the offense.
Thus, there are four situations in which the defendant is taken to the county where the crime was committed and three situations in which he is taken before a local magistrate. This seems to me to be unduly complicated and it also seems to me that the distinctions made are not completely consistent.
Rule 5(a) deals with this subject but not completely and should cover all of the situations. When so drawn, there would be no need for a rule 40. Also, our tentative rules contemplate that they would include municipal warrants so we must keep this situation in mind.
My personal thought is that we should distinguish between felonies and misdemeanors, permitting the misdemeanor case to be taken before a local magistrate and the felony case to be taken before the magistrate in the county where the crime was committed. We might also make an exception in the case of an arrest without a warrant for a felony. Perhaps in this case also the person should be taken before a local magistrate for the purpose of being admitted to bail.
If you would give me your thoughts on the matter, I will undertake preparing a rule which, hopefully, will cover all of these situations.
[Letter of Mr. Shaft to Judge Smith and Mr. Glaser dated July 9, 1969 - heading omitted]
I have finally had a change to go over Gerry's letter of May 20, along with the statutes pertaining to this procedure, the Federal Rules, and our proposed Rule 5 and our proposed Rule 40. My conclusion on this matter is that these procedures are so confusing because of the variations based on whether or not there is or is not a warrant, whether or not it is a felony or a misdemeanor, where the alleged crime took place, where the warrant was issued, etc., that something should be done to consolidate it all and we believe that Gerry's suggestion of forgetting Rule 40 and putting it in Rule 5(a) has considerable merit.
We would also agree with Gerry that there should be a distinction between felonies and misdemeanors and it would be my suggestion that misdemeanor cases be taken before a local magistrate whether or not there is a warrant issued and regardless of where the alleged misdemeanor took place and that in felony cases the defendant be taken before the magistrate that either issued the warrant or the magistrate of the county where the crime was committed. Necessary provisions should also be made to provide for a substitute magistrate when the other one is not available.
We also feel that, insofar as possible, municipal ordinance procedures should be included within the provisions.
Judge Erickstad read from Fournier v. Roed, 161 N.W.2d 458 (N.D. 1968).
Judge Smith said he thought Rule 40 should be incorporated in Rule 5.
Judge Smith said he would suggest that every time we think about a rule we should be most concerned with the effect in the case rather than in harmonizing language, that we should search for the reason for the rule, that the basic idea is fairness to the individual.
Judge Smith read N.D.C.C. § 29-05-17, Requirements of warrant for accused from other county--Complaint to accompany.
Judge Murray arrived at 9:55.
Judge Burdick said we should establish policy that when any arrest is made outside of the county in which the offense is triable, the defendant may request that he be taken to the county where the office is triable.
Judge Erickstad suggested that the writer research the development of the law in this state and the various states. Are present county line restrictions necessary in this day?
Mr. Sand said that idea appeals to him.
There followed a discussion of the problem of where to take an arrested person after his arrest.
Judge Muggli asked: In continuing offenses, are we confusing things by talking about the county where the offense is triable?
Judge Smith said we should try to keep it simple.
Judge Smith read Rule 5(a) as adopted [Proceedings Before the Magistrate, Appearance Before the Magistrate.] Discussion followed.
The chairman said he would like to have Judge Smith, Mr. Shaft, and Mr. Glaser research what is being done in this field in other states and make a report.
Judge Burdick suggested inclusion of the following in Rule 5(a)
A person arrested without a warrant shall be presented before a magistrate or the county in which he is arrested, unless the person arrested demands that he be taken before a magistrate in the county in which the offense was allegedly committed, if different.
Mr. Sand asked: Must he be taken before a magistrate in the county in which he is arrested?
Judge Erickstad discussed the problems raised in Fournier, supra.
It was agreed that the question is one of policy.
There followed an interval of discussion of Judge Burdick's new boat, terminated by Judge Burdick's statement that he would like to have the minutes show that, subject to the usual assumption of risk, the committee and staff are invited to come to Williston next year during the Bar Association convention and have a ride on his boat Liza Jane.
Judge Smith moved that the committee accept the invitation. Judge Murray seconded the motion. The motion carried.
Mr. Glaser arrived at 10:30.
Discussion of the problem of Rules 40 and 5 was resumed.
The chairman requested Judge Smith to work with Mr. Glaser and Mr. Shaft and to have a report ready for the next meeting.
Judge Smith noted that Alaska has no Rule 40 regarding this problem but uses Rule 40 for making computation of time.
Mr. Glaser referred to Rule 4(b), Warrant or Summons Upon Complaint, Form, and 4(d), Warrant or Summons Upon Complaint, Return, as matters to be kept in mind when drafting Rule 40 or amending Rule 5.
Judge Smith suggested that the form of the warrant might set out the magistrate before whom the defendant must be brought.
Mr. Sand said he thinks the committee should consider proposed Rule 37 as submitted by Judge Burdick.
Judge Burdick read his draft of Rule 37 as follows:
Rule 37. Appeals.
(a) How an Appeal is taken; Notice of Appeal. Whenever permitted by law, an appeal shall be taken within the time specified in subdivision (b) by serving a copy of a notice of appeal upon the attorney for the adverse party, or upon the adverse party if no attorney appeared of record for him, and filing the notice, with proof of service, with the court from which the appeal is taken. The notice of appeal shall specify the party or parties taking the appeal, designate the verdict, judgment, or order or part thereof from which the appeal is taken, and the court to which the appeal is taken.
(b) Time for Taking Appeal. An appeal shall be taken within thirty days after reception of the verdict, rendition of the judgment, or the making of the order from which the appeal is taken, except that if a motion for a new trial is made within the thirty-day period an appeal from the verdict or judgment may be taken within thirty days after the making of the order denying the motion.
(c) Transmittal to Appellate Court. Within five days after the notice of appeal is filed with the court from which the appeal is taken, the clerk of the court, or the judge if there is no clerk, shall transmit to the clerk of the court to which the appeal is taken the notice of appeal, the verdict, the judgment, or any order of the court from which the appeal is taken, the complaint or information, the undertaking on appeal and certificate of probable cause, if any, and all other documents and papers filed in the action, which shall be docketed by the clerk of the appellate court without charge to the appellant.
(d) Designation of Parties on Appeal. A party appealing shall be known as appellant and an adverse party shall be known as appellee but the title of the action shall not be changed in consequence of the appeal.
