State v. Neilan
| Citation | 967 N.W.2d 765 |
| Decision Date | 09 December 2021 |
| Docket Number | No. 20210065,20210065 |
| Parties | STATE of North Dakota, Plaintiff and Appellant v. Bradley M. NEILAN, Defendant and Appellee |
| Court | United States State Supreme Court of North Dakota |
Mindy L. Anderson (argued), Assistant State's Attorney, Dennis H. Ingold (on brief), Assistant State's Attorney, and Jamie Schaible (on brief), third-year law student, under the Rule on Limited Practice of Law by Law Students, Bismarck, ND, for plaintiff and appellant.
Philip Becher (argued) and Elisabeth E. Hewett (appeared), Minot, ND, for defendant and appellee.
[¶1] The State of North Dakota appeals from an amended judgment entered after the district court modified Bradley Neilan's sentence under North Dakota Rule of Criminal Procedure 35(b). The State argues the court was precluded from modifying a sentence imposed pursuant to a plea agreement or, in the alternative, the court abused its discretion by modifying the sentence. Neilan challenges the State's right to appeal. We conclude the court's reduction of Neilan's sentence is appealable, the plain language of N.D.R.Crim.P. 35(b) provides the court with the authority to exercise its discretion in reducing a sentence, and, in this case, the court abused its discretion in reducing Neilan's sentence. However, as mandated by N.D.C.C. § 29-28-35, our opinion is limited to affirming the sentence imposed by the court and pointing out the error in the proceeding. We accordingly affirm the amended judgment.
[¶2] In 2019, Neilan was arrested for possession of marijuana with the intent to deliver. On February 9, 2021, the parties appeared at a change of plea hearing. At the hearing, the State detailed a plea agreement in which it dropped the firearm enhancements from Neilan's charges, removing the mandatory minimum sentences. The plea agreement provided that Neilan would be incarcerated for four years with all but 18 months suspended.
[¶3] At the hearing, in response to the district court inquiry as to why the State was seeking incarceration rather than probation, the State indicated that if the plea agreement was rejected the State would withdraw the proposed amendments and pursue the mandatory minimum sentencing. Neilan confirmed his preference to accept the plea agreement. The court, noting the State was giving it "zero option," accepted the agreement and stated it would sentence Neilan to its terms.
[¶4] On February 10, 2021, the day following the district court accepting the plea agreement, the court signed and entered a judgment consistent with the terms of the plea agreement. Later that day, the court initiated its own N.D.R.Crim.P. 35(b) motion to consider reducing the sentence from incarceration to probation. The court directed the parties to file their respective responses within a day.
[¶5] Both parties filed a response to the district court's motion. The State argued against the reduction, asserting that since the sentence was imposed pursuant to a plea agreement under N.D.R.Crim.P. 11(c)(1)(C), the court could only accept or reject the plea, and using N.D.R.Crim.P. 35(b) to circumvent that requirement would render Rule 11 meaningless. Neilan acknowledged that he had accepted the plea agreement, but nonetheless argued in favor of the reduction, urging the sentencing factors favored such a reduction.
[¶6] On February 12, 2021, the district court entered the N.D.R.Crim.P. 35(b) order and reduced Neilan's sentence from a term of incarceration to probation. The court found the following factors weighed in favor of granting the Rule 35(b) reduction of sentence: Neilan's age, his criminal history of only a minor offense, no bond violations in fifteen months, his employment while on bond, a medical issue (asthma ) which places him at a high risk of complication if he contracts COVID-19, no victims to the crime, no risk to the public, the convictions were for marijuana and THC, consistency in the criminal justice system, no need for dependency treatment, he can be rehabilitated, the conduct is unlikely to recur, and he took responsibility for his actions. The court's order indicated the only information not previously considered by the court in imposing the original sentence was the medical issue which places Neilan at a high risk of complication if he contracts COVID-19. The State appealed.
[¶7] Neilan challenges the State's right to appeal the order granting a reduction in his sentence. Neilan argues the State does not have standing to appeal because the case does not affect a substantial right of the State as provided under N.D.C.C. § 29-28-07(4). The State argues this issue affects its substantial right to receive the benefit of its bargain in plea agreements.
