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State v. McClary

Supreme Court of North Dakota

February 18, 2016

State of North Dakota, Plaintiff and Appellee
v.
Michael Mills McClary, Defendant and Appellant

Appeal from the District Court of Nelson County, Northeast Central Judicial District, the Honorable Jon J. Jensen, Judge.

Jayme J. Tenneson, Nelson County States Attorney, Lakota N.D. for plaintiff and appellee; on brief.

Michael M. McClary, self-represented, Jamestown, N.D., defendant and appellant; on brief.

Carol Ronning Kapsner, Dale V. Sandstrom, Daniel J. Crothers, Lisa Fair McEvers, Gerald W. VandeWalle, C.J. Opinion of the Court by Kapsner, Justice. McEvers, Justice, specially concurring.

OPINION

Page 30

Kapsner, Justice.

[¶1] Michael Mills McClary, self-represented, appeals from orders denying his motion to correct an illegal sentence and denying his motion for reconsideration. We reverse and remand for the district court to determine whether McClary is eligible for court-appointed counsel and for further consideration of the merits of his motion.

I

[¶2] In April 2011, McClary was charged with five counts of gross sexual imposition. The first four counts were alleged to have occurred in 2010 and the penalty sections for those offenses were listed in the criminal complaint as class A or AA felonies. The fifth count was alleged to have occurred in " 2004 or 2005" and the penalty section listed was " Class B Felony (pre-August 2005 version)." In January 2012, after the class AA felony was reduced to a class A felony, McClary pled guilty to all five charges. McClary was sentenced to serve ten years in prison with three years suspended with credit for time served on each charge. For each charge, McClary was also placed on supervised probation for ten years from the later of the date of his release from incarceration or the termination of his parole. The district court ordered that the sentences " run concurrent" with each other.

[¶3] In April 2015, McClary moved to correct an illegal sentence under N.D.R.Crim.P. 35(a), and requested a

Page 31

hearing and court-appointed counsel. McClary alleged that under the pre-August 2005 version of N.D.C.C. § 12.1-32-06.1(3), the district court could only impose a five-year period of supervised probation rather than a ten-year period of probation for the fifth count. After being granted an extension of time " to research the 2005 statutes and to prepare any stipulation if it is determined that the sentence is illegal," the State responded that an additional five years could be imposed under the prior version of N.D.C.C. § 12.1-32-06.1(3) if the additional period is in conjunction with a commitment to a sexual offender treatment or aftercare program, and the following condition of probation in each of the criminal judgments satisfied that requirement:

28. You shall attend, participate in, cooperate with and successfully follow and complete all sex offender treatment program rules and requirements and admit responsibility for your offense(s) as part of the treatment requirements. You shall attend aftercare if recommended by the parole/probation officer or treatment staff.

[¶4] Without holding a hearing or commenting on McClary's request for appointed counsel, the district court agreed with the State and denied the motion. McClary moved for reconsideration, claiming the court should have focused on whether he was required to attend a recommended sex offender treatment program or aftercare, because the sentencing court " would have been unable to determine, whether the parole/probation officer or any treatment staff would require or recommend additional treatment" to justify the additional five-year period. McClary also complained the court " ...


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