author: EDWARD J. PARKER, Judge.

text:
    NORWEST BANK MINNESOTA, N.A., as Trustee under that Certain Pooling and Service Agreement dated as of March 1, 1998 for Southern Pacific Secured Assets Corp. Mortgage Loan Asset-Backed Pass-Through Certificates, Series 1998-1, Respondent, v. Paul N. ODE; Paul N. Ode as Trustee of the Esther Ode Inter Vivos Trust Dated February 12, 1982; John Doe and Mary Roe, Defendants, Jeanine Ode, et al., Appellants.
    No. C0-00-133.
    Court of Appeals of Minnesota.
    Aug. 1, 2000.
    Review Denied Oct. 17, 2000.

      Lawrence P. Zielke, Beth W. Asmussen, Shapiro & Nordmeyer, Edina, for respondent.
    James T. Hynes, Stapelton, Nolan & Hynes P.A., St. Paul, for appellants.
    Considered and decided by TOUSSAINT, Chief Judge, HALBROOKS, Judge, and PARKER, Judge.
   OPINION

EDWARD J. PARKER, Judge.

■ Appellants challenge the district court décision granting respondent summary judgment and a decree of foreclosure on a mortgage, contending reformation was not appropriate under the circumstances. We reverse and remand.

FACTS

The owner of the property at issue is the Esther Ode Inter Vivos Trust dated February 12, 1982. The trustee during the relevant time was Paul Ode, and the beneficiaries are appellants Jeanine Ode and Michelle Ode, Esther Ode’s granddaughters and Paul Ode’s daughters.

In 1995, the trustee obtained a mortgage on the trust property; it appears undisputed that he used the proceeds for his own purposes. He later defaulted, and a foreclosure sale took place on August 12, 1997. Ode sought a loan from Oceanmark Financial Corporation to redeem the property. As part of this process, on January 4,1998, Old Republic National Title Insurance Company issued a title commitment, performed by another title company and billed to Oceanmark. It required the following documents if the mortgage were to be executed by Ode individually:

(1) Deed executed by Paul N. Ode, as Trustee of the Esther Ode Inter Vivos Trust dated February 12, 1982, to Paul N. Ode.
(2) Full copy of Trust Instrument, to be reviewed by Old Republic National Title for possible further requirements. NOTE: Because such a transfer potentially implies “self-dealing,” we must have review and approval by Old Republic.
(3) Mortgage shall be executed by Paul N. Ode, and spouse, if any.
(4) Affidavit of Trustee, in recordable form.
(5) Certificate of Trust, in recordable form.
(6) Transfer Requirements: Affidavit of Trustee Seller; Affidavit of Purchaser; Well Disclosure Statement; and Certificate of Real Estate Value.
(7)Septic Certifications, as per requirements of Cook County (if any).

On the last day of the redemption period, February 12, 1998, Ode redeemed the property by obtaining a loan from Ocean-mark for $97,800, secured by a mortgage on the trust property. He signed the note and the mortgage as Paul Ode individually, not as Paul Ode trustee. On the following day, Oceanmark assigned the mortgage to respondent Norwest Bank. Several weeks later, Ode was asked to sign a quit-claim deed, back-dated to February 12, 1998, that would have transferred the trust property from Paul Ode as trustee to Paul Ode individually. He refused.

Ode defaulted on the loan and Norwest brought a foreclosure action. It initially sought reformation of the chain of title to show that title to the trust property vested in Paul Ode individually, rather than in Paul Ode as trustee, contending that a mutual mistake had occurred. Norwest scheduled a motion for summary judgment, but shortly before the hearing, appellant beneficiaries became aware of the mortgages for the first time and intervened. They obtained a continuance and moved for summary judgment as well. Norwest then filed an amended complaint seeking reformation of the chain of title or, in the alternative, reformation of the mortgage to show Paul Ode executed it in his capacity as trustee.

After the hearing, the district court reformed the mortgage to provide that it was executed by Paul Ode in his capacity as trustee; the court said this was done to avoid unjust enrichment of appellant beneficiaries. The district court later granted a decree of foreclosure and ordered the property sold by sheriffs sale.

The beneficiaries appealed, and Norwest filed a notice of review. Ode did not participate in the appeal.

ISSUE

Was reformation proper?

ANALYSIS

A. Reformation

Trial court findings of fact in a reformation action mil not be reversed unless clearly erroneous. Theisen’s, Inc. v. Red Owl Stores, Inc., 309 Minn. 60, 66, 243 N.W.2d 145, 149 (1976). But an appellate court will reverse if the facts do not support the legal conclusion as to reformation. Kleis v. Johnson, 354 N.W.2d 609, 612 (Minn.App.1984).

A court may reform a written instrument — -in this case the mortgage — if three elements are present:

(1) there was a valid agreement between the parties expressing their real intentions; (2) the written instrument failed to express the real intentions of the parties; and (3) this failure was due to a mutual mistake of the parties, or a unilateral mistake accompanied by fraud or inequitable conduct by the other party-

Nichols v. Shelard Nat’l Bank, 294 N.W.2d 730, 734 (Minn.1980) (citations omitted). “The evidence supporting reformation of a written instrument, including a deed, must be consistent, clear, unequivocal, and convincing.” Kleis, 354 N.W.2d at 611 (citation omitted).

“Reformation is generally allowed against the original parties to an instrument and those in privity with the original parties.” Manderfeld v. Krovitz, 539 N.W.2d 802, 805 (Minn.App.1995), review denied (Minn. Jan. 25, -1996). One who is not a party or not in privity with a party to an agreement cannot be bound by it. Nunnelee v. Schuna, 431 N.W.2d 144, 148 (Minn.App.1988), review denied (Minn. Dec. 30,1988).

Ode as an individual signed the note and mortgage, while Ode as trustee controlled'the trust assets. We first address whether Ode as an individual was in privity with Ode as trustee, such that an agreement by Ode as an individual would be binding on Ode as trustee. “At law a trustee is regarded as owner of the trust property with ‘all the rights and subject to all the . liabilities of ownership.’ ” McLaughlin v. Minnesota Loan & Trust Co., 192 Minn. 203, 208, 255 N.W. 839, 841 (1934) (citation omitted). The trustee is authorized to mortgage trust assets, Minn. Stat. § 501B.81, subd. 19 (1998), and the trust document specifically allowed the trustee to enter into mortgages as well. But a trustee is forbidden from purchasing or dealing “in the trust property for his own benefit or on his own behalf, either directly or indirectly.” Malcolmson v. Goodhue County Nat'l Bank, 198 Minn. 562, 567, 272 N.W. 157, 160 (1936). Here, Ode refused to sign the back-dated Trustee’s Deed that would have transferred the trust assets to him individually.

Privity has been described as “merely the name for a legal relation arising from right and obligation.” La Mourea v. Rhude, 209 Minn. 53, 57, 295 N.W. 304, 307 (1940). In this case, there is no legal relationship between the individual and the trustee; to the contrary, a trustee may not déal in trust property for his own benefit. Malcolmson, 198 Minn, at 567, 272 N.W. at 160. Ode as an individual and Ode as trustee do not have a legal relationship and, as a matter of law, are not in privity with each other. The district court order would have had the effect of ordering Ode to violate the trust provisions.

B. Valid Agreement

We next address whether, in any event, the parties had reached a valid agreement expressing their real intentions. Nichols, 294 N.W.2d at 734. The court determined the parties intended that the trust property provide security for the loan. But the court also found that respondent ■ took what we believe are two different positions, “that Ode either acquire the property from the trust or, alternatively, that he execute the note and the mortgage on behalf of the trust.” After the closing, Ode was asked to sign a quitclaim deed so he could transfer the property from the trust to himself individually.

An agreement is defined as follows:

A mutual understanding between two or more persons about their relative rights and duties regarding past or future performances; a manifestation of mutual assent by two or more persons.

Black’s Law Dictionary 67 (7th ed.1999). The district court findings show, as a matter of law, that there was no agreement. An agreement that Ode as an individual would gain title to trust property is far different from an agreement that Ode as trustee would sign the note and mortgage.

C. Mistake

We next address whether the “mistake” the district court corrected was one that could be remedied by reformation. An agreement may be reformed when the parties made a mutual mistake, there was a unilateral mistake by one party accompanied by fraud or inequitable conduct, or the parties failed to comply with a legal requirement for execution, such as including the proper grantor. Berg v. Carlstrom, 347 N.W.2d 809, 812 (Minn.1984). The district court found Oceanmark and Ode committed a mutual mistake in executing a mortgage agreement with Ode as an individual, rather than Ode as trustee.

If the trustee and Oceanmark had agreed that the mortgage would be between them and, by mutual mistake, contrary to their agreement, Ode individually was made a party to the mortgage, reformation would be available to correct this mistake. See id. But both Ode and Oceanmark knew he was obtaining a loan in his individual name, using the trust property as security. Oceanmark appears to have ignored the title company’s warnings of title problems foreseen for this transaction, and instead went forward without resolving them. This is not a mutual mistake that reformation was intended to correct. Instead, reformation was an abuse of discretion because it amended the actual agreement, in which Ode was the grantor and personally responsible to one in which the trust was grantor and the res was collateral.

Respondent also contends it made a unilateral mistake, accompanied by inequitable conduct, because of misrepresentations by Ode. But Oceanmark’s title insurance company had warned that before the trust property could provide security, a trustee’s deed would be necessary if Ode executed the mortgage as an individual (and pointed out that such a transfer “implies self-dealing” by the trustee). It nonetheless proceeded to go forward and close with Ode as an individual without obtaining such documents. This is not a “mistake” to which reformation applies. See Manderfeld, 539 N.W.2d at 806 (holding court may not reform contract to correct “mistake” in not obtaining consent of joint tenant). Under the circumstances, reformation was not properly exercised here.

D. Unjust Enrichment

Finally, the district court determined that unjust enrichment of the beneficiaries warranted reformation. Equitable grounds alone provide an insufficient basis for reformation. Otto v. Weber, 379 N.W.2d 692, 695 (Minn.App.1986). Further, it must be based on “unjust” behavior in the sense of illegal or unlawful behavior. Hesselgrave v. Harrison, 435 N.W.2d 861, 864 (Minn.App.1989), review denied (Minn. Apr. 24, 1989). There is no evidence that the beneficiaries engaged in such unjust behavior; indeed, they were unaware of the first mortgage, the foreclosure, and this mortgage. In fact, in discussing his unjust enrichment conclusion, the trial court observed that “the beneficiaries committed no wrongdoing.”

