State v. Cotton

                   IN THE SUPREME COURT
                   STATE OF NORTH DAKOTA

                                  

State of North Dakota,                                     Plaintiff and Appellee
      v.
Carrie Beth Cotton,                                     Defendant and Appellant

                            Nos. 20250152-20250155

Appeal from the District Court of Foster County, Southeast Judicial District, the
Honorable James D. Hovey, Judge.

AFFIRMED.

Opinion of the Court by Jensen, Chief Justice.

Kara E. Brinster, State’s Attorney, Carrington, ND, for plaintiff and appellee.

Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.
                                State v. Cotton
                              Nos. 2025152-2025155

Jensen, Chief Justice.

[¶1] Carrie Cotton appeals from amended criminal judgments entered in four
cases. She argues her sentence is illegal because the district court violated a
statute prohibiting consecutive terms of imprisonment for misdemeanor
offenses. We affirm the amended criminal judgments, holding an exception
allowing consecutive sentences applies because Cotton committed each of her
crimes as part of a different course of conduct.

                                         I

[¶2] The State charged Cotton in four separate cases with multiple crimes,
including class A misdemeanor counts of stalking, harassment, and violating a
disorderly conduct restraining order. See Case Nos. 16-2024-CR-00055, 16-2024-
CR-00083, 16-2024-CR-00084, and 16-2024-CR-00085. The State alleged Cotton
has a history of harassing “former ex relationships and people who associate
with them.” The State claimed Cotton sent over 100 different text messages to
T.B., her ex-boyfriend, from 90 different phone numbers and that she made false
statements about him on Facebook. The State also alleged Cotton harassed H.C,
B.C., and T.C., a wife, husband, and their thirteen-year-old daughter, who are
T.B.’s acquaintances. The State alleged Cotton, after receiving a restraining order
directing her to have no contact with the family, continued to send numerous
explicitly sexual and vulgar messages to each of them from fake Facebook
accounts.

[¶3] Cotton entered Alford pleas of guilty to all of the charges. The district court
sentenced her to consecutive prison terms of 360 days on four separate counts,
which included stalking T.B., and contacting H.C., B.C., and T.C. in violation of
the disorderly conduct restraining order. The court ordered suspended terms of
imprisonment on the remaining counts and that Cotton serve two years of
probation. Cotton appeals.




                                         1
                                        II

[¶4] Cotton argues her sentence is illegal because the district court sentenced
her to consecutive terms of imprisonment for misdemeanor offenses. She claims
the court did not conduct the requisite analysis for applying an exception
allowing consecutive sentences, and even if it did, the exception cannot apply.
She asserts the law requires concurrent sentences because her crimes were
committed as part of a single course of conduct with one objective, which she
describes as a harassment campaign against a particular group of individuals.

                                        A

[¶5] Generally, when a person is serving multiple terms of imprisonment, “the
shorter term or the shorter remaining term shall be merged in the other term.”
N.D.C.C. § 12.1-32-11. The merger statute is consistent with “the common law
rule that in the absence of a court order directing otherwise a sentence for crimes
committed in the same state are to be served concurrently.” State v. Mees, 

 (N.D. 1978). District courts have discretion to diverge from the
merger rule and issue consecutive terms of imprisonment for felonies, see State
v. Huffing, 

, 

, but the merger statute limits the
court’s authority for misdemeanors as follows:

      When sentenced only for misdemeanors, a defendant may not be
      consecutively sentenced to more than one year, except that a
      defendant being sentenced for two or more class A misdemeanors
      may be subject to an aggregate maximum not exceeding that
      authorized by section 12.1-32-01 for a class C felony if each class A
      misdemeanor was committed as part of a different course of conduct
      or each involved a substantially different criminal objective.

N.D.C.C. § 12.1-32-11(3). The two exceptions in the merger statute are alternative
grounds for allowing otherwise prohibited consecutive sentences. See Glasser v.
State, 

, 

 (“Because we conclude the three
convictions sentenced consecutively were part of different courses of conduct,
we need not reach the question of whether they involve a substantially different
criminal objective.”).



                                        2
[¶6] The test for the first exception, offenses committed as part of a different
course of conduct, “turns in significant part on whether they occur at the same
time and place.” Glasser, 

; see also State v. Rivera, 

, 

. “[I]f each crime requires evidence or proof of a fact different
from or additional to the proof required to convict of the other, the crimes were
likely of a different course of conduct.” Glasser, ¶ 15. General similarity between
the “method and motive” of different offenses is not sufficient to make them part
of the same course of conduct. Id. ¶ 18; see also Rivera, ¶ 8.

[¶7] The test for the second exception, offenses involving a substantially
different criminal objective, relates to the “elements of the crimes.” State v.
Salveson, 

, 

. We have previously noted the
following:

      [M]ultiple class A misdemeanor offenses may be deemed by the
      sentencing court to involve substantially different criminal
      objectives if they do not fall under one of the following three
      categories: (1) one offense is an included offense of the other; (2) one
      offense consists of a conspiracy, attempt, solicitation, or other form
      of preparation to commit, or facilitation of, the other; or (3) the
      offenses differ only in that one is defined to prohibit a designated
      kind of conduct generally and the other to prohibit a specific
      instance of such conduct.

Id. ¶ 6; see also State v. Ulmer, 

, 

 (explaining
these three categories, taken from drafters’ comments to a “near verbatim”
federal provision, offer “a bright-line definition for determining when multiple
offenses involve different criminal objectives”).

[¶8] The “different course of conduct” and “different criminal objective”
exceptions in the merger statute present issues of both fact and law. Glasser, 

. Findings of fact are reviewed under the clearly erroneous
standard. 

