State v. Wilson

                   IN THE SUPREME COURT
                   STATE OF NORTH DAKOTA

                                  

State of North Dakota,                                    Plaintiff and Appellee
       v.
Zachery A. Wilson,                                     Defendant and Appellant



                                 No. 20250169

Appeal from the District Court of Morton County, South Central Judicial District,
the Honorable David E. Reich, Judge.

AFFIRMED.

Opinion of the Court by Bahr, Justice.

Joshua D. Breeze, Assistant State’s Attorney, Mandan, ND, for plaintiff and
appellee; on brief.

Samuel A. Gereszek, Grand Forks, ND, for defendant and appellant; on brief.
                                  State v. Wilson
                                   No. 20250169

Bahr, Justice.

[¶1] Zachery Wilson appeals from the district court’s amended criminal
judgment revoking his probation and resentencing him. On appeal, Wilson
argues he did not knowingly and intelligently waive his right to counsel. We
affirm.

                                          I

[¶2] In October 2022, Wilson pled guilty to aggravated assault, a class C felony;
terrorizing, a class C felony; felonious restraint, a class C felony; child neglect, a
class C felony; and domestic violence, a class A misdemeanor. The district court
sentenced Wilson to serve time in jail and placed him on probation for two years.
Wilson’s probation required him to abstain from drugs and alcohol and not to
violate any criminal laws or ordinances.

[¶3] In February 2025, the State filed a petition to revoke Wilson’s probation.
The petition alleged three violations: (1) Wilson failed to abstain from the use of
controlled substances; (2) Wilson was charged with burglary, two counts of theft,
and criminal mischief; and (3) Wilson failed to remain law abiding and pled
guilty to providing false information to law enforcement, unlawful possession of
drug paraphernalia, and simple assault.

[¶4] The district court held a probation revocation hearing on March 19, 2025.
At the hearing, Wilson acknowledged he was advised of his rights at a previous
bond hearing. The court then stated, “Okay. You were advised of your rights.
You were told you had a right to an attorney in this case. If you cannot afford an
attorney, you could ask the Court to appoint one for you.” After noting there was
no application for counsel on file, the court asked, “Are you waiving your right
to an attorney today?” Wilson informed the court he applied for counsel but
never heard back. The court responded, “Okay. I don’t see an application in the
file. Do you want to have an attorney represent you in this matter? If you [do],
we can give you an application, and we can reset this[.]” Then the following
colloquy occurred:

                                          1
MR. WILSON: I mean, I’ve sat here for three weeks while I applied
for an attorney. I think we might as well just carry on with it.

THE COURT: Okay. Well, Mr. Breeze maybe before we proceed, if
he would admit the allegations of the petition, what would the State
be recommending for his sentence?

MR. BREEZE: Your Honor, I would be looking for consecutive time
on each count in these cases. I’m going to ask for it to be five years
straight time. Consecutive time on each count . . . .

THE COURT: Okay.

MR. BREEZE: So if the court was to give an opportunity for counsel,
I think that’d be appropriate based on what the State would be
recommending.

THE COURT: Yeah. It looks like the State’s going to recommend
considerable time. You indicated you fill[ed] out an application. I
don’t see that in the file, so we’re going to set this for a later date.
You’ll get another application. I’ll ask the detention center to give
you another application. Pardon me?

MR. WILSON: I filled out an application, and honestly, let’s just let’s
proceed as is.

THE COURT: Do you want to proceed without counsel?

MR. WILSON: Yes, sir.

THE COURT: Okay. Well, I would—and that’s your choice. You
understand you have the right to an attorney in this matter?

MR. WILSON: Yeah.

THE COURT: Okay. And I would continue this to a later date—
allow you to fill out an application. The State’s recommending a
considerable amount of jail time, so you might want to have an
attorney for this proceeding.

MR. WILSON: That’s fine. I would rather carry on with it.

                                   2
      THE COURT: Okay. As long as I know that you understand your
      right to counsel and that you’re freely and voluntarily waiving your
      right to an attorney today; is that correct?

      MR. WILSON: That is correct.

[¶5] The district court proceeded with the revocation hearing. During the
hearing, the State withdrew allegation two, and Wilson admitted to allegations
one and three. Based on his admissions, the court found Wilson violated the
terms of his probation as set out in allegations one and three. The court
resentenced Wilson to five years on all four counts, with credit for time served.
The court ordered the aggravated assault and terrorizing sentences to run
concurrently and the felonious restraint and child neglect sentences to run
concurrently, but the aggravated assault and terrorizing sentences to run
consecutively to the felonious restraint and child neglect sentences.

