IN THE SUPREME COURT
STATE OF NORTH DAKOTA
|City of Fargo,||Appeal from Cass County District|
|Plaintiff and Appellee||Court Summary Affirmance|
|MR. WHITE'S BRIEF AND|
|Defendant and Appellant|
|Supreme Court No. 20130191|
|Cass County No. 2013-CR-00532|
|Stormy Vickers (#6539)|
|Attorney for Jason White|
|109 ½ Broadway, 2nd Floor|
|Fargo, ND 58102|
|P: (701) 365-4884|
|F: (701) 365-4885|
|TABLE OF CONTENTS|
|Table of Authorities|
|Statement of Jurisdiction||¶1|
|Standard of Review||¶2|
|Legal Issues||Pg. 5|
|Statement of the Case||¶4|
|Statement of Facts||¶5|
|I. The district court's Summary Affirmance Order is a final order and is therefore appealable pursuant to N.D.C.C. § 29-28-06(2).|
|II. The district court erred when it dismissed Mr. White's appeal for his failure to appear at a dispositional conference as the proper remedy is continuance or issuance of a bench warrant and a district court judge is without discretion to dismiss an appeal at a dispositional conference.|
|I. N.D.R.Crim.P. 37|
|TABLE OF AUTHORITIES|
¶14, 18 26
|N.D.R.Ct. 6.6||19, 20, 25|
|N.D.R.Crim.P. 37||4, 13, 15, 17, 21, 24, 25, 26|
|N.D.R.Crim.P. 37(l)||10, 11, 18, 21|
|N.D.R.Crim P. 43||19, 21, 25|
|N.D.R.Crim P. 43 (a)(1)||19|
|N.D. Const. art. VI, §&S& 2 and 6||1|
|Citibank v. Reikowski, 2005 ND 133, 699 N.W.2d 851.||3|
|City of Bismarck v. Uhden, 513 N.W.2d 373 (N.D. 1994).||22|
|City of Fargo v. Komad, 2006 ND 177, 720 N.W.2d 619.||23, 24, 25|
|City of Grand Forks v. Lamb, 2005 ND 103, 697 N.W.2d 362.||17|
|Dunseith Sand and Gravel Co., Inc. v. Albrecht, 379 N.W.2d 803 (N.D. 1986).||15, 17|
|Interest of J.K., 2009 ND 46, 763 N.W.2d 507.||2|
|State v. Adams, 2009 ND 168, 772 N.W.2d 878.||14|
|State v. Erickson, 2011 ND 49, 795 N.W.2d 375.||3|
|State v. Jelliff, 251 N.W.2d 1 (N.D. 1977).||15|
|Minutes of the Joint Procedure Comm., September 28-29, 2006||24|
STATEMENT OF JURISDICTION
1. This Court has jurisdiction under N.D. Const. art. VI, §&S& 2, 6, and N.D.C.C. § 29-28-6.
STANDARD OF REVIEW
2. Questions of law are reviewed de novo. Interest of J.K., 2009 ND 46, ¶14, 763 N.W.2d 507.
3. When the district court dismisses a case with prejudice the standard of review is abuse of discretion. State v. Erickson, 2011 ND 49, ¶12, 795 N.W.2d 375. "A trial court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, or when it misinterprets or misapplies the law." Citibank v. Reikowski, 2005 ND 133, ¶6, 699 N.W.2d 851.
I. The district court's Summary Affirmance Order is a final order and is therefore appealable pursuant to N.D.C.C. § 29-28-06(2).
State v. Adams, 2009 ND 168, 772 N.W.2d 878..
State v. Jelliff, 251 N.W.2d 1 (N.D. 1977).
Dunseith Sand and Gravel Co., Inc. v. Albrecht, 379 N.W.2d 803 (N.D. 1986).
City of Grand Forks v. Lamb, 2005 ND 103, 697 N.W.2d 362.
II. The district court erred when it dismissed Mr. White's appeal for his failure to appear at a dispositional conference as the proper remedy is continuance or issuance of a bench warrant and a district court judge is without discretion to dismiss an appeal at a dispositional conference.
