State v. Miller

                   IN THE SUPREME COURT
                   STATE OF NORTH DAKOTA

                                  

State of North Dakota,                                     Plaintiff and Appellee
      v.
Joseph Frederick Miller,                               Defendant and Appellant



                           Nos. 20250174 & 20250175

Appeal from the District Court of Nelson County, Northeast Central Judicial
District, the Honorable Theodore Sandberg, Judge.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Opinion of the Court by McEvers, Justice.

Joshua E. Frey, State’s Attorney, Lakota, ND, for plaintiff and appellee.

Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.
                                 State v. Miller
                           Nos. 20250174 & 20250175

McEvers, Justice.

[¶1] Joseph Miller appeals from district court orders, followed by subsequently
entered amended criminal judgments, revoking probation and resentencing case
numbers 32-2023-CR-00110 (“CR110”) and 32-2024-CR-00003 (“CR003”),
consolidated on appeal. Miller argues the court erred by revoking probation
without sufficient factual support to warrant revocation. Miller also argues the
sentences imposed for two violations of a domestic violence protection order are
illegal. We affirm in part, reverse in part, and remand for further proceedings.

                                       I

[¶2] In December 2023, the State charged Miller in CR110 with Count 1, class C
felony aggravated assault; and Count 2, class C felony violation of a domestic
violence protection order (“DVPO”), second or subsequent offense. In January
2024, Miller was charged in CR003 with a class C felony violation of a DVPO,
second or subsequent offense. Miller initially pled not guilty in both cases.

[¶3] At a June 2024 change of plea hearing addressing Miller’s several criminal
cases, the district court amended Count 2, violation of a DVPO, in CR110 on the
record from a C felony to an A misdemeanor, first offense, because a prior
violation of a DVPO charge was dismissed. Miller entered an Alford plea to the
class C felony aggravated assault in CR110. Miller pled guilty to the amended A
misdemeanor violation of a DVPO in CR110 and the C felony violation of a
DVPO, second or subsequent offense, in CR003. Miller also pled guilty to other
charges not at issue on appeal.

[¶4] The district court orally sentenced Miller in CR110 on Count 1, aggravated
assault, to five years with the Department of Corrections and Rehabilitation,
with all but six months suspended, first to serve 30 days in custody, followed by
electronic home monitoring; on Count 2, violation of a DVPO, to 360 days with
all but six months suspended, first to serve 30 days in custody, followed by
electronic home monitoring. On both counts, the court placed Miller on two
years of supervised probation subject to terms and conditions. For the C felony

                                       1
violation of a DVPO in CR003, the court orally sentenced Miller to five years,
with all but six months suspended, first to serve 30 days in custody, followed by
electronic home monitoring, and two years of supervised probation. All
sentences in CR110 and CR003 were to run concurrently. The court entered a
criminal judgment in CR110 which accurately reflected the orally-imposed
sentence but classified Count 2 as a C felony, second or subsequent offense. The
district court twice entered amended judgments in CR110—first on July 2, 2024,
to clarify the details of Miller’s probation, and again on September 13, 2024, to
reflect a finding of Miller’s contempt for violating the terms of his probation.
Miller did not appeal from the criminal judgments.

[¶5] In February 2025, the State filed petitions for probation revocation in
CR110 and CR003 alleging Miller failed to abide by the terms of his probation
between October 2024 and February 2025. At a probation revocation hearing in
April 2025, the State dismissed some allegations in its petition, and Miller
admitted to all remaining probation violations alleged in both cases. Based on
Miller’s admissions, the district court orally found Miller violated the terms of
probation in both cases and revoked Miller’s probation. The court resentenced
Miller on Count 1, aggravated assault, in CR110 to five years with the
Department of Corrections and Rehabilitation with credit for 233 days
previously served and an identical sentence in CR003, to run currently with
CR110. The court did not specifically pronounce a new sentence on the record
for Count 2, violation of a DVPO, in CR110. The court entered amended criminal
judgments. The amended judgment in CR110 reflected a sentence for Count 2
identical to Count 1, and classified Count 2 as a class C felony, second or
subsequent offense. Miller timely appealed the orders in both cases on May 9,
2025.

                                       II

[¶6] Miller argues the district court abused its discretion by revoking probation
without making adequate findings on whether revocation was warranted. At the
probation revocation hearing, Miller requested to remain on probation with
alternative sanctions. Miller argues the court must make findings on whether
incarceration outweighs the policy favoring probation.


