Gonzalez v. State

                   IN THE SUPREME COURT
                   STATE OF NORTH DAKOTA

                                 

Garron William Gonzalez,                              Petitioner and Appellant
       v.
State of North Dakota,                               Respondent and Appellee



                                No. 20250019

Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable James S. Hill, Judge.

DISMISSED.

Opinion of the Court by McEvers, Justice.

Kiara C. Kraus-Parr, Grand Forks, ND, for petitioner and appellant.

Julie A. Lawyer, State’s Attorney, Bismarck, ND, for respondent and appellee;
submitted on brief.
                               Gonzalez v. State
                                No. 20250019

McEvers, Justice.

[¶1] Garron Gonzalez appeals from a judgment denying his application for
postconviction relief. Gonzalez argues the district court erred in denying his
application because he was illegally sentenced in 2005 and his credit for time
served is inaccurately stated in the criminal judgment. Because Gonzalez has
fully served his sentence, we dismiss the appeal as moot.

                                        I

[¶2] In 2004, Gonzalez pled guilty to two counts of gross sexual imposition, and
the district court sentenced him to five years on each count, concurrently, with
all but 130 days suspended for a five-year period of probation. In 2005, the court
revoked Gonzalez’s probation and resentenced him to five years on each count,
concurrently, with all but 30 months suspended for five years of probation. In
2011, the court revoked his probation and resentenced him to 20 years on each
count, consecutively. In 2013, the court granted an application for postconviction
relief, vacating the judgment and ordering a new revocation hearing. In 2014, the
court revoked his probation and resentenced him to 20 years on each count,
concurrently. In 2023, the court granted Gonzalez’s postconviction application
under Dubois v. State, 

, 

, and State v. McGinnis, 

, 

, and resentenced him to five years on each count,
consecutively. Gonzalez appealed, and we reversed and remanded for
resentencing, concluding the consecutive five-year sentences were illegal under
the pre-amended version of N.D.C.C. § 12.1-32-07(6) because they were greater
than the originally imposed, but suspended, sentences. State v. Gonzalez, 

, 1 N.W.3d 919. In February 2024, the court resentenced
Gonzalez to five years on each count, concurrently, with credit for time served
of 6 years, 6 months, and 153 days.

[¶3] In May 2024, Gonzalez filed the instant postconviction relief application,
arguing that he was illegally sentenced in 2005 under Dubois, and that the
criminal judgment incorrectly states his credit for time served. He also filed a


                                        1
document with his own time served calculations, claiming he should be credited
with 9 years, 1 month, and 24 days. The State answered the application, opposing
his arguments. Gonzalez moved to waive the postconviction hearing, which the
court granted. After Gonzalez submitted a closing brief and exhibits, the court
denied his application for postconviction relief, concluding he failed to meet his
burden showing that he was illegally sentenced or that his credit for time served
was incorrect. The court entered judgment.

                                        II

[¶4] We consider the threshold issue of mootness before reaching the merits of
an appeal, even when neither party raises mootness. State v. Oshiro, 

, 

. “When it becomes impossible for the Court to issue relief,
no controversy exists and the issue is moot.” 

 We do not give advisory
opinions and will dismiss an appeal if the issue becomes moot. 

 “An appeal
becomes moot when by lapse of time or by events occurring prior to our decision
this Court is unable to render effective relief.” 

 If the district court decision
continues to have collateral consequences for the appellant, the appeal is not
moot. 

[¶5] In Oshiro, the defendant argued the district court illegally sentenced him
because it did not give him credit for all of the days he previously served. 

. We dismissed his appeal as moot because he served his concurrent
revocation sentences and was released from prison while the appeal was
pending:

            Oshiro’s release from prison during the pendency of this
      appeal makes it impossible for this Court to issue any sort of relief
      or remedy. Oshiro has completed his concurrent revocation
      sentences. We cannot change credit for time served because the
      prison term Oshiro was ordered to serve has been completed.
      Further, the district court’s revocation sentence does not continue to
      have collateral consequences for Oshiro because his sentence did not
      include a term of supervised release or probation after he served his
      prison term. Oshiro fully completed the terms of his revocation
      sentence, leaving no adverse consequence to suffer as a result of the
      revocation sentence. Therefore, . . . this appeal presents a request for


                                         2
       an advisory opinion because no actual controversy remains. We
       conclude the appeal is moot.