(e) Effect and Scope of Appeal. An appeal to the Supreme Court, when perfected, transfers the action to such court for review under specifications of errors of law. An appeal to the district court or to the county court of increased jurisdiction, when perfected, transfers the action to such court for trial anew. An appeal from a judgment of conviction constitutes an appeal from any verdict of guilty upon which the judgment is rendered.
Mr. Sand said the draft was in line with what he had first submitted, that there are areas which require construction, areas which do not apply in certain courts. It was agreed that the words permitted by law make it acceptable.
Judge Smith said the question is: Do we want to expand the scope of this rule? Who is to pay the court costs on appeal from the city court to the county court? It does not apply in appeal from county justice court to the district court because the costs are the county's anyway, but what about appeal from a city court to a county court?
Mr. Glaser asked: Do we have the authority to make the decision?
The chairman asked if anyone wished to move adoption of the draft. Mr. Sand said he would like to consider certain provisions of the new draft before making a motion.
There followed a discussion of the time for appeal.
Mr. Sand asked: Should anything be said in this rule about § 33-12-41, Appeal not dismissed--When judgment affirmed? He read the section:
33-12-41. Appeal not dismissed--When judgment affirmed.--No appeal from the judgment of a county justice in a criminal action shall be dismissed. If the appeal is not take in time or if the defendant fails to appear in the district court when his presence is required, the judgment of the justice shall be affirmed summarily and entered as the judgment of the district court and carried into effect as such.
Mr. Sand asked: By adopting the rule are we abrogating this section?
Judge Muggli asked: Should another subsection be added to the rule providing for abandonment of appeal?
Judge Burdick said he would favor marking § 33-12-41 for revision but basically to be retained.
Judge Muggli said he would like to have a similar section that would apply.
Judge Ilvedson read § 29-28-08, Time for appeals in criminal cases.
Mr. Glaser said the committee is talking about two different things, whether there is a valid appeal or not. He said he thinks that probably they have to be treated similarly.
Mr. Sand moved that the committee reconsider its action taken on Rule 37 and all its components. Judge Burdick seconded the motion. The motion carried.
Judge Burdick moved the adoption of Rule 37 as submitted by him (draft of Eugene A. Burdick dated 16 May 1969 [with subdivision (c) changed by deleting the word ten and inserting the word five in lieu thereof and by deleting the bracketed words a certified copy of]). Mr. Sand seconded the motion.
Judge Muggli said he has had two thoughts on time, that perhaps the committee should go back to ten days to allow the defendant to make a request for a stay of execution.
The question being on Judge Burdick's motion. The motion carried. [For text of Rule 37 as adopted, see p. 4 of these minutes.]
Judge Smith moved that the committee reconsider its action in adopting Rule 37 in order to reconsider the number of days allowed. Mr. Glaser seconded the motion.
Judge Smith says he thinks it should be ten days because of the burden on the clerks.
Judge Burdick said the Williston City Attorney says the bulk of the appeals taken in municipal court are to delay certification to the Highway Department on some of the convictions, that he says if we could get them into district court right away, fewer appeals would be taken, and the faster it will be heard the fewer appeals there will be.
Mr. Glaser asked: As of July 1 isn't conviction in justice court considered final for purposes of lifting the license?
Mr. Sand said some defendant will ask the court to enjoin them and then this will clear up the matter.
Judge Burdick read § 29-28-20, Irregularity in substantial particulars-Notice.
Mrs. Luella Dunn, Clerk of the Supreme Court, was invited into the meeting, and Judge Smith asked her opinion on the question, should transmittal of record to any appellate court be within ten days or five days after notice of appeal. He said he thinks it should be ten days for the benefit of the clerks. Others are of the opinion that five days or immediately are necessary. If the transmittal is not made in the allotted time, who is penalized?
Judge Erickstad asked Mrs. Dunn to tell them how long it actually takes to get the record up from the lower court.
Mrs. Dunn said the Supreme Court clerk usually gets the partial record inside the time limit but that it may take much longer to get the whole record.
Judge Ilvedson said he thinks it is a good thing to get it up as rapidly as possible so the trial judge will be aware that he no longer has jurisdiction.
Mrs. Dunn discussed her experience in receiving records on appeal.
Judge Ilvedson read § 28-27-06, Clerk to transmit papers.
Judge Smith withdrew his motion, and Mr. Glaser withdrew his second.
Judge Muggli moved that the secretary be instructed to add a comment on the blue sheet to this effect: Would it be advisable to consider adding another subsection to this rule setting forth the actions that the court should take when appeals are long delayed, abandoned, or otherwise not completed, bearing in mind that we want to avoid delay?
Judge Burdick asked that before doing that, the committee consider Rule 39, Supervision of Appeal.
Judge Murray seconded the motion.
Judge Burdick mentioned Rules 47 and 48 of the draft of the Commissioners on Uniform State Laws, 47 dealing with stay of execution, and 48, with supervision of appeal. He said Rule 37 is not intended to be all-embracing in regard to appeals, that other rules, 38 and 39 of the federal rules, also relate to appeals.
Mr. Graham stated that Federal Rule 39 has been abrogated, but that if the committee does adopt a provision dealing with delayed or abandoned appeals, it should be in Rule 39.
Judge Smith suggested that notice should be filed both in the trial court and in the appellate court, so that a supervision would be exerted over the clerks.
Mr. Sand read Mr. Vogel's draft of Rule 39.
Judge Muggli withdrew his motion, and Judge Murray withdrew his second.
At 12:10 p.m. Judge Ilvedson moved that the committee be in recess until 1:30. The motion carried.
At 1:50 the meeting was reconvened, with the same persons present as at the time of recess except for Messrs. Sand and Graham.
Judge Muggli read his revised draft of Rule 38(a)(3) as follows:
Rule 38. Stay of Execution and Relief Pending Review.
(a) Stay of Execution.
(3) Fine. A sentence to pay a fine or a fine and costs, if an appeal is taken, may be stayed by the trial court upon such terms as the court deems proper. The court may require the defendant pending appeal to deposit the whole or any part of the fine and costs with the clerk, or to give bond for the payment thereof, or to submit to an examination of assets, and it may make any appropriate order to restrain the defendant from dissipating his assets.
Judge Muggli commented that he had tried to draft it in such a way that it would be workable in justice and municipal courts as well as in district courts and county courts of increased jurisdiction. He moved that his revised draft of Rule 38(a)(3) dated July 10, 1969, be adopted. Judge Murray seconded the motion.
