FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
DECEMBER 9, 2021
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2021 ND 217
State of North Dakota, Plaintiff and Appellant
v.
Bradley M. Neilan, Defendant and Appellee
No. 20210065
Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable Bobbi Brown Weiler, Judge.
AFFIRMED.
Opinion of the Court by Jensen, Chief Justice, in which Justices VandeWalle
and Tufte joined. Justice McEvers filed an opinion concurring. Justice Crothers
filed an opinion dissenting.
Mindy L. Anderson (argued), Assistant State’s Attorney, Dennis H. Ingold (on
brief), Assistant State’s Attorney, and Jamie Schaible (on brief), third-year law
student, under the Rule on Limited Practice of Law by Law
Students, Bismarck, ND, for plaintiff and appellant.
Philip Becher (argued) and Elisabeth E. Hewett (appeared), Minot, ND, for
defendant and appellee.
State v. Neilan
No. 20210065
Jensen, Chief Justice.
[¶1] The State of North Dakota appeals from an amended judgment entered
after the district court modified Bradley Neilan’s sentence under North Dakota
Rule of Criminal Procedure 35(b). The State argues the court was precluded
from modifying a sentence imposed pursuant to a plea agreement or, in the
alternative, the court abused its discretion by modifying the sentence. Neilan
challenges the State’s right to appeal. We conclude the court’s reduction of
Neilan’s sentence is appealable, the plain language of N.D.R.Crim.P. 35(b)
provides the court with the authority to exercise its discretion in reducing a
sentence, and, in this case, the court abused its discretion in reducing Neilan’s
sentence. However, as mandated by N.D.C.C. § 29-28-35, our opinion is limited
to affirming the sentence imposed by the court and pointing out the error in
the proceeding. We accordingly affirm the amended judgment.
I
[¶2] In 2019, Neilan was arrested for possession of marijuana with the intent
to deliver. On February 9, 2021, the parties appeared at a change of plea
hearing. At the hearing, the State detailed a plea agreement in which it
dropped the firearm enhancements from Neilan’s charges, removing the
mandatory minimum sentences. The plea agreement provided that Neilan
would be incarcerated for four years with all but 18 months suspended.
[¶3] At the hearing, in response to the district court inquiry as to why the
State was seeking incarceration rather than probation, the State indicated
that if the plea agreement was rejected the State would withdraw the proposed
amendments and pursue the mandatory minimum sentencing. Neilan
confirmed his preference to accept the plea agreement. The court, noting the
State was giving it “zero option,” accepted the agreement and stated it would
sentence Neilan to its terms.
[¶4] On February 10, 2021, the day following the district court accepting the
plea agreement, the court signed and entered a judgment consistent with the
1
terms of the plea agreement. Later that day, the court initiated its own
N.D.R.Crim.P. 35(b) motion to consider reducing the sentence from
incarceration to probation. The court directed the parties to file their respective
responses within a day.
[¶5] Both parties filed a response to the district court’s motion. The State
argued against the reduction, asserting that since the sentence was imposed
pursuant to a plea agreement under N.D.R.Crim.P. 11(c)(1)(C), the court could
only accept or reject the plea, and using N.D.R.Crim.P. 35(b) to circumvent that
requirement would render Rule 11 meaningless. Neilan acknowledged that he
had accepted the plea agreement, but nonetheless argued in favor of the
reduction, urging the sentencing factors favored such a reduction.
[¶6] On February 12, 2021, the district court entered the N.D.R.Crim.P. 35(b)
order and reduced Neilan’s sentence from a term of incarceration to probation.
The court found the following factors weighed in favor of granting the Rule
35(b) reduction of sentence: Neilan’s age, his criminal history of only a minor
offense, no bond violations in fifteen months, his employment while on bond, a
medical issue (asthma) which places him at a high risk of complication if he
contracts COVID-19, no victims to the crime, no risk to the public, the
convictions were for marijuana and THC, consistency in the criminal justice
system, no need for dependency treatment, he can be rehabilitated, the conduct
is unlikely to recur, and he took responsibility for his actions. The court’s order
indicated the only information not previously considered by the court in
imposing the original sentence was the medical issue which places Neilan at a
high risk of complication if he contracts COVID-19. The State appealed.
II
[¶7] Neilan challenges the State’s right to appeal the order granting a
reduction in his sentence. Neilan argues the State does not have standing to
appeal because the case does not affect a substantial right of the State as
provided under N.D.C.C. § 29-28-07(4). The State argues this issue affects its
substantial right to receive the benefit of its bargain in plea agreements.
2
[¶8] The State’s right to appeal is statutory. State v. M.J.W., 2020 ND 183, ¶
5,
947 N.W.2d 906. Section 29-28-07, N.D.C.C., sets forth when the State may
appeal. Subsections (1)–(3) and (5) relate to the State’s ability to appeal with
the quashing of an indictment, an order granting a new trial, an order
arresting judgment, or an order granting the return of property or suppressing
evidence, and are not applicable in this case. Under N.D.C.C. § 29-28-07(4), the
State may appeal from “[a]n order made after judgment affecting any
substantial right of the state.”
