James Aaron Dubois, Jr., Petitioner and Appellant v. State of North Dakota, Respondent and Appellee
No. 20210019
IN THE SUPREME COURT STATE OF NORTH DAKOTA
AUGUST 19, 2021
2021 ND 153
The Honorable Steven L. Marquart, Judge.
Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Steven L. Marquart, Judge.
REVERSED AND REMANDED WITH INSTRUCTIONS.
Opinion of the Court by Crothers, Justice, in which Chief Justice Jensen and Justice Tufte joined. Justice VandeWalle filed a dissenting opinion in which Justice McEvers joined.
Kiara C. Kraus-Parr, Grand Forks, ND, for petitioner and appellant.
Alexis Madlom (argued), third-year law student, under the Rule on Limited Practice of Law by Law Students, Robert C. Vallie (appeared) and Kimberlee J. Hegvik (on brief), Assistant State‘s Attorneys, Fargo, ND, for respondent and appellee.
Dubois v. State No. 20210019
Crothers,
[¶1] James Dubois, Jr. appeals from an order denying his application for post-conviction relief, arguing he received ineffective assistance of counsel, his plea was not knowing, voluntary and intelligent, and his sentence was illegal. We reverse and remand with instructions to sentence Dubois consistent with
I
[¶2] In August 2017, Dubois pleaded guilty to two counts of criminal trespass and one count of refusal to halt. Dubois was sentenced to 18 months with the Department of Corrections and Rehabilitation, first to serve 90 days with the balance suspended for 18 months of supervised probation.
[¶3] On January 28, 2019, Dubois appeared at a probation revocation hearing. Dubois admitted to three probation violations and the district court revoked Dubois’ probation and resentenced him to five years in prison. Following resentencing, Dubois filed a direct appeal where he argued the district court abused its discretion in revoking his probation and the court‘s new sentence was illegal because it exceeded his original sentence. State v. Dubois, 2019 ND 284, ¶¶ 4, 7, 936 N.W.2d 380. This Court affirmed, concluding the district court did not abuse its discretion in revoking probation and resentencing, and the district court did not obviously err by imposing a sentence consistent with North Dakota precedent. Id. at ¶¶ 5-6, 11.
[¶4] Dubois filed a post-conviction relief action claiming he received ineffective assistance of counsel and his plea and admissions were not voluntary. A hearing was held and the district court found Dubois’ counsel was not ineffective and his plea was knowingly, voluntarily and intelligently made. The court found Dubois’ counsel‘s failure to argue illegality of Dubois’ sentence on revocation fell within the wide range of reasonable professional assistance. Dubois appealed from the order.
II
[¶5] Dubois argues the district court erred in finding he received effective assistance
[¶6] This Court‘s standard of review for post-conviction proceedings is well-established:
“A trial court‘s findings of fact in a post-conviction proceeding will not be disturbed on appeal unless clearly erroneous under
N.D.R.Civ.P. 52(a) . A finding is clearly erroneous if it is induced by an erroneous view of the law, if it is not supported by any evidence, or if, although there is some evidence to support it, a reviewing court is left with a definite and firm conviction a mistake has been made. Questions of law are fully reviewable on appeal of a post-conviction proceeding.”
Brewer v. State, 2019 ND 69, ¶ 4, 924 N.W.2d 87 (citations omitted).
[¶7] Post-conviction proceedings are civil in nature and the applicant carries the burden of establishing the grounds for relief. Rourke v. State, 2018 ND 137, ¶ 5, 912 N.W.2d 311. To succeed on a claim for ineffective assistance of counsel, the applicant must show that: (1) “counsel‘s representation fell below an objective standard of reasonableness,” and (2) “there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Id. (quoting Strickland v. Washington, 466 U.S. 668 (1984)). The Strickland test is a high bar and must be applied with scrupulous care. Rourke, ¶ 5. The first prong requires that the applicant must “overcome the ‘strong presumption’ that trial counsel‘s representation fell within the wide range of reasonable professional assistance, and courts must consciously attempt to limit the distorting effect of hindsight.” Id. (quoting Laib v. State, 2005 ND 187, ¶ 9, 705 N.W.2d 845).
