Krueger v. Krueger
2011 ND 134
| N.D. | 2011Background
- Garron Gonzalez pleaded guilty in Jan 2004 to two counts of gross sexual imposition (class A felonies).
- He received five years’ imprisonment, with all but 130 days suspended, and five years’ supervised probation on specified conditions.
- In Nov 2004 the State moved to revoke probation; a Feb 2005 hearing found admissions to several violations and the court resentenced him to five years on each count, run concurrently, with a 30-month suspended portion and credit for time served, followed by five years’ supervised probation.
- In Dec 2010 the State petitioned again for probation revocation alleging contact with minors via Facebook, possession of sexually stimulating material, and an alleged GSI; the 2011 hearing focused on probation violations.
- Gonzalez admitted contact with nine minor females and possession of material; the State dismissed the GSI allegation; the probation officer testified to predatory conduct.
- The trial court revoked probation, found Gonzalez dangerous, and resentenced him to twenty years on each count, to run consecutively, with time served credit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the court rely on an impermissible factor? | Gonzalez argues re-offense likelihood is impermissible. | State contends factors under §12.1-32-04 permitted; no impermissible factor. | No substantial reliance on impermissible factor; within statutory limits. |
| Whether predatory conduct and likelihood to re-offend fall within §12.1-32-04(8)-(9)? | Gonzalez argues not within listed factors. | State argues these considerations fall within converse of factors 8-9. | Yes, within the converse of 8-9. |
| Standard of review for sentencing decisions? | N/A | Court reviews only for statutory limits or impermissible factors. | Court upheld within-range sentence; no impermissible factor found. |
Key Cases Cited
- State v. Henes, 2009 ND 42 (2009) (limits-based review of sentencing discretion)
- State v. Salveson, 2006 ND 169 (2006) (consecutive-sentencing discretion acknowledged)
- State v. Loh, 2010 ND 66 (2010) (no power to review within-range discretion absent impermissible factor)
- State v. Halton, 535 N.W.2d 734 (1995) (listing is not exclusive; no need to explicitly reference factors)
- State v. Steinbach, 1998 ND 18 (1998) (sentencing factors not exclusive; flexibility in considerations)
- State v. Bell, 540 N.W.2d 599 (1995) (court may rely on evidence and reasonable inferences)