State v. Vavrosky

• Decision Date: 27 June 1989
• Docket Number: Cr. N
• Parties: STATE of North Dakota, Plaintiff and Appellant, v. Thomas Keith VAVROSKY, Defendant and Appellee. o. 890037.
• Court: North Dakota Supreme Court

Page 433

442 N.W.2d 433

STATE of North Dakota, Plaintiff and Appellant, v. Thomas Keith VAVROSKY, Defendant and Appellee.

Cr. No. 890037.

Supreme Court of North Dakota.

June 27, 1989.

John T. Goff, Asst. State's Atty., Fargo, for plaintiff and appellant.

C. Charles Chinquist, Fargo, for defendant and appellee.

VANDE WALLE, Justice.

This is an appeal brought by the State from an order of the sentencing court granting defendant's motion to correct an illegal sentence. We reverse and remand.

On December 5, 1986, the defendant in this case, Thomas Keith Vavrosky, was arrested on a charge of forgery. He was released that same day after appearing in county court and posting bond. On January 6, 1987, Vavrosky pleaded guilty and was sentenced to two years at the North Dakota State Penitentiary. The sentencing court suspended the sentence and placed Vavrosky on supervised probation for two years.

Approximately a year later, Vavrosky was brought back before the court for probation violations. The court resentenced Vavrosky to serve two years at the State Penitentiary, suspending all but six months of the sentence. He was incarcerated pursuant to that sentence.

On December 29, 1988, another probation violation hearing took place and the sentencing court issued an order revoking probation and sentenced Vavrosky to serve 18 months in the North Dakota State Penitentiary commencing on that date. Vavrosky filed a motion pursuant to Rule 35, N.D.R.Crim.P., to correct an illegal sentence. He argued that Section 12-53-11, N.D.C.C., requires that the two-year suspended sentence "should have been considered as beginning upon December 5, 1986, with an exclusion of the 31 days that the Defendant was released on bond prior to his plea of guilty in sentencing on January 7 [sic ], 1987." The sentencing court granted the motion and the State appealed.

We consider first Vavrosky's argument that this case should be dismissed because the State may not appeal from an order granting a motion for correction of an illegal sentence.

The right to appeal is a statutory right. State v. Jefferson Park Books, Inc., 314 N.W.2d 73 (N.D.1981). Thus, if a statute does not authorize an appeal, none may be taken. Section 29-28-07(4), N.D.C.C., provides that the State may appeal from "[a]n order made after judgment affecting any substantial right of the state." We therefore confront the question of whether the order which declared Vavrosky's sentence illegal affected a substantial right of the State.

In State v. Rueb, 249 N.W.2d 506 (N.D.1976), this court held that an order issued by a sentencing court which reduced an earlier sentence imposed is an order that affects a substantial right of the State and is therefore appealable. In that case we were primarily concerned about compliance with procedures rather than the individual judgment of the trial judge. Likewise, in this case we are concerned about the correct procedure to be followed when a judge is faced with revoking an individual's probation. Because it is the procedure we are concerned with, as distinguished from the individual judgment of the trial judge, we hold that Section 29-28-07(4), N.D.C.C., authorizes this appeal.

On appeal, the State suggests that the sentencing court's ruling in effect was that under Section 12-53-11, N.D.C.C., the sentencing court had no authority upon terminating probation to impose a sentence that would extend beyond the original two-year sentence established by the original sentencing court. ¹ The State argues that "the language relied upon by the defendant and the trial court is intended simply to ensure a defendant receives full credit for all time spent in custody beginning upon the first day he was taken into custody and continuing through the date of final sentence upon revocation of probation. Section 12-53-11, N.D.C.C., has no limiting impact upon what sentence the court may impose upon revocation of probation." [Emphasis in original.] It is the State's position that, pursuant to State v. Jones, 418 N.W.2d 782 (N.D.1988), and State v. Miller, 418 N.W.2d 614 (N.D.1988), when probation has been terminated, a sentencing court may impose any sentence originally available.

At the hearing on the motion to correct an illegal sentence, the following colloquy took place:

"THE COURT: ... I think 12-53-11 is clear. It requires that we start his sentence on the 6th of January of 1987. I'm stuck with the two years....

. . . . .

"MR. GOFF [Assistant State's Attorney]: If the Court, as it did, imposed a two-year sentence and suspended it for two years in January of 1987 and we revoked the probation in December of '88, we only have a month to work with?

