State v. Cummings

Decision Date23 April 1986
Docket NumberCr. N
Citation386 N.W.2d 468
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. Terry CUMMINGS, Defendant and Appellant. o. 1130.
CourtNorth Dakota Supreme Court

Melody R.J. Jensen, Asst. State's Atty., Fargo, for plaintiff and appellee.

Kirschner and Baker, Fargo, for defendant and appellant; argued by Irvin B. Nodland on behalf of Mr. Kirschner.

LEVINE, Justice.

Terry Cummings appeals his sentences for driving while under the influence (DUI) and driving while license suspended (DUS) in violation of North Dakota Century Code Sec. 39-08-01 and Sec. 39-06-42. We reverse and remand.


Cummings was charged with DUI with two prior convictions within five years, a class A misdemeanor. NDCC Sec. 39-08-01(3). Cummings moved to suppress evidence of his two prior DUI convictions upon the ground that they resulted from uncounseled guilty pleas without valid waivers of counsel. Subsequently, the State conceded it could not show Cummings had waived counsel in his 1983 DUI conviction and Cummings acknowledged that he had validly waived counsel in his 1984 DUI conviction. As a result, the State amended its complaint to charge Cummings with DUI with one prior conviction within five years, a class B misdemeanor. NDCC Sec. 39-08-01(3).

Cummings pleaded guilty to this charge and the trial judge imposed the maximum sentence for a class B misdemeanor, 30 days in jail (15 days were suspended) and a mandatory $500.00 fine. NDCC Sec. 12.1-32-01(6) and Sec. 39-08-01(5)(b). At sentencing the trial judge announced that she had imposed a harsher sentence because of Cummings' 1983 uncounseled DUI conviction. Since the $500 fine was mandatory, NDCC Sec. 39-08-01(5)(b), it is clear that the trial court increased Cummings' term of incarceration solely because of his 1983 DUI conviction.

We will set aside a trial judge's sentencing decision only on a showing that she substantially relied on an impermissible factor in determining the severity of the sentence. State v. Rudolph, 260 N.W.2d 13 (N.D.1977).

The issue thus presented is whether or not Cummings' 1983 uncounseled DUI conviction is an impermissible factor which the trial judge may not substantially rely on to increase Cummings' term of incarceration.

In fixing sentences, a trial judge is allowed the widest possible range of information in exercising her discretion. State v. Wells, 265 N.W.2d 239 (N.D.1978); State v. Smith, 238 N.W.2d 662 (N.D.1976); see also North Dakota Rule of Criminal Procedure 32. Despite this broad latitude, there are constitutional limitations on what may be relied on in sentencing decisions. See State v. Wells, supra (exercise of sentencing discretion must be within constitutional limitations); e.g., United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), and Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948) (due process violated by sentences imposed on the basis of "misinformation of constitutional magnitude").

Cummings argues that State v. Orr, 375 N.W.2d 171 (N.D.1985), precludes the trial judge from considering his 1983 uncounseled DUI conviction in imposing the sentence of incarceration.

In Orr, we held that, absent a valid waiver of the right to counsel, the resulting uncounseled DUI conviction could not, under Art. I, Sec. 12, North Dakota Constitution, be used to enhance a term of incarceration for a subsequent DUI offense. 375 N.W.2d at 178-179. We concluded that uncounseled convictions are too unreliable to support the sanction of imprisonment. 375 N.W.2d at 178.

We see nothing that distinguishes this case from Orr. As a result of Cummings' prior uncounseled conviction, his term of imprisonment was enhanced. Cummings thus suffered the same deprivation of his liberty because of his prior uncounseled conviction as did Orr. Therefore, we hold that a prior uncounseled conviction without waiver of counsel, is an impermissible factor which may not be substantially relied on by a trial judge in sentencing a defendant.

In this case, it is undisputed that the trial judge relied exclusively on Cummings' 1983 uncounseled DUI conviction in increasing his term of incarceration. Accordingly, Cummings' DUI sentence is vacated and this case remanded with instructions that he be sentenced without substantial reliance upon his 1983 uncounseled DUI conviction.


Cummings also pleaded guilty to the charge of DUS in violation of NDCC Sec. 39-06-42. Cummings was sentenced to fifteen days' imprisonment (fifteen days were suspended). This was the mandatory minimum sentence under NDCC Sec. 39-06-42 prior to its amendment in 1985. The 1985 amendment reduced the mandatory minimum sentence to four days' consecutive incarceration. S.L.1985, ch. 429, Sec. 4.

Cummings committed the offense on June 15, 1985, after passage of the 1985 amendment to Sec. 39-06-42, but prior to its effective date, July 1, 1985. Cummings pleaded guilty and was sentenced after the 1985 amendment had taken effect.

