IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2023 ND 208

State of North Dakota, Plaintiff and Appellee

v.

Moses Ben Yalartai, Defendant and Appellant

No. 20230065

Appeal from the District Court of Cass County, East Central Judicial District, 

the Honorable Stephannie N. Stiel, Judge.

AFFIRMED.

Opinion of the Court by McEvers, Justice.

Nicholas S. Samuelson (argued), Assistant State’s Attorney, and SheraLynn 

Ternes (on brief), Assistant State’s Attorney, Fargo, ND, for plaintiff and 

appellee. 

Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant. 

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

NOVEMBER 9, 2023 

STATE OF NORTH DAKOTA
1

State v. Yalartai

No. 20230065

McEvers, Justice.

[¶1] Moses Ben Yalartai appeals from a criminal judgment entered after he 

pled guilty to gross sexual imposition. Yalartai argues the district court 

violated his right to self-representation and erred in denying his motion to 

withdraw his guilty plea. We affirm, concluding the court did not abuse its 

discretion in denying his motion to withdraw his guilty plea and Yalartai 

waived the right to challenge whether the court violated his right of selfrepresentation by pleading guilty. 

I

[¶2] In March 2022, Yalartai was charged with three counts of gross sexual 

imposition and one count of contributing to the deprivation or delinquency of a 

minor. Attorney Tanya Johnson Martinez was appointed to represent Yalartai. 

[¶3] A jury trial was held in November 2022. After the jury was impaneled, 

Yalartai stated he did not want his attorney, Martinez, to represent him. 

Yalartai asked the district court for a continuance to enable him to hire a 

private attorney and to collect evidence not obtained by his attorney. The court 

denied the requested continuance and gave Yalartai the option to proceed with 

Martinez remaining as counsel or have the court determine whether he was 

competent to represent himself. Yalartai repeatedly stated he did not want 

Martinez to represent him, but also stated he was not qualified to represent 

himself. The district court conducted an inquiry under State v. White Bird, 

2015 ND 41, 858 N.W.2d 642, to determine whether Yalartai was competent to 

represent himself. The court determined he was not competent and ordered 

Martinez to remain as counsel and proceeded with trial.

[¶4] During trial, the State called the victim, E.S., to testify and offered 

Facebook messenger conversations between E.S. and Yalartai to be read into 

evidence. After E.S. provided the majority of her testimony, the district court 

took a short recess. Following the recess, Yalartai chose to change his plea to 
2

guilty. Yalartai explained to the court that, over the recess, the State agreed to 

a plea agreement—in exchange for pleading guilty to one count of gross sexual 

imposition, the remainder of Yalartai’s charges would be dismissed. The court 

advised Yalartai of his rights and conducted a colloquy required by 

N.D.R.Crim.P. 11 before accepting Yalartai’s plea. After receiving a factual 

basis for the plea from the State and Yalartai, the court accepted the guilty 

plea, ordered a presentence investigation, and scheduled a sentencing hearing 

for January 9, 2023. 

[¶5] On January 6, 2023, with the assistance of newly retained counsel, 

Yalartai moved to withdraw his guilty plea. On January 24, 2023, a hearing on 

the motion to withdraw Yalartai’s guilty plea was held. The district court 

denied Yalartai’s motion to withdraw his guilty plea under the totality of the 

circumstances after considering a number of factors. 

[¶6] In February 2023, a sentencing hearing was held and the criminal 

judgment was entered. Following the entry of judgment, Yalartai appealed.

II

[¶7] Yalartai argues the district court erred in denying his motion to 

withdraw his guilty plea because a fair and just reason exists to withdraw his 

guilty plea. 

[¶8] Rule 11(d), N.D.R.Crim.P., governs the withdrawal of guilty pleas and 

establishes different standards depending on when the motion to withdraw is 

made. “A defendant may withdraw a plea of guilty: . . . after the court accepts 

the plea, but before it imposes a sentence if: . . . the defendant can show a fair 

and just reason for the withdrawal.” N.D.R.Crim.P. 11(d)(1)(B)(ii). If the 

defendant establishes a fair and just reason for withdrawal of the guilty plea, 

the burden then shifts to the State to show substantial prejudice. State v. 

Guthmiller, 2019 ND 85, ¶ 8, 924 N.W.2d 785 (citing State v. Lium, 2008 ND 

232, ¶ 13, 758 N.W.2d 711). Under Rule 11(d), the standard of review is abuse 

of discretion. See Guthmiller, at ¶¶ 6, 11 (discussing the district court’s 

discretion to allow withdrawal of a guilty plea under N.D.R.Crim.P. 11(d)). “A 
3

court abuses its discretion when it acts in an arbitrary, unreasonable, or 

unconscionable manner, or it misinterprets or misapplies the law.” Id. at ¶ 6.

