State v. Salveson
| Decision Date | 27 July 2006 |
| Docket Number | No. 20060016.,No. 20060015.,20060015.,20060016. |
| Citation | 2006 ND 169,719 N.W.2d 747 |
| Parties | STATE of North Dakota, Plaintiff and Appellee v. Sharol Kaye SALVESON, Defendant and Appellant. |
| Court | North Dakota Supreme Court |
Tom P. Slorby, Minot, ND, for defendant and appellant.
Rozanna C. Larson, Assistant State's Attorney, Minot, ND, for defendant and appellee.
[¶ 1] Sharol Salveson appeals from criminal judgments entered following her pleas of guilty to driving under the influence and aggravated reckless driving, both class A misdemeanors. She was sentenced to two consecutive one-year sentences with three months suspended. On appeal, she argues she received an illegal sentence. We conclude Salveson's convictions for driving under the influence and aggravated reckless driving involve substantially different criminal objectives and the trial court was within its discretion imposing two consecutive one-year sentences. We affirm.
[¶ 2] On April 3, 2005, Salveson was charged with driving under the influence and aggravated reckless driving, both class A misdemeanors, and driving while license privileges were under suspension or revocation, a class B misdemeanor. Previously, Salveson had been convicted of driving under the influence on December 26, 2001 and July 23, 2004. The current charges arose while Salveson was driving with a blood-alcohol level of .26%. While driving drunk, Salveson hit two children who were walking their bicycles down a county road. One, a fifteen-year-old boy, suffered extensive injuries from the accident. His leg was left in a mangled state. His mother testified the boy was currently confined to a wheelchair. The child's family incurred over $43,000.00 in medical expenses.
[¶ 3] Salveson attempted to negotiate a plea bargain with the State that would limit her jail time to between six and nine months. The district court rejected the recommended sentences. On December 13, 2005, Salveson pled guilty to aggravated reckless driving and driving under the influence. The State dismissed a charge of driving with a suspended license. The case proceeded to sentencing. The district court reviewed the sentencing factors found in N.D.C.C. § 12.1-32-04, concluding several factors weighed heavily in favor of a lengthy sentence. The court sentenced Salveson to twelve months incarceration and ordered her to pay $43,796.77 in restitution for the aggravated reckless driving charge. Following that sentence, Salveson was sentenced to another twelve months, with three months suspended, for the driving under the influence charge. The two sentences were to run consecutively meaning Salveson was to be incarcerated for two years, with three months suspended. Salveson appeals her sentence arguing a two-year sentence following a DUI and aggravated reckless driving conviction constitutes an illegal sentence.
[¶ 4] A trial court is allowed the widest range of discretion in criminal sentencing. State v. McClean, 1998 ND 21, ¶ 4, 575 N.W.2d 200. Within this discretion, a trial court has the authority to determine whether a sentence should run concurrent with or consecutive to another sentence. State v. Ulmer, 1999 ND 245, ¶ 4, 603 N.W.2d 865. This discretion is limited by statute when imposing consecutive sentences for multiple misdemeanor convictions:
When sentenced only for misdemeanors, a defendant may not be consecutively sentenced to more than one year, except that a defendant being sentenced for two or more class A misdemeanors may be subject to an aggregate maximum not exceeding that authorized by section 12.1-32-01 for a class C felony if each class A misdemeanor was committed as part of a different course of conduct or each involved a substantially different criminal objective.
N.D.C.C. § 12.1-32-11(3).
[¶ 5] This statute authorized the district court to sentence Salveson to consecutive terms of incarceration for two class A misdemeanor convictions if each misdemeanor was committed "as part of a different course of conduct" or if each misdemeanor "involved a substantially different criminal objective." N.D.C.C. § 12.1-32-11(3). Salveson's two crimes were a part of the same course of conduct. However, the district court concluded the crimes of aggravated reckless driving and DUI involved different criminal objectives. In making this determination, the district court relied on this Court's interpretation of "substantially different criminal objectives" in Ulmer, 1999 ND 245, ¶ 10, 603 N.W.2d 865.
[¶ 6] Exactly what the legislature meant when it included the phrase "criminal objective" in the statute is ambiguous. We concluded such in Ulmer, where we reviewed the relevant legislative history leading up to the enactment of N.D.C.C. § 12.1-32-11(3). Ulmer, at ¶¶ 9-10. From our review of the relevant legislative history, a unanimous court held:
under N.D.C.C. § 12.1-32-11(3), multiple class A misdemeanor offenses may be deemed by the sentencing court to involve substantially different criminal objectives if they do not fall under one of the following three categories: (1) one offense is an included offense of the other; (2) one offense consists of a conspiracy, attempt, solicitation, or other form of preparation to commit, or facilitation of, the other; or (3) the offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.
