               Filed 3/18/19 by Clerk of Supreme Court
                         IN THE SUPREME COURT
                     STATE OF NORTH DAKOTA


                                  2019 ND 85


State of North Dakota,                                     Plaintiff and Appellee

      v.

Jonathan James Guthmiller,                              Defendant and Appellant


                                 No. 20180225


       Appeal from the District Court of Grand Forks County, Northeast Central
Judicial District, the Honorable John A. Thelen, Judge.

      AFFIRMED.

      Opinion of the Court by Crothers, Justice.

      Andrew C. Eyre, Grand Forks County State’s Attorney Office, Grand Forks,
ND, for plaintiff and appellee.

      Charles J. Sheeley, Fargo, ND, for defendant and appellant.
                                State v. Guthmiller
                                   No. 20180225


       Crothers, Justice.
[¶1]   Jonathan Guthmiller appeals from a criminal judgment after he pled guilty to
luring a minor by computer. Guthmiller argues the district court abused its discretion
when denying his motion to withdraw his guilty plea, and erred by failing to advise
him of a mandatory period of probation. We affirm the criminal judgment.


                                          I
[¶2]   In April 2017 the State charged Guthmiller with luring a minor by computer
after an investigation uncovered inappropriate sexual messages and photographs
exchanged on the social media platform Snapchat between Guthmiller and a fifteen-
year-old.
[¶3]   Guthmiller entered a plea of not guilty. The district court scheduled trial for
September 26, 2017. The parties engaged in negotiations before trial and on
September 26, 2017, Guthmiller signed a plea agreement entering a plea of guilty to
luring a minor by computer. At the change of plea hearing the district court
confirmed Guthmiller was aware he was changing his plea pursuant to an agreement
and advised he could proceed to trial if he or the court did not accept the plea
agreement. The court explained Guthmiller would not be able to withdraw his plea
unless the court refused to sentence him in accordance with the agreement.
Guthmiller affirmed his decision to accept the plea agreement. The district court
verified Guthmiller was freely and voluntarily entering his guilty plea and asked
questions to ensure Guthmiller understood his rights. Guthmiller again told the court
he desired to plead guilty.
[¶4]   Guthmiller told the court his counsel’s representation was satisfactory and he
was not under the influence of any intoxicants. The State provided the factual basis



                                          1
for the Alford plea and Guthmiller agreed the State could prove the factual basis
beyond a reasonable doubt. The district court accepted Guthmiller’s guilty plea.
[¶5]   The district court ordered a presentence investigation report and sex offender
evaluation, and scheduled sentencing for January 2018. The sentencing hearing was
continued twice. Guthmiller moved to withdraw his guilty plea based on possible
new information about purported activity on his Snapchat account. The district court
requested briefing on the matter and on April 27, 2018, conducted a hearing on the
motion to withdraw. The court denied the motion, finding Guthmiller failed to show
a “fair and just” reason to withdraw the guilty plea. The district court also found the
State would be prejudiced by allowing Guthmiller to withdraw his plea. Guthmiller
was sentenced on May 14, 2018, and appealed on June 1, 2018.


                                          II
[¶6]   Rule 11(d), N.D.R.Crim.P., governs the withdrawal of a guilty plea and
provides differing standards depending on the timing of a motion. State v. Lium,
2008 ND 232, ¶ 11, 758 N.W.2d 711. A defendant may withdraw a guilty plea at any
time before the court accepts the plea. N.D.R.Crim.P. 11(d)(1)(A). A defendant also
may withdraw a guilty plea after the court accepts the plea, but before sentencing, if
the court rejects a plea agreement or if the defendant demonstrates a “fair and just”
reason for the withdrawal. N.D.R.Crim.P. 11(d)(1)(B)(i)-(ii). “Unless the defendant
proves that withdrawal is necessary to correct a manifest injustice, the defendant may
not withdraw a plea of guilty after the court has imposed sentence.”
N.D.R.Crim.P. 11(d)(2). “The decision whether a manifest injustice exists for
withdrawal of a guilty plea lies within the trial court’s discretion and will not be
reversed on appeal except for an abuse of discretion.” State v. Bates, 2007 ND 15, ¶
6, 726 N.W.2d 595. A court abuses its discretion when it acts in an arbitrary,
unreasonable, or unconscionable manner, or it misinterprets or misapplies the law.
State v. Pixler, 2010 ND 105, ¶ 7, 783 N.W.2d 9.



