921 N.W.2d 428
N.D.2019Background
- In Jan 2017, MyKennah Lott was found walking on Dakota Access Pipeline property; law enforcement approached and informed her she was under arrest for trespassing.
- Lott resisted arrest, broke free, and had to be taken to the ground; she was charged with preventing arrest under N.D.C.C. § 12.1-08-02.
- After a bench trial the district court found Lott guilty.
- At sentencing the court asked Lott's counsel for recommendations; counsel conferred with Lott and requested waiver of fines/fees and credit for time served.
- The record does not show the court personally asked Lott if she wished to make a statement (allocution) before imposing sentence.
- Lott appealed, challenging sufficiency of the evidence and arguing she was denied the opportunity to allocute; the Court affirmed the conviction but vacated the sentence and remanded for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence to support preventing-arrest conviction | Evidence supported conviction based on resistance and that arrest was being made | Evidence insufficient to prove preventing arrest | Conviction affirmed (sufficient evidence) |
| Denial of opportunity to allocute under N.D.R.Crim.P. 32 | No specific argument beyond defending sentence | Lott contends she was not personally given chance to speak before sentencing | Court held Rule 32 requires personal opportunity to allocute; omission is legal error |
| Whether failure to object at sentencing forfeits review | State argues counsel’s presentation preserved issues; Lott did not object | Lott argues plain/obvious error review applies since she was not given allocution | Court applied obvious-error standard and found established law (Beckman) means the omission is obvious error |
| Prejudice / effect on substantial rights from lack of allocution | State argues counsel’s statement sufficed and no prejudice because sentence reasonable | Lott argues she may have received a lighter sentence if allowed to speak | Court held denial of allocution generally satisfies showing of affected substantial rights; vacated sentence and remanded for resentencing |
Key Cases Cited
- Green v. United States, 365 U.S. 301 (1961) (recognizing defendant’s personal right to allocution)
- State v. Beckman, 591 N.W.2d 120 (1999) (N.D.) (district court must personally address defendant before sentencing; omission requires remand)
- United States v. Adams, 252 F.3d 276 (3d Cir. 2001) (allocution is an important safeguard; omission can be plain error)
- United States v. Bustamante-Conchas, 850 F.3d 1130 (10th Cir. 2017) (denial of allocution generally shows prejudice unless no lighter sentence possible)