IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2025 ND 138
State of North Dakota, Plaintiff and Appellee
v.
Brian J. Erickstad, Defendant and Appellant
No. 20240300
Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable David E. Reich, Judge.
REVERSED AND REMANDED.
Opinion of the Court by Crothers, Justice.
Julie Lawyer, State’s Attorney, Bismarck, ND, for plaintiff and appellee.
Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.
State v. Erickstad
No. 20240300
Crothers, Justice.
[¶1] Brian Erickstad appeals from a district court’s order denying his motion
for correction of sentence. We reverse and remand.
I
[¶2] In September 1998 Erickstad was convicted of two counts of class AA
felony murder, one count of class AA felony conspiracy to commit murder, one
count of class B felony theft, and two counts of class C felony theft. He was
sentenced to life in prison with the possibility of parole on the murder charges
and 10 years consecutively for the theft charges. In 2017, the clerk of the district
court notified Erickstad by letter that a statutory change may impact his
sentence. The letter advised Erickstad that “Life sentences which include the
possibility of parole must now include a calculation of 85% of life expectancy.”
The letter was apparently referring to N.D.C.C. § 12.1-32-09.1(2), providing:
In the case of an offender who is sentenced to a term of life
imprisonment with opportunity for parole under subsection 1 of
section 12.1-32-01, the term “sentence imposed” means the
remaining life expectancy of the offender on the date of sentencing.
The remaining life expectancy of the offender must be calculated on
the date of sentencing, computed by reference to a recognized
mortality table as established by rule by the supreme court.
Id. This provision was adopted in 1997, prior to Erickstad’s conviction or
commission of the crimes. See N.D. Sess. Laws 1997, ch. 135, § 1.
[¶3] No changes were made to Erickstad’s judgment until 2022 when the North
Dakota Department of Corrections and Rehabilitation filed a memorandum with
the district court requesting an amended judgment be entered containing
Erickstad’s life expectancy. The court entered an amended judgment in May
2022, which Erickstad alleges changed his eligibility for parole beginning when
he is 79 years old rather than “in [his] 50’s” as was mentioned by the original
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sentencing judge. The DOCR did not provide Erickstad with its memorandum
filed with the court, and he was not provided with notice of the amended
judgment.
[¶4] On May 29, 2024, Erickstad filed a motion to correct what he claimed was
an illegal sentence. He argues the district court erred by denying his motion
because it imposed an illegal sentence in 2022 by entering an amended judgment
without providing him notice or an opportunity to be heard, the enabling
administrative rule, N.D. Sup. Ct. Admin. R. 51, was not enacted at the time of
sentencing, and amendment of his sentence violates the ex post facto prohibition.
Erickstad requests that this Court reverse and remand the amended judgment
for the district court to correct the sentence.
II
[¶5] Erickstad claims the district court erred by failing to provide him with
notice and an opportunity to be heard before entering the second amended
judgment.
[¶6] A district court may correct an illegal sentence at any time, and may
correct a sentence imposed in an illegal manner within the time allowed for a
N.D.R.Crim.P. 35(b)(1) motion. Rule 35, N.D.R.Crim.P. provides:
(a) Correction of Sentence.
(1) Illegal Sentence. The sentencing court shall correct an illegal
sentence at any time and may correct a sentence imposed in an
illegal manner within the time provided for reduction of sentence in
Rule 35(b)(1).
(2) Clear Error. After giving any notice it considers appropriate, the
sentencing court may correct a sentence that resulted from
arithmetical, technical, or other clear error.
(b) Reduction of Sentence.
(1) Time for Reduction. The sentencing court may reduce a sentence:
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(A) within 120 days after the court imposes sentence or revokes
probation; or
(B) within 120 days after the court receives the mandate issued upon
affirmance of the judgment or dismissal of the appeal; or
(C) within 120 days after the Supreme Court of the United States
enters any order or judgment denying review of, or having the effect
of upholding a judgment of conviction or probation revocation.
[¶7] A district court shall correct an illegal sentence at any time with notice.
N.D.R.Crim.P. 35(a)(2); see State v. Comes, 2019 ND 99, ¶ 8,
926 N.W.2d 117
(stating “amendments made to N.D.R.Crim.P. 35(a)(2) in 2006 provided that the
sentencing court may correct a sentence that resulted from arithmetical,
technical, or other clear error ‘after giving any notice it considers appropriate’
(emphasis added)” and explaining “[a]ssuming, without deciding, the district
court acted under N.D.R.Crim.P. 35(a)(2), it was required to give an appropriate
amount of advance notice to both [parties] prior to issuing the second amended
judgment”).
[¶8] This Court emphasized the value of notice to the State and the defendant
before modifying a judgment to conform to law, stating:
“By giving such notice, the court will have the benefit of the two
sides and will also eliminate any unwarranted criticism of the
judicial process. It has been stated that it is not sufficient that justice
be done but that justice must also appear to be done. This would
give recognition to this philosophic concept. Where the court decides
to reduce the sentence sua sponte prior notice is also required
as stated above and for the same reasons.”
Comes, ¶ 7 (quoting State v. Rueb, 249 N.W.2d 506, 510 (N.D. 1976) (emphasis in
original)).
[¶9] The State conceded it has no evidence showing Erickstad was notified of
the second amended judgment proceedings. The State later claimed, “While the
notice didn’t come directly from the district court, notice of the request for an
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amended judgment did go to Erickstad’s attorney of record in the case prior to
the district court’s entry of an amended judgment.” Nothing in the district
court’s order explains what the court relied on when proceeding to amend the
judgment.
[¶10] A district court may amend a sentence under N.D.R.Crim.P. 35(a)(2) “that
resulted from arithmetical, technical, or other clear error after giving any notice
it considers appropriate.” Comes, 2019 ND 99, ¶ 8 (cleaned up). In this case, if the
court relied on N.D.R.Crim.P. 35(a)(2), the court was required to give notice to
the State and Erickstad.
Id. (stating, “Assuming, without deciding, the district
court acted under N.D.R.Crim.P. 35(a)(2), it was required to give an appropriate
amount of advance notice to both Comes and the State prior to issuing the second
amended judgment.”). Similar to Comes, the court here did not provide notice to
Erickstad of the amendment prior to issuing the second amended judgment.
While the district court had jurisdiction to amend the judgment under
N.D.R.Crim.P. 35(a)(2), it failed to provide notice and therefore abused its
discretion.
[¶11] The district court misapplied the law and abused its discretion by failing
to give Erickstad notice before issuing the second amended judgment. Because
the failure to provide notice is dispositive, it is unnecessary for us to review the
other issues raised by Erickstad.
III
[¶12] We reverse the district court’s order denying Erickstad’s motion for a
corrected sentence and remand for proceedings consistent with this decision.
[¶13] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
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