City of Bismarck v. Uhden, 513 N.W.2d 373 (N.D. 1994).
City of Fargo v. Komad, 2006 ND 177, 720 N.W.2d 619.
N.D.R.Crim.P. 43 (a)(1)
STATEMENT OF THE CASE
1. This is an appeal from a Cass County District Court Order summarily affirming a Fargo Municipal Court Judgment finding the Defendant, Mr. White, guilty of disorderly conduct. A criminal complaint was filed alleging Mr. White to be in violation of Fargo Municipal Ordinance prohibiting Disorderly Conduct. A municipal trial was held resulting in Mr. White's conviction. Upon properly perfected appeal pursuant to N.D.R.Crim.P. 37, Mr. White's case was transferred for "trial anew" to the Cass County District Court. Mr. White failed to appear for a preliminary dispositional conference whereupon the district court dismissed the appeal and summarily affirmed the municipal judgment. Mr. White appeals this summary affirmance as clearly erroneous. Mr. White contends a dispositional conference is not akin to a "trial anew" and the proper procedure when a defendant fails to appear at a preliminary proceeding is to continue the proceeding, issue a warrant for the absent party's arrest, or both.
STATEMENT OF FACTS
2. Jason White, charged with Disorderly Conduct (Fargo City Ordinance 10-0301), was tried and convicted in Fargo Municipal Court on February 7, 2013.
3. Mr. White timely and properly filed notice of appeal with the Fargo Municipal Court on February 12, 2013 whereupon the proceedings were forwarded to Cass County District Court.
4. Mr. White personally appeared before the Honorable Wade Webb with counsel Stormy Vickers in Cass County District Court on March 4, 2013 and entered a not guilty plea.
5. March 4, 2013, Mr. White personally signed a Scheduling Order. Paragraph 4 of the Scheduling Order lists the May 29, 2013 at 10:00 A.M. as the date and time for the Dispositional Conference. Paragraph 4 immediately below the date and time for the dispositional conference states the following: "DEFENDANT MUST APPEAR IN PERSON".
6. Mr. White did not appear on May 29, 2013 for his scheduled dispositional conference. Mr. Vickers, attorney for Mr. White, and Ms. Kristal Kadrie, attorney for the City of Fargo, both personally appeared.
7. At the Dispositional Conference, Mr. Vickers requested a continuance noting that he had been in recent contact with his client. Ms. Kadrie requested the District Court summarily affirm the Fargo Municipal Judgment due to Mr. Whites non-appearance and pursuant to N.D.R.Crim.P. 37(l).
8. The Honrable Wade Webb denied Mr. Vickers' request for continuance and granted Ms. Kadrie's request for summary affirmance. The Court noted the personal appearance requirement of the Scheduling Order, the bold, capital letters used on the Scheduling Order's personal appearance requirement, and Mr. White's personal signature acknowledging the terms and receipt of the Scheduling Order. The Court then dismissed Mr. White's appeal pursuant to Rule 37(l) and summarily affirmed the Fargo Municipal Court Judgment.
9. May 30, 2013 the Court signed an Order Summarily Affirming the Judgment of the Fargo Municipal Court.
I. The district court's Summary Affirmance Order is a final judgment of conviction and is therefore appealable pursuant to N.D.C.C. § 29-28-06.
1. Mr. White filed his appeal from municipal court to district court pursuant to N.D.R.Crim.P. 37 (Rule 37). When Mr. White failed to appear at a scheduled dispositional conference the district court issued an order to summarily affirm the municipal court judgment. At issue in this case is whether or not the district court is allowed to dismiss a municipal appeal for a defendant's nonappearance prior to the trial anew. Mr. White seeks no review by this Court of the facts or conclusions made by the municipal court.