Judge Burdick moved to amend the draft by adding the word trial after the first word in the second sentence. Judge Muggli seconded the motion. The motion carried.
Mr. Graham arrived at 2:15 p.m.
The question being on the adoption of Rule 38(a)(3) as amended, the motion carried. Rule 38(a)(3) as adopted reads:
Rule 38. Stay of Execution and Relief Pending Review.
(a) Stay of Execution.
(3) Fine. A sentence to pay a fine or a fine and costs, if an appeal is taken, may be stayed by the trial court upon such terms as the court deems proper. The trial court may require the defendant pending appeal to deposit the whole or any part of the fine and costs with the clerk, or to give bond for the payment thereof, or to submit to an examination of assets, and it may make any appropriate order to restrain the defendant from dissipating his assets.
The chairman called on Judge Ilvedson to make his report on Rule 32(f) regarding revocation of probation. Judge Ilvedson read his report as follows:
The minutes of the last meeting show that on May 15 there was a discussion on Rule 32(f) which was adopted by the Committee on February 21. This is the rule which states that the Court may revoke probation after a hearing at which the defendant is present. At our last meeting, Judge Erickstad raised an inquiry: "What happens when the defendant is in hiding and can't be found?" Attorney Glaser asked, "What is the sense of invoking probation if the defendant is not around?" I pointed out that our present North Dakota law gives authority to any Peace Office to pick up a probationer who has violated the terms of his probation. Judge Erickstad suggested that I check into this and bring in a recommendation.
Chapter 12-53 pertains to suspended sentences. Section 12-53-01 gives authority to the Court to suspend a sentence for
[Judge Ilvedson's report on Rule 32(f)]
either a felony or a misdemeanor. Section 12-53-10 states:
"ARREST OF PERSON UNDER SUSPENDED SENTENCE FOR BREACH OF PROBATION CONDITIONS. Any person who has been placed upon probation under the provisions of this chapter after having been convicted of a felony and who has violated the conditions of his probation shall be subject to arrest upon the order of the board of pardons in the same manner as in the case of an escaped convict. When such person does not conduct himself in accordance with the rules and regulations of the board of pardons, the
parole officer or any peace officer designated by the board may arrest such persons without a warrant or other process and convey him to the penitentiary.
Section 12-53-11 states:
"BOARD OF PARDONS MAY REVOKE SUSPENSION AND TERMINATE PROBATION AFTER HEARING. The board of pardons, after a full investigation and a personal hearing, may revoke the suspension of the sentence of a person convicted of a felony and placed on probation and may terminate the probation and cause said person to suffer the penalty of the sentence previously imposed upon him, if the board shall determine at such hearing that the probationer has violated any of the rules and regulations prescribed for the conduct of probations. When the probation has been terminated, the original sentence shall be considered as beginning upon the first day of imprisonment in the penitentiary."
Section 12-53-15 states:
"WHEN PROBATION MAY BE TERMINATED. Whenever the board of pardons, the court, or the state's attorney, shall have reason to believe such defendant is violating the terms of his probation, such probationer shall be brought before the court wherein the probation was granted. For this purpose any peace officer or state parole officer may re-arrest the probationer without warrant or other process. The court may thereupon, in its discretion, without notice revoke and terminate such probation, pronounce judgment, and deliver defendant to the sheriff to be transferred to the penitentiary or other state institution in accordance with the sentence imposed."
It is interesting to note that Section 12-53-11 came into existence through the enactment of Chapter 174 of the 1909 Session Laws, and at that time a "hearing" was required before the probation was terminated! Section 12-53-15 was first enacted through Chapter 134 of the 1947 Session Laws, and there are no provisions made for any kind of a "hearing," but instead the Court was given specific authority to revoke without notice.
In brief, when a court sentences a defendant to the penitentiary but suspends the sentence upon good behavior, the defendant is placed under the control of the board of pardons.
[Judge Ilvedson's report on Rule 32(f)].
Section 12-53-10 gives authority in such a case for any peace officer to arrest without a warrant any probationer violating his probation rules. And when a court defers or suspends the imposition of sentence, section 12-53-15 gives authority to any peace officer to arrest the defendant without a warrant for the purpose of bringing him before the court for sentencing. But there is no provision under our present law for the arrest of a defendant who was placed on probation for a misdemeanor (sentence to county jail being suspended). I believe the usual procedure, in such event, has been for the court to issue a bench warrant.
I did some research in regard to the right of the court to issue a bench warrant but did not find much material. It appears to be a right inherent in the courts. 22 C.J.S. section 404. The only provisions I could find in our code pertaining to bench warrants are sections 29-26-06 to 29-26-08 which provide that if defendant does not appear for judgment and sentence, the court may direct the clerk to issue a bench warrant for the arrest of the defendant.
In regard to Rule 32(f) I believe the court has the authority to issue a bench warrant for the arrest of probation violators. But I am inclined to recommend that we insert into the rule specific authority for this. We know that Rule 32(f) REQUIRES the personal appearance of the defendant at such a hearing. Therefore, the hearing cannot be conducted without the defendant. If the defendant absconds to another state and extradition proceedings are required, I think it would be well to have our rule clearly state that the court has the right to issue a bench warrant for the arrest of the defendant. In any event, I suggest that the following sentence be added to 32(f):
"A bench warrant may be issued by the court to require the presence of the defendant."
Discussion followed. Judge Ilvedson moved that Rule 32(f) be amended by adding the following words: A bench warrant may be issued by the court to require the presence of the defendant.
Judge Erickstad suggested that the amendment should require that an affidavit be filed disclosing that the probationer has violated his probation.
Judge Burdick suggested the following wording; If the defendant absconds or fails to appear for the hearing after receiving reasonable notice, the court may direct the issuance of a bench warrant to require his appearance before the court.
Judge Ilvedson withdrew his motion and moved that Rule 32(f) be amended by adding the following words: If an affidavit or sworn testimony is submitted to the court stating facts showing that the defendant has violated the conditions of his probation, a bench warrant may be issued by the court to require the presence of the defendant. Judge Smith seconded the motion.
Mr. Glaser asked: Suppose the sheriff sees a probationer drinking--can he pick him up?
