                 Filed 2/21/19 by Clerk of Supreme Court
                         IN THE SUPREME COURT
                       STATE OF NORTH DAKOTA


                                     2019 ND 44


State of North Dakota,                                         Plaintiff and Appellee

       v.

Falesteni Ali Abuhamda,                                     Defendant and Appellant


                                    No. 20180127


       Appeal from the District Court of McKenzie County, Northwest Judicial
District, the Honorable Robin A. Schmidt, Judge.

       DISMISSED IN PART AND AFFIRMED IN PART.

       Opinion of the Court by McEvers, Justice.

       Charles B. Neff, Assistant State’s Attorney, Watford City, ND, for plaintiff and
appellee.

       Deanna F Longtin, Williston, ND, for defendant and appellant.
                                State v. Abuhamda
                                   No. 20180127


       McEvers, Justice.
[¶1]   Falesteni Ali Abuhamda appeals from an order approving pretrial diversion,
an order deferring imposition of sentence, and an order denying his motion to dismiss.
We dismiss the appeal on Counts 1, 2, and 5, referenced in the order approving
pretrial diversion, for lack of jurisdiction because the order is not appealable under
N.D.C.C. § 29-28-06 and we decline to supervise. We affirm on Count 4, concluding
Abuhamda has failed to preserve the issue because the record does not reflect his plea
was conditional.


                                          I
[¶2]   In March 2017, law enforcement officers executed a search warrant on two
stores owned by Falesteni Ali Abuhamda, seizing items containing Cannabidiol
(“CBD”), Delta-9-tetrahydrocannabinol (“THC”), Hashish, and Cannabis (marijuana)
as well as paraphernalia used to ingest those substances. Abuhamda was charged with
seven counts relating to the confiscated items:
       Count 1:      Delivery of a controlled substance analog;
       Count 2:      Possession of Tetrahydrocann[a]binols within 1,000 feet
                     of a school;
       Count 3:      Possession of a controlled substance;
       Count 4:      Unlawful delivery, possession with intent to deliver, or
                     manufacture with intent to deliver drug paraphernalia;
       Count 5:      Unlawful advertisement of drug paraphernalia;
       Count 6:      Unlawful possession of drug paraphernalia;
       Count 7:      Possession of Marijuana.
A preliminary hearing was held to determine the existence of probable cause.
[¶3]   Abuhamda moved to dismiss Counts 1, 2, 4, and 5, arguing CBD is neither an
illegal drug nor a controlled substance, naturally occurring THC found in CBD
products at certain levels is not illegal, CBD products are legal in North Dakota, and


                                          1
paraphernalia is only illegal if specifically used or intended to be used with a
controlled substance. Abuhamda simultaneously moved to suppress any evidence
seized during the searches of his stores, arguing the searches were unreasonable due
to law enforcement’s reliance on a federal agency ruling for guidance rather than the
laws of North Dakota. A hearing was held on the motion. During the hearing, the
State called LaMonte Jacobson, a forensic scientist from the North Dakota State
Crime Laboratory Division, who testified that CBD and Delta-9-THC are controlled
substances under North Dakota law and CBD is a controlled substance under the
Federal Controlled Substances Act.
[¶4]   The district court denied the motion to dismiss and suppress evidence, holding
Abuhamda failed to provide any evidence to dispute or discredit the State’s witness,
a forensic scientist, who testified to the illegality of the substances found on the seized
items, and the potential illegality of the advertisement of alleged drug paraphernalia
was a question for the jury. Following the motion hearing, Abuhamda entered a
pretrial diversion agreement on Counts 1, 2, and 5, which was accepted by the district
court. Abuhamda pleaded guilty on Counts 3, 4, 6, and 7 and the district court entered
orders deferring imposition of sentence. He argues on appeal the district court erred
in denying his motion to dismiss Counts 1, 2, 4, and 5.


