State v. Peterson

Decision Date04 October 2016
Docket NumberNo. 20160070.,20160070.
Citation886 N.W.2d 71
Parties STATE of North Dakota, Plaintiff and Appellee v. Joshua Michael PETERSON, Defendant and Appellant.
CourtNorth Dakota Supreme Court

Marie A. Miller, Assistant State's Attorney, Ward County Assistant State's Attorney, Minot, ND, for plaintiff and appellee.

Scott O. Diamond, Fargo, ND, for defendant and appellant.

KAPSNER

, Justice.

[¶ 1] Joshua Peterson pled guilty to class B felony burglary. Judgment was entered in which Peterson was sentenced to ten years imprisonment with five years suspended. Subsequently, the State moved the district court to correct the judgment. Peterson appeals from an amended criminal judgment entered after the district court granted the State's motion. We conclude the district court did not err when it amended the judgment to reflect the eighty-five percent service requirement under N.D.C.C. § 12.1–32–09.1

applied to Peterson's sentence. We affirm the amended judgment.

I

[¶ 2] On April 30, 2015, Peterson was charged with burglary by criminal complaint. The criminal complaint stated Peterson was charged with burglary in violation of N.D.C.C. §§ 12.1–22–02

, 12.1–22–02(2)(b), and 12.1–32–01. At the June 10, 2015 change of plea hearing, the district court initially asked Peterson for his plea for a charge of class C felony burglary. Peterson responded and pled guilty. Peterson's counsel pointed out the burglary charge was set for a preliminary hearing that day and stated Peterson waived the hearing and the reading of his rights. Peterson then personally waived the preliminary hearing on the burglary charge. The State clarified the burglary charge was a class B felony because of the aggravating factors of the immediate flight and the intent to inflict bodily injury on an officer. The district court asked Peterson whether he intended to persist with his plea of guilty. After some discussion with his attorney off the record, Peterson agreed to persist in his guilty plea. The district court then asked Peterson whether he wanted the information read to him. Peterson waived the reading of the information.

The district court then inquired whether Peterson would waive any irregularities with the proceeding because the district court initially took the plea prior to Peterson waiving his right of a preliminary hearing and the filing of an information. Peterson agreed to waive any irregularities with the proceeding.

[¶ 3] The district court made oral findings that the plea was entered knowingly, voluntarily, and intelligently and then asked for a factual basis for the guilty plea. The State gave a factual basis that indicated the defendant was seen in a vehicle outside the burglarized business and ordered to stop by an investigating officer. The defendant drove away in a manner that appeared an attempt to strike the ordering officer. Peterson's counsel responded to the State's assertions:

Your Honor, just in regard to the vehicle. He was fleeing the scene. He wasn't directing anything at an officer, but he was fleeing the scene in his vehicle. And his vehicle was eventually brought to a halt.

Peterson agreed with his attorney's statement. The court found there was a sufficient factual basis for the guilty plea and sentenced Peterson to ten years in prison with five years suspended and credit for 41 days served. The court entered a criminal judgment on June 11, 2015. The judgment listed the statute as “12.1–22–02 and under the “Degree” column was listed “Felony B.”

[¶ 4] On September 29, 2015, the State filed a Motion to Correct Judgment under N.D.R.Crim.P. 35(a)(2)

. The State's motion moved the criminal judgment be amended to reflect Peterson's guilty plea to N.D.C.C. § 12.1–22–02(2)(b). The State argued the change was necessary because of “technical or other clear error.” The State noted the Department of Correction's policy required either specific reference to N.D.C.C. § 12.1–22–02(2)(b) or some other indication that the eighty-five percent service requirement of N.D.C.C. § 12.1–32–09.1 applied to Peterson's sentence to appear on the criminal judgment before the Department would apply the eighty-five percent service requirement to a sentence.

[¶ 5] The district court held a hearing on the motion at which Peterson represented himself. The court asked Peterson whether he chose to appear self-represented. Peterson responded affirmatively. The State indicated the criminal judgment had a “clerical error” that needed to be corrected because only the general statute for burglary was listed. The State referred to the transcript of the change of plea hearing and argued it was clear Peterson pled guilty to N.D.C.C. § 12.1–22–02(2)(b)

. The court asked Peterson if he had read the transcript. When Peterson responded that he had not, the court told him a printed copy would be provided for his review. The court then orally reviewed a portion of the transcript from the change of plea hearing. Peterson pointed to the portion of the transcript where he and his counsel disputed the presence of the aggravating factors and argued that the court should change the charge to a class C felony. The court explained there was only a limited motion before the court, and if Peterson was going to make a motion, he would need to do it within the applicable timeline. The court asked the State whether the criminal judgment should be amended or corrected. The State responded, [c]orrected. The clerical error in the criminal judgment should be corrected at this time.” The court gave Peterson an opportunity to speak one last time. Peterson again argued he had no violent intent.

