State v. McClary, 876 N.W.2d 29

Background

In 2011 McClary pled guilty to five counts of gross sexual imposition; four counts dated 2010 (Class A/AA reduced to A) and the fifth alleged in "2004 or 2005" (charged under pre‑Aug 2005 Class B felony penalty section).
Sentenced in 2012 to ten years with three suspended on each count and ten years supervised probation on each count; sentences to run concurrently.
In April 2015 McClary filed a motion to correct an illegal sentence under N.D.R.Crim.P. 35(a), arguing the pre‑2005 statute limited supervised probation on the 2004/2005 offense to five years unless the additional period was "in conjunction with" sexual‑offender treatment/aftercare. He requested a hearing and court‑appointed counsel.
The State argued the probation condition requiring attendance at sex‑offender treatment and aftercare (if recommended) satisfied the pre‑2005 "in conjunction with" requirement. The district court denied the motion without a hearing and did not rule on appointed counsel.
McClary sought counsel for appeal; the clerk issued a form denying appointment (stating court‑appointed counsel not required). The record contains no judicial review of that denial.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court erred by failing to appoint counsel for McClary's postconviction/Rule 35(a) motion	The State did not directly contest appointment; clerk's administrative denial implied counsel unnecessary	McClary argued he was indigent and requested court‑appointed counsel under N.D.C.C. § 29‑32.1‑05 and the district court never addressed his requests	Reversed and remanded: district court erred by ruling without addressing McClary's requests for appointed counsel; court must determine eligibility and whether counsel should be provided
Whether a hearing was required on the motion to correct an illegal sentence	The State urged denial on the merits, asserting probation condition satisfied statutory "in conjunction with" requirement	McClary requested a hearing to resolve factual/legal issues about whether the probation condition improperly delegated sentencing authority to probation/treatment staff	Remanded: court did not decide merits or require hearing but must reconsider merits (and appointment of counsel) — underlying delegation concern warrants further consideration
Whether the imposition of ten years supervised probation on the 2004/2005 count violated the pre‑2005 statute (i.e., whether additional five years required to be “in conjunction with” treatment)	The State argued the probation condition (attendance/aftercare if recommended) satisfied the pre‑2005 statutory requirement	McClary argued the condition left the decision to recommend treatment to probation/treatment staff and thus impermissibly delegated the court’s sentencing authority; under pre‑2005 law additional probation must be "in conjunction with" treatment, not conditioned on officer/staff recommendation	Court did not resolve the merits; noted the delegation issue is questionable and remanded for further consideration after counsel eligibility determined

Key Cases Cited

State v. Nace, 371 N.W.2d 129 (N.D. 1985) (postconviction and Rule 35 remedies for illegal sentence may be treated equivalently)
Woehlhoff v. State, 531 N.W.2d 566 (N.D. 1995) (trial court ultimately must decide whether to appoint counsel under postconviction statute)
State v. McMorrow, 332 N.W.2d 232 (N.D. 1983) (appointment of counsel not required when petition raises no substantial issue)
Bell v. State, 636 N.W.2d 438 (N.D. 2001) (courts ordinarily should appoint counsel for most indigent first‑time postconviction applicants)
State v. Goodbird, 344 N.W.2d 483 (N.D. 1984) (sentencing statute in effect at time of offense governs)
State v. Nelson, 417 N.W.2d 814 (N.D. 1987) (district court may not delegate sentencing authority to a probation officer)
State v. Saavedra, 406 N.W.2d 667 (N.D. 1987) (same; courts cannot delegate sentencing decisions to counselors or parole/probation staff)
State v. Chapin, 429 N.W.2d 16 (N.D. Ct. App. 1988) (reiterating limits on delegating sentencing functions)