[¶9] Neilan argues the State’s right to appeal is limited by State v. Rueb,
249
N.W.2d 506 (N.D. 1976) and State v. Jefferson Park Books, Inc.,
314 N.W.2d 73
(N.D. 1981). In Rueb, the defendant moved for a reduction of sentence under
N.D.R.Crim.P. 35.
249 N.W.2d at 507. The State did not receive notice of the
motion.
Id. at 508. The district court modified the sentence.
Id. at 507-08. This
Court held the State must be given notice of the hearing on the motion for
reduction in sentence, whether the proceeding is initiated at the defendant’s
request or sua sponte by the court.
Id. at 510-11. The district court, when
reducing a sentence, must also give reasons for the reduction.
Id. at 511. As to
the reduction itself, this Court held “[t]he modification order of the court is an
order made after judgment and the total effect of the order involves a
substantial right of the State.”
Id. at 508.
[¶10] In Jefferson Park Books, this Court was again confronted with a
N.D.R.Crim.P. 35 right to appellate review issue.
314 N.W.2d at 75. The
defendant moved for a N.D.R.Crim.P. 35 reduction of sentence.
Id. The district
court denied the motion, and the defendant appealed.
Id. In contrasting from
Rueb, this Court determined Rueb dealt with the procedure of the hearing
rather than the validity of the sentence, while Jefferson Park Books dealt with
the validity of the sentence itself.
Id. at 76. This Court held that the defendant
in Jefferson Park Books was properly given the opportunity to be heard and
was heard; therefore, no substantial right of the defendant was affected as the
defendant only has the right to apply for the reduction, but the determination
of whether to reduce the sentence is left to the discretion of the district court.
Id.
3
[¶11] Subsequent to our decision in Jefferson Park Books, we have confirmed
that a defendant may not appeal the denial of a N.D.R.Crim.P. 35(b) motion.
State v. Gunwall, 522 N.W.2d 183, 184-85 (N.D. 1994). “However, this Court
has found that in the event a reduction is granted to a defendant following a
Rule 35(b) application, the State may appeal. The subsequent reduction of a
sentence previously imposed by a court affects a substantial right of the state.”
Id. at n.1 (citing references omitted). See also State v. Trowbridge,
2011 ND 72,
799 N.W.2d 406 (per curiam opinion stating that the State may appeal from an
order reducing a sentence).
[¶12] While Rueb focused on the procedure of the hearing to reduce a sentence,
and Jefferson Park Books focused on the defendant’s right to move for a
reduction but not appeal the denial of reduction, Gunwall is dispositive of the
issue in this case. The district court’s reduction of a sentence under
N.D.R.Crim.P. 35(b) affects a substantial right of the State as provided under
N.D.C.C. § 29-28-07(4). Therefore, we conclude that when the district court
orders a reduction in sentence under N.D.R.Crim.P. 35, the State may appeal.
We accordingly exercise jurisdiction over this appeal.
III
[¶13] The State argues that the district court’s acceptance of the plea
agreement under N.D.R.Crim.P. 11 precluded the court from thereafter
unilaterally reducing the sentence under N.D.R.Crim.P. 35. It argues that
because Rule 11 provides only that the court may accept the plea, reject it, or
defer a decision until reviewing the presentence report, using Rule 35 to
circumvent that requirement renders Rule 11 meaningless. Neilan argues that
the language of Rule 35(b) expressly allows the district court to take such
action.
[¶14] The question of whether the district court can reduce a sentence under
N.D.R.Crim.P. 35(b) is a question of law that we review de novo. Johnson v.
Taliaferro, 2011 ND 34, ¶ 9,
793 N.W.2d 804; see also State v. Ebertz,
2010 ND
79, ¶ 8,
782 N.W.2d 350 (“The interpretation of a court rule, like the
interpretation of a statute, is a question of law.”).
4
[¶15] Rule 35(b), N.D.R.Crim.P., reads as follows:
(1) Time for Reduction. The sentencing court may reduce a
sentence:
(A) within 120 days after the court imposes sentence or
revokes probation; or . . .
(2) Motion for Reduction. On a party’s motion or on its own, and
with notice to the parties, the court may grant a sentence
reduction. Changing a sentence from a sentence of incarceration to
a grant of probation is a permissible sentence reduction. If the
sentencing court grants a sentence reduction, it must state its
reasons for the reduction in writing.
(Emphasis added.)
[¶16] Under the plain language of N.D.R.Crim.P. 35(b), a district court may
grant a sentence reduction. It may do so on its own initiative, so long as there
is notice to the parties. The rule explicitly provides that, “[c]hanging a sentence
from a sentence of incarceration to a grant of probation is a permissible
sentence reduction.” The court’s use of Rule 35(b) in reducing Neilan’s sentence
is consistent with the requirements of the rule.