 “A finding of fact is clearly erroneous when 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, we are left with a
definite and firm conviction that a mistake has been made.” 

 Interpretation of



                                         3
the meaning of the exceptions, and how they apply to the facts, is a legal issue
reviewed de novo. Rivera, 

; see also Ulmer, 

.

                                        B

[¶9] Cotton argues her convictions are part of a single course of conduct, which
she describes as a “coordinated harassment campaign” employing “identical
methods over overlapping timeframes” to harass the victims. She asserts her
conduct “lacks the temporal and spatial separation that would justify
consecutive sentencing under the merger statute.”

[¶10] We have explained crimes are not necessarily part of the same course of
conduct simply because they were committed close in time or by similar means.
For example, in State v. Glasser, a criminal defendant was given three consecutive
sentences for forging three character reference letters for use at a sentencing
hearing. 

, ¶ 3. He argued his crimes were part of the same course of
conduct, which was forging letters to obtain more lenient sentences. Id. ¶ 18. We
rejected his argument reasoning each offense “required proof of a different
element or fact—specifically, the name of the victim whose name was forged.”
Id. Similarly, in State v. Rivera, a criminal defendant was given consecutive
sentences for crimes relating to possessing or creating sexual images and
surreptitious intrusion. 

. He argued his crimes were part of the
same course of conduct “because his purpose was to collect sexual images of
multiple victims and he did so in a similar manner in similar retail locations
continuously over a span of weeks[.]” Id. ¶ 9. We also rejected his argument
reasoning each offense “involved different crimes committed against different
victims on different dates.” Id.

[¶11] Here, like in Glasser and Rivera, the offenses are not part of the same course
of conduct despite the similar methodology Cotton employed and the proximate
timeframe. The factual basis for the charges, as Cotton described them in her
petitions to file Alford pleas, described different criminal acts on different dates
against different victims. They state:

         • “That on or about September 18, 2022, to February 14, 2023, in
           Foster County, State of North Dakota[,] I, Carrie Beth Cotton,


                                         4
            did commit the offense of Stalking . . . . Specifically, the
            evidence will show that I engaged in a course of conduct
            directed at T.B. by sending a letter, text messages, and
            Facebook messages during the dates in question, which
            harassed and intimidated T.B. and served no legitimate
            purpose.”

         • “That on or about January 15, 2023, in Foster County, State of
           North Dakota[,] I, Carrie Beth Cotton, did commit the offense
           of Violation of a Disorderly Conduct Restraining Order . . . .
           Specifically, the evidence will show a Facebook message to
           H.C., a protected party.”

         • “That on or about January 6, 2023, in Foster County, State of
           North Dakota[,] I, Carrie Beth Cotton, did commit the offense
           of Violation of a Disorderly Conduct Restraining Order . . . .
           Specifically, evidence will show a Facebook message to B.C.,
           a protected party.”

         • “That on or about February 12, 2023, in Foster County, State
           of North Dakota[,] I, Carrie Beth Cotton, did commit the
           offense of Violation of a Disorderly Conduct Restraining
           Order . . . . Specifically, the evidence will show a Facebook
           message to T.C., a protected party.”

(Initials bolded for emphasis.) Because we conclude as a matter of law that these
crimes are not part of the same course of conduct, we need not address the
alternative exception relating to whether they involve a substantially different
criminal objective.

[¶12] Cotton also argues her sentence is illegal because the district court did not
analyze the merger statute or make factual findings about her crimes. However,
Cotton has not identified any disputed facts. Her sole contention is that the
statutory exception does not apply to her conduct. Whether facts meet a legal
standard is a question of law. In re Estate of Lindberg, 

, 

. Although the court did not expressly analyze the issue Cotton raises on
appeal, we will not vacate a criminal sentence, which is purely a matter of
discretion, unless the court “acted outside the limits prescribed by statute or
substantially relied on an impermissible factor in determining the severity of the

                                        5
sentence.” State v. Larsen, 

, 

 (quoting State v.
Gonzalez, 

, 

). As we have explained, the court’s
consecutive sentences are not outside the bounds of the law because the
exception for crimes committed as part of a different course of conduct applies.

[¶13] Cotton also claims her sentence is illegal because it creates a potential for
a future merger violation. In her words, “Since the judgments do not specify that
the suspended sentences within each case must run concurrently, a future court
on resentencing following a probation violation could have discretion to impose
them consecutively[.]” If a resentencing were to occur, the district court could
impose any sentence that was available at the time of Cotton’s initial sentencing.
See N.D.C.C. § 12.1-32-07(6) (stating the court “may revoke the probation and
impose any other sentence that was available . . . at the time of initial sentencing
or deferment”); see also State v. Nelson, 

, 

(explaining “that when a probationer falters during probation, the district court
may impose any sentence that was available during the original sentencing”);
State v. Rinde, 

, 

 (discussing a 2021 amendment
to N.D.C.C. § 12.1-32-07(6), which previously restrained district courts to
imposition of the sentence initially imposed but suspended). Cotton’s question
is hypothetical, may or may not occur, and would require this Court to give an
impermissible advisory opinion. See, e.g., Richland Cnty. Water Res. Bd. v.
Pribbernow, 

 (N.D. 1989) (“We may not give purely advisory
opinions.”). We decline to answer the potential question raised by Cotton.

                                        III

[¶14] Cotton’s sentence is not illegal. The general rule against consecutive terms
of imprisonment for misdemeanor offenses does not apply because Cotton
committed each of her crimes as part of a different course of conduct. The
amended criminal judgments are affirmed.

[¶15] Jon J. Jensen, C.J.
      Daniel J. Crothers
      Lisa Fair McEvers




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Jerod E. Tufte
Douglas A. Bahr




                  7