State of North Dakota, Plaintiff and Appellee v. Joe Michael Johns, Defendant and Appellant
No. 20180431
IN THE SUPREME COURT STATE OF NORTH DAKOTA
Filed 8/26/19
2019 ND 227
Crothers, Justice.
Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable David E. Reich, Judge.
REVERSED AND REMANDED.
Opinion of the Court by Crothers, Justice.
Mindy L. Lawrence, Bismarck, ND, for plaintiff and appellee; submitted on brief.
Erica M. Woehl, Bismarck, ND, for defendant and appellant; submitted on brief.
State v. Johns
No. 20180431
Crothers, Justice.
[¶1] Joe Johns appeals from a criminal judgment entered upon a conditional guilty plea after the district court denied his motion to dismiss a charge for unlawful possession of drug paraphernalia as a class C felony second offense. Johns argues he did not have a prior conviction for enhancement purposes because a deferred imposition of sentence for a prior charge under
I
[¶2] On August 30, 2018, the State charged Johns with unlawful possession of drug paraphernalia as a class C felony second offense under
[¶3] Johns moved to dismiss the charge, arguing the information failed to state an offense rising to the level of a class C felony for a second conviction of a drug paraphernalia offense because his prior conviction for unlawful possession of drug paraphernalia had been vacated and dismissed after he completed probation under a deferred imposition of sentence. He asserted that after the termination of his probation in the prior case, his guilty plea and the guilty verdict were vacated, the action was dismissed and the public record were sealed and deleted.
[¶4] The State resisted Johns’ motion, arguing
[¶5] The district court denied Johns’ motion, ruling
II
[¶6] Johns argues the district court misinterpreted
[¶7] The State responds that under
[¶8] The issues raised in this appeal involve the interpretation of several statutes. In State v. Kuruc, 2014 ND 95, ¶ 32, 846 N.W.2d 314, we described rules for construing statutes:
“Statutory interpretation is a question of law. Statutes must be construed as a whole and harmonized to give meaning to related provisions, and are interpreted
in context to give meaning and effect to every word, phrase, and sentence. In construing statutes, we consider the context of the statutes and the purposes for which they were enacted. When a general statutory provision conflicts with a specific provision in the same or another statute, the two must be construed, if possible, so that effect may be given to both provisions. When statutes relate to the same subject matter, this Court makes every effort to harmonize and give meaningful effect to each statute.”
(Internal citations and quotation marks omitted.)
[¶9] Johns was charged with unlawful possession of drug paraphernalia as a second offense under
“2. A person may not use or possess with the intent to use drug paraphernalia to inject, ingest, inhale, or otherwise induce into the human body a controlled substance, other than marijuana, classified in schedule I, II, or III of chapter 19-03.1. A person violating this subsection is guilty of a class A misdemeanor. If a person previously has been convicted of an offense under this title, other than an offense related to marijuana, or an equivalent offense from another court in the United States, a violation of this subsection is class C felony.”
[¶10] Section
“4. A court, upon application or its own motion, may defer imposition of sentence. The court must place the defendant on probation during the period of deferment. An order deferring imposition of sentence is reviewable upon appeal from a verdict or judgment. In any subsequent prosecution, for any other offense, the prior conviction for which imposition of sentence is deferred may be pleaded and proved, and has the same effect as if probation had not been granted or the information or indictment dismissed under section 12.1-32-07.1.”
[¶11] Section
“2. Whenever a person has been placed on probation pursuant to subsection 4 of section 12.1-32-02, the court at any time, when the ends of justice will be served, and when reformation of the probationer warrants, may terminate the period of probation and discharge the person so held. A person convicted of gross sexual imposition under subdivision a of subsection 1 of section 12.1-20-03 is not entitled to early termination of probation pursuant to this section, unless the court finds after at least eight years of supervised probation that further supervision would impose a manifest injustice. Every defendant who has fulfilled the conditions of probation for the entire period, or who has been discharged from probation prior to termination of the probation period, may at any time be permitted in the discretion of the court to withdraw the defendant‘s plea of guilty. The court may in its discretion set aside the verdict of guilty. In either case, the court may dismiss the information or indictment against the defendant. The court may, upon its own motion or upon application by the defendant and before dismissing the information or indictment, reduce to a misdemeanor a felony conviction for which the plea of guilty has been withdrawn or set aside. The defendant must then be released from all penalties and disabilities resulting from the offense or crime of which the defendant has been convicted except as provided by sections 12.1-32-15 and 62.1-02-01.”
“An order deferring imposition of sentence for an infraction or a misdemeanor must require that 61 days after expiration or termination of probation:
(a) the defendant‘s guilty plea be withdrawn, or the guilty verdict be set aside;
(b) the case be dismissed; and
(c) the file be sealed.
“The court may, by order, modify an order deferring imposition of sentence no later than 60 days after expiration or termination of probation.”
[¶13] In State v. Ebertz, 2010 ND 79, ¶¶ 9-15, 782 N.W.2d 350, we discussed the interrelationship of statutes for a deferred imposition of sentence and
[¶14] In State v. Overholt, 2019 ND 173, ¶¶ 1, 4, 9, we discussed those statutes and
[¶15] In State v. Nelson, 2019 ND 204, ¶ 6, we considered whether a completed deferred imposition of sentence resulting in the withdrawal of a guilty plea and dismissal of the proceeding could be considered a conviction sufficient to trigger a mandatory minimum sentence under
“the phrase ‘the prior conviction for which imposition of sentence is deferred’ refers to a deferred sentence that has not been dismissed. . . . Under
N.D.R.Crim.P. 32.1 , the court could not consider Nelson‘s previous conviction because it had been dismissed and the court erred by using the dismissed case to trigger the mandatory minimum sentence. Had the prior offense not yet been dismissed, the State would then have been entitled to an opportunity to ‘plead and prove’ the prior conviction underN.D.C.C. § 12.1-32-02(4) . However, once a case is dismissed, the State may not plead and prove a previous conviction.”
[¶16] Here, the State charged Johns under
[¶17] The State cannot use the prior dismissed deferred imposition of sentence to enhance the charge against Johns in this case. We reverse and remand to allow Johns to withdraw his conditional guilty plea to the enhanced charge.
III
[¶18] The judgment is reversed and the case is remanded.
[¶19] Daniel J. Crothers
Jerod E. Tufte
Jon J. Jensen
Daniel El-Dweek, D.J.
Gerald W. VandeWalle, C.J.
[¶20] The Honorable Daniel El-Dweek, D.J., sitting in place of McEvers, J., disqualified.