. [¶ 1] Joshua Peterson pled • guilty to class B felony burglary. Judgment was entered in which Peterson was sentenced to ten years imprisonment with five years suspended. Subsequently, the State moved the district court to correct the judgment. Peterson appeals from an amended criminal judgment entered after the district court granted the State’s motion. We conclude the district court did not err when it amended the judgment to reflect the eighty-five percent service requirement under N.D.C.C. § 12.1-32-09.1 applied to Peterson’s sentence. We affirm the amended judgment.
I
[¶ 2] On April 30, 2015, Peterson was charged with burglary by criminal complaint. The criminal complaint stated Peterson was charged with burglary in violation of N.D.C.C. §§ 12.1-22-02, 12.1-22-02(2)(b), and 12.1-32-01. At the June 10, 2015 change of plea hearing, the. district court initially asked -Peterson for his plea for a charge of class C felony burglary. Peterson responded and pled guilty. Peterson’s counsel pointed out the burglary charge was set for a preliminary hearing that day and stated Peterson waived the hearing and the reading of his rights. Peterson then personally waived the preliminary hearing on the burglary charge. The State clarified the burglary- charge was a class B felony because of the aggravating factors of the immediate flight and the. intent to inflict bodily injury on an officer. The district court asked Peterson whether he intended to persist with his plea of guilty. After some discussion with his attorney off the record, Peterson agreed to persist in his guilty plea. The district court then asked Peterson whether he wanted the information read to him. Peterson waived the reading of the informa
[¶ 3] The district court made oral findings that the plea was entered knowingly, voluntarily, and intelligently and then asked for a factual basis for the guilty plea. The State gave a factual basis that indicated the defendant was seen in a vehicle outside the burglarized business and ordered to stop by an investigating officer. The defendant drove away in a manner that appeared an attempt to strike the ordering officer. Peterson’s counsel responded to the State’s assertions:
Your Honor, just in regard to the vehicle. He was fleeing the scene. He wasn’t directing anything at an officer, but he was fleeing the scene in his vehicle. And his vehicle was eventually brought to a halt.
Peterson agreed with his attorney’s statement. The court found there was a sufficient factual basis for the guilty plea and sentenced Peterson to ten years in prison with five years suspended and credit for 41 days served. The court entered a criminal judgment on June 11, 2015. The judgment listed the statute as “12.1-22-02” and under the “Degree” column was listed “Felony B.”
[¶ 4] On September 29, 2015, the State filed a Motion to Correct Judgment under N.D.R.Crim.P. 35(a)(2). The State’s motion moved the criminal judgment be amended to reflect Peterson’s guilty plea to N.D.C.C. § 12.1-22-02(2)(b). The State argued the change was necessary because of “technical or other clear error.” The State noted the Department of Correction’s policy required either specific reference to N.D.C.C. § 12.1-22-02(2)(b) or some other, indication that the eighty-fiye percent service requirement of N.D.C.C. § 12.1-32-09.1 applied to Peterson’s sentence to appear on the criminal judgment before the Department would apply the eighty-five percent service requirement to a sentence.
[¶ 5]' The district court held a hearing on the motion at which Peterson represented himself. The court asked Peterson whether he chose to appear self-represented. Peterson responded affirmatively. The State indicated the criminal judgment had a “clerical error”' that needed to be corrected because only the general statute for burglary was listed. The State referred to the transcript of the change of plea hearing and argued it was clear Peterson pled guilty to N.D.C.C. § 12.1-22-02(2)(b). The court asked Peterson if he had read the transcript. When Peterson responded that he had not, the court told him a printed copy would be provided for his review. The court then orally reviewed a portion of the transcript from the change of plea hearing. Peterson pointed to the portion of the transcript where he and his counsel disputed the presence of the aggravating factors and argued that the court should change the charge to a class C felony. The court explained there was only a limited motion before the court, and if Peterson was going to make a motion, he would need to do it within the applicable timeline. The court asked the State whether the criminal judgment should be amended or corrected. The State responded, “[cjorrected. The clerical error in the criminal judgment should be corrected at this time.” The court gave Peterson an opportunity to speak one last time. Peterson again argued he had no violent intent.
[¶ 6] After the hearing, the district court entered an order stating the judg
II
[¶7] On appeal, Peterson argues the district court erred when it amended the criminal judgment because the change to the judgment resulted in an increase in Peterson’s sentence. Peterson contends the district court’s actions were prohibited by Rule 35, N.D.R.Crim.P. and violated Peterson’s constitutional protections against double jeopardy.
[¶ 8] Under either theory, the critical issue is whether the amended judgment resulted in an increase in Peterson’s sentence. “This Court’s case law and N.D.R.Crim.P. 35 do not permit district courts to order a sentence, then later increase the sentence.”
State v. Kaseman,
[¶ 9] The district court amended Peterson’s criminal judgment to indicate the applicability of N.D.C.C. § 12.1-32-09.1 to his sentence. Section 12.1-32-09.1, N.D.C.C., also known as the “85% Rule,” imposes an eighty-five percent service requirement on those convicted of an offense listed in the statute and sentenced to imprisonment. Section 12.1-32-09.1, N.D.C.C., provides:
1. Except as provided under section 12-48.1-02 and pursuant to rules adopted by the department of corrections and rehabilitation, an offender who is convicted of a crime in violation of section 12.1-16-01, 12.1-16-02, subsection 2 of section 12.1-17-02, section 12.1-18-01, subdivision a of subsection 1 or subdivision b of subsection 2 of section 12.1-20-03, section 12.1-22-01, subdivision b of subsection 2 of section 12.1-22-02, or an attempt to commit the offenses, and who receives a sentence of imprisonment is not eligible for release from confinement on any basis until eighty-five percent of the sentence imposed by the court has been served or the sentence is commuted.
