State v. Rath, 901 N.W.2d 51

Background

In May 2012 Mark Rath pled guilty to perjury (class C felony) and was sentenced to one year in prison with all but three days suspended and three years supervised probation; credit for time served was awarded.
The State petitioned to revoke probation; at an August 28, 2012 revocation/resentencing hearing the court found a violation, revoked Rath’s prior probation, and resentenced him to one year (all but eight days suspended) and three years supervised probation with added conditions.
At the August 28, 2012 hearing the sentencing judge orally stated he would not "take away the misdemeanor disposition" and that Rath would "keep his ‘misdemeanor disposition.’" That language did not appear as a change in the written amended judgment.
Rath later sought clarification (2015) and then filed (Feb. 2017) a Rule 35 motion to correct an illegal sentence or declare a mistrial, arguing the oral pronouncement entitled him to be deemed a misdemeanor under N.D.C.C. § 12.1‑32‑02(9).
The district court denied the Rule 35 petition, reasoning Rath did not successfully complete probation and therefore was not entitled to the misdemeanor benefit; the State maintained the revocation eliminated any misdemeanor-deeming effect.
The Supreme Court concluded the sentence itself was not illegal under Rule 35, but treated Rath’s appeal as a petition for a writ of supervision, exercised supervisory jurisdiction, and remanded with instructions to change the case disposition to a misdemeanor under § 12.1‑32‑02(9).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court erred in denying a Rule 35 motion to correct an illegal sentence	State: sentence was legal; no Rule 35 relief because written sentence and statute are consistent	Rath: oral pronouncement created a right to misdemeanor disposition; denial prejudiced his substantial rights	Court: No Rule 35 error — sentence was legally authorized and not illegal under Rule 35
Whether the oral pronouncement that Rath would keep a "misdemeanor disposition" controls over the written judgment	State: oral remark conflicted with statute and revocation; written judgment controls	Rath: oral statement promised misdemeanor treatment and supports relief	Court: Oral remark could be ambiguous or misspoken; cannot be enforced if it would create an illegal sentence under statute
Whether N.D.C.C. § 12.1‑32‑02(9) bars misdemeanor treatment after probation revocation	State: revocation precludes deemed misdemeanor; statute requires "successful completion" so revocation defeats it	Rath: statute ambiguous as applied to a new term of probation after resentencing; oral pronouncement supports lenity	Court: Statute ambiguous as applied here; apply rule of lenity in defendant's favor if ambiguity exists
Whether extraordinary relief (supervisory writ) is appropriate to obtain misdemeanor disposition	State: normal remedies (appeal) existed earlier; no extraordinary relief	Rath: no adequate remedy because he relied on oral pronouncement and did not appeal revocation	Court: Writ granted — supervisory jurisdiction appropriate; remand to direct clerk to change disposition to misdemeanor

Key Cases Cited

Rahn v. State, 2007 ND 121, 736 N.W.2d 488 (Rule 35(a) appealability and correction of illegal sentence)
Raulston v. State, 2005 ND 212, 707 N.W.2d 464 (oral pronouncement controls written judgment when unambiguous)
State v. Gray, 2017 ND 108, 893 N.W.2d 484 (limitations on collateral attack via Rule 35)
State v. Edwards, 2007 ND 113, 736 N.W.2d 449 (defining illegal sentence under Rule 35)
State v. Ertelt, 1997 ND 15, 558 N.W.2d 860 (cannot attack underlying conviction via motion to correct sentence)
Bordeaux v. State, 765 S.E.2d 143 (sentence ambiguity analysis)
State v. Posey, 300 S.W.3d 23 (unenforceable oral pronouncement vs. written judgment; harmless-variance approach)
State v. Laib, 2002 ND 95, 644 N.W.2d 878 (rule of lenity applied to ambiguous criminal statutes)
State v. Drader, 432 N.W.2d 553 (probation conditions strictly construed in favor of offender)
State v. Romanick, 2017 ND 42, 890 N.W.2d 803 (standards for issuing supervisory writs)
State v. Louser, 2017 ND 10, 890 N.W.2d 1 (exercise of supervisory jurisdiction guidance)