[¶17] The district court’s use of N.D.R.Crim.P. 35 is not inconsistent with the
requirements of N.D.R.Crim.P. 11. Under Rule 11(c)(1)(A) and (C), “the court
may accept the agreement, reject it, or defer a decision until the court has
reviewed the presentence report.” N.D.R.Crim.P. 11(c)(3)(A). The court
accepted the plea agreement, a permissible disposition under the plain
language of Rule 11(c) and entered a judgment consistent with the plea
agreement. The court, on its own motion and after briefing from the parties,
subsequently ordered a reduction in Neilan’s sentence. Under the plain
language of Rule 35(b), this is a permissible disposition. There are no
limitations imposed on the court in Rule 35 for when a sentence has been
imposed pursuant to a plea agreement under Rule 11, and we decline to hold
there is such a limitation or otherwise limit the use of Rule 35(b).
5
IV
[¶18] The State argues that if the district court had the authority to initiate a
motion to reduce Neilan’s sentence, the court abused its discretion in ordering
the sentence reduction. The State contends the court abused its discretion
because all of the factors relied upon to grant the sentence reduction were
known to the court at the time of his sentencing with the exception of Neilan’s
asthma, the asthma was not known by the court when it initiated the motion
to modify the judgment (Neilan’s asthma was disclosed in the materials filed
by Neilan after the court requested briefing on its N.D.R.Crim.P. 35(b) motion),
and his asthma was a condition Neilan was aware of at the time he entered
into the plea agreement and at the time he was sentenced.
[¶19] The explanatory note following N.D.R.Crim.P. 35 reads, “A motion under
this rule is addressed to the discretion of the sentencing court and may be
granted if the court decides that the sentence originally imposed, for any
reason, was unduly severe.” We review the district court’s decision to grant a
sentence reduction subject to an abuse of discretion standard of review. State
v. Feist, 2006 ND 21, ¶ 22,
708 N.W.2d 870. See Rueb,
249 N.W.2d at 511-12
(“We believe the discretion vested in the sentencing judge under Rule 35 is not
plenary or absolute, but is subject to sound judgment and may not be abused.”);
Jefferson Park Books,
314 N.W.2d at 76 (“Whether or not a reduction should be
given, in certain instances, is not a right but is basically a matter left to the
sound discretion of the trial court after being fully advised on the subject
matter and after giving the opposing parties an opportunity to be heard.”) A
court “abuses its discretion when it acts in an arbitrary, unreasonable, or
capricious manner, or misinterprets or misapplies the law.” Feist, at ¶ 22
(citation omitted).
[¶20] Rule 35(b), N.D.R.Crim.P., allows a district court to exercise its
discretion in reducing a sentence for any reason if the sentence was unduly
severe. In the present case, the district court and the State specifically
discussed the State’s intent to proceed without a plea agreement and pursue
the mandatory minimum if the plea agreement, as proposed to the court, was
not accepted. The court accepted the plea agreement. The following day the
6
court initiated its own motion to reduce Neilan’s sentence. It is significant that
at the time the court initiated its own motion to reduce Neilan’s sentence it
was unaware of Neilan’s asthma. The court reduced Neilan’s sentence, noting
only Neilan’s asthma as a new factor for sentencing. Here, the timing of the
court’s motion and the absence of any new facts before the initiation of the
motion, which immediately followed its acceptance of the plea agreement while
clearly disagreeing with the State over the sentence, leads us to conclude the
court intended to circumvent the plea agreement. We conclude the court
abused its discretion in accepting the plea agreement and subsequently
modifying the agreed upon sentence.
V
[¶21] Neilan argues N.D.C.C. § 29-28-35 precludes a decision of this Court
from increasing his punishment, any adverse ruling by this Court must affirm
his sentence, and any recognition of an error is limited to an advisory opinion
for the district court. The State did not respond to Neilan’s argument in its
briefing. Section 29-28-35, N.D.C.C., reads as follows:
Appeal by state—Power of supreme court. If the appeal is taken
by the state, the supreme court cannot reverse the judgment
or modify it so as to increase the punishment, but may affirm it,
and shall point out any errors in the proceedings or in the measure
of punishment, and its opinion is obligatory on the district court
as the correct exposition of the law.
[¶22] The amended judgment, in summary, eliminated eighteen months of
incarceration and increased the amount of suspended sentence by eighteen
months. Reversal of the amended judgment would require the amended
judgment to be vacated and the original judgment reinstated. Reversal would
effectively convert the suspended sentence back to a period of incarceration.
The reversal of the amended judgment would increase Neilan’s punishment.
[¶23] Section 29-28-35, N.D.C.C., is unambiguous. This Court is precluded
from reversing or modifying a criminal judgment in a manner which would
increase the punishment imposed on a defendant. State ex rel. Jorgenson v.
7
District Court of Walsh County, 289 N.W.2d 211, 213 (N.D. 1980) (Citing to
N.D.C.C. § 29-28-35 in noting “[a]n appeal by the State, if allowed at all, only
permits this court to point out errors.”). While N.D.C.C. § 29-28-07(4) provides
the State with the right to appeal, once a judgment has been entered in the
district court, N.D.C.C. § 29-28-35 limits what this Court can do in response to
an appeal by the State. We conclude N.D.C.C. § 29-28-35 requires this Court
to affirm the judgment.