Judge Burdick suggested that perhaps the change should read something like, The court, having probable cause to believe that the conditions of
probation have been violated by the defendant may issue an order to show
cause directed to the defendant and requiring his presence before the court, and if the defendant fails to appear or cannot be found then the court may issue a bench warrant.
Judge Erickstad asked: Why is it necessary to show cause?
Mr. Glaser said that Judge Burdick is concerned because you are taking a man into custody and should have some basis for doing it.
There followed a discussion of what should be necessary in order to bring in a man suspected of violating his probation.
The chairman asked Judges Ilvedson and Burdick to work on a report during the coffee break.
Following the coffee break Judge Burdick read the following proposed amendment to Rule 32(f), to follow the present wording [this draft was later designated by Judge Burdick as the "a" draft]:
The defendant is subject to arrest by any law enforcement officer or state parole officer having probable cause to believe that the defendant has committed a violation of conditions of his probation in the presence of the officer, in which event the defendant shall be brought forthwith before the court for a hearing on the claimed violation. Also, the court upon showing of probable cause based upon testimony or an affidavit of a person having knowledge of the facts that the defendant has committed a violation of a condition of his probation, may issue an order to show cause directed to the defendant and requiring his presence before the court, or may issue a bench warrant for the arrest of the defendant for the purpose of bringing forthwith the defendant before the court, for a hearing on the alleged violation.
Judge Burdick made the substitute motion that the foregoing language be used as a preface to the existing adoption rather than an addendum to it. Judge Ilvedson seconded the motion.
Judge Murray said he was speculating on the advisability of letting any person do it.
Judge Burdick said there have been many times in the past when it was desirable.
Judge Ilvedson suggested as an example an employer, to whom a man has been made responsible, catching the man violating his probation.
Mr. Graham commented that he hates to think of private persons trying to guess what the conditions of probation are.
Judge Smith asked: What if one of the conditions is that he take a job? He mentioned the man's wife and neighbors.
Mr. Sand read from John v. State, 160 N.W.2d 37 (N.D. 1968).
Judge Ilvedson read § 12-53-01, When sentence for misdemeanor or felony may be suspended.
There followed a discussion of difference in treatment between felonies and misdemeanors and between suspended sentences and deferred imposition of sentences.
Mr. Glaser commented that the committee was still talking about bench warrants. He said they were only mentioned in § 29-26-06. He thinks we should use the term writ of attachment.
Judge Burdick said he thinks the trial judge rather than the parole board should make the determination of whether the defendant should go to the penitentiary.
Judge Ilvedson said that he and Judge Muggli think that unless there is something to show that the present system is not working, why change it?
Judge Ilvedson moved that the present Rule 32(f) be left as it is but that the committee consider the addition that Judge Burdick has drawn.
Judge Smith asked: Why not use a summons?
Further discussion of whether there should be hearing to show cause followed.
On Judge Muggli's motion, the committee went into recess at 4:37 p.m. until July 11, 1969.
The committee was called to order at 9:13 a.m., July 11, 1969, with the following persons present: Judge Erickstad, Judge Muggli, Judge Ilvedson, Judge Burdick, Judge Smith, Mr. Graham, Mr. Sand, Judge Murray, Mrs. Quanrud.
The chairman called on Judge Burdick to resume discussion of Rule 32(f).
Judge Burdick said he wished to withdraw his proposed amendment of Rule 32(f), which he would designate "a," and substitute in lieu thereof a revised proposed amendment, which he would designate "b." Mr. Graham seconded the motion. Judge Burdick read "b" as follows:
Any law enforcement officer or state parole officer having probable cause to believe that the defendant has committed in his presence a violation of conditions of his probation may take the defendant into custody and shall thereupon bring the defendant forthwith before the appropriate authority for a hearing on the claimed violation. Also, subject to limitations imposed by law, the court, having jurisdiction upon a showing of probable cause based upon testimony or an affidavit of a person having knowledge of the facts that the defendant has violated a condition of his probation, may issue an order to show cause directed to the defendant and requiring his presence before the court, or may issue a bench warrant for the arrest of the defendant for the purpose of bringing the defendant forthwith before the court, for a hearing on the alleged violation.
Judge Ilvedson said he thinks "in his presence" is not necessary, that probation is a privilege.
Judge Burdick said he thinks it is necessary to give protection to the defendant.
Judge Muggli said the man isn't really a defendant, he is a convicted person.
Mr. Graham said that if you take out "in his presence," you are letting the sheriff pick him up; you would take the determination of probable cause away from the judge.
Judge Smith said that the second sentence would require an affidavit of a person other than a law enforcement officer or parole officer--somebody who had knowledge.
Mr. Sand asked: Can a judge issue a bench warrant upon information and belief?
Judge Ilvedson said that he doesn't want to cause trouble, that the present law has been in effect thirty years without trouble.
Mr. Sand said the present law has worked well, that now we propose to tighten the activities of law enforcement officers. He said that as far as he knows, they haven't abused the law. He said he doesn't think a constitutional problem is involved.
Judge Burdick said he thinks the law has been abused.
Judge Muggli said that he would agree with Judge Burdick if the defendant was just an accused person, but that he is no longer that--he is a convicted person.
Judge Murray said he thinks the requirements here are stricter than necessary.
Judge Ilvedson moved that the draft be amended by deleting the words in his presence. Mr. Sand seconded the motion.
Judge Burdick said he agreed with Mr. Graham that it would be unfortunate to take out that phrase, that the provision would be emasculated then.
Mr. Graham said he had to agree with Judge Burdick. He said he is in sympathy with Judge Ilvedson's thinking, but that if somebody is going to determine probable cause, he believes it should be a judicial officer.
Mr. Sand said that it would be requiring more of a law enforcement officer than it does now of an ordinary citizen on drunken driving.
Judge Smith read subsections 1 and 6 of § 29-06-15, Arrest without warrant.
Judge Erickstad read from his dissent in Colling v. Hjelle, 125 N.W.2d 453 (N.D. 1963) as follows:
Our general law of arrest, as it relates to a misdemeanor, permits a police officer, without a warrant, to arrest a person for a public offense committed in the officer's presence. Whether the arrest is legal should depend upon whether the officer had reasonable grounds to believe that the offense had been committed in his presence by the person arrested and should not depend upon whether the person was subsequently convicted or acquitted of the charge for which he was arrested. "The reasonable grounds" or, as stated by some courts, "the probable cause" which will justify an arrest for a misdemeanor without a warrant must be a judgment based upon the officer's personal knowledge acquired at the time through the senses or inferences properly to be drawn from the testimony of the senses.