                                       II

[¶6] Wilson argues his “constitutional right to counsel was violated.” Citing
State v. Wicks, 

, 

, Wilson asserts the denial of his
“constitutional right to counsel requires reversal because prejudice is
presumed.” The State responds that “[t]he right to counsel of a probationer does
not arise from a constitutional provision but rather from North Dakota Rule of
Criminal Procedure 32(f)(3)(A)(iii).” It then argues the district court did not
violate Wilson’s right to counsel because Wilson made a voluntary, knowing,
and intelligent waiver of his right to counsel.

                                       A

[¶7] Wilson did not have a constitutional right to counsel at the probation
revocation hearing. Wilson’s right to counsel at the revocation hearing is based
on N.D.R.Crim.P. 32(f)(3)(A)(iii), not the Sixth Amendment. State v. Jensen, 

, 

; see also State v. Holbach, 

, 

 (disagreeing with the assumption a probationer’s right to counsel is based
on the Sixth Amendment). Because of the “statutory origin of a probationer’s
right to counsel at a revocation hearing, ‘[t]he full panoply of rights due a


                                        3
defendant in a criminal proceeding does not apply.’” Jensen, ¶ 8 (quoting State v.
Olson, 

, 

). “This distinction exists because
probation revocation ‘is not a stage of a criminal prosecution.’” 

 (quoting
Gagnon v. Scarpelli, 

 (1973)).

[¶8] At a revocation hearing, the probationer has a right under N.D.R.Crim.P.
32(f)(3)(A)(iii) to representation by retained or appointed counsel unless waived.
Jensen, 

. Before accepting a probationer’s waiver of the right to
counsel, the district court should engage in a two-step, fact-specific inquiry to
determine whether the waiver is voluntary and whether the waiver is made
knowingly and intelligently. 

 In Jensen, citing precedent, we stated a district
court should make a specific on-the-record decision the probationer voluntarily,
knowingly, and intelligently waived the right to counsel. 

 We then explained
we apply a clearly erroneous standard when reviewing a court’s finding a
probationer voluntarily, knowingly, and intelligently waived the right to
counsel. Id. ¶ 10. “Under this standard, the district court’s finding will be upheld
unless ‘it is induced by an erroneous view of the law, [] it is not supported by
any evidence, or if, although there is some evidence to support the finding, a
reviewing court is left with a definite and firm conviction a mistake has been
made.’” Id. (quoting Heckelsmiller v. State, 

, 

).

                                        B

[¶9] Wilson contends he did not knowingly and intelligently waive his right to
counsel. Specifically, Wilson argues he was entitled to admonitions regarding
self-representation and the district court failed to properly advise him of the
pitfalls, dangers, and disadvantages of proceeding without an attorney.

[¶10] Both Wilson and the State base their arguments under the Sixth
Amendment “voluntary, knowing, and intelligent waiver” framework. Neither
party argued what the appropriate framework is under N.D.R.Crim.P.
32(f)(3)(A)(iii). Because that issue has not been briefed or argued, we address
whether Wilson knowingly and intelligently waived his right to counsel under
the standard articulated for waiving the Sixth Amendment right to counsel. See
Holbach, 

 (addressing probationer’s waiver of right to counsel


                                         4
by assuming, without deciding, a probationer’s waiver of right to counsel is
subject to the standard for waiving the Sixth Amendment right to counsel); see
also Garaas as Co-Trs. of Barbara Susan Garaas Fam. Tr. v. Cont’l Res., Inc., 

, 

 (declining “to interpret the meaning of ‘dispute of title’
as used in N.D.C.C. § 47-16-39.1 without the benefit of adversarial briefing”);
Overbo v. Overbo, 

, 

 (“We do not have the benefit
of adversarial briefing because the parties did not present the issue.”); State v.
Runck, 

, 265 n.4 (N.D. 1987) (declining to consider constitutional
issue without the benefit of adversarial briefing).

                                         C

[¶11] “[T]he law ordinarily considers a waiver knowing, intelligent, and
sufficiently aware if the defendant fully understands the nature of the right and
how it would likely apply in general in the circumstances—even though the
defendant may not know the specific detailed consequences of invoking it.” State
v. Janachovsky, 

, 

. This inquiry involves a fact-specific determination. Jensen, 

. “For a defendant to knowingly
and intelligently waive the right to counsel and opt to proceed pro se, the
defendant must be aware of the dangers and disadvantages of self-representation so the record establishes the defendant knows the choice is made
with eyes open.” Janachovsky, ¶ 8. “The trial judge does not have to engage in a
‘specific colloquy about the dangers and disadvantages of self-representation,’
but it must be clear from the record ‘that the defendant knew what he was
doing.’” 

 ¶ 9 (quoting City of Fargo v. Rockwell, 

, 

).

