State v. Glaum

1

2024 ND 47

State of North Dakota, Plaintiff and Appellee v. Joseph Edward Glaum, Defendant and Appellant

No. 20230190

Supreme Court of North Dakota

March 18, 2024

Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable M. Jason McCarthy Judge.

Megan J. K. Essig, Assistant State's Attorney, Grand Forks, ND for plaintiff and appellee.

Leah J. Viste (argued) and Monty G. Mertz (on brief), Fargo, ND for defendant and appellant.

OPINION

MCEVERS, JUSTICE

[¶1] Joseph Glaum appeals following an amended criminal judgment and a district court order denying his request to withdraw his conditional guilty pleas. Glaum argues the court abused its discretion in denying his request to withdraw his guilty pleas because the court misapplied the factors to be considered for a motion to withdraw a guilty plea under N.D.R.Crim.P. 11. Glaum also alleges claims of ineffective assistance of counsel, and asserts the six issues preserved for appeal by his conditional pleas were wrongly decided by the court. He further includes a plethora of arguments not preserved in his conditional pleas. We affirm.

I

[¶2] In October 2021, Glaum was charged with two counts of gross sexual imposition alleged to have occurred in November 2015. Trial was scheduled for March 2022. The district court rescheduled the trial several times while the action was pending based on various motions and stipulations of the parties.

[¶3] In March 2022, the State filed a notice and brief on its intent to introduce a forensic interview of Jane Doe under N.D.R.Ev. 803(24). Glaum responded objecting to the motion. Before the district court ruled on the motion, a change of plea hearing was scheduled, and on August 18, 2022, a written plea agreement was filed indicating Glaum intended to plead guilty to two counts of gross sexual imposition.

[¶4] On August 30, 2022, David Dusek moved to withdraw as Glaum's trial counsel. A change of plea hearing was held on September 6, 2022, during which Glaum requested a different attorney. The district court granted Glaum's request for a new court-appointed attorney and Dusek's motion to withdraw. No action was taken on the written plea agreement. On September 8, 2022, Tyler Morrow was assigned as Glaum's court-appointed counsel.

[¶5] In November 2022, Glaum filed a motion requesting "hybrid" counsel, alleging Dusek and Morrow failed to communicate with him and collect evidence, and stated that he was supposed to have a speedy trial. The district court denied the motion for failure to comply with Rule 3.2, N.D.R.Ct.

[¶6] The district court scheduled a hearing on the State's motion to introduce 803(24) evidence for January 20, 2023. On January 3, 2023, the State filed a notice of additional witnesses. On January 12, 2023, Glaum, on his own behalf, filed a demand for change of judge and another motion for hybrid counsel. On January 19, 2023, the State provided notice of its witnesses, filed a notice of intent to introduce evidence of Glaum's prior acts under N.D.R.Ev. 404(b), and responded to Glaum's request for hybrid counsel and demand for change of judge. On January 20, 2023, the State moved to amend the information to add the two additional witnesses, and a motion hearing was held the same day. On the record and in its order, the court: denied Glaum's motion for hybrid counsel; denied Glaum's demand for change of judge; and took under advisement the State's motion to introduce evidence under Rule 803(24).

[¶7] On January 23, 2023, a status conference was held. At the beginning of the status conference, Glaum stated he still wished to proceed to trial. The district court ruled the second forensic interview of Jane Doe was admissible at trial under Rule 803(24). The court then granted the State's motion to amend the information to add witnesses. Morrow moved to continue the trial based on the court granting the State's motion to amend the information. The court denied the motion and granted the State's motion to introduce evidence of Glaum's prior acts under N.D.R.Ev. 404(b), ruling evidence of Glaum's grooming behavior and domestic violence perpetrated against Jane Doe was admissible. On the afternoon of January 23, 2023, Glaum informed the court through counsel that he wished to change his plea, and a change of plea hearing was held. At the hearing, Glaum entered conditional Alford pleas to both counts of gross sexual imposition, preserving six issues for appeal. The court accepted Glaum's pleas after finding they were made knowingly, voluntarily, and intelligently.