Colling v. Hjelle, supra, (dissent) p. 467.
Judge Smith moved the previous question.
The question being on Judge Ilvedson's motion, the motion carried. Voting aye were Judge Ilvedson, Judge Muggli, Judge Murray, Judge Smith, and Mr. Sand. Voting nay were Mr. Graham and Judge Burdick.
Judge Muggli moved to substitute the word information for the word knowledge in the second sentence of draft "b." Mr. Sand seconded the motion.
Judge Murray asked: Are we distinguishing between a man on probation and the average person in being arrested?
Mr. Sand said he thinks there is a difference.
Judge Erickstad said this was a policy question: Should the treatment you give a parolee be different from that given an ordinary citizen?
Mr. Graham read a part of the introductory paragraph of Aguilar v. Texas, 278 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), as follows:
On certiorari granted, the United States Supreme Court . . . held that affidavit for search warrant may be based on hearsay information and need not reflect direct personal observations of affiant but magistrate must be informed of some of underlying circumstances on which informant based his conclusions and some of underlying circumstances from which officer concluded that informant, whose identity need not be disclosed, was "credible" or that his information was reliable.
Judge Erickstad read from Giordenello v. United States, 357 U.S. 480, 78 S. Ct. 1245, 1250, 2 L. Ed. 2d 1503 (1958) as follows:
The protection afforded by these Rules, when they are viewed against their constitutional background, is that the inferences from the facts which lead to the complaint "* * * be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." Johnson v. United States, 333 U.S. 10, 14, 68 S. Ct. 367, 369, 92 L. Ed. 436. The purpose of the complaint, then, is to enable the appropriate magistrate, here a Commissioner, to determine whether the "probable cause" required to support a warrant exists. The Commissioner must judge for himself the persuasiveness of the facts relied on by a complaining officer to show probable cause. He should not accept without question the complainant's mere conclusion that the person whose arrest in sought has committed a crime.
Judge Muggli withdrew his motion and made a substitute motion to delete the following language: based upon testimony or an affidavit of a person having knowledge of the facts. Mr. Sand seconded the motion. The motion carried, Judge Burdick voting nay.
Judge Burdick said he thinks that in both these instances the apprehension of the defendant is being authorized without a sufficient basis of information. He said the thinks the test is the same whether the man is being arrested for the crime in the first instance or whether he is being arrested for alleged violation of the conditions of his probation.
Judge Burdick moved that the following language be substituted for the language contained in Rule 32(f) as previously adopted, and that it follow the language contained in draft "b": Upon the hearing, the court, subject to limitations imposed by law, may revoke an order suspending a sentence or an order deferring the imposition of sentence, but only if the defendant is present and apprised of the grounds on which such action is proposed. Judge Muggli seconded the motion. The motion carried.
Judge Ilvedson moved that Rule 32(f) be adopted as amended. Judge Muggli seconded the motion.
Judge Burdick made a substitute motion to amend Rule 32(f) in the following manner: In the first sentence delete the word committed and insert in lieu thereof the word violated, delete the words violation of conditions and insert in lieu thereof the word condition, and after the word of insert the word his; in the second sentence delete the words jurisdiction upon showing of, and after the word cause where it first appears insert the words to believe. Mr. Sand seconded the motion. The motion carried.
Judge Ilvedson moved that Rule 32(f) be adopted as amended. Judge Muggli seconded the motion. The motion carried. Rule 32(f) as adopted reads:
Rule 32. Sentence and Judgment.
(f) Revocation of Probation. Any law enforcement officer or state parole officer having probable cause to believe that the defendant has violated a condition of his probation may take the defendant into custody and shall thereupon bring the defendant forthwith before the appropriate authority for a hearing on the claimed violation. Also, subject to limitations imposed by law, the court, having probable cause to believe that the defendant has violated a condition of his probation, may issue an order to show cause directed to the defendant and requiring his presence before the court, or may issue a bench warrant for the arrest of the defendant for the purpose of bringing the defendant forthwith before the court, for a hearing on the alleged violation. Upon the hearing, the court, subject to limitations imposed by law, may revoke an order suspending a sentence or an order deferring the imposition of sentence, but only if the defendant is present and apprised of the grounds on which such action is proposed.
Mr. Glaser arrived at 10:40.
Judge Ilvedson read his report on why Rule 43 does not permit sentencing in absentia. [The report is appended to and is hereby made a part of these minutes.] He also distributed copies of the opinion in State ex rel. Shetsky v. Utecht, 36 N.W.2d 126 (Minn. 1949).
Judge Burdick said he would use Mr. Sand's argument that since we have had no trouble with the existing law, we should retain it.
Mr. Sand said there was a recent case in Wisconsin, not more than four months age, involving more than one state, in which prosecution was started, the defendant absconded, and extradition failed. The court went ahead, had trial, and sentenced. Upon review, the appellate court said that was all right.
Judge Smith asked: What difference does it make? If he runs, you can get him back and then give him his sentence that not only fits the crime but also the running away.
Judge Ilvedson read from Shetsky as follows:
In State v. Cherry, 154 N.C. 624, 627, 70 S.E. 294, 295, resentencing was ordered where the original sentence had been imposed in the absence of the defendants. The court, citing State v. Kelly, 97 N.C. 404, 2 S.E. 185, 2 Am.St.Rep. 299, quoted with approval its previous language in that case as follows:
" * * * 'A party charged with a felony less than capital has the right to give bail and be at large unless at the trial the court shall order him into close custody. In such case, if defendant flee, pending the trial, the court is not bound to stop the trial, and discharge the jury and then give the defendant a new trial. To do so would compromise the dignity of the court, trifle with the administration of justice, and
encourage guilty parties to escape,' etc. While our decisions have established that in case of waiver the presence of the accused is not necessary to a valid trial and conviction, all of the authorities here and elsewhere, so far as we have examined, are to the effect that when a sentence, either in felonies less than capital or in misdemeanors, involves and includes corporal punishment, the presence of the accused is essential. (emphasis by the Court in Shetsky)
State ex rel. Shetsky v. Utecht, supra, 130-131.
Judge Ilvedson said he thinks that from the viewpoint of the public it would be well to go ahead with sentence, but he doubts it is good from a judicial standpoint.
Judge Burdick asked: What has the Supreme Court said?
