Habeas Corpus Relief Granted to Petitioner Convicted of Allowing Livestock to Run at Large Because He Did Not Knowingly Waive Right to Appellate Counsel.

The petitioner was convicted of a Class B misdemeanor for the offense of livestock running at large after three of his horses were discovered roaming freely in his neighbor’s fields. The petitioner was found guilty after a jury trial and received a suspended 30-day sentence and one-year of unsupervised probation. After the petitioner requested new court-appointed counsel several times and engaged in other alleged dilatory tactics, the trial court found that the petitioner forfeited his continued right to a public defender due to his “manipulative conduct.” As such, the trial court denied the petitioner’s request for another public defender to file his motion for a new trial. In a subsequent restitution hearing, the trial court found that the petitioner owed his neighbors $5,400 in restitution for damages caused by his horses and entered an amended judgment extending petitioner’s unsupervised probation to three years from the date of the amended judgment or until payment in full of the restitution. The trial court stated that whether the petitioner would be entitled to a lawyer on appeal was an issue that he would have to take up with the clerk of the Supreme Court.  The petitioner filed a notice of appeal and a motion with the North Dakota Supreme Court for the appointment of appellate counsel. The Supreme Court denied the motion, stating that it did not appoint legal counsel. The petitioner then asked the trial court to take notice of the Supreme Court’s order and appoint him counsel. The trial court did not enter any orders, and the petitioner briefed and argued his direct appeal pro se. The appeal was rejected, and the petitioner sought a writ of habeas corpus. The federal district court denied the petition, but the U.S. Court of Appeals for the 8th Circuit reversed, finding that petitioner was entitled to counsel to file his state court appeal.  He had not knowingly and intelligently waived his right to counsel. The petitioner was entitled to file an out-of-time state court appeal with the assistance of counsel. Koenig v. State, No. 12-2260, 2014 U.S. App. LEXIS 11517 (8th Cir. Jun. 19, 2014).