State v. Rudolph, Cr. N

• Decision Date: 10 November 1977
• Docket Number: Cr. N
• Parties: STATE of North Dakota, Plaintiff-Appellee, v. Larry LeRoy RUDOLPH, Defendant-Appellant (two cases). os. 585, 586.
• Court: North Dakota Supreme Court

Page 13

260 N.W.2d 13

STATE of North Dakota, Plaintiff-Appellee, v. Larry LeRoy RUDOLPH, Defendant-Appellant (two cases).

Cr. Nos. 585, 586.

Supreme Court of North Dakota.

Nov. 10, 1977.

Burt L. Riskedahl, Bismarck, for appellant.

Charles J. Gilje, State's Atty., and Georgia M. Pope, Sp. Asst. State's Atty., Jamestown, for appellee; argued by Georgia M. Pope, Sp. Asst. State's Atty., Jamestown.

PAULSON, Justice.

This is an appeal by the defendant, Larry LeRoy Rudolph (hereinafter Rudolph), from the two judgments of conviction entered on February 8, 1977, by the Stutsman County District Court, upon jury verdicts finding Rudolph guilty of four separate class C felonies.

During September of 1976, the State of North Dakota filed two criminal complaints against Rudolph charging him with the following four separate counts of class C felonies: (1) burglary of the Spirit Inn at Spiritwood Lake, on June 22, 1976, in violation of § 12.1-22-02 of the North Dakota Century Code; (2) burglary of the Fosholdt Grocery Store, on August 17, 1976, in violation of § 12.1-22-02, N.D.C.C.; (3) theft of an automobile, on August 17, 1976, in violation of § 12.1-23-02, N.D.C.C.; and (4) theft of a citizens' band radio, on August 9, 1976, in violation of § 12.1-23-02, N.D.C.C.

On January 17, 1977, a jury trial was commenced in the Stutsman County District Court, and on January 18, 1977, the jury returned its verdicts, finding Rudolph guilty of all four offenses.

On February 8, 1977, the trial court sentenced Rudolph to five years' imprisonment in the North Dakota State Penitentiary on his conviction for theft of the automobile. The trial court also sentenced Rudolph to one five-year term of imprisonment on his convictions for the theft of the CB radio, the burglary of the Spirit Inn, and the burglary of the Fosholdt Grocery Store, which five-year sentence was to run consecutively to the five-year sentence on the conviction for theft of the automobile. At the time of sentencing, Rudolph was serving a one-year prison sentence on a prior conviction, and the trial court imposed the 10-year term to run concurrently with that prior one-year sentence. The trial court, by its imposition of the two consecutive five-year prison terms, sentenced Rudolph to a total of ten years' imprisonment on the four class C felony convictions.

Rudolph raises the following two issues on this appeal:

(1) Whether subsection 2 of § 12.1-32-11, N.D.C.C., prohibits the court from imposing more than a five-year sentence in the instant case.

(2) Whether the trial court abused its discretion when it sentenced Rudolph to ten years' imprisonment.

Subsection 3 of § 12.1-32-01, N.D.C.C., provides that a maximum penalty of five years' imprisonment, a fine of five thousand dollars, or both, may be imposed upon anyone convicted of a class C felony. At the time that Rudolph was sentenced, on February 8, 1977, subsection 2 of § 12.1-32-11, N.D.C.C., was in effect ¹ and provided as follows "12.1-32-11. Merger of sentences Sentencing for multiple offenses.-

"2. If sentences for multiple offenses are imposed to run consecutively, the aggregate total term of imprisonment resulting from such consecutive sentences shall not exceed the maximum term allowable under section 12.1-32-08 for the highest classification of offense for which the defendant is being sentenced." (Emphasis added.)

