State v. McGinnis, 971 N.W.2d 380

Background

Neil McGinnis pleaded guilty in two cases: 00721 (burglary and theft) and 01827 (theft). He originally received a 3-year sentence in 00721 with all but 33 days suspended and 2 years probation, and a 5-year sentence in 01827 with all but 53 days suspended and 3 years probation.
In 2018 both probations were revoked and amended judgments increased the suspended portions (00721: 5 years with all but 100 days suspended and 3 years probation; 01827: 5 years with all but 120 days suspended and 3 years probation).
In 2021 further petitions led to joint revocation; the court revoked probation in both cases and entered second amended judgments sentencing McGinnis to five years in prison on each count, to run concurrently.
McGinnis filed pro se motions under N.D.R.Crim.P. 35 alleging the 2021 sentences were illegal, raised ineffective assistance and prosecutorial-misconduct claims, and appealed the judgments; the district court denied his Rule 35 motions after remand.
McGinnis contends the 2021 resentencing in 00721 was illegal because it exceeded the original suspended term imposed in the 2017 judgment of conviction; the State argues the claim is untimely or otherwise not reviewable.
The Supreme Court affirmed the 01827 second amended judgment, but concluded the 00721 second amended judgment was illegal and reversed and remanded for resentencing consistent with N.D.C.C. § 12.1-32-07(6) and the opinion.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness of appeal (whether claim is time-barred)	The State: McGinnis failed to timely appeal the 2018 amended judgment, so this claim is barred by Rule 4.	McGinnis: Rule 35(a)(1) allows correction of illegal sentences at any time; timeliness does not bar relief.	Held: Timeliness does not bar review of an illegal-sentence claim under N.D.R.Crim.P. 35(a)(1).
Preservation of issue (did defendant have to raise it below)	The State: McGinnis failed to preserve the issue by not raising it to the district court.	McGinnis: The claim is preserved; illegal-sentence claims need not be objected to below.	Held: No objection was required—illegal-sentence claims are reviewable even if not raised below.
Proper statutory interpretation of N.D.C.C. § 12.1-32-07(6) (which construction applies)	The State: Apply the Court’s earlier case law allowing any sentence available at initial sentencing upon revocation.	McGinnis: Apply the corrected interpretation in Dubois v. State limiting resentencing to no more than the originally suspended sentence.	Held: The Court applies its corrected interpretation in Dubois (as the statute’s true meaning from enactment) and limits resentencing in suspended-sentence cases to the originally imposed but suspended sentence.
Whether the 2021 resentencing in 00721 was illegal	The State: The new 5-year sentence is permissible under prior practice.	McGinnis: The 2021 sentence exceeds the original suspended term in the 2017 judgment and is therefore illegal.	Held: The 2021 second amended judgment in 00721 is illegal because it exceeded the suspended sentence in the original 2017 judgment; reversed and remanded for resentencing.

Key Cases Cited

State v. Dockter, 932 N.W.2d 98 (N.D. 2019) (standard of review for probation revocation appeals)
State v. Hilgers, 685 N.W.2d 109 (N.D. 2004) (appellate consequences when appellant fails to provide trial transcript)
State v. Edwards, 736 N.W.2d 449 (N.D. 2007) (definition and scope of illegal sentence under Rule 35)
State v. Dubois, 936 N.W.2d 380 (N.D. 2019) (prior interpretation of § 12.1-32-07(6) permitting broader resentencing)
Dubois v. State, 963 N.W.2d 543 (N.D. 2021) (reinterpreting § 12.1-32-07(6) to limit resentencing with suspended sentences to the originally imposed suspended term)
State v. Thomas, 938 N.W.2d 897 (N.D. 2020) (preservation rules for illegal-sentence claims)
Rivers v. Roadway Express, Inc., 511 U.S. 298 (U.S. 1994) (judicial construction of a statute declares its original meaning)
United States v. City of Tacoma, 332 F.3d 574 (9th Cir. 2003) (statutory interpretation applies retroactively to the statute’s inception)
Murphy v. DirecTV, Inc., 724 F.3d 1218 (9th Cir. 2013) (new judicial interpretation supersedes prior conflicting interpretations)