State v. Fischer

1

2024 ND 29

State of North Dakota, Plaintiff and Appellee v. Devin Louis Fischer, Defendant and Appellant

No. 20230239

Supreme Court of North Dakota

February 22, 2024

Appeal from the District Court of Williams County, Northwest Judicial District, the Honorable Benjamen J. Johnson, Judge.

Nathan K. Madden, Assistant State's Attorney, Williston, ND, for plaintiff and appellee; submitted on brief.

Richard E. Edinger, Fargo, ND, for for defendant and appellant.

OPINION

CROTHERS, JUSTICE.

[¶1] Devin Fischer appeals from a district court's judgment and amended judgment finding him guilty of reckless endangerment and terrorizing. Fischer argues the court erred by implicitly accepting and then rejecting a binding plea agreement, which required him to go to trial on the original charges. Fischer also argues the district court judge was biased against him and erred in not granting his motion to recuse. We affirm.

I

[¶2] On January 9, 2022, Fischer attempted to enter the home of his estranged wife but was unsuccessful. In the process, he fired four .38 caliber rounds into a door lock and door jam. Fischer left the home and disposed of the gun. The police later arrested Fischer and charged him with burglary reckless endangerment, terrorizing and tampering with physical evidence.

[¶3] In January 2023, the State and Fischer reached a plea agreement. The agreement called for the State to dismiss the burglary, reckless endangerment, tampering with physical evidence charges, and to amend the class C felony terrorizing charge to class A misdemeanor menacing. On January 17, 2023 the district court held a hearing to consider the plea deal.

[¶4] Midway through the hearing, the district court learned that several individuals wanted to exercise their victim rights under N.D. Const. art. I, § 25(1)(g) and attend the court's hearing. The court proceeded with the change of plea, stating "[w]hat we're going to do is we'll deal with the guilty plea. We'll accept that, and then we'll see [when] they're going to be here and if we can work it in to do the sentencing this afternoon or tomorrow, but we'll just see with that."

[¶5] During the proceeding on January 17, 2023, the State notified the district court that this was a binding plea under N.D.R.Crim.P. 11, which the court acknowledged. That exchange included the following:

"The Court: Attorney Madden, this is binding under Rule 11?

Mr. Madden: Yes.

The Court: What that means, Mr. Fischer, is I have the authority to accept or reject the agreement. If I accept the agreement, I have to sentence you in accordance with it. If I reject the agreement, then I would allow you to withdraw your guilty plea and you can proceed to trial. Do you understand that?

The Defendant: I understand."

[¶6] The State orally amended the terrorizing charge to menacing. Fischer pleaded guilty to the amended charge. The State provided a factual basis, which Fischer agreed was "substantially true and correct and that's why [he was] pleading guilty to this offense of menacing here today[.]" That factual basis included informing the court Fischer fired bullets into a locked door while people were in the house. After a Rule 11 colloquy, the court found the guilty plea was knowingly and voluntarily entered, an adequate factual basis existed, and accepted the guilty plea. The court "set aside the other counts till later" and planned to return later in the day or the next day to hear from the victims and for sentencing.

[¶7] The next day, January 18, 2023, the district court judge opened the proceeding by stating, "This is a sentencing hearing. Defendant pled guilty yesterday to Class A misdemeanor of menacing." During the hearing three individuals provided victim impact statements, and one of them played the video of Fischer shooting the door and attempting to enter the home.

[¶8] After watching the video, the district court judge stated the evidence and witnesses' statements create a "felony." He further stated, "[a]nd frankly, after watching that video, if the video was offered, I don't realistically see how he would be found not guilty of all of those charges." Subsequently, the court rejected the plea agreement.

[¶9] On February 13, 2023, the district court conducted a pre-trial conference where it heard from the State and Fischer about rejection of the plea agreement and Fischer's claim the court was biased due to the statements made by the judge during the proceeding on January 18. The court ruled that the plea agreement was not accepted, the fact that 18 hours lapsed between accepting the guilty plea and rejecting the plea agreement is not determinative, and the judge would not grant the motion to recuse because he made his statements in open court as part of the need to explain why he rejected the plea agreement.

[¶10] On May 8, 2023, the district court convened a three-day trial where the jury found Fischer guilty of terrorizing and reckless endangerment. The jury found Fischer not guilty on the charges of burglary and tampering with physical evidence. Fischer timely appealed in July 2023, and this Court temporarily remanded to the lower court to correct the judgment.

