Filed 8/18/11 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
State of North Dakota, Plaintiff and Appellee
v.
Branden Thurman Clark, Defendant and Appellant
Nos. 20100372 & 20100373
Aрpeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Lawrence E. Jahnke, Judge.
AFFIRMED.
Opinion of the Court by Kapsner, Justice.
Faye A. Jasmer (argued), Assistant State’s Attorney and Jordon Evert (on brief), third-year law student, appearing under the Rule on the Limited Practice of Law by Law Students, P.O. Box 5607, Grand Forks, N.D. 58206-5607, for plaintiff and appellee.
Jay Dennis Knudson, 405 Bruce Avenue, Suite 101, Grand Forks N.D. 58201, for defendant and appellant.
State v. Clark
Nos. 20100372 & 20100373
Kapsner, Justice.
[¶1] Branden Clark appeals from an order denying his mоtion for correction of sentence. Clark argues his sentences are illegal because they merged with his sentences in two other cases and his due process rights were violated by the delay in holding a hearing on the petition to revoke his probation. We affirm.
I
[¶2] On January 19, 2005, Clark was convicted of theft by deception, a class C felony, in case number 18-04-K-0951 (“951”) and issuing a check without sufficient funds or without an account, a class C felony, in сase number 18-04-K-1418 (“1418”). He was sentenced to eighteen months in prison, with fifteen months suspended, and three years probation in each case. Clark received credit for time served prior to his conviction and he was released from incarceration on approximately February 15, 2005.
[¶3] On April 19, 2005, Clark was convicted of theft of property, a class C felony, in case number 18-04-K-2454 (“2454”). He was sentenced to five years in prison with three years susрended and five years probation. On November 23, 2005, Clark was convicted of theft of services, a class C felony, in case number 18-05-K-2075 (“2075”). He was sentenced to five years in prison with three years and six months suspended and three years and six months probation.
[¶4] On December 8, 2005, the State filed a petition to revoke Clark’s probation in cases 951 and 1418. An order to apprehend was attached to the petition and was signed on December 7, 2005. An оrder to apprehend warrant was issued on December 8, 2005. Clark was in the custody of the Department of Corrections at the time serving his sentences in 2454 and 2075, but he was not served with the petition and warrant. Clark received a copy of the petition, and in January 2006 he filed a motion to appear telephonically or by interactive television and he demanded a speedy trial. In February 2006, the district court denied his motions, ruling Clark had nоt been served with the petition and the order to apprehend had not been not executed.
[¶5] On July 5, 2006, Clark was paroled in cases 2454 and 2075 to serve a sentence in Minnesota. He was released from custody in Minnesota on February 27, 2007, and he returned to North Dakota to start his probation. Clark left North Dakota sometime after July 2007. On August 29, 2007, a petition to revoke Clark’s probation was filed in case 2454. On September 6, 2007, a petition to revоke Clark’s probation was filed in case 2075 and an amended petition was filed in cases 951 and 1418. Order to apprehend warrants were issued on August 29, 2007, in case 2454, and on September 6, 2007, in case 2075. The petitions for revocation and warrants to apprehend were served on March 30, 2009.
[¶6] On July 22, 2009, the district court entered an order revoking Clark’s probation in all four cases and resentencing Clark to serve five years in prison in each case. Clark was given ninety days credit for time served in cases 951 and 1418, two years in case 2454, and eighteen months in case 2075. Clark appealed the order revoking his probation, and this Court affirmed.
State v. Clark
,
[¶7] On October 4, 2010, Clark requested the court correct his sentences in cases 951 and 1418 under N.D.R.Crim.P. 35(a), arguing his sentences should have merged with the sentences in cases 2454 and 2075 and were satisfied when he completed the original term of imprisonment in cases 2454 and 2075. He also claimed his due process rights were violated because of the delay in holding the revocation hearing. The district court denied Clark’s motion, stating:
based upon the facts and circumstances of the revocations and re-
sentencings in March 2009, as well as the Defendant’s extensive past criminal history up to that point in time, his motions for re-sentence modifications in these matters is DENIED. Mr. Clark presented no viable excuses for the misconduct alleged in the Petitions to Revoke which were filed on March 16, 2010, and the need for confinement as directed following the on [sic] March 16, 2009 hearing outweighs any policies favoring placing him back on probation at this time.
II
[¶8] Under N.D.R.Crim.P. 35(a), the sentencing court may correct an illegal sentence at any time. A sentence is illegal if it is contrary to statute.
State v. Edwards
,
[¶9] Clark argues he received illegal sentences in cases 915 and 1418 because the sentences in those cases should have merged with the sentences in 2075 and 2454 under N.D.C.C. § 12.1-32-11(1) and become one sentence. He contends his sentences in 915 and 1418 should have been deemed fulfilled once he was sentenced or when he completed his sentences in 2075 and 2454.
