author: VANDE WALLE, Chief Justice.

text:
    2008 ND 32
    STATE of North Dakota, Plaintiff and Appellee v. Paul A. FISCHER, Defendant and Appellant.
    No. 20060140.
    Supreme Court of North Dakota.
    Feb. 21, 2008.
    Rehearing Denied April 17, 2008.

      Brian David Grosinger, Assistant State’s Attorney, Mandan, N.D., for plaintiff and appellee.
    Paul A. Fischer, Jamestown, N.D., pro se.
   VANDE WALLE, Chief Justice.

[¶ 1] Paul A. Fischer appealed from a criminal judgment entered on a jury verdict finding him guilty of manufacturing a controlled substance, possessing a controlled substance with intent to deliver, and possessing methamphetamine-related drug paraphernalia. We conclude the district court did not err in denying Fischer’s suppression motion. We further conclude Fischer failed to establish his court-appointed attorneys provided ineffective assistance of counsel, his due process rights were infringed by trial delay, and his jury was not impartial. We affirm.

I

[¶ 2] On November 30, 2004, Fischer was arrested after law enforcement officers discovered him manufacturing methamphetamine in a pole barn in rural Morton County. At the time, Fischer had been released on bond for an October 9, 2004, arrest which resulted in charges of manufacturing a controlled substance and possessing a controlled substance and drug paraphernalia. Fischer was again charged with three drug-related felonies and criminal trespassing. He was held on $50,000 cash bond and the same attorney who was appointed to represent him on the October 2004 charges was appointed to represent him on the November 2004 charges.

[¶ 3] Shortly after counsel was appointed, Fischer made motions to discharge his attorney and to allow Fischer to represent himself in the two criminal proceedings. He also moved to reduce his bail so he could access legal materials for his defense. Fischer’s bond was reduced to $20,000 cash or surety bond, but he was unable to post bail. On January 7, 2005, the district court granted court-appointed counsel’s motion to withdraw as Fischer’s attorney. A second attorney was appointed to represent Fischer on January 12, 2005, and she requested discovery. Fischer’s preliminary hearing was rescheduled for February 14, 2005, and the second attorney represented Fischer during that proceeding.

[¶ 4] On March 10, 2005, Fischer moved to have the second attorney discharged. The court granted the second attorney’s motion to withdraw on March 14, 2005. On March 31, 2005, the court appointed a third attorney to represent Fischer, and that attorney requested discovery. In May 2005, the court set the trial date for July 21-22, 2005. Fischer’s third attorney subsequently moved to suppress evidence and moved for approval of funds to take depositions. A deposition hearing was scheduled for July 14, 2005, and the hearing on the motion to suppress, originally scheduled for July 8, 2005, was rescheduled for September 2, 2005. Fischer’s scheduled trial was also continued and rescheduled for November 3-4, 2005. On August 31, 2005, Fischer’s third attorney requested that the suppression hearing be rescheduled because “Mr. Fischer does not want me to represent him and he says he is going to file an ineffective assistance of counsel claim. There is no line of communication. I will be filing a motion to withdraw.” The district court denied the motion, and at the September 2, 2005, suppression hearing, the court allowed Fischer to represent himself, but required his third court-appointed attorney to provide assistance as standby counsel. After Fischer told the court he was “[a]bsolutely not” prepared to go forward with the hearing, the court rescheduled the suppression hearing for October 18, 2005.

[¶ 5] At the beginning of the suppression hearing, Fischer once again asked for a continuance, but the court denied the request. The third court-appointed attorney assisted Fischer during the hearing. The district court denied the suppression motion on October 20, 2005.

[¶ 6] On November 2, 2005, Fischer moved for a continuance of his November 3, 2005, jury trial on the charges stemming from the October 9, 2004, incident, so he could have more time to prepare. The court denied the motion and Fischer represented himself with the assistance of his third court-appointed attorney. The jury acquitted Fischer of those charges. The district court rescheduled Fischer’s jury trial on the charges stemming from the November 30, 2004, incident for February 22, 2006. The Department of Corrections and Rehabilitation granted a variance to allow Fischer to be housed in the Morton County Correctional Center for more than one year.

[¶ 7] On November 21, 2005, Fischer moved for dismissal of all remaining charges against him “for the unreasonable delay in bringing defendant to trial.” The district court denied Fischer’s motion on December 6, 2005, concluding although it was “concerned with the length of his confinement awaiting trial,” “the delay in the trial of this case has [not] been excessive.” Fischer attempted to appeal the court’s order, but this Court dismissed the appeal on February 2, 2006.

[¶ 8] Fischer represented himself with the assistance of his third court-appointed attorney at the February 22-23, 2006, jury trial. The jury returned a verdict of guilty on all charges except criminal trespass, which was dismissed before the trial began. Fischer was sentenced to 20 years in prison, with 11 years suspended for five years, on the manufacturing charge. He was sentenced concurrently to 20 years in prison, with 11 years suspended for five years, for possession with intent to deliver. He was sentenced concurrently to five years in prison for possession of drug paraphernalia. In State v. Fischer, 2007 ND 22, ¶ 1, 727 N.W.2d 750, a majority of this Court concluded the district court abused its discretion in denying Fischer’s motion for an extension of time to file his notice of appeal.

II

[¶ 9] Fischer argues the district court erred in denying his motion to suppress.

[¶ 10] In State v. Goebel, 2007 ND 4, ¶ 11, 725 N.W.2d 578, we summarized the standard of review for a district court’s decision on a motion to suppress evidence:

When reviewing a district court’s ruling on a motion to suppress, we defer to the district court’s findings of fact and resolve conflicts in testimony in favor of affirmance. State v. Graf, 2006 ND 196, ¶ 7, 721 N.W.2d 381. We recognize that the district court is in a superior position to assess the credibility of witnesses and weigh the evidence. State v. Woinarowicz, 2006 ND 179, ¶20, 720 N.W.2d 635 (citations omitted). Generally, a district court’s decision to deny a motion to suppress mil not be reversed if there is sufficient competent evidence capable of supporting the district court’s findings, and if its decision is not contrary to the manifest weight of the evidence. Id. Questions of law are fully reviewable on appeal, and whether a finding of fact meets a legal standard is a question of law. Graf, at ¶ 7.

[¶ 11] The record reflects that Fischer and his wife had been renting a home on a farmstead owned by the estate of Mabel Nelson. Randy Nelson served as the “acting landlord” of the premises. Fischer and his wife also were allowed access to a portion of a pole barn on the property. However, Fischer and his wife had been evicted from the property and were to have their belongings off of the premises by November 15, 2004. On the morning of November 30, 2004, Ricky Nelson, an heir of the estate, contacted a law enforcement officer and requested that he go to the farmstead and inspect a bucket he had found in the pole barn. Ricky Nelson told the officer he had tools in the barn and he and his family were allowed access to the building. Law enforcement officers went to the farmstead, went into the pole barn, and discovered Fischer in the process of manufacturing methamphetamine. The officers placed Fischer under arrest and gave him Miranda warnings. After the warnings were given, Fischer made incriminating statements.

[¶ 12] Fischer argues his Fourth Amendment rights were violated because the officers did not have a search warrant and because Ricky Nelson was not an actual owner of the property authorized to consent to the search. Even assuming Fischer had a reasonable expectation of privacy in property from which he had been evicted, see State v. Oien, 2006 ND 138, ¶ 13, 717 N.W.2d 593 (defendant had no reasonable expectation of privacy in his girlfriend’s apartment after becoming aware landlord forbid him from being on Housing Authority property), consent is a clearly delineated exception to the warrant requirement. State v. Albaugh, 2007 ND 86, ¶ 21, 732 N.W.2d 712. “Law enforcement officials do not have to obtain consent from the owner of the property.” State v. Zimmerman, 529 N.W.2d 171, 175 (N.D.1995). Rather, “[u]nder the Fourth Amendment, ... valid consent to search may be given by parties with actual or apparent common authority, when viewed from the officer’s perspective.” Id.

“[The] determination of consent to enter must be judged against an objective standard: would the facts available to the officer at the moment warrant a man of reasonable caution in the belief that the consenting party had authority over the premises? If not, then warrantless entry without further inquiry is unlawful unless authority actually exists. But if so, the search is valid.”

Id. (quoting Illinois v. Rodriguez, 497 U.S. 177, 188-89, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990)).

[¶ 13] At the suppression hearing, Morton County Deputy Sheriff Rob Fonte-not testified:

Q Okay. But just again, for the record, you did not verify Ricky Nelson as a property owner, just simply by what he told you?
A I didn’t personally verify it. Deputy Bitz spoke to some other members of the Nelson family that advised Deputy Bitz that Ricky Nelson had permission to allow us to go in and search.

[¶ 14] We conclude the officers could reasonably conclude Ricky Nelson had apparent authority to consent to the search, and therefore, the officers’ warrantless entry into the pole barn did not violate Fischer’s Fourth Amendment rights.

III

[¶ 15] Fischer raises a trio of issues concerning the adequacy of his legal representation.

A

[¶ 16] Fischer argues he received ineffective assistance of counsel from his three court-appointed attorneys.

[¶ 17] In State v. Noorlun, 2005 ND 189, ¶ 30, 705 N.W.2d 819, we outlined the standard for assessing an ineffective assistance of counsel claim on direct appeal:

A defendant claiming ineffective assistance of counsel must establish counsel’s performance was deficient and counsel’s deficient performance prejudiced the defendant. State v. Palmer, 2002 ND 5, ¶ 11, 638 N.W.2d 18. In Palmer, at ¶ 11, we said “[t]o demonstrate prejudice, the defendant must establish a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different, and the defendant must specify how and where trial counsel was incompetent and the probable different result.” A claim of ineffective assistance of counsel ordinarily should be raised in a post-conviction proceeding so the parties can fully develop a record on the issue of counsel’s performance and its impact on the defendant’s case. Id. at ¶ 12. When ineffective assistance of counsel is raised on direct appeal, we will review the record to determine if counsel was plainly defective. Id. If we cannot conclude that assistance of counsel was plainly defective and if no other grounds for reversal exist, we will affirm the judgment without prejudice to the defendant pursuing a claim for ineffective assistance of counsel at a post-conviction proceeding where an adequate record can be developed. State v. Strutz, 2000 ND 22, ¶26, 606 N.W.2d 886.

[¶ 18] On this record, we are unable to conclude that the assistance of Fischer’s court-appointed attorneys was ineffective. Fischer complains that his first attorney had an “overburdened schedule” and failed to sufficiently communicate with him. Fischer complains that his second attorney erroneously advised him to plead guilty to the October 2004 charges on which the jury ultimately returned verdicts of not guilty. Fischer’s major complaint about his third attorney is essentially that the attorney did not do enough to help him. This assumes an ineffective assistance claim can be asserted against standby counsel. Compare State v. Hart, 1997 ND 188, ¶ 25, 569 N.W.2d 451 (defendant “has articulated no standard for ineffective assistance of standby counsel”) and Simpson v. Battaglia, 458 F.3d 585, 597 (7th Cir.2006) (“the inadequacy of standby counsel’s performance, without the defendant’s relinquishment of his [right to self-representation], cannot give rise to an ineffective assistance of counsel claim”) with People v. Bloom, 48 Cal.3d 1194, 259 Cal.Rptr. 669, 774 P.2d 698, 718 (1989) (“To prevail on a claim that counsel acting in an advisory or other limited capacity has rendered ineffective assistance, a self-represented defendant must show that counsel failed to perform competently within the limited scope of the duties assigned to or assumed by counsel ”).

[¶ 19] “The effectiveness of counsel’s representation is measured objectively considering the prevailing professional norms.” State v. Loughead, 2007 ND 16, ¶ 25, 726 N.W.2d 859. Fischer has pointed to nothing but his subjective dissatisfaction with his court-appointed attorneys. Fischer’s representations and assertions on appeal are insufficient to establish a claim of ineffective assistance. See, e.g., State v. Schweitzer, 2007 ND 122, ¶25, 735 N.W.2d 873; State v. Bates, 2007 ND 15, ¶ 19, 726 N.W.2d 595. Fischer’s allegations do not establish that his attorneys’ assistance was plainly defective or that Fischer was prejudiced by their performance.

B

[¶ 20] Fischer argues he was forced to choose between self-representation and “poor counsel,” and consequently, his choice to act as his own attorney was involuntary. Fischer relies upon a line of cases represented by United States v. Silkwood, 893 F.2d 245, 248 (10th Cir.1989), in which the court said for a waiver of the right to counsel to be voluntary, “the trial court must inquire into the reasons for the defendant’s dissatisfaction with his counsel to ensure that the defendant is not exercising a choice between incompetent or unprepared counsel and appearing pro se.”

[¶ 21] “Before accepting a waiver of the right to counsel, we have stated the district court should engage in a two-part, fact-specific inquiry to determine the waiver of the right to counsel is voluntary, and to determine the waiver of counsel is made knowingly and intelligently.” State v. Holbach, 2007 ND 114, ¶ 9, 735 N.W.2d 862. The record need not show an unequivocal statement indicating the defendant’s desire to represent himself. Id. at ¶ 10. Rather, the “defendant’s conduct may rise to the ‘functional equivalent’ of a voluntary waiver.” Id. “Although we prefer the waiver of the right to counsel be expressed on the record, where there is a pattern of obstructing the legal process that waiver will seldom be acknowledged by the defendant.” State v. Dvorak, 2000 ND 6, ¶ 15, 604 N.W.2d 445. “A knowing and intelligent waiver requires a defendant be aware of the dangers and disadvantages of self-representation so the record establishes the defendant knows what he is doing and his choice is made with eyes open.” Id. at ¶ 16.

[¶ 22] Fischer clearly demonstrated his intention to represent himself from the outset of these proceedings. On December 8, 2004, approximately one week after his arrest, Fischer made his first request that court-appointed counsel be discharged and that he be allowed to represent himself. After the attorney moved to withdraw as counsel, Fischer requested again on January 4, 2005, that the attorney be taken off the case and that Fischer be given access to “legal tools and materials to ensure a fair defence.” The court appointed the second attorney on January 12, 2005, and Fischer moved on March 10, 2005, to have her discharged from the case. The third attorney was appointed on March 31, 2005, and on August 31, 2005, the attorney informed the court that Fischer no longer wanted him to serve as his attorney and was planning on filing an ineffective assistance of counsel claim against him. At the September 2, 2005, hearing during which the district court allowed Fischer to represent himself with the assistance of his third appointed counsel, the following discussion took place:

THE COURT: ... Apparently you’re the third attorney that he’s made a motion against, and I’ve denied it because Mr. Fischer, you’re not entitled to just one attorney after another. You’re entitled to a court-appointed attorney. We appoint the attorneys. You accept them. If you want your own attorney, you can hire your own attorney, but we’re not going to constantly appoint attorneys for you. Mr. Glass is a perfectly competent attorney, and he will be able to do this job.
MR. GLASS: In addition, Your Hon- or, he requested to represent himself pro se.
THE COURT: I understand that.
MR. GLASS: I would propose if he wanted to go forward representing himself, I would assist.
THE COURT: Is that what you want to do, you want to represent yourself, Mr. Fischer?
MR. GLASS: And in all fairness to him, he would need time to prepare for this hearing here today.
THE COURT: Well, let’s find out about that. Mr. Fischer, tell me about that. Do you want to represent yourself or you want to go hire an attorney or what?
THE DEFENDANT: Sir, I’m in no position to hire an attorney. However, I have motioned the Court also on the other two attorneys, and I’m prepared to motion the Court on Mr. Glass. I believe he is perfectly competent, Your Honor, but we have — I don’t see a case. I’ve been asking for the file. I’ve been asking to be kept abreast. I don’t see a case. I mean, I met with him two days ago, and he couldn’t produce one, and I don’t see one in front of me.
THE COURT: What do you mean, “a case”?
THE DEFENDANT: Authority, case law, something — I believe my civil rights were violated in the arrest.
THE COURT: Sure. I understand what it is you believe, the problem is what the evidence shows in the matter. You’re looking at a class A felony. That’s 20 years in prison. That’s a big deal. You really need to have an attorney, and I don’t know — you actually feel competent to represent yourself in this matter?
THE DEFENDANT: No, I don’t, and I’m not opposed to having Mr. Glass, but I don’t feel — I feel like I’ve been held incommunicado.
THE COURT: Well, the answer to that is, Mr. Fischer, all the attorneys who have appointed cases have big, big loads of cases. You are not his only client. He cannot devote 24 hours a day to your case. He cannot be available at your beckon [sic] call.
THE DEFENDANT: I understand that, Your Honor.
THE COURT: And he’s perfectly competent. He knows exactly what he’s doing. He’s done these things before. He knows how to handle them. And my thought is this, that it’s not right for you to represent yourself. You need to have an attorney represent you. We’re not going to appoint another attorney. Mr. Glass is going to be your attorney, period. That’s the end of it. So unless you want to go by this on yourself and try to figure this whole process out, which in my opinion would be legal suicide, you need to rely on the advice of your attorney.
THE COURT: All right. You can sit there and back him up, and Mr. Fischer, good luck to you. This is a difficult process, but we’re not going to complain about the results because you have a perfectly competent attorney handling this for you. So the results are strictly in your own hands because you’re now in charge of your case, and Mr. Glass will advise you, but you get to be your own attorney. Do you understand that?
THE DEFENDANT: I understand.