Judge Ilvedson said there had been no Supreme Court decisions since Shetsky.
Judge Burdick said there are two different situations--one, that the man is not willfully absent, and the other, that he willfully fails to report.
Judge Ilvedson said that as far as he knows, there are no United States Supreme Court decisions on that point.
Judge Smith read from State ex rel. Poul v. McLain, 13 N.D. 368, 371, 102 N.W. 407, 408 (1905), as follows:
The petitioner is not in a position to complain because the examination of the witnesses took place in his absence. Section 7960, Rev. Codes 1899, provides that upon a preliminary examination, where the party is charged with the commission of an offense, "witnesses must be examined in the presence of the defendant and may be cross-examined in his behalf." It is contended in behalf of the petitioner that by reason of this provision the magistrate had no jurisdiction whatsoever to hear any evidence in support of the complaint after the defendant had been arrested unless the defendant was personally present during the examination of the witnesses. Section 8503, Rev. Codes 1899, directs that the provisions of the code of Criminal Procedure, of which section 7960 is a part, shall be "liberally construed with a view to promote its objects, and in furtherance of justice." The question is, must the court adhere to the literal wording of the statute, however absurd the results may be, or shall the court consider the object sought to be attained by the statute, and give the statute such construction as will accomplish that object and promote justice? It is very plain that the object of this statute is to give the defendant the right to see, hear, and cross- examine the witnesses produced against him by the state. If the defendant is in custody, he must be brought into the presence of the magistrate, and the latter shall hear no evidence in support of the charge except such as is produced while the defendant has the opportunity to see and hear the witnesses, and cross-examine them, either by himself or his counsel. If the defendant has secured his freedom from restraint by giving bail, he has expressly agreed to be present in court at such time
and place as the hearing is to be had, where the witnesses against him will be present. If he does not keep his promise and appear, it is his own fault, and he has not been deprived of any right; and, if he has lost any opportunity or advantage which the law accords, he ought not to be heard to urge his own default to thwart the ends of justice.
It is familiar law that in a case of felony all proceedings after indictment must be had in the presence of the accused. It has become well-settled law by the great weight of modern authority that one who voluntarily absents himself from the court during the progress of the trial cannot urge his absence to set aside a verdict of guilty. . . .
Judge Burdick said that if you don't impose sentence, you may have a different judge.
Judge Ilvedson said that he had run across that situation in his research--if the judge is dead, his successor is in his place.
Judge Erickstad said, yes, but he would not be familiar with the case, and he could grant a new trial.
It was agreed to close the discussion of Rule 43 and to take it up again at a future meeting.
Judge Ilvedson read his report on Rule 44(a) dated July 9, 1969 as follows:
In State v. Starratt, 153 N.W.2d 311, the opinion was written by our honorable Chairman, Judge Erickstad. The Supreme Court held that petitioner's lack of counsel before the committing magistrate did not prejudice the petitioner in that particular case.
However, the opinion quoted with approval two cases of the United States Court of Appeals which held (1) that there is no arbitrary point at which the right to counsel attaches in pretrial proceedings, but that the critical point is to be determined both from the nature of the proceedings and from that which occurs in each case; (2) an accused has a constitutional right to be represented by a court-appointed counsel at a preliminary hearing or at any other stage prior to arraignment, if, under the facts of the particular case, those stages are "critical" in the criminal proceedings.
The Minnesota Supreme Court in the case of State v. Borst, 154 N.W.2d 888, issued an opinion just a month following the State v. Starratt decision. In the Minnesota case the defendant claimed he had a right to a lawyer but could not afford one. The trial court believed that a defendant in a "misdemeanor" case was not entitled to appointment of counsel. The case was remanded to afford the defendant an opportunity to present evidence as to his financial inability to procure counsel. In discussing the question whether defendant is entitled to have counsel appointed for him in a misdemeanor case, the Minnesota Court stated in the opinion beginning at page 889:
"The question is a troublesome one and has caused much difficulty through out the country. The Supreme Court of the United States on three recent occasions has declined to review cases involving this question... In Winters v. Beck, Mr. Justice Stewart said (385 U.S. 908, 87 S.Ct. 208, 17 L.Ed.2d 138):
'This decision of the Supreme Court of Arkansas is in conflict with decisions of the United States Court of Appeals for the Fifth Circuit, which has held that indigent defendants have a constitutional right to counsel in misdemeanor cases ... This conflict must be resolved, unless the Constitution of the United States is going to mean one thing in Arkansas and something else in Mississippi."
"... Any consideration of this question today must start with Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 796, 9 L.Ed.2d 799, 805."
The Minnesota Court concluded that the language of Gideon appears to say that the right to counsel extends to prosecutions for any crime regardless of whether it is a misdemeanor or felony but that the Court's reluctance to review cases involving misdemeanors casts much doubt on the meaning of Gideon and how far its mandate extends. Other decisions are discussed and the Minnesota court finally arrived at this conclusion:
"Until we have a definite decision by the Supreme Court of the United States as to whether Gideon requires appointment of counsel for an indigent charged with a misdemeanor as defined by our laws, as a Sixth-Amendment right, we choose not to guess at which it may eventually hold by basing our decision on the Federal Constitution or even on our State Constitution. In the exercise of our supervisory power to insure the fair administration of justice, we decide that counsel should be provided in any case, whether it be a misdemeanor or not, which may lead to incarceration in a penal institution. In other words, if the court is to impose a jail sentence, counsel should be furnished.
Although our Supreme Court in the Starratt case, supra, held the lack of counsel before the committing magistrate was not prejudicial in that particular case, the court recognizes the fact that lack of counsel at the committing magistrate stage could be prejudicial if it constituted a "critical" state of the proceedings against him.
[Judge Ilvedson's report on Rule 44(a) - continued)
There is a very recent annotation "Accused's Right to Counsel under the Federal Constitution--Supreme court cases" in 18 L. Ed.2d 1420. It states at page 1424:
"Although the Supreme Court has not yet indicated to what extent the right to counsel applies to cases involving minor offenses, for example, traffic violations, the court has indicated that the Sixth Amendment right to counsel applies to state and federal felony cases, to criminal contempt proceedings, and to juvenile court proceedings of a quasi-criminal nature."
