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New Opinions: Nov. 9 Thursday, November 9, 2023

State v. Sparkman 2023 ND 212
Docket No.: 20230134
Filing Date: 11/9/2023
Author: Per Curiam

Highlight: A criminal judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

McGinnis v. State 2023 ND 211
Docket No.: 20230119
Filing Date: 11/9/2023
Author: Per Curiam

Highlight: A district court’s order denying postconviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Anderson 2023 ND 210
Docket No.: 20230145
Filing Date: 11/9/2023
Case Type: ASSAULT
Author: Jensen, Jon J.

Highlight: When the intent element of terrorizing is met based on reckless disregard of the risk, awareness of the risk is not required if the absence is due to self-induced intoxication.

Preventing arrest under N.D.C.C. § 12.1-08-02 includes not only preventing the arrest but also effecting such an arrest. Preventing law enforcement actions such as being placed in handcuffs or being secured for transport could be the basis for a preventing arrest charge.

State v. Morales 2023 ND 209
Docket No.: 20230080
Filing Date: 11/9/2023
Author: Crothers, Daniel John

Highlight: North Dakota Rule of Criminal Procedure 11(d) governs the withdrawal of a guilty plea. To withdraw a guilty plea after the court has accepted the plea but before sentencing, a defendant must show a fair and just reason for the withdrawal.

State v. Yalartai 2023 ND 208
Docket No.: 20230065
Filing Date: 11/9/2023
Author: McEvers, Lisa K. Fair

Highlight: A defendant moving to withdraw his guilty plea before sentencing bears the burden of establishing a fair and just reason exists.

Among the factors that a district court may consider in determining whether a fair and just reason exists to withdraw a guilty plea before sentencing are: (1) the amount of time that has passed between the entry of the plea and the motion to withdraw; (2) defendant’s assertion of innocence or a legally cognizable defense to the charge; (3) prejudice to the government; (4) whether the plea was knowing and voluntary; (5) whether the plea was made in compliance with Rule 11, N.D.R.Crim.P.; (6) whether adequate assistance of counsel was available to the defendant; (7) the plausibility of the reason for seeking to withdraw; (8) whether a plea withdrawal would waste judicial resources; and (9) whether the parties had reached or breached a plea agreement.

A defendant who voluntarily pleads guilty waives the right to challenge nonjurisdictional defects, including alleged violations of constitutional rights that occur before the guilty plea.

Kaspari v. Kaspari 2023 ND 207
Docket No.: 20230189
Filing Date: 11/9/2023
Author: Bahr, Douglas Alan

Highlight: This Court only has jurisdiction to review judgments which are timely appealed. If we conclude the attempted appeal fails for lack of jurisdiction, we have the duty to dismiss the appeal sua sponte.

A motion under N.D.R.Civ.P. 60 does not toll the time to appeal unless the motion is served and filed no later than 28 days after notice of entry of judgment.

This Court does not consider issues which are not adequately articulated, supported, and briefed.

State v. Kovalevich 2023 ND 206
Docket No.: 20230101
Filing Date: 11/9/2023
Author: Bahr, Douglas Alan

Highlight: When a defendant has previously filed a post-conviction relief application, a subsequent motion filed under the Rules of Criminal Procedure will be treated as an application for post-conviction relief when the motion seeks to evade the boundaries of post-conviction proceedings.

When a pre-filing order is in effect, a district court must make the required initial determinations whether a particular litigant’s proffered papers will be filed before ruling on the merits of the proposed filing.

Orders denying leave to file are not appealable.