State v. Blue
| Decision Date | 11 July 2018 |
| Docket Number | No. 20170387,No. 20170388,20170387,20170388 |
| Citation | 2018 ND 171 |
| Parties | State of North Dakota, Plaintiff and Appellee v. James Milton Blue, II, Defendant and Appellant |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Ward County, North Central Judicial District, the Honorable Gary H. Lee, Judge.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Kelly A. Dillon, Assistant State's Attorney, Minot, ND, for plaintiff and appellee.
Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.
[¶1] James Blue II appeals from a criminal judgment after he entered Alford pleas to two counts of terrorizing, seven counts of reckless endangerment, two counts of simple assault on emergency medical personnel, three counts of contact by bodily fluids, unlawful possession of a firearm, interference with a telephone during an emergency call, and attempted murder. We affirm the district court's criminal judgment in part, reverse in part, and remand for a consideration of the defendant's ability to pay restitution.
[¶2] The State charged Blue with two counts of terrorizing, seven counts of reckless endangerment, two counts of simple assault on emergency medical personnel, four counts of contact by bodily fluids (one count was later dismissed), unlawful possession of a firearm, interference with a telephone during an emergency call, and attempted murder. In October 2017, Blue entered Alford pleas to each charge. Blue agreed with the factual basis the State presented for each charge. During the change of plea hearing, the State provided the following facts. On December 8, 2016, the Minot Police Department was dispatched to the emergency room at Trinity Hospital to meet with an assault victim. The victim initially refused to provide information to the police. She told an investigator that she had been involved with her assailant for approximately two months. She said the two argued and he pushed her over a kitchen counter backwards, strangled her twice, and hit her in the face, first with an open hand and then with a closed fist. The victim indicated he strangled her a third time, resulting in her loss of consciousness. When she regained consciousness, she found herself on the floor vomiting and spitting blood. The officer observed the victim had scratches on her neck, cuts on her lip, and her face appeared swollen and red. The victim's friend, who had driven her to the hospital, identified the victim's boyfriend as James Blue.
[¶3] The State continued with the factual basis that on January 17, 2017, the victim called the police, stating Blue was in her home and she wanted him removed. During the call, the victim yelled, "Don't shoot me." Police officers responded. While officers were en route, another caller reported hearing gunshots coming from the victim's residence. A third caller reported a man shooting a handgun outside of the victim's residence.
[¶4] Blue left the residence walking into the roadway with his handgun drawn. He stopped and fired multiple times back toward the direction of the residence. He pointed his firearm at the officers multiple times. Blue returned to the residence, broke out windows and damaged other property inside. Officers took Blue into custody.
[¶5] Blue was bleeding from an injury to his hand. He was combative with officers trying to restrain him. An officer had an open cut on her hand, and Blue's blood and saliva came in contact with the cut. Ambulance personnel arrived to render aid to Blue. Blue spit at the officers, with saliva landing on an officer's cheek and chest. While ambulance personnel attempted to render aid to Blue, he grabbed both of their arms or wrists at different points, applying enough force for both of them to sustain injury. While Blue was being transported to Trinity Hospital, he spit at officers and the ambulance personnel, and saliva landed on their face, eye, and mouth.
[¶6] The victim reported she heard Blue coming down the hall to the bedroom where she was hiding, and he fired shots toward the master bedroom. Blue then returned to the living room, where he put a gun to the victim's forehead. The victim let her child go and thought he ran out of the residence, and she ran outside with Blue firing his gun at her. Once outside, she realized her child was still in the residence, so she went back to retrieve her child while Blue continued to fire the gun at her.
[¶7] When the victim arrived home the prior evening, Blue was waiting for her. He was intoxicated and became angry. She attempted to call 911, and Blue knocked the phone out of her hand. The victim went to the back bedroom and Blue pointed a pistol in her face and threatened to shoot her and her child. Blue again pointed the pistol at her forehead and said, "Do you think I'm playing, bitch?" The victim stated he held the gun at a downward angle between her eyes and said he would shoot her in the head and through her spine. Blue began to leave, but returned, again putting the gun to her head and threatening to shoot her in front of her child. He finally left the residence.