[¶ 6] After the hearing, the district court entered an order stating the judgment would be amended “to reflect the appropriate Statute for the charge of Burglary, N.D.C.C. § 12.1–22–02(2)(b)

and that the requirements of 12.1–32–09.1 apply.” The district court entered an amended criminal judgment on February 16, 2016 that stated the eighty-five percent service requirement applied to Peterson. The statute referenced was not changed to include the specific subsection and subdivision as contemplated by the order directing the amended criminal judgment. The only change made was the addition of “85% Rule—Ward” under the heading of “Order of the Court and Conditions.” Under “Comment” in the same section, it states, “N.D.C.C. 12.1–32–09.1 applies in this situation, such that the Defendant will not be eligible for release from incarceration on any basis until eighty-five percent (85%) of the sentence imposed by the Court has been served or the sentence is commuted.” Peterson filed a notice of appeal on February 19, 2016.

II

[¶ 7] On appeal, Peterson argues the district court erred when it amended the criminal judgment because the change to the judgment resulted in an increase in Peterson's sentence. Peterson contends the district court's actions were prohibited by Rule 35, N.D.R.Crim.P

. and violated Peterson's constitutional protections against double jeopardy.

[¶ 8] Under either theory, the critical issue is whether the amended judgment resulted in an increase in Peterson's sentence. This Court's case law and N.D.R.Crim.P. 35

do not permit district courts to order a sentence, then later increase the sentence.” State v. Kaseman, 2008 ND 196, ¶ 11, 756 N.W.2d 923. “The distinction that the court during the same term may amend a sentence ... but not so as to increase it, is not based upon the ground that the court has lost control of the judgment in the latter case, but upon the ground that to increase the penalty is to subject the defendant to double punishment for the same offense in violation of the Fifth Amendment to the [United States] Constitution, which provides that no person shall be subject for the same offense to be twice put in jeopardy of life or limb.” United States v. Benz, 282 U.S. 304, 307, 51 S.Ct. 113, 75 L.Ed. 354 (1931). The district court's decision to amend a judgment is subject to sound judgment and will not be reversed on appeal unless there is an abuse of discretion. State v. Rueb, 249 N.W.2d 506, 511–12 (N.D.1976). “A district court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, if its decision is not the product of a rational mental process leading to a reasoned determination, or if it misinterprets or misapplies the law.” State v. Moos, 2008 ND 228, ¶ 30, 758 N.W.2d 674. “The standard of review for constitutional issues is de novo.” State v. Loughead, 2007 ND 16, ¶ 7, 726 N.W.2d 859.

[¶ 9] The district court amended Peterson's criminal judgment to indicate the applicability of N.D.C.C. § 12.1–32–09.1

to his sentence. Section 12.1–32–09.1, N.D.C.C., also known as the “85% Rule,” imposes an eighty-five percent service requirement on those convicted of an offense listed in the statute and sentenced to imprisonment. Section 12.1–32–09.1, N.D.C.C., provides:

1. Except as provided under section 12–48.1–02 and pursuant to rules adopted by the department of corrections and rehabilitation, an offender who is convicted of a crime in violation of section 12.1–16–01

, 12.1–16–02, subsection 2 of section 12.1–17–02, section 12.1–18–01, subdivision a of subsection 1 or

subdivision b of subsection 2 of section 12.1–20–03

, section 12.1–22–01, subdivision b of subsection 2 of section 12.1–22–02, or an attempt to commit the offenses, and who receives a sentence of imprisonment is not eligible for release from confinement on any basis until eighty-five percent of the sentence imposed by the court has been served or the sentence is commuted.

[¶ 10] Peterson argues the district court's inclusion of language referring to the “85% Rule” resulted in an increase in sentence because the amended judgment contained a condition not present in the original criminal judgment. This Court has held the eighty-five percent service requirement of N.D.C.C. § 12.1–32–09.1

is a parole condition. State v. Raulston, 2005 ND 212, ¶ 12, 707 N.W.2d 464. “Although a district court may inform a defendant of the ...

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