Fischer’s “behavior is indicative of using pretrial motion practice and requesting different lawyers to obstruct the legal process.” Holbach, 2007 ND 114, ¶ 11, 735 N.W.2d 862. The record is replete with Fischer’s competently written motions and other court filings. He succeeded in obtaining an acquittal on the October 2004 charges, and the record of the trial proceedings on the November 2004 charges shows Fischer effectively-cross-examined witnesses. He admitted that his third court-appointed attorney was competent, and was warned by the court that self-representation is “legal suicide.” Fischer was not forced to choose between incompetent or unprepared counsel and self-representation. We conclude the record establishes Fischer’s waiver of the right to counsel was voluntary and was made knowingly and intelligently.

C

[¶ 24] Fischer argues his due process rights were violated by his inability to access legal materials while being held at the Morton County Correctional Center pending trial.

[¶25] In Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977) (footnote omitted), the United States Supreme Court held “the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.” See also Jensen v. Satran, 303 N.W.2d 568 (N.D.1981). Courts have held that a criminal defendant who knowingly and intelligently waives the right to counsel and elects self-representation, and who has been appointed standby counsel, is not constitutionally entitled to access to a law library. See, e.g., State v. Taylor, 63 Conn.App. 386, 776 A.2d 1154, 1170 (2001); State v. Simon, 297 N.W.2d 206, 209-10 (Iowa 1980); G. Blum, Annot., Sufficiency of access to legal research facilities afforded defendant confined in state prison or local jail, 98 A.L.R. 5th 445 § 4[a] (2002), and cases collected therein. The district court’s appointment of standby counsel for Fischer satisfied the state’s obligation to provide him with access to the courts. Although Fischer contends standby counsel’s assistance was minimal, Fischer acknowledges the attorney “dropped off some legal materials at the jail three days prior to the suppression hearing.” We conclude Fischer was not denied access to the courts during his pretrial detention.

IV

[¶ 26] Fischer argues the $50,000 bail, later reduced to $20,000, was excessive.

[¶ 27] Pretrial bail issues are moot after conviction, unless the amount prejudiced the defendant in the preparation of his defense. State v. Skarsgard, 2007 ND 160, ¶ 18, 739 N.W.2d 786. Although Fischer contends his inability to post bail caused the loss of his painting and drywall business, he does not claim it prejudiced him in the preparation of his defense. We conclude the issue is moot and do not address it.

V

[¶ 28] Fischer argues the approximately 15-month delay between his arrest and trial violated his right to a speedy trial under the Sixth Amendment to the United States Constitution and N.D.C.C. § 29-01-06(5).

[¶ 29] In State v. Bergstrom, 2004 ND 48, ¶ 15, 676 N.W.2d 83, we said:

In State v. Erickson, 241 N.W.2d 854, 859 (N.D.1976), this Court adopted the United States Supreme Court balancing test announced in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), which is used to evaluate the validity of a speedy trial claim under the United States Constitution, and now, the North Dakota Constitution, and the North Dakota statute. N.D.C.C. § 29-01-06(5). The test requires balancing four factors: length of the delay, reason for the delay, proper assertion of the right, and actual prejudice to the accused. State v. Murchison, 541 N.W.2d 435, 438 (N.D.1995) (citing Barker, 407 U.S. at 531—33[, 92 S.Ct. 2182]). In Barker v. Wingo, the Supreme Court of the United States held:
We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process. But, because we are dealing with a fundamental right of the accused, this process must be carried out with full recognition that the accused’s interest in a speedy trial is specifically affirmed in the Constitution.
Barker, 407 U.S. at 533, 92 S.Ct. 2182 (footnote omitted); see also State v. Johnson, 1999 ND 33, ¶21, 590 N.W.2d 192.

We review a district court’s speedy trial decision de novo, with the district court’s findings of fact reviewed under the clearly erroneous standard of review. State v. Moran, 2006 ND 62, ¶ 8, 711 N.W.2d 915.

[¶ 30] A delay of one year or more is “ ‘presumptively prejudicial,’ ” triggering an analysis of the other speedy trial factors. Moran, 2006 ND 62, ¶ 9, 711 N.W.2d 915 (quoting Doggett v. United States, 505 U.S. 647, 651-52, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992)). The 15-month delay in this case is presumptively prejudicial and weighs in the defendant’s favor, but a presumptively prejudicial delay does not alone create a speedy-trial violation. See Moran, at ¶ 9 (three-year delay not speedy trial violation); Bergstrom, 2004 ND 48, ¶ 16, 676 N.W.2d 83 (delay of more than two years not speedy trial violation).

[¶ 31] The reason for the delay does not weigh in Fischer’s favor. The primary reason for the delay in this case was Fischer’s dissatisfaction "with his attorneys, which resulted in multiple changes of court-appointed counsel. See State v. Ochoa, 2004 ND 43, ¶¶ 35-36, 675 N.W.2d 161. Each change required additional time for the attorneys to familiarize themselves with the case. When Fischer was finally granted his request to represent himself, he moved for continuances to allow for more time to prepare. His last requests for continuances were denied by the court. Fischer’s actions caused most of the delay. There is no evidence the State purposefully delayed the trial.

[¶ 32] Fischer did not assert his speedy trial rights until mid-November 2005, almost one year after his arrest and three months before trial. A failure to timely assert the right to a speedy trial weighs against establishing a speedy trial violation has occurred. See Moran, 2006 ND 62, ¶ 16, 711 N.W.2d 915. Moreover, Fischer has not alleged that he suffered actual prejudice as a result of the delay. “To establish actual prejudice, a defendant must ‘factually link her loss of liberty with any specific prejudice to her right to a fair trial.’” City of Fargo v. Thompson, 520 N.W.2d 578, 580 (N.D.1994) (quoting City of Jamestown v. Erdelt, 513 N.W.2d 82, 85 (N.D.1994)).

[¶ 33] Weighing the Barker factors, we conclude Fischer was not denied his right to a speedy trial.

VI

[¶ 34] Fischer argues he was not tried by an impartial jury representing a fair cross section of the community. He contends the jury was not impartial because the jury questionnaires revealed that approximately one-third of the persons in the jury pool or their spouses were employed by state or county governments. He also contends some of the jurors should have been excused for cause.