                                          2
                                          III
[¶7]   Guthmiller argues possible new information about purported activity on his
Snapchat account is a “fair and just” reason to withdraw the guilty plea.
[¶8]   Before sentencing district courts should liberally allow defendants to withdraw
a plea upon proving a fair and just supporting reason. Lium, 2008 ND 232, ¶ 13,
758 N.W.2d 711. After establishing a fair and just reason to withdraw a plea, the
burden shifts to the State to establish it would be prejudiced by granting the motion.
Id. The State’s prejudice must go beyond that found in the ordinary case. Id. Inquiry
into the State’s prejudice begins only after the defendant shows a fair and just cause
to withdraw the plea. Id.
[¶9]   The Court in Lium provided a nonexhaustive list of factors to determine
whether a defendant has “fair and just” reason for withdrawing a plea.
       “[A]mong the factors that a district court may consider in determining
       whether a fair and just reason exists to withdraw a guilty plea before
       sentencing are: (1) the amount of time that has passed between the
       entry of the plea and the motion to withdraw; (2) defendant’s assertion
       of innocence or a legally cognizable defense to the charge; (3) prejudice
       to the government; (4) whether the plea was knowing and voluntary;
       (5) whether the plea was made in compliance with Rule 11,
       N.D.R.Crim.P.; (6) whether adequate assistance of counsel was
       available to the defendant; (7) the plausibility of the reason for seeking
       to withdraw; (8) whether a plea withdrawal would waste judicial
       resources; and (9) whether the parties had reached or breached a plea
       agreement.”
Lium, 2008 ND 232, ¶ 17, 758 N.W.2d 711.
[¶10] Guthmiller argues his “fair and just” reason for withdrawal of his guilty plea
relates to purported activity on his Snapchat account. Guthmiller claims someone had
control over his account, evidenced by an immediate denial of an “add” request from
his brother sent during a meeting in his attorney’s office.           Snapchat shows
Guthmiller’s account was inactive for eleven months before the purported activity.
A law enforcement guide on the Snapchat website, last updated September 21, 2018,
explains “some deleted accounts may still have some limited information stored



                                           3
depending on various factors.” Guthmiller already admitted he spoke to the victim
via Snapchat during the time in question.
[¶11] From the evidence, we conclude the district court did not abuse its discretion
in determining information Guthmiller claimed was new evidence did not rise to the
level of “fair and just” for purposes of withdrawing a plea.


                                            IV
[¶12] Guthmiller argues the district court committed obvious error when it failed to
inform him of the mandatory five-year probation sentence.
[¶13] This Court will not address issues not adequately raised at the district court.
Kalmio v. State, 2018 ND 182, ¶ 14, 915 N.W.2d 655. “If an appeal is taken in a case
in which an evidentiary hearing was held, the appellant must order a transcript of the
proceedings . . . [and] the order for a transcript . . . must be filed with the clerk of the
supreme court with the notice of appeal.” N.D.R.App.R. 10(b)(1). The appellant
assumes the risk for the failure to file a complete transcript. State v. Cook,
2014 ND 18, ¶ 4, 843 N.W.2d 1. If the record does not allow for a meaningful and
intelligent review of an alleged error, we will decline review of the issue. Id.
[¶14] Guthmiller submitted a supplemental brief on appeal addressing, for the first
time, alleged obvious error when the court failed to inform him of the mandatory
probationary period attached to his sentence. Guthmiller provided transcripts of the
hearing for his motion to withdraw but for no other hearings. District courts often
advise criminal defendants of their rights during prior proceedings in the case. See
Peltier v. State, 2015 ND 35, 859 N.W.2d 381. A defendant who has been so advised
and recalls the advice need not again be advised of those same rights during
subsequent hearings. Id. It is possible Guthmiller was advised of the mandatory
probationary period during his initial appearance on April 28, 2017, or his preliminary
hearing on June 2, 2017. Guthmiller has failed to show he was not so advised, and
we are unable to complete a meaningful and intelligent review of the issue without a



                                             4
complete record. We decline to address Guthmiller’s argument for the first time on
appeal.


                                          V
[¶15] The district court did not abuse its discretion by determining Guthmiller failed
to show a “fair and just” reason for withdrawing his plea. We decline to address
Guthmiller’s claim the district court obviously erred by failing to advise him of a
mandatory period of probation. We affirm the criminal judgment.
[¶16] Daniel J. Crothers
      Lisa Fair McEvers
      Jerod E. Tufte
      Jon J. Jensen
      Gerald W. VandeWalle, C.J.




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