II

[¶11] Fischer argues the district court erred by rejecting his plea agreement the day after expressly accepting his guilty plea to the amended charge of menacing. The dispositive question is whether the court implicitly accepted the plea agreement by accepting Fischer's guilty plea to the reduced charge of menacing.

[¶12] We first consider our standard of review, which neither party briefed as required by N.D.R.App.P. 28(b)(7)(B). A district court has broad discretion in deciding whether to accept or reject a guilty plea or a plea agreement. See Santobello v. New York, 404 U.S. 257, 262 (1971) ("A court may reject a plea in exercise of judicial discretion."); U.S. v. Vanderwerff, 788 F.3d 1266, 1271 (10th Cir. 2015) ("We review a district court's decision not to accept a plea agreement for abuse of sound discretion."). This Court has not addressed the narrower issue raised here about whether a court's acceptance of a guilty plea constitutes the implicit acceptance of an overall plea agreement. Therefore, we have no precedent and look outward for guidance.

[¶13] North Dakota Rule of Criminal Procedure 11 is adopted from and is similar to, F.R.Crim.P. 11. See N.D.R.Crim.P. 11, Explanatory Note. "[A]ny interpretation and construction placed upon identical or similar language by the federal courts will be entitled to great weight in applying the rule to state courts." State v. Holy Bull, 238 N.W.2d 52, 55 (N.D. 1975). South Dakota also has adopted a criminal rule of procedure that is modeled after federal rule 11. State v. Hale, 2018 S.D. 9, ¶ 15, 907 N.W.2d 56. South Dakota Supreme Court addressed the appropriate standard of review in a similar case, concluding, "Whether the circuit court accepted a binding plea agreement is a question of law reviewed de novo." Id. at ¶ 11 (citing State v. Shumaker, 2010 S.D. 95, ¶ 5, 792 N.W.2d 174). A federal court similarly concluded, "Whether the district court is required to enforce a plea agreement is a question of law, which we review de novo." U.S. v. Fagan, 996 F.2d 1009, 1013 (9th Cir. 1993). We agree with these courts that the question whether a plea agreement was approved requires application of law rather than exercise of discretion. Therefore, we review Fischer's question de novo.

[¶14] "Once the court has accepted a plea agreement, however, it is, as a general rule, bound by the terms of that agreement." U.S. v. Ritsema, 89 F.3d 392, 399 (7th Cir. 1996); see also U.S. v. Cunavelis, 969 F.2d 1419, 1422 (2d Cir. 1992) (if the court accepts the plea agreement, it must conform to the sentence of that bargain); Fagan, 996 F.2d at 1012-14 ("once the district court accepts a guilty plea, absent fraud or breach of the plea agreement by the defendant, the court has no authority to vacate the guilty plea"); U.S. v. Yesil, 991 F.2d 1527, 1532-33 (11th Cir. 1992) (if the court accepted the plea agreements, the defendant's rights should be "redressed by specific performance of the plea agreement in the form of evidentiary hearings before a different district court judge"); U.S. v. Olesen, 920 F.2d 538, 540 (8th Cir. 1990) ("Once a court has accepted an agreement, however, there is no provision in the rules that allows it to reject or modify the agreement.").

[¶15] The entry of pleas and making of plea agreements is controlled by N.D.R.Crim.P. 11. Rule 11(a) regulates entry of guilty, not guilty, and conditional pleas. Id. Rule 11(b) regulates the advice judges must provide to defendants, ensuring voluntariness, and requiring a factual basis containing all elements of a crime before a guilty plea can be accepted. Id. Unlike Rule 11(a) and (b) pertaining to pleas, Rule 11(c) regulates the use of plea agreements. Id.

[¶16] Under N.D.R.Crim.P. 11(c)(2) "[t]he parties must disclose the plea agreement in open court when the plea is offered, unless the court for good cause allows the parties to disclose the plea agreement in camera." Here, the parties and the district court complied with this portion of Rule 11 by disclosing the agreement and its terms at the January 17, 2023 hearing.

[¶17] For a binding plea agreement like that offered here "the court may accept the agreement, reject it, or defer a decision until the court has reviewed the presentence report." N.D.R.Crim.P. 11(c)(3)(A). If the agreement is accepted, the court "must inform the defendant that, to the extent the plea agreement is of the type specified in Rule 11(c)(1)(A) [forebear bringing or dismiss other charges] or (C) [agreed upon sentence], the agreed disposition will be included in the judgment." N.D.R.Crim.P. 11(c)(...