A
[¶8] Dubois argues his trial counsel was ineffective by failing to object to his resentencing as illegal. Dubois asserts the resentencing was illegal because he received a sentence longer than originally imposed. This Court has “long held that the current provisions of
B
[¶9] Dubois argues his trial counsel was ineffective for not explaining he could be resentenced to five years. Dubois testified his trial counsel never discussed with him the maximum potential sentence for revocation of his probation. Dubois’ trial counsel testified his practice was to
III
[¶10] Dubois argues his probation violation admissions were not knowingly, voluntarily, or intelligently made. Dubois argues adherence to
IV
[¶11] Dubois argues the district court‘s new sentence of five years’ imprisonment is illegal because it exceeds the balance of the 18-month term he originally was sentenced to serve. In support, Dubois cites
“The court, upon notice to the probationer and with good cause, may modify or enlarge the conditions of probation at any time prior to the expiration or termination of the period for which the probation remains conditional. If the defendant violates a condition of probation at any time before the expiration or termination of the period, the court may continue the defendant on the existing probation, with or without modifying or enlarging the conditions, or may revoke the probation and impose any other sentence that was available under section 12.1-32-02 or 12.1-32-09 at the time of initial sentencing or deferment. In the case of suspended execution of sentence, the court may revoke the probation and cause the defendant to suffer the penalty of the sentence previously imposed upon the defendant.”1
Dubois argues the last clause of
A
[¶12] Statutory interpretation is a question of law, fully reviewable on appeal. State v. Corman, 2009 ND 85, ¶ 15, 765 N.W.2d 530.
[¶13] Dubois raised the issue of illegal sentence as part of his application for post-conviction relief.
“[T]hese post-conviction remedies co-exist for similar purposes as to illegal sentences, these remedies under comparable provisions of federal law are often used interchangeably to attack a sentence illegal on its face, and [we] have suggested a motion under the rule or the statute should be treated as equivalent to a motion under both provisions.”
State v. McClary, 2016 ND 31, ¶ 7, 876 N.W.2d 29 (citations omitted). We therefore consider Dubois’ claim as presented.
“The court, upon notice to the probationer and with good cause, may modify or enlarge the conditions of probation at any time
prior tobefore the expiration or termination of the period for which the probation remains conditional. If the defendant violates a condition of probation at any time before the expiration or termination of the period, the court may continue the defendant on the existing probation, with or without modifying or enlarging the conditions, or may revoke the probation and impose any other sentence that was available under section 12.1-32-02 or 12.1-32-09 at the time of initial sentencing or deferment.In the case of suspended execution of sentence, the court may revoke the probation and cause the defendant to suffer the penalty of the sentence previously imposed upon the defendant.”
B
[¶14] Dubois claims the district court imposed an illegal sentence by sentencing him to five years’ imprisonment rather than no more than what was left of his 18-month suspended sentence. Dubois asks this Court to overturn our long-standing precedent holding
[¶15] Prior to 1989, resentencing after revocation of probation was controlled by
“If the defendant violates a condition [of probation] at any time prior to the expiration or termination of the period, the court may continue him on the existing sentence, with or without modifying or enlarging the conditions, or if such continuation, modification, or enlargement is not appropriate, may impose any other sentence that was available under section 12.1-32-02 or 12.1-32-09 at the time of initial sentencing.”
Prior to its repeal on August 1, 1989,
“The court, upon notice to the probationer and with good cause, may modify or enlarge the conditions of probation at any time prior to the expiration or termination of the period for which the
probation remains conditional. If the defendant violates a condition of probation at any time prior to the expiration or termination of the period, the court may continue the defendant on the existing probation, with or without modifying or enlarging the conditions, or may revoke the probation and impose any other sentence
that was available under section 12.1-32-02 or 12.1-32-09 at the time of initial sentencing or deferment. In the case of suspended execution of sentence, the court may revoke the probation and cause the defendant to suffer the penalty of the sentence previously imposed upon the defendant.”