[¶9] This Court has utilized a non-exhaustive list of factors to determine 

whether a defendant has shown a fair and just reason to withdraw a guilty 

plea: 

Among 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.

Guthmiller, 2019 ND 85, ¶ 9 (cleaned up). Yalartai argues the nine factors in 

Guthmiller weigh in favor of a fair and just reason for withdrawal of his guilty 

plea. The district court applied these factors in considering whether Yalartai 

met his burden to show a fair and just reason to withdraw his plea.

[¶10] In regard to factor 1, only two months passed between the trial where 

Yalartai entered his guilty plea and his filing of the motion to withdraw his 

guilty plea. The district court found the time between trial and the motion to 

withdraw was not long.

[¶11] In regard to factor 2, Yalartai argues his assertion of innocence at the 

motion hearing puts this factor in his favor. Yalartai presented no new evidence 

or legal defense to support his claim of innocence at the motion hearing that 

was not already discussed at trial. The district court reviewed Yalartai’s 

assertion from trial that another cell phone, owned by his nephew, would show 

the communications with the victim were not coming from him. The court 

specifically considered the testimony of the victim identifying Yalartai at trial,
4

noting it was only after this evidence was received that he pled guilty. The 

court analogized Yalartai’s assertion to Guthmiller, finding Yalartai’s alleged 

evidence did not reach the level of a fair and just reason to withdraw his guilty 

plea. See Guthmiller, 2019 ND 85, ¶¶ 10-11 (concluding the district court did 

not abuse its discretion in determining the information claimed as new 

evidence—someone else controlling the defendant’s social media account—did 

not rise to the level of “fair and just” for purposes of withdrawing a plea). 

[¶12] In regard to factor 3, Yalartai argues the State faces no extraordinary 

prejudice in subpoenaing their witnesses and bringing them in for another trial 

because doing so is a normal burden for the government. The district court 

found prejudice to the State because this case involves a child witness who 

already testified about the acts done to her and would need to travel from Iowa 

to North Dakota to testify again. 

[¶13] In regard to factors 4 and 5, Yalartai argues (1) his plea was not

voluntary, and (2) the plea was not made in compliance with N.D.R.Crim.P. 11, 

respectively. A plea of guilty must be entered freely and voluntarily. Davies v. 

State, 2018 ND 211, ¶ 32, 917 N.W.2d 8. The district court must determine 

whether the plea is voluntary and did not result from force, threats, or 

promises other than promises in a plea agreement before accepting a plea of 

guilty. Id.; see also State v. Storbakken, 246 N.W.2d 78, 82 (N.D. 1976); Moore 

v. State, 2013 ND 214, ¶ 11, 839 N.W.2d 834. Yalartai argues he did not plead 

guilty voluntarily because he was forced to proceed with trial with Martinez as 

counsel. At the motion hearing, the court reviewed the transcript from the trial 

where Yalartai entered his guilty plea, including the colloquy under

N.D.R.Crim.P. 11(b). The court summarized the change of plea proceeding as 

follows:

And we came back into the courtroom and that is when I was 

informed that you wanted to change your plea. So this was after 

the victim identified you, explained the sexual acts that she 

engaged in with you. And I said — and you asserted your right to 

take this to a jury trial, this charge of Gross Sexual Imposition. 

And I said, “We’re here today and we have impaneled a jury and 

we’ve started testimony.” And I said, “And you’ve decided you had 
5

indicated earlier that you wanted more time and I denied that 

request. So I just want to make sure today that you’re doing this, 

you know, voluntarily and freely, that you’re going to be, you know, 

withdrawing your previously entered not guilty plea.” And you 

said, “Yes, Your Honor.” And I said, “I saw that you went back with 

Ms. Martinez. Did you seek her counsel in this regard?” And you 

said, “Yes, Your Honor.” And I said, “Do you feel you’re fully 

informed in making this decision?” and you said “Yes, Your Honor.” 

And I said, “And you understand that you could still proceed to a 

jury trial.” You said, “Yes, Your Honor.” And then I said, “But you 

don’t want to do that. Is that right?” And you said, “Yes, Your 

Honor.” And I said, “Do you understand the charges you’re facing?” 

And you said, “Yes, Your Honor.” And I went through the 

mandatory minimums again and I asked if you understood that 

and you said, “Yes, Your Honor.” And then the State went through 

the factual basis. They talked about the victim’s age. They talked 

about the sexual acts in detail and I said, “Is that what happened?” 

and you said “Yes.” And I asked you, I said, “Now previously [sic] 

didn’t want Ms. Martinez.” I said, “Is it all right with you if 

Ms. Martinez stays your attorney for sentencing?” And you said, 

“Yes,” it was. 

