903 N.W.2d 520
N.D.2017Background
- In 2012 Danny Myers pleaded guilty to class C felony aggravated assault and received a five-year prison sentence suspended for five years of probation.
- In 2013 Myers’s probation was revoked and he was resentenced to five years imprisonment.
- At the time of conviction and resentencing, N.D.C.C. § 12.1-32-09.1 required offenders convicted under § 12.1-17-02 (aggravated assault) to serve 85% of any imposed prison sentence.
- In 2015 the Legislature amended §§ 12.1-17-02 and 12.1-32-09.1 to remove class C aggravated assault from the 85% mandatory service requirement.
- In February 2017 Myers moved under N.D.R.Crim.P. 35(a)(2) to “correct” his sentence, seeking retroactive application of the 2015 amendments because his judgment did not explicitly state whether the 85% requirement applied. The district court denied the motion; Myers appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court abused its discretion by denying a Rule 35(a)(2) motion to correct sentence | State: Rule 35(a)(2) relief is not available because Myers’s amended judgment accurately reflects the conviction and contains no arithmetical, technical, or other clear error | Myers: The judgment’s silence about the 85% requirement is a technical/clear error; he is entitled to retroactive application of the 2015 amendment because it confers a benefit | Court: No abuse of discretion — Rule 35(a)(2) relief not available because there is no clear/technical/arithmetic error in the sentence or judgment |
| Whether Peterson requires a judgment to recite the 85% requirement to bind DOC | State: Peterson involved a clerical ambiguity that justified correction; this case lacks comparable ambiguity | Myers: Peterson indicates DOC will apply 85% only if the judgment specifies the subsection triggering it, so his silence is erroneous | Court: Peterson is distinguishable — Peterson clarified a clerical omission; here the judgment plainly recites a class C conviction and, at sentencing time, the statute applied to aggravated assault generally; no clarification needed |
| Whether the 2015 amendment applies retroactively | State: Amendments effective after final conviction cannot be applied retroactively | Myers: New law confers benefit and should apply retroactively | Court: Rule 35 is not the vehicle to achieve retroactive application; separate statutory relief (2017 amendment permitting parole-board consideration) addresses pre-August 1, 2015 sentences |
Key Cases Cited
- State v. Peterson, 886 N.W.2d 71 (N.D. 2016) (clarification of judgment may be proper where a clerical omission creates ambiguity about applicability of mandatory sentencing provisions)
- State v. Iverson, 721 N.W.2d 396 (N.D. 2006) (legislative changes to criminal statutes generally do not apply retroactively after final conviction)
- State v. Moos, 758 N.W.2d 674 (N.D. 2008) (abuse-of-discretion standard for district court decisions amending judgments)
- Smith v. Baumgartner, 665 N.W.2d 12 (N.D. 2003) (statutory amendments that confer benefits may support retroactivity arguments, but retroactivity requires clear legislative intent)