                                       2
[¶7] This Court uses a two-step analysis to review probation revocations. State
v. Hatzenbuehler, 

, 

. First, we review the court’s
factual findings on whether the defendant violated probation conditions under
a clearly erroneous standard. State v. Jemal, 

. The State must
prove probation violations by a preponderance of the evidence. State v. Wetzel,

, 

. A district court’s findings of fact are adequate
if they provide an understanding of the factual basis used in reaching its
determination. Hatzenbuehler, ¶ 6. “A finding of fact is clearly erroneous if,
although there may be some evidence to support it, the reviewing court on the
entire evidence, is left with a definite and firm conviction a mistake has been
made.” 

 Second, we review the court’s decision to revoke probation under an
abuse of discretion standard. 

 “A court abuses its discretion when it ‘acts in an
arbitrary, unreasonable, 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.’” Jemal, ¶ 5 (quoting State v. Jacobson, 

, 

).

[¶8] We recently reviewed a similar argument in Jemal where we stated:

             District courts possess broad discretion in sentencing
      decisions, and this Court’s review is correspondingly limited. 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. 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.

 (cleaned up). Under N.D.C.C. § 12.1-32-04, factors weighed in
sentencing determinations include in relevant part:

      1. The defendant’s criminal conduct neither caused nor threatened
      serious harm to another person or his property.
      ....



                                         3
      7. The defendant has no history of prior delinquency or criminal
      activity, or has led a law-abiding life for a substantial period of time
      before the commission of the present offense.
      8. The defendant’s conduct was the result of circumstances unlikely
      to recur.
      9. The character, history, and attitudes of the defendant indicate that
      he is unlikely to commit another crime.
      10. The defendant is particularly likely to respond affirmatively to
      probationary treatment.

Although entitled to consideration, these factors do not control the district
court’s discretion in a revocation proceeding and are not an exhaustive list of
what a court may consider. Hatzenbuehler, 

. A district court
need not explicitly reference these factors. 

[¶9] At Miller’s probation revocation hearing, the district court considered the
culmination of recent charges and previous unsuccessful intermediary measures
noting, “the track record is not promising.” The court relied on Miller’s repeated
violations; new violations; danger to himself and others; and disobedience of his
probation officer, multiple judges, and the intermediate measures already
attempted. See N.D.C.C. § 12.1-32-04 (providing sentencing factors). Miller failed
numerous breath tests in violation of the 24/7 sobriety program. Miller’s
probation officer testified that Miller became increasingly deceptive about his
alcohol consumption. She further testified that Miller admitted his criminal
conduct was a result of intoxication, he was not amenable to further treatment,
and “there doesn’t appear to be a deterrent for the drinking.” Miller also failed
to complete the anger management program required as a condition of his
probation. Miller admitted to these alleged probation violations. Contrary to
Miller’s argument, a sentencing court is not required to explicitly make findings
explaining its decision to reject alternatives to incarceration. Black v. Romano, 

 (1985); Jemal, 

. Regardless, the court here found
“incarceration outweighs the general need for probation in this particular
matter.”

[¶10] The district court’s findings that Miller violated probationary terms are
supported by the record and are not clearly erroneous. Likewise, the court did


                                         4
not abuse its discretion in revoking probation and ordering incarceration. The
court considered the statutory sentencing factors, and the record does not reveal
a reliance on impermissible factors, which demonstrates the court applied a
rational mental process to reach a reasoned determination. See Jemal, 

. As noted in Jemal, a district court is not required to make separate factual
findings at the second step of the revocation analysis. Id. ¶ 9. We conclude the
district court did not err in revoking Miller’s probation and did not abuse its
discretion in ordering his incarceration.

                                         III

[¶11] Miller argues his sentences for violations of a DVPO in CR110 and CR003
are illegal because both charges should have been classified as class A
misdemeanors. Because illegal sentence arguments were not raised below, Miller
requests this Court to review for obvious error.

[¶12] “An obvious error or defect that affects substantial rights may be
considered even though it was not brought to the court’s attention.”
N.D.R.Crim.P. 52(b). “Rule 52(b) provides a narrow exception to the rule that
issues may not be raised for the first time on appeal, and we exercise the power
to notice obvious error cautiously and only in exceptional circumstances where
the defendant has suffered serious injustice.” State v. Eckroth, 

,

 (quoting State v. Tresenriter, 

, 

).
“[T]he defendant has the burden to demonstrate a plain error which affected his
substantial rights.” 