[¶8] In February 2023, Glaum filed letters on his own behalf with the district court requesting to withdraw his guilty pleas, asserting ineffective assistance of counsel claims on the part of Dusek and Morrow, objecting to the State's introduction of evidence, and alleging various constitutional violations.

[¶9] In March 2023, Glaum again filed a letter with the district court discharging Morrow as his counsel, alleging a conflict of interest. Morrow then moved to withdraw as counsel. On April 23, 2023, the court granted Morrow's motion to withdraw. On May 10, 2023, Mark Beauchene filed a notice of limited appearance as Glaum's counsel. Through counsel, Glaum filed a request to address his motion to withdraw his guilty pleas prior to sentencing. A sentencing hearing was scheduled for May 11, 2023.

[¶10] On May 10, 2023, the day before the sentencing hearing, the parties entered, and the district court accepted, the written agreement for entry of conditional guilty pleas supporting the guilty pleas previously entered on the record in January 2023. At the sentencing hearing, the court noted the procedural defects in Glaum's motions to withdraw his guilty pleas, but addressed the request on the merits applying the factors set forth in State v. Lium, 2008 ND 232, 758 N.W.2d 711. The court denied Glaum's request to withdraw his guilty pleas under the totality of the circumstances. Glaum was sentenced, and following entry of an amended judgment, appealed.

II

[¶11] Glaum argues the district court abused its discretion in denying his motion to withdraw his guilty pleas because a fair and just reason exists to withdraw his guilty pleas and the State is not substantially prejudiced by withdrawal of his guilty pleas.

[¶12] The withdrawal of guilty pleas is governed by Rule 11(d), N.D.R.Crim.P. The standard of review is abuse of discretion. See State v. Yalartai, 2023 ND 208, ¶ 8, 997 N.W.2d 609. "A court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, or it misinterprets or misapplies the law." Id. (quoting State v. Guthmiller, 2019 ND 85, ¶ 6, 924 N.W.2d 785). This Court has utilized a non-exhaustive list of factors to determine whether a defendant has shown a fair and just reason to withdraw a guilty plea:

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.

Guthmiller, 2019 ND 85, ¶ 9 (cleaned up) (relying on Lium, 2008 ND 232, ¶ 17).

[¶13] Upon review of the record, the district court did not abuse its discretion in weighing the factors outlined in Lium, and did not clearly err in determining on this record that Glaum did not meet his burden to show a fair and just reason to withdraw his conditional guilty pleas. Because Glaum failed to establish a fair and just reason to allow withdrawal of his conditional guilty pleas, we decline to address whether the State would have been substantially prejudiced by withdrawal of his conditional guilty pleas. See Guthmiller, 2019 ND 85, ¶ 8 (this Court will inquire into the State's prejudice only after the defendant establishes a fair and just reason to withdraw the plea).

[¶14] We summarily affirm the district court's order denying Glaum's withdrawal of guilty pleas under N.D.R.App.P. 35.1(a)(2) and (4).

III

[¶15] In his supplemental statements on appeal, Glaum alleged he received ineffective assistance from two of his trial attorneys, David Dusek and Tyler Morrow. Glaum claimed his attorneys failed to: (1) communicate with him, (2) interview or subpoena witnesses, (3) file suppression motions, (4) collect evidence, and (5) assert his rights.

[¶16] Glaum has not pointed to any evidence in the record supporting these claims. We have previously noted the difficulty in addressing ineffective assistance of counsel claims on direct appeal:

[A]n ineffective assistance of counsel claim should not be brought on direct appeal. Ineffective assistance of counsel claims are best brought in a post-conviction relief proceeding where the parties are able to fully develop the record. When a claim is raised on direct appeal, we review the record to determine if counsel was plainly defective. When the record on direct appeal is inadequate to determine whether the defendant received ineffective assistance, the defendant may pursue the ineffectiveness claim at a post-conviction proceeding where an adequate record can be made.

State v. Keener, 2008 ND 156, ¶ 13, 755 N.W.2d 462 (cleaned up).

[¶17] We conclude the record is inadequate to determine...