State v. Littleghost and the On-the-Record Factual Basis Mandate: Accepting a Guilty Plea Without Articulated Facts Is Plain Error in North Dakota

Introduction

In State v. Littleghost, 2025 ND 65 (N.D. Mar. 28, 2025), the North Dakota Supreme Court clarified and forcefully enforced the requirement under N.D.R.Crim.P. 11(b)(3) that a trial court must develop, on the record, a factual basis before entering judgment on a guilty plea. The Court held that a district court’s mere incantation that a "factual basis" exists—without eliciting facts from the defendant, counsel, the prosecutor, or other record sources—is an obvious (plain) error that affects a defendant’s substantial rights and requires reversal, even when the defendant does not object at the plea hearing.

The case arises from two incidents involving defendant-appellant Cody Lee Littleghost. In February 2023, following arrest on a warrant, he allegedly spat on two officers; and in June 2023, after a shoplifting call and attempted detention, he allegedly spat on another officer. Littleghost moved to suppress statements in both cases on Miranda grounds and later pleaded guilty to contact-by-bodily-fluids charges in both dockets, reserving his right to appeal the suppression rulings. On appeal, he contended that the district court violated Rule 11 by accepting his February pleas without an adequate factual basis, and he challenged the suppression rulings. The Supreme Court reversed the February convictions for failure to establish a factual basis and affirmed the denial of suppression as to the June case.

Summary of the Opinion

The Court (Crothers, J.) held:

Rule 11(b)(3) error—February case: The district court accepted guilty pleas to two contact-by-bodily-fluids counts (February incident) without any on-the-record inquiry to establish a factual basis. The court neither asked the defendant to describe his conduct nor solicited an offer of proof, and it did not reference affidavits, prior transcripts, or other record materials. This failure was a clear deviation from Rule 11(b)(3), was "plain," and affected substantial rights, mandating reversal (¶¶ 12–17, 20–22).
Suppression—June case: The district court did not err in denying suppression. Officers did not interrogate Littleghost or elicit incriminating statements; his swearing during the arrest was not an incriminating statement about the incident. With no statements to suppress under Miranda, denial of the motion was affirmed (¶¶ 24–26).
Disposition: Reversed in part (February case) and affirmed in part (June case) (¶ 27).

Analysis

A. Precedents and Authorities Cited

1) North Dakota authorities on Rule 11 factual-basis requirements

Juneau v. State, 2025 ND 13 and State v. Brame, 2023 ND 121: Rule 11 mandates substantial compliance to ensure pleas are knowing and voluntary (¶ 6). Littleghost builds on these by emphasizing that "substantial compliance" includes making an actual factual inquiry on the record before entry of judgment.
Mackey v. State, 2012 ND 159 and State v. Bates, 2007 ND 15: The trial court must find facts satisfying all elements; the factual basis can come from the defendant, attorney statements, reports, or other appropriate means (¶ 6). Littleghost synthesizes this flexibility with a non-negotiable record-development requirement (¶¶ 11, 14).
State v. Glaser, 2015 ND 31 and Froistad v. State, 2002 ND 52: The factual-basis requirement protects against convicting innocent persons and shores up the record to prevent later collateral disputes (¶ 7). Glaser also acknowledged that while "typical means" are preferred, a court can rely on record documents if it verifies the defendant understands and admits those facts (¶ 22). Littleghost distinguishes Glaser because there the court identified and relied on concrete record sources; here it did not.
Kremer v. State, 2020 ND 132 and State v. Blurton, 2009 ND 144: The court should compare elements to facts admitted by the defendant (¶ 8). Littleghost reaffirms this element-by-element comparison, which cannot occur in the absence of articulated facts.
State v. Peterson, 2019 ND 140: Acceptable methods to establish a factual basis include questioning the defendant, having the defendant describe the conduct, or a prosecutorial offer of proof (¶ 10). Littleghost emphasizes that some method must be used—and recorded.
State v. Hagemann, 326 N.W.2d 861 (N.D. 1982): Summations by counsel may suffice (¶ 11). Littleghost does not reject this flexibility but insists the court’s reliance and the factual content appear on the record.
Halton, Hobus, DeCoteau: Testimony can establish the basis; reliance on sworn testimony and summaries in open court is permissible when made part of the record (¶ 11).
State v. Berg, 2015 ND 61 and State v. Oie, 2005 ND 160: The court may consider the entire record and may take judicial notice of prior hearing testimony, presentence reports, or affidavits—but again, it must identify those sources and incorporate them into the plea record (¶ 14).
State v. Ebertz, 2010 ND 79: Rules must be read as a whole (¶ 15). Littleghost applies this to read Rule 11(b)(3) alongside 11(b)(4) (defendant acknowledges facts exist) and 11(f) (verbatim record must include the court’s inquiries).