[¶10] Section 12.1-32-11(1), N.D.C.C., provides for the merger of sentences when an offender has committed multiple offenses:
Unless the court otherwise orders, when a persоn serving a term of commitment imposed by a court of this state is committed for another offense or offenses, the shorter term or the shorter remaining term shall be merged in the other term. When a person on probation or parole for an offense committed in this state is sentenced for another offense or offenses, the period still to be served on probation or parole shall be merged in any new sentence of commitment or probation. A court merging sentences under this subsection shall forthwith furnish each of the other courts previously involved and the penal facility in which the defendant is confined under sentence with authenticated copies of its sentence, which shall cite the sentences being merged. A court which imposed a sentence which is merged pursuant to this subsection shall modify such sentence in accordance with the effect of the merger.
[¶11] The standard of review for interpreting a statute is well-established:
The interpretation of a statute is a question of law, which is fully reviewable on appeal. The primary objective in interpreting a statute is to determine the legislature’s intent, and we look at the language of the statute first to determine intent. Words in a statute are given their plain, ordinary, and commonly understood meaning, unless they are defined by statute or unless a contrary intention plainly appears. N.D.C.C. § 1-02-02. The letter of a statute cannot be disregarded under the pretext of pursuing its spirit when the language of the statute is clear and unambiguous. N.D.C.C.§ 1-02-05. A statute is ambiguous if it is susceptible to different, rational meanings. Statutes are construed as a whole and are harmonized to give meaning to related provisions.
State v. Martin
,
[¶12] The criminal code, N.D.C.C. tit. 12.1, does not define the term “merge,” but this Court has interpreted N.D.C.C. § 12.1-32-11(1) in prior cases. In
State v. Mees
,
[¶13] The legislative history is consistent with this interpretation and indicates the term “merge” is the equivalent of “concurrent.” The legislative history notes, “Section 10[, which became N.D.C.C. § 12.1-32-11,] represented new material designed to cover instances in which a defendant was being sentenced for multiple offenses, and to define policy regarding the use of concurrent and consecutive sentences.” Minutes of the Interim Comm. on Judiciary “B” 18 (September 21-22, 1972). When N.D.C.C. § 12.1-32-11 was first enacted, subsection 1 provided, “Separate sentences of commitment imposed on a defendant for two or more offenses constituting a single criminal episode shall run concurrently. Sentences for two or more offenses not constituting a single criminal episode shall run concurrently unless the court speсifically orders otherwise.” 1973 N.D. Sess. Laws ch. 116, § 31. This provision was removed before the statute became effective in 1975. 1975 N.D. Sess. Laws ch. 116, § 31. The legislative history indicates the section was deleted because the section propounds a philosophy in favor of concurrent sentences and “the Legislature should not set forth a statutory philosophy favoring concurrent sentences, but should leave that determination, i.e., whether sentences are to be concurrent or consecutive, solely in the discretion of the sentencing judge.” Report of the North Dakota Legislative Council , at 126 (1975). See also Minutes of Interim Comm. on Judiciary “A” 20, 27 (Sept. 30 and Oct. 1, 1974) (noting Sgt. MacCarthy’s comment that he was opposed to a basic “concurrent sentencing philosophy,” noting suggestion that the word “consecutively” be substituted for the word “concurrently” in subsection 1, and noting the committee’s ultimate decision to delete subsection 1). The legislative history indicates the legislature intendеd N.D.C.C. § 12.1-32-11 to authorize the court to order concurrent or consecutive sentences.
[¶14] Section 12.1-32-11(1), N.D.C.C., is based on Model Sentencing Act §§ 19, 20, and 21. Minutes of Interim Comm. on Judiciary “B” 12-13 (Sept. 21-22, 1972) (noting the source of the legislation that became N.D.C.C. § 12.1-32-11 was certain sections of the Model Sentencing Act). Sections 19, 20, and 21 of the Model Sentencing Act contain almost the same language as N.D.C.C. § 12.1-32-11(1).
[¶15] Montana has a consecutive sentences statute, which is also based on the Modеl Sentencing Act §§ 19, 21, and 22. See Mont. Code Ann. § 46-18-401. The Montana statute currently provides:
(1) Unless the judge otherwise orders:
(a) whenever a person serving a term of commitment imposed by a court in this state is committed for another offense, the shorter term or shorter remaining term may not be merged in the other term; and
(b) whenever a person under suspended sentence or on probation for an offense committed in this state is sentenced for another offense, the periоd still to be served on suspended sentence or probation may not be merged in any new sentence of commitment or probation.
(2) The court, whether or not it merges the sentences, shall immediately furnish each of the other courts and the penal institutions in which the defendant is confined under sentence with authenticated copies of its sentence, which must cite any sentence that is merged.
(3) If an unexpired sentence is merged pursuant to subsection (1), the court that imposed the sentence shall modify it in accordance with the effect of the merger.
Mont. Code Ann. § 46-18-401. The statute was previously amended, and prior to the amendment the statute provided the shorter term of commitment or the period still to be served on probation “shall be merged” in the longer or new sentence of commitment. The Montana Supreme Court has interpreted Mont. Code Ann. § 46-18-
401(1) аs requiring merged sentences to run concurrently, but has not held the statute requires the sentences to become one sentence.
See
State v. Tracy
,
[¶16] Other courts have also interpreted the term “merge” in sentencing statutes as the equivalent of concurrent.
