State v. Jemal

                   IN THE SUPREME COURT
                   STATE OF NORTH DAKOTA

                                  

State of North Dakota,                                   Plaintiff and Appellee

      v.

Tofike Jemal,                                         Defendant and Appellant



                                 No. 20250222

Appeal from the District Court of Ward County, North Central Judicial District,
the Honorable Douglas L. Mattson, Judge.

AFFIRMED.

Opinion of the Court by Tufte, Justice.

Tiffany M. Sorgen, Assistant State’s Attorney, Minot, N.D., for plaintiff and
appellee; on brief.

Kiara C. Kraus-Parr, Grand Forks, N.D., for defendant and appellant; on brief.
                                  State v. Jemal
                                  No. 20250222

Tufte, Justice.

[¶1] Tofike Jemal appeals from a district court order revoking his supervised
probation and sentencing him to 117 days of incarceration. We affirm the order
revoking Jemal’s probation.

                                        I

[¶2] Jemal pleaded guilty to disobedience of a judicial order in violation of
N.D.C.C. § 12.1-10-05(1), a class A misdemeanor. A police officer observed Jemal
walking with Jane Doe in violation of a bail order from a separate case that
prohibited him from having contact with her. The district court sentenced Jemal
to 360 days in jail with credit for five days served, suspended the balance, and
placed him on supervised probation for two years.

[¶3] The State later filed a petition to revoke Jemal’s supervised probation,
alleging nine violations of his probation conditions, including new criminal
convictions, alcohol possession or consumption, and controlled substance use.
At the revocation hearing, Jemal admitted to seven of the allegations. The district
court found sufficient evidence to prove the remaining two allegations. After
hearing arguments from both parties, the court revoked Jemal’s probation and
resentenced him to 117 days in the Ward County Jail, with credit for 30 days,
followed by restoration to two years of supervised probation under the same
conditions. Jemal timely appealed the revocation order.

                                        II

[¶4] Jemal argues the district court abused its discretion by failing to make a
finding of fact explaining its decision to revoke his probation. At the sentencing
stage of the revocation hearing, Jemal requested continued probation with
alternative sanctions. He argues the court was required to make findings to
justify choosing incarceration over the alternative sanctions.




                                        1
[¶5] We review probation revocation appeals using a two-step analysis. First,
this Court reviews the district court’s factual findings on whether the defendant
violated probation conditions under the clearly erroneous standard. State v.
McAvoy, 

, 

. A finding of fact is clearly
erroneous if it is “induced by an erroneous view of the law, when there is no
evidence to support it, or if, although there is some evidence to support it, on the
entire evidence, the court is left with a definite and firm conviction that a mistake
has been made.” Id. ¶ 8. Second, we review whether the court abused its
discretion in deciding to revoke probation. Id. ¶ 17. A court abuses its discretion
when it “acts in an arbitrary, unreasonable, unconscionable, or capricious
manner, or if its decision is not the product of a rational mental process leading
to a reasoned determination, or if it misinterprets or misapplies the law.” State
v. Jacobson, 

, 

.

[¶6] District courts possess broad discretion in sentencing decisions, and this
Court’s review is correspondingly limited. State v. Wardner, 

,

. This Court reviews only whether the court imposed a sentence
within the statutory range and whether the court relied on impermissible factors.

 The same deferential standard applies to both initial sentencing decisions
and probation revocation decisions. See Wardner, ¶ 27 (applying identical
discretionary review to both initial sentencing and probation revocation).
Although the court must make findings of fact regarding the alleged violations,
it need only state its reasons for revoking probation, either in a written order or
on the record and reflected in the hearing transcript. State v. Ennis, 

 (N.D. 1990).

[¶7] Our review of the revocation hearing transcript reveals that the district
court did not abuse its discretion, because it used a rational mental process to
come to a reasoned conclusion and did not rely on impermissible factors to
impose a sentence within the statutorily-defined limitations. After factual
findings in the first-step analysis showing Jemal had violated the conditions of
his probation, the court articulated its reasoning for imposing incarceration in
the second-step analysis at the revocation hearing:




                                         2
            It’s been a constant in that considering that the judgment was
      entered in what — about the 6th of December. And then by the end
      of January, the Defendant had a number of convictions, and the
      items just kind of continued on. One wants to blame alcohol, and
      alcohol can be a very cunning and powerful device, and it can trick
      even the best of people. . . .
            And that, sir, you are responsible for your actions, . . . .
             I do think, though, that [Jemal’s] Counsel’s minimizing the
      idea of forced sobriety, and that by way of incarceration. I don’t
      know if it’s all that demeaning, or in terms of minimal, in that it can
      be helpful to help clear one’s head, and to be able to prove to oneself
      that those urges, or even trigger points, to consume alcohol, can be
      overcome in a bit.
            That’s what the forced sobriety — if I remember right, the
      early days of A.A. had forced sobriety, a bit. Well, this is a bit of a
      variation, but it’s also punishment, and it’s meant to be deterrence.
      And from the standpoint of it’s a forced rehabilitation, at least for that
      particular time. . . .

(Emphasis added.)

[¶8] The district court’s sentencing decision was within statutory limits and did
not rely on impermissible factors. The transcript reveals that the court decided
to revoke probation and order Jemal’s incarceration on account of his repeated
violations of the conditions of his probation, and to achieve the legitimate
penological purposes of imposing punishment, deterring future criminal acts,
and providing rehabilitation through a period of sobriety. See N.D.C.C. § 12.1-
01-02(1) (identifying merited punishment, deterrence of crime, rehabilitation,
and incapacitation as objectives of the North Dakota Criminal Code). The
underlying sentence was for a class A misdemeanor, and the sentence of 117 days
did not exceed the 360-day maximum. N.D.C.C. § 12.1-32-01(5). The transcript
does not reveal any reliance on impermissible factors and demonstrates “a
rational mental process leading to a reasoned determination.” Jacobson, 

.

[¶9] Contrary to Jemal’s argument, our precedent does not require district
courts to make separate factual findings at the second step of the revocation


                                          3
analysis. See Wardner, 

; see Ennis, 

. We decline
to add such a requirement here. The court may rely on its step-one findings
regarding probation violations when deciding whether revocation is warranted.
Wardner, ¶ 27; Ennis, at 386. We find no support for Jemal’s claim that a finding
of fact is necessary when the defendant requests consideration of sanctions short
of incarceration. We conclude the court did not abuse its discretion or otherwise
err when it revoked Jemal’s probation and ordered his incarceration.

                                       III

[¶10] In his brief, Jemal also challenges the underlying conviction for
disobedience of a judicial order, arguing that the district court violated Rule 11
of the North Dakota Rules of Criminal Procedure in accepting Jemal’s guilty plea.
Jemal did not appeal from that judgment. A notice of appeal must designate the
order or judgment to be appealed. N.D.R.App.P. 3(c)(2). A party may not
challenge an order not designated in the notice of appeal. Glaum v. State, 

, ¶ 23, 

. Accordingly, we decline to consider Jemal’s
argument disputing the earlier conviction.

                                       IV

[¶11] The district court did not abuse its discretion in revoking Jemal’s probation
and sentencing him to 117 days’ incarceration. We affirm the order revoking
probation.

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




                                        4