                                            II
[¶5]   The State argues because Counts 1, 2, and 5 were resolved by a pretrial
diversion agreement, this Court does not have jurisdiction to review the underlying
motion to dismiss pertaining to those charges. We agree. The right to appeal in this
state is purely statutory, and without statutory authorization to hear an appeal this
Court lacks jurisdiction. State v. Robideaux, 475 N.W.2d 915, 916 (N.D. 1991). In
State v. Jorgenson, 2018 ND 169, ¶ 3, 914 N.W.2d 485, this Court concluded a
defendant has no statutory right to appeal from an order approving pretrial diversion
under N.D.C.C. § 29-28-06. Section 29-28-06, N.D.C.C., reads:
       An appeal may be taken by the defendant from:
                                            2
       1.      A verdict of guilty;
       2.      A final judgment of conviction;
       3.      An order refusing a motion in arrest of judgment;
       4.      An order denying a motion for a new trial; or
       5.      An order made after judgment affecting any substantial right of
               the party.
Because Counts 1, 2, and 5 were resolved by an order approving a pretrial diversion,
they are not appealable.
[¶6]   In response to the State’s argument that the order approving the pretrial
diversion is unappealable, Abuhamda requests this Court to exercise our supervisory
jurisdiction to rectify an injustice, because the pretrial diversion contemplated he be
allowed to appeal. We have occasionally treated appeals not authorized by statute as
requests for a supervisory writ. State v. Deutscher, 2009 ND 98, ¶ 13, 766 N.W.2d
442. We have discretion to authorize a supervisory writ in some circumstances:
       Our authority to issue supervisory writs arises from Article VI, Sec. 2
       of the North Dakota Constitution and N.D.C.C. § 27-02-04. The
       authority is discretionary, and it cannot be invoked as a matter of right.
       We issue supervisory writs only to rectify errors and prevent injustice
       when no adequate alternative remedies exist. Further, we generally do
       not exercise supervisory jurisdiction when the proper remedy is an
       appeal, even though an appeal may be inconvenient or increase costs.
       This authority is exercised rarely and cautiously and only in
       extraordinary cases. Finally, determining whether to exercise original
       jurisdiction is done on a case-by-case basis.
State v. Jorgenson, 2018 ND 169, ¶ 4, 914 N.W.2d 485 (citation and quotation
omitted) (emphasis added). “Exercise of supervisory jurisdiction may be warranted
when issues of vital concern regarding matters of important public interest are
presented.” State, ex rel. Harris v. Lee, 2010 ND 88, ¶ 6, 782 N.W.2d 626 (citations
omitted). The standard is not whether a party has lost its right to appeal due to tactical
choices or procedural errors. Id. at ¶ 21 (Maring, J., dissenting).
[¶7]   In effect, by attempting to appeal from an order denying suppression, when
Abuhamda has not entered a guilty plea to the charges, he is asking this Court to
render an advisory opinion. This is not the extraordinary case that cries out for our

                                            3
intervention. Abuhamda has not argued this is a matter of great public concern. In
addition, Abuhamda has not shown that no adequate remedy exists.                  Under
N.D.R.Crim.P. 32.2(g), Abuhamda may move for modification or termination of the
agreement based on the misrepresentation that he would be allowed to appeal from
the order approving the pretrial diversion.


                                         III
[¶8]   Abuhamda entered a guilty plea on Count 4, claiming it was conditioned on the
right to appeal. Abuhamda appeals Count 4 from an order deferring imposition of
sentence.
       An order deferring imposition of sentence is not listed as an appealable
       order in N.D.C.C. § 29-28-06. Where no separate judgment of
       conviction has been entered and the order deferring imposition of
       sentence complies with the requirements of N.D.R.Crim.P. 32(b) for
       criminal judgments, the order serves as the judgment of conviction and
       is appealable. State v. Trosen, 547 N.W.2d 735, 737 n.1 (N.D. 1996).
State v. Berger, 2004 ND 151, ¶ 8, 683 N.W.2d 897. The order deferring imposition
of sentence here serves as a judgment and an appeal may be taken from the order.
[¶9]   Rule 11(a)(2), N.D.R.Crim.P., “permits a defendant to enter a conditional
guilty plea, reserving in writing the right to appeal an adverse determination of
specified pretrial motions.” State v. Trevino, 2011 ND 232, ¶ 7, 807 N.W.2d 211
(citations omitted). The rule reads:
       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.
N.D.R.Crim.P. 11(a)(2) (emphasis added).



