from the District Court of Ward County, North Central
Judicial District, the Honorable Douglas L. Mattson, Judge.
A. Miller, Assistant State's Attorney, Ward County
Assistant State's Attorney, for plaintiff and appellee.
O. Diamond, for defendant and appellant.
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.
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 information. The district
court then inquired whether Peterson would waive any
irregularities with the proceeding because the district court
initially took the plea prior to Peterson waiving his right
of a preliminary hearing and the filing of an information.
Peterson agreed to waive any irregularities with the
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
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.
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-five 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, "[c]orrected.
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 judgment would be amended "to reflect the
appropriate Statute for the charge of Burglary, N.D.C.C.
§ 12.1-22-02(2)(b) and that the requirements of
12.1-32-09.1 apply." The district court entered an
amended criminal judgment on February 16, 2016 that stated
the eighty-five percent service requirement applied to
Peterson. The statute referenced was not changed to include
the specific subsection and subdivision as contemplated by
the order directing the amended criminal judgment. The only
change made was the addition of "85% Rule - Ward"
under the heading of "Order of the Court and
Conditions." Under "Comment" in the same
section, it states, "N.D.C.C. 12.1-32-09.1 applies in
this situation, such that the Defendant will not be eligible
for release from incarceration ...