2) Federal authorities and treatises

United States v. Adams, 961 F.2d 505 (5th Cir. 1992) and United States v. Johnson, 546 F.2d 1225 (5th Cir. 1977): A plea itself is insufficient; the factual basis must appear on the face of the record and be sufficiently specific (¶ 13). Littleghost adopts this core proposition.
United States v. Aybar-Peguero, 72 F.4th 478 (2d Cir. 2023): Appellate review looks only to facts the district court relied on and developed on the record (¶ 14). Littleghost uses this to explain why a silent record compels reversal.
United States v. King, 604 F.2d 411 (5th Cir. 1979): The factual basis may come from several sources so long as developed on the record (¶ 14). The opinion aligns with this principle but demands a clear on-the-record articulation.
United States v. Washington, 969 F.2d 1073 (D.C. Cir. 1992); Moore’s Federal Practice § 611.08; Wright & Leipold, 1A Fed. Prac. & Proc. Crim. § 180; LaFave, Crim. Proc. § 21.4: These authorities endorse preferred methods (defendant’s narrative), flexible sources, and the institutional values served by a robust factual-basis inquiry (¶¶ 9, 11).
United States v. Tucker, 425 F.2d 624 (4th Cir. 1970) and United States v. Robinson, 799 F.3d 196 (2d Cir. 2015): Cautions that generalized admissions, or a bare reading of the indictment followed by a generic admission, do not satisfy Rule 11 (¶ 11).
United States v. Adams, 448 F.3d 492 (2d Cir. 2006): A missing factual basis is a "substantial defect" that calls into question voluntariness and requires reversal (¶ 19).
Standard of review in other circuits: Some treat the district court’s factual-basis determination as clearly erroneous (Fifth, Tenth Circuits); others vary based on whether conclusions are factual or legal (Ninth Circuit); some as abuse of discretion (treatise summary) (¶ 16). North Dakota leaves the precise standard open because the record here contained no basis to review.

3) North Dakota standards on suppression

State v. Canfield, 2013 ND 236: Appellate deference to fact findings, affirmance where supported by competent evidence and not contrary to the manifest weight; legal standards reviewed de novo (¶ 24). This frames the Court’s affirmance of the suppression ruling in the June case.

B. The Court’s Legal Reasoning

1) The obvious-error framework applied to unpreserved Rule 11 claims

Because Littleghost did not object to the factual basis at the plea hearing for the February charges, the Court reviewed for obvious error under N.D.R.Crim.P. 52(b): (1) error; (2) that is plain; (3) affecting substantial rights (¶ 5). The governing legal rules—Rule 11(b)(3), the Explanatory Note, and North Dakota precedent requiring a record-supported factual basis—were clearly established (¶¶ 6–11).

2) What Rule 11(b)(3) requires—and why

Substance: The court must determine facts satisfying all elements of the charged offense before entering judgment (¶ 6). The factual basis can come from various sources, but the court must compare elements to facts acknowledged (¶ 8).
Form: The method is flexible (defendant’s words; questioning; offer of proof; testimony; reference to affidavits or prior transcripts), but the facts must be developed on the record and sufficiently specific (¶¶ 9–11, 13–14).
Rationale: A factual-basis inquiry ensures actual guilt, protects voluntariness and understanding, creates a reliable record for review and sentencing, and reduces later post-conviction litigation (¶ 7).
Interlocking rules: Rule 11(b)(3) operates with Rule 11(b)(1)(F) (understanding the nature of the charge) and Rule 11(b)(4)(A) (defendant acknowledges facts exist) and is captured by Rule 11(f)’s requirement of a verbatim record of the court’s inquiries (¶ 15).

3) Application to the February pleas

The plea colloquy shows only that the court read the charges and received a "guilty" response, then declared there was a sufficient factual basis for Counts 1 and 2 (¶ 12). Critically, the court:

Did not ask the defendant to describe the conduct;
Did not solicit defense or prosecutorial proffers;
Did not reference affidavits, incident reports, preliminary-hearing testimony, suppression-hearing testimony, or any record materials;
Did not identify the bodily fluid(s) or the factual circumstances of contact;
Did not make any element-to-fact comparison on the record (¶¶ 12, 22).

That silence contravenes Rule 11(b)(3) and its purposes. A plea, by itself, cannot substitute for articulated facts (¶ 13). The Court therefore found a "plain" deviation from the rule (¶ 17).

4) Substantial-rights analysis

A missing factual basis undermines the voluntariness and intelligence of the plea and is a "substantial defect" (citing Adams, 448 F.3d 492) (¶ 19). Because the record lacked any facts establishing the elements (e.g., what happened, which bodily fluid, whose contact, in the scope of employment), the Court held the defect affected substantial rights and warranted reversal (¶ 22).

5) The June case—contrast on factual basis and suppression

Although adequacy of the June plea was not challenged, the Court noted that there the prosecutor gave a factual recitation (including identification of the officer and the context) and the court confirmed with the defendant that "basically" those facts were accurate (¶ 21). By contrast, none of this occurred for the February pleas.