At the change of plea, the court asked Yalartai if anyone had promised him 

anything or threatened him in order to plead guilty and he responded “no” to 

both. The court also asked whether his plea was being freely and voluntarily 

made, and Yalartai responded “yes.” Yalartai had the opportunity to consult 

with counsel. The record reflects that Yalartai knowingly, intelligently, and 

voluntarily entered his plea of guilty and that the court substantially complied 

with N.D.R.Crim.P. 11(b) before accepting his plea of guilty.

[¶14] In regard to factor 6, Yalartai argues he did not want Martinez to 

represent him because she would not bring in certain evidence to impeach the 

witness. At the motion hearing, the district court considered Yalartai’s 

argument stating: “I don’t see this being an issue with ineffective assistance of 

counsel at all. . . . [Y]ou even stated that it wasn’t that she was a bad attorney. 

You stated that at a few occasions during the proceedings.” The court noted

Martinez, as trial counsel, provided Yalartai with guidance before he entered 

his plea of guilty. The court found Martinez was an effective, well-prepared 
6

attorney, who advocated for Yalartai at each proceeding, and tried to utilize the 

largely inadmissible evidence Yalartai requested to the extent possible under 

N.D.R.Ev. 412. 

[¶15] In regard to factor 7, Yalartai argues the plausibility of the reason for 

withdrawing his plea is evident from his testimony stating he would rather 

have no attorney than Martinez and, as a result, was forced to plead guilty. 

The district court found Yalartai waited to plead guilty until after he heard the 

victim’s testimony—which included personal identification of Yalartai, the 

details of how they met, how Yalartai looked different the first time they met, 

the acts they engaged in, and how he sent Ubers for the victim to bring her to 

his apartment—and after the court admitted evidence of Yalartai’s messages 

with the victim. 

[¶16] In regard to factor 8, Yalartai argues it is not a waste of judicial 

resources to have another jury trial which would allow him to cross-examine 

and confront the State’s witnesses. The district court found, when Yalartai pled 

guilty at trial, the jury had been impaneled, the witnesses had been

subpoenaed, and the victim had given substantial testimony; however, the 

court did not put great weight on this factor stating, “I’m not really focusing 

too much on that at this point.”

[¶17] In regard to factor 9, Yalartai argues the State did not follow the terms 

of the plea agreement. The record does not reflect there was a written plea 

agreement; rather, the State agreed to a sentencing recommendation and to 

dismiss several charges. At the change of plea hearing, the State dismissed

Counts II, III, and IV in exchange for Yalartai pleading guilty to Count I as 

charged and recommended a sentence. At the motion hearing, the State 

informed the district court its recommendation for sentencing was the same as 

agreed at the change of plea, but it was higher than what would have been 

recommended had Yalartai pled guilty prior to trial. The court did not focus 

heavily on this factor at the motion hearing, but acknowledged that there were 

some agreements between the parties.
7

[¶18] We conclude the district court did not abuse its discretion in weighing

the factors outlined in Guthmiller, and did not clearly err in determining on

this record that Yalartai has not met his burden to show a fair and just reason

exists to withdraw his guilty plea. Because Yalartai failed to establish a fair 

and just reason to allow withdrawal of his guilty plea, we decline to address 

the second portion of the test under Guthmiller. See Guthmiller, 2019 ND 85, 

¶ 8 (inquiring into the State’s prejudice only after the defendant establishes a 

fair and just reason to withdraw the plea). Therefore, we conclude the district 

court did not abuse its discretion when it denied Yalartai’s motion to withdraw 

his guilty plea.

III

[¶19] Yalartai argues he invoked his right to self-representation at trial and 

the district court erred by ordering Martinez to remain as his trial counsel. A

defendant has a constitutional right to self-representation. City of Fargo v. 

Rockwell, 1999 ND 125, ¶ 8, 597 N.W.2d 406. However, having determined that 

the district court did not err in finding Yalartai voluntarily pled guilty, we need 

not review separately his argument regarding the alleged violation of his right 

to self-representation. Yalartai did not enter a conditional plea under 

N.D.R.Crim.P. 11(a)(2), reserving in writing the right to appeal an adverse 

determination by the district court. Defendants who voluntarily plead guilty 

waive the right to challenge nonjurisdictional defects, including alleged 

violations of constitutional rights that occur before the guilty plea. See State v. 

Burr, 1999 ND 143, ¶ 29, 598 N.W.2d 147; see also Tollett v. Henderson, 

411 U.S. 258, 267 (1973) (“When a criminal defendant has solemnly admitted 

in open court that he is in fact guilty of the offense with which he is charged, 

he may not thereafter raise independent claims relating to the deprivation of 

constitutional rights that occurred prior to the entry of the guilty plea.”). 

IV

[¶20] The district court did not abuse its discretion by denying Yalartai’s 

motion to withdraw his guilty plea after considering factors and determining 

he failed to show a fair and just reason for withdrawing his guilty plea. 
8

[¶21] We affirm the criminal judgment.

[¶22] Jon J. Jensen, C.J.

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte

Douglas A. Bahr