[¶13] “The district court is allowed the widest range of discretion in criminal
sentencing.” State v. Blue, 

, ¶ 28, 

. Appellate review
of a sentence is generally confined to whether the court acted within statutory
sentencing limits or substantially relied upon an impermissible factor. 

 We
review sentences under an abuse of discretion standard. State v. Nelson, 

, 

. “[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.” Id.


                                          5
[¶14] A sentence is illegal if it is not authorized by the judgment of conviction.
State v. Gomez, 

, 

. “Examples of illegal sentences
include: a sentence in excess of a statutory provision or in some other way
contrary to an applicable statute, a sentence which fails to conform to the oral
pronouncement of the sentence, or a sentence which is ambiguous with respect
to the time and manner in which it is to be served.” State v. Trieb, 

 (N.D. 1994). “The sentencing court shall correct an illegal sentence at
any time.” N.D.R.Crim.P. 35(a)(1).

                                       A

[¶15] Miller argues his sentence for Count 2 in CR110 is illegal because the
district court amended the charge to an A misdemeanor on record at the change
of plea hearing where he was originally sentenced, yet the court sentenced Count
2 as a C felony in the amended judgment.

[¶16] To the extent that Miller challenges the underlying conviction, he did not
appeal from the original judgment or any of the amended judgments. A notice
of appeal must designate the order or judgment being appealed. N.D.R.App.P.
3(c)(2). See also Jemal, 

 (declining to address argument
pertaining to underlying conviction when defendant did not appeal from
judgment of conviction). However, the notice of appeal here generally preserves
the argument that the sentence he received upon revocation of probation was
illegal.

[¶17] At the probation revocation hearing, the district court did not pronounce
a specific sentence on the record regarding Count 2, violation of a DVPO, in
CR110, yet the amended judgment reflects a sentence identical to that of Count
1, aggravated assault. We agree with Miller that the sentence for Count 2 is
illegal. The sentence is inconsistent with the court’s oral pronouncement at the
revocation hearing where no sentence was orally pronounced on Count 2. The
court obviously erred when it failed to orally sentence Count 2 in CR110, and the
amended judgment reflects a sentence not pronounced.

[¶18] We reverse and remand CR110 for the district court to impose a sentence
for Count 2.

                                        6
                                        B

[¶19] Miller also argues the sentence in CR003 is illegal. Miller argues the court
erred by using Count 2 of CR110—a charge he contends was neither proven
beyond a reasonable doubt nor constituted a “prior conviction” inducing
enhancement under N.D.C.C. § 14-07.1-06—to enhance CR003 to a C felony. In
essence, Miller challenges the validity of the conviction itself, arguing the
sentence is illegal because the underlying conviction was improper.

[¶20] Miller did not appeal from the original judgment of conviction or raise this
argument to the district court. “A party may not collaterally attack a final
decision, that was not appealed, in subsequent proceedings.” State v. Koval, 

, 

. Here, Miller attacks the underlying conviction
itself, which constitutes a collateral attack on the original judgment. Generally, a
defendant should move to correct an illegal sentence under N.D.R.Crim.P. 35;
however, such motion would not be the proper avenue here, as Rule 35 cannot
be used to attack an underlying conviction. Keller v. State, 

, 

. “The Uniform Postconviction Procedure Act is the exclusive remedy
for collaterally challenging a judgment of conviction or sentence.” State v.
Eagleman, 

, 

 (cleaned up); see also N.D.C.C. § 29-
32.1-01(4) (“Except as otherwise provided in this chapter, a proceeding under
[N.D.C.C. ch. 29-32.1] replaces all other common law, statutory, or other
remedies available before July 1, 1985, for collaterally challenging the validity of
the judgment of conviction or sentence. It is to be used exclusively in place of
them.”). Miller is free to pursue his remedies under the Uniform Postconviction
Procedure Act. Accordingly, we decline to consider Miller’s argument that the
sentence in CR003 is illegal.

                                        IV

[¶21] We affirm the district court’s order revoking probation and imposing
sentence in CR003. In CR110, we affirm the court’s order to the extent it found
Miller violated the terms of his probation, revoked his probation, and imposed
a sentence for Count 1. We reverse and remand for the district court to impose a
sentence for Count 2 in CR110 consistent with this opinion.



                                         7
[¶22] Jon J. Jensen, C.J.
      Daniel J. Crothers
      Lisa Fair McEvers
      Jerod E. Tufte
      Douglas A. Bahr




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