In addition, unjust enrichment applies when there is no contract governing the rights of the parties. Stein v. O’Brien, 565 N.W.2d 472, 474 (Minn.App.1997). In this case, there is a contract and a legal remedy is available. Oceanmark loaned money to Ode as an individual; respondent may pursue its lawsuit against Ode individually to collect on the unsecured note.

E. Ratification

Respondent also addresses whether the beneficiaries should be bound by the agreement because they ratified it, although this was not a basis of the trial court’s order. First, we note the beneficiaries had no knowledge of the transactions until 14 months after they took place. Generally, however, a beneficiary is bound by the trustee’s decision, because the trustee “is regarded as owner of the trust property with all the rights and subject to all the liabilities of ownership.” McLaughlin, 192 Minn, at 208, 255 N.W. at 841 (citation omitted). But here, respondent’s theory would not apply, based on our holding that the trustee is not bound. Further, the record is utterly devoid of any evidence that the beneficiaries ratified Ode’s acts; on the contrary, they brought suit immediately upon learning the facts.

We do not reach the U.C.C. argument raised by respondent because we do not address arguments for the first time on appeal. Thiele v. Stick, 425 N.W.2d 580, 582 (Minn.1988).

Finally, the district court awarded respondent attorney fees pursuant to the note. See Minn.Stat. § 582.01, subds. 1, 2 (1998) (providing for award of attorney fees upon foreclosure). In light of our decision, we reverse the award of attorney fees.

DECISION

The district court orders reforming the mortgage, foreclosing the mortgage, and awarding attorney fees are reversed and remanded.

Reversed and remanded.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    2000 ND 146
    In the Matter of the Application for DISCIPLINARY ACTION AGAINST Thomas W. ROBB, a Person Admitted to the Bar of the State of North Dakota.
    No. 20000096.
    Supreme Court of North Dakota.
    July 20, 2000.
    See also, 1999 ND 161, 598 N.W.2d 808.
    Loralyn K. Hegland, Assistant Disciplinary Counsel,. Bismarck.
   PER CURIAM.

[¶ 1] Disciplinary Counsel objects to the Disciplinary Board’s dismissal of a petition for discipline against Thomas W. Robb. We hold Disciplinary Counsel has proven by clear and convincing evidence Robb violated N.D.R. Prof. Conduct 1.15(a) and 5.5(a). We reverse the Disciplinary Board’s dismissal and suspend Robb for a period of one year.

I

[¶ 2] In 1996, Robb began representing Amber Leno in a divorce case and a personal injury case. Robb sent a letter dated January 81, 1997, to the district court regarding the value of Leno’s and her husband’s property under N.D.R.Ct. 8.3.

[¶ 3] In early 1997, Leno’s husband subpoenaed Robb to appear at a hearing on February 3, 1997, and to bring any and all documents relating to the settlement of Leno’s personal injury case. Robb attended the hearing, but Leno herself did not attend. At the beginning of the hearing, the court pointed out Robb had not paid his 1997 license fees:

THE COURT: Okay. [Supreme Court personnel] indicate that you haven’t paid your ’97 fees.
ROBB: Well that’s true. Your Honor, you know, it’s never been a problem. I go on vacation every year in Mexico in February and when I get back from Mexico in March, I pay my fees. No, I have not paid my fees, Your Honor. THE COURT: Okay.
ROBB: Well then I guess I can’t appear for my client.

Later during the hearing, Robb testified he reached an agreement to settle Leno’s personal injury case for $6,000; he received two settlement checks, one made out to Leno for about $3,050 and one made out to himself for the remainder of the $6,000; and he sent Leno’s check to her.

[¶ 4] On July 2, 1999, Disciplinary Counsel filed a petition for discipline against Robb. Disciplinary Counsel alleged, in part, Robb violated N.D.R. Prof. Conduct 1.15(a) by failing to keep Leno’s share of the personal injury settlement proceeds separate from his own property and N.D.R. Prof. Conduct 5.5(a) by practicing law in 1997 despite not having paid his 1997 law license fee.

[¶ 5] A hearing was held before the Hearing Body of the Disciplinary Board on October 6, 1999. Regarding his alleged failure to properly safekeep client property, Robb testified he had a one-third contingency fee agreement with Leno on her personal injury case, he reached an agreement to settle that case for $6,000, and Leno received only about $3,050 of the settlement proceeds. He testified he requested two settlement checks, he “sent [Leno’s check] [to her] the minute [he] got it and put [his] in [his] pocket,” he did not “see anything but trouble using [trust accounts],” and he was “going to get rid of the trust account because this is the way [he does] personal injuries.” Robb also testified “[$]2,000 for the amount of work [he] did would have been sufficient ... [it] should have been [$]4,000 and [$]2,000,” he had no intent to “rip[] her off,” and he could not remember why the proceeds were divided differently. Regarding his alleged unauthorized practice of law, the following exchange occurred:

DISCIPLINARY COUNSEL: ... Why hadn’t you obtained a license for 1997 at the time of [the February 3, 1997] hearing?
ROBB: I had just returned from vacation. I was down in Mexico for three weeks. And I walked ice cold into this divorce trial I really wasn’t ready for and I simply hadn’t gone up to the capí-tol and renewed my license.

Robb later indicated he had “forgotten to renew” his license. Robb’s letter of January 31, 1997 to the court regarding Leno’s divorce case was admitted into evidence. An opinion of this Court involving a prior disciplinary action against Robb, Disciplinary Board v. Robb, 1999 ND 161, 598 N.W.2d 808, also was admitted. The opinion imposed a 60-day suspension on Robb, indicating Robb violated N.D.R. Prof. Conduct 3.4(c) and 1.16(e), Robb has substantial experience in the practice of law as he was admitted to practice in North Dakota in 1975, and Robb had four prior disciplinary offenses. Robb, at ¶¶ 2, 5, 9,11.

[¶ 6] The Hearing Body issued a report in November 1999. Emphasizing Robb testified that upon receiving the settlement checks he immediately mailed Leno’s check to her, the Hearing Body concluded there was not clear and convincing. evidence Robb had violated N.D.R. Prof. Conduct 1.15. Finding Robb merely served as a witness at the February 3, 1997 hearing and there was no other evidence which indicated the unauthorized practice of law, the Hearing Body concluded there was not clear and convincing evidence Robb had violated N.D.R. Prof. Conduct 5.5. The Hearing Body recommended dismissal of the petition against Robb.

[¶ 7] In an order dated March 20, 2000, the Disciplinary Board adopted the Hearing Body’s report and dismissed the petition. Disciplinary Counsel filed’objections to the dismissal.

II

[¶ 8] Under N.D.R. Lawyer Dis-cipl. 3.1(F)(1), we may review the dismissal of a petition for discipline. See N.D.R. Lawyer Discipl. 6.6 (indicating “[tjhese rules, as amended, become effective on July 1,1999” and “[a]ny matter then pending with respect to which a formal hearing has been commenced shall be concluded under the procedure existing, prior to the effective date of these rules”). We review disciplinary proceedings against attorneys de novo on the record. Disciplinary Board v. Boughey, 1999 ND 205, ¶ 8, 602 N.W.2d 268. Disciplinary Counsel must prove each violation by clear and convincing evidence. Disciplinary Action Against Dvorak, 2000 ND 98, ¶ 8, 611 N.W.2d 147. Although we give due weight to the findings, conclusions, and recommendations of the Disciplinary Board, we are not merely a rubber stamp, and we decide each proceeding upon its own facts. Boughey, at ¶ 8.

A

[¶ 9] Disciplinary Counsel contends there is clear and convincing evidence Robb violated N.D.R. Prof. Conduct 1.15(a). Under N.D.R. Prof. Conduct 1.15(a):

A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds shall be deposited in one .or more identifiable interest bearing trust accounts ....

If an attorney commingles and converts client property for. the attorney’s own use, the attorney violates the rule. Disciplinary Action Against Anderson, 491 N.W.2d 703, 703 (N.D.1992).

[¶ 10] Here, clear and convincing evidence shows Robb violated N.D.R. Prof. Conduct 1.15(a) by failing to hold a portion of Leno’s settlement proceeds separate from his own property. Although Robb testified that upon receiving the settlement checks, he immediately sent Leno’s check to her, he conceded Leno’s check was for about $3,050 and she should have received $4,000 under their contingency fee agreement. Leno thus received approximately $950 less than her share and Robb received approximately $950 more than his share. Since Robb testified he put the proceeds from his check “in [his] pocket,” Robb commingled approximately $950 of Leno’s money with his own property, thereby violating N.D.R. Prof. Conduct 1.15(a).

B

[¶ 11] Disciplinary Counsel argues there is clear and convincing evidence Robb violated N.D.R. Prof. Conduct 5.5(a). Under N.D.R. Prof. Conduct 5.5(a), “[a] lawyer shall not ... practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction.”

[¶ 12] Section 27-11-22, N.D.C.C., provides:

Every person who has an unrevoked certificate of admission to the bar of this state and who desires to engage in the practice of law ... shall secure an annual license from the state bar board on or before January first of each year....

[¶ 13] Here, clear and convincing evidence shows Robb violated N.D.R. Prof. Conduct 5.5(a) by practicing law before he had renewed his license as required by N.D.C.C. § 27-11-22. Robb asserts the transcript from the February 3, 1997 hearing indicates he only acted as a witness after the court pointed out he had not renewed his license. Robb’s January 31, 1997 letter to the court, however, clearly shows he practiced law before he had renewed his license for 1997. In the letter, Robb provided the court with information regarding Leno’s property relevant to her divorce case. Robb’s explanation he annually vacationed during February and renewed his license in March and “it’s never been a problem” suggests he has repeatedly practiced law in January prior to renewing his license.

Ill

[¶ 14] In determining the proper sanction for lawyer misconduct, we consider: (1) the duty violated, (2) the lawyer’s mental state, (3) the potential or actual injury caused by the misconduct, and (4) aggravating or mitigating factors. N.D. Stds. Imposing Lawyer Sanctions 3.0. Here, we address the first three considerations while discussing each of Robb’s violations, and.we then address aggravating factors.

