State v. Kunkel, Cr. N

• Court: North Dakota Supreme Court
• Writing for the Court: VANDE WALLE; MESCHKE; VERNON R. PEDERSON, Surrogate Judge, sitting in place of ERICKSTAD
• Citation: 455 N.W.2d 213
• Docket Number: Cr. N
• Decision Date: 25 April 1990
• Parties: The STATE of North Dakota, Plaintiff and Appellee, v. Werner KUNKEL, Defendant and Appellant. os. 890292, 890293.

Page 213

455 N.W.2d 213 The STATE of North Dakota, Plaintiff and Appellee,
v.
Werner KUNKEL, Defendant and Appellant. Cr. Nos. 890292, 890293. Supreme Court of North Dakota. April 25, 1990.

Lewis C. Jorgenson, State's Atty., Devils Lake, for plaintiff and appellee; submitted on brief.

Thomas L. Trenbeath of Fleming, DuBois & Trenbeath, Cavalier, for defendant and appellant.

VANDE WALLE, Justice.

Werner Kunkel appealed from an order of the county court for Ramsey County which revoked two sentences to probation that Kunkel was serving and imposed sentences of imprisonment at the State Farm. We reverse.

Werner Kunkel was placed on probation by the Ramsey County Court for the offenses of menacing, a class A misdemeanor, and possession of an imitation controlled substance, a class B misdemeanor. See NDCC Secs. 12.1-17-05 and 19-03.2-03(3). The court's only condition of probation required Kunkel to commit no criminal offenses during the period of probation. This condition was imposed orally by the court at the time of Kunkel's sentencing. In response to a question from the court, Kunkel stated that he understood the condition. The court's condition of probation was not placed in writing in the criminal judgment or in a "certificate" of probation. See NDCC Sec. 12.1-32-07(3).

During the subsequent period of probation, Kunkel was convicted by a jury in Ramsey County Court for driving under suspension [hereinafter DUS]. See NDCC Sec. 39-06-42. Kunkel also entered a conditional plea of guilty under Rule 11(a)(2), NDRCrimP, in the Ramsey County District Court for the offense of accomplice to possession of a controlled substance with intent to deliver [hereinafter Accomplice]. See NDCC Secs. 12.1-03-01 and 19-03.1-23. Kunkel eventually appealed the DUS and Accomplice convictions to this Court.

Subsequent to the appeals from the convictions, the county court for Ramsey County ordered a probation revocation hearing based upon Kunkel's violation of its earlier condition of probation. The Ramsey County State's Attorney did not

Page 214

appear at the revocation hearing because he had reached an agreement with Kunkel's counsel to refrain from seeking revocation until the determination of the DUS and Accomplice appeals to this Court.

During the revocation hearing, the county court took judicial notice of DUS and Accomplice convictions against Kunkel. In response, Kunkel argued that the condition attached to his previous sentences to probation, i.e., that he commit no criminal offenses during his probation period, was improper because the condition was not set forth in writing. See NDCC Sec. 12.1-32-07(3). Moreover, Kunkel argued that it was error for the trial court to take judicial notice of his subsequent convictions and thereby act, in essence, as both prosecutor and judge. The county court rejected Kunkel's arguments, revoked his two prior sentences to probation, and ordered Kunkel committed to the State Farm.

On appeal, Kunkel contends that his probation sentences were invalid because the probation condition imposed by the court, that Kunkel commit no further criminal offenses, was not in writing. Kunkel also argues that it was error for the county court to take judicial notice of his subsequent convictions at the revocation hearing.

We recently reversed and remanded Kunkel's DUS and Accomplice convictions for new trials. See State v. Kunkel, 452 N.W.2d 337 (N.D.1990); State v. Kunkel, 455 N.W.2d 208 (N.D.1990). If a probation revocation is based upon a conviction which is subsequently reversed, the probation revocation must also be reversed. Oksoktaruk v. State, 619 P.2d 480 (Alaska 1980). See also 3 LaFave Criminal Procedure, Sec. 25.4 (1984). Because we reversed the convictions that were the grounds for Kunkel's probation revocation, the probation revocation must also be reversed.

Although our subsequent reversal and remand of Kunkel's convictions are dispositive of this case, we nevertheless consider Kunkel's first issue, whether or not the sentences to probation were invalid, because the issue is likely to reoccur if Kunkel is again...