[¶ 35] Persons accused of crimes have a federal and state constitutional right to be tried by an impartial jury. State v. Newman, 2007 ND 148, ¶ 6, 738 N.W.2d 887. In State v. Thompson, 552 N.W.2d 386, 388 (N.D.1996), this Court explained:

A trial judge must excuse a juror if the judge “is of the opinion that grounds for challenge for cause are present.” NDRCrimP 24(b)(2). A “for cause” challenge can be based on either actual or implied bias. NDCC 29-17-35; see State v. McLain, 301 N.W.2d 616, 622 (N.D.1981). “Actual bias” is the “existence of a state of mind on the part of the juror, with reference to the case or to either party, ... that he cannot try the issue impartially without prejudice to the substantial rights of the party challenging.” NDCC 29-17-35(2). If the trial court does not believe a juror is actually biased, the court may still excuse the juror for an “implied bias” if one of the exclusive “causes” in NDCC 29-17-36 exists.

[¶ 36] Government employment does not constitute an implied bias under N.D.C.C. § 29-17-36, “but a government employee, like others, may be challenged for actual bias.” City of Bismarck v. Holden, 522 N.W.2d 471, 473 (N.D.1994). When given the opportunity by the district court to challenge any of the jurors for cause, Fischer declined. Because the issue has not been preserved for review, see State v. Entzi, 2000 ND 148, ¶ 10, 615 N.W.2d 145, we review for obvious error affecting substantial rights. State v. Gresz, 2006 ND 135, ¶7, 717 N.W.2d 583. The record shows the district court asked the jurors Fischer now challenges whether they could remain fair and impartial, and those jurors replied that they could. “Great weight is given to a potential juror’s claim that he or she will remain impartial.” State v. Nikle, 2006 ND 25, ¶ 8, 708 N.W.2d 867. We conclude there is no obvious error affecting substantial rights because Fischer has failed to establish that his jury was not impartial.

VII

[¶ 37] We have considered the other arguments raised by Fischer, and they do not affect our decision. We affirm the criminal judgment.

[¶ 38] DALE V. SANDSTROM, DANIEL J. CROTHERS, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.


source: Caselaw Access Project

author: CROTHERS, Justice.

license: Public Domain

text:
    2008 ND 28
    STATE of North Dakota, Plaintiff and Appellee v. Michael KOCHEL, Defendant and Appellant.
    No. 20070174.
    Supreme Court of North Dakota.
    Feb. 21, 2008.

      Elton Ray Anson (submitted on brief), Assistant State’s Attorney, Hettinger, ND, for plaintiff and appellee.
    Benjamin C. Pulkrabek (argued), Man-dan, ND, for defendant and appellant.
   CROTHERS, Justice.

[¶ 1] Michael Kochel appeals the district court’s judgment entered after a jury found him guilty of possession of methamphetamine, possession of marijuana and possession of drug paraphernalia. Kochel argues the district court erred in denying his suppression motion. We conclude law enforcement officers violated the constitutional prohibition against unreasonable search and seizure when searching an addition to Kochel’s home without a warrant. We reverse the district court’s judgment and remand for further proceedings.

I

[¶ 2] Kochel lives in a mobile home in rural Adams County. The home has a fully enclosed addition with its own storm door. The addition also has deck-like steps leading to the entry door. A “no hunting or trespassing” sign is mounted on the handrail next to the steps. There are several other “no trespassing” signs on the property, including one at the driveway turnoff, one on an outbuilding and one on each end of the property bordering the road. Kochel refers to the addition as a “utility room.” The addition is carpeted and contains a stocked freezer, clothes, tools and other personal items. The home has two other entrances.

[¶ 3] On November 1, 2006, law enforcement officers went to the Kochel residence performing a welfare check on another individual who was “alleged to frequent the ... residence.” As they approached the home, the officers spotted an individual walking near the residence, but they lost sight of the individual upon arrival. The officers approached the entry door to the addition, which was open halfway. One officer knocked on the doorframe and yelled, “Is anyone home?” After receiving no response, the officer went through the doorway. Inside, an interior door was also open. The officer knocked and called out again, receiving no response. From his position in the open inner doorway, the officer was able to see a lightbulb on a table just beyond the doorway. The lightbulb contained a dark residue, and its base was removed. The officer also saw matches on the table next to the lightbulb. The officer believed the lightbulb constituted drug paraphernalia.

[¶ 4] Based on these observations, the officer successfully applied for a search warrant. When the search warrant was executed, officers found illicit drugs in the home. Kochel was subsequently arrested, charged and found guilty by a jury.

[¶ 5] Kochel claims the addition is part of his home and was marked with a “no trespassing” sign; thus, he had a reasonable expectation of privacy. He argues the district court erred in denying his suppression motion because his Fourth Amendment protection against unreasonable search and seizure was violated. We agree.

II

[¶ 6] Whether an individual has a reasonable expectation of privacy is reviewed de novo. State v. Carriere, 545 N.W.2d 773, 775 (N.D.1996).

[¶ 7] “[Wfeirantless searches and seizures inside a home are presumptively unreasonable.” State v. Kitchen, 1997 ND 241, ¶13, 572 N.W.2d 106. “[W]hen a house has an enclosed porch, vestibule, or entryway attached to the home ... the reasonableness of each situation [must be given] due consideration to the particular characteristics of the home in question.” Id. at ¶ 14. In Kitchen, the home had only one entrance, a “narrow enclosed entryway with steps leading to an inner door approximately five or six feet away.” Id. at ¶ 3. The outer door was a storm door through which the inner door could be seen. Id. Law enforcement officers entered the outer door after no one responded to the doorbell. Id. at ¶4. Once inside the entryway, the officers smelled the odor of marijuana, which allowed them to obtain a search warrant. Id. at ¶ 5. Illegal drugs and drug paraphernalia were found in the home, and the Kitchens were criminally charged. Id. The Kitchens argued police officers should not have entered the entryway to their home because their expectation of privacy made the search unreasonable. Id. at ¶ 6. We held the Kitchens did not have a reasonable expectation of privacy because the entryway was “impliedly open to at least some access by the public” and could not be considered a living area. Id. at ¶ 29.

[¶ 8] The State argues Kochel has no reasonable expectation of privacy because the addition is like the entryway in Kitchen. We disagree, noting several material differences between the Kitchens’ entryway and Kochel’s addition.

[¶ 9] Kochel’s addition is most distinguishable from the entryway in Kitchen by a “no hunting or trespassing” sign posted on the steps outside the home. The United States Supreme Court has determined “no trespassing” signs in open fields cannot effectuate an increased expectation of privacy. Oliver v. United States, 466 U.S. 170, 179, 104 S.Ct. 1785, 80 L.Ed.2d 214 (1984). However, a “no trespassing” sign on a structure, particularly a residence, indicates a reasonable expectation of privacy. See United States v. Hall, No. 97-30296, 1998 U.S.App. Lexis 12574, at *8 n. 1, (9th Cir.1998) (distinguishing a “no trespassing” sign in a mobile home window from a “no trespassing” sign adjacent to a driveway). When calling on an individual at a residence, law enforcement officers engaged in legitimate business have “no less right to be there than any member of the public calling at that home.” Kitchen, 1997 ND 241, ¶ 15, 572 N.W.2d 106. A “no trespassing” sign posted on a residence indicates uninvited guests, including law enforcement officers lacking a warrant, are unwelcome. Kochel testified the reason for posting the sign is to keep people out of his home. The “no hunting or trespassing” sign alerts members of the public that Kochel’s addition is a private area not accessible without the resident’s permission. Any uncertainty that the addition is an integral part of the home where privacy is reasonably expected is removed by the presence of the sign.

[¶ 10] The “no hunting or trespassing” sign notwithstanding, Kochel’s addition does not resemble the “enclosed porch, vestibule, or entryway” described in Kitchen. Viewing the exterior of the addition, the structure is fully enclosed by wooden walls complete with a door and a window. The addition appears large enough to accommodate a small room. Kochel’s addition is distinguishable from the entryway in Kitchen in the same way Kitchen was distinguished from State v. Blumler, 458 N.W.2d 300 (N.D.1990).

“The situation presented here is distinguishable from Blumler in at least two respects. First, in Blumler, law enforcement entered an attached garage, not a small attached entryway. We have long recognized that a closed garage may be an intimate part of the residence where an owner had a reasonable expectation of privacy. Second, the officers in Blumler chose the garage door instead of a more direct access to the residence, while the officers in the present case had only one access to the Kitchens’ residence.”

