If a defendant's crime and revocation of probation occurred after the 2021 amendment to N.D.C.C. § 12.1-32-07(6), a district court may resentence the defendant up to the maximum allowed at the time of his original sentence.
State of North Dakota, Plaintiff and Appellee
v.
Michael Allan Nelson, Defendant and Appellant
No. 20230346
Appeal from the District Court of Barnes County, Southeast Judicial District,
the Honorable Jay A. Schmitz, Judge.
AFFIRMED.
Opinion of the Court by Crothers, Justice.
Tonya Duffy, State’s Attorney, Valley City, ND, for plaintiff and appellee;
submitted on brief.
Samuel A. Gereszek, Grand Forks, ND, for defendant and appellant; submitted
on brief.
State v. Nelson
No. 20230346
Crothers, Justice.
[¶1] Michael Nelson appeals from a district court’s order and judgment
revoking his probation and resentencing him to 36 months of incarceration.
Nelson argues the court erred by imposing an illegal sentence after it revoked
his probation because the new sentence is longer than his original sentence.
He contends the sentence should be reversed and made consistent with his
original sentence. We affirm.
I
[¶2] “A district court has discretion in sentencing, and review of a sentence is
generally limited ‘to whether the court acted within the statutorily prescribed
sentencing limits or substantially relied on an impermissible factor.’” State v.
Clark,
. This Court reviews a district court’s
decision for an “abuse of discretion,”
id.,
and a “court abuses its discretion if it
acts in an unreasonable, arbitrary, or unconscionable manner, if its decision is
not the product of a rational mental process leading to a reasoned decision, or
if it misinterprets or misapplies the law.” State v. Pemberton,
.
[¶3] “The sentencing court shall correct an illegal sentence at any time.”
N.D.R.Crim.P. 35(a)(1). A sentence is illegal if “it is not authorized by the
judgment of conviction.” State v. Williamson,
, 1 N.W.3d 610. An
illegal sentence occurs when it is “in excess of a statutory provision or in some
other way contrary to an applicable statute.” State v. Glasser,
. A district court that revokes probation can “impose any
other sentence that was available” at the time of the initial sentencing or
deferment. N.D.C.C. § 12.1-32-07(6).
[¶4] In their briefing, the parties agreed Nelson’s crimes aligned with the
Dubois line of cases, which limits a district court to resentence probationers to
no greater than their original sentence. Dubois v. State,
, 1 N.W.3d 919. The parties were not correct.
[¶5] Nelson’s crime, sentencing, and revocation of probation occurred in 2022
and 2023, which was after the 2021 amendment to N.D.C.C. § 12.1-32-07(6).
The 2021 amendment removed language limiting the district court’s ability to
resentence a probationer to terms greater than their original sentence. 2021
N.D. Sess. Laws ch. 111. The section now reads that when a probationer falters
during probation, the district court may impose any sentence that was
available during the original sentencing. N.D.C.C. § 12.1-32-07(6).
[¶6] Under the statute as amended in 2021, the district court had authority
to resentence Nelson to the maximum allowed at the time of his original
sentence. N.D.C.C. § 12.1-32-07(6); see also State v. Rinde,
(discussion of 2021 amendment to N.D.C.C. § 12.1-32-07(6) and the interplay
within the Dubois line of cases). The district court did not abuse its discretion
when it resentenced Nelson. We affirm.
[¶7] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
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