State v. Gahner, Cr. N
Decision Date | 29 September 1987 |
Docket Number | Cr. N |
Parties | STATE of North Dakota, Plaintiff and Appellee, v. Steven D. GAHNER, Defendant and Appellant. o. 870048. |
Court | North Dakota Supreme Court |
Jerome L. Renner, State's Atty., Steele, for plaintiff and appellee.
Hjellum, Weiss, Nerison, Jukkala, Wright & Paulson, Jamestown, for defendant and appellant; argued by James A. Wright.
Steven Gahner was convicted of driving while under the influence of intoxicating liquor (DUI) 1 and sentenced for a class A misdemeanor as a third-time offender. On this appeal, Gahner claims that he did not receive notice of the State's proposed use of his prior convictions to increase the charge and enhance his sentence. We agree. Therefore, we vacate his sentence and remand for resentencing.
Gahner was charged with driving "while under the influence of alcoholic beverage and or with a BAC above .10% All in violation of Sec 39-08-01 of the N.D. Century Code ..." by a uniform traffic complaint and summons. See NDCC 29-05-31. At a bench trial on stipulated facts, the trial court found Gahner guilty. Presenting records of two other DUI convictions of Gahner within five years, the prosecuting attorney urged that Gahner be sentenced for a class A misdemeanor and as a third-time offender under NDCC 39-08-01(3) and (5)(c). Gahner objected, pointing out that prior convictions were not mentioned in the complaint. Nevertheless, the Court sentenced Gahner for a class A misdemeanor as a third-time offender. Gahner was fined $1,000 and sentenced to imprisonment for one year, with all but sixty days suspended upon conditions.
Gahner's attorney agrees that he advised Gahner about all provisions of NDCC 39-08-01 prior to trial. After the trial, but before sentencing, the trial court asked whether Gahner was advised of the statutory provisions and his attorney answered affirmatively. Gahner contends that this generalized knowledge is insufficient and that the State must notify a defendant of the seriousness of the charge by stating prior DUI convictions in the complaint.
Gahner cites State v. Edinger, 331 N.W.2d 553 (N.D.1983), as requiring the State to allege prior convictions. Edinger was charged with DUI, a class A misdemeanor, by a complaint which alleged a prior DUI conviction. 2 On appeal, he claimed that it was prejudicial error to let the jury hear evidence of the prior conviction. The State argued that the prior conviction was an essential element of the upgraded offense. This court agreed with the State:
Id. at 554-555 (emphasis added).
Justice VandeWalle wrote separately in Edinger:
"I agree that it was not error to allege in the complaint that Edinger had been previously convicted of having driven while under the influence. The trial court gave a proper cautionary instruction as to the effect of the evidence of the previous conviction and I also agree, therefore, that the judgment should be affirmed.
Id. at 556 (emphasis added.)
Another day and another set of facts are here. This time, the defendant was not charged with a class A misdemeanor, nor were the prior convictions specifically alleged in the complaint.
Edinger dealt with a prior conviction that increased the seriousness of the charge from a class B to a class A misdemeanor. A minimum sentence for a prior conviction, within the same class of offense, was not then required. A prior conviction that enhances the sentence, but not the seriousness of the offense, is not always regarded as an element of the offense. See State v. Ruble, 77 N.D. 79, 40 N.W.2d at 800 ("[T]he provision authorizing a more severe penalty for a second or subsequent offense is no part of the crime and pertains only to the punishment which the court may impose, ..."). See also United States v. Kearney, 750 F.2d 787, 790 (9th Cir.1984) ( ). So, at times, we may differentiate an offense-enhancing prior conviction from a sentence-enhancing prior conviction, although "a defendant must receive reasonable notice and an opportunity to be heard" even as to a sentence-enhancing prior conviction. Oyler v. Boles, 368 U.S. 448, 452, 82 S.Ct. 501, 503, 7 L.Ed.2d 446 (1962).
As Justice VandeWalle recognized in Edinger, when a defendant is charged with the more serious offense, an offense-enhancing prior conviction need not be set out in the complaint, even though an element of the offense. A defendant knows from the more serious charge that the State intends to use any prior conviction. Thus, the complaint serves its purpose--"to inform the defendant of the precise offense of which he is accused...." Explanatory Note to NDRCrimP 7(c), North Dakota Court Rules (West Publishing Co.; 1986) at 246. But Gahner was not informed of the precise offense for which he was sentenced.
The complaint against Gahner did not indicate a class A misdemeanor and did not set out prior convictions. While NDCC 39-08-01 may not require the State to allege prior convictions, the complaint must fulfill the purpose of NDRCrimP 7(c). See NDRCrimP Rule 59(b). While this complaint is not deficient for the exact reason given by Gahner, failing to allege prior convictions, it is nonetheless incomplete. A complaint, or an amendment to it, under NDCC 39-08-01, must either charge the class A misdemeanor,...
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