[¶ 15] Robb violated his duty to safekeep client property. “Suspension is generally appropriate when a lawyer knows or should know that he is dealing improperly with client property and causes injury or potential injury to a client.” N.D. Stds. Imposing Lawyer Sanctions 4.12. Robb testified he did not recall why the settlement proceeds were divided in a manner inconsistent with the contingency fee agreement and he “would not have ripped [Leno] off.” Despite his testimony he would not have intended to injure his client, Robb should have known the division of the proceeds was inconsistent with the fee agreement. Robb also should have known his method of dealing with personal injury settlement proceeds by requesting two checks and, upon receipt of the checks, sending the client’s check to the client avoids the protections trust accounts provide clients. His method promotes his own interest in convenience and illustrates his clear disregard for his duty to safekeep client property. Robb’s violation caused injury to Leno since she received approximately $950 less than she was entitled to under the fee agreement. Robb’s violation of N.D.R. Prof. Conduct 1.15(a) thus justifies a suspension.

[¶ 16] Robb also violated his duty to secure his annual law license prior to practicing law in 1997. Disbarment is “generally appropriate” as a sanction for the unauthorized practice of law “when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession with the intent to obtain a benefit for the lawyer or another, and causes serious or potentially serious injury to a client, the public, or the legal system.” N.D. Stds. Imposing Lawyer Sanctions 7.1. “Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession and causes injury or potential injury to a client, the public, or the legal system.” N.D. Stds. Imposing Lawyer Sanctions 7.2. Robb’s letter and his explanation he often renewed his license in March after his February trip indicate he knowingly violated his duty to timely secure a law license. Robb’s knowing violation shows disrespect for the law and thus causes injury to the legal system. His conduct in sending the letter did not cause serious or potentially serious injury to Leno, the public, or the legal system. The letter merely provided information to the court regarding Leno’s property and did not appear to effect Leno’s case. Disciplinary Counsel conceded “[s]erious injury to Robb’s client, the public or the legal system were [sic] not alleged.” However, the record reflects Leno was not present at the hearing where Robb testified. Her interests were thus unrepresented by counsel after Robb acknowledged he could not appear on her behalf. Proceeding without representation had the potential to cause injury to Leno. Robb’s violation of N.D.R. Prof. Conduct 5.5(a) thus does not warrant disbarment but does warrant suspension.

[¶ 17] The record shows aggravating factors exist. Aggravating factors include “multiple offenses,” “substantial experience in the practice of law,” “prior disciplinary offenses,” and “a pattern of misconduct.” N.D. Stds. Imposing Lawyer Sanctions 9.22(d), (i), (a), and (c). In this proceeding, Robb has multiple offenses because he violated both N.D.R. Prof. Conduct 1.15(a) and 5.5(a). Robb has substantial experience in the practice of law as he was admitted to practice law in North Dakota in 1975. Finally, Robb has a pattern of misconduct which includes five pri- or disciplinary offenses: first, reprimand for violating N.D.R. Lawyer Discipl. 1.2(A)(2); second, public reprimand for violating Disciplinary Rule 7-101(A)(l) and (2) of the Code of Professional Responsibility and N.D.R. Prof. Conduct 1.3, 1.4(a) and 1.5; third, private reprimand for violating N.D.R. Prof. Conduct 1.3 and 1.4; fourth, private reprimand for violating N.D.R. Prof. Conduct 1.3 and 1.4, North Dakota Procedural Rules for Lawyer Disability and Discipline 1.2(a)(3), and N.D.R. Prof. Conduct 1.5(C); and fifth, 60-day suspension for violating N.D.R. Prof. Conduct 3.4(c) and N.D.R. Prof. Conduct 1.16(e). See Disciplinary Board v. Robb, 1999 ND 161, ¶¶ 5, 9, 11, 598 N.W.2d 808.

[¶ 18] In light of the injury to Leno by Robb’s violation of N.D.R. Prof. Conduct 1.15(a), Robb’s knowing violation of N.D.R. Prof. Conduct 5.5(a), and the significant aggravating factors, we conclude Robb’s misconduct warrants a suspension from the practice of law for a period of one year. This discipline is severe; however, we have indicated our orders “are not ‘empty noise,’ but are intended to protect the public.” See Disciplinary Action Against Dvorak, 2000 ND 98, ¶ 21, 611 N.W.2d 147. Since Robb is not currently licensed to practice law in North Dakota, his suspension will commence if and when he reapplies for a license. Before Robb may practice law again, he must apply for reinstatement in accordance with N.D.R. Lawyer Discipl. 4.5. We direct Robb to pay the costs of the disciplinary proceedings to be determined by the Disciplinary Board. See id.

IV

[¶ 19] Because there is clear and convincing evidence Robb violated N.D.R. Prof. Conduct 1.15(a) and 5.5(a), we reverse the Disciplinary Board’s dismissal of the petition against him. We suspend Robb for a period of one year, commencing if and when he reapplies for licensure, and direct him to pay costs.

[¶ 20] GERALD W. VANDE WALLE, C.J, CAROL RONNING KAPSNER, DALE SANDSTROM, WILLIAM NEUMANN, MARY MUEHLEN MARING, JJ., concur.

      . Disciplinary Counsel included other alleged violations in the petition for discipline but did nol raise issues regarding those violations in its brief to this Court.


author: KAPSNER, Justice.

text:
    2000 ND 147
    Alexander Nickita TULINTSEFF, Plaintiff and Appellee, v. Lynda Marie JACOBSEN, Defendant and Appellant.
    No. 20000029.
    Supreme Court of North Dakota.
    July 20, 2000.

      Shane C. Goettle, McGee, Hankla, Backes & Dobrovolny, Minot, for plaintiff and appellee.
    Gary H. Lee, Olson Burns Lee, Minot, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Lynda Jacobsen appeals from the trial court’s amended judgment awarding custody of her and Alexander Tulintseff s two children to Tulintseff and from an order denying her motion for a new hearing and for amendment of the amended judgment. We hold the court did not clearly err in finding there is not sufficient evidence to trigger the presumption against awarding custody to a perpetrator of domestic violence under N.D.C.C. § 14-09 — 06.2(l)(j). We affirm.

I

[¶ 2] Jacobsen and Tulintseff married in July 1993. During their marriage, Tulint-seff was a captain in the United States Air Force and Jacobsen at times worked outside the home. They had two children, Alexandra born on February 27, 1994, and Nickita born on July 26,1995.

[¶ 3] In late May 1996, the parties entered a divorce stipulation. Jacobsen, who was unrepresented, signed the stipulation, indicating she was aware Tulintseff s attorneys drafted the stipulation and she had the right to seek the opinion of an independent attorney. On May 31,1996, a divorce judgment was entered upon the parties’ stipulation. It provided the parties “shall have joint physical custody ... with each party having primary physical custody one-half of the time until Alexandra becomes school aged, at which time the parties shall decide who shall have primary physical custody of the minor children.”

[¶ 4] After the divorce, the parties lived together for approximately two weeks. For almost the next three years, the parties adhered to the custody arrangement provided for in the judgment. Tulintseff resigned from the Air Force in March 1999.

[¶ 5] On April 22, 1999, Jacobsen filed a motion to amend the judgment, seeking, in part, sole custody of the children. She alleged, “[although no domestic violence has occurred since the time of the divorce, prior to that time, [Tulintseff] both physically and verbally assaulted [her] on a regular basis.” She asserted “[Tulintseff] constantly instilled fear in [her], which ultimately lead [sic][her] into signing off on the divorce Stipulation under extreme duress, to avoid further assaults.” Tulintseff opposed Jacobsen’s motion, moving the court to award custody to him.

[¶ 6] Following a hearing, the trial court entered an amended judgment on October 1, 1999, awarding custody to Tulintseff. The court noted that, after the divorce stipulation was signed, Tulintseff and Ja-cobsen went out for a drink, and Jacobsen lived with Tulintseff and their two children from the date of the divorce until June 15, 1996, when Tulintseff received a military transfer. The court considered the best interests of the children under N.D.C.C. § 14-09-06.2(1). The court found all the factors under N.D.C.C. § 14-09-06.2(1), except domestic violence, favored Tulint-seff, were equal, or were not applicable. Regarding domestic violence, the court found:

There was evidence of domestic violence and outbursts of fits of anger but the Plaintiff has taken steps to correct that. There was testimony that he handles his children very well and in a very loving manner and temper is not involved. No dangerous weapons were ever used by these parties and there was no serious bodily injury. They each threw things at the other and had a very busy social life. The, Defendant testified that during the marriage the Plaintiff ‘would go off on me’ and he was volatile. She left the family home on one occasion, retreating to her mother’s home where she stayed for three weeks. She testified the Plaintiff had broken two chairs, a dining room table and a cutting board. Both agreed that the Plaintiff went to an anger management counseling program at the Minot Air Force Base and for a time was prescribed medication. Both parties testified that the Plaintiff has been in three separate altercations with others over the years and the Plaintiff testified that the Defendant has been in two separate altercations- with- others, the last terminating with mutual restraining orders against the Defendant and the other woman involved. The Plaintiff testified on one occasion he did pull the Defendant off her bed and on another occasion he threw a clothes basket at her. He also testified on one occasion that he confronted her early one morning while she was getting dressed at a local motel. He also testified that during the marriage the Defendant threw dishes at him and called him names. The Defendant feels the Plaintiff is unpredictable; the Plaintiff feels the Defendant has a drinking problem and parties too much.

[¶ 7], On October 19, 1999, Jacobsen moved for a new hearing and for amendment of the amended judgment. Requesting the court reconsider its custody decision, she asserted there was “evidence presented that [Tulintseff] had abused [her] that fits the description of domestic violence under N.D.C.C. § 14-07.1-01(2).”

[¶ 8] Indicating it had reviewed the record and reasoning “it is clear that the best interests of the children require they be placed in the care, custody, and control of [Tulintseff],” the court denied Jacobsen’s motion. Jacobsen appealed from the amended judgment and the order denying her motion.

