Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.

Help support the publication of case reports on MoreLaw

Date: 05-28-2021

Case Style:

State of North Dakota v. The Honorable Stacy J. Louser, Judge of the District Court, North Central Judicial District, and Misty Lee Schwarz

Case Number: 2021 ND 89

Judge: Gerald W. VandeWalle


Plaintiff's Attorney: Ladd R. Erickson, Special Assistant Ward County State’s Attorney

Defendant's Attorney:

Criminal Defense Lawyer Directory


Bismarck, ND - Criminal defense attorney represented Misty Lee Schwarz with fourth offense of driving under the influence of alcohol (“DUI”) and a sixth offense in five years of driving with a suspended license charges.

On April 15, 2020, the State filed a criminal information charging
Schwarz with a fourth offense of driving under the influence of alcohol (“DUI”)
and a sixth offense in five years of driving with a suspended license. On
November 9, 2020, the State and Schwarz reached a plea agreement. The plea
agreement called for amending the fourth offense DUI down to a third offense
DUI. This agreement would change the offense level from a class C felony to a
class A misdemeanor. It also included a provision agreeing to a specific
sentence. The same day, the State filed a motion to amend the charge.
[¶3] On November 9, 2020, the district court also held a final pretrial
conference. The State asserted the charge needed an amendment to a lower
level offense to create a longer sentence for Schwarz due to the COVID-19
pandemic. The State argued a conviction for the fourth offense DUI would
result in a shorter prison sentence because of the Department of Corrections
and Rehabilitation’s (“DOCR”) policy allowing DUI defendants to serve time in
a noncustodial halfway house. The State said, “The fourth offense is a weaker
sentence if you send them to the Pen. They send them right out right now with
COVID but even before that they’re not in there long enough to dry out.” The
State wanted to amend the charge so Schwarz could serve a longer period of
time in the county jail and “dry out.” At the conference, the court expressed
concern with amending the charge to the misdemeanor third offense.
[¶4] The district court ultimately denied the plea agreement and the motion
to amend the charge. The court expressed its concern with changing the charge
to a lower offense level: 2
The State’s argument fails to recognize if Schwarz were convicted
of a class C felony or a class A misdemeanor, any sentence imposed
would also include credit for time, if any, served. Thus, any concern
that Schwarz “would be transferred to one of two places for
assessment” followed by a “most likely halfway house placement”
may or may not be an accurate representation of reality.
[¶5] The State now seeks a writ of supervision to compel the district court to
amend the charge. The State argues the court violated the separation of powers
doctrine and infringed upon the State’s prosecutorial discretion.
[¶6] The parties dispute whether this is an appropriate circumstance for this
Court to exercise our supervisory jurisdiction. Article VI, Section 2 of the North
Dakota Constitution provides this Court with “original jurisdiction with
authority to issue, hear, and determine such original and remedial writs as
may be necessary to properly exercise its jurisdiction.” See also N.D.C.C. § 27-
02-04 (“In the exercise of its appellate jurisdiction, and in its superintending
control over inferior courts, it may issue such original and remedial writs as
are necessary to the proper exercise of such jurisdiction.”). We have previously
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.
Holbach v. City of Minot, 2012 ND 117, ¶ 12, 817 N.W.2d 340 (internal citations
and quotations omitted).3
[¶7] Contrarily, under N.D. Const. art. VI, § 6, our appellate jurisdiction is
provided by law. Section 29-28-07, N.D.C.C., provides when the State may
appeal in a criminal matter. The statute allows the State to appeal from:
1. An order quashing an information or indictment or any
count thereof.
2. An order granting a new trial.
3. An order arresting judgment.
4. An order made after judgment affecting any substantial
right of the state.
5. An order granting the return of property or suppressing
evidence, or suppressing a confession or admission, when
accompanied by a statement of the prosecuting attorney
asserting that the appeal is not taken for purpose of delay
and that the evidence is a substantial proof of a fact material
