State v. Wardner
| Decision Date | 18 December 2006 |
| Docket Number | No. 20060014.,20060014. |
| Citation | 725 N.W.2d 215,2006 ND 256 |
| Parties | STATE of North Dakota, Plaintiff and Appellee v. Brant WARDNER, Defendant and Appellant. |
| Court | North Dakota Supreme Court |
Ross L. Sundeen, State's Attorney, Watford City, N.D., for plaintiff and appellee; submitted on brief.
Paul H. Myerchin, Bismarck, N.D., for defendant and appellant; submitted on brief.
[¶ 1] Brant Wardner appeals the district court's second amended criminal judgment revoking his probation and imposing the originally suspended seven-year prison sentence for gross sexual imposition with his four-year-old stepdaughter. Holding that the requirement for a presentence investigation and report was met and that Wardner had been advised of the proscribed conduct, we affirm.
[¶ 2] In 2001, Wardner pled guilty to gross sexual imposition with a four-year-old child, a class A felony under N.D.C.C. § 12.1-20-03(1)(d). The plea was the result of a written plea agreement. The district court ordered a presentence investigation and report. After receiving this first presentence investigation, the district court accepted the plea agreement and suspended the execution of a seven-year sentence, placed Wardner on supervised probation, and ordered outpatient sexual abuse treatment at the Badlands Human Service Center.
[¶ 3] In August 2001, Wardner began treatment at the Human Service Center. In December 2004, the Center expelled Wardner for mistreating the staff and disrupting group therapy sessions. The State moved to revoke his probation for his failure to complete the treatment. At the revocation hearing in February 2005, Wardner admitted the violation. The district court found a factual basis for the admission, accepted it, and ordered a second presentence investigation. The district court also ordered a psychological evaluation of Wardner and a dispositional hearing upon its completion.
[¶ 4] In April 2005, the probation division submitted a second presentence investigation report to the district court. In August 2005, the district court held a "sentencing hearing" and again suspended execution of the seven-year sentence, adding more probation conditions:
2. . . . .
B. The Defendant shall not be allowed under any circumstances to live with any child under the age of ten years old, including his own children, unless authorized by his Parole/Probation Officer.
C. The Defendant shall receive psychological treatment for his sexual deviancies. . . .
D. That Defendant's contact with his children should be monitored in a way to ensure the children's safety. All contacts should be in conjunction with a safety plan put in place by his psychologist, his faith-based treatment provider and Parole/Probation officer.
. . . .
(emphasis added). Appendix "A" to the criminal judgment restricted interaction with children:
25. You shall not initiate, establish or maintain contact directly or indirectly, with any child under the age of 18, or attempt to do so, except under circumstances approved in advance and in writing by your Probation Officer.
. . . .
28. [You may not] go to or loiter near schoolyards, parks, playgrounds, arcades, or other places primarily used or visited by minors.
29. [You may not] obtain employment with any agency or place of business that provides services for the care or custody of minors. . . .
. . . .
33. [You may not] date or socialize with anybody who has children under the age of 18 years besides your wife, unless pre-authorized by your parole/probation officer.
[¶ 5] In October 2005, the State again moved to revoke Wardner's probation when it learned that he had had contact at church with his previous victim. In December 2005, the district court held a revocation hearing and found Wardner violated condition 2D of his probation for failing to have an approved safety plan in place before having contact with children. The district court revoked Wardner's probation and imposed the seven-year prison sentence.
[¶ 6] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. This appeal is timely under N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const. art. VI, § 2, and N.D.C.C. § 29-28-06.
[¶ 7] Wardner argues the district court erred by not ordering another presentence investigation and a risk assessment before imposing the previously suspended seven-year prison term in December 2005.
[¶ 8] Generally, a district court may order a presentence investigation and report at any time, but is not required to do so. N.D.R.Crim.P. 32(c)(1). Section 12.1-32-02(11), N.D.C.C., however, provides:
Before sentencing a defendant on a felony charge under section 12.1-20-03 . . ., a court shall order the department of corrections and rehabilitation to conduct a presentence investigation and to prepare a presentence report. A presentence investigation for a charge under section 12.1-20-03 must include a risk assessment. A court may order the inclusion of a risk assessment in any presentence investigation. . . .