See, e.g.
,
Harris v. Commissioner of Correction
,
[¶17] We conclude under N.D.C.C. § 12.1-32-11(1) the term “merge” is the equivalent of “concurrent,” and thеrefore when a person on probation or parole is sentenced for another offense, the period still to be served on probation merges and runs concurrently with any new sentence of commitment or probation for the new offense. The sentences remain separate terms of imprisonment or probation, but are served at the same time. Clark’s sentences in cases 951 and 1418 did not become one sеntence with the sentences in cases 2454 and 2075; rather, his terms of probation continued to run in cases 951 and 1418 while he was serving his sentences in cases 2454 and 2075.
[¶18] Although Clark contends he was no longer on probation in cases 951 and 1418 when his probation in those cases was revoked, the revocation process in those cases was started before his probation terminated. In cases 951 and 1418, Clark received sentences of eighteеn months incarceration, with fifteen months suspended, and three years probation. His probation was ordered to start on the day he was released from incarceration or at the end of parole. Clark was released from incarceration and his probation started on approximately February 15, 2005. Clark’s probation ended on approximately February 15, 2008. The State filed a petition to revoke Clark’s probation in these cases on December 8, 2005. An order to apprehend was included with the petition and was signed on December 7, 2005. An order to apprehend warrant was issued on December 8, 2005. Although Clark was incarcerated for his sentences in cases 2454 and 2075 at the time the warrant was issued, the warrant was not executed immediately. Clark was paroled to serve a Minnesota sentence in July 2006, and he returned to North Dakota after he was released from incarceration in Minnesota in late February 2007. Clark left North Dakota some time after July 2007. An amended petition to revoke Clark’s probation in cases 951 and 1418 was filed on September 6, 2007. The arrest warrant was not executed and the petition to revoke Clark’s probation was not served until Clark returned to North Dakota on March 30, 2009.
[¶19] Clark was still on probation when the first petition to revoke his probation was filеd, the warrant was issued, and the amended petition was filed. Clark left the state before his probation terminated and before the warrant was executed or he was served with the petitions. Section 12.1-32-07(7), N.D.C.C., provides procedures for revoking probation:
The court may continue or modify probation conditions or revoke probation for a violation of probation conditions occurring before the expiration or termination of the period of probation notwithstanding that the order of the court is imposed after the expiration or termination has occurred. The petition for revocation must be issued within sixty days of the expiration or termination of probation.
[¶20] The statute indicates the filing of the petition for revocation initiates the revocation proceedings and continues the district court’s jurisdiction. Other courts have held various events initiate the revocation process and continue the court’s jurisdiction, including when a revocation petition is filed, a warrant is issued, a petition is filed and a warrant is issued, or a warrant is issued and executed within a reasonable period of time.
See, e.g.
,
United States v. Janvier
,
[¶21] Clark also argues he should at least receive credit in cases 951 and 1418 for the time he spent incarcerated in cases 2454 and 2075. However, this Court has said a defendant is not to receive credit in оne case for time he spent in custody on a wholly unrelated charge.
See
Gust v. State
,
[¶22] The district court revoked Clark’s probation in all four cases and resentenced Clark to serve five years in each case. Clark received credit for the time he previously served in each case. When a court gives a defendant credit for the time the defendant has previously served the court looks backward at the time the defendant has spent in custody for that offense.
See
State v. Neva
,
[¶23] We conclude Clark did not receive illegal sentences in cases 915 and 1418 and the district court properly denied Clark’s motion to correct his sentences.
III
[¶24] Clark argues he was denied due process whеn he was not brought before the court on the pending petition for revocation while he was in custody and serving his sentences in cases 2454 and 2075 or after he was released and was residing in North Dakota.
[¶25] Probation revocation is not a stage of the criminal prosecution, and therefore an individual’s rights are limited.
State v. Wardner
,
[¶26] The delay in time between when a probation revocation petition is filed and the arrest warrant is executed alone generally does not violate the probationer’s due process rights; rather, thе probationer must show he was prejudiced by the delay.
Sanchez
,
[¶27] Under the facts of this case, the delay did not violate Clark’s due process rights. He was incarcerated from the time the petition for revocation was filed until late February 2007, he left the state in July 2007, and he did not return until some time in 2009. Clark claims he was prejudiced by the delay because he could have served the sentences concurrently if his probation had been revoked earlier. However, a court has discretion to decide whether to order sentences run concurrently or consecutively and there is no indication the court would have ordered the sentences run concurrently if it had considered thе motion to revoke Clark’s probation soon after the sentences in 2452 and 2075 were imposed.
See
N.D.C.C. § 12.1-32-11 (court has discretion in ordering concurrent or consecutive sentences);
Sanchez
,
IV
[¶28] We conclude Clark’s sentence is not illegal and his due process rights were not violated. We affirm the district court’s decision to deny Clark’s motion for correction of sentence.
[¶29] Carol Ronning Kapsner
Mary Muehlen Maring
Daniel J. Crothers
Dale V. Sandstrom
Gerald W. VandeWalle, C.J.