[¶24] This Court has previously reversed a judgment that failed to impose a
mandatory minimum, a decision which increased the defendant’s punishment,
in apparent conflict with N.D.C.C. § 29-28-35. State v. Wika,
1998 ND 33,
574
N.W.2d 831. Wika was sentenced to one year of incarceration although the
applicable mandatory minimum sentence was two years. Id. at ¶ 3. The State
moved to correct an illegal sentence under N.D.R.Crim.P 35(a). Id. at ¶ 4. The
trial court denied the motion and the State appealed. Id. at ¶¶ 4-5. This Court
reversed the trial court’s denial of the motion to correct the illegal sentence and
remanded the case for sentencing, a decision which unquestionably increased
the defendant’s sentence from one year to a minimum of two years. In Wika,
this Court was not presented with the question of whether N.D.C.C. § 29-28-
35 prohibits the reversal of a judgment which would result in increased
punishment. Additionally, in this case the State has not argued that the court’s
sentence was illegal, or that there was clear error, as contemplated by
N.D.R.Crim.P. 35(a). Our decision rests on the discretionary power of the court
to modify a sentence under N.D.R.Crim.P. 35(b). We leave unresolved any
question regarding the interplay between Rule 35(a) and N.D.C.C. § 29-28-35.
VI
[¶25] The State may appeal from a district court’s order reducing the
defendant’s sentence as it affects a substantial right of the State. Under the
plain language of N.D.R.Crim.P. 35(b), the court may, in its discretion, order a
reduction of a sentence on its own initiative, and its ability to do so is not
limited by N.D.R.Crim.P. 11. This discretionary power is subject to an abuse of
discretion review on appeal, and in this case, the court abused its discretion in
reducing Neilan’s sentence. However, as mandated by N.D.C.C. § 29-28-35, our
8
opinion is limited to affirming the sentence imposed by the court and pointing
out the error in the proceeding. We affirm the judgment.
[¶26] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Jerod E. Tufte
McEvers, Justice, concurring.
[¶27] I agree with the majority that N.D.C.C. § 29-28-35 requires us to affirm
the judgment. I write separately because I disagree with the majority’s holding
that the district court’s use of N.D.R.Crim.P. 35 in this case was not
inconsistent with N.D.R.Crim.P. 11.
[¶28] Under N.D.R.Crim.P. 11(c)(3)(A), the district court may accept a plea
agreement, reject a plea agreement, or defer its decision. Plea agreements are
contractual in nature. State v. Lium, 2008 ND 33, ¶ 12,
744 N.W.2d 775. The
court is an indispensable party to the agreement. People v. Siebert,
537 N.W.2d
891, 895 (Mich. 1995) (the judge is an impartial party with interests separate
from the prosecution and defense); see also Ghosh v. State,
400 P.3d 147, 154
(Alaska Ct. App. 2017) (“the court is a necessary third party to any proposed
plea agreement). It follows, and numerous jurisdictions have held, that if a
court accepts a plea agreement, it is bound by the agreement’s terms. See State
v. Ledbetter,
920 N.W.2d 760, 764 (S.D. 2018) (if a trial court accepts a plea
agreement, it must honor its promise to sentence the defendant within the
bounds of the agreement); Lee v. State,
816 N.E.2d 35, 38 (Ind. 2004) (“If the
court accepts a plea agreement, it shall be bound by its terms.”); State v. Elliott,
168 N.E.3d 33, 38 (Ohio Ct. App. 2021) (“if the trial court accepts the terms of
the plea agreement, it is also bound to that agreement”). If courts are allowed
to re-examine the wisdom of accepting plea agreements with the benefit of
hindsight, such agreements would lack finality and the benefits that encourage
the State and defendants to enter into such agreements may prove illusory.
United States v. Ritsema,
89 F.3d 392, 401 (7th Cir. 1996). “The judge’s faithful
observance of the requirements of Rule 11 is just as vital to the fairness and
efficiency of the process as the prosecutor’s compliance.”
Id. at 402 (quoting
United States v. Blackwell,
694 F.2d 1325, 1339 (D.C. Cir. 1982)).
9
[¶29] In cases where the State has agreed to drop a charge or opted not to
pursue a sentencing enhancement in exchange for an agreed-upon sentence,
the court does more than rob the prosecutor of the “benefit of his bargain” by
ordering a lesser sentence. See United State v. Semler, 883 F.2d 832, 834 (9th
Cir. 1989). The court invades the constitutional authority of the State to
prosecute crimes:
A court may not keep the prosecutor’s concession by accepting a
guilty plea to reduced charges, and yet impose a lower sentence
than the one for which the prosecutor and the defendant
bargained. Accepting a plea to a lesser charge over the prosecutor’s
objection impermissibly invades the constitutional authority of the
prosecutor.
Siebert, 537 N.W.2d at 896. This is not to minimize the district court’s role in a
criminal proceeding. “[T]he prosecutor’s unchecked discretion ends when the
case is filed.” State v. Louser,
2021 ND 89, ¶ 19,
959 N.W.2d 883. Once a case
is filed, the court has a duty to protect the public interest and ensure the
administration of justice. Id. at ¶ 20. If the court believes a plea agreement is
unjust, it should reject the agreement. See id. at ¶ 27 (the district court did not
abuse its discretion when it rejected a plea agreement and denied a motion to
amend the charge).