Ulmer, at ¶ 10. In Ulmer, we concluded the crimes of driving with a suspended license and driving while under the influence constituted two crimes with substantially different criminal objectives. Id. at ¶ 7. The same analysis from Ulmer applies in this case.
[¶ 7] As in Ulmer, we look to the elements of the crimes to determine whether they invoke separate criminal objectives. The essential elements of DUI are driving a motor vehicle on a public way while under the influence of intoxicating liquor. Ulmer, at ¶ 7. The essential elements of aggravated reckless driving are driving with reckless disregard for the safety of others or driving without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or the property of another, and inflicting injury upon the person of another. N.D.C.C. § 39-08-03. Each offense involves separate and distinct violations of the law and separate criminal objectives the legislature sought to proscribe. To conclude otherwise would mean the separate act of inflicting injury upon pedestrians while driving recklessly is without consequence.
[¶ 8] The crimes of DUI and aggravated reckless driving do not relate to each other under any of the three categories announced in Ulmer. This is not a case of an included offense such as being charged for reckless driving and aggravated reckless driving for the same conduct. This is not a case of being charged with a crime and an inchoate version of the crime such as conspiracy, attempt, or other form of preparation to commit the crime. Nor is this a case that prohibits generally the same conduct prohibited specifically by the other. None of the three categories announced in Ulmer apply in this case.
[¶ 9] Aggravated reckless driving requires a separate act of inflicting "injury upon the person of another." N.D.C.C. § 39-08-03. Salveson's separate act of hitting two pedestrians, mutilating the leg of one of them, is more than merely reckless drunk driving. The act of inflicting injury constitutes a separate and distinct act to support the aggravated reckless driving charge. This separate act evidences a new "substantially different criminal objective." N.D.C.C. § 12.1-32-11(3). Therefore, N.D.C.C. § 12.1-32-11(3) did not limit the district court's discretion to sentence Salveson to only one year. The district court did not abuse its discretion in sentencing Salveson to two consecutive one-year sentences with three months suspended for committing two class A misdemeanors.
[¶ 10] We conclude the definition of "substantially different criminal objectives" announced in State v. Ulmer, 1999 ND 245, ¶ 10, 603 N.W.2d 865, is controlling in this case. Applying that definition, we conclude the crimes of DUI and aggravated reckless driving constitute substantially different criminal objectives. We affirm.
[¶ 11] GERALD W. VANDE WALLE, C.J., and DANIEL J. CROTHERS, J., concur.
[¶ 12] I respectfully dissent. I believe the majority is too invested in its own opinion in State v. Ulmer, 1999 ND 245, 603 N.W.2d 865, to recognize that, although achieving the correct result, a portion of our decision in that case is directly contrary to the legislative history behind N.D.C.C. § 12.1-32-11(3). Legislative history that, by our own admission in Ulmer, we sought to honor. 1999 ND 245, ¶¶ 9-10, 603 N.W.2d 865. Nevertheless, the majority grasps, in the name of "precedent," to retain a contradictory test completely divorced from the legislative history surrounding the language of the statute being interpreted. Because I believe consecutive sentencing in a case such as this is precisely what the drafters of N.D.C.C. § 12.1-32-11(3) intended to avoid, I would reverse and remand for resentencing.1
[¶ 13] Section 12.1-32-11(3), N.D.C.C., limits the power of a trial court to impose consecutive sentences for multiple misdemeanors in certain cases.
When sentenced only for misdemeanors, a defendant may not be consecutively sentenced to more than one year, except that a defendant being sentenced for two or more class A misdemeanors may be subject to an aggregate maximum not exceeding that authorized by section 12.1-32-01 for a class C felony if each class A misdemeanor was committed as part of a different course of conduct or each involved a substantially different criminal objective.
N.D.C.C. § 12.1-32-11(3). The statute allows a trial court to impose consecutive sentences for multiple class A misdemeanors if they each involve substantially...
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...a trial court's authority to decide whether a sentence should run concurrently or consecutively. State v. Salveson, 2006 ND 169, ¶ 4, 719 N.W.2d 747. Nelson's sentence was within the statutory parameters and this Court exercises a limited review of the discretion of the sentencing court whe......
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...we have not defined course of conduct, we have acknowledged that a defendant's crimes were a part of the same course of conduct. In State v. Salveson, we concluded that the defendant's crimes of driving under the influence and aggravated reckless driving were a part of the same course of co......
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State v. Gonzalez, 20110051.
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