City of Grand Forks v. Thong

20010246 City of Grand Forks, Plaintiff and Appellee
v.
Ben Nmn Thong, Defendant and Appellant

Appeal from: District Court, Northeast Central Judicial District, Grand Forks County
Judge Joel D. Medd
Nature of Action: Theft
Counsel:
Appellant: Howe & Seaworth
Appellee: Kristi Pettit Venhuizen , City Prosecutor
Term: 02/2002   Argument: 02/11/2002  1:30pm
ND cite: 2002 ND 48
NW cite: 640 N.W.2d 721

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
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.
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.

Appellee's Statement of the Issues:
I. Whether the Grand Forks Municipal Court had jurisdiction to have a hearing regarding the Defendant's charges of Theft and Failure to Appear because the Defendant's attorney requested that the jury request be held?
A. Was the Defendant denied his right to a jury trial?
B. Did the Clerk of Municipal Court err in how she handled the jury request and how she certified the record on appeal?
II. Whether the Grand Forks Municipal Court erred in allowing the Defendant's attorney to appear in court and orally motion to withdraw without the Defendant being present or receiving notice of the motion?
III. Whether the Defendant's charge for Failure to Appear under Section 8-1503(13) of the Grand Forks City Code is appropriate?
A. Are there facts to substantiate the Defendant's conviction for Failure to Appear in Municipal Court on February 28, 2001?
B. Should the Failure to Appear charge be dismissed because it was charged under the traffic and motor vehicle penalty section of the Grand Forks City Code?
IV. Whether the Defendant was provided with effective assistance of counsel by either of his trial attorneys?
V. Whether counsel for the Defendant violated Rule 28(a)(4) and (5) and Rule 30(a) of the North Dakota Rules of Appellate Procedure by supplementing the facts of the case in his brief and by adding documents to the Appendix that are not part of the record?

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Docket entries:
110/03/2001 NOTICE OF APPEAL: 09/25/2001
210/12/2001 Copy of ltr from Mr. Howe stating he is not, at this point, representing Mr. Thong
310/23/2001 ORDER FOR TRANSCRIPT (Per Notice from Court Reporter Manthei): 10/22/2001
410/23/2001 RETENTION OF RECORD ON APPEAL: 12/11/2001
510/29/2001 Notice of Appearance: Henry H. Howe appearing for Benjamin Thong
611/06/2001 MOT. EXT/TIME APPELLANT BRIEF
711/06/2001 ACTION BY CLERK (30 days after TRA filed/approximate due date). Granted: 12/20/2001
811/20/2001 TRANSCRIPT DATED 9-18-01
911/21/2001 DISK - TRA (9-18-01)
1011/26/2001 RECORD ON APPEAL & Exhibits
1112/03/2001 Supplemental Clerk's Certificate (undated) (Entry Nos. 13 & 14)
1212/20/2001 APPELLANT BRIEF
1312/20/2001 APPELLANT APPENDIX
1412/28/2001 DISK - ATB (via e-mail)
1501/22/2002 APPELLEE BRIEF
1601/23/2002 DISK - AEB
1702/08/2002 REPLY BRIEF
1802/08/2002 Addendum to Reply Brief
1902/08/2002 DISK - RYB (electronically transmitted)
2002/08/2002 Faxed letter dated 2-08-02 from Kristi Petti (objection to filing of RYB) (dist. to Court)
2102/11/2002 Original letter dated 2-08-02 from Krisit Pettit (objection to filing of RYB)
2202/11/2002 APPEARANCES: Henry H. Howe, Ben Nmn Thong; Kristen S. Pettit
2302/11/2002 ARGUED: Howe; Pettit (Vol. X; Page 203)
2402/11/2002 ORAL ARGUMENT WEBCAST
2503/12/2002 DISPOSITION: REVERSED AND REMANDED
2603/12/2002 UNANIMOUS OPINION: VandeWalle, Gerald W.
2703/12/2002 Costs on appeal taxed in favor of appellant
2803/13/2002 Order/Judgment Mailed to Parties
2904/03/2002 MANDATE
3004/08/2002 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
3109/27/2007 EXPUNGED - Nonpermanent record items destroyed

Generated from Supreme Court Docket on 10/30/2014