Kitchen, 1997 ND 241, ¶17, 572 N.W.2d 106 (citations omitted). The size of Ko-chel’s addition and amount of enclosure the addition provides is more similar to the garage in Blumler than the entryway in Kitchen. Like Blumler, Kochel’s home has two other entrances where the officers could have knocked, including one on the same side of the house as the addition. The officers did not attempt to knock at either of the alternative doors before entering the addition. Furthermore, Kochel stores many personal items in the addition that would have been visible to someone at the threshold of a halfway open door. This suggests the addition was being used as a room rather than as a vestibule or entryway. Presence of personal property such as clothing is indicative that an area is private. State v. Sakellson, 379 N.W.2d 779, 782 (N.D.1985). These visual indicators suggest a reasonable expectation of privacy that the officers should have acknowledged.

[¶ 11] The State argues because the door was partially open, the officer’s decision to enter the home was reasonable. While an open door may “invite the gaze of curious passers-by and lessen the reasonable anticipation of privacy in the home,” it does not alone justify an officer’s entry into the home. Sakellson, at 782.

[¶ 12] Considering the “no hunting or trespassing” sign, size of the room, presence of a window and carpeting, and presence of personal property, Kochel’s addition is an integral part of his home to which an objective expectation of privacy should extend. Law enforcement’s war-rantless entry into this addition was unreasonable, and the district court should have excluded all evidence obtained from the search.

Ill

[¶ 13] We conclude the prohibition against unreasonable searches and seizures was violated when law enforcement officers entered the addition to Kochel’s home. We reverse the district court’s judgment and remand for further proceedings.

[¶ 14] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, CAROL RONNING KAPSNER and DALE V. SANDSTROM, JJ., concur.


author: KAPSNER, Justice.

text:
    2008 ND 33
    STATE of North Dakota, Plaintiff and Appellee v. Travis Charles LIUM, Defendant and Appellant.
    No. 20070135.
    Supreme Court of North Dakota.
    Feb. 21, 2008.
    Rehearing Denied March 20, 2008.

      Reid Alan Brady (argued), Assistant State’s Attorney, Fargo, N.D., for plaintiff and appellee.
    Alexander F. Reichert (argued), Grand Forks, N.D., for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Travis Charles Lium appeals from a criminal judgment for aggravated assault and reckless endangerment entered after the district court denied his motion to withdraw his guilty pleas. We hold the district court abused its discretion in denying Lium’s motion to withdraw his pleas without deciding whether he presented a fair and just reason for withdrawal, and we reverse and remand for reconsideration of his motion.

I

[¶2] In June 2006, the State charged Lium with attempted murder, a class A felony, alleging he stabbed his former girlfriend’s boyfriend with a knife and struck him with a vehicle in an attempt to murder him. According to the State, Lium entered the apartment of his former girlfriend, who was also the mother of his two young sons, through an unlocked patio door, pushed her out of the way, charged the victim, grabbed a kitchen knife, and cut the victim at least two times in the back and shoulder area. The State claimed the victim then ran out of the apartment building to an adjacent driveway, and shortly thereafter, Lium accelerated his vehicle down the driveway and hit the victim with the vehicle.

[¶ 3] In a February 1, 2007, written plea agreement, Lium, with counsel and to avoid a jury trial on the attempted murder charge, agreed to enter a guilty plea under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), to two class C felonies: (1) aggravated assault for cutting the victim with the knife, and (2) reckless endangerment for hitting the victim with the vehicle. The written plea agreement said the prosecution would seek to have the sentence for both charges “imposed consecutively at the maximum term of incarceration for a total of 10 years,” and Lium was “free to argue for a lesser sentence but for no less than 7½ years in custody.”

[¶ 4] At a change-of-plea hearing, the district court accepted Lium’s guilty pleas after a colloquy with him about his understanding of the plea agreement and his rights. During the exchange, Lium stated that he understood the plea agreement and the nature of the charges, the maximum penalties for each charge, and the minimum mandatory term of imprisonment for the aggravated assault charge; that he had an opportunity to review the plea agreement with his attorneys, his attorneys had explained the charges to him, and he understood the agreement and the elements of the charges; and that he knew he was surrendering various rights by entering the pleas, including the right to a preliminary hearing, the right to be present at all stages of the proceeding, the right to plead not guilty, the right to an attorney, the right to a speedy, public jury trial, the right to a presumption of innocence, the right to confront and subpoena witnesses, the right to bail, and the right to remain silent. The court explained to Lium that the State had reserved its right to argue for consecutive sentences for the two charges, which each carried a maximum term of imprisonment of five years, and that Lium’s counsel agreed the defense would not argue for a sentence of less than 7½ years. Lium acknowledged that no promises or threats had been made to him in exchange for the pleas and the State had sufficient evidence to prove its case. The State provided the court with a factual basis for the charges, and the court accepted Lium’s Alford pleas and ordered a presentence investigation. The court also informed Lium the presentence investigation would be part of the basis for the court’s sentence, and if the court felt “the range that the parties have agreed to for sentencing” was too light or too harsh, the court could reject the agreement and give him the opportunity to withdraw his pleas.

[¶ 5] Lium thereafter sent a handwritten letter, dated February 23, 2007, to the district court “to clear up any ambiguity ... as to what [he felt was] fair in regards to [his] sentencing.” His letter stated the prosecutor was “not willing to be reasonable in regards to their sentencing recommendation or charges,” and he sought a “minimal time of incarceration” that would be “much less than the five year maximum” and run concurrently. He also stated “the attorneys handling this case have been atrocious,” he “had no intentions of killing or seriously injuring anyone,” and he “was not confident in [his] attorneys’ preparation for trial, since they never came to visit [him] on the specifics of [his] case.” He informed the court he wanted to rescind his pleas if the court felt obligated to impose the sentences outlined in the plea agreement, and he wanted a new attorney appointed or he may want to represent himself. He closed the letter by stating he “would like an amicable end to this case, but sitting in prison for seven and a half years is not [an] amicable conclusion. I appreciate your fairness. You are my only chance for a just punishment in this case without the costs of a trial.”

[¶ 6] Before sentencing, Lium retained different counsel and moved to withdraw his guilty pleas. In an affidavit in support of his motion, Lium stated:

3. That on multiple occasions, my original attorney appeared to want [to] quit his representation of me if I did not accept the terms of the plea agreement he had negotiated with the Cass County State’s Attorney’s office.
4. A few days before my change of plea, my ■ attorney presented me with an oral agreement. I rejected that agreement and my attorney stormed out of the jail.
5. That I was confused and scared upon seeing his response and did not understand that I would have an opportunity to seek replacement counsel if my original counsel had in fact quit.
6. That I had not seen the plea agreement or consented to any of its terms up until one (1) hour prior to my Change of Plea hearing.
7. That approximately one (1) hour before my Change of Plea hearing I saw the plea agreement for the first time, again my attorney make [sic] me feel he would quit his representation of me if I did not accept the terms of the plea agreement.
8. That I remained confused and scared that I would be left to defend myself in the charges facing me if I did not comply with my attorney’s wishes.
9. I have subsequently learned that I was not required to submit to the threats of my previous attorney and could have obtained substitute counsel.
10.But for the threats of my attorney to cease his representation of me, I would never have agreed to enter into a guilty plea in open court. I do not feel I am guilty of the charges I am accused of and only agreed to the plea agreement out of fear of having to represent myself based upon my previous attorney’s threats.

[¶ 7] The district court denied Lium’s motion, ruling withdrawal of the guilty pleas was not necessary to correct a manifest injustice and Lium’s pleas were voluntary and intelligent:

Okay. Relying on the submissions then of the parties and Rule 32 of the North Dakota Rules of Criminal Procedure there is no manifest injustice that needs to be corrected here.
And in looking at the voluntary nature of the guilty plea given the Rule 11 and the Court’s care in trial to follow those factors we have an attack on the voluntary and intelligent nature of the guilty plea and statements by the Defendant that he was somehow threatened or wasn’t given competent advice by his former counsel.
But looking at the case as a whole this was an attempted murder case which was amended and I believe it’s a double A — or excuse me, a single A Felony punishable by up to 20 years. And previous counsel secured, through negotiation with the State, an Amended Information to two Class C Felonies with a maximum of 5 years each on those.
It appears that the advice he got was certainly within the range of competent criminal defense attorney and that the Court questioned him on two occasions as to whether it was voluntary.
So in looking at Rule 32 I’m going to deny the motion to withdraw the plea of guilty in this case and we’ll proceed to sentencing.

