State v. Ennis

• Decision Date: 17 December 1990
• Docket Number: Cr. N
• Citation: 464 N.W.2d 378
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Edward G. ENNIS, Defendant and Appellant. os. 900151 to 900154.
• Court: North Dakota Supreme Court

Page 378

464 N.W.2d 378

STATE of North Dakota, Plaintiff and Appellee, v. Edward G. ENNIS, Defendant and Appellant.

Cr. Nos. 900151 to 900154.

Supreme Court of North Dakota.

Dec. 17, 1990.

Peter H. Furuseth (argued), States Atty., Williston, for plaintiff and appellee.

Anseth & Zander, Williston, for defendant and appellant; argued by Janet Holter Zander.

MESCHKE, Justice.

Edward Gordon Ennis appealed from an order denying his motion for correction of the sentence imposed after his probation was revoked. We affirm.

In August 1982, Ennis was convicted of five Class B felonies for delivery of controlled substances, and was sentenced concurrently to seven years in the state penitentiary and fined $1,000 on each count. Four years of the sentence were suspended upon conditions, including that Ennis report regularly to his probation officer, that he not leave this state without advance written approval of the probation officer, and that he pay the fines "as rapidly as income permits, but not less than 10 percent of monthly gross income."

On appeal, four of the five felonies were affirmed. State v. Ennis, 334 N.W.2d 827 (N.D.1983). Ennis was finally imprisoned on March 23, 1984. Nearly twelve months later he was released from prison on parole. Ennis was permitted by his probation officer to move to Montana to be supervised by a Montana probation officer under the interstate compact. See NDCC 12-56. However, Ennis left Montana for Arizona, and then he asked Arizona to allow him to move to California before the transfer to Arizona was completed. After that, his probation officer lost track of him. Ennis made no payments on his fines.

Eventually, Ennis was located at Olympia, Washington, and was extradited to North Dakota to face probation revocation. Ennis was charged with three probation violations, that he failed to make any payments on his fines, that he failed to get advance written approval before leaving for another state, and that he failed to report to his probation officer while his whereabouts were unknown. After an evidentiary hearing in January 1990, the trial court revoked his probation and sentenced him to five years and nine months in the penitentiary, with credit for 70 days served during extradition.

Ennis appealed, raising two main questions:

1. Does the increased length of the sentence violate his constitutional rights?

2. Does the trial court's failure to give written reasons for the sentence violate his rights?

INCREASED PUNISHMENT

Ennis claims that his imprisonment for five years and nine months after revocation of probation increased his punishment and contravened his Fifth Amendment rights of due process and against double jeopardy. He argues that, after completion of his initial imprisonment and parole, both the prison and parole times have been served and are no longer available for sentencing upon revocation of probation. Ennis argues that the maximum imprisonment constitutionally permissible is the four years suspended for probation.

Ennis leans on Ex Parte Lange, 85 U.S., 18 Wall. 163, 21 L.Ed. 872 (1873), for support that a sentence cannot be increased after the defendant has begun to serve it. In Lange, the trial court erroneously imposed both fine and imprisonment although the statute only authorized one or the other of the two punishments. Lange paid the fine and served five days in prison. The trial court then resentenced him to a year in prison. The United States Supreme Court granted habeas corpus and released Lange.

The Supreme Court recently explained Lange. "This punishment would obviously have exceeded that authorized by the legislature. Lange therefore stands for the uncontested proposition that the Double Jeopardy Clause prohibits punishment in excess of that authorized by the legislature ... and not for the broader rule suggested by its dictum." Jones v. Thomas, 491 U.S. 376, 109 S.Ct. 2522, 2526, 105 L.Ed.2d 322 (1989) (citation omitted). Because Ennis's sentence is authorized by law, Lange does not extricate Ennis.

The statutes authorize Ennis's resentence. As it read in 1982 when Ennis was first sentenced, NDCC 12.1-32-07(4) ¹, says that, when probation is revoked, the court may continue probation or "may impose any other sentence that was available under section 12.1-32-02 or 12.1-32-09 at the time of initial sentencing." Ennis was convicted of four Class B felonies, each with a maximum penalty of ten years imprisonment, a ten thousand dollar fine, or both. NDCC 12.1-32-01(3). Initially, Ennis could have been sentenced to at least ten years on concurrent sentences. After credit for the year that Ennis was imprisoned, NDCC 12.1-32-07(4) made available at least nine years of imprisonment for Ennis when his probation was revoked. See State v. Gefroh, 458 N.W.2d 479 (N.D.1990) and State v. Jones, 418 N.W.2d 782 (N.D.1988). Ennis's resentence was within the range authorized by law.