2. The right of appeal is statutory and if there is no statutory basis the appeal must be dismissed. State v. Adams, 2009 ND 168, ¶4, 772 N.W.2d 878. N.D.C.C. § 29-28-6(2) states that a criminal defendant may appeal a final judgment of conviction. Rule 37(l) specifically directs the district court to enter a summary affirmance judgment "as a judgment of the district court". Summarily affirming the municipal conviction as a judgment of conviction of the district court squarely falls under the statutory requirement of N.D.C.C. § 29-28-06(2).
3. Although Rule 37 labels the district court summary affirmance as a judgment this Court has previously stated the effect, not the label controls. "Statutes conferring the right to appeal must be liberally construed, and that in determining appealability it is not the label which controls but, rather, the effect." State v. Jelliff, 251 N.W.2d 1, 4 (N.D. 1977). Considering when an order is the equivalent of a judgment this Court has directed when "a judgment is consistent with the order, we will treat the appeal as an appeal from the judgment." Dunseith Sand and Gravel Co., Inc. v. Albrecht, 379 N.W.2d 803, 805 (N.D. 1986).
4. Here the municipal court filed a judgment of conviction. The district court issued an order consistent with the municipal judgment summary affirmance order that affirmed in whole, with no additions, corrections, or changes, the municipal order. No addition, correction, or change is the very definition of consistent.
5. This Court should liberally construe the Summary Affirmance Order to be the equivalent of a judgment pursuant to Dunseith Sand and Gravel as this court has further stated "[a] prohibition on appeals to this Court will not be inferred unless the statute expressly states that appellate jurisdiction is conferred upon the district court and expressly prohibits any further appeal." City of Grand Forks v. Lamb, 2005 ND 103, ¶ 9, 697 772 N.W.2d 878. 362. (Citing Bland v. Commission on Med. Competency, 557 N.W.2d 379, 384 (N.D. 1996)). Rule 37 does expressly confer upon the district court the appellate jurisdiction of the municipal courts. However, Rule 37 does not expressly prohibit any further appeal.
6. Whether by the plain language of Rule 37(l) requiring the district court to enter the summary affirmance as its own order of judgment, or by an order consistent with a judgment, this issue is reviewable by this Court pursuant to N.D.C.C. 29-28-06.
I. The district court erred when it dismissed Mr. White's appeal for his failure to appear at a dispositional conference as a defendant's presence is neither required by rule nor is a dispositional conference a "trial anew".
1. N.D.R.Crim.P. Rule 43 (Rule 43) specifies when a defendant is required to be present. Rule 43(a)(1) requires the defendant's presence at the initial appearance, arraignment, and plea; at every trial stage, and at sentencing. Although Rule 43 does not require the defendant to be present at preliminary hearings or conferences, the Explanatory Note to Rule 43 does state the rule alone does not give the defendant the right to be absent and gives the district court discretion whether or not to require the presence of the defendant. N.D.R.Ct. Rule 6.6 (Rule 6.6) provides when a person fails to appear in court as required the judge may issue a bench warrant for the person to be brought immediately before the court.
2. Neither court rule nor criminal procedure rule specifically required Mr. White to appear at the dispositional conference. However, pursuant to the scheduling order issued by the district court, Mr. White was informed in no uncertain terms the court required his personal appearance. It is without question Mr. White did not heed this direction as he failed to appear at the dispositional conference without excuse. The proper remedy provided by Rule 6.6 is for the district court to issue a bench warrant.
3. In lieu of the bench warrant, the City requested the district court summarily affirm the municipal judgment. The Explanatory Notes to Rule 43 state: "Rule 37 provides for summary affirmance if the defendant does not appear at a trial anew". Rule 37(l) states: "If the appellant fails to appear at the trial anew, the district court must summarily affirm the judgment and enter it as a judgment of the district court ".
4. A trial anew occurs when the evidence is heard "by the judge acting as factfinder during trial". City of Bismarck v. Uhden, 513 N.W.2d 373 (N.D. 1994). In this case there was no trial anew held. The date scheduled for the trial anew had not presented at the time the appeal was dismissed and the municipal judgment was summarily affirmed. A dispositional conference, where guilty pleas are taken, plea hearings are scheduled, trial intentions are confirmed, and the occasional ancillary matter is determined is not a judge acting as a factfinder during trial and is therefore not trial anew. Summary affirmance at any stage prior to trial anew is premature and is error pursuant to the plain language provided in the rules of criminal procedure.