Id. ¶ 9.

[¶6] Gonzalez argues his 2005 sentence was illegal. Gonzalez’s current sentence
was imposed in February 2024 when the district court resentenced him to five
years on each count, concurrently, with credit for time served of 6 years, 6
months, and 153 days. “‘Resentencing’ is the ‘act or an instance of imposing a
new or revised criminal sentence.’” State v. Wardner, 

, 

 (quoting Black’s Law Dictionary 1309 (7th ed. 1999)); see also State v.
Larsen, 

, 

 (“[R]esentencing upon revocation is
punishment for the original offenses.”); Wardner, ¶ 11 (“The term ‘resentencing’
also applies to a district court’s sentencing on remand from appellate review.”).
“An amended judgment revoking probation and resentencing a defendant is not
a ‘whole new process’ leading to a ‘separate judgment’ . . . , but instead simply
amends and replaces the initial judgment.” State v. Netterville, 

, ¶ 10,

. Gonzalez’s 2005 sentence was revoked and therefore is no
longer in effect. The February 2024 sentence is the sentence imposed against him.
See McGinnis, 

 (comparing the newest sentence against the
original sentence without regard for the intermediate sentence when reviewing
the legality of a sentence). Moreover, Gonzalez’s current sentence is exactly the
sentence that he is now arguing his 2005 sentence should have been: five years
on each count, concurrently (i.e. the sentence initially imposed but suspended).

[¶7] In addition to the 2005 sentence no longer being in effect and his current
sentence reflecting what he is arguing, Gonzalez has completed his term of
imprisonment under the 2024 criminal judgment, similar to Oshiro. The 2024
judgment states his credit for time served as 6 years, 6 months, and 153 days,
which is more time than he was ordered to serve—five years, concurrently.
Gonzalez has not challenged his criminal convictions or the orders revoking his
probation; rather, he challenges only his sentence. Generally, attacking an
expired sentence is a moot argument. Oshiro, 

; see also Lane v.
Williams, 

 (1982) (“Since respondents elected only to attack their




                                        3
sentences, and since those sentences expired during the course of these
proceedings, this case is moot.”).

[¶8] At oral argument, Gonzalez through counsel acknowledged that he has
finished serving his sentence, but argued collateral consequences remain,
including to his employment prospects and housing options. Gonzalez’s
conviction, rather than his sentence, likely includes collateral consequences. See
Kahl v. Dir., N.D. Dep’t of Transp., 

, 

 (“The United
States Supreme Court has held that a defendant’s completion of a sentence
imposed as a result of a criminal conviction does not render a direct appeal from
the conviction moot because of the collateral consequences stemming from a
conviction . . . .”); State v. Moses, 

, 

 (noting a
person convicted of a felony is prohibited from possessing a firearm). However,
like Oshiro, the 2024 judgment does not include a term of probation, and
therefore his sentence does not continue to have collateral consequences. Further,
Gonzalez is currently serving a federal sentence under the custody of the Federal
Bureau of Prisons. We conclude his alleged collateral consequences are remote
and speculative, and would not be cured by a favorable ruling by this Court. See
Lane, 

 (rejecting as collateral consequences discretionary
decisions, including by employers); Int. of M.R., 

, 

 (concluding alleged collateral consequences in child deprivation case, such as
employment prospects and housing options, were “remote and speculative” and
“would not be cured by a favorable ruling on appeal”).

[¶9] Gonzalez also argues his credit for time served is inaccurately stated in the
criminal judgment. This was the same argument made in Oshiro. We therefore
resolve it in the same way. Because the term of imprisonment Gonzalez was
ordered to serve has been completed, any additional credit for time served is
academic and irrelevant. Oshiro, 

; see also Contant v. Lindsay,

 (3d Cir. 2012).

[¶10] We do “not render advisory opinions, and an appeal will be dismissed if
the issues become moot or academic, leaving no actual controversy to be
determined.” Schwartzenberger v. McKenzie Cnty. Bd. of Cnty. Comm’rs, 

, 

. This appeal presents a request for an advisory opinion.
We conclude the appeal is moot and therefore dismiss the appeal.

                                      III

[¶11] The appeal is dismissed.

[¶12] Jon J. Jensen, C.J.
      Daniel J. Crothers
      Lisa Fair McEvers
      Jerod E. Tufte
      Douglas A. Bahr




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