State v. Johnson

Decision Date08 December 1997
Docket NumberNo. 970242,970242
Citation1997 ND 235,571 N.W.2d 372
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. Kent L. JOHNSON, Defendant and Appellant. Criminal
CourtNorth Dakota Supreme Court

Rozanna C. Larson (argued), Assistant State's Attorney, Minot, for plaintiff and appellee.

Kent L. Johnson, pro se, Fargo, for defendant and appellant. Submitted on brief.

MESCHKE, Justice.

¶1 Kent Johnson appealed an order denying his second motion under N.D.R.Crim.P. 35(a) for correction of his probationary sentences. We affirm.

¶2 On April 14, 1992, Johnson plead guilty to two class B felonies. On count one for misapplication of entrusted property, the trial court sentenced him to five years imprisonment with two years suspended during five years supervised probation. After giving Johnson partial credit for a federal sentence imposed on April 2, 1992, the trial court set this sentence to begin on April 3, 1992. On count two for offering or selling securities as a nonregistered salesman, the court sentenced Johnson to five years imprisonment but suspended it and placed him on supervised probation to begin on April 3, 1997, consecutive to his sentence on count one.

¶3 On June 2, 1993, Johnson moved under N.D.R.Crim.P. 35(a) for correction of sentence, alleging his sentences to probation were excessive. The trial court denied this motion and Johnson appealed. On appeal, we corrected Johnson's sentence when the prosecution conceded the probationary periods were excessive and joined in Johnson's request for correction of his sentences. State v. Johnson, 510 N.W.2d 637 (N.D.1994). Applying NDCC 12.1-32-06.1(1), we directed that Johnson's supervised probation terminate five years after the later of 1) April 14, 1992; 2) the date Johnson was released from incarceration; or 3) the date Johnson's parole was terminated.

¶4 On June 5, 1997, Johnson again moved under N.D.R.Crim.P. 35(a) for correction of sentence, also alleging his probationary sentences were excessive. Specifically, he argued consecutive sentences of probation were contrary to North Dakota law. The trial court denied this motion, too, and Johnson again appealed.

¶5 On this appeal, Johnson argues NDCC 12.1-32-11 requires all sentences of probation to be concurrent, not consecutive. Johnson says the language of NDCC 12.1-32-11 permits the imposition of consecutive sentences for imprisonment, but requires merger of consecutive sentences for probation. The prosecution contends NDCC 12.1-32-11 permits a trial court to impose concurrent or consecutive sentences in its discretion, and does not distinguish between sentences of imprisonment and probation. While we think the State's position is more plausible, we need not interpret NDCC 12.1-32-11 to decide this case. Instead, we conclude the denial of Johnson's second motion for post-conviction relief was proper under NDCC 29-32.1-12(2) because Johnson's argument here was not made in his previous post-conviction challenge to the same probationary sentences.

¶6 An order denying a motion for correction of an illegal sentence under N.D.R.Crim.P. 35(a) is appealable. In State v. Nace, 371 N.W.2d 129, 131 (N.D.1985), we held an order denying correction of a sentence was appealable under NDCC 29-28-06(5) because it affected a "substantial right" of the defendant. See also State v. Gunwall, 522 N.W.2d 183, 185 (N.D.1994)(a motion for correction of sentence affects a substantial right and is reviewable).

¶7 Johnson relies upon NDCC 12.1-32-11(1):

Unless the court otherwise orders, when a person serving a term of commitment imposed by a court of this state is committed for another offense or offenses, the shorter term or the shorter remaining term shall be merged in the other term. When a person on probation or parole for an offense committed in this state is sentenced for another offense or offenses, the period still to be served on probation or parole shall be merged in any new sentence of commitment or probation. A court merging sentences under this subsection shall forthwith furnish each of the other courts previously involved and the penal facility in which the defendant is confined under sentence with authenticated copies of its sentence, which shall cite the sentences being merged. A court which imposed a sentence which is merged pursuant to this subsection shall modify such sentence in accordance with the effect of the merger.

