                   Filed 11/20/19 by Clerk of Supreme Court

                         IN THE SUPREME COURT
                         ST AT E O F N O RTH D AK O T A


                                   2019 ND 276




State of North Dakota,                                        Plaintiff and Appellee

      v.

Chad Vincent Legare,                                      Defendant and Appellant




                                   No. 20190069


Appeal from the District Court of McHenry County, Northeast Judicial District, the
Honorable Donovan J. Foughty, Judge.

AFFIRMED.

Opinion of the Court by Crothers, Justice.

Joshua E. Frey (argued), State’s Attorney, Towner, ND, and Paul R. Emerson
(appeared), Assistant Attorney General, Bismarck, ND, for plaintiff and appellee.

Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.
                                State v. Legare
                                  No. 20190069

Crothers, Justice.

[¶1]   Chad Vincent Legare appeals from a criminal judgment entered after his
guilty plea to attempted murder. We affirm.

                                         I

[¶2]   Prior to his guilty plea, Legare moved for an order allowing him to present
an affirmative defense of justification or excuse. The court denied the motion,
stating it would not allow a special jury instruction regarding defense of others
when no evidence or anticipated evidence showed there was imminent danger to
the woman Legare argued he was defending. Legare pleaded guilty to attempted
murder under an Alford plea.

[¶3]   Legare argues his Sixth Amendment right to present a defense was violated
and the court erred by not allowing him to present his defense of justification or
excuse. Legare requests the conviction be vacated and the order denying his
motion in limine reversed.

                                        II

                                        A

[¶4]   Legare argues the Menna-Blackledge doctrine applies and he is not
precluded from bringing his appeal. The State argues the Menna-Blackledge
doctrine does not apply and Legare has no right to appeal from judgment entered
upon an unconditional Alford plea. Assuming, without deciding whether the
doctrine applies, Legare’s claim does not fall within the exception of the Menna-
Blackledge doctrine, and he has not preserved his right to appeal the district




                                        1
court’s denial of his motion in limine seeking permission to argue and instruct the
jury on defense of others.

[¶5]   In Class v. United States, 138 S.Ct. 798 (2018), the United States Supreme
Court reaffirmed the Menna-Blackledge doctrine, stating the “doctrine’s basic
teaching that ‘a plea of guilty to a charge does not waive a claim that—judged on
its face—the charge is one which the State may not constitutionally prosecute.’”
(citing United States v. Broce, 488 U.S. 563, 575 (1989) (quoting Menna v. New
York, 423 U.S. 61, 63, n.2 (1975)). Essentially, “an unconditional guilty plea
waives all nonjurisdictional claims with the possible exception of the ‘Menna-
Blackledge doctrine.’” Class, 138 S.Ct. 798 at 816 (Alito, Kennedy and Thomas
dissenting).

[¶6]   The Supreme Court explained a defendant does not relinquish his right to
appeal all constitutional determinations by pleading guilty, stating, “As an initial
matter, a valid guilty plea ‘forgoes not only a fair trial, but also other
accompanying constitutional guarantees.’” United States v. Ruiz, 536 U.S. 622,
628–629 (2002). “While those ‘simultaneously’ relinquished rights include the
privilege against compulsory self-incrimination, the jury trial right, and the right
to confront accusers, McCarthy v. United States, 394 U.S. 459, 466, [ ], (1969), they
do not include ‘a waiver of the privileges which exist beyond the confines of the
trial.’ Mitchell v. United States, 526 U.S. 314, 324, [ ], (1999).” Class, 138 S.Ct. 798
at 805.