in the proceeding. The statement must be filed with the
notice of appeal.
[¶8] In this instance, the State cannot appeal from either the order denying
the motion to amend the charge or the order denying the plea agreement. None
of the criteria in N.D.C.C. § 29-28-07 apply. Respondent Louser argues
Schwarz could have appealed the orders after entering a conditional plea of
guilty to the original charge while reserving the right to appeal. Additionally,
she argues the State could have appealed the orders after Schwarz entered a
conditional plea of guilty because the orders affected a “substantial right of the
state.” This course of action would require both parties and the district court
to agree before this Court could review the matter under N.D.C.C. § 29-28-
07(4). However, nothing requires Schwarz to agree to a conditional plea
agreement, and nothing requires the court to accept a conditional plea
agreement. The State is left without a remedy to address the orders under
N.D.C.C. § 29-28-07 unless both Schwarz and the court agree to this course of
action. Because the State lacks the ability to realistically appeal the court’s
orders under N.D.C.C. § 29-28-07, we conclude this is an appropriate
circumstance to consider exercising our supervisory jurisdiction. We will
consider the issues raised by the State on the merits.4
[¶9] The State argues the district court violated the separation of powers and
infringed on its prosecutorial discretion when it rejected the plea agreement
and denied the State’s motion to amend the charge. “The North Dakota
Constitution creates three branches of government and vests each branch with
a distinct type of power.” N.D. Legislative Assembly v. Burgum, 2018 ND 189
¶ 40, 916 N.W.2d 83. The legislative power is vested in the legislative
assembly. N.D. Const. art. III, § 1. “The executive power is vested in the
governor . . . .” N.D. Const. art. V, § 1. “The judicial power of the state is vested
in a unified judicial system . . . .” N.D. Const. art. VI, § 1. Further, “[t]he
legislative, executive, and judicial branches are coequal branches of
government.” N.D. Const. art. XI, § 26.
[¶10] We have not previously considered whether a district court violates the
separation of powers and infringes on prosecutorial discretion when it rejects
a plea agreement and refuses to amend a charge. However, in State ex rel.
Koppy v. Graff, we examined a similar issue when a district court refused to
grant the State’s motion to dismiss a charge against a defendant. 484 N.W.2d
855, 856 (N.D. 1992). In Graff, the defendant was charged with being an
accomplice to murder. Id. After the State determined a witness was unreliable
and discovered new evidence, it moved to dismiss the charge without prejudice,
and the defense objected. Id. The court denied the State’s motion. Id. On
petition for a writ of supervision, this Court reviewed the matter. Id.
[¶11] In Graff we analyzed N.D.R.Crim.P. 48(a), which requires a prosecuting
attorney to obtain the district court’s approval in order to dismiss charges
against a defendant. Graff, 484 N.W.2d at 857; N.D.R.Crim.P. 48(a) (“The
prosecuting attorney may not dismiss an indictment, information or complaint
except on motion and with the court’s approval.”). We explained the required
court approval to dismiss a criminal case was a modification of the common
law. Graff, 484 N.W.2d at 857 (quoting 3A Charles A. Wright, Federal Practice
and Procedure: Criminal 2d § 812 (1982)) (“At common law the prosecutor
could enter a nolle prosequi without approval of the court.”). While discussing
prosecutorial discretion, we stated:5
Generally, the prosecuting attorney is considered to be in the best
position to evaluate the charges and the evidence to determine if
prosecution should continue. The prosecution is entitled to a
presumption of good faith when requesting a dismissal. However,
that decision is not absolute and is subject to review by the trial
court under Rule 48(a).
Rule 48(a) has been viewed as a way to check the absolute power
of the executive. Although the prosecutor has discretion in this
area, the trial court should not merely serve as a “rubber stamp”
for the prosecutor’s decision. The trial court has an important
function to protect the public interest and prevent harassment of
the defendant.
Id. at 858 (internal citations omitted).
[¶12] Similarly, in United States v. Cowan, the Fifth Circuit Court of Appeals
reviewed F. R. Crim. P. 48(a), which also requires the approval of a federal