II

[¶ 9] Jacobsen asserts the trial court failed to adequately explain its custody award in light of the evidence Tulint-seff perpetrated domestic violence. Section 14-09-06.2(1)©, N.D.C.C., creates a rebuttable presumption against awarding custody to the perpetrator of domestic violence under three circumstances: (1) “there exists one incident of domestic violence which resulted in serious bodily injury,” (2) there exists one incident of domestic violence which “involved the use of a dangerous weapon,” or (3) “there exists a pattern of domestic violence within a reasonable time proximate to the proceeding.” Evidence of domestic violence which is insufficient to trigger the presumption remains a factor to be considered in determining the child’s best interests under N.D.C.C. § 14-09-06.2(1). Holtz v. Holtz, 1999 ND 105, ¶ 27, 595 N.W.2d 1.

[¶10] Under N.D.C.C. § 14-07.1-01(2), “ ‘[djomestic violence’ includes physical harm, bodily injury, sexual activity compelled by physical force, assault, or the infliction of fear of imminent physical harm, bodily injury, sexual activity compelled by physical force, or assault, not committed in self-defense, on the complaining family or household members.”

[¶ 11] Here, there is evidence of three specific incidents of domestic violence. Jacobsen testified Tulintseff: (1) pulled her by her feet off a bed, (2) threw a laundry basket at her, striking her in the stomach, and (3) dragged her by her hair down the street. Tulintseff testified he pulled Jacobsen by her feet off a bed, “toss[ed]” a laundry basket at her at a time when his collar bone was broken, and did not recall dragging Jacobsen by her hair down the street.

[¶ 12] Generally, “[a] trial court’s findings of fact should reflect the basis of the court’s decision.” Emter v. Emter, 1999 ND 102, ¶ 8, 595 N.W.2d 16. A factual basis is necessary for this Court to review whether the findings are clearly erroneous. Id. We, however, “do not remand for clarification of findings of fact when, through inference or deduction, we can discern the rationale for the result reached by the trial court.” Holtz, at ¶ 18.

[¶ 13] Regarding the presumption under N.D.C.C. § 14-09-06.2(1)©, we have indicated “[w]e require specific factual findings and conclusions regarding the presumption so we are not left guessing as to the trial court’s reasoning for applying or not applying the presumption.” Reeves v. Chepulis, 1999 ND 63, ¶ 14, 591 N.W.2d 791. Specific findings are not required when the evidence of domestic violence is insufficient to trigger the presumption. Holtz, at ¶27. In Kasprowicz v. Kasprowicz, 1998 ND 68, ¶ 13, 575 N.W.2d 921, we reversed and remanded because the trial court failed to adequately explain its findings regarding the presumption. In Kasprowicz, the trial court identified the domestic violence perpetrated by the mother’s cohabitant as a “critical factor” in the custody determination but nevertheless awarded partial custody to the mother. Id.

[¶ 14] Trial courts should strive to make explicit findings regarding the applicability of the presumption under N.D.C.C. § 14-09-06.2(1)©. In cases without explicit findings, such as here, the parties are not afforded complete direction and our review is difficult. See generally Davis v. Davis, 458 N.W.2d 309, 313 (N.D.1990) (criticizing a trial court’s decision which made it “especially difficult for us to review the record in determining whether or not the findings were clearly erroneous”); Williams County State Bank v. Gallagher, 35 N.D. 24, 159 N.W. 80, 80 (1916) (including information “[f]or the guidance of the parties”).

[¶ 15] We can, however, reasonably infer the trial court considered the evidence of domestic violence and found it insufficient to trigger the presumption under N.D.C.C. § 14-09-06.2(l)(j). The court found “[n]o dangerous weapons were ever used by these parties and there was no serious bodily injury.” By its reference to the timing of the incidents of domestic violence, the court implied the incidents were too remote to constitute a pattern of domestic violence within a reasonable time proximate to the proceeding. The court noted Jacobsen testified Tulintseff was volatile “during the marriage,” “[t]here was evidence of domestic violence and outbursts of fits of anger but [Tulintseff] has taken steps to correct that,” and Tulintseff “went to an anger management counseling program ... and for a time was prescribed medication.” The court also pointed out that after the divorce stipulation was signed Tulintseff and Jacobsen went out for a drink, and Jacobsen lived with Tulintseff and their two children until Tu-lintseff received a military transfer approximately two weeks after the divorce. We thus conclude the trial court’s findings, although minimal, are sufficient to determine the court properly considered whether the presumption against awarding custody under N.D.C.C. § 14-09-06.2(l)(j) should be applied.

[¶ 16] A trial court’s determination on whether the presumption is applicable is a finding of fact which will not be reversed unless it is clearly erroneous. Ryan v. Flemming, 533 N.W.2d 920, 923 (N.D.1995). A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, there is no evidence supporting it, or, although there is some evidence supporting it, on the entire record we are left with a definite and firm conviction a mistake has been made. Brown v. Brown, 1999 ND 199, ¶ 10, 600 N.W.2d 869.

[¶ 17] Jacobsen' does not challenge the trial court’s finding there were no incidents that resulted in serious bodily injury or involved the use of a dangerous weapon. The presumption accordingly would trigger only if “there exists a pattern of domestic violence within a reasonable time proximate to the proceeding.” See N.D.C.C. § 14-09-06.2(l)(j).

[¶ 18] Evidence shows the incidents occurred before the divorce judgment was entered on May 31, 1996, nearly three years before Jacobsen sought sole custody. In her motion to amend the judgment, Jacobsen conceded “no domestic violence has occurred since the time of the divorce.” Jacobsen testified some of the incidents occurred while she was pregnant and one incident may have occurred before the marriage. Tulintseff testified the incidents did not occur after the first year of marriage. He testified his anger problems decreased after he attended counseling. Although Jacobsen argues the incidents áre not remote, it is not clearly erroneous to find incidents occurring three or more years prior to the motion were not within a reasonable time proximate to the proceeding. Jacobsen also emphasizes Tulintseff was involved, after the divorce, in two altercations not involving family or household members. Such incidents, although they may be considered by the trial court under the best interests factors, do not meet the definition of domestic violence for purposes of raising the presumption under N.D.C.C. § 14-09-06.2(l)(j).

[¶ 19] Evidence also shows the incidents of domestic violence were not severe. Severe incidents not involving the use of a dangerous weapon or resulting in serious bodily injury and thus subject to the requirement they occur within a “reasonable time proximate to the proceeding” might lengthen the period which is considered a “reasonable time proximate to the proceeding.” See generally Zimmerman v. Zimmerman, 1997 ND 182, ¶ 8, 569 N.W.2d 277 (indicating the severity of domestic violence should be considered when both parties have committed domestic violence); Huesers v. Huesers, 1998 ND 54, ¶ 10, 574 N.W.2d 880 (emphasizing, in part, the father “used aggressive force” against the mother and concluding there was á pattern of domestic violence within a reasonable time proximate to the proceeding). Jacobsen testified Tulintseff never struck her or threatened to do so and she never sought medical attention after any of the incidents. Tulintseff testified he never struck or kicked Jacobsen and Jacobsen was not injured during the incidents. Both parties indicated they continued living together after the divorce and split only when Tulintseff received a military transfer. Finally, Jacobsen’s brief suggests the incidents only became important to the best interests of the children when the custody arrangement became inconvenient. Jacobsen indicated “Tulintseff moved from North Dakota, first to Louisiana, and then ultimately, when he separated from the Air Force, to Seattle, Washington. At that time, it became apparent that the split custody arrangement was unworkable.” (citation omitted).

[¶ 20] Because there is evidence the incidents occurred several years before Jacob-sen moved for sole custody and there is evidence the incidents were not severe, we conclude the trial court did not clearly err in finding there is not a pattern of domestic violence within a reasonable time proximate to the proceeding. We further conclude the trial court did not clearly err in finding there is not sufficient evidence to trigger the presumption under N.D.C.C. § 14-09-06.2(l)(j).

Ill

[¶ 21] Because we can reasonably infer the trial court considered the evidence of domestic violence and found it insufficient to trigger the presumption under N.D.C.C. § 14-09-06.2(1)0) and because that finding is not clearly erroneous, we affirm.

VANDE WALLE, C.J., and SANDSTROM, NEUMANN and MARING, JJ., concur.

      . Neither party has raised the issue of demonstrating changed circumstances prior to entering a modified custody order under N.D.C .C. § 14-09-06.6. The original judgment was based upon the parties' stipulation and provided for rotating custody only until Alexandra reached school age. At that time, the parties were to agree to a custody arrangement. They have not been able to do so. Because the original judgment was based on the parties’ stipulation rather than a review of the children's best interests, the trial court properly considered “all relevant evidence, including pre-divorce conduct and activities, in making a considered and appropriate custody decision in the best interests of the children.” Wetch v. Wetch, 539 N.W.2d 309, 312-13 (N.D.1995).

      . In addition, Jacobsen testified Tulintseff, while she was at a friend’s home, pulled a railing off a stairway and broke a table and two chairs in their home. She also testified Jacobson threw a drill into a mirror. However, no evidence shows these acts caused Ja-cobsen to be imminently afraid Tulintseff would harm her. The acts therefore are not evidence of domestic violence. Ryan v. Flemming, 533 N.W.2d 920, 923-24 (N.D.1995) (citing N.D.C.C. § 14-07.1-01(2) and concluding a husband's breaking a flower pot and pulling a phone out of a wall "were viewable as demonstrative” and insufficient to raise the presumption under N.D.C.C. § 14-09-06.2(1)©).


text:
    2000 ND 143
    Eric Alan HILL, Petitioner and Appellee, v. STATE of North Dakota, Respondent and Appellant.
    No. 20000018.
    Supreme Court of North Dakota.
    July 20, 2000.
    Rehearing Denied Aug. 18, 2000.

      Leslie Johnson Aldrich, Johnson Law Office, Fargo, for petitioner and appellee.
    Mark R. Boening, Assistant State’s Attorney, Fargo, for respondent and appellant.
   KAPSNER, Justice.

[¶ 1] The State appealed from a district court’s memorandum opinion and order, entered during post-conviction relief proceedings, granting a new trial to Eric Hill. We hold the district court’s grant of a new trial is appealable. We further hold the district court did not clearly err in finding Hill’s right to be present at a proceeding during deliberations when trial testimony was read to the jury was violated and the violation was not harmless beyond a reasonable doubt. We therefore affirm.

I

[¶2] In February 1998, Hill went on trial for two counts of gross sexual imposition and one count of terrorizing. During deliberations, several communications occurred between the jury and the trial court and between the trial court and counsel.

