City of Fargo v. Christiansen

430 N.W.2d 327, 1988 N.D. LEXIS 204, 1988 WL 108138
CourtNorth Dakota Supreme Court
DecidedOctober 18, 1988
DocketCrim. 870368
StatusPublished
Cited by15 cases

This text of 430 N.W.2d 327 (City of Fargo v. Christiansen) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Fargo v. Christiansen, 430 N.W.2d 327, 1988 N.D. LEXIS 204, 1988 WL 108138 (N.D. 1988).

Opinions

VANDE WALLE, Justice.

Terryl Christiansen appealed from a judgment of conviction sentencing him for driving under the influence, second offense, in violation of a City of Fargo ordinance. We affirm.

On June 12, 1987, Christiansen was found guilty in municipal court of driving under the influence in violation of Fargo City Ordinance 8-0310B. The court sentenced him to 30 days in jail, with 26 days suspended, and a $500 fine. Christiansen appealed his conviction to the Cass County court of increased jurisdiction pursuant to Section 40-18-19, N.D.C.C.

An amended complaint was filed in county court alleging that Christiansen had been convicted of DUI in the past five years in violation of “§ 39-08-01,[1] NDCC,

[328]*328Fargo City Ordinance 8-0310, or other equivalent city ordinance, or state statute during the five years previous to this offense.” Christiansen, relying upon State v. Orr, 375 N.W.2d 171 (N.D.1985), filed a motion in limine seeking to disallow use of his prior DUI conviction for augmentation of sentence because the record is insufficient to indicate a valid waiver of counsel at the time of the prior conviction.

At the hearing on the motion, Christian-sen argued that the procedure used by the municipal court in handling DUI cases was not sufficient to overcome the City’s burden to show that the defendant waived his right to counsel. Although no evidence was introduced as to the exact procedure used by the court that convicted Christian-sen in 1985, the parties stipulated as to the procedure generally used in the Fargo municipal court:

“MR. JOHNSON [for the City]: Okay. Typically the — a defendant is called before a municipal judge and in this particular case I believe it was Judge Davies who signed that waiver form.[2] And he [329]*329—the charge is read to the defendant and he is asked whether he — typically the judge asks whether he waives his right to an attorney or whether he wishes to speak to an attorney. At the same time the judge usually asks if the defendant has completed this waiver form that we are submitting to the Court at this time.
“THE COURT: Excuse me. When does the defendant get the form?
“MR. JOHNSON: Usually when the defendant checks in — gives the clerk of court his name, he’s given this form to fill — complete, and he is allowed the time, I guess, from the time he checks in until his name is called to read the — read the form, the rights that are indicated in somewhat detail on the form and then fill in the blanks as he sees fit.
“At the time he appears in front of the judge then, the judge says did you bring a form with you, and the defendant says here it is, and he says do you wish to waive your right to an attorney, or do you want to talk to an attorney. And then the defendant replies appropriately. If the defendant decides that he does not want to speak with an attorney, the judge then asks him well, how he wants to plea[d]. The defendant pleads guilty, let’s say, and the judge then I believe signs his name to the form indicating that he accepted a plea of guilty.
“THE COURT: And is that prior to — ?
“MR. JOHNSON: If I could refresh my memory, I could look at the form to see that.
“THE COURT: Is that prior to the defendant having filled out and signed the form?
“MR. JOHNSON: Your Honor, I guess it depends on the defendant, particularly the defendant. If the defendant completed the form and signed his name, then he would have signed his name and dated it prior to actually standing before the judge and pleading guilty. But in many cases the defendant hasn’t signed his name to anything and the defendant, after the guilty plea is given, and the sentence given, the defendant steps to the judge’s right and speaks with the clerk and I presume that the clerk makes sure that his signature is on the document. If the Court wanted to make a presumption in this case in favor of the defendant, I don’t think the City could really argue against it, and that presumption being that the document was actually signed some moments after the actual guilty plea and sentence was given.”

Article I, Section 12, of the North Dakota Constitution provides, in part, that “[i]n criminal prosecutions in any court whatever, the party accused shall have the right to ... defend in person and with counsel.” Thus an accused has the right to counsel absent a knowing and intelligent waiver of that right. State v. Gustafson, 278 N.W. 2d 358 (N.D.1979). See also Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). As we stated in Orr, supra, 375 N.W.2d at 179, “municipal courts (and all others) must obtain a valid waiver of counsel on the record or afford a nonindigent defendant the opportunity to retain counsel, or appoint counsel for an indigent DUI defendant regardless of the penalty to be imposed, if enhancement of punishment for a subsequent conviction is not to be precluded.” [Footnotes omitted.] The prosecution has the burden of showing the defendant validly waived counsel in a prior uncounseled conviction. Id.

At trial, the City introduced the Notification of Rights and Acknowledgment [330]*330form signed by Mr. Christiansen when he was convicted of DUI in 1985. The form specified the numerous rights of a criminal defendant, such as the privilege against self-incrimination, the right to trial by jury, the right to confront witnesses, and the right to the assistance of counsel. Moreover, the form indicated that “[i]f you plead guilty to the charge, you are informed that there will be no further trial of any kind, and you will give up your rights to trial and to confront the witnesses against you, as well as your privilege against self-incrimination.”

Municipal courts are not courts of record. Section 27-01-01, N.D.C.C. This does not mean, however, that all municipal court judgments have no effect on future proceedings. See, e.g., Sections 40-18-01 and 40-18-14, N.D.C.C.; City of Riverside v. Helenske, 413 N.W.2d 363 (N.D.1987). In reviewing the procedures used in municipal courts for recording their actions, we are mindful of the typical environment of municipal courts. And, as we are able to determine from the record that the court acted in accordance with the defendant’s constitutional rights and privileges, and substantially complied with the procedures adopted to protect those rights and privileges, the record should be deemed adequate and the process chosen by the court should be given considerable weight. See Koenig v. State, 99 Nev. 780, 789, 672 P.2d 37, 43 (1983) [“In evaluating the procedures used and the court record made in municipal arid justice court prosecutions for misdemeanors, the realities of the typical environment of such prosecutions in these courts of limited jurisdiction cannot be ignored.

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City of Fargo v. Christiansen
430 N.W.2d 327 (North Dakota Supreme Court, 1988)

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Bluebook (online)
430 N.W.2d 327, 1988 N.D. LEXIS 204, 1988 WL 108138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-fargo-v-christiansen-nd-1988.