State v. Wells

• Decision Date: 30 March 1978
• Docket Number: Cr. N
• Citation: 265 N.W.2d 239
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Mark Alan WELLS, Defendant and Appellant. o. 621.
• Court: North Dakota Supreme Court

Page 239

265 N.W.2d 239

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

Cr. No. 621.

Supreme Court of North Dakota.

March 30, 1978.

As Amended April 4, 1978.

John M. Olson, State's Atty., Bismarck, for plaintiff and appellee, State of North Dakota.

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

VOGEL, Justice.

This is an appeal from a judgment and sentence of life imprisonment after a plea of guilty to the crime of murder. The errors alleged, and an attack on constitutionality, relate entirely to the dangerous special offender statute, Section 12.1-32-09, N.D.C.C. If the dangerous special offender statute had not been applied, the maximum sentence of confinement would have been 20 years, as specified in Section 12.1-32-01, subsection 1, N.D.C.C. We uphold the constitutionality of the statute, but remand for resentencing because of lack of compliance with the notice provision of the dangerous special offender statute.

The contentions of the appellant may be summarized as follows:

I

The defendant asserts that the hearing held to determine whether he was a dangerous special offender constituted a trial, or part of a trial, and therefore he was entitled to, but did not receive, constitutional rights including: (1) the right to a jury trial, (2) the right to confront the "witnesses" against him (presumably the persons whose reports were considered by the judge in the sentencing proceedings and persons referred to in the probation officer's report), and (3) the right to have only admissible evidence received in connection with the sentencing.

II

That the statute is unconstitutionally vague for failure to define "mentally abnormal" and "persistent aggressive behavior."

III

That the statute provides no ascertainable standard of guilt and is therefore unconstitutional.

IV

That the statute itself was violated because the State's Attorney's notice to the defendant specifying that the State would invoke the dangerous special offender statute did not comply with the requirement of "setting out with particularity the reasons why such attorney believes the defendant to be a dangerous special offender."

We uphold the constitutionality of the statute (Questions I, II, and III), but remand for resentencing because of the State's failure to comply with the statute (Question IV).

Pertinent parts of the statute are set forth in the footnote. ¹

I

We could, and we should, refuse to consider the arguments under this heading because none of them, except possibly the one relating to hearsay, was raised in the trial court. It is fundamental that a trial court must be given an opportunity to rule on issues, except jurisdictional issues, before they can be made issues on appeal. State v. Haakenson, 213 N.W.2d 394 (N.D.1973).

However, since this is a case involving a life sentence, and because we presume that the same issues would be raised in a post-conviction proceeding if not disposed of on the appeal, we will dispose of them now. See State v. Olmstead (3d appeal), 261 N.W.2d 880 (N.D.1978); State v. Metzner, 244 N.W.2d 215 (N.D.1976).

As to sentencing generally (without reference to dangerous special offender statute)

The answers to the procedural questions can readily be found in Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), or in other cases cited in a Note, "The Constitutionality of Statutes Permitting Increased Sentences for Habitual or Dangerous Criminals," 89 Harv.L.Rev. 356 (Dec.1975). For a recent decision, indicating that some due-process considerations apply in sentencing, see United States v. Fatico, 441 F.Supp. 1285 (E.D.N.Y.1977).

1. There is no right to a jury trial on sentencing. Williams v. New York, supra; United States v. Glick, 463 F.2d 491, 494 (2d Cir. 1972); United States v. Interstate Engineering Corporation, 288 F.Supp. 402, 411 (D.N.H.1967), affirmed sub nom. New England Enterprises, Inc. v. United States, 400 F.2d 58 (1st Cir. 1968), cert. denied, 393 U.S. 1036, 89 S.Ct. 654, 21 L.Ed.2d 581 (1969). A jury trial on a sentence has never been a part of the judicial system of this State.

2. The right of confrontation of witnesses does not apply to sentencing proceedings. Williams v. New York, supra; Williams v. Oklahoma,358 U.S. 576, 584, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959), but see United States v. Fatico, supra, holding that denial of access to an informant whose declarations are offered as evidence at a critical stage of the proceeding, as to crucial information that directly affects a substantial liberty interest of a defendant, offends the right of confrontation. 441 F.Supp. 1285 at 1297.

