Appeal from the District Court of Williams County, Northwest Judicial District, the Honorable Joshua B. Rustad, Judge.
Nathan K. Madden, Assistant State's Attorney, Williams County State's Attorney Office, Williston, ND, for plaintiff and appellee.
Daniel S. El-Dweek, Public Defender Office-Williston, Williston, ND, for defendant and appellant.
Lisa Fair McEvers, Carol Ronning Kapsner, Dale V. Sandstrom, Daniel J. Crothers, Gerald W. VandeWalle, C.J. Opinion of the Court by McEvers, Justice.
[¶1] Jimmy Booth, Jr., appeals a district court order denying his motion to correct an illegal sentence. We affirm.
[¶2] Booth was charged with possession of a controlled substance, possession of drug paraphernalia, and four counts of endangerment of a child. Booth was assigned an attorney and waived his right to a preliminary hearing on all charges on September 11, 2012. The State emailed Booth's attorney, informing him of its intention to file a notice of habitual offender status on September 19, 2012. On September 26, 2012, the court sent notice of hearing for the change of plea and sentencing. The State filed a notice of habitual offender status on September 27, 2012. In the notice, the State alleged Booth qualified as an adult, and he had been convicted of unlawful possession of drug paraphernalia, a class C felony, on April 23, 2010, and unlawful manufacture of methamphetamine, a class A felony, on July 13, 2005. Attached to the notice of habitual offender status were certified judgments for both previous felony convictions. The district court held a change of plea and sentencing hearing on September 28, 2012. The district court explained the potential for increased penalties, as a result of the habitual offender status, to Booth. Booth entered pleas of guilty to all counts, and the district court accepted the pleas. The district court sentenced Booth to ten years of incarceration on each count to be served concurrently, with credit for 43 days served. On October 24, 2012, Booth moved for a reduction of sentence. The district court denied the motion. On April 14, 2014, Booth moved under N.D.R.Crim.P. 35(a)(1) to correct an illegal sentence, claiming his sentence was illegal because the one-day notice given by the State of its intent to seek habitual offender status was insufficient as a matter of law. The court denied the motion, and Booth appealed.
[¶3] Booth argues his sentence was illegal because the State did not give reasonable notice of its intention to seek the habitual offender sentence enhancement, as required by N.D.C.C. § 12.1-32-09(3), when it filed the notice one day before the change of plea and sentencing hearing.
[¶4] Under N.D.R.Crim.P. 35(a)(1), a sentencing court may correct an illegal sentence at any time. " The term 'illegal sentence' as used in Rule 35(a) applies to a sentence that the judgment of conviction does not authorize." State v. Trieb, 516 N.W.2d 287, 291 (N.D. 1994) (citation omitted). As noted in Trieb, a sentence is illegal if it is in excess of a statutory provision or in some other way contrary to an applicable statute. Id.
[¶5] Under N.D.C.C. § 12.1-32-09(1)(c), a court may sentence a convicted offender to an extended sentence as a habitual offender when it finds " the offender is an adult and has previously been convicted in any state or states or by the United States of two felonies of class C or above committed at different times when the offender was an adult." When the State has reason to believe a defendant qualifies as a habitual offender, the State may file a notice of its intent to seek a sentence enhancement at a reasonable time before the district court accepts a guilty plea. N.D.C.C. § 12.1-32-09(3). " The purpose of giving adequate notice is to allow the defendant to prepare for and ...