FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
AUGUST 2, 2023
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2023 ND 143
Department of Corrections and Rehabilitation, Petitioner
v.
The Honorable Stacy J. Louser, Judge of the
District Court, North Central Judicial District,
and State of North Dakota, and Adrian Rodriguez, Respondents
No. 20230117
Petition for Supervisory Writ.
PETITION FOR SUPERVISORY WRIT DENIED.
Opinion of the Court by Jensen, Chief Justice.
Scott O. Diamond, Special Assistant Attorney General, Fargo, ND, for
petitioner.
Mitchell D. Armstrong (argued) and Jon C. Lengowski (on brief), Special
Assistant Attorneys General, Bismarck, ND, for respondent The Honorable
Stacy J. Louser, Judge of the District Court, North Central Judicial District.
DOCR v. Louser
No. 20230117
Jensen, Chief Justice.
[¶1] The Department of Corrections and Rehabilitation (hereinafter “DOCR”)
petitions the North Dakota Supreme Court to exercise its original supervisory
jurisdiction to direct the Honorable Judge Stacy J. Louser (hereinafter “district
court”) to amend a portion of a criminal judgment imposing probation as part
of a sentence for a class B misdemeanor and requiring the DOCR to supervise
the probation. The DOCR argues it does not have statutory authority to
supervise probation when the underlying charge is a class B misdemeanor. The
DOCR requests the criminal judgment be amended to relieve the DOCR from
the obligation to supervise the probation. Without deciding whether the district
court has the authority to require a defendant to be supervised by the DOCR
as part of a sentence imposed for a class B misdemeanor, we conclude the
DOCR does have the authority to provide the supervision and decline to
exercise our supervisory jurisdiction.
I
[¶2] A defendant was charged with a single count of domestic violence—
bodily injury, a class B misdemeanor, in violation of N.D.C.C. § 12.1-17-
01.2(2)(a). The defendant entered an open plea, and the district court
sentenced him to serve 30 days with the balance suspended, and to probation
for 360 days, under the supervision of the DOCR. The DOCR informed the
State it could not supervise the defendant because it was not authorized to do
so under N.D.C.C. § 12.1-32-07(1), the statutory provision outlining sentencing
procedures based upon the classification of offenses. A status conference to
discuss the matter was held, during which the district court reaffirmed its
ruling that required the DOCR to supervise probation.
[¶3] The DOCR now seeks a supervisory writ, arguing it lacks statutory
authority under N.D.C.C. § 12.1-32-07(1) to supervise probation when the
offense is a class B misdemeanor. The district court resists, arguing the plain
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language of N.D.C.C. § 12.1-32-07(1) permissibly allows it to choose the DOCR
or another community corrections program to supervise probation.
II
[¶4] The DOCR requests this Court exercise its supervisory jurisdiction and
direct the district court to amend the criminal judgment to relieve the DOCR
from the obligation to supervise the probation. We may exercise our
supervisory authority under N.D. Const. art. VI, § 2. “We exercise our authority
to issue supervisory writs rarely and cautiously, and only to rectify errors and
prevent injustice in extraordinary cases when no adequate alternative remedy
exists.” State, ex rel. Harris v. Lee, 2010 ND 88, ¶ 6,
782 N.W.2d 626. This
Court’s authority to issue a supervisory writ is purely discretionary, and is
determined on a case-by-case basis.
Id.
III
[¶5] In seeking supervision, the DOCR argues N.D.C.C. § 12.1-32-07(1)
precludes the DOCR from supervising probation when the underlying criminal
conviction is a class B misdemeanor. Section 12.1-32-07(1), N.D.C.C., is as
follows:
When the court imposes probation upon conviction for a felony
offense subject to section 12.1-32-09.1 or 12.1-32-02.1, a second or
subsequent violation of section 12.1-17-07.1, a second or
subsequent violation of any domestic violence protection order, a
violation of chapter 12.1-41, a violation of section 14-09-22, or a
felony offense under chapter 39-08, the court shall place the
defendant under the supervision and management of the
department of corrections and rehabilitation. When the court
imposes probation upon conviction or order of disposition in all
other felony cases, the court may place the defendant under the
supervision and management of the department of corrections and
rehabilitation. In class A misdemeanor cases, the court may place
the defendant under the supervision and management of the
department of corrections and rehabilitation or other responsible
party. In all other cases, the court may place the defendant under
the supervision and management of a community corrections
program other than the department of corrections and
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rehabilitation. A community corrections program means a
program for the supervision of a defendant, including monitoring
and enforcement of terms and conditions of probation set by the
court.
[¶6] The DOCR is incorrect in its assertion that N.D.C.C. § 12.1-32-07(1)
grants or prohibits the DOCR power to supervise. Section 12.1-32-07(1)
governs the power of the district court to order supervised probation and
provides the court an outline of sentencing procedures when imposing
probation as part of a sentence. The DOCR’s authority to supervise is found
under N.D.C.C. § 54-23.3-01. Section 54-23.3-01 provides the DOCR “is
responsible for the direction and general administrative supervision, guidance,
and planning of adult and juvenile correctional facilities and programs within
the state.” The DOCR includes a division that provides parole and probation
for adult offenders. N.D.C.C. § 54-23.3-01. Section 54-23.3-01.1(4), N.D.C.C.,
defines an offender as “a person who has been committed to the legal and
physical custody of the department of corrections and rehabilitation, or placed
under the supervision and management of the department by a district
court[.]” Section 54-23.3-01.1(6), N.D.C.C., defines probationer as “an offender
who has been placed under the supervision and management of the
department of corrections and rehabilitation by a district court[.]”
[¶7] The defendant in this case meets the definition of both offender and
probationer under N.D.C.C. § 54-23.3-01.1(4) and (6) because the defendant
has been placed under the supervision of the DOCR by the district court.
Therefore, because the power of the DOCR to supervise is governed by
N.D.C.C. § 54-23.3-01, the DOCR has broad authority to supervise when the
court places an offender or probationer under the supervision of the DOCR. In
this case, the DOCR has the authority to supervise the defendant.
[¶8] We decline to decide whether the district court is restricted under
N.D.C.C. § 12.1-32-07(1) from directing the DOCR to supervise class B
misdemeanors. Whether the court is prevented from imposing probation under
the supervision of the DOCR when the underlying conviction is a class B
misdemeanor can be challenged by individual defendants asserting the
sentence exceeds the court’s statutory authority or creates an illegal sentence.
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[¶9] As noted above, this Court exercises its supervisory jurisdiction “rarely
and cautiously.” Harris, 2010 ND 88, ¶ 6. The DOCR has broad authority under
N.D.C.C. § 54-23.3-01 to supervise offenders and probationers when directed
by the district court. We decline to exercise our discretion to grant supervisory
relief and deny the DOCR’s petition.
IV
[¶10] We decline to exercise our supervisory jurisdiction and decline the
request to direct the district court to amend the criminal judgment requiring
the DOCR to supervise probation.
[¶11] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
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