The case of United States v. Wade, 388 U.S. 218, 18 L.Ed.2d 1149, 87 S.Ct. 1926, was decided in June 1967 about the time that the Starratt case, supra, was decided by our North Dakota Supreme Court. The United States Supreme Court reaffirms the view that the Sixth Amendment guaranty of the assistance of counsel applies to critical stages of the proceedings and not just to the period of arraignment to trial.
Chapter 259 of the 1967 S.L. (29-07-01 NDCC) states that it is the duty of the magistrate to inform the defendant "of his right to the aid of counsel before answering any questions and until such time as he is released or finally convicted" and "of his right to have his legal services provided for at public expense to the extent he is unable to pay for his own defense without undue hardship."
Chapter 259 of the 1967 S.L. also gives the magistrate authority to appoint counsel:
"The magistrate before whom a defendant charged with the violation of state criminal law is brought may appoint counsel from a list prepared under the direction of the senior district judge in his district and in the manner prescribed by him..."
I have made some extra photocopies of Chapter 259 for the convenience of the committee. It would appear that at the present time, magistrates in North Dakota can appoint counsel for defendants in any case that is before them as committing magistrate regardless of the type of crime or punishment that may be imposed. That is, any case which the magistrate is without authority to try and determine.
But there are no rules except court decisions that can guide the magistrate in determining whether counsel should be appoint for an indigent defendant. In our state the magistrate must determine whether a "critical" point has been reached when a demand or request is made by the defendant for a court-appointed lawyer. Certainly in any felony the magistrate would appoint counsel. I am also inclined to believe counsel must be appointed in all misdemeanor cases too. Petit larceny, for example, is a crime for which the punishment is not more than 30 days in jail. I do not see why counsel should not be appointed for a defendant charged with the offense if he is an indigent. The Minnesota Supreme Court hold that if a jail sentence can be imposed, counsel must be furnished. It seems to me that it may be pretty difficult for a magistrate to determine whether the case has reached a "critical" stage when the defendant asks for counsel immediately before any decision is made as to whether a preliminary examination should be demanded. I think in such case he should appoint counsel regardless of the length of jail sentence that possibly can be imposed under the law for the particular crime.
[Judge Ilvedson's report on Rule 44(a) - continued]
If we retain Rule 44(a) as we have already adopted it, the magistrate knows he must make an appointment of counsel in a case before him as a committing magistrate, provided, of course, that he is satisfied that the defendant is "unable to obtain counsel."
Chapter 259 of the 1967 S.L., supra, repealed sections 29-01-27 and 27-08-31 NDCC. The first section repealed gave the court in any criminal action "when it is satisfactorily shown to the court that the defendant has no means" the right to appoint and assign counsel for the defendant with a limitation of $25.00 for any one day. Section 27-08-31 gave courts of increased jurisdiction the authority to appoint counsel for indigent defendants in all criminal cases, but limited the compensation to $50 in any one case.
Chapter 259 states:
"The appropriate judge may appoint counsel for a needy person at any time or for any proceeding arising out of a criminal case if reasonable."
The above sentence would appear to give all courts in this state the right to appoint counsel for any defendant. But if it is superseded we need something to take its place.
Undoubtedly there are offenses for which the punishment is only a fine. There should be a limitation of some kind in our rules so that counsel will not be appointed at public expense for such offenses.
The present rule 44(a) as adopted does not define or set forth any guide or rule to state when or under what circumstances counsel can be appointed. It states "every defendant who is entitled to assigned counsel shall have such counsel at public expense."
I recommend that we clarify this by changing rule 44(a) to read:
Every defendant who is charged with a public offense for which the punishment imposed by law includes or is possible confinement in a jail, the state prison farm, or the state penitentiary, is entitled to assigned counsel at public expense if he is unable to obtain counsel and he is entitled to have such counsel assigned to him at every stage of the proceedings from his initial appearance before the committing magistrate or the court and through appeal, unless he waives such appointment or is represented by a public defender."
Mr. Graham read from a presentation of the Supreme Court law clerks regarding trial by jury. He described Duncan v. Louisiana, 391 U.S. 145, 88 Sup.Ct. 1444 (1968); Bloom v. Illinois, 391 U.S. 194, 88 Sup.Ct. 1477 (1968); and Dyke v. Taylor Implement Co., 391 U.S. 216, 88 Sup.Ct. 1472 (1968).
Judge Smith said he was afraid minor traffic offenders would be demanding counsel. He said that since the statute came out he had stopped appointing counsel and that he had been criticized for not appointing. He said the problem in appointing on all misdemeanors is the cost factor-- also, the whole district court procedure that has been imposed. He said it takes twenty minutes to go through the procedure and that he wants to be divorced from that procedure--that if he had to go through it in every misdemeanor case there aren't enough hours in the day or days in the week.
At 11:30 Judge Muggli left the meeting.
In answer to a question regarding the procedure he had mentioned, Judge Smith said it included recitation of rights, request for acknowledgment of waiver or exercise of certain rights, filling in blanks, signing papers, handing over copies, then if the defendant wants a lawyer, appointing one. He said he does it religiously in felonies but that he doesn't want to have to follow it in misdemeanors. He said he kept a record in his minute book.
Judge Ilvedson asked: Regardless of Minnesota, shouldn't we draw a line somewhere in the rule on time up to 30 days?
Judge Burdick asked if he was willing to draw a line.
Judge Ilvedson said yes.
Mr. Graham asked: Is a prosecution for violation of a municipal ordinance a criminal matter?
Judge Erickstad said our court has said it is a civil matter but is treated like a criminal matter and that the committee is trying to make our criminal rules applicable to violations of municipal ordinances.
Mr. Graham said that § 13 of our state constitution requires that the party accused shall have the right to "appear and defend in person and with counsel" and that he thinks "with counsel" means with assigned counsel if you are not able to pay.
Judge Burdick said the Supreme Court has said that prosecution of municipal ordinances are quasi-criminal--they are civil but are governed by rules of criminal procedure.
Judge Smith said the United States Supreme Court has not chosen to apply Article 6 of the Constitution to the states below the grade of felony. If the North Dakota Supreme Court were to extend the right to court-appointed counsel to all cases, they would be holding a concept that has not been accepted but has been inferentially rejected in the refusal of petitions for certiorari in the U. S. Supreme Court.
Judge Burdick said he shares Judge Smith's view.
There followed a discussion of whether the United States Supreme Court has ruled on this question.
Judge Burdick said he does not think § 13 of the state constitution requires the appointment of assigned counsel even in felonies--that this is a right in criminal cases in North Dakota but the Constitution is silent as to whether he must be paid from public funds.