This subsection was intended to place a limitation on the aggregate maximum sentence which could be imposed for multiple offenses. Unfortunately, this subsection erroneously makes reference to § 12.1-32-08, N.D.C.C., which deals with hearings prior to imposing restitution or reparation but does not deal with maximum sentences allowable for various classifications of offenses. In view of the legislative history of the bill containing subsection 2 of § 12.1-32-11, N.D.C.C., it is obvious that subsection 2 thereof was intended to make reference to § 12.1-32-09, N.D.C.C., rather than to § 12.1-32-08, N.D.C.C. ² The error is the result of altered numbering in the final bill as introduced in the 1973 Legislature, coupled with a retention of the referencing number from previous drafts of the bill (Senate Bill No. 2045, 43d Legislative Assembly). If we construe subsection 2 of § 12.1-32-11, N.D.C.C., with the intended reference to § 12.1-32-09, N.D.C.C., that subsection limits the sentence of imprisonment for multiple offenses to ten years where the highest classification of offense is a class C felony.

Rudolph asserts that the erroneous reference to § 12.1-32-08, N.D.C.C., within subsection 2 of § 12.1-32-11, N.D.C.C., renders that subsection ambiguous and invalid. Rudolph further asserts that the maximum imprisonment the trial judge was therefore authorized to impose for the four class C felony convictions was a total of five years. We agree with Rudolph's assertion that subsection 2 of § 12.1-32-11, N.D.C.C., was ambiguous, but we disagree with his assertion that the trial judge was limited to the imposition of a five-year prison sentence.

Assuming, arguendo, that subsection 2 of § 12.1-32-11, N.D.C.C., was invalid on the grounds of vagueness and ambiguity, the trial judge could have sentenced Rudolph to a maximum total of twenty years' imprisonment on the four class C felony convictions pursuant to subsection 3 of § 12.1-32-01, N.D.C.C. On the other hand, if we assume, arguendo, that subsection 2 of § 12.1-32-11, N.D.C.C., can be upheld as being unambiguous by inserting the proper reference therein of § 12.1-32-09, N.D.C.C., in light of the legislative history of the bill (Senate Bill No. 2045, 43d Legislative Assembly), ³ then the trial judge was authorized to sentence Rudolph only to a maximum total of ten years' imprisonment on the four class C felony convictions. Since the trial court did in fact sentence Rudolph to a total of only ten years' imprisonment, it is unnecessary for this court to determine whether subsection 2 of § 12.1-32-11, N.D.C.C., was valid or whether that subsection was vague and ambiguous, and, thus, invalid. Under either conclusion, the trial judge acted within the statutory limits when he imposed an aggregate ten-year prison sentence upon Rudolph. Accordingly, we hold that the sentence imposed upon Rudolph on the four class C felony convictions was within the statutory limits.

Rudolph also raises the issue, on appeal, whether the trial judge abused his discretion when he sentenced Rudolph to ten years' imprisonment.

The trial court is empowered to impose sentences in criminal cases pursuant to Rule 32(a) of the North Dakota Rules of Criminal Procedure and to Chapter 12.1-32, N.D.C.C. The trial court has wide discretion in determining the length of sentences imposed. State v. Smith, 238 N.W.2d 662 (N.D.1976); State v. Ankney, 195 N.W.2d 547 (N.D.1972). In the absence of a statute to the contrary, it is also within the trial court's discretion to determine whether the sentence should run concurrently or consecutively with another sentence. State v. Flemmer, 211 N.W.2d 189 (N.D.1973). The trial court's imposition of sentence will not be set aside for abuse of discretion unless: (1) the sentence imposed exceeds the statutory limits (State v. Joern, 249 N.W.2d 921 (N.D.1977); Waltman v. Austin, 142 N.W.2d 517 (N.D.1966); State v. Jochim, 55 N.D. 313, 213 N.W. 484 (1927); State v. Wisnewski, 13 N.D. 649, 102 N.W. 883 (1905)); or (2) the trial judge substantially relied upon an impermissible factor in determining the severity of the sentence to be imposed (State v. Smith, 238 N.W.2d 662 (N.D.1976)).

In the instant case, the trial judge filed a written statement, pursuant to subsection 5 of § 12.1-32-02, N.D.C.C., setting forth the reasons he imposed the two consecutive five-year prison terms, as follows:

"STATEMENT OF REASONS FOR SENTENCE OF IMPRISONMENT

"3. The defendant did not act under strong provocation.

"4. There were no substantial grounds which tended to excuse or justify the defendant's conduct.

"5. The...