[¶12] The dangers and disadvantages of self-representation vary depending on
the nature of the proceeding. Probation revocation is not a stage of a criminal
prosecution. State v. Olson, 

, 

. “Consequently, a
probationer facing revocation has limited rights.” State v. Wardner, 

, 

; see also Olson, ¶ 14 (“The full panoply of rights due a
defendant in a criminal proceeding does not apply to a probation revocation
hearing.”).



                                         5
      The minimum rights afforded to a probationer include:

            written notice of the claimed violations of his probation;
            disclosure of the evidence against him; an opportunity to be
            heard in person and to present witnesses and documentary
            evidence; a neutral hearing body; and a written statement by
            the factfinder as to the evidence relied on and the reasons for
            revoking probation.

State v. Hemmes, 

, 

 (quoting Wardner, ¶ 18); see
also N.D.R.Crim.P. 32(f)(3). When revocation is contested, the State need only
prove a probation violation by a preponderance of the evidence. N.D.R.Crim.P.
32(f)(3)(B).

[¶13] A probation revocation hearing is before a judge, not a jury. Also, the Rules
of Evidence do not apply in probation revocation proceedings. N.D.R.Ev.
1101(d)(3)(E); State v. Enriquez, 

, 

. Thus, in a
revocation proceeding, the probationer does not need to be informed that he will
“be held to the same standard as someone who is a practicing licensed attorney
when it comes to selecting a jury, rules of evidence, making objections, offering
evidence, and making argument.” Janachovsky, 

; see also City of
Grand Forks v. Corman, 

, 

 (concluding Corman
“knew what he was doing” when “the district court informed Corman that he
would have to be familiar with the Rules of Criminal Procedure and Rules of
Evidence and that the court would not be able to assist him with that”); State v.
Schneeweiss, 

, 

 (concluding Schneeweiss
knowingly and intelligently waived his right to counsel when the district court
admonished him that if he chose to represent himself, it would hold him to the
North Dakota Rules of Criminal Procedure and Rules of Evidence and all rules
applicable to jury selection). Moreover, when a probationer admits the
allegations, like Wilson did, the probationer does not need to examine or crossexamine witnesses. When a probationer is considering admitting the allegations,
very important information for the probationer is likely the potential
consequences of admitting the allegations.




                                        6
[¶14] Here, the district court confirmed Wilson had been advised of his rights
and told him he had the right to be represented by counsel and that counsel could
be appointed to represent him. The court told Wilson it would get him an
application and reset the hearing if Wilson wanted counsel. In response to
Wilson’s statement he wanted to carry on with the hearing, the court asked what
the State would be recommending. After hearing the State was “going to
recommend considerable time,” the court stated it was going to set the hearing
for a later date and get Wilson an application. Wilson stated and confirmed he
wanted to proceed without counsel. The court confirmed it would continue the
hearing to a later date so Wilson could fill out an application, and stressed the
State is “recommending a considerable amount of jail time, so you might want
to have an attorney for this proceeding.” “That’s fine. I would rather carry on
with it,” was Wilson’s response. In response to the court’s question, Wilson again
confirmed he understood his right to counsel and was freely and voluntarily
waiving that right.

[¶15] Wilson does not state what additional information was necessary for his
waiver to be knowing and intelligent. Rather, parroting the waiver standard, he
asserts the district court never advised him of the dangers and disadvantages of
proceeding without an attorney. Wilson does not address that he does not have
a “constitutional right to counsel” at a probation revocation proceeding. He also
ignores the material differences between a revocation hearing and a jury trial. At
his revocation hearing, there was no voir dire, no cross-examination, no
introduction of exhibits, and the Rules of Evidence did not apply.

[¶16] The record demonstrates Wilson “knew what he was doing and his waiver
of the right to counsel was made with his eyes open.” State v. Poitra, 

, 

. The district court repeatedly informed Wilson of his right
to be represented by counsel and that counsel could be appointed to represent
him. The court repeatedly informed Wilson it would continue the hearing so
Wilson could apply for counsel. The court also made sure Wilson understood the
potential consequences if he proceeded without counsel and admitted the
allegations or the State proved them.




                                        7
[¶17] The district court provided Wilson sufficient information for Wilson to
knowingly and intelligently decide whether to waive his right to counsel. The
court’s finding Wilson knowingly and intelligently waived his right to counsel
is not clearly erroneous.

                                     III

[¶18] We affirm the district court’s amended criminal judgment revoking
Wilson’s probation and resentencing him.

[¶19] Jon J. Jensen, C.J.
      Daniel J. Crothers
      Lisa Fair McEvers
      Jerod E. Tufte
      Douglas A. Bahr




                                      8