[¶ 3] The trial court received a jury request to “get a copy of the transcript” and held a discussion with counsel for both parties. The court inquired into Hill’s absence:

THE COURT: ... Is the Defendant with you?
TRIAL COUNSEL: No.
THE COURT: Well, I’m going to leave it up to you.
TRIAL COUNSEL: That’s okay. Go ahead.

The court proposed telling the jury it could have witnesses’ testimony read but it would have to indicate whose testimony and which portions of such testimony it wanted to hear. Counsel for both parties agreed to the court’s proposal. The court expressed concern about Hill’s absence:

THE COURT: ... Are you waiving any appearance on this?
TRIAL COUNSEL: lam.
THE COURT: ... [Y]ou don’t see the need to have your client present when I do this?
TRIAL COUNSEL: No.
THE COURT: Okay. We’re going to do it, then.

The court called the jury into the courtroom and informed it of the manner in which it could request the reading of testimony.

[¶ 4] After receiving a jury request to have a portion of a witness’s testimony read, the court met with counsel for both parties. The court indicated Hill was present. Both counsel agreed to the testimony which would be read. The jury was called in, and the testimony was read.

[¶ 5] The court later received several more requests to have testimony read. The court met with counsel for both parties. Unlike it had in the previous meetings, the court did not indicate whether Hill was present. Both counsel agreed to the testimony which would be read to satisfy some of the jury’s requests. The jury was called in, and the testimony was read. The court indicated it would continue working on the jury’s remaining requests.

[¶ 6] The following morning, the court and counsel for both parties met to discuss the jury’s remaining requests. The court indicated it wanted the parties to reach a stipulation regarding the requests and expressed concern regarding Hill’s absence. Hill’s trial counsel indicated Hill was in the courthouse but apparently did not bring him in to the meeting. Counsel for the State indicated he would prefer the entire testimony of a witness be read rather than portions of a witness’s testimony. The court proposed returning the jury’s remaining requests and giving the jury “a caution” that it should first attempt to rely on its own recollection and, if that was not sufficient, the entire testimony of a witness would be read. Both counsel agreed to the court’s proposal. The court accordingly “eautionjed]” the jury.

[¶ 7] The jury subsequently convicted Hill. Hill unsuccessfully appealed his conviction. See State v. Hill, 1999 ND 26, 590 N.W.2d 187.

[¶ 8] In July 1999, Hill petitioned the district court for post-conviction relief. In a supporting affidavit, Hill asserted his trial counsel, without his knowledge, waived his right to be present when testimony was read and he had wanted to be present when testimony was read. Shortly after submitting his petition, Hill successfully demanded a change of judge.

[¶ 9] An evidentiary hearing was held on November 24, 1999. Hill indicated he had not waived his right to be present when testimony was read and he was not present at the final reading. Hill’s trial counsel testified he waived Hill’s right to be present at the final reading despite knowing Hill “wanted to be there all the time.” At the end of the hearing, the district court directed the parties to brief the issue of whether the violation of Hill’s right to be present when testimony was read was harmless beyond a reasonable doubt.

[¶ 10] In its brief, the State asserted “[Petitioner’s trial counsel] waived the petitioner’s presence from the courtroom which [sic] testimony was read aloud to the jury. The petitioner has not directed this Court’s attention to any manner in which he was prejudiced by his absence.”

[¶ 11] The district court filed a memorandum opinion and order on January 7, 2000, granting Hill a new trial. The court emphasized Hill’s trial counsel conceded Hill wanted to be present when testimony was read and he had improperly waived Hill’s right to be present. Finding the “trial court had open communications with the jury without the petitioner being present,” the court concluded Hill’s constitutional'rights had been violated and it “cannot find the error to be harmless.” The State appealed.

. II ■

[¶ 12] Hill argues the district court’s memorandum opinion and order granting a new trial is not appealable. Under N.D.C.C. § 29-32.1-14, “[a] final judgment entered under this chapter [the Uniform -PosMJonviction Procedure Act] may be reviewed by the supreme court of this state upon appeal filed ... by the state.” Although N.D.C.C. § 29-32-07 previously provided that certain orders entered under the Uniform Post^Conviction Procedure Act were equivalent to a final judgment, “[t]he current law governing post-conviction procedure does not contain a provision which provides that certain orders are equivalent to a final judgment.” Kaiser v. State, 417 N.W.2d 175, 177 (N.D.1987). We have explained, however, “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.” Id. (citation omitted) (concluding the district court’s order denying a petition for post-conviction relief was intended to have the effect of a final judgment).

[¶ 13] The effect of an order granting a new trial compels holding it is a final judgment. No further post-conviction relief proceedings will occur after an order granting a new trial is issued. Rather, a new criminal trial will result. An order granting a new trial therefore is “a final judgment entered under [the Uniform Post-Conviction Procedure Act]” and is appealable under N.D.C.C. § 29-32.1-14. Compare the instant case where a new trial was granted, with Gibson v. State, 1998 ND 89, ¶ 5, 578 N.W.2d 128, where the district court denied a petitioner’s post-conviction relief request for transcripts and we held the court’s denial of the request was a nonappealable interlocutory order.

[¶ 14] We have held the grant of a new trial in a civil case is unappealable absent N.D.R.Civ.P. 54(b) certification. Ceartin v. Ochs, 479 N.W.2d 863 (N.D.1992). We have further held post-conviction relief proceedings are civil in nature. Bell v. State, 1998 ND 35, ¶ 10, 575 N.W.2d 211. However, because the grant of a new trial in a post-conviction relief proceeding results in a new criminal proceeding, it is distinguishable from the grant of a new trial in a civil proceeding which results in a new civil proceeding.

[¶ 15] Based on the foregoing, we conclude an order granting a new trial to a post-conviction relief petitioner is appeal-able.

III

[¶ 16] The State contends the district court clearly erred in finding a violation of Hill’s right to be present when testimony was read to the jury. Under N.D. Const. Art. 1, § 12, “[i]n criminal prosecutions in any court whatever, the party accused shall have the right ... to appear and defend in person and with counsel.” A defendant thus has a right to be present at all proceedings “during the whole of the trial.” City of Mandan v. Baer, 1998 ND 101, ¶¶8-9, 578 N.W.2d 559 (noting the right to be present has its roots in the Sixth Amendment of the federal constitution). When testimony is read to the jury, the defendant has the right to be present. State v. Schasker, 60 N.D. 462, 235 N.W. 345, 346 (1931). Hill’s absence was not caused by disruptive or unruly behavior which may be the basis for forfeiture of the right to be present. Baer, at ¶ 9.

[¶ 17] A court’s findings of fact in post-conviction relief proceedings will not be disturbed unless clearly erroneous. DeCoteau v. State, 2000 ND 44, ¶ 10, 608 N.W.2d 240. A finding is clearly erroneous if it is induced by an erroneous view of the law, if it is not supported by any evidence, or if, although there is some evidence to support it, a reviewing court is left with a definite and firm conviction a mistake has been made. Id.

[¶ 18] Here, there is evidence to support the district court’s finding Hill’s right to be present was violated. During the post-conviction relief hearing, Hill indicated he had not waived his right to be present when testimony was read to the jury and he had not been present at the final reading. Hill’s trial counsel testified he had waived Hill’s right to be present at the final reading despite knowing Hill had not authorized him to do so. Hill’s trial counsel waived Hill’s presence at the discussion with the trial court where the jury’s request for a copy of the transcript was considered and at the following proceeding where the trial court informed the jury of the manner in which requests for reading testimony could be made. Hill’s trial counsel also apparently did not ensure Hill was present at the meeting with the trial court when the remaining requests were considered. During the final reading, the trial court addressed only counsel and did not indicate whether Hill was present. Finally, the State, in its brief to the district court, indicated Hill was not present during the final reading, stating “[Petitioner’s trial counsel] waived the petitioner’s presence from the courtroom which [sic] testimony was read aloud to the jury.” We accordingly conclude the district court did not clearly err in finding a violation of Hill’s right to be present at the final reading.

IV

[¶ 19] The State asserts the district court erred in finding the violation of Hill’s right to be present was not harmless. In direct appeals, the State, to uphold a conviction, must show the violation of a defendant’s right to be present is harmless beyond a reasonable doubt. City of Mandan v. Baer, 1998 ND 101, ¶¶ 10, 19-20, 578 N.W.2d 559 (citing Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705, reh’g denied, 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967)). In meeting its burden, the State may not rely on mere speculation or rationalization. Id. at ¶ 20. When the violation of the defendant’s right to be present consists of a written jury request and a court’s written response to rely upon its recollection and there is “no possibility of prejudice to [the defendant] from these communications,” the State may easily meet its burden. State v. Ash, 526 N.W.2d 473, 481 (N.D.1995) (concluding written communications between the jury and the trial court which resulted in the court directing the jury to rely upon its recollection and the jury receiving items such as an exhibit list and the final jury instructions were harmless beyond a reasonable doubt). However, when the violation involves an open court communication between the court and the jury, such as the reading of testimony, the State may have more difficulty meeting its burden. See State v. Smuda, 419 N.W.2d 166, 168 (N.D.1988) (involving a violation consisting of a jury note requesting the definition of a word and the court’s note indicating it could not define the word and explaining “[t]his would be a different case if there had been an open court communication between the judge and the jury without [the defendant’s] personal presence”).

[¶ 20] A few jurisdictions, however, have distinguished post-conviction relief proceedings from direct appeals, sometimes placing a less onerous burden on the State in the former. Brecht v. Abrahamson, 507 U.S. - 619, 630-38, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (distinguishing Chapman because Chapman reached the Court on direct review and the case before it reached the Court on habeas review). Reasoning “a presumption of finality and legality attaches to the conviction and sentence” after the direct review process is completed, such jurisdictions have indicated a conviction may be upheld where a constitutional violation did not have a substantial and injurious effect or influence in determining the jury’s verdict. Brecht, at 633, 113 S.Ct. 1710.

[¶ 21] In Hegler v. Borg, 50 F.3d 1472 (9th Cir.), cert. denied, 516 U.S. 1029, 116 S.Ct. 675, 133 L.Ed.2d 524 (1995), a habeas corpus petitioner claimed a violation of his right to be present when testimony was read to the jury. The court acknowledged there was a violation but indicated “any mistake or lapse that may have tainted the jury’s decision is capable of being quantified and assessed in an evidentiary hearing.” Id. at 1477. In applying a less onerous burden and holding the violation did not have a substantial and injurious effect or influence in determining the jury’s verdict, the court emphasized “[t]he evidentiary hearing conducted by the district court [at which the court reporter and four jurors testified] established that the court reporter read the testimony without inappropriate inflection or comment, and that the substance of the readback was not materially different from the witness’s testimony at trial.” Id. at 1475,1478.

