State of North Dakota v. Matthew Jeffrey Overholt
No. 20190033
IN THE SUPREME COURT, STATE OF NORTH DAKOTA
Filed 6/27/19
2019 ND173
Opinion of the Court by Crothers, Justice.
State of North Dakota, Plaintiff and Appellee
v.
Matthew Jeffrey Overholt, Defendant and Appellant
Aрpeal from the District Court of Cass County, East Central Judicial District, the Honorable Thomas R. Olson, Judge.
REVERSED.
Opinion of the Court by Crothers, Justice.
Derek K. Steiner (argued), Assistant State’s Attorney, Ryan J. Younggren (on brief), and Nicholas S. Samuelson (on brief), third-year law student, under the Rule on Limited Practice of Law by Law Students, Fargo, ND, for plaintiff and appellee.
Will R. Budke, Wahpeton, ND, for defendant and appellant.
State v. Overholt
No. 20190033
[¶1] Matthew Overholt appeals from a district court order modifying its order deferring imposition of sentence. We reverse because the district court erred in relying on a second case thаt had been automatically dismissed to modify its order in this case, and because the State presented no other evidence supporting its motion.
I
[¶2] In November 2017 Overholt was charged with misdemeanor minor in possession or consumption of alcohol. In December 2017 he pled guilty. The district court entered an order deferring imposition of sentence and placed him on unsupervised probation with an end date of November 30, 2018, and with the condition that he violate no criminal laws during the probation term. The court further ordered
[¶3] In April 2018 Overholt was charged with a second misdemeanor minor in possession or consumption of alcohol. In May 2018 he pled guilty in the second case, and the court entered an order deferring imposition of sentence, and placed him on unsupervised probation for three months. Overholt completеd the term of unsupervised probation in the second case. Under the order deferring imposition of sentence in that case, on October 13, 2018, his guilty plea was withdrawn, the case dismissed, and the file was to have been sealed.
[¶4] In December 2018 thе State moved the district court to modify the order deferring imposition of sentence in this case on the basis of his offense and guilty plea in the second case. The State requested Overholt’s guilty plea in this case not be withdrawn, the case not be dismissed, and the file not be sealed. On December 31, 2018, the court granted the State’s motion.
II
[¶5] At the outset, the State asserts the order is not appealable. The State argues the district court’s order modifying its order deferring the imposition of sentеnce does not fall within any of the subsections of
[¶6] Overholt argues the order is appealable because an order complying with
[¶7] We have jurisdiction in this case because the appealed order modifying the order deferring imposition of sentence maintains Overholt’s guilty plea, imposes sentence, and constitutes a judgment of conviction under
III
[¶8] Overholt argues the district court erred in relying on the dismissed second case to modify its order deferring imposition of sentence in this case because his guilty
plea in the second casе was withdrawn, the case dismissed, and the file should have been sealed.
[¶9] Several statutes provide guidance in this case. Section
“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 .”
(Emphasis added.) Section
“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 wаrrants, may terminate the period of probation and discharge the person so held. . . . Every defendant who has fulfilled the conditions of probation for the entire period, or who has been discharged from probation prior to terminatiоn 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 аgainst 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 sections12.1-32-15 and62.1-02-01 .”
(Emphasis added.) Section
“Whenever imposition of sentencе is deferred and, pursuant to section
12.1-32-07.1 , the plea of guilty is withdrawn by the defendant or the verdict of guilty is set aside by the court, the clerk of court shall file all papers, including the findings and final orders in proceedings under section12.1-32-07.1 , and shall note the date of filing on the papers. The records and papers are subject to examination by the clerk, a judge
of the court, the juvenile commissioner, probation officers, the defendant or defendant’s counsel, and the state’s attorney. Others may examine the records and papers only upon the written order of a judge of the court.”
(Emphasis added.) Additionally, before March 1, 2019,
“An order deferring imposition of sentence for an infraction or a misdemeanor must require that 61 days after expiration or termination оf 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.”
[¶10] Overholt argues that under
[¶11] “Under the requirements of
hold the file would not be sealed because the case wаs automatically dismissed sixty-one days after probation expired. Ebertz, at ¶¶ 13-14.
[¶12] Here, while the State’s motion to modify the order deferring imposition of sentence was filed within sixty days after expiration of Overholt’s probation, the second case, which fоrmed the sole basis for the State’s December 2018 motion to modify the order, already had been automatically dismissed almost two months earlier. There is no dispute Overholt’s guilty plea in the second case was withdrawn, the case was dismissed, and the file was sealed automatically because no action was taken within sixty days after probation expired. The only basis for the State’s motion to modify was Overholt’s guilty plea in the second case. But, by then, Overholt’s guilty plea had been withdrawn and the second case dismissed. At that point, the mere existence of the second case could not form the evidentiary basis to modify the order in this case.
[¶13] The State asserts under
[¶14] Generally, when a district court defers imposition of sentence, a defendant is placed on probation, subject to the terms and conditions the court imposes, and the court retаins jurisdiction over the defendant for purposes of revoking probation and passing sentence at some future date. See State v. Hess, 264 N.W.2d 464, 466-67 (N.D. 1978). Rule 32(f),
Overholt’s guilty plea in the second case had been withdrawn and the case automatically dismissed by the time of the State’s motion. Some factual basis was necessary to prove Overholt violated his probation conditions.
[¶15] The district court erred in modifying its order deferring imposition of sentence because the court exclusively relied on a second case that had been dismissed, and the State presented no evidence to support its motion. The court’s order modifying
IV
[¶16] The district court order is reversed.
[¶17] Daniel J. Crothers
Lisa Fair McEvers
Jon J. Jensen
Jerod E. Tufte
Gerald W. VandeWalle, C.J.
Tufte, Justice, concurring specially.
[¶18] I agree with and have signed the majority opinion.
[¶19] As the majority explains, after withdrawal of Overholt’s plea and dismissal of the order deferring imposition of sentence, a bare reference to the court file containing the dismissed charge is an insufficient basis to establish a probаtion violation and set aside a deferred imposition of sentence. The statute speaks of a prior conviction subject to deferred imposition of sentence in the present tense: “the prior conviction for which imposition of sentence is deferred may be pleaded and proved.”
[¶20] Jerod E. Tufte
Gerald W. VandeWalle, C.J.