### Filed 5/16/19 by Clerk of Supreme Court IN THE SUPREME COURT STATE OF NORTH DAKOTA

2019 ND 123

State of North Dakota, Plaintiff and Appellee

v. Russell Frank Craig, Defendant and Appellant

No. 20180397

Appeal from the District Court of Burleigh County, South Centra l Judicial District, the Honorable Bruce A. Romanick, Judge.

REVERSED AND REMANDED. Opinion of the Court by McEvers, Justice. Tessa M. Vaagen, Assistant State’s Attorney, Bismarck, ND, for plaintiff and appellee. Samuel A. Gereszek, Grand Forks, ND, for defendant and appellant.State v. Craig No. 20180397

McEvers, Justice. [¶1] Russell Frank Craig appeals from a district court order and amended order denying his motion to withdraw his guilty plea. We reverse and remand, concluding the district court erred by failing to give Craig a hearing.

I [¶2] Russell Frank Craig pleaded guilty to murder in 2007. On August 17, 2018, Craig filed a motion under N.D. R.Ct. 3.2 to withdraw his guiltyplea under N.D.R.Crim.P. 11(d)(2) and requested oral argument. The State did not respond. On September 14, 2018, the district court issued a notice inquirin g whether the State’s failure to respond to Craig’s motion was due to oversight. In that notice, the court also stated: “[t]he State shall notify the Court if it has waiv ed a response or respond immediately to the motion or request additional time to respond if unable to do so immediately.” On October 4, 2018, the court scheduled the oralargument for October 16, 2018. On October 5, 2018, the State filed a motion for ext ension of response time. The court granted the extension on October 11, 2018, and the St ate submitted its response to Craig’s motion to withdraw his guilty plea on Octob er 12, 2018. Without explanation, the court cancelled the October 16, 2018 hearing. On October 24, 2018, the court denied Craig’s motion to withdraw his guilty plea.

II [¶3] “When a court has accepted a plea and imposed sentence, the defendant cannot withdraw the plea unless withdrawal is necessary to correct a m anifest injustice.”
State v. Bates , 2007 ND 15, ¶ 6, 726 N.W.2d 595. “The decision whether a man ifest injustice exists for withdrawal of a guilty plea lies within th e trial court’s discretion and will not be reversed on app eal except for an abuse of discr etion.” Id. “A court

1abuses its discretion when it acts in an arbitrary, unreasonabl e, or unconscionable manner, or it misinterprets or misapplies the law.” State v. Yost , 2018 ND 157, ¶ 6, 914 N.W.2d 508. “The interpretation of a court rule or statute is a question of law that we review de novo.” State v. Jessee , 2018 ND 241, ¶ 9, 919 N.W.2d 335.

III [¶4] Craig argues the district court erred by permitting the State to respond later than 14 days after he submitted his motion. He cites to N.D.R. Ct. 3.2(a)(2), which provides: Upon serving and filing a motion, the moving party must serve and file a brief and other supporting pa pers and the opposing party must have 14 days after service of a brief within which to serve and file an answer brief and other supporting papers. The moving party may serve and file a reply brief within seven days after service of the answer bri ef. Upon the filing of briefs, or upon expiration of the time for filing , the motion is considered submitted to the court unless counsel for any par ty requests oral argument on the motion. At no point between the submission of Craig’s August 17, 2018 m otion and the court’s October 24, 2018 order denying his motion did Craig obj ect to the court’s actions permitting the State to request an extension and submitan answer. “It is wellestablished that issues which are not raised before the distric t court, including constitutional issues, will not be considered for the first tim e on appeal.” State v. Kieper , 2008 ND 65, ¶ 16, 747 N.W.2d 497 (internal quotation omitted) . We will not decide whether the district c ourt erred by permitting the State to respond more than 14 days after Craig filed his motion because Craig failed to ra ise the issue before the district court and it was not properly preserved for our review

.

IV [¶5] Craig argues that under N.D.R.Ct. 3.2(a)(3), the district c ourt was required to hold an oral argument on his motion once he requested it. Rule 3.2(a)(3), N.D.R.Ct.,
states:

2If any party who has timely served and filed a brief requests o ral argument, the request must be granted. A timely request for oral argument must be granted even if the moving party has previousl y served notice indicating that the motion is to be decided on briefs. The party requesting oral argument must secure a time for the argument and serve notice upon all other parties. Request s for oral argument or the taking of evidence must be made not later than seven days after expiration of the time for filing the answer brief. If the party requesting oral argument fails within 14 days of the request to secure a t ime for the argument, the request is waived and the matter is considered su bmitted for decision on the briefs. If an evidentiary hearing is reque sted in a civil action, notice must be served at least 21 days before the time specified for the hearing. (Emphasis added); see Hageness v. Davis , 2017 ND 132, n.1, 896 N.W.2d 251 (explaining “N.D.R.Ct. 3.2(a)(3) was amended effective March 1, 2016, to require any party requesting oral argument to secure a time for the argument within fourteen days of the request; otherwise, the request will be waived and the matter considered on the briefs”). Parties seeking oral arguments are required t o schedule and provide notice of the hearing no later than seven days after the expiration of the time for filing the opposing party’s answer brief under N.D.R.Ct. 3.2(a)(3). In re Estate of Bartelson , 2013 ND 129, ¶ 20, 833 N.W.2d 522 (holding the district court abused its discretion by entering an order on a petition before the expiration of the time for requesting and noticing a hearing); see also State ex rel. Seibold v. Leverington , 2012 ND 25, ¶ 17, 812 N.W.2d 460 (holding the district court erred b y entering an order on a motion before the time to request and notice a hearing had expired). We have held complete requests for oral arguments on a motion under Ru le 3.2 require a party affirmatively: (1) timely file a brief; (2) request oral argume nt; (3) schedule a date and time for a hearing; and (4) notify the other party. Johnson v. Johnson , 2017 ND 125, ¶ 7, 894 N.W.2d 833; see also Desert Partners IV, LP v. Benson , 2014 ND 192, ¶ 18, 855 N.W.2d 608 (holding a request for oral argument under Rule 3.2 is complete when the requesting party has secured a time for the argument and serves notice upon all other parties ); see also State v. $3260.00 U.S. Currency, 2018 ND 112, ¶ 12, 910 N.W.2d 839 (holding the district court did not err by not holding a hearing on a