[¶ 22] Our own precedent establishes “[t]he explicit purpose of the Uniform Post-Conviction Procedure Act is to provide a method to develop a complete record to challenge a criminal conviction.” Wilson v. State, 1999 ND 222, ¶ 13, 603 N.W.2d 47. We have indicated an ineffective assistance of counsel claim may be more effectively raised in a post-conviction relief petition rather than on direct appeal since “[a] post-conviction proceeding affords an opportunity to establish a record below for review.” Id. at ¶ 9 (citation omitted).

[¶ 23] Like an ineffective assistance of counsel claim, a violation of the right to be present claim may require an evidentiary hearing to assess the effect of the violation. At a hearing, testimony could determine whether the court reporter’s reading of testimony was prejudicial or whether the substance of the reading was materially the same as the actual testimony. Hegler, at 1475, 1478. There may be other evidence regarding the effect of a defendant’s absence on the proceedings. Because a violation of the right to be present claim may be better suited for a post-conviction relief proceeding rather than a direct appeal, we hold the standard applied in City of Mandan v. Baer should not be modified. To uphold a conviction in a post-conviction relief proceeding, the State must show a violation of the defendant’s right to be present is harmless beyond a reasonable doubt. See City of Mandan v. Baer, 1998 ND 101, ¶¶ 10, 19-20, 578 N.W.2d 559.

[¶ 24] Here, the State has failed to meet its burden to show the violation of Hill’s right was harmless beyond a reasonable doubt. At the evidentiary hearing, the State did not attempt to call any witnesses and only Hill and his trial counsel testified. In its brief to the district court, the State asserted “[t]he petitioner has not directed this Court’s attention to any manner in which he was prejudiced by his absence.” In its brief to this Court, the State alleged it was “Hill’s burden to establish the prejudice” and “there are no facts in the record supporting the conclusory determination that ‘this violation cannot be found to be harmless.’ ” Because the State erroneously tried to place the burden on Hill to show prejudice and has not demonstrated to the district court or this Court that Hill was not prejudiced, we conclude the district court did not clearly err in determining the violation of Hill’s right was not harmless beyond a reasonable doubt.

V

[¶ 25] Because the district court did not clearly err in determining Hill’s right to be present when testimony was read to the jury was violated and the violation was not harmless beyond a reasonable doubt, we affirm the district court’s grant of a new trial.

[¶ 26] VANDE WALLE, C.J., and MARING, NEUMANN and SANDSTROM, JJ., concur.

      . Rule 43(a), N.D.R.Crim.P., and N.D.C.C. § 29-22-05 also involve a defendant’s right to be present during proceedings.


author: NEUMANN, Justice.

text:
    2000 ND 145
    Marilyn HOLEN, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and X Press Mart, Respondent.
    No. 990320.
    Supreme Court of North Dakota.
    July 20, 2000.

      Kathryn L. Dietz of Dietz, Little & Haas, Bismarck, for claimant and appellant.
    Lawrence E. King, Special Assistant Attorney General, Bismarck, for appellee.
   NEUMANN, Justice.

[¶ 1] Marilyn Holen appealed from the district court’s judgment upholding the North Dakota Workers Compensation Bureau’s order denying her benefits resulting from the aggravation of a prior work injury. We reverse and remand.

[¶2] In July 1994, Holen injured her back while working at X Press Mart. She filed for and received disability benefits. A few months later, Dr. Bernard Varberg, Holen’s treating physician, removed a herniated disk in Holen’s back. • In March 1995, a functional capacity evaluation (“FCE”) was performed on Holen. The FCE indicated Holen should not do repetitious forward bending or stooping more than 1 percent of the workday or squatting more than 33 percent of the workday. It recommended she perform a job on a full-time basis in the “light” physical demand level. The “light” physical demand level permitted “frequent” (34 to 66 percent of the workday) lifting of objects weighing 10 pounds but only “occasional” (0 to 33 percent of the workday) lifting of objects weighing 20 pounds.

[¶ 3] An August 1995 vocational consultant’s report indicated Holen could work a full-time job with light physical demands. The report recommended Holen do “no repetitive bending or twisting.” The Bureau subsequently approved a rehabilitation plan, and on September 14, 1995, the Bureau issued an order denying Holen further disability and vocational rehabilitation benefits. The order indicated “[Ho-len’s] medical limitations are: Light physical demands on a full-time basis.” Holen did not appeal the order.

[¶4] In November 1995, a vocational rehabilitation representative referred Ho-len to a position at an independently-owned doughnut stand inside a Wal-Mart store. Holen worked at the doughnut stand, occasionally seeking treatment for her back, until about February "1997. She then applied for a position in the Wal-Mart snack bar. On her application, Ho-len indicated she had been unemployed from July 1994 to November 1995 and listed the reason for her unemployment as: “Surgery — Health Corrected.” Prior to accepting the Wal-Mart position, Holen signed a job matrix, indicating she could perform the essential functions of the job which included “bend[ing], twistfing], squat[ting]” and occasionally lifting up to fifty pounds. Holen began as a part-time employee but, after a few months, became a full-time employee.

[¶ 5] Upon the recommendation of Dr. Varberg, Holen stopped working in November 1997. The next month, she reapplied for disability benefits. Reasoning Holen knowingly exceeded the scope of her treatment recommendations by working at the Wal-Mart snack bar and exceeding the recommendations aggravated her back injury, the Bureau denied Ho-len’s reapplication for benefits in a March 12, 1998, order. On April 6, 1998, Holen requested a hearing. In a May 28, 1998, letter, the Bureau acknowledged receipt of Holen’s request and indicated a hearing before an administrative law judge (“ALJ”) would be" set. The Bureau requested an ALJ in September, and a hearing was held in December. The ALJ found: (1) Holen had exceeded her treatment recommendations, and (2) Dr. Var-berg had determined this aggravated her back injury. In April 1999, the ALJ accordingly recommended denial of benefits. The Bureau adopted the ALJ’s findings and recommendation in May. Holen appealed to the district court, and it affirmed. Judgment was entered on August 30,1999. Holen appealed.

[¶ 6] We must affirm the Bureau’s decision unless its findings of fact are not supported by a preponderance of the evidence, its conclusions of law "are not supported by its findings of fact, its decision is not supported by its conclusions of law, its decision is not in accordance with the law, or its decision violates the claimant’s constitutional rights or deprives the claimant of a fair hearing. Renault v. North Dakota Workers Comp. Bureau., 1999 ND 187, ¶ 8, 601 N.W.2d 580.

[¶ 7] Holen argues procedural delays violated her statutory and due process rights. We hold Holen has failed to show substantial prejudice has resulted from the delays..

[¶ 8] Holen was entitled to a hearing under N.D.C.C. § 65-01-16. The statute provides “procedures [that] must be followed in claims for benefits/notwithstanding any provisions to the contrary in chapter 28-32” and indicates “[r]ehearings must be conducted as hearings under ch. 28-32 to the- extent the provisions of that chapter do not conflict with this section.” N.D.C.C. § 65-01-16(8). No timeline is provided in N.D.C.C. § 65-01-16 for the Bureau’s response to the claimant’s request for a hearing. Similarly, N.D.C.C. § 28-32-05, which provides procedures agencies must comply with during all adjudicative proceedings, does not indicate a time within which an agency must provide a hearing to a claimant.

[¶ 9] A claimant, however, still may be entitled to relief because of administrative delays. “[D]ue process is flexible and must be analyzed on a case-by-case basis, balancing the competing interests and assessing whether the basic due process requirement of fairness has been satisfied.” Wahl v. Morton County Soc. Servs., 1998 ND 48, ¶ 6, 574 N.W.2d 859 (analyzing whether a denial of due process occurred when the Department of Human Services failed to provide a hearing within thirty days of a claimant’s request as required by federal and state medicaid provisions). To recover for delay in administrative proceedings, a claimant must show she was substantially prejudiced by the delay. Id. at ¶ 6, citing Hickey v. North Dakota Dept. of Health, 536 N.W.2d 370, 372 (N.D.1995),

[¶ 10] Our inquiry accordingly is whether Holen has shown she was substantially prejudiced by the delay in the administrative proceedings. Both the Bureau and the ALJ caused delays. On April 6, 1998, Holen submitted her request for a hearing. The Bureau did not respond to the request until May 28 and did not seek designation of an ALJ until September 1. The Office of Administrative Hearings designated an ALJ two days later, but hearings did not commence until December 9. The record was closed January 11, 1999. However, the ALJ did not issue recommended findings, conclusions, and order until April 9, 1999, despite the statutory provision the ALJ must “issue recommended findings of fact and conclusions of law and a recommended order within thirty days after the evidence has been received, briefs filed, and arguments closed, or as soon thereafter as possible.” N.D.C.C. § 28-32-13(3). Although Holen asserts she was in a “desperate situation” awaiting the hearing, she does not show how her circumstances would have been improved by the Bureau’s earlier acknowledgment and denial of her claim for benefits. See Siewert v. North Dakota Workers Comp. Bureau, 2000 ND 33, ¶ 37, 606 N.W.2d 501 (determining the claimant was ultimately not entitled to benefits and concluding the claimant failed to demonstrate substantial prejudice because of administrative delays).

[¶ 11] Because Holen does not show how her circumstances would have been improved by the Bureau’s earlier denial of her claim, we conclude Holen failed to demonstrate substantial prejudice and is not entitled to relief because of the delays.

[¶ 12] Holen argues the ALJ erred in finding: (1) she had exceeded the treatment recommendations, and (2) her doctor had determined exceeding the recommendations aggravated her back injury. Section 65-05-28(5), N.D.C.C., provides:

If an employee undertakes activities, whether or not in the course of employment, which exceed the treatment recommendations of the employee’s doctor regarding the work injury, and the doctor determines that the employee’s injury or condition has been aggravated or has worsened as a result of the employee’s activities, the bureau may not pay benefits relative to the aggravation or worsening, unless the activities were undertaken at the demand of an employer....