[¶8] Blue's criminal history included a felony conviction from 2010, making it illegal for him to possess a firearm.
[¶9] After he entered his pleas, the State requested restitution in the amount of $2,716.13. The requested restitution represented the cost of disposing of the destroyed residence, reimbursement to Workers' Compensation (or the equivalent), and reimbursement to Medicaid for various medical expenses. The district court asked Blue if he wanted a restitution hearing or if he wanted to stipulate to the amount. Blue indicated he would stipulate to the restitution and the court found Blue was making a knowing and intelligent decision to stipulate to restitution in the amount of $2,716.13.
[¶10] Blue argued that even though he stipulated to the restitution, the district court still needed to make a factual finding that he is able to pay restitution. The court indicated that statutorily that was true, but under N.D. Const. art. I, § 25(1)(n) victims have the right to full restitution. Blue did not argue for a reduction of the restitution; rather, he only argued the court needed to make a factual finding that he is able to pay the restitution.
[¶11] Blue submitted multiple cases to the district court and argued the cases presented were similar to the case at bar. Blue presented four cases to the court, arguing the sentences were disproportionate to what the State was asking for in his case.
[¶12] Blue argued his sentence should be consistent with the submitted cases. The district court sentenced Blue to 20 years imprisonment, with five years suspended on the class A felony, and five years on each of the class C felonies. All sentences were ordered to run concurrently, except two class C felonies, which were ordered to run concurrently with each other, but consecutively to the other sentences. The court imposed conditions of supervised probation including the following conditions:
[¶13] Blue argues the district court abused its discretion in ordering restitution without considering his ability to pay.
When reviewing a restitution order, we look to whether the district court acted "within the limits set by statute," which is a standard similar to our abuse of discretion standard. "A district court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, if its decision is not the product of a rational mental process leading to a reasoned determination, or if it misinterprets or misapplies the law.
State v. Carson, 2017 ND 196, ¶ 5, 900 N.W.2d 41 (citation omitted). It is a defendant's burden to raise and prove an inability to pay restitution.State v. Bruce, 2018 ND 45, ¶ 16, 907 N.W.2d 773 ( State v. Tupa, 2005 ND 25, 691 N.W.2d 579). Even if a defendant has no current ability to pay due to imprisonment, a defendant may have an ability to pay based on the possibility of future gainful employment. Id. We review questions of law de novo in determining whether or not the district court abused its discretion through misapplication or misinterpretation of the law. State v. Kostelecky, 2018 ND 12, ¶ 6, 906 N.W.2d 77.
[¶14] Blue does not contest the amount of restitution ordered, but argues the district court erred by failing to make findings on his ability to pay the restitution ordered. The court informed Blue that he had the right to request a hearing on restitution to determine whether the amounts were validly stated and whether the amounts were directly attributable to the criminal actions he was charged with. The court further stated "[y]ou can have a hearing on those two issues or you can stipulate and say you agree to this." Blue then stated "I'll take the 27." The court replied,
[¶15] Blue argued that even though he stipulated to the restitution, the district court still needed to make a factual finding he is able to pay restitution. The court then stated, "You know, statutorily, that's true, although under Marsy's Law, constitutionally, it is no more because under Marsy's Law, the--I can't remember what paragraph it is, but under Marsy's Law, it says that individuals and entities who are harmed by criminal activity have the right to full restitution."
[¶16] Relying on State v. Thorstad, 261 N.W.2d 899, 901 (N.D. 1978), the State argues that the defendant agreed to restitution as part of an open plea and is not entitled to a hearing to determine whether he has the ability to pay restitution. Unlike Thorstad, where the...
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