Johnson concedes this statute, as interpreted in State v. Mees, 272 N.W.2d 61 (N.D.1978), authorizes the imposition of consecutive sentences of commitment. See also State v. Patten, 353 N.W.2d 26, 29-30 (N.D.1984) (a trial court has, absent a statute to the contrary, the discretion to impose either concurrent or consecutive sentences of imprisonment). However, Johnson urges this authority extends only to sentences of imprisonment, and does not extend to sentences of probation. Dissecting the statute, Johnson proposes the phrase, "[u]nless the court otherwise orders," modifies only the first sentence on "a term of commitment imposed by a court," and not the second sentence on "probation or parole."

¶8 "[S]tatutes must be construed as a whole to determine the intent of the legislature and [ ] the intent must be derived from the whole statute by taking and comparing every part thereof together." Mees, 272 N.W.2d at 64 (citing City of Fargo v. State 260 N.W.2d 333 (N.D.1977)). As Mees explained at 64 (citing NDCC 1-02-39), legislative intent should be determined by considering, among the factors, "the common law or former statutory provisions, the statute's connection to other related statutes and the consequences of a particular construction."

¶9 Although the legislative history of NDCC 12.1-32-11 was partially detailed in Mees, there is more to that history. That section was first enacted by Senate Bill 2045 in 1973. Originally, subsection 1 directed:

Separate sentences of commitment imposed on a defendant for two or more offenses constituting a single criminal episode shall run concurrently. Sentences for two or more offenses not constituting a single criminal episode shall run concurrently unless the court specifically orders otherwise.

1973 N.D. Laws, ch. 116, § 31. This subsection was deleted by 1975 N.D. Laws, ch. 116, § 31, and the former subsection 2 became the present subsection 1. The legislative history explained this change:

The final recommendation of the [Peace Officers] association, accepted by the Committee, was with respect to the section in the new Criminal Code which propounds a philosophy in favor of concurrent sentences, rather than consecutive sentences. The association believes that the Legislature should not set forth a statutory philosophy favoring concurrent sentences, but should leave that determination, i.e., whether sentences are to be concurrent or consecutive, solely in the discretion of the sentencing judge. The Committee is proposing that Subsection 1 of Section 12.1-32-11 be deleted in accordance with the association's recommendations.

1975 Legislative Council Reports at 126. Compare NDCC 12-06-24 (1960) and North Dakota Revised Code of 1943 § 12-0624 (each authorizing consecutive or concurrent sentences "in the discretion of the court" when "any person is convicted of two or more crimes before sentence has been pronounced upon him"). This history indicates a clear legislative intention to grant unrestricted discretion to a sentencing court to impose consecutive sentences in...

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19 cases
  • Owens v. State
    • United States
    • North Dakota Supreme Court
    • January 30, 2001
    ...proper when a defendant's argument "was not made in his previous post-conviction challenge to the same probationary sentences." State v. Johnson, 1997 ND 235, ¶ 5, 571 N.W.2d 372. In Johnson, we held the argument was "simply a variation" of an earlier appeal and was therefore a misuse of th......
  • Johnson v. State
    • United States
    • North Dakota Supreme Court
    • June 30, 2004
    ...the remainder of the issues in the second application are not "simply variations" of arguments raised in the first application. State v. Johnson, 1997 ND 235, ¶ 13, 571 N.W.2d 372 (quoting Woehlhoff v. State, 531 N.W.2d 566, 567 (N.D. 1995)); compare Wilson v. State, 1999 ND 222, ¶ 12, 603 ......
  • Owens v. State
    • United States
    • North Dakota Supreme Court
    • May 20, 1998
    ...relief by raising contentions in a subsequent application which are "simply variations" of previous arguments. State v. Johnson, 1997 ND 235, p 13, 571 N.W.2d 372; Woehlhoff, 531 N.W.2d at ¶42 The State in this case raised res judicata and misuse of process as affirmative defenses, and the ......
  • Garcia v. State
    • United States
    • North Dakota Supreme Court
    • April 13, 2004
    ...raising issues that could have been raised in an earlier proceeding." Silvesan v. State, 1999 ND 62, ¶ 10, 591 N.W.2d 131(quoting State v. Johnson, 1997 ND 235, ¶ 12, 571 N.W.2d 372); see also Murchison v. State, 2003 ND 38, ¶ 13, 658 N.W.2d 320 (holding that defendant could not raise ineff......
  • Request a trial to view additional results

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