[¶ 13] We recently determined the Bureau must prove the claimant knew of the specific work restrictions and intentionally engaged in activities exceeding those restrictions before benefits can be denied based on aggravation of a prior injury. Tangen v. North Dakota Workers Comp. Bureau, 2000 ND 135, ¶ 23. Here, the record contains evidence Holen may have taken a position exceeding the work restrictions prescribed by Dri Varberg and this aggravated her back injury. The most relevant finding provides:

29. The evidence is persuasive that Marilyn Holen undertook activities which exceeded Dr. Varberg’s treatment recommendations. The fact that she knowingly and voluntarily took a job well above the light work treatment recommendation establishes this. Taking the evidence as a whole, Dr. Varberg directly attributes Ms. Holen’s worsening condition to the bending and twisting inherent in the medium work job that she took on and is one of the reasons that food service jobs, as a general principle, were ruled out for her.

However, neither the ALJ nor the Bureau have made the required finding that Holen knew of the specific work restrictions and intentionally exceeded the known restrictions. The Bureau’s findings, therefore, do not support application of N.D.C.C. § 65-05-28(5) to preclude benefits. See Tangen, at ¶ 25.

[¶ 14] We reverse the district court’s judgment and remand for further proceedings, including, if necessary, the hearing of additional evidence, consistent with this opinion and Tangen.

[¶ 15] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, DALE SANDSTROM, JJ., concur.

[¶ 16] The Honorable CAROL RONNING KAPSNER, J., disqualified herself subsequent to oral argument and did not participate in this decision.

      . Although Holen labeled her request as one for a “rehearing,” we refer to her request as one for a “hearing.” See Frank v. Traynor, 1999 ND 183, ¶ 11, 600 N.W.2d 516 (indicating “ ‘rehearing’ provided in section 65-01-16(7), N.D.C.C., is in reality a request for a formal hearing, which is to be conducted under the provisions of N.D.C.C. ch. 28-32”).


author: VANDE WALLE, Chief Justice.

text:
    2000 ND 148
    STATE of North Dakota, Plaintiff and Appellee, v. Bruce Lynn ENTZI, Defendant and Appellant.
    No. 990329.
    Supreme Court of North Dakota.
    July 24, 2000.

      ' Terry W. Elhard, State’s Attorney, Ashley, for plaintiff and appellee.
    Monte L. Rogneby, Yogel Law Firm, Bismarck, for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Bruce Lynn Entzi appealed the final judgment entered upon jury verdicts finding him guilty of two counts of gross sexual imposition in violation of N.D.C.C. § 12.1-20-03(2)(a). We affirm the verdicts, but remand for resentencing in the county where the trial was held.

[¶ 2] After a jury trial in McIntosh County, Entzi was found guilty of two counts of gross sexual imposition for engaging in sexual contacts with two of his daughters, who were less than 15 years of age. After a sentencing hearing in Bur-leigh County, Entzi was sentenced to imprisonment and supervised probation. Entzi appealed, and has raised a number of issues on appeal.

T

. [¶ 3] Entzi contends he is entitled to a new trial, because the trial court did not conduct voir dire on the record, making a transcript of the jury selection unavailable.

[¶ 4] In his statement of the record under N.D.RApp.P. 10, Entzi asserted, among other things, he did ■ not request jury selection be conducted off the record, he did not waive his right to have jury selection conducted on the record, he believes his trial attorney requested jury selection be conducted on the record, and his trial attorney does not remember discussing whether jury selection was on the record and assumed jury selection was being recorded. The State objected, asserting, among other things:

The undersigned prosecutor is fairly certain that defense counsel did not request that the jury selection be recorded by the court reporter. He certainly made no objections to the jury selection not being recorded.

[¶ 5] In its statement and approval of the record under N.D.R.App. P. 10, the trial court stated “voir dire was conducted off the record,” and said:

Immediately before trial, a conference was held in chambers. The conference was on the record. All parties and counsel were present. Whether jury selection would be recorded was not referred to or discussed in any way by either party or the court.

[¶ 6] Reliance on cases like State v. Hapip, 174 N.W.2d 717 (N.D.1969); State v. Decker, 181 N.W.2d 746 (N.D.1970); Ranes Motor Co. v. Thompson, 251 N.W.2d 741 (N.D.1977); State v. Spiekermeier, 256 N.W.2d 877 (N.D.1977); State v. Perry, 136 Wis.2d 92, 401 N.W.2d 748 (1987); and Hoagland v. State, 518 N.W.2d 531 (Minn.1994), dealing with the unavailability of a record of such things as guilty pleas, trial evidence of guilt or innocence, and restitution evidence, is misplaced. We have specifically addressed nonevidentiary proceedings, and have held one must request recording. Fenske v. Fenske, 542 N.W.2d 98 (N.D.1996) (holding failure to record closing arguments was not reversible error when the complaining party did not request recording or object to the lack of recording); State v. Kunkel, 366 N.W.2d 799 (N.D.1985) (stating parties who want events recorded must request the court reporter to record them); State v. Rougemont, 340 N.W.2d 47 (N.D.1983) (holding failure to record voir dire and arguments of counsel is not per se reversible error).

[¶ 7] As the court in Hoagland v. State, 518 N.W.2d 531, 535 (Minn.1994), observed, “a transcript is important to, but not always essential for, a meaningful appeal.”

Where the record includes a complete transcript of the evidentiary portion of the trial, the appellant’s “constitutional right to a judicial review of all evidence” has not been compromised. State v. Thomas, 92-1428 (La.App. 4th Cir.5/26/94), 637 So.2d 1272, writ denied, 94-1725 (La.11/18/94), 646 So.2d 376, cert. denied, 514 U.S. 1054, 115 S.Ct. 1437, 131 L.Ed.2d 317 (1995). As to other untranscribed portions of the record, where there were no contemporaneous objections, the errors were not preserved for appeal. State v. Harrison, 627 So.2d 231, 233 (La.App. 4th Cir.1993).

Louisiana v. Richards, 750 So.2d 330, 332-33 (La.Ct.App.1999).

[¶ 8] We conclude the trial court’s failure to conduct voir dire on the record does not alone entitle Entzi to a new trial.

II

[¶ 9] Entzi contends the trial court conducted jury selection improperly, arguing his right to exercise peremptory challenges was violated because the court improperly refused to excuse two jurors for cause, the jury selection method used violated his right to exercise peremptory challenges, and the jury selected included jurors who should have been excused for cause.

A

[¶ 10] Under N.D.C.C. § 29-17-33 and N.D.R.Crim.P. 24, a juror may be excused for cause. Under N.D.R.Crim.P. 24, each side is entitled to exercise peremptory challenges. Entzi contends the court refused to excuse two jurors for cause, and he “was forced to use two of his peremptory challenges to bump these biased jurors,” thereby prejudicing his right to exercise peremptory challenges. Entzi has not alleged he objected to the denial of challenges for cause to the jurors he used peremptory challenges to excuse. Thus, that issue has not been preserved for review. A defendant’s right to peremptory challenges is denied or impaired only if the defendant does not receive what state law provides. City of Dickinson v. Lindstrom, 1998 ND 52, ¶ 17, 575 N.W.2d 440. Entzi received the peremptory challenges our law provides. Furthermore, the United States Supreme Court has recently rejected an argument like Entzi’s. In United States v. Martinez-Salazar, 528 U.S. 304, 120 S.Ct. 774, 777, 145 L.Ed.2d 792 (2000), the Supreme Court recognized peremptory challenges are not of constitutional dimension, but “are one means to achieve the constitutionally required end of an impartial jury,” and held “that if the defendant elects to cure” a trial court’s erroneous refusal to excuse a potential juror for cause, “by exercising a peremptory challenge, and is subsequently convicted by a jury on which no biased juror sat, he has not been deprived of any rule-based or constitutional right.” We hold a party’s right to exercise peremptory challenges is not violated if the party uses a peremptory challenge to exclude a juror the trial court refused to excuse for cause, and no biased jurors sit. We, therefore, conclude Entzi’s right to exercise peremptory challenges was not violated.

B

[¶ 11] The trial court used the following jury selection process:

THE COURT: ... .My intention is to call twelve-persons up and go through the selection process and then whoever is picked will stay and then however many more we need. I probably don’t need to tell you guys this but some people have confusion about it, with regard to the exercise of peremptories themselves, if you pass a panel, then you’re done with that panel. You can’t go back and re-strike somebody, so if you pass, you pass.

Entzi contends this method unreasonably restricted his ability to exercise his peremptory challenges.

' [¶ 12] Entzi asserts that, although his trial attorney did not object to the selection procedure, “this court should still review this issue as the trial court’s method is plain error. N.D.R.Crim.P. 52(b).” ‘We cautiously exercise our power to notice obvious error only in exceptional situations in which a defendant has suffered serious injustice.” State v. Freed, 1999 ND 185, ¶ 14, 599 N.W.2d 858. This is not such a case. “Generally, a trial court has broad discretion in selecting a method by which it impanels a jury, and it is enough if the chosen method permits the defendant to exercise peremptory challenges free from embarrassment and intimidation.” City of Dickinson v. Lindstrom, 1998 ND 52, ¶ 11, 575 N.W.2d 440. Entzi has not shown the trial court abused its discretion in fixing the selection procedure.

C

[¶ 13] Entzi contends the trial court abused its discretion by failing to excuse four jurors for actual or implied bias.

[¶ 14] Persons accused of crimes have a right to trial by an impartial jury. State v. Smaage, 547 N.W.2d 916, 919 (N.D.1996). Under N.D.R.Crim.P. 24(b)(2), judges must excuse a juror if grounds exist for a challenge for cause, such as juror partiality. Id. To succeed in an appellate review of a trial court’s denial of a challenge for cause, a defendant must “show that the sitting jury was not impartial.” State v. Thompson, 552 N.W.2d 386, 388 (N.D.1996). “We review a trial court’s decision not to excuse a challenged juror for cause under an abuse-of-discretion standard.” Id. “[A] trial court abuses its discretion if it acts in an arbitrary, unconscionable, or unreasonable manner.” Id. “Because we presume that the trial court’s decision to deny the motion [to excuse a juror for cause] was correct, [Entzi] has the burden ‘to show affirmatively by the record that the ruling was incorrect.’ ” Id. at 389, quoting State v. Raywalt, 436 N.W.2d 234, 239 (N.D.1989).

