Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Lawrence E. Jahnke, Judge.
Meredith H. Larson (argued), Grand Forks County State's Attorney, and Aaron Weber (on brief), third-year law student, under the Rules on Limited Practice of Law by Law Students, Grand Forks, ND, for plaintiff and appellee.
David N. Ogren (on brief) and Rhiannon L. Gorham (appeared), Grand Forks Public Defender Office, and Sarah Scholler (argued), law graduate, under the Rules on Limited Practice of Law by Law Students, Grand Forks, ND, for defendant and appellant.
Daniel J. Crothers, Lisa Fair McEvers, Carol Ronning Kapsner, Dale V. Sandstrom, Gerald W. VandeWalle, C.J.
[¶1] Jad Karter Breiner appeals from an amended criminal judgment entered upon a conditional plea of guilty to the charge of driving under the influence, reserving the right to appeal the order denying his motion in limine. Breiner argues computer-generated case summaries of his DUI convictions are not sufficient to satisfy the State's burden of proving that Breiner had prior convictions and that he either had counsel or properly waived representation by counsel so that the convictions can be used to enhance his sentence. We affirm.
[¶2] Breiner was charged with driving under the influence under N.D.C.C. § 39-08-01(1)(b), alleging this was his fourth offense or more. The State offered six DUI convictions, citing case numbers 08-92-K-1549, MA-96-K11876, 09-00-K-00691, 08-02-K-01822, 08-02-K-02785 and 08-03-K-02192. The State also noted a pending Iowa DUI where Breiner pled guilty, but had not been sentenced. Breiner moved to exclude his prior DUI convictions, seeking to prevent the State from using copies of computer-generated case summaries for enhanced sentencing purposes. The district court denied Breiner's motion, adopted the State's position and permitted the use of four exhibits by the State for sentencing enhancement. Breiner entered a conditional plea of guilty, reserving the right to appeal the district court's order denying his motion. The district court entered a criminal judgment and sentenced Breiner to 3 years' imprisonment, suspending 1 year and 364 days. Breiner appeals.
[¶3] " A person convicted of violating [N.D.C.C. § 39-08-01] must be sentenced in accordance with [section 39-08-01(5)]." N.D.C.C. § 39-08-01(5). The State sought enhancement under N.D.C.C. § 39-08-01(5)(d) for Breiner's fourth or subsequent offense. The district court sentenced Breiner under the enhancement requirements in N.D.C.C. § 39-08-01(5)(d). " The minimum penalty for violating [section 39-08-01] is as provided in subsection 5. The court shall take judicial notice of the fact that an offense would be a subsequent offense if indicated by the records of the director or may make a subsequent offense finding based on other evidence." N.D.C.C. § 39-08-01(3). Breiner moved to prevent the State from using copies of DUI case summaries for sentencing enhancement.
[¶4] In cases challenging the district court's reliance upon prior convictions for sentencing purposes, we have explained, " A district court is afforded wide discretion in sentencing. This Court will vacate a district court's sentencing decision only if the court acted outside the limits prescribed by statute or substantially relied
on an impermissible factor in determining the severity of the sentence." State v. Eckroth,2015 ND 40, ¶ 7, 858 N.W.2d 908 (internal citations and quotation marks omitted). " A prior uncounseled conviction without waiver of counsel is an impermissible factor which may not be substantially relied on by a trial judge in ...