[¶30] Rules 11 and 35, N.D.R.Crim.P., are based on their federal counterparts.
Houle v. State,
482 N.W.2d 24, 28 (N.D. 1992); State v. Wika,
1998 ND 33, ¶ 11,
574 N.W.2d 831. A review of the history of our Rules of Criminal Procedure as
well as the Federal Rules of Criminal Procedure shows the drafters intended
for sentencing courts to abide by the terms of the plea agreements they accept.
Congress rejected a version of Rule 11 proposed by the United States Supreme
Court that contained language indicating a court could impose a sentence
“more favorable to the defendant than that provided for in the plea agreement.”
Semler,
883 F.2d at 833-34. Rejection of this language shows Congress intended
for courts to sentence defendants according to the plea agreements they accept.
Id. at 834. Our Rule 11 once contained the same “more favorable” language,
which has also been removed. See State v. Mortrud,
312 N.W.2d 354, 357 n.3
(N.D. 1981) (quoting the version of N.D.R.Crim.P. 11(d)(3) in effect at the time).
10
Since Congress intended to prohibit district courts from
sentencing defendants to sentences less severe than those provided
for in accepted plea agreements, it seems reasonable to assume
that Congress also intended to prohibit district courts from using
Rule 35(b) after sentencing to reduce sentences imposed in
accordance with accepted plea agreements.
Semler, at 834. I also note that the portion of Fed. R. Crim. P. 35 that allowed
the judge to sua sponte bring a motion for reduction of a sentence has since
been removed. See Fed. R. Crim. P. 35 (revised 1984). Rules 11 and 35,
N.D.R.Crim.P., conflict to the extent Rule 35 allows a district court to reduce a
sentence, on its own motion, that the court was required to impose when it
accepted the plea agreement under Rule 11. Perhaps it is time for review of
N.D.R.Crim.P. 35 to address this conflict.
[¶31] When we are faced with conflicting rules we must attempt to harmonize
them:
When two or more conflicting statutes or rules relate to the same
subject matter in general, every effort should be made to give
meaningful effect to each without rendering one or the other
useless. In so doing, we attempt to give meaning to every
paragraph, sentence, phrase, and word. Statutes and rules are to
be construed in a way which does not Srender them useless, and
because the law neither does nor requires idle acts we will not
assume that any statute or rule was intended to be useless
rhetoric.
Keyes v. Amundson, 343 N.W.2d 78, 83 (N.D. 1983).
[¶32] To harmonize Rules 11 and 35, N.D.R.Crim.P., I would follow the
approach of other jurisdictions and require that exceptional circumstances
exist before a district court may reduce an agreed-upon sentence. In Semler,
the Ninth Circuit Court of Appeals, interpreting a version of the Federal Rules
of Criminal Procedure with rules similar to N.D.R.Crim.P. 11 and 35,
explained:
One can imagine cases where the sentence provided for in the plea
agreement seems reasonable at the time of sentencing, but later
11
seems grossly excessive. Since the initial sentence was the product
of bargaining between the government and the defendant, the
court ideally should not reduce the sentence unilaterally in such
cases, but rather should withdraw its acceptance of the plea
agreement and permit the parties to renegotiate a more
appropriate sentence or opt for trial. However, since nothing in the
rules permits the district court to withdraw its acceptance of a plea
after sentencing, the only way the district court can “reject” a Rule
11[] sentence after sentencing is to reduce the sentence
unilaterally pursuant to Rule 35(b).
We conclude that a district court has the authority . . . to
reduce a sentence entered pursuant to a Rule 11[] agreement in
exceptional cases. . . . [B]ecause Congress in enacting Rule 11[]
intended to protect prosecutors’ bargains, we conclude that Rule
35(b) permits a district court to reduce a sentence imposed
pursuant to an accepted Rule 11[] agreement only in those
exceptional cases where the sentence is plainly unjust or unfair in
light of the information the district court received after sentencing
the defendant.
883 F.2d at 835. Other jurisdictions have reached similar results. See e.g. State
v. Patterson,
564 S.W.3d 423, 432-34 (Tenn. 2018) (agreed-upon sentence may
be reduced “where unforeseen, post-sentencing developments” require
modification “in the interest of justice”); State v. Holdaway,
943 P.2d 72, 75
(Idaho Ct. App. 1997) (post-sentence reduction of agreed-upon sentence
allowed if previously unavailable information is “of such consequence as to
render the agreed sentence plainly unjust”).
[¶33] In the present case, the State agreed to drop firearm enhancements from
the charges, removing mandatory minimum sentencing requirements in
exchange for the guilty plea and the parties’ agreed-upon sentence. The State’s
attorney advised the district court that if the parties’ plea agreement was not
accepted she intended to pursue the minimum mandatory sentence. The court
expressed its disagreement with the agreed-upon sentence but nonetheless
found it reasonable, accepted the plea agreement, and imposed the sentence.