district court in order to dismiss a charge against a defendant. 524 F.2d 504,
505 (5th Cir. 1975). The court concluded the required permission of a court to
dismiss criminal charges “was intended to modify and condition the absolute
power of the Executive, consistently with the Framer’s concept of Separation
of Powers, by erecting a check on the abuse of Executive prerogatives.” Id. at
513. The court held the requirement does not violate the separation of powers
doctrine and is a check on the executive branch’s “power to take care that the
laws are faithfully executed.” Id.
[¶13] Although Graff and Cowan involve a court’s role in dismissing criminal
charges, other courts have examined required court approval to amend
criminal charges. In Hoskins v. Markel, the Kentucky Supreme Court
addressed a trial court’s rejection of a plea agreement between the
Commonwealth of Kentucky and two defendants. 150 S.W.3d 1, 4-5 (Ky. 2004).
The Commonwealth originally charged the defendants with two counts of
murder, a capital offense, and two counts of abuse of a corpse, a class A
misdemeanor. Id. at 4. The case went to trial, but the judge later declared a
mistrial. Id. Before the case went to a second trial, plea negotiations resulted
in an agreement “to dismiss the abuse of a corpse charges, to dismiss one count 6
of murder against each [defendant], and to amend the remaining counts of
murder to charge each [defendant] with one count of manslaughter in the
second degree, a Class C felony.” Id. The prosecutor moved to amend the
indictment according to the plea agreement, and the defendants filed motions
to enter guilty pleas to the amended charges. Id. at 5.
[¶14] After a hearing, the trial court in Hoskins denied the defendants’ motions
to enter guilty pleas to second-degree manslaughter, effectively rejecting the
plea agreements. Hoskins, 150 S.W.3d at 5. The Kentucky Court of Appeals
denied the defendants’ petition for a writ of prohibition. Id. On appeal to the
Kentucky Supreme Court, the defendants claimed the judge acted outside his
jurisdiction when he rejected the plea agreement. Id. The defendants argued
the power to prosecute felony cases is exclusively vested in the executive
branch of government and the prosecutor had the power to “prosecute, amend,
or dismiss [the indictment] at his or her discretion without interposure from
the presiding judge.” Id. at 5, 12.
[¶15] Outlining the separation of powers in the Kentucky Constitution the
Hoskins court held, “The power to charge persons with crimes and to prosecute
those charges belongs to the executive department.” 150 S.W.3d at 12. The
court went on to say, “The power to conduct criminal trials, to adjudicate guilt,
and to impose sentences within the penalty range prescribed by the legislature
belongs to the judicial department.” Id. at 12. The court noted the Kentucky
Rules of Criminal Procedure required the permission of a court in order to
amend or dismiss criminal charges. Id. at 15. While discussing Cowan, the
court concluded the required approval to amend the charges by the court did
not violate the separation of powers because “a court, once having obtained
jurisdiction of a cause of action, has, incidental to its constitutional grant of
power, inherent power to do all things reasonably necessary to the
administration of justice in the case before it.” Id. at 17 (quoting Smothers v.
Lewis, 672 S.W.2d 62, 64 (Ky. 1984)).
[¶16] In State v. Conger, the Wisconsin Supreme Court analyzed a similar
argument when a court denied a motion to amend a felony charge to three
misdemeanor charges and rejected a plea agreement. 797 N.W.2d 341, 345-46 7
(Wis. 2010). The State argued when the court rejected the motion and the plea
agreement it “usurp[ed] the prosecutor’s role.” Id. at 350. By rejecting the plea
agreement, the State argued, “the circuit court in essence decided that the
prosecution would have to go forward.” Id.
[¶17] The Wisconsin Supreme Court resolved the dispute between the power
of the court and the discretion of the prosecutor by evaluating when the court’s
jurisdiction started and the prosecutor’s statutory power to amend the charge
ended. Conger, 797 N.W.2d at 350-51. The court found the trial court’s
jurisdiction started when the case commenced. Id. at 350. In Wisconsin, a state
statute allows the prosecutor to amend charges up until arraignment. Id. at
351; Wis. Stat. § 971.29(1). The Wisconsin Supreme Court concluded the