[¶ 15] Although Entzi has asserted the trial jury included jurors who should have been excused for cause, as in State v. Smaage, 547 N.W.2d 916, 919 (N.D.1996), Entzi “made no showing that these jurors were not impartial, and we can find no specific evidence of bias on the part of these jurors.” We conclude the trial court did not abuse its discretion in declining to excuse these jurors.

Ill

[¶ 16] Entzi contends the trial court improperly denied his motion in limine to preclude the State from introducing as evidence a tape recording of a telephone conversation between Entzi and his wife about Entzi’s alleged sexual misconduct with three daughters and a niece.

[¶ 17] The trial court denied Entzi’s motion on July 6, 1999. On August 2, 1999, the trial court issued another order about the tape recording:

I have reconsidered [m]y Order regarding use of the audiotape recording of the telephone call between the defendant and LeeAnn Entzi. I believe the tape is admissible in a redacted form to avoid undue prejudice to the defendant. I have attached a copy of the transcript on which I have indicated what must be redacted by lining out and initialing. If the State intends to introduce a copy of the tape, an edited version will be made and reviewed with counsel for the defendant before trial. The transcript provided the jury will be edited as well. If the defendant should argue to the jury that he was referring to something other than sexual contacts when referring to the victims in this case, the State will be allow to play the unedited version of the tape as rebuttal to provide context.

On August 11, 1999, Entzi, his attorney, and the State’s Attorney executed a stipulation providing, in part:

Whereas, negotiations have resulted in an agreement with the McIntosh County State’s Attorney that in lieu of the prosecution offering an edited version of the tape and transcript of the February 26, 1998 telephone conversation as evidence, the Defendant will stipulate that he admitted to his wife that he had inappropriate sexual contact with [two of his daughters].

Neither the redacted tape, nor a transcript, was introduced in evidence at the trial.

[¶ 18] Entzi contends that, even in its redacted form, the tape included hearsay allegations, inadmissible under N.D.R.Ev. 802, of bad acts unrelated to the charges against him, which are inadmissible under N.D.R.Ev. 404. The State contends the trial court should have denied Entzi’s motion, and allowed the entire conversation, except for two sentences, to be admitted into evidence.

[f 19] Entzi argues that, because of the court’s erroneous ruling, his “trial counsel was faced with a dilemma. He could do nothing and the state would introduce the redacted tape and transcript at trial.... Or ... do something to try and keep the jury from hearing the tape.” Because Entzi executed the stipulation about the recorded telephone conversation, we need not decide whether the trial court’s ruling was correct.

[¶ 20] Entzi was not compelled to stipulate as he did to keep the jury from hearing the tape of his telephone conversation. Entzi could have chosen to object to admission into evidence of the tape if offered and challenge it on appeal if unsuccessful. Defendants often must choose between strategies. In State V. Hass, 264 N.W.2d 464 (N.D.1978), a defendant contended he was unconstitutionally compelled to choose between his right to testify at a probation hearing and his right to remain silent at a later trial regarding the same incident. This Court said: “The fact that Hass was required to make such a choice, regardless of how difficult, did not render his testimony unconstitutionally ‘compelled’ by the State.” Id. at 471.

The criminal process, like the rest of the legal system, is replete with situations requiring “the making of difficult judgments” as to which course to follow. McMann v. Richardson, 897 U.S. [759] at 769, 90 S.Ct. [1441] at 1448, [25 L.Ed.2d 763]. Although a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose.

Hass, at 471-72, quoting McGautha v. California, 402 U.S. 183, 213, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971). While Entzi was faced with strategy options, “the choice was his.” State v. Dilger, 338 N.W.2d 87, 92 (N.D.1983). See also United States v. Martinez-Salazar, 528 U.S. 304,-, 120 S.Ct. 774, 781, 145 L.Ed.2d 792 (2000) (holding a defendant’s election to use a peremptory challenge after objecting to denial of a for-cause challenge, rather than letting the challenged juror sit and, upon conviction, pursing a challenge on appeal, was the defendant’s choice). We conclude Entzi’s right to a fair trial was not violated by his choice of trial strategies. ■

IV

[¶ 21] Entzi contends the trial court abused its discretion in denying his trial attorney’s request for “a continuance based on the termination of his employment at his law firm,” and “[t]rial counsel represented to the court that he was not ready to proceed due to unusual circumstances beyond his control.”

[¶ 22] Under N.D.R.Ct. 6.1(b), a motion for continuance will be granted only for good cause. In re J.S., 545 N.W.2d 145, 146 (N.D.1996). “A motion for a continuance ... rests in the discretion of the trial court, and its decision will not be set aside on appeal absent an abuse of discretion.” State v. Sievers, 543 N.W.2d 491, 494 (N.D.1996). “A court abuses its discretion, if it acts in an arbitrary, unconscionable, or unreasonable manner.” Id.

[¶ 23] Entzi’s trial attorney made a telephonic request for a continuance shortly before the date of trial and made a recorded request on the first day of trial on August 11, 1999. Trial counsel told the court he was terminating employment with his law firm, secretarial services were inconvenient, and he was being required to vacate, his offices by 6 p.m. the following Monday. He also asserted:

.All this has created a lot of stress for me. I’m not as prepared as I would like to be and ... the main area I’m not prepared for is our defense. I believe I’m adequately prepared to go through the prosecution. I would at least ask for a concession that if the prosecution gets through with its case today that I be allowed to call one or two witnesses, as many at my discretion — one would be a videotape and the other would be another person and then we would rest today and then we would resume again tomorrow at nine with the rest of my defense and give me more time to prepare for that. I believe we’d-be able to finish the case by tomorrow anyway if the trial would go that fast..

The trial court denied the motion:

THE COURT: All right. Well with regard to the matter of the continuance, I had given it more thought and I guess I still am going to deny the request basically for two reasons. The first is that this case was filed or the complaint is dated June 8th of ’98 so it’s over a year old for one thing and another thing is ... I know now that ... it would be another half a year or more before we could [get] the matter tried. The other thing is that the case had been set for trial previously and I’m assuming, knowing Mr. Fleck is a good lawyer, that he was at least close to prepared at that time when the matter was continued and I would certainly expect that that would be the case now.... Certainly I’m willing to, depending of course on how the trial proceeds, allow some flexibility for Mr. Fleck for some preparation time.

[¶ 24] The original complaint was filed on June 8, 1998. On August 27, 1998, Entzi’s trial attorney filed a notice of appearance stating his law firm had been retained to represent Entzi. On February 4, 1999, Entzi’s trial attorney filed a notice of appearance stating he would be appearing for Entzi. On February 10, 1999, the parties were notified the trial had been set for July 15-16,1999. On July 12,1999, the parties were notified the trial had been rescheduled for August 11-13, 1999. Thus, the trial court could assume that by July 12 Entzi’s trial counsel was “close to prepared” for a trial that had been scheduled to begin three days later. The first day of trial began at 8:33 a.m., and concluded at 3:50 p.m. The trial resumed at 9 a.m. on August 12, 1999, and concluded at 12:45 p.m. Entzi’s trial attorney got much of what he asked for—the State rested early on the first afternoon of trial, Entzi called a few witnesses that day, started at 9 a.m. the next day, and finished his defense.

[¶ 25] In light of the circumstances and argument presented, we conclude the trial court did not abuse its discretion in denying Entzi’s trial attorney’s motion for continuance.

V

[¶ 26] Entzi contends the trial court conducted the sentencing in the wrong county, and he is entitled to a new sentencing.

[¶ 27] Entzi was tried in McIntosh County, the county where the offenses were committed. See N.D.R.Crim.P. 18. Oh October 5, 1999, Entzi was notified sentencing would be held in Burleigh County on October 12, 1999. By letter of October 8, 1999, Entzi requested his sentencing hearing be held in McIntosh County, “so as to make appearing at the hearing more convenient for his witnesses.” The trial court rescheduled the sentencing and ordered it to be held in Burleigh County. Entzi’s sentencing hearing was held in Burleigh County on October 19,1999.

[¶ 28] Sentencing is an important feature of the criminal justice system. We have recognized “[sentencing is a critical stage of a criminal proceeding,” State v. Phelps, 297 N.W.2d 769, 776 (N.D.1980), and “the sentencing function is of critical importance in our legal system,” State v. Nelson, 417 N.W.2d 814, 817 (N.D.1987). “ ‘The sentencing decision is of paramount importance in our criminal justice system. At sentencing the court seeks to vindicate society’s interest in imposing appropriate sanctions against those individuals determined to be criminally culpable.’ ” Nelson, at 817-18, quoting Pennsylvania v. Knighton, 490 Pa. 16, 415 A.2d 9, 12 (1980).

[¶ 29] Generally, promoting the convenience of the court is not a significant factor in deciding where a hearing should be held, Selland v. Selland, 494 N.W.2d 367, 369 (N.D.1992), but the convenience of witnesses is a factor, Stonewood Hotel Corp., Inc. v. Davis Dev., Inc., 447 N.W.2d 286, 289 (N.D.1989). Entzi made a timely request for a sentencing hearing in McIntosh County, where the trial was properly held. The trial court’s refusal of Entzi’s request was inconsonant with N.D. Sup.Ct. Admin. R. 6(B), which provides:

It is the intent of the Supreme Court that the residents of the various counties within a judicial district receive judicial services in their own county without the need to travel to the chamber cities. The judges, in the chamber cities shall travel to the counties within their judicial district to provide required services pursuant to the schedule and direction of the presiding judge of the district.

In light of the critical importance of the sentencing function and our preference for local proceedings, expressed in N.D. Sup. Ct. Admin. R. 6(B), we conclude the trial court abused its discretion in refusing Ent-zi’s timely request for a sentencing hearing in McIntosh County and conducting the sentencing in Burleigh County. We conclude Entzi is entitled to a new sentencing hearing.

VI

[f 30] The verdicts are affirmed and the matter is remanded for resentencing in McIntosh County.

[¶ 31] DALE SANDSTROM, WILLIAM A. NEUMANN, MARY MUEHLEN MARING, JJ., ALLAN L. ' SCHMALENBERGER, D.J., concur.

[¶ 32] The Honorable ALLAN L. SCHMALENBERGER, D.J., sitting in place of KAPSNER, J., disqualified.

      . Rule 11(f), N.D.R.Crim.P., however, requires a verbatim record of proceedings at which a defendant enters a plea.