[¶7]   Class’ argument on appeal was the statute under which he was convicted
violated the Constitution. “Here, Class’ statutory right directly to appeal his
conviction ‘cannot in any way be characterized as part of the trial.’” Class, 138
S.Ct. 798 at 805 (citing Lafler v. Cooper, 566 U.S. 156, 165 (2012)). The Court
noted Class’ claims do not focus on case-related constitutional defects that
“‘occurred prior to the entry of the guilty plea.’” Class, 138 S.Ct. 798 at 804-805
(citing Blackledge v. Perry, 417 U.S. 21, 30 (1974). “They could not, for example,


                                           2
‘have been “cured” through a new indictment by a properly selected grand jury.’”
Id. (citing Tollett v. Henderson, 411 U.S. 258, 267 (1973)). “Because the defendant
has admitted the charges against him, a guilty plea makes the latter kind of
constitutional claim ‘irrelevant to the constitutional validity of the conviction.’”
Haring v. Prosise, 462 U.S. 306, 321 (1983). “But the cases to which we have
referred make clear that a defendant’s guilty plea does not make irrelevant the
kind of constitutional claim Class seeks to make.” Class, 138 S.Ct. 798 at 805.
Thus, an appeal with challenges which call into question the government’s power
to constitutionally prosecute an individual is not barred. Id. (citing Broce, 488 U.S.
563 at 575).

[¶8]   Here, Legare’s claim falls outside the Menna-Blackledge exception because
his issue relates to a defense to a conviction and not whether the prosecution
charged a crime that was not constitutionally supportable. Further, Legare’s case
is characterized as part of the trial. Legare wanted to bring a defense of
justification or excuse at trial. Unlike Class, Legare’s claim focused on a case-
related ruling that occurred prior to the entry of the guilty plea. The claim revolves
around the motion in limine, which occurred before the guilty plea. Unlike in
Class where a cure was not possible, here, if the court erred, the problem could
have been cured by testimony on the alleged abuse of John Doe to the alleged
victim or by appealing if the testimony was not allowed at trial. Therefore, even
assuming state courts are bound to follow the Menna-Blackledge doctrine,
Legare’s claim does not fit within the Menna-Blackledge exception.

                                          B

[¶9]   Generally, a guilty plea waives all non-jurisdictional claims and defenses.
State v. Blurton, 2009 ND 144, ¶ 18, 770 N.W.2d 231. The right of appeal is
preserved when the defendant enters a conditional plea under N.D.R.Crim.P.
11(a)(2). See State v. Barnes, 2015 ND 64, ¶¶ 7-8, 860 N.W.2d 466; N.D.R. Crim.
P. 11(a)(2). N.D.R. Crim. P. 11(a)(2) states:


                                          3
      “(2) Conditional Plea. With the consent of the court and the
      prosecuting attorney, a defendant may enter a conditional plea of
      guilty, reserving in writing the right to have an appellate court
      review an adverse determination of a specified pretrial motion. The
      defendant, any defendant’s attorney, and the prosecuting attorney
      must consent in writing to a conditional plea filed with the court. If
      the court accepts the conditional plea, it must enter an order. The
      resulting judgment must specify it is conditional. A defendant who
      prevails on appeal must be allowed to withdraw the plea.”

[¶10] Legare’s appeal does not involve a jurisdictional claim or defense and does
not fall within the Menna-Blackledge exception. Therefore, his right to appeal is
controlled by N.D.R.Crim.P. 11(a)(2). Legare entered an Alford plea and not a
conditional plea or conditional Alford plea. An Alford plea does not preserve the
issue for appeal. See United States v. Rodriguez, 77 F.3d 487 (8th Cir. 1996) (per
curium) (“[B]y entering a valid Alford-type guilty plea, [the defendant] waived all
issues preceding his plea except those relating to jurisdiction.”) Since Legare did
not preserve his right to appeal denial of his pretrial motion, we affirm the district
court’s criminal judgment.

                                         III

[¶11] Under N.D.R.Crim.P. 11(a)(2), Legare did not preserve his right to appeal
the pretrial motion ruling. We affirm the district court’s criminal judgment.

[¶12] Daniel J. Crothers
      Lisa Fair McEvers
      Jerod E. Tufte
      Jon J. Jensen
      Gerald W. VandeWalle, C.J.




                                          4