prosecutor’s unchecked discretion ended after the case commenced and the
statute allowing amended charges no longer took effect–at arraignment.
Conger, 797 N.W.2d at 351. After arraignment, the court had the discretion to
allow or reject plea agreements and amended charges.
[¶18] In North Dakota, unlike Wisconsin, neither state statute nor the North
Dakota Rules of Criminal Procedure grant a prosecutor unfettered power to
amend a complaint or information until arraignment. See generally N.D.C.C.
tit. 29; N.D.R.Crim.P. 3(c); N.D.R.Crim.P. 7(e). Our rules of criminal procedure
require a prosecutor to obtain a court’s approval before amending a complaint
or information at any time. Rule 7(e), N.D.R.Crim.P., controls the amendment
of an information, including the one filed by the State in this case. The rule
Unless an additional or different offense is charged or a
substantial right of the defendant is prejudiced, the court may
permit an information to be amended at any time before the
verdict or finding. If the prosecuting attorney chooses not to pursue
a charge contained in the initial information, a dismissal of that
charge must be stated in the amended information.
N.D.R.Crim.P. 7(e) (emphasis added); see also N.D.R.Crim.P. 3(c) (“The
magistrate may permit a complaint to be amended at any time before a finding
or verdict if no additional or different offense is charged and if substantial 8
rights of the defendant are not prejudiced.”). “The word ‘may’ is usually used
‘to imply permissive, optional or discretional, and not mandatory action or
conduct.’” State v. Glaser, 2015 ND 31, ¶ 18, 858 N.W.2d 920 (quoting City of
Devils Lake v. Corrigan, 1999 ND 16, ¶ 12, 589 N.W.2d 579) (discussing the
use of “may” in statutes). “We only construe the word ‘may’ as ‘must’ where the
context or subject matter compels that construction.” Midthun v. N.D.
Workforce Safety & Ins., 2009 ND 22, ¶ 13, 761 N.W.2d 572.
[¶19] As a result, applying the Wisconsin Supreme Court’s Conger analysis, in
North Dakota the prosecutor’s unchecked discretion ends when the case is
filed. Once the case is filed, Rules 7(e) and 3(c), N.D.R.Crim.P., grant the
district court the power to allow and reject amendments to the charges. As used
in the rules, the word “may” provides the court discretion to make this
determination. Interpreting the rules to allow a prosecutor unfettered
discretion to amend a criminal charge, as the State wishes, would make the
rules become “bruten fulmen (empty noise).” McCullough v. Swanson, 245
N.W.2d 262, 265 (N.D. 1976). “The rules must be treated respectfully,
otherwise they would be considered as only advisory.” Id. (discussing the
requirements of the appellate rules).
[¶20] Additionally, this discretionary power embodied in the district court does
not violate the separation of powers doctrine. Once the court obtains
jurisdiction over an action, it also obtains the “inherent power to do all things
reasonably necessary to the administration of justice in the case before it.”
Hoskins, 150 S.W.3d at 17. When the prosecutor files a criminal charge with
the court, the sole discretion of the executive branch ends and the judicial
branch acquires a role in the proceeding. This role includes protecting the
public interest. Once the case is filed with the court, the court must ensure the
administration of justice in the case before it. This duty provides a check and
balance on the executive’s power to ensure the laws of this State are faithfully
executed. Therefore, the court’s role in approving or rejecting amendments to
criminal charges does not violate the separation of powers embodied in the
North Dakota Constitution. 9
[¶21] We now turn to whether the district court erred when it denied the
motion to amend the charge against Schwarz and rejected the plea agreement.
We review a district court’s decision on a motion to amend an information
under the abuse of discretion standard. State v. Carlson, 2016 ND 130, ¶ 6, 881
N.W.2d 649. “A district court abuses its discretion if it acts in an unreasonable,
arbitrary, or unconscionable manner, if its decision is not the product of a
rational mental process leading to a reasoned decision, or if it misinterprets or
misapplies the law.” Id. (quoting State v. Hammer, 2010 ND 152, ¶ 26, 787
N.W.2d 716).
[¶22] Rule 7(e), N.D.R.Crim.P., allows the State to amend an information with
the approval of the district court. Rule 11(c)(1), N.D.R.Crim.P., allows the State
and a defendant to reach a plea agreement. When a plea agreement requires