Mr. Graham said he believes the constitution, as construed by our Supreme Court, requires that a defendant who lacks funds shall not be denied counsel just because of his financial standing.
Judge Burdick said that this was an early provision, from long before there was any conception of appointed counsel, and that this concept of having to give him counsel appointed by the court has come to the states by the United States Supreme Court's applying article 6 through the application of the 14th amendment.
Mr. Graham said that the Sixth Amendment preceded § 13.
Mr. Glaser said that the point is, we know what is required in some cases, and we are trying to guess what is required in other cases--that there is a difference of opinion that we can't resolve. He said the issue is, what do we want in this rule--a 30 day limitation? If we do that because they have municipal law to make them maximum we automatically wipe out the provision of appointed counsel. He said he doesn't think we should have a distinction--that he thinks every man subject to imprisonment any place for any length of time should have the right to assigned counsel.
Judge Burdick said that there had been a conference held in Washington, D.C., on the Public Defender; and that as a result the National Conference of Commissioners on Uniform State Laws is considering reactivating its committee to consider its Public Defender Act. He said he is confident that a new committee will be formed in August to review it.
Mr. Sand said he would like to see some guidelines.
Judge Smith read ch. 7 of the 1879 Session Laws as follows:
Be it enacted by the Legislative Assembly of the Territory of Dakota:
§ 1. County to employ counsel for indigent defendant.]
That in all criminal cases triable in the Territory of Dakota, where it is satisfactorily shown to the court that the defendant has no means, and is unable to employ counsel, the court shall in all such cases, where counsel is appointed and assigned for defense, allow and direct to be paid by the county in which such trial is had, a reasonable and just compensation to the attorney or attorneys so assigned for such services as they may render: Provided, however, that such attorney or attorneys shall not be paid a sum to exceed twenty-five dollars in any one case.
§ 2. This act shall take effect and be in force from and after its passage and approval.
Approved, February 22, 1879.
Judge Smith commented that the principle of court appointed counsel must have been known and recognized by the writers of the state constitution.
Mr. Graham said that he feels that if you can go to jail for 30 days, regardless of what it is called, he must consider it a criminal case.
Judge Smith asked: Could we, in creating rule, say that counsel shall be appointed for an indigent if the misdemeanor charge carries with it a maximum penalty of not less than $500 fine or 6 months in jail or that the trial judge in his discretion may appoint counsel?
Judge Burdick read § 40-11-12, Commitment of guilty person, and § 40-18-12, Commitment for violation of city ordinance--Limitation--Labor in lieu of fine.
Judge Ilvedson read § 12-01-06, Definition of crime.
The secretary was instructed to make note of Bloom v. Illinois, 391 U.S. 194, 88 Sup.Ct. 1477 (1968), relative to appointment of counsel in contempt proceedings.
Judge Erickstad asked Judge Ilvedson to bring in a written motion at the next meeting.
Judge Erickstad said there is a policy question here: Do we want any limit written into the rule?
The chairman announced that the next meeting of the committee would be held on Thursday and Friday, November 20 and 21, 1969, commencing at 9:00 a.m.
The meeting adjourned at 11:53 a.m.
Rebecca Quanrud, Secretary
Addendum: Report on Rule 43 by Judge Ilvedson--dated July 8, 1969--heading omitted
At our meeting of May 15th Judge Erickstad asked me to do some research on why Rule 43 does not permit sentencing in absential. The rule we have adopted does not permit sentencing without the defendant being present except in misdemeanor cases if the defendant consents to it in writing. This is in accord with the present Federal Rule.
24 C.J.S. p. 515 states:
"In the absence of statute to the contrary, and apart from or without reference to any statute, it is generally held that where the sentence imposed involves imprisonment or the infliction of other corporal punishment, accused must be present in court when sentence is pronounced, whether the conviction is for a felony or misdemeanor."
And at page 517:
"It has been held that accused may waive his right to be present when he is sentenced, and that he may do so by voluntarily and willfully absenting himself. Other authorities, however, take the view that accused cannot waive his right to be present when judgment is rendered or sentence is pronounced, at least in the case of a felony, or when a sentence, either in the case of a felony or misdemeanor, involves and includes corporal punishment; and hold that accused's voluntary or willful absence does not affect his rights."
The case of State ex rel. Shetsky v. Utecht, 36 N.W.2d 126 (Minn. 1949) is an excellent treatise on the subject. Shetsky absented himself from the state of Minnesota during the trial. The judge resumed the trial a few weeks later in the absence of the accused (although counsel was present). The jury returned a verdict of guilty and the court sentenced Shetsky to state prison for life. Two years later Shetsky was apprehended in California. He petitioned the court for a writ of habeas corpus after he was brought back to Minnesota. The question presented to the Minnesota Supreme Court was whether the accused, by his voluntary absence, waived his statutory right to be present at all stages of the trial, including the imposition of the sentence.
I have photocopied this case and attached the copies hereto. The discussion of the above point begins at page 128. The Minnesota case discusses the federal rule, too. The syllabus No. 7 states:
"That Federal Rule of Criminal Procedure in prescribing the scope of waiver effected by accused's voluntary absence from trial omits
[Report of Judge Ilvedson on Rule 43]
reference to waiver of presence at pronouncement of judgment and imposition of sentence IMPLIES THAT IMPOSITION IN ABSENCE OF ACCUSED, WHETHER VOLUNTARY OR INVOLUNTARY, IS ILLEGAL AND LACKS DUE PROCESS OF LAW. Federal Rules of Criminal Procedure, rule 43, 18 U.S.C.A."
The Minnesota Court held Shetsky, by voluntarily absenting himself from the court and state, waived his right to be present at further proceedings up to and including the rendition of the verdict, but that imposition of sentence in his absence was illegal and without due process of law, requiring his discharge from imprisonment under such sentence, and his return to district court for resentence.
Section 29-26-11 NDCC states that when a defendant appears for judgment, he must be asked whether he has any legal cause to show why judgment should not be pronounced against him.
My research indicates that we should require the presence of the defendant at the time of sentencing even though the offense committed is a misdemeanor. I say this even though our present law in North Dakota permits the pronouncement of judgment in the absence of a defendant if the conviction is for a misdemeanor. See Section 29-26-04. Our proposed Rule 43 permits this if the defendant consents in writing.