(Emphasis added.)
[¶16] This Court decided several probation revocation cases prior to the legislature‘s 1989 amendment to
[¶17] Following Miller and Jones, this Court issued its decision in State v. Vavrovsky, 442 N.W.2d 433 (N.D. 1989). When Vavrovsky was decided,
“Section 12.1-32-07(4), on the other hand, was enacted by the Legislature in 1973 as part of a comprehensive revision of our criminal code. See 1973 N.D. Sess. Laws Ch. 116, § 31. It was obviously intended to be the paramount legislation not only in defining criminal offenses but also in the area of sentencing and probation. Thus, even if there is a conflict between the two sections, and we do not concede there is, Section 12.1-32-07(4) controls.”
[¶18] The Vavrovksy decision was issued on June 27, 1989. Id. at 433. The amendment to
[¶19] This Court next decided State v. Gefroh, 458 N.W.2d 479, 483-84 (N.D. 1990), interpreting the amendment to
[¶20] This Court‘s holding in Gefroh that the legislature‘s repeal of
addressing the inconsistencies between
[¶21] Second, Miller and Jones only addressed the district court‘s authority to impose any sentence available at the time of initial sentencing upon revocation of probation under
[¶22] “The primary purpose of statutory interpretation is to determine legislative intent.” State v. Bearrunner, 2019 ND 29, ¶ 5, 921 N.W.2d 894. Words in a statute are given their plain, ordinary, and commonly understood meaning unless defined by statute or unless a contrary intention plainly appears.
[¶23] Here, reading the statute as a whole, the first sentence establishes a general rule allowing the court to revoke probation and “impose any other sentence that was available . . .”
[¶24] The dissent is critical of the majority opinion for not reaching a different result based on legislative acquiescence. Dissent, ¶ 30. They ultimately conclude legislative acquiescence, on that basis alone, means we should affirm the district court and not upset this Court‘s longstanding misinterpretation of
[¶25] Admittedly, this Court has embraced legislative acquiescence, perhaps to a degree greater than justified by separation of powers or even the rules of statutory construction. A Kansas Supreme Court decision aptly acknowledged that legislative acquiescence has limitations, stating “We may understand the absence of legislative action to revise the effect of [the prior decision] to represent legislative ratification of that decision. More important, however, is the application of the doctrine of statutory interpretation that directs us to consider the plain language of the statutes.” Hall v. Dillon Cos., Inc., 189 P.3d 508, 516 (Kan. 2008).
[¶26] The California Supreme Court also probed the limitations of legislative acquiescence, stating:
“The presumption of legislative acquiescence in prior judicial decisions is not conclusive in determining legislative intent. As we have also stated: Legislative silence after a court has construed a statute gives rise at most to an arguable inference of acquiescence or passive approval. . . . But something more than mere silence is required before that acquiescence is elevated into a species of implied legislation. . . . In the area of statutory construction, an examination of what the Legislature has done (as opposed to what it has left undone) is generally the more fruitful inquiry.”
Harris v. Capital Growth Inv‘rs XIV, 805 P.2d 873, 880 (Cal. 1991) (internal citations and quotation marks omitted) (overruled on other grounds). See also Devillers v. Auto Club Ins. Ass‘n, 702 N.W.2d 539, n.66 (Mich. 2005) (internal citations and quotation marks omitted) (overruled on other grounds) (“Neither ‘legislative acquiescence’ nor the ‘reenactment doctrine’ may be utilized to subordinate the plain language of a statute. ‘Legislative acquiescence’ has been repeatedly rejected by this Court because Michigan courts [must] determine the Legislature‘s intent from its words, not from its silence. In the absence of a clear indication that the Legislature intended to either adopt or repudiate this Court‘s prior construction, there is no reason to subordinate our primary principle of construction—to ascertain the Legislature‘s intent by first examining the statute‘s language—to the reenactment rule.”); Ritchie v. Rupe, 443 S.W.3d 856, n.16 (Tex. 2014) (“[T]his Court has consistently refused to rely on ‘legislative acquiescence’ as a doctrine of statutory construction when it runs contrary to the plain language of the statute.”).