Days later, the court reduced the sentence finding it “unduly harsh” and taking
issue with the State’s attorney for giving the court an “ultimatum.” The State
did not get the benefit of the bargain. By accepting the plea agreement and not
12
abiding by its terms, the court divested the State’s attorney of her power to
enforce criminal laws and to seek the punishment available under the laws she
charged. See State v. Loughead, 2007 ND 16, ¶ 12,
726 N.W.2d 859
(“Prosecutors generally have broad discretion to enforce criminal laws.”); see
also State v. Garcia,
1997 ND 60, ¶ 44,
561 N.W.2d 599 (“[a] State’s attorney
has broad discretion in the charging process”). There were no exceptional
circumstances present in this case to justify reducing the sentence the parties
agreed upon, which the court found reasonable and accepted. I would hold the
court’s use of Rule 35 to circumvent the parties’ plea agreement was a
misapplication of the rule.
[¶34] This Court has determined the district court abused its discretion by
accepting the plea agreement and subsequently modifying the agreed-upon
sentence. Majority at ¶ 20. Yet, under N.D.C.C. § 29-28-35, we cannot reverse
or modify the judgment. This limitation is unnecessary and may lead to
circumvention of the Legislature’s power. For example, the Legislature’s police
power allows it to establish mandatory minimum sentences. If a court
erroneously sentenced a defendant below a mandatory minimum and the State
appealed from the judgment, following N.D.C.C. § 29-28-35 would require we
order the court to enter judgment not according to the law, an absurd result.
[¶35] I hesitantly agree N.D.C.C. § 29-28-35 prohibits us from reversing or
modifying the erroneous judgment in this instance. Under § 29-28-35, all we
can do is “point out any errors” and affirm the erroneous judgment. See State,
ex rel Jorgenson v. Dist. Court of Walsh Cty.,
289 N.W.2d 211, 213 (N.D. 1980)
(granting a supervisory writ and concluding any remedy of appeal from a later
entered judgment would be entirely inadequate because of the limitations
under N.D.C.C. § 29-28-35). Our courts are vested with the “judicial power of
the state,” N.D. Const. art. VI, § 1, the judiciary is a co-equal branch of
government, N.D. Const. art. XI, § 26, we have the authority to promulgate
procedural rules, N.D. Const. art. VI, § 3, and this Court is vested with
appellate jurisdiction over the district courts, N.D. Const. art. VI, § 2. In
discussing N.D. Const. art. VI, § 3, we have stated, “rules promulgated by our
Court prevail over procedural rules enacted by the Legislature.” Interest of
D.J.H.,
401 N.W.2d 694, 699 n.5 (N.D. 1987). The North Dakota Rules of
13
Appellate Procedure address the scope of an appeal in a criminal case under
N.D.R.App.P. 35(b)(1), which states in part:
Power of Court on Review. Upon an appeal from a verdict, judgment, or
order, the court may reverse, affirm, or modify the verdict, judgment, or
order, and may do any of the following:
(A) set aside, affirm, or modify any or all of the
proceedings subsequent to or dependent upon the verdict,
judgment, or order;
(B) order a new trial;
(C) remand the case, with proper instructions and its
opinion, to the district court.
[¶36] The explanatory note to this rule indicates the rule was intended to
supersede statutes relating to the scope of appeal. See N.D.R.App.P. 35,
explanatory note. It appears to me N.D.C.C. § 29-28-35 should have been
superseded by N.D.R.App.P. 35(b), which relates to the scope of our review of
appeals from criminal judgments. However, we have recognized statutorilyenacted rules of procedure that supplement this Court’s promulgated rules
remain in effect until superseded or amended by this Court. We have not
previously stated N.D.R.App.P. 35 supersedes N.D.C.C. § 29-28-35, and the
State did not make that argument on appeal. Therefore, I reluctantly concede
the statute applies in this instance.
[¶37] For these reasons, I concur with the majority.
[¶38] Lisa Fair McEvers
Crothers, Justice, dissenting.
[¶39] I respectfully dissent. Rather than addressing the merits, this appeal
should be dismissed for lack of jurisdiction.
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[¶40] The State appeals from an amended judgment entered after the district
court modified Neilan’s sentence under North Dakota Rule of Criminal
Procedure 35(b). Majority opinion, ¶ 7. Neilan argues the State does not have
standing to appeal because the case does not affect a substantial right of the
State as required under N.D.C.C. § 29-28-07(4). The State argues this issue
affects its substantial right to receive the benefit of its bargain in plea
agreements. Majority opinion, ¶ 7.
[¶41] The majority acknowledges defendants cannot appeal from denial of a
Rule 35(b) motion because a criminal defendant’s Rule 35(b) motion does not
affect a substantial right. Majority opinion, ¶ 11. The majority’s recognition is
consistent with the longstanding position of this Court. See Jensen v. State,
2019 ND 126, ¶ 15,
927 N.W.2d 479; Peterka v. State,
2015 ND 156, ¶ 18,
864
N.W.2d 745; State v. Lowe,
2015 ND 126, ¶ 8,
863 N.W.2d 525; State v. Moore,
2010 ND 229, ¶ 5,
791 N.W.2d 376; Rahn v. State,
2007 ND 121, ¶ 8,
736 N.W.2d
488; State v. Halton,
535 N.W.2d 734, 736 (N.D. 1995); State v. Gunwall,
522
N.W.2d 183, 184-85 (N.D. 1994); State v. Jefferson Park Books, Inc.,
314 N.W.2d
73, 76 (N.D. 1981).