The court then sentenced Lium to consecutive five-year terms of incarceration for the two offenses.

II

[¶ 8] Lium argues the district court’s failure to give him a mandatory warning required by N.D.R.Crim.P. 11(c)(3)(B) constitutes obvious error that affected his substantial rights. He claims the court failed to advise him that he had no right to withdraw the pleas under N.D.R.Crim.P. 11(c)(3)(B) if the court did not follow the State’s recommendation under N.D.R.Crim.P. 11(c)(1)(B). The State responds Lium failed to raise this issue in the district court, and even if the issue had been raised, the court properly advised Lium of his rights under N.D.R.Crim.P. 11, because the plea agreement was under N.D.R.Crim.P. 11(c)(1)(C) and not 11(c)(1)(B).

[¶ 9] To establish obvious error, a defendant must show (1) error, (2) that is plain, and (3) that affects substantial rights. State v. Olander, 1998 ND 50, ¶ 14, 575 N.W.2d 658. An alleged error does not constitute obvious error unless it is a clear deviation from an applicable legal rule under current law. Id.

[¶ 10] Rule 11(c), N.D.R.Crim.P., outlines a procedure for plea agreements, including binding and nonbinding agreements, and provides, in part:

(c) Plea Agreement Procedure.
(1) In General. The prosecuting attorney and the defendant’s attorney, or the defendant when acting pro se, may discuss and reach a plea agreement. The court must not participate in these discussions. If the defendant pleads guilty to either a charged offense or a lesser or related offense, the plea agreement may specify that the prosecuting attorney will:
(A) not bring, or will move to dismiss, other charges;
(B) recommend, or agree not to oppose the defendant’s request, that a particular sentence is appropriate; or
(C) agree that a specific sentence or sentencing range is the appropriate disposition of the case.
(3) Judicial Consideration of a Plea Agreement.
(A) To the extent the plea agreement is of the type specified in Rule 11(e)(1)(A) or (C), the court may accept the agreement, reject it, or defer a decision until the court has reviewed the presentence report.
(B) To the extent the plea agreement is of the type specified in Rule 11(c)(1)(B), the court must advise the defendant that the defendant has no right to withdraw the plea if the court does not follow the recommendation or request.

[¶ 11] Those provisions of our rule are similar to F.R.Crim.P. 11(c)(1) and (3). See N.D.R.Crim.P. 11, Explanatory Note. We have frequently said that when our procedural rule is similar to the corresponding federal rule, federal decisions may be persuasive in construing our rule. E.g. State v. O’Rourke, 544 N.W.2d 384, 385 (N.D.1996). In United States v. Gillen, 449 F.3d 898, 902 (8th Cir.2006), the Eighth Circuit Court of Appeals explained the main difference between a plea agreement under F.R.Crim.P. 11(c)(1)(B) and under 11(c)(1)(C) is that under (c)(1)(C), the government promises to “agree,” which binds the district court at sentencing, and under (c)(1)(B) the government promises to “recommend,” which does not bind the district court at sentencing. See State v. Feist, 2006 ND 21, ¶ 16, 708 N.W.2d 870 (discussing difference between binding and nonbinding plea agreement); Bay v. State, 2003 ND 183, ¶ 12, 672 N.W.2d 270 (same); Peltier v. State, 2003 ND 27, ¶¶ 9-12, 657 N.W.2d 238 (same); DeCoteau v. State, 504 N.W.2d 552, 558 n. 2 (N.D.1993) (same); State v. Thompson, 504 N.W.2d 315, 319 (N.D.1993) (same).

[¶ 12] In DeCoteau, 504 N.W.2d at 558 n. 2, we recognized that plea agreements in what is now N.D.R.Crim.P. 11(c)(1) may have elements of more than one kind of plea bargain. In DeCoteau, at 556-59, we also discussed a plea agreement in contractual terms involving the defendant’s reasonable understanding and expectation as to the sentence for which he had bargained. See State v. Hamann, 262 N.W.2d 495, 502 (N.D.1978) (“an approved plea bargaining agreement has qualities similar to that of a contract”); State v. Thorstad, 261 N.W.2d 899, 902 (N.D.1978) (noting contract elements in plea bargaining and stating contract criteria have been superimposed upon plea bargaining). See also United States v. Sanchez, 508 F.3d 456, 460 (8th Cir.2007) (“Plea agreements are contractual in nature and should be interpreted according to general contract principles.”); United States v. Yah, 500 F.3d 698, 703 (8th Cir.2007) (applying general contract principles in interpreting plea agreements); United States v. Bernard, 373 F.3d 339, 345 (3rd Cir.2004) (plea agreements are contractual and analyzed under contract law standards).

[¶ 13] Here, nothing in Lium’s written plea agreement explicitly states the agreement is either binding on the district court under N.D.R.Crim.P. 11(c)(1)(C), or not binding on the district court under N.D.R.Crim.P. 11(c)(1)(B). See Peltier, 2003 ND 27, ¶ 12 n. 1, 657 N.W.2d 238 (agreement treated as binding plea agreement, but in cases where the nature of a plea agreement is ambiguous, a court should clarify the matter on the record). However, the plea agreement plainly states the criminal information would be amended from attempted murder, a class A felony, to two class C felonies to avoid a jury trial on the original charge of attempted murder, which carried a more substantial maximum prison term. The plea agreement specifically says, “[a]t sentencing the prosecution will seek to have the sentences on [the two counts] imposed consecutively at the maximum term of incarceration for a total of 10 years” and “the defense is free to argue for a lesser sentence but for no less than 7½ years in custody.” The language of the plea agreement, when read as a whole, does not include language saying the State agreed to a sentence that was a nonbinding recommendation under the “recommend, or agree not to oppose the defendant’s request, that a particular sentence is appropriate” language of N.D.R.Crim.P. 11(c)(1)(B). Rather, the language of the agreement about sentencing, when read together, effectively says the State agreed to a specific sentence or sentencing range, which implicates the “specific sentence or sentencing range” language of N.D.R.Crim.P. 11(c)(1)(C), and also includes aspects of N.D.R.Crim.P. 11(c)(1)(A) for dismissal of the attempted murder charge. The court’s statement to Lium about rejecting the agreement if, after reviewing the presentence investigation the court felt the agreement was too light or too harsh, is consistent with a binding plea agreement under N.D.R.Crim.P. 11(c)(1)(C) and N.D.R.Crim.P. 11(c)(3)(A). We conclude the plea agreement was a binding plea agreement under N.D.R.Crim.P. 11(c)(1)(C) and not a nonbinding recommendation under N.D.R.Crim.P. 11(c)(1)(B). We therefore conclude N.D.R.Crim.P. 11(c)(3)(B) is not applicable and the district court did not err in failing to provide Lium with the warning required by that subsection. We therefore reject Lium’s obvious error claim under N.D.R.Crim.P. 11(c).

Ill

[¶ 14] Lium argues the district court abused its discretion in denying his motion to withdraw his guilty pleas, because the court did not exercise its discretion in the interest of justice and the court misinterpreted and misapplied the law. Lium argues his assertion of innocence through his Alford pleas and his post-plea filings with the court, and the involuntary nature of his pleas are fair and just reasons for withdrawal of his pleas. He claims he was confused and he misunderstood the effect of his pleas on his ability to withdraw the pleas under N.D.R.Crim.P. 11(c)(3)(B), which demonstrates the pleas were not intelligent, knowing, and voluntary. He asserts other facts show he did not voluntarily enter pleas, including (1) he saw the plea agreement only one hour before he changed his plea, (2) his pleas resulted from his prior counsels’ threats to cease representing him, and (3) his prior counsels’ representation had been “atrocious.” He contends the State did not cite any prejudice or inconvenience that would result if he was allowed to withdraw his guilty pleas. He asserts the district court ignored this Court’s admonition to err on the side of the liberal allowance of plea withdrawals before sentencing. He argues the district court’s denial of his motion to withdraw his pleas did not decide whether he had presented any fair and just reason warranting withdrawal of his pleas.