the State to “not bring, or . . . move to dismiss, other charges” or has an
agreement to a specific sentence, “the court may accept the agreement, reject
it, or defer a decision until the court has reviewed the presentence report.”
N.D.R.Crim.P. 11(c)(3)(A); N.D.R.Crim.P. 11(c)(1). If the court rejects the plea
agreement it must:
(A) inform the parties that the court rejects the plea agreement;
(B) advise the defendant personally that the court is not required
to follow the plea agreement and give the defendant an
opportunity to withdraw the plea; and
(C) advise the defendant personally that if the plea is not
withdrawn, the court may dispose of the case less favorably toward
the defendant than the plea agreement contemplated.
N.D.R.Crim.P. 11(c)(5).
[¶23] Section 39-08-01(3), N.D.C.C., makes the offense level higher for a DUI
depending on the number of prior offenses. The statute states:
An individual violating this section or equivalent ordinance is
guilty of a class B misdemeanor for the first or second offense in a 10
seven-year period, of a class A misdemeanor for a third offense in
a seven-year period, and of a class C felony for any fourth or
subsequent offense within a fifteen-year period. The minimum
penalty for violating this section is as provided in subsection 5. The
court shall take judicial notice of the fact that an offense would be
a subsequent offense if indicated by the records of the director or
may make a subsequent offense finding based on other evidence.
N.D.C.C. § 39-08-01(3) (emphasis added). The statute requires the court to take
judicial notice to determine if a current offense is a subsequent offense. Id. In
addition, N.D.C.C. § 39-08-01(5) lists the required minimum mandatory
sentences for initial and subsequent DUI offenses.
[¶24] In Hoskins, the Kentucky Supreme Court held a trial court has
discretion to approve or reject a plea agreement that has a sentencing provision
and dismisses or amends one or more charges in exchange for a guilty plea.
Hoskins, 150 S.W.3d at 24. However, it also held the court “must articulate the
prosecutor’s reasons for forming the bargain and the court’s reasons for
rejecting it.” Id.
[¶25] In this case, the State and Schwarz reached a plea agreement that would
have amended the DUI charge from a fourth offense to a third offense,
changing the classification level from a class C felony to a class A
misdemeanor. The plea agreement also included a provision for sentencing. At
the hearing, the district court asked whether this would be considered
Schwarz’s third or fourth DUI offense. The State explained Schwarz’s record
reflected she had three other offenses. The court then said, “Which would make
this the fourth.” The court followed the legislative assembly’s directive in
N.D.C.C. § 39-08-01(3) when it noted this DUI offense, if Schwarz were
convicted, would be her fourth subsequent offense.
[¶26] Additionally, in its written order the district court explained the State’s
reasons for negotiating the plea agreement and why the court was rejecting it:
“[T]he State now argues it wishes to proceed on a third offense charge in order
to avoid the risk of Schwarz being ‘turned out’ of the DOCR, forcing Schwarz
to serve 120 days rather than a year and a day in order to ‘dry out.’” The court
also stated, “The legislature has clearly, statutorily defined the minimum 11
mandatory sentence that must be imposed for a first, second, third and fourth
or more DUI offenses.”
[¶27] The district court did not abuse its discretion when it denied the motion
to amend the charge and rejected the plea agreement. The court followed the
legislative directive in N.D.C.C. § 39-08-01(3) when it determined this would
be Schwarz’s fourth DUI offense, not her third. Further, as indicated by the
Hoskins court, the court here explained why the State negotiated the plea
agreement and why the court rejected it. The court did not abuse its discretion
when it refused to amend the charges against Schwarz and rejected the plea

Outcome: A district court’s role to approve or reject amendments to criminal
charges does not violate the separation of powers doctrine, nor did the court
abuse its discretion when it denied the motion to amend the charge against
Schwarz and rejected the plea agreement. The State’s petition for a writ of
supervision directing the court to grant the State’s motion to amend the charge
is denied.

Plaintiff's Experts:

Defendant's Experts:


Find a Lawyer


Find a Case