Nonetheless, Ennis argues that his parole time, after release from imprisonment, was not available for resentencing. In State v. Vavrosky, 442 N.W.2d 433 (N.D.1989), we held that time on probation is not "time spent in custody" within the meaning of NDCC 12.1-32-02, so that a defendant whose probation is revoked is not entitled to credit for the time that he has already spent on probation. Time on parole, too, is not "time spent in custody" within the meaning of NDCC 12.1-32-02 because time on parole is no different in kind than time on probation. Both are conditional releases, not custodial. Ennis's resentence of five years and nine months is no greater than the initial sentence of seven years, even after crediting all time spent in custody and prison.

Ennis was resentenced to serve that part of his original sentence that he had not spent in the penitentiary or in custody. That sentence was not greater than the sentence originally imposed. Ennis's resentence was available to the court and was authorized by law. His punishment was not unlawfully increased. ²

WRITTEN REASONS

Ennis complains that the trial court did not explain in writing the reasons for his resentence. Ennis stresses the statutory dictate that "[a]ll sentences imposed must be accompanied by a written statement by the court setting forth the reasons for imposing the particular sentence. The statement must become part of the record of the case." NDCC 12.1-32-02(6). Ennis argues that, for probation revocation, a written explanation is also an expectation of the constitutional standard of due process.

Traditionally, there has been no "requirement that the judge particularize either the factual information or the criteria upon which he relied in determining the sentence, though the giving of such explanations is often said to be a desirable practice." 3 LaFave and Israel, Criminal Procedure Sec. 25.2(d), at 129 (1984). See also Campbell, Law of Sentencing Sec. 98 (1978). In most states, a sentencing judge is not expected to supply "a coherent and rational judgment when he informs the defendant of his fate." Id. at 128, quoting Frankel, Criminal Sentences at 39 (1972). North Dakota has generally followed this tradition.

A trial judge is ordinarily allowed the widest range of discretion in fixing a criminal sentence. State v. Wells, 265 N.W.2d 239 (N.D.1978). On appeal of a claim that a sentence is excessive or incorrect, this court has no power to review the discretion of a sentencing court in fixing a term of imprisonment within the range authorized by statute. State v. Joern, 249 N.W.2d 921, 923 (N.D.1977); State v. Holte, 87 N.W.2d 47, 50 (N.D.1957). Appellate review of a criminal sentence is confined to determining whether the judge acted within the limits prescribed by statute, or substantially relied on an impermissible factor. State v. Cummings, 386 N.W.2d 468 (N.D.1986); State v. Kaufman, 310 N.W.2d 709, 714 (N.D.1981); State v. Berger, 285 N.W.2d 533 (N.D.1979); State v. Rudolph, 260 N.W.2d 13 (N.D.1977). Our appellate review of a criminal sentence is very limited. ³

We have noted several times that the effect of noncompliance with this recent statutory direction for an explained sentence remains undecided. State v. Orr, 375 N.W.2d 171 (N.D.1985); City of Riverside v. Smuda, 339 N.W.2d 768 (N.D.1983). Ennis's argument in this case positions our attention on the purpose of this statutory direction for a written statement of reasons for a sentence.

We conclude that only the traditional, limited appellate review of a trial court's criminal sentence is still contemplated. In large part, our conclusion rests on the legislative context and history of NDCC 12.1-32-02(6). ⁴ We discern no legislative intention to authorize general appellate review of the exercise of discretion by the sentencing court in fixing a criminal sentence. ⁵ The direction that a judge make the reasons for a sentence a part of the record would have some usefulness in assisting the board of pardons or the parole board to determine whether to shorten or commute a sentence, or to release a prisoner on parole. See NDCC 12-55-30 and 12-59-05. Written reasons would also assure that the sentencing judge has in fact carefully considered and weighed all of the relevant factors where a person's liberty is at stake. Cf. State v. Klem, 438 N.W.2d 798, 801 (N.D.1989) (One of the reasons for written findings is to evidence that the trial court has considered and weighed competing interests and to encourage careful consideration). However, this statutory direction for written reasons by a sentencing judge does not authorize general appellate review of a sentencing judge's discretion.

Ennis begins his argument seeking appellate review of his sentence by urging that the trial court failed to make written findings that his actions violated conditions of his probation. In effect, Ennis seems to challenge revocation of his probation, although he did not appeal from that order. Rather, he appealed from a later order denying correction of his sentence. ⁶...