The trial judge sentenced Cummings to the fifteen-day penalty mandated by the 1983 statute because the offense occurred before the mitigating 1985 amendment took effect. Cummings claims this was error and argues that the law in effect at the time of his sentencing should govern.

The issue presented is which statute applies: the statute in effect when the offense was committed (fifteen days' mandatory imprisonment) or the statute in effect when Cummings pleaded guilty and was sentenced (mandatory four days' consecutive imprisonment).

The question is one of ascertaining legislative intent--did the Legislature intend the 1983 statute or the 1985 amended statute to apply. State v. Ziesemer, 93 N.W.2d 803 (N.D.1958); In re Estrada, 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 (1965). The Legislature did not expressly state, nor can we discern from a review of the legislative history, which statute should apply. Consequently, we must determine legislative intent from other factors. See NDCC Sec. 1-02-39; Apple Creek Tp. v. City of Bismarck, 271 N.W.2d 583 (N.D.1978).

The State argues that the Legislature, by enacting a saving clause in NDCC Sec. 12.1-01-01, indicated its intention that "in criminal prosecutions, the defendant should be both charged and sentenced under the law in effect at the time the crime was committed."

NDCC Sec. 12.1-01-01 provides in part:

"2. This title, except as provided in subsection 3, shall not apply to offenses committed prior to its effective date. Prosecutions for such offenses shall be governed by prior law, which is continued in effect for that purpose. For the purposes of this section, an offense was committed prior to the effective date of this title if any of the elements of the offense occurred prior thereto.

"3. In cases pending on or after the effective date of this title, and involving offenses committed prior thereto:

a. The provisions of this title according a defense or mitigation shall apply, with the consent of the defendant.

b. The court, with the consent of the defendant, may impose sentence under the provisions of this title which are applicable to the offense and the offender."

A saving clause, such as the one embodied in NDCC Sec. 12.1-01-01(2), "saves" pending or future prosecutions of crimes committed under a repealed or amended statute from being abated. 1

In previous decisions this Court has restricted application of NDCC Sec. 12.1-02-02 to Title 12.1 alone. State v. Olson, 356 N.W.2d 110 (N.D.1984); City of Dickinson v. Mueller, 261 N.W.2d 787 (N.D.1977). The State, nevertheless, argues that the saving clause in NDCC Sec. 12.1-01-01(2) applies to Title 39.

We need not, however, decide if the Legislature, by enacting a saving clause in NDCC Sec. 12.1-01-01(2), intended to preserve the State's ability to prosecute, and the court's authority to sentence, under the 1983 statute. NDCC Sec. 12.1-01-01(3) clearly affords a defendant who has committed an offense before, but is tried after, the effective date of the current statute, the election of being sentenced under the current or former law. State v. Jensen, 251 N.W.2d 182 (N.D.1977); Kittelson v. Havener, 239 N.W.2d 803 (N.D.1976); State v. Smith, 238 N.W.2d 662 (N.D.1976).

Cummings moved pretrial to be sentenced under the 1985 law. This constituted an election by Cummings as provided by NDCC Sec. 12.1-01-01(3). State v. Jensen, supra. Consequently, even assuming that NDCC Sec. 12.1-01-01(2) applied, it would not preclude Cummings from being sentenced according to the 1985 statute.

A more difficult question, not raised, briefed, or argued by the State, but one with such direct bearing that we must address it, is the effect of NDCC Sec. 1-02-10. NDCC Sec. 1-02-10 reads:

"No part of this code is retroactive unless it is expressly declared to be so."

NDCC Sec. 1-02-10 is a rule of statutory construction which provides that statutes are to operate prospectively and not retroactively unless the Legislature clearly manifests a contrary intention. Reiling v. Bhattacharyya, 276 N.W.2d 237 (N.D.1979). A statute is employed retroactively when it is applied to a cause of action that arose prior to the effective date of the statute. Id.

Retroactively applying new statutes is generally disfavored because it risks unfairness by imposing new responsibilities for actions already taken. However, retroactive laws may not be unfair when there is no such ex post facto effect. Consequently, laws which confer benefits are often excepted from the general rule against retroactive application. See 2 Sutherland, Statutory Construction, Sec. 41.02 (4 ed. 1978).

In State v. Kaufman, 310 N.W.2d 709 (N.D.1981), this Court cited the general rule of Reiling v. Bhattacharyya in holding that NDCC Sec. 1-02-10 barred applying retroactively an ameliorating amendment to a penal statute. The Kaufman court concluded that because the amendment did not expressly declare it was to be retroactive, it would not be given such effect. There was no...

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