State v. Hutchinson, 2017 ND 160

Eric N. Hutchinson pleaded guilty to two counts of class C felony corruption/solicitation of minors after an earlier AA GSI charge was amended; the district court accepted his pleas and ordered a presentence investigation.
At the change-of-plea hearing the State described the plea agreement as five years to serve followed by a consecutive five-year suspended sentence on probation (i.e., 5 years incarceration + consecutive 5 years suspended).
At sentencing, both prosecutors and defense counsel mistakenly recited a different recommendation: concurrent five-year sentences with three years to serve (credit for time served) and two years suspended, and the court entered judgments consistent with that recital.
After discovering the discrepancy, the State moved to correct an illegal sentence under Rule 35(a)(1), arguing the judgment failed to reflect the parties’ original plea bargain and should be amended to the originally stated sentence.
Hutchinson opposed correction, arguing the sentence was lawful and increasing it would violate double jeopardy; the district court denied the State’s motion and the State appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the State may appeal the district court's denial of its motion to correct an illegal sentence	The State contended the denial affects a substantial right and is appealable under N.D.C.C. § 29-28-07(4)	Hutchinson did not dispute appealability in substance	The Court held the State has a statutory right to appeal such an order (appealability affirmed)
Whether the sentence is "illegal" under Rule 35(a) because it fails to comply with the plea agreement recited at the change-of-plea hearing	The State argued the judgment does not reflect the plea bargain made earlier (5 years then consecutive 5 suspended), so the sentence is illegal and correctable	Hutchinson argued the parties altered the agreement before sentencing, the court accepted the sentence recited at sentencing, and increasing the sentence now would violate double jeopardy	The Court held the sentence is not illegal: the court had deferred acceptance at plea, accepted the parties’ agreement as recited at sentencing, and the entered sentence was within statutory limits; denial of Rule 35 relief affirmed

State v. Goldmann, 831 N.W.2d 748 (N.D. 2013) (State's right to appeal must be expressly statutory)
State v. Wika, 574 N.W.2d 831 (N.D. 1998) (order denying State's motion to correct illegal sentence affects substantial state right and is appealable)
State v. Raulston, 707 N.W.2d 464 (N.D. 2005) (sentence is illegal under Rule 35(a) if not authorized by judgment of conviction)
State v. Trieb, 516 N.W.2d 287 (N.D. 1994) (examples of illegal sentences include those contrary to plea bargains or oral pronouncement)
DeCoteau v. State, 504 N.W.2d 552 (N.D. 1993) (sentence that fails to comply with plea bargain can be illegal)