2020 ND 31 - State v. Jensen

               Filed 2/12/20 by Clerk of Supreme Court

                         IN THE SUPREME COURT
                         STATE OF NORTH DAKOTA

2020 ND 31


State of North Dakota,                                Plaintiff and Appellee
      v.
Randy Scott Jensen,                                Defendant and Appellant



                                No. 20190321

Appeal from the District Court of Grand Forks County, Northeast Central
Judicial District, the Honorable John A. Thelen, Judge.

REVERSED AND REMANDED.

Opinion of the Court by Tufte, Justice.

Carmell F. Mattison, Assistant State’s Attorney, Grand Forks, N.D., for
plaintiff and appellee; submitted on brief.

Kiara C. Kraus-Parr, Grand Forks, N.D., for defendant and appellant.
                               State v. Jensen
                                No. 20190321

Tufte, Justice.

[¶1] Randy Scott Jensen appeals from a district court order denying his
motion to correct an illegal sentence. Because Jensen was not given seven days
to respond to the State’s answer brief under N.D.R.Ct. 3.2(a)(2), we reverse the
district court order and remand for an opportunity to respond.

                                       I

[¶2] Jensen was released on parole from the state penitentiary in December
2017. About ten days later, he was arrested and charged in this case for drug
offenses and unlawful use of license plates. He remained incarcerated until his
August 2018 court trial. At trial, the district court found Jensen guilty on all
counts. In October 2018, he was sentenced to four years’ imprisonment with
credit for 94 days served between July 1, 2018, and October 2, 2018.

[¶3] In August 2019, Jensen moved to correct his sentence under
N.D.R.Crim.P. 35(a)(1), arguing he was owed credit for time spent incarcerated
between his December 2017 arrest and October 2018 sentencing. The State
filed an answer brief, arguing Jensen was not entitled to additional credit
because he was held on the parole violation and other charges. The next day,
the district court denied Jensen’s motion.

                                      II

[¶4] On appeal, Jensen argues the district court abused its discretion by
denying his motion without giving him an opportunity to respond under
N.D.R.Ct. 3.2(a)(2).

      We have said that “[t]he district court’s decision to amend a
      judgment is subject to sound judgment and will not be reversed on
      appeal unless there is an abuse of discretion.” State v. Peterson,

2016 ND 192, ¶ 8

886 N.W.2d 71

. A court abuses its discretion if
      it acts in an arbitrary, unreasonable, or unconscionable manner, if
      its decision is not the product of a rational mental process leading
      to a reasoned determination, or if it misinterprets or misapplies

                                       1
      the law. Id.; see also State v. Moos,

2008 ND 228, ¶ 30

758 N.W.2d 674

.

State v. Myers,

2017 ND 265, ¶ 6

903 N.W.2d 520

.

[¶5] Rule 3.2(a)(2), N.D.R.Ct., provides:

      Briefs. Upon serving and filing a motion, the moving party must
      serve and file a brief and other supporting papers and the opposing
      party must have 14 days after service of a brief within which to
      serve and file an answer brief and other supporting papers. The
      moving party may serve and file a reply brief within seven days
      after service of the answer brief. Upon the filing of briefs, or upon
      expiration of the time for filing, the motion is considered submitted
      to the court unless counsel for any party requests oral argument
      on the motion.

(Emphasis added.)

[¶6] Here, the district court denied Jensen’s motion before seven days had
passed after service of the answer brief. Because the time to reply had not
expired, the motion was not yet submitted to the court under N.D.R.Ct.
3.2(a)(2). We conclude the district court misapplied the law in denying Jensen
an opportunity to respond under N.D.R.Ct. 3.2(a)(2). See State v. Vogt,

2019 ND 236

, ¶¶ 9–10,

933 N.W.2d 916

 (district court’s dismissal of petitioner’s
postconviction relief application on its own motion was inappropriate because
he was not provided notice and an opportunity to be heard pursuant to
N.D.R.Ct. 3.2). The district court’s misapplication of Rule 3.2 was an abuse of
discretion. Because the district court abused its discretion, we reverse the
order denying Jensen’s motion and remand for an opportunity to respond
consistent with N.D.R.Ct. 3.2(a)(2).

                                      III

[¶7] We have considered the remaining arguments and conclude they are
either unnecessary to our decision or do not affect the outcome of the appeal.
We reverse the district court order denying Jensen’s motion to correct an illegal




                                       2
sentence and remand for an opportunity to respond consistent with N.D.R.Ct.
3.2(a)(2).

[¶8] Jerod E. Tufte
     Gerald W. VandeWalle
     Daniel J. Crothers
     Lisa Fair McEvers
     Jon J. Jensen, C.J.




                                    3