[¶ 15] The State responds the district court did not abuse its discretion in denying Lium’s motion to withdraw his guilty pleas, because Lium failed to show it would be fair and just to allow withdrawal of his pleas and failed to prove withdrawal was necessary to correct a manifest injustice. The State argues Lium failed to show his assertion of innocence supported withdrawal of his pleas because his assertion of innocence to the amended charges, as opposed to the initial charge, is not entirely clear from his handwritten letter to the court. The State argues the district court properly found Lium’s pleas were voluntary because there was no indication of threats by his attorneys when Lium entered the pleas and Lium expressed his desire to avoid potential greater punishment for an attempted murder conviction.

[¶ 16] The withdrawal of a guilty plea is governed by N.D.R.Crim.P. 32(d), which provides:

(1) In General. The court must allow the defendant to withdraw a plea of guilty whenever the defendant, on a timely motion for withdrawal, proves withdrawal is necessary to correct a manifest injustice.
(2) Timeliness. A motion for withdrawal is timely if made with due diligence, considering the nature of the allegations, and is not necessarily barred because made subsequent to judgment or sentence.
(3) Court’s Discretion. If the defendant does not show that withdrawal is necessary to correct a manifest injustice, the defendant may not withdraw a plea of guilty as a matter of right once the court has accepted the plea. Before sentence, the court in its discretion may allow the defendant to withdraw a plea for any fair and just reason unless the prosecution has been substantially prejudiced by reliance on the defendant’s plea.

[¶ 17] Under N.D.R.CrimJP. 32(d), the standard for a district court’s consideration of a defendant’s request to withdraw a guilty plea differs depending on when the motion to withdraw is made. State v. Bates, 2007 ND 15, ¶6, 726 N.W.2d 595; Froistad v. State, 2002 ND 52, ¶ 5, 641 N.W.2d 86. A defendant has a right to withdraw a guilty plea before it is accepted by the court. Bates, at ¶ 6; Froistad, at ¶ 6. “ ‘After a guilty plea is accepted, but before sentencing, the defendant may withdraw a guilty plea if necessary to correct a manifest injustice, or, if allowed in the court’s discretion, for any “fair and just” reason unless the prosecution has been prejudiced by reliance on the plea.’ ” Froistad, at ¶ 8 (quoting State v. Klein, 1997 ND 25, ¶ 13, 560 N.W.2d 198). See also Bates, at ¶ 6; Feist, 2006 ND 21, ¶ 20, 708 N.W.2d 870. After a court has accepted a plea and imposed a sentence, a defendant cannot withdraw a plea unless the motion is timely and withdrawal is necessary to correct a manifest injustice. Bates, at ¶ 6; Froistad, at ¶ 9.

[¶ 18] In Feist, 2006 ND 21, ¶21, 708 N.W.2d 870, we recently reiterated:

“[cjourts and commentators have taken cognizance that Rule 32(d) should be liberally construed in favor of the defendant, and that leave to withdraw a guilty plea before sentencing should be freely granted.” State v. Millner, 409 N.W.2d 642, 644 (N.D.1987) (citing United States v. Punch, 709 F.2d 889, 893 n. 5 (5th Cir.1983); United States v. Russell, 686 F.2d 35, 38 (D.C.Cir.1982); United States v. Navarro-Flores, 628 F.2d 1178, 1183 (9th Cir.1980); 3 Charles Alan Wright, Federal Practice & Procedure: Criminal 2d § 538, at 199 (1982)). “Before sentencing, the inconvenience to court and prosecution resulting from a change of plea is ordinarily slight as compared with the public interest in protecting the right of the accused to trial by jury.” Millner, 409 N.W.2d at 644 (quoting Kadwell v. United States, 315 F.2d 667, 670 (9th Cir.1963)).

[¶ 19] Although we have recognized a preference to liberally allow withdrawal of a guilty plea, where, as here, the motion to withdraw is before sentencing, we have also said N.D.R.Crim.P. 32(d) is not standardless and does not allow withdrawal as a matter of right after the plea has been accepted. State v. Sisson, 1997 ND 158, ¶ 17, 567 N.W.2d 839. A defendant has the burden of proving that a fair and just reason supports withdrawal of a plea, or that withdrawal is necessary to correct a manifest injustice. State v. Dimmitt, 2003 ND 111, ¶ 6, 665 N.W.2d 692; State v. Millner, 409 N.W.2d 642, 643 (N.D.1987).

[¶ 20] A district court’s determination of a manifest injustice, or the occurrence of a fair and just reason is within the court’s discretion and will not be reversed on appeal absent an abuse of discretion. Feist, 2006 ND 21, ¶ 22, 708 N.W.2d 870; Sisson, 1997 ND 158, ¶ 15, 567 N.W.2d 839. A district court abuses its discretion when it acts in an arbitrary, unreasonable, or capricious manner, or misinterprets or misapplies the law. Feist, at ¶ 22; State v. Farrell, 2000 ND 26, ¶ 8, 606 N.W.2d 524.

[¶21] Here, the district court’s oral decision denying Lium’s motion states the court found that withdrawal of the guilty plea was not necessary to correct a manifest injustice and that Lium’s pleas were voluntary and intelligent. To the extent the district court decided withdrawal of Lium’s pleas was not necessary to correct a manifest injustice, we conclude the court’s decision was not arbitrary, unreasonable, or capricious, or a misinterpretation of the law. We therefore conclude the court did not abuse its discretion in deciding withdrawal of Lium’s pleas was not necessary to correct a manifest injustice.

[¶ 22] However, the district court did not decide whether there was a fair and just reason for withdrawal of Lium’s pleas, and, if so, whether the State was prejudiced. A district court abuses its discretion when it misapplies the law. Feist, 2006 ND 21, ¶22, 708 N.W.2d 870. The “fair and just” reason for withdraw of a guilty plea involves a lesser showing than is required to establish “manifest injustice.” American Bar Association Standards for Criminal Justice, Pleas of Guilty § 14 — 2.1(a), Commentary, p. 14-53 (1979). To the extent Lium’s argument is based on the warning he claims he was entitled to under N.D.R.Crim.P. 11(c)(3)(B), we conclude his argument is meritless. However, Lium has raised other arguments about an assertion of innocence or a possible defense, which, although not sufficient to warrant a conclusion that the district court abused its discretion in deciding withdrawal was not necessary to correct a manifest injustice, may support a fair and just reason for withdrawal. Moreover, during oral argument to this Court, the State conceded it had not been prejudiced by reliance on the plea. See Millner, 409 N.W.2d at 644 (discussing substantial prejudice to State). We conclude the district court misapplied the law in failing to decide whether there was “any fair and just reason” to allow Lium to withdraw his pleas. We therefore reverse and remand for the district court to decide whether there was any fair and just reason to allow Lium to withdraw his pleas.

IV

[¶ 23] We reverse and remand for consideration of whether Lium should be allowed to withdraw his guilty pleas for any fair and just reason.

[¶ 24] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, DANIEL J. CROTHERS, and DALE V. SANDSTROM, JJ., concur.


text:
    2008 ND 30
    Tate Michael LIES, Petitioner and Appellant v. DIRECTOR, NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellee.
    No. 20070257.
    Supreme Court of North Dakota.
    Feb. 21, 2008.

      Michael R. Hoffman (argued), Bismarck, ND, for petitioner and appellant.
    Andrew Moraghan (argued), Assistant Attorney General, Office of Attorney General, Bismarck, ND, for respondent and appellee.
   KAPSNER, Justice.

[¶ 1] Tate Lies appeals from a district court judgment affirming a North Dakota Department of Transportation (“Department”) decision to suspend his driver’s license for a period of one year. We affirm the judgment.