Wardner argues that "sentencing" includes revocation of probation and that the district court was required to order a new presentence investigation and risk assessment before it revoked his probation and imposed the previously suspended seven-year prison term. Wardner also argues that if the presentence investigation was not mandatory, the information in the two existing presentence investigation reports was stale, so the district court was required to order another presentence investigation prior to imposition of the seven-year prison sentence. The State argues there was no right to an additional presentence investigation, and if there was, Wardner waived it by agreeing to proceed directly to sentencing.
[¶ 9] The interpretation of a statute is a question of law, which is fully reviewable on appeal. State v. Stavig, 2006 ND 63, ¶ 12, 711 N.W.2d 183. "Words used in any statute are to be understood in their ordinary sense, unless a contrary intention plainly appears, but any words explained in this code are to be understood as thus explained." N.D.C.C. § 1-02-02. "When the wording of a statute is clear and free of all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit." N.D.C.C. § 1-02-05.
[¶ 10] "Sentencing" is "the determination of the sentence." 1 La Fave, Israel & King, Criminal Procedure § 1.3(r) (2d ed.1999). In ordinary terms, "sentencing" means "to pronounce judgment or punishment upon (a convicted person); condemn (to a specified punishment)." Webster's New World Dictionary 1297 (2d ed.1980).
[¶ 11] "Resentencing" is the Black's Law Dictionary 1309 (7th ed.1999); see, e.g., Peltier v. State, 2003 ND 27, ¶ 13, 657 N.W.2d 238 (); Davis v. State, 2001 ND 85, ¶ 11, 625 N.W.2d 855 (). The term "resentencing" also applies to a district court's sentencing on remand from appellate review. 5 LaFave, et al., Criminal Procedure § 26.7(b) (2d ed.1999); State v. Trieb, 533 N.W.2d 678, 681 (N.D. 1995).
[¶ 12] In this context, "before" means "prior to." Webster's New World Dictionary 127 (2d ed.1980).
[¶ 13] The statute, N.D.C.C. § 12.1-32-02(11), requires that a presentence investigation in cases of gross sexual imposition be conducted before sentencing. By definition, sentencing is prior to resentencing. In this case a presentence investigation was conducted prior to—before—sentencing, and the plain language of the statute has been complied with.
[¶ 14] We recognize that some states—such as California—require new or updated presentence investigations before resentencing. See People v. Dobbins, 127 Cal.App.4th 176, 24 Cal.Rptr.3d 882, 884-85 (2005); People v. Hess, 241 Ill.App.3d 276, 182 Ill.Dec. 68, 609 N.E.2d 371, 376 (1993); State v. Triplett, 407 Mich. 510, 287 N.W.2d 165, 165-66 (1980). The North Dakota Legislature has not chosen to do so.
[¶ 15] The district court complied with the statute.
[¶ 16] Wardner argues that condition 2D of his probation contains ambiguous terms, making the approved safety plan optional, and that his actions did not rise to "contact" under the condition. In the alternative, Wardner argues that his probation revocation was unwarranted for such "a de minimus" violation caused by his attending church and sitting with his wife and children, including his victim. The State argues, and the district court found, that Wardner violated condition 2D because he had not obtained an approved safety plan prior to attending the church where he knew his victim and other children attended. The district court revoked Wardner's probation and imposed the previously suspended seven-year prison sentence set forth in the plea agreement.
[¶ 17] In an appeal of probation revocation, we first review the district court's factual findings and then review the district court's decision to revoke probation. State v. Causer, 2004 ND 75, ¶ 30, 678 N.W.2d 552, cert. denied, 543 U.S. 906, 125 S.Ct. 139, 160 L.Ed.2d 182 (2004).
[¶ 18] Although due process protection applies, "[p]robation revocation, like parole revocation, is not a stage of a criminal prosecution." State v. Olson, 2003 ND 23, ¶ 14, 656 N.W.2d 650 (citing Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973)). Consequently, a probationer facing revocation has limited rights. Olson, at ¶ 14 (internal citation omitted); see, e.g., State v. Schlosser, 202 N.W.2d 136, 139 (N.D.1972) (). In State v. Ennis, this Court summarized those rights:
The probationer is entitled to...
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