[¶42] Notwithstanding that denial of a defendant’s motion for reduction of
sentence does not affect a substantial right, the majority concludes the
granting of the same motion does affect the State’s substantial right. Majority
opinion, ¶ 12. Doing so, they conclude Gunwall “is dispositive of the issue in
this case.”
Id. In reaching that conclusion the majority acknowledges, “Rueb
focused on the procedure of the hearing to reduce a sentence, and Jefferson
Park Books focused on the defendant’s right to move for a reduction but not
appeal of the denial of reduction[.]”
Id. For proper context, a review of the
issues and holdings in each of these cases is necessary.
[¶43] In Gunwall this Court stated:
Gunwall moved for a reduction of his sentence under Rule
35, NDRCrimP. The first subsection of that rule deals with
correction of an illegal sentence; the second subsection permits
reduction of a sentence. We have said that reduction of a sentence
under Rule 35(b) is not a right but an application for leniency, and
15
is a matter left to the sound discretion of the trial court. See, State
v. Jefferson Park Books, Inc., 314 N.W.2d 73, 76 (N.D. 1981)
(concluding that a defendant’s right to a reduction of sentence is
not a “substantial right” as contemplated by NDCC section 29-28-
06 which controls a defendant’s right to appeal). Because a Rule
35(b) motion does not deal with a substantial right, denial of such
a motion is not appealable. Id.
Gunwall,
522 N.W.2d at 184-85.
In footnote one to the above-quoted text, the Gunwall Court stated:
However, this Court has found that in the event a reduction is
granted to a defendant following a Rule 35(b) application, the State
may appeal. Jefferson Park Books, Inc. 314 N.W.2d at 76. The
subsequent reduction of a sentence previously imposed by a court
affects a substantial right of the state. NDCC section 29-28-07(4);
State v. Rueb, 249 N.W.2d 506, 508 (N.D. 1976).
Id. at n.1.
[¶44] Closer inspection shows the Gunwall footnote regarding the State’s
ability to appeal was dicta because that case only involved whether the
defendant could appeal denial of a Rule 35(b) motion.
522 N.W.2d at 185.
Whether the State also could appeal district court action on a Rule 35(b) motion
was not at issue.
Id. (“Gunwall’s motion below was a Rule 35(b) motion for
reduction of sentence. Denial of a Rule 35(b) motion is not appealable. That
portion of Gunwall’s appeal is therefore dismissed.”).
[¶45] To the extent the Gunwall footnote can be thought to have any currency,
we must examine the holdings upon which it relies—Rueb and Jefferson Park
Books.
[¶46] In Rueb, this Court made several apparent holdings on the way to
remanding for adequate findings by the district court, presumably after
16
providing the State with an opportunity to respond to the defendant’s Rule
35(b) motion. The Court’s syllabus1 identifies the opinion’s following holdings:
1. An order modifying sentence after judgment, as distinguished
from the original sentencing judgment, is an appealable order.
Section 29-28-07(4), NDCC.
2. Rule 35, North Dakota Rules of Criminal Procedure, regarding
reduction of sentence within 120 days after imposition of sentence,
is in full force and effect and its operation is not affected by an
earlier statutory enactment allowing suspension of all or part of a
sentence only prior to the time the offender is transferred to a
penal institution. Section 12.1-32-02(3), NDCC.
3. A reduction of sentence under Rule 35, NDRCrimP, includes
suspension of an unserved sentence and the placing of the
convicted offender on probation.
4. Where a motion for reduction of sentence is made under Rule
35, NDRCrimP, the defendant’s attorney or by the defendant pro
se, Rules 35, 47, and 49, NDRCrimP, require that notice be served
upon the State’s attorney.
5. Change or modification of sentence in this State is permitted
pursuant to Rule 35, NDRCrimP, only, and courts in the State do
not have inherent power to change the sentence during the term of
court.
6. The discretionary power of the sentencing court under Rule 35,
NDRCrimP, is not absolute and abuse of the power is ground for
reversal.
7. Consistent with the requirement that the sentencing court give
reasons for imposing a particular sentence, that court should also
state reasons for reducing a sentence under Rule 35, NDRCrimP.
Section 12-55-30, NDCC.
Rueb, 249 N.W.2d at 507. The Court specifically held “The modification order
of the court is an order made after judgment and the total effect of the order
involves a substantial right of the State.”
Id. at 508. This holding was based on
a number of California court of appeals decisions; however, as noted by the
1“[A] syllabus by the court in North Dakota is a holding of the court.” Matson v. Matson,
226 N.W.2d
659, n.1 (N.D. 1975).
17
dissent in Rueb (more fully discussed below), California does not have
equivalent laws defining what is appealable.