We note, in passing, that the defendant examined both the psychiatrist and the probation officer who prepared the presentence report. The former was called as a court witness, after both prosecution and defense failed to call him, and the latter was called by the defendant and was examined by the defense. No request was made to call any other witness. No obstacle was placed in the way of the defense as to calling any witness it chose. We find no error in this procedure. United States v. Fatico, supra.

3. Inadmissible evidence may be considered in sentencing. Williams v. New The basis for the lessened procedural rigor of sentencing as compared to trial is stated in Williams v. New York, supra. In brief, the judge should be allowed the widest possible range of information to assist him in the exercise of his discretion in fixing sentences within statutory and constitutional limitations. If information available to a sentencing judge were limited to evidence adduced in open court, after a conviction, it is probable that the defendant would more often be harmed than helped.

York, supra; Williams v. Oklahoma, supra. The court may even consider evidence as to crimes of which the defendant was acquitted (United States v. Sweig, 454 F.2d 181, 184 (2d Cir. 1972)), arrests which did not result in convictions (City of Dickinson v. Mueller, 261 N.W.2d 787 (N.D.1977); Houle v. United States, 493 F.2d 915 (5th Cir. 1974)), and criminal conduct as to which no charge has been made (United States v. Johnson, 507 F.2d 826 (7th Cir. 1974), cert. denied, 421 U.S. 949, 95 S.Ct. 1682, 44 L.Ed.2d 103 (1975).

The rules of evidence, except those relating to privileges, do not apply to sentencing procedures. Rule 1101(d)(3), N.D.R.Ev.

The foregoing statements apply generally to all sentencing procedures. When the dangerous special offender statute is invoked, additional procedural requirements must be met. These include notice in advance to the defendant that the statute will be invoked, the requirement of setting out with particularity the reasons why the prosecuting attorney believes the defendant to be a dangerous special offender (discussed below), the requirement of a sentencing hearing, the requirement of a presentence report except in extraordinary cases, five days' advance notice of the hearing date, the right to inspect the presentence report and an opportunity to verify statements made in it except in extraordinary cases, and the right to compulsory process and cross-examination of witnesses produced by the prosecution. These rights are in addition to the rights of all persons being sentenced. All of these rights were allowed the defendant in the present case, except as will be mentioned below in connection with the notice.

Much of the attack of the appellant on the sentence imposed appears to be based upon a misapprehension of the provisions of the criminal code as to dangerous special offenders. The appellant seems to assume that he cannot be considered as a dangerous special offender unless he is charged with the crime of being such an offender, and is tried on that charge with the aid of counsel and found guilty of that charge. Actually, the whole process of being found to be, and sentenced as, a dangerous special offender is a discretionary part of the procedure of sentencing a defendant upon conviction of a substantive charge, which in this case was that of murder. We have never held, and do not hold now, that the defendant is entitled to a jury trial as to the extent of the sentence imposed upon him. On the contrary, sentencing is a function of the judge.

The North Dakota Criminal Code, adopted in 1973 and effective July 1, 1975, including the dangerous special offender statute, was adapted in large part from a proposed Federal criminal code, but it was also drafted to comply to a great extent with the recommendations of the American Bar Association Project on Standards for Criminal Justice, particularly the Standards relating to Courts, Corrections, Sentencing Alternatives and Procedures, and Probation, and it is consistent with the Standards and Goals of the National Advisory Commission on Criminal Justice Standards and Goals.

One of the underlying concepts of the Standards and of the Standards and Goals is that maximum sentences should normally be fixed so as to apply to the ordinary offender, rather than the extraordinary, or worst possible, offender. It has been customary in this country for statutes on sentencing to specify maximum sentences sufficient to punish the worst possible offender. The sometimes-unfortunate result is that less reprehensible acts are punished by maximum sentences which are excessive.

The concept of the new criminal code is that sentences longer than ordinary maxima should be allowed in cases involving the worst possible offender, upon compliance with certain procedures and satisfying specified criteria. Thus the North Dakota Criminal Code provides for a maximum sentence for Class A felonies, including homicide, of 20 years' imprisonment, or a fine of $10,000, or both (Section 12.1-32-01, N.D.C.C., subsection 1), but also provides that an extended sentence up to life imprisonment may be imposed if the offender is either a dangerous, mentally abnormal offender, a professional criminal, a...