"THE COURT: That's it."

We interpret the sentencing court's holding to be that once the sentence commenced it kept running, notwithstanding the fact that Vavrosky was released on probation, and, as a result, the court had no authority to sentence Vavrosky to any term longer than that originally imposed.

Vavrosky's argument before the sentencing court, and ostensibly one of his arguments here, is that time he spent released on probation is time spent in "custody" under Section 12-53-11. He also argued before the sentencing court, and appears to argue here, that because he was placed in custody on December 5, 1986, and was sentenced to two years, his sentence had expired by the time the court issued its order revoking probation on December 29, 1988. ²

Section 12-53-11 provides in part that "[w]hen the probation has been terminated, the original sentence shall be considered as beginning upon the first day in custody as defined in subsection 2 of Section 12.1-32-02, but not to include any time spent while released on bond prior to trial." [Emphasis added.] Section 12.1-32-02(2) provides:

"Credit against any sentence to a term of imprisonment shall be given by the court to a defendant for all time spent in custody as a result of the criminal charge for which the sentence was imposed, or as a result of the conduct on which such charge was based. 'Time spent in custody' shall include time spent in custody in a jail or mental institution for the offense charged, whether that time is spent prior to trial, during trial, pending sentence, or pending appeal."

We note that "probation" is not included in the definition of "time spent in custody." Vavrosky's contention is that the language of Section 12-53-11 which provides that time spent in custody does "not include any time spent while released on bond prior to trial" suggests that probation is to be considered "time spent in custody." If that were the case, it would mean that a person who is sentenced to five years with five years suspended and placed on probation, but immediately absconds only to be apprehended six years later, will not have to serve any time in prison because his period of probation has run. The effect is that, as time passes, there is less and less of an incentive to abide by conditions of probation. But we construe statutes in such a way as to avoid ludicrous and absurd results, if at all possible. State v. Ronngren, 356 N.W.2d 903 (N.D.1984). In the absence of a specific statutory provision to the contrary, we thus hold that probation is not "time spent in custody" and therefore Vavrosky is not entitled to credit for time he was released on probation under Section 12-53-11. Compare State v. Jackson, 272 N.W.2d 102 (S.D.1978) [probation is not an alternative sentence and therefore upon revocation of probation the offender can be incarcerated for the full term of the sentence with credit given for time served in jail].

The State next argues that Section 12-53-11 does not limit the sentence a court may invoke after terminating probation.

Section 12-53-11 provides in part:

"The court, after a full investigation and a personal hearing, may revoke the suspension of the sentence of a person convicted of a felony and placed on probation and may terminate the probation and cause said person to suffer the penalty of the sentence previously imposed upon him, ... When probation has been terminated, the original sentence shall be considered as beginning upon the first day in custody as defined in subsection 2 of section 12.1-32-02, but not to include any time spent while released on bond prior to trial."

The State relies on State v. Jones, supra, and State v. Miller, supra, as authority for a sentencing court, upon terminating probation, to resentence an offender to any sentence originally available. ³ In Miller, 418 N.W.2d at 616, we stated that when an individual is given a suspended execution of sentence and placed on probation, Section 12.1-32-07(4), N.D.C.C., ⁴ authorizes the court to "resentence a defendant to any sentence initially available within the provisions of Sections 12.1-32-02 and 12.1-32-09 when it revokes the defendant's probation." Vavrosky argues that those cases have no application to this case because Section 12-53-11 is controlling. In support of his argument, Vavrosky asserts that Section 12-53-11 is more specific than Section 12.1-32-07(4) and that Section 12-53-11 was amended more recently than Section 12.1-32-07(4). While we agree with the legal principles of statutory interpretation he argues, we disagree with his application of those principles.

When construing a statute, "[c]onsideration must be given to the ordinary sense in which words are used, the context in which they are used, and the background for the statute as far as can be ascertained from the whole act." State v. Brandon, 413 N.W.2d 340, 343 (N.D.1987). The language of Section 12-53-11 was first enacted in 1909. 1909 N.D.Sess.Laws. Ch. 174, Sec. 7. Prior to its amendment in 1975, it provided that when probation was terminated and the defendant was ordered to serve the sentence previously imposed, the original sentence was to be considered as beginning upon the first day of imprisonment in the penitentiary. Compare 1963 N.D.Sess.Laws Ch. 124, Sec. 26, a...