[¶27] We agree with the Supreme Courts of our sister states in concluding reliance on legislative acquiescence must be secondary to following the plain language of the statute in question. Applying those rules here, the plain words of
V
[¶28] We reverse and remand the order denying Dubois’ application for post-conviction
[¶29] Jon J. Jensen, C.J. Daniel J. Crothers Jerod E. Tufte
VandeWalle, Justice, dissenting.
[¶30] Because the majority opinion does not apply the long-standing doctrine of legislative acquiescence nor adequately explain the reasons for not doing so, I respectfully dissent.
[¶31] Our primary objective in interpreting a statute is to ascertain legislative intent. M.M. v. Fargo Pub. Sch. Dist. No. 1, 2010 ND 102, ¶ 12, 783 N.W.2d 806. We have said the legislature is presumed to know the courts’ construction of its statutes and the legislature‘s failure to amend the statute indicates legislative acquiescence to that construction. See Effertz v. N.D. Workers Comp. Bureau, 525 N.W.2d 691, 693 (N.D. 1994) (citing N. States Power Co. v. Bd. of R.R. Comm‘rs, 298 N.W. 423, 430 (N.D. 1941)); see also Skinner v. Am. State Bank, 189 N.W.2d 665, 670 (N.D. 1971). “Where courts of this State have construed [a] statute and such construction is supported by the long acquiescence on the part of the legislative assembly and by the failure of the assembly to amend the law, it will be presumed that such interpretation of the statute is in accordance with legislative intent.” Lamb v. State Bd. of Law Examiners, 2010 ND 11, ¶ 10, 777 N.W.2d 343 (quoting City of Bismarck v. Uhden, 513 N.W.2d 373, 376 (N.D. 1994)).
[¶32] Ordinarily, we would presume the legislature was aware of this Court‘s opinion in State v. Gefroh, 458 N.W.2d 479 (N.D. 1990), and our interpretation of what is now
[¶33] Here, however, we need not rely solely on the mere passage of time to confirm legislative acquiescence. In 2021, the legislature amended
[¶34] This Court has recognized “subsequent amendments to a statute may be used in ascertaining the legislative intent of an earlier version of the statute.” Effertz, 525 N.W.2d at 693. The legislative history for the 2021 amendment confirms that this Court‘s prior construction of the statute in Gefroh was consistent with the legislative intent. Senator Jim Roers introduced the bill amending
a defendant up to the maximum sentence available when the court revokes the defendant‘s probation, including when a suspended sentence was initially ordered. Hearing on S.B. 2204 Before the House Judiciary Comm., 67th N.D. Legis. Sess. (Mar. 16, 2021) (written testimony of Robert Vallie, Cass County Assistant State‘s Attorney). He testified the legislation came about as a result of the concurring opinion in Dubois, stating:
The legislation before the Committee comes from the North Dakota Supreme Court case State v. Dubois from 2019. . . . [T]he concurring opinion laid out a notice to evaluate whether the statute supports what has been the long-standing understanding of a judge‘s authority and the need to consider a change. In review of the opinion, with the structure of the statute, a change is needed to ensure our Criminal Justice system operates the way we expect.
As proposed, this bill would remove the last sentence of this statute to remove the issue pertaining to the suspended sentence outlined in Dubois. With this modification, judges will continue to be able to re-sentence up [to] the maximum allowed under law, if a judge were to believe such a sentence was necessary.
[¶35] Because the legislature‘s acquiescence and immediate response to the prior Dubois appeal confirm Gefroh is consistent with legislative intent, I would not overrule Gefroh and State v. Lindgren, 483 N.W.2d 777, 779 (N.D. 1992). The district court did not impose an illegal sentence by sentencing Dubois to five years’ imprisonment. I would affirm the order denying Dubois’ application for post-conviction relief.
[¶36] Gerald W. VandeWalle Lisa Fair McEvers