State v. Wells

• Decision Date: 01 February 1979
• Docket Number: Cr. N
• Citation: 276 N.W.2d 679
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Mark Alan WELLS, Defendant and Appellant. o. 621-A.
• Court: North Dakota Supreme Court

Page 679

276 N.W.2d 679

STATE of North Dakota, Plaintiff and Appellee, v. Mark Alan WELLS, Defendant and Appellant.

Cr. No. 621-A.

Supreme Court of North Dakota.

Feb. 1, 1979.

Rehearing Denied Feb. 26, 1979.

John M. Olson, Burleigh County State's Atty., Bismarck, for plaintiff and appellee.

Benjamin C. Pulkrabek, Mandan, for defendant and appellant.

SAND, Justice.

On 12 May 1977 Mark Alan Wells entered a plea of guilty to the crime of murder and was later sentenced to a term of life imprisonment under the North Dakota dangerous special offender statute, § 12.1-32-09, North Dakota Century Code. Wells appealed the sentence attacking the constitutionality of the dangerous special offender statute. In a prior opinion on that appeal we upheld the constitutionality of § 12.1-32-09, NDCC, but remanded the case for resentencing because of lack of compliance with the notice provisions of the statute. On remand, Wells was again sentenced to a term of life imprisonment and has now appealed, raising the following issues:

(1) Did the trial court err in accepting the amended notice of dangerous special offender after Wells had entered a plea of guilty;

(2) Is subdivision 12.1-32-09(1)(a), NDCC, unconstitutionally vague;

(3) Did the trial court err in denying Wells' motion for a new presentence report;

(4) Did the trial court err in denying Wells' motion for a new psychiatric report; and

(5) Did the trial court err in denying Wells' motion for a court-appointed investigator.

I

In our earlier opinion we remanded this case for resentencing on the basis the notification filed pursuant to the statute did not meet the statutory requirement of setting out with particularity the reasons why the state's attorney believed the defendant to be a dangerous special offender. State v. Wells, 265 N.W.2d 239 (N.D.1978). On remand the State filed an amended notice of dangerous special offender, a motion for correction of the manner in which sentence was imposed, and a notice to defendant setting forth the intentions of the State in its motion for correction of sentence and offering Wells the opportunity to present witnesses on his own behalf, to further cross-examine any State witnesses, and to inspect any evidentiary items. Following a sentencing hearing, Wells was again sentenced to a term of life imprisonment on 5 June 1978.

Wells contended it was error for the trial court to accept the State's amended notice of dangerous special offender and sentence him under the provisions of § 12.1-32-09, NDCC, after he had previously entered a plea of guilty. We now examine Wells' contention in addition to our earlier opinion in this case.

Section 12.1-32-09, NDCC, was enacted by the North Dakota Legislature in 1973 ¹ as part of our new criminal code and was amended in 1975, ² and again in 1977. ³ Subsection 12.1-32-09(1), provides in pertinent part:

"A court may sentence a convicted offender to an extended sentence as a dangerous special offender in accordance with the provisions of this section upon a finding of any one or more of the following:

a. The convicted offender is a dangerous, mentally abnormal person. The court shall not make such a finding unless the presentence report, including a psychiatric examination, concludes that the offender's conduct has been characterized by persistent aggressive behavior, and that such behavior makes him a serious danger to other persons.

b. The convicted offender is a professional criminal. The court shall not make such a finding unless the offender is an adult and the presentence report shows that the offender has substantial income or resources derived from criminal activity.

c. The convicted offender is a persistent offender. The court shall not make such a finding unless the offender is an adult and has previously been convicted in any state or states or by the United States of two felonies of class B or above, or of one class B felony or above plus two offenses potentially punishable by imprisonment classified below class B felony, committed at different times when the offender was an adult. For the purposes of this subdivision, a felony conviction in another state or under the laws of the United States shall be considered a felony of class B or above if it is punishable by a maximum term of imprisonment of ten years or more.

d. The offender was convicted of an offense which seriously endangered the life of another person, and the offender had previously been convicted of a similar offense.

e. The offender is especially dangerous because he used a firearm, dangerous weapon, or destructive device in the commission of the offense or during the flight therefrom."