[¶8] The State's right to appeal is statutory. State v. M.J.W. , 2020 ND 183, ¶ 5, 947 N.W.2d 906. Section 29-28-07, N.D.C.C., sets forth when the State may appeal. Subsections (1)–(3) and (5) relate to the State's ability to appeal with the quashing of an indictment, an order granting a new trial, an order arresting judgment, or an order granting the return of property or suppressing evidence, and are not applicable in this case. Under N.D.C.C. § 29-28-07(4), the State may appeal from "[a]n order made after judgment affecting any substantial right of the state."
[¶9] Neilan argues the State's right to appeal is limited by State v. Rueb , 249 N.W.2d 506 (N.D. 1976) and State v. Jefferson Park Books, Inc. , 314 N.W.2d 73 (N.D. 1981). In Rueb , the defendant moved for a reduction of sentence under N.D.R.Crim.P. 35. 249 N.W.2d at 507. The State did not receive notice of the motion. Id. at 508. The district court modified the sentence. Id. at 507-08. This Court held the State must be given notice of the hearing on the motion for reduction in sentence, whether the proceeding is initiated at the defendant's request or sua sponte by the court. Id. at 510-11. The district court, when reducing a sentence, must also give reasons for the reduction. Id. at 511. As to the reduction itself, this Court held "[t]he modification order of the court is an order made after judgment and the total effect of the order involves a substantial right of the State." Id. at 508.
[¶10] In Jefferson Park Books , this Court was again confronted with a N.D.R.Crim.P. 35 right to appellate review issue. 314 N.W.2d at 75. The defendant moved for a N.D.R.Crim.P. 35 reduction of sentence. Id. The district court denied the motion, and the defendant appealed. Id. In contrasting from Rueb , this Court determined Rueb dealt with the procedure of the hearing rather than the validity of the sentence, while Jefferson Park Books dealt with the validity of the sentence itself. Id. at 76. This Court held that the defendant in Jefferson Park Books was properly given the opportunity to be heard and was heard; therefore, no substantial right of the defendant was affected as the defendant only has the right to apply for the reduction, but the determination of whether to reduce the sentence is left to the discretion of the district court. Id. [¶11] Subsequent to our decision in Jefferson Park Books , we have confirmed that a defendant may not appeal the denial of a N.D.R.Crim.P. 35(b) motion. State v. Gunwall , 522 N.W.2d 183, 184-85 (N.D. 1994). Id. at n.1 (citing references omitted). See also State v. Trowbridge , 2011 ND 72, 799 N.W.2d 406 ().
[¶12] While Rueb focused on the procedure of the hearing to reduce a sentence, and Jefferson Park Books focused on the defendant's right to move for a reduction but not appeal the denial of reduction, Gunwall is dispositive of the issue in this case. The district court's reduction of a sentence under N.D.R.Crim.P. 35(b) affects a substantial right of the State as provided under N.D.C.C. § 29-28-07(4). Therefore, we conclude that when the district court orders a reduction in sentence under N.D.R.Crim.P. 35, the State may appeal. We accordingly exercise jurisdiction over this appeal.
[¶13] The State argues that the district court's acceptance of the plea agreement under N.D.R.Crim.P. 11 precluded the court from thereafter unilaterally reducing the sentence under N.D.R.Crim.P. 35. It argues that because Rule 11 provides only that the court may accept the plea, reject it, or defer a decision until reviewing the presentence report, using Rule 35 to circumvent that requirement renders Rule 11 meaningless. Neilan argues that the language of Rule 35(b) expressly allows the district court to take such action.
[¶14] The question of whether the district court can reduce a sentence under N.D.R.Crim.P. 35(b) is a question of law that we review de novo. Johnson v. Taliaferro , 2011 ND 34, ¶ 9, 793 N.W.2d 804 ; see also State v. Ebertz , 2010 ND 79, ¶ 8, 782 N.W.2d 350 ().
[¶15] Rule 35(b), N.D.R.Crim.P., reads as follows:
(Emphasis added.)
[¶16] Under the plain language of N.D.R.Crim.P. 35(b), a district court may grant a sentence reduction. It may do so on its own initiative, so long as there is notice to the parties. The rule explicitly provides that, "[c]hanging a sentence from a sentence of incarceration to...
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