[¶47] In Rueb, Justice Vogel dissented and wrote regarding reliance on
California law:
The California cases cited in the majority opinion do not aid
the majority’s argument. California has no equivalent to Rule 35,
N.D.R.Crim.P., or rule 35, F.R.Crim.P. See 19 Cal.Jur.3d § 1301. A
modification of sentence, unless specifically authorized by statute,
is against the law in California. So it follows, as a matter of course,
that the State has the right to appeal from an illegal sentence (see
People v. Maggio, 96 Cal.App. 409,
274 P. 611 (1929), and 19
Cal.Jur.3d § 1334), just as the State in North Dakota could do so.
An illegal sentence would be one that affected a substantial right
of the State, which, as I have said, has a right to appeal if the
sentence is illegal. The sentence imposed on Mr. Rueb by the
district judge was not illegal. It was within the range of the
minimum and the maximum, and the judge’s authority to sentence
within that range is plenary in North Dakota. State v. Wisnewski,
13 N.D. 649,
102 N.W. 883 (1905).
249 N.W.2d at 513-14.
[¶48] The dissent in Rueb also addressed the appealability issue, stating:
The only statute granting to the State a right to appeal is Section
29-28-07, N.D.C.C. The majority says that appeal in this case is
authorized by subsection 4, which gives the State a right to appeal
from “An order made after judgment affecting any substantial
right of the state.” This provision has been part of our statutes
since 1895 (Sec. 8329, R.C. 1895). It has never before been used to
justify an appeal by the State from a sentence.
I suggest, first of all, that it cannot apply because the State has no
substantial right to any particular sentence. It has a right only to
have that sentence come within the range between the minimum
and the maximum sentences authorized by law. That is the rule as
to appeals by defendants. State v. Jochim, 55 N.D. 313,
213 N.W.
484 (1927). I cannot believe that the State has a greater right in
this respect than the defendant has.
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249 N.W.2d at 513.
[¶49] Six years after Rueb the same Justice authored the Jefferson Park Books
decision. In Jefferson Park Books, that Justice wrote for the Court and
explained the Rueb holding was more about whether the State was required to
receive notice of the defendant’s Rule 35(b) motion. Jefferson Park Books,
314
N.W.2d at 76. The Court stated “In this respect
Rueb, supra, was concerned
primarily with procedure in the application and hearing of the reduction as
affecting a substantial right and not the validity of the sentence per se, which
is the situation in the instant matter.”
Id. The majority in the present case
apparently agrees with this narrow interpretation of the holding in Rueb. See
majority opinion, ¶ 12 (“While Rueb focused on the procedure of the hearing to
reduce a sentence. . . .”).
[¶50] Unlike the expansive reading given by the majority here and the Court
in Gunwall, the Court in Jefferson Park Books narrowly described the State’s
substantial right as receiving proper notice of a defendant’s Rule 35 motion.
We know this from the Court writing, “The State is entitled to notice of a
defendant’s motion for reduction of sentence and if an ex parte order is issued
by the court under Rule 35, NDRCrimP, it affects the substantial right of the
State which did not receive notice of the motion and is appealable by the State.”
314 N.W.2d at 76 (citing Rueb,
249 N.W.2d 506; N.D.C.C. § 29-28-07(4)). The
Court in Jefferson Park Books also retreated from the broader holding in Rueb
that any order modifying sentence after judgment was appealable under
N.D.C.C. § 29-28-07(4). The Court therefore dismissed the defendant’s appeal
from denial of its Rule 35(b) motion because denial of a defendant’s Rule 35(b)
motion was not an order affecting his substantial right. Jefferson Park Books
at 77.
[¶51] I suggest that, when peeled away, the holdings in Rueb and Jefferson
Park Books stand for nothing more than the proposition that the State’s
substantial right is affected when it does not receive notice of the defendant’s
motion for reduction of sentence. I further suggest that neither case stands for
the proposition stated in the Gunwall footnote or held by the majority here
19
that granting a Rule 35(b) motion affects the State’s substantial right. I would
not expand our case law to reach such a holding.
[¶52] Like the dissent in Rueb, here I do not follow the logic of concluding that
on a properly noticed motion the district court’s disposition of a Rule 35(b)
motion is not a “substantial right” for a defendant’s appeal, but is a
“substantial right” for the State. In addition to the disconnect of treating the
defendant and the State differently for no apparent reason, under N.D.C.C. §
29-28-35, the State has no ability to obtain actual relief on appeal. Majority
opinion, ¶¶ 21-23; McEvers, J., concurring opinion, ¶ 35; State, ex rel Jorgenson
v. Dist. Court of Walsh Cty., 289 N.W.2d 211, 213 (N.D. 1980). That lack of a
remedy other than a purely advisory opinion from this Court also clarifies for
me why the State has no substantial right permitting an appeal from an order
granting Rule 35(b) relief.
[¶53] I would hold the district court’s order granting (or denying) a Rule 35(b)
motion does not involve a substantial right of the defendant or the State,
overrule to the extent necessary the conflicting language in Rueb, Jefferson
Park Books, and Gunwall, and dismiss this appeal.
[¶54] Daniel J. Crothers
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