[¶ 10] Peterson argues the district court’s inclusion of language referring to the “85% Rule” resulted in an increase in sentence because the amended judgment contained a condition not present in the original criminal judgment. This Court has held the eighty-five percent service requirement of N.D.C.C. § 12.1-32-09.1 is a parole condition.
State v. Raulston,
[¶ 11] Peterson relies on
State v. Bryan,
[¶ 12]
Bryan
is different from this case. In
Bryan,
this Court determined “the modification of a sentence that would effectively deny a defendant’s ability to utilize Section 12.1-32-02(9) to reduce a felony conviction to a misdemeanor or by successful completion of his sentence ... increase[d] the punishment of the original sentence.”
[¶ 13] The original criminal judgment stated the conviction was for a class B felony burglary, but only listed the general
[¶ 14] The record indicates Peterson was informed to which type of class B felony burglary he was pleading guilty. Section 12.1-22-02(2)(b), N.D.C.C., includes aggravating factors that elevate a burglary conviction from a class C felony to a class B felony:
In effecting entry or while in the premises or in immediate flight therefrom, the actor inflicts or attempts to inflict bodily injury or physical restraint on ..another, or menaces another with imminent serious bodily injury, or is armed with a firearm, destructive device, or other weapon the possession of which under the circumstances indicates an intent or readiness to inflict serious bodily injury.
[¶ 15] The factual basis given at the change of plea hearing only matches the conduct required under N.D.C.C. § 12.1-22-02(2)(b). When asked for a factual basis for the guilty plea at the June 10, 2015 change of plea hearing, the State responded by stating, in relevant part:
Peterson and Butler were both located in a motor vehicle outside of the business of Minot Welding. They were given commands to stop and exit the motor vehicle. Neither complied. Peterson was the driver of the motor vehicle. He ■ drove the motor vehicle towards law en- • forcement Officer Brandon Schmitt in an attempt it looked as though through the physical evidence an attempt to strike Officer Schmitt.
The criminal complaint and the information filed in the case-also stated, in relevant part:
To wit: Joshiia Michael Peterson willfully entered Minot Welding, when at the time Minot [Wielding was not open to the public and Joshua Michael Peterson was not licensed, invited, or otherwise privileged to enter or remain, with the intent to commit the crime of theft of property therein, and while in immediate flight therefrom, [Joshua] Michael Peterson attempted to inflict bodily injury on Brandon Schmitt, or menaced Brandon Schmitt with imminent serious bodily injury. Said offense is a CLASS B FELONY.
Neither party disputes there was no amended information filed in Peterson’s case. Peterson did not seek to withdraw his guilty plea after his attorney’s statement acknowledging flight from the scene as the driver of the vehicle. The district court concluded, “[n]othing at the sentencing hearing indicated the Defendant was pleading guilty only to 12.1-22-02 and not to the 12.1—22—02(2)(b) charge, which would trigger N.D.C.C. § 12.1-32-09.1 eighty-five percent requirement.” The amended criminal-judgment clarified the applicability of the eighty-five percent service requirement to Peterson’s sentence as was contemplated by his plea of guilty to class B felony burglary under N.D.C.C. § 12.1-22-02(2)(b). Because the district court’s actions did not increase Peterson’s sentence, the court’s action's neither violated N.D.R.Crim.P. 35, nor violated Peterson’s constitutional right against double jeopardy.
III
[¶ 16] Peterson argues the district court’s change to Peterson’s sen
[¶ 17] The explanatory notes to N.D.R.Crim.P. 36 state, “Rule 36 is adapted from and contains language identical to Fed.R.Crim.P. 36. The rule is also similar to N.D.R.Civ.P. 60(a) and provides for correction of clerical error at any time.” The text of N.D.R.Crim.P. 36 provides, “After giving any notice it considers appropriate, the court may at any time correct a clerical error in a judgment, order, or other part of the record, or correct an error in the record arising from oversight or omission.” The explanatory notes indicate N.D.R.Crim.P. 36 is limited in scope to correction of clerical errors or errors of oversight or omission and does not apply to correction of errors of substance. As the explanatory note to N.D.R.Crim.P. 36 states, “[a] clerical error involves a failure to record accurately a statement made or action taken by the court or one of the parties.”
[¶ 18] Federal caselaw illustrates the type of error the district court may correct under Rule 36. “As courts have held in the context of [Fed.R.Crim.P.] Rule 36’s twin, Federal Rule of Civil Procedure 60(a), a clerical error ‘must not be one of judgment or even of misidentification, but merely of recitation, of the sort that a clerk or amanuensis might commit, mechanical in nature.’”
United States v. Guevremont,
[¶ 19] A clerical error in a judgment capable of correction under N.D.R.Crim.P. 36, “includes a failure to accurately record action taken by the court, but the rule does not extend to correction of errors of substance.”
Peltier v. State,
[¶ 20] Here, the error was clerical and was not an error of substance. Peterson was on notice of the charge against him through the criminal complaint, the information, the State’s clarification at the change of plea hearing that the aggravating factors appearing in N.D.C.C. § 12.1-22—02(2)(b) were present, and the State’s factual basis that echoed the same. Similar to
Barnes,
there is no class B felony burglary under the general statute N.D.C.C. § 12.1-22-02.
IV
[¶ 21] The district court’s actions were proper under N.D.R.Crim.P. 36. Accordingly, we affirm the amended judgment.