I

[¶ 2] In March 2007, Officer Roehrich stopped Lies’s vehicle at 12:57 a.m. When Officer Roehrich spoke with Lies during the stop, he smelled alcohol on Lies’s breath. When questioned about the scent of alcohol, Lies admitted to drinking three beers that evening. Officer Roehrich asked Lies to perform several field sobriety tests. Lies agreed and subsequently failed the horizontal gaze nystagmus test, the walk-and-turn test, and the one-leg-stand test. Lies also failed an S-D2 onsite screening test, which estimated his alcohol concentration to be .23 percent by weight. Officer Roehrich then arrested Lies for driving under the influence of alcohol (“Din”).

[¶ 3] Lies was handcuffed behind his back and put in the backseat of Officer Roehrich’s police car. Officer Roehrich recited to Lies the implied-consent advisory and asked Lies if he would submit to a blood test. Lies stated he would not submit to testing until he spoke with his lawyer. Officer Roehrich asked which attorney Lies would like to contact, and Lies stated he wished to speak with Tom Tunt-land. Because Lies did not know the phone number for this particular lawyer, Officer Roehrich looked up the office number for Tom Tuntland. He dialed the number, but he only reached an automated greeting, which did not provide an after-hours phone number. He told Lies Tunt-land could not be reached at his office number and then attempted to look up Tuntland’s residential phone number. He told Lies he could not find Tuntland’s home phone number.

[¶ 4] Officer Roehrich reminded Lies of the implied-consent advisory and asked if Lies would submit to a test. Lies again said that he would not submit without first speaking to his attorney. Officer Roehrich again offered to contact Tuntland, if Lies knew of another phone number or alternative means of contacting him. Lies said he did not have Tuntland’s phone number. For a third time, Officer Roehrich asked Lies if he would submit to a chemical test, saying he needed a “yes or no” answer; Lies replied he would not submit until he spoke with his attorney. Officer Roehrich again explained he had not been able to reach Tuntland and told Lies he needed to make a decision as to the test. Lies repeated he would not submit without speaking with his lawyer, but did not ask for a different lawyer or provide any additional suggestions for reaching Tuntland. After the third request for a submission to or refusal of the test and Lies’s request to speak to his lawyer, Officer Roehrich drove Lies to the Burleigh County Detention Center and booked him.

[¶ 5] Officer Roehrich gave Lies a Report and Notice, concluding Lies had refused to submit to a chemical blood test. Lies requested an administrative hearing. At the hearing, both Lies and Officer Roehrich testified Lies did not request any other attorney or access to a phonebook during the time between arrest and booking after the attempts to reach Tuntland failed. Officer Roehrich testified he did not suggest to Lies that he should call another lawyer, stating “Tuntland was the one he wanted.” At the hearing, Officer Roehrich identified the 2007 Dex phone-book as the one he believed he had used to attempt to find Tom Tuntland’s home phone number. During the hearing, the 2007 Dex phonebook was found to contain a listing for Tom Tuntland in the residential section. When questioned about this, Officer Roehrich stated that the phone-book he used in his patrol car did not contain that listing.

[¶ 6] The hearing officer concluded that Officer Roehrich did provide Lies a reasonable opportunity to contact his attorney under the totality of the circumstances and suspended Lies’s driver’s license for one year. Lies appealed to the district court, arguing the Department erred in suspending his driving privileges because he was not provided a reasonable opportunity to speak with an attorney before his failure to submit to the chemical test was deemed a refusal. The district court affirmed the decision of the hearing officer.

[¶ 7] Lies appeals the judgment of the district court affirming the revocation of his driving privileges, arguing he was not afforded a reasonable opportunity to contact an attorney.

II

[¶ 8] The review of an administrative decision to suspend or revoke a driver’s license is governed by the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32. Wetzel v. N.D. Dep’t of Transp., 2001 ND 35, ¶ 9, 622 N.W.2d 180 (citing Houn v. N.D. Dep’t of Transp., 2000 ND 131, ¶ 5, 613 N.W.2d 29). Under N.D.C.C. § 28-32-49, this Court reviews the record compiled by the administrative agency and affirms the agency’s decision unless:

1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

N.D.C.C. § 28-32-46.

[¶ 9] This Court gives deference to administrative agency’s factual findings and does not substitute its judgment for that of the agency. Wetzel, at ¶ 9 (citing Morrell v. N.D. Dep’t of Transp., 1999 ND 140, ¶ 6, 598 N.W.2d 111). However, the question of whether a person has been given a reasonable opportunity to consult with an attorney is not purely a question of fact; instead, it is one of both law and fact. Id. at ¶ 10 (citing Groe v. Comm’r of Pub. Safety, 615 N.W.2d 837, 841 (Minn.Ct.App.2000)). Mixed questions of law and fact are reviewed under a de novo standard. Id. (citing State v. Torgerson, 2000 ND 105, ¶3, 611 N.W.2d 182).

[¶ 10] “This Court has repeatedly held that defendants must be afforded a reasonable opportunity to consult with counsel before deciding whether to submit to a chemical test.” State v. Pace, 2006 ND 98, ¶6, 713 N.W.2d 535 (citing Wetzel v. N.D. Dep’t of Transp., 2001 ND 35, ¶ 12, 622 N.W.2d 180; Baillie v. Moore, 522 N.W.2d 748, 750 (N.D.1994); Kuntz v. State Highway Comm’r, 405 N.W.2d 285, 288 (N.D.1987)). The failure to allow a DUI arrestee a reasonable opportunity to consult with a lawyer after the arrestee has made such a request prevents the revocation of his driver’s license for refusal to take a chemical test. E.g., Baillie, 522 N.W.2d at 750. There are no bright line rules for determining whether a “reasonable opportunity” to consult with an attorney has been afforded; rather, the determination of whether a reasonable opportunity has been provided turns on an objective review of the totality of the circumstances. Pace, 2006 ND 98, ¶¶ 6-7, 713 N.W.2d 535.

[¶ 11] This Court has held that no reasonable opportunity to consult with an attorney was afforded when a defendant unequivocally requested counsel before submitting to testing and the defendant’s request for counsel was absolutely denied. Baillie, 522 N.W.2d at 749-50; Kuntz, 405 N.W.2d at 290. However, this Court has held that an officer offering the use of his cell phone to a DUI arrestee so the arrestee could call an attorney constituted a reasonable opportunity. Wetzel, at ¶ 20. This Court also rejected the arguments that an arrestee must always be offered a phone and a phone directory if the arres-tee makes any request for counsel, and if the arrestee is not provided with a phone and directory, the arrestee was not afforded a reasonable opportunity to speak with counsel. Pace, at ¶ 6.

[¶ 12] Pace presents facts similar to those in the present case, and this Court found Pace was afforded a reasonable opportunity to consult with counsel. Id. at ¶ 9. Lies, like Pace, requested the arresting officer call “his attorney,” rather than “an attorney.” Id. at ¶¶ 2-3. Lies, like Pace, was unable to contact the particular attorney he requested and did not ask for a different attorney after the attempt to contact that particular attorney failed. Id. Lies, like Pace, suggested no other avenues for contacting his attorney after the lawyer could not be reached at his office and after Officer Roehrich could not find the attorney’s residential number. Id. at ¶ 3. In Pace, this Court explained that when an arrestee is presented with an “ultimatum,” which requires the arrestee to give a “yes or no” answer regarding submitting to a chemical test after attempts to contact a particular attorney have failed, an arrestee’s right to a reasonable opportunity to consult with counsel has not necessarily been violated. Id. at ¶ 8.

[¶ 13] Because Officer Roehrich made attempts to contact Tuntland for Lies, Lies suggested no other attorney with whom he wished to consult, and did not ask for a phone or directory to use himself, he was not denied a reasonable opportunity to speak with counsel.

[¶ 14] We affirm the judgment of the district court.

[¶ 15] GERALD W. YANDE WALLE, C.J., MARY MUEHLEN MARING, DANIEL J. CROTHERS, and DALE V. SANDSTROM, JJ., concur.