On suppression, applying Canfield, the Court affirmed because officers did not interrogate Littleghost and no incriminating statements were made before Miranda warnings; his swearing during the arrest did not amount to suppressible statements about the incident (¶¶ 24–26).

C. Impact and Practice Implications

1) A clarified mandate: "Develop it on the record"

Littleghost crystallizes a pivotal directive: trial courts must articulate, on the record, the factual basis for a guilty plea and the sources relied upon. Simply stating "factual basis found" is insufficient. This opinion requires:

Establishing facts that satisfy each element of the offense;
Identifying the source(s) of those facts (defendant’s narrative, counsel’s proffer, sworn testimony, affidavits, presentence reports, prior hearing transcripts); and
Ensuring the verbatim record reflects those facts and the court’s determination.

2) Consequence of noncompliance: Reversal for obvious error

Even absent objection, a silent record on factual basis will warrant reversal because it constitutes plain error affecting substantial rights. This elevates the diligence required of judges and counsel during plea colloquies and forecloses reliance on implicit or unarticulated materials.

3) Open question preserved: Standard of review

The Court collected federal approaches (clearly erroneous; abuse of discretion; de novo for legal conclusions) but deliberately left the North Dakota standard unresolved (¶ 16). Future appeals with fully developed records may prompt a definitive articulation.

4) Practical guidance for plea hearings

Judges: Ask the defendant, in his own words, what he did; or have the prosecutor recite facts and confirm the defendant’s agreement; or incorporate sworn testimony or prior transcripts by explicit reference; then make an element-by-element finding on the record.
Prosecutors: Be prepared with a concise but element-satisfying offer of proof (dates, locations, identity of victims, mental state, and statutory elements). Avoid generic paraphrases.
Defense counsel: Ensure the client understands the charge and that facts sufficient for all elements are identified; for negotiated pleas, confirm the record identifies the source (e.g., complaint affidavit) and that the defendant acknowledges those facts exist (Rule 11(b)(4)(A)).

5) Substantive offenses implicated

The opinion underscores that for offenses like "contact by bodily fluids," the factual basis must identify at least: the act of causing bodily fluid to come into contact; the mental state of "knowingly"; and the victim’s status (e.g., police officer) acting within the scope of employment—because these are the elements as recited by the court in the charges (¶ 20).

6) Miranda and suppression practice

Littleghost also illustrates a threshold suppression point: without interrogation or incriminating statements about the incident, there is nothing to suppress under Miranda. Counsel challenging statements must pinpoint the statement(s) and the interrogation context; profanity or general agitation, untethered to inculpatory content, does not trigger suppression (¶¶ 24–26).

Complex Concepts Simplified

Factual basis (Rule 11(b)(3)): Before accepting a guilty plea, the judge must make a record of facts that, if true, satisfy each element of the crime. The facts can come from the defendant, lawyers, documents, or testimony, but they must be stated on the record.
Obvious (plain) error (Rule 52(b)): An appellate court can correct an unpreserved error if it is an error, it is clear under current law, and it affects substantial rights (i.e., it likely affected the outcome or the plea’s validity). Accepting a plea without an on-the-record factual basis meets this standard.
Substantial rights: Fundamental rights that, if compromised, call into question the fairness or reliability of the proceeding. In plea contexts, a missing factual basis undermines the voluntariness and intelligence of the plea.
Miranda: Statements made during custodial interrogation require warnings; spontaneous swearing or non-incriminating outbursts not in response to interrogation are not "statements" that Miranda suppresses.
Element-by-element comparison: The judge should line up what the law requires (elements) against the admitted facts to confirm the defendant’s conduct fits the charge.
Scope of employment: For charges protecting officers, the record must show the officer was acting in the scope of employment when the contact occurred—an element identified in the charge recitations (¶ 20).

Conclusion

State v. Littleghost sets a clear and consequential precedent for North Dakota plea practice: trial courts must develop and articulate, on the record, the factual basis for guilty pleas. A bare plea coupled with a conclusory "factual basis" finding is insufficient and constitutes obvious error affecting substantial rights. The opinion synthesizes existing North Dakota and federal authorities to emphasize that while the sources of a factual basis are flexible, the record-based articulation is mandatory. It also preserves an open doctrinal question—the standard of appellate review when a factual basis exists—while providing a roadmap for building reviewable plea records.

On the suppression issue, the Court reaffirmed that absent interrogation or incriminating statements, Miranda suppression is unavailable. The combined holdings will shape plea colloquies and suppression litigation across the state: pleas must be grounded in clearly stated facts aligned with each element, and suppression claims must identify actual statements and interrogation contexts. The case stands as a practical command to "show your work" at the plea stage, or risk reversal—even without a contemporaneous objection.