5. In City of Fargo v. Komad a similar issue appeared before this Court. Komad initially appeared in municipal court for his trial and was convicted whereupon he appealed the municipal judgment to district court. City of Fargo v. Komad, 2006 ND 177 ¶1, 720 N.W.2d 619. Komad then failed to appear at his scheduled trial date in district court and the court gave Komad's counsel the choice of either dismissing the appeal or proceeding with the trial in Komad's absence. Id. Ultimately counsel for Komad chose to proceed to trial where Komad was again convicted. Id. Upon review this court determined neither federal nor state constitutional guarantees to trial apply upon a trial anew as that guarantee is met at the initial municipal trial. Id. at ¶7. However, having determined Komad was never present for his trial in district court and that Komad did not give permission to his attorney pursuant to Rule 43 to proceed in his absence this Court held it was error for the district court to proceed. Id. at ¶&P&12-16. "The district judge's discretion was to determine whether to grant the continuance or issue a bench warrant for Komad or to do both." Id, at ¶16.
6. It is important to note when Komad was decided Rule 37 did not allow for, nor mandate as is presently the case, summary affirmance. Justice Maring in her special concurrence specifically suggested such a section be added to the rule. Similary, Justices Sandstrom and Crothers in dissent stated summary affirmance was permissible at the time of Komad based upon a thorough review of legislative history and the history of the creation of the rules of criminal procedure. In response to Komad the Joint Procedure Committee proposed Rule 37 be amended to allow for summary affirmance if the defendant failed to appear at trial anew. Minutes of the Joint Procedure Comm., September 28-29, 2006, pg. 8. Upon review of the meeting minutes, all references are to summary affirmance upon failure to appear at the trial anew no discussion appears to have been undertaking regarding dismissal or summary affirmance for nonappearance prior to the trial anew. See Id, pg. 8-10.
7. Although the instant case is similar to Komad, there is still one very specific and paramount difference. While Komad was given the opportunity to appear at his trial anew and did not (regardless of reason), Mr. White was never afforded the opportunity to appear at his trial anew. Rule 37(l) is specific and unambiguous. Rule 37(l) provides a district court must summarily affirm the municipal judgment "[i]f the appellant fails to appear at the trial anew". Much like Komad, the district judge's discretion when there is nonappearance by a defendant at a dispositional conference is to continue the proceedings, issue a bench warrant pursuant to N.D.Ct. Rule 6.6, or do both. No rule provides for the dismissal of the appeal or summary affirmance for nonappearance prior to the trial anew. "[D]ismissal of [Komad's] appeal would have been a violation of N.D.R.Crim.P. 43 and the judge was without discretion to dismiss." Komad, at ¶16.
8. Rule 37 specifically provides the summary affirmance order mandated to the district court is to be entered as a judgment [of conviction] of the district court. A judgment of conviction is appealable pursuant to N.D.C.C. 29-28-6. Further, a district court judge's discretion when a defendant fails to appear at a preliminary proceeding in an appeal from municipal court to district court is to continue the hearing, issue a bench warrant, or both. A district court judge is without the discretion to dismiss a municipal appeal for a defendant's nonappearance prior to the trial anew. Mr. White did not appear at a dispositional conference, which subjects him to a bench warrant. A dispositional conference is not the equivalent of a trial anew and therefore the summary affirmance order is error.
9. Mr. White therefore respectfully requests this Court remand the case to the district court for hearing to determine if a bench warrant is appropriate pursuant to Rule 6.6 and trial anew.
|Respectfully submitted this 3rd day of August, 2013,|
|_Stormy Vickers /s/__|
|Stormy Vickers (#6539)|
|Attorney for Jason White|
|109 ½ Broadway, 2nd Floor|
|Fargo, ND 58102|
|P: (701) 365-4884|
|F: (701) 365-4885|