Subsection 12.1-32-09(2) provides the increased sentencing terms the trial court may impose after finding the defendant to be a dangerous special offender. Of importance to this case is that subsection (2) allows the trial court to impose a maximum term of life imprisonment on a defendant convicted of a class A felony and found to be a dangerous special offender.

Subsection 12.1-32-09(3) sets forth the procedure and notice requirements the State must follow in seeking to have a defendant sentenced as a dangerous special offender. It states, in pertinent part:

"3. Whenever an attorney charged with the prosecution of a defendant in a court of this state for an alleged felony committed when the defendant was over the age of eighteen years has reason to believe that the defendant is a dangerous special offender, such attorney, at a reasonable time before trial or acceptance by the court of a plea of guilty, may sign and file with the court, and may amend, a notice specifying that the defendant is a dangerous special offender who upon conviction for such felony is subject to the imposition of a sentence under subsection 2, and setting out with particularity the reasons why such attorney believes the defendant to be a dangerous special offender. . . . "

Finally, subsection (4) of § 12.1-32-09, NDCC, requires a hearing before the trial court to determine whether or not the defendant is a dangerous special offender. It also provides that the defendant be given notice of the hearing, be allowed to inspect any presentence reports, and have the rights of compulsory process and cross-examination of witnesses. In addition, it requires the finding by the trial court, that a defendant is a dangerous special offender, be made by a preponderance of the evidence.

In examining the language of § 12.1-32-09(1), we stated in State v. Ternes, 259 N.W.2d 296, 299 (N.D.1977), United States Cert. denied, 435 U.S. 944, 98 S.Ct. 1524, 55 L.Ed.2d 540:

"We interpret the words of the statute as establishing four categories of special offenders who may be shown to be dangerous, and one category of special offenders who are, per se, dangerous. We cannot say that the Legislature has not the power to do that."

We also stated in that opinion:

"We believe it proper to construe § 12.1-32-09, NDCC, to mean that, except as hereinafter noted, the prosecutor must show that a period of confinement greater than that normally provided as a penalty for the particular offense is required to protect the public from further criminal conduct. Because of definitive language in § 12.1-32-09(1)(e), NDCC, we conclude that this showing can be made by mere proof that the defendant used a firearm, dangerous weapon, or destructive device in the commission of an offense or during the flight therefrom." State v. Ternes, supra, at 299.

We reached our belief in Ternes, concerning the requirement of the prosecution to show the necessity for a greater period of confinement, on the basis of the federal dangerous special offender statute, 18 U.S.C. § 3575, and federal opinions interpreting that statute. A re-examination and recomparison of the federal statute and the North Dakota dangerous special offender statute, however, leads us to conclude that substantial differences between the two statutes affect our discussion in Ternes, although the holding of that case is not altered. The federal statute, 18 U.S.C. § 3575, provides, in pertinent part:

"(a) Whenever an attorney charged with the prosecution of a defendant . . . has reason to believe that the defendant is a dangerous special offender such attorney, a reasonable time before trial or acceptance by the court of a plea of guilty or nolo contendere, may sign and file with the court, and may amend, a notice (1) specifying that the defendant is a dangerous special offender who upon conviction for such felony is subject to the imposition of a sentence under subsection (b) of this section, and (2) setting out with particularity the reasons why such attorney believes the defendant to be a dangerous special offender. . . .

"(e) A defendant is a special offender for purposes of this section if

(1) the defendant has previously been convicted . . . for two or more offenses committed on occasions different from one another . . . ; or

(2) the defendant committed such felony as part of a pattern of conduct which was criminal under applicable laws of any jurisdiction, which constituted a substantial source of his income, and in which he manifested special skill or expertise; or

(3) such felony was, or the defendant committed such felony in furtherance of, a conspiracy . . . .

"(f) A defendant is dangerous for purposes of this section if a period of confinement longer than that provided for such felony is required for the protection of the public from further criminal conduct by the defendant."

Section 3575 of the United States Code has been interpreted by federal courts to require two separate findings by the trial court before a defendant can be sentenced as a dangerous special offender. United States v. Neary, 552 F.2d 1184 (7th Cir. 1977), Cert. denied, 434 U.S. 864, 98 S.Ct. 197, 54 L.Ed.2d 139. See also, United States v. Williamson, 567 F.2d 610 (4th Cir. 1977); United States v. Ilacqua, 562 F.2d 399 (6th Cir. 1977), Cert. denied, 435 U.S....