                                          4
[¶10] We have held that although N.D.R.Crim.P. 11 does not require ritualistic
compliance, a court must substantially comply with the rule’s procedural requirements
“to ensure a defendant is entering a voluntary and intelligent guilty plea.” Trevino,
2011 ND 232, ¶ 8, 807 N.W.2d 211 (citations omitted). In Trevino, we held a
conditional guilty plea had been entered despite the absence of any reference to the
plea being conditional in the criminal judgment when (1) the transcript clearly
reflected both parties and the district court intended the plea be conditional, and (2)
the State did not argue that the defendant’s plea was not conditional nor that the State
did not consent to the conditional plea. Id. at ¶ 14. In State v. Barnes, 2015 ND 64,
860 N.W.2d 466, we relied on our holding in Trevino excepting strict compliance
with the Rule 11(a)(2) writing requirement, but we noted the boundaries of that
exception: “Courts have held the Rule 11(a)(2) writing requirement is not
jurisdictional and have upheld the validity of conditional guilty pleas absent a writing
in certain narrow circumstances.” Barnes, at ¶ 8 (emphasis added). We held Barnes
did not qualify as one such narrow circumstance:
       Although the judgment stayed the sentence “pending appeal” to this
       Court, the judgment does not state that Barnes’s guilty plea was
       conditional, nor is there a separate writing filed in this case showing
       compliance with N.D.R.Crim.P. 11(a)(2) and specifying the issues
       reserved for appeal. Further, the plea hearing transcript plainly shows
       that Barnes’s guilty plea was not a conditional plea.
Id. at ¶ 9 (noting the defendant’s counsel explicitly told the court “this isn’t a
conditional plea”).
[¶11] Similar to Barnes, here the order deferring imposition of sentence does not
state Abuhamda’s plea was conditional, nor is there a separate writing showing
compliance with N.D.R.Crim.P. 11(a)(2) and specifying issues reserved for appeal.
Unlike Barnes and Trevino, Abuhamda has not provided a transcript of the change of
plea hearing allowing this Court a record to review whether the district court
substantially complied with N.D.R.Crim.P. 11. The only reference in the order
deferring imposition of sentence that supports Abuhamda’s argument that his plea was

                                           5
conditional is a statement that he would be allowed to withdraw his guilty plea if he
prevails on appeal. While the pretrial diversion agreement contained an attempt to
reserve a right to appeal the order denying the motion to dismiss and suppress
regarding Counts 1, 2, and 5, nothing in the record points to issues preserved for
review by a conditional plea on Count 4. Although the State here does not argue the
plea was not conditional, we decline to extend our holding in Trevino to such broad
circumstances where, other than the defendant’s assertion at oral argument, there is
nothing in the record aside from mere hints in the judgment which actually reflects
a conditional plea. We are unable to discern in our review of the record that
Abuhamda entered a conditional plea, therefore, Count 4 has not been properly
preserved for review by this Court. Again, we emphasize the importance of
compliance with Rule 11(a)(2) to protect against disputes regarding conditional pleas.
See Trevino, 2011 ND 232, ¶ 14 (“[W]e again reiterate that the best practice is to
comply with the rule’s specific writing requirements.”).


                                         IV
[¶12] We conclude we do not have jurisdiction over the matters appealed, and
because we decline to exercise our supervisory jurisdiction, the appeal is dismissed
on Counts 1, 2, and 5. Because Abuhamda has not shown he entered a conditional
plea on Count 4, the underlying issue was not preserved and we affirm the order
deferring imposition of sentence.
[¶13] Lisa Fair McEvers
      Daniel J. Crothers
      Jerod E. Tufte
      Jon J. Jensen
      Gerald W. VandeWalle, C.J.




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