3motion when a party requested a hearing but nothing in the reco rd indicated the requesting party actually scheduled a hearing). This Court has held that if a trial court errs in denying a party’s motion without oral argument, the rem edy is a remand to allow for oral argument. Desert Partners IV , at ¶ 18. [¶6] Additionally, the fact that a hearing has been scheduled do es not ensure the non-requesting party is guaranteed that hearing unless he affirmatively completes the Rule 3.2 hearing request steps on his own. Johnson , 2017 ND 125, ¶ 6, 894 N.W.2d 833. In Johnson , the plaintiff completed the required Rule 3.2 hearing request steps. Id . The district court, prior to the date of the scheduled heari ng, issued an order ruling in the plaintiff’s favor. Id . On appeal, the def endant argued the district court erred by failing to hold the scheduled hearing, arguing he could relyupon the plaintiff’s request to guarantee himself an oral argument. Id . We held the defendant could not rely on the plaintiff’s hearing request and that if he “wished to be heard, he needed to request an oral argument.” Id . at ¶ 8 (emphasis added) (“a party cannot simply rely on the other party’s request to guarantee himself or herself an oral argument”); see also Owens v. State , 1998 ND 106, ¶ 16, 578 N.W.2d 542 (“parties seeking oral argument under Rule 3.2 should make their own request, if they wish to be heard”). [¶7] Craig requested an oral argument on August 17, 2018. While Craig did not comply with Rule 3.2(a)(3), because he did not secure and notic e the hearing, on October 4, 2018, the calendar control clerk issued a notice to appear for a hearing scheduled on October 16, 2018. On October 16, 2018, the hearin g was cancelled “per judge” without explanation. Here, the district court provided electronic notice to the parties on its own by issuing the notice to appear on October 4 , 2018. Therefore, the court removed the hearing setting process from the requirements of Rule 3.2, alleviating Craig’s duty to complete the steps of the rule. Th ere would be no reason for Craig to secure and serve notice of a hearing that was alre ady scheduled by the court. We conclude the district court abused its discretion bycancelling the October 16, 2018 hearing without giving Crai g an opportunity to be hear d. See State v. Nelson , 2015 ND 301, ¶¶ 7-9, 872 N.W.2d 613 (holding a district court abused its

4discretion by arbitrarily and without explanation cancelling a party’s scheduled restitution hearing).

V [¶8] Craig requests this Court assign a different judge if the c ase is remanded. Craig did not request the district judge recuse or disqualify h imself prior to this appeal. He argues the district judge ignored the applicable ru les to accommodate the State, creating an appearance of impropriety. [¶9] We have held: The rules of judicial conduct pr ovide that a judge is required to avoid impropriety and the appearance of impropriety in all the judge’ s activities. Farm Credit Bank v. Brakke , 512 N.W.2d 718, 720 (N.D. 1994). The law presumes a judge is unbiased and not prejudiced

. Id

. (citation omitted). We have said a ruling adverse to a party i n the same or prior proceeding does not render a judge biased so as to require disqualification. Id . The test for the appearance of impartiality is one of reasonableness and recusal is not required in response to sp urious or vague charges of impartiality. Id . at 721. Rath v. Rath , 2016 ND 105, ¶ 12, 879 N.W.2d 735 (quoting Rath v. Rath, 2013 ND 243, ¶ 14, 840 N.W.2d 656). The purpose of reassignment is: “i n part, to preserve the integrity of the court, to protect litigants from bias, and to ensure that allegations of prejudice do not affect fair administration of the law.” T.F. James Co. v. Vakoch , 2001 ND 112, ¶ 18, 628 N.W.2d 298. Further, “[d]etermining whe ther or not to assign a different judge requires delicate balancing of numerou s competing interests.” Id . at ¶ 19. In Vakoch , we declined judicial reassignment on remand because (1) we appreciated the “district court judge has particular insight th at cannot be replicated by a replacement;” (2) the voluminous nature of the record, the number of proceedings, and the experiences of the presiding judge favored retention rather than reassignment; and (3) there were no allegations of actual bias, only subconsc ious bias, and therefore retention was favored. Id

. [¶10] Here, Craig’s only assertion of judicial impropriety rests on his perception the district court misapplied the applicable rules to his detriment . However, we have

5stated that “[a]n erroneous opinion as to the merits of the cas e or the law relating to the proceedings is not evidence of bias.” Datz v. Dosch , 2014 ND 102, ¶ 17, 846 N.W.2d 724. Craig has not alleged sufficient facts to indicate bias or the appearance of impropriety by the judge. Therefore, we decline to assign a different judge on remand.

VI [¶11] We reverse the district court’s order and amended order de nying Craig’s motion to withdraw his guilty plea and remand for a hearing on the motion. Craig’s request for assignment of a different district court judge on r emand is denied. [¶12] Lisa Fair McEvers Daniel J. Crothers Jerod E. Tufte Jon J. Jensen Gerald W. VandeWalle, C.J.

6