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State v. Hutchinson

Supreme Court of North Dakota

June 29, 2017

State of North Dakota, Plaintiff and Appellant
v.
Eric N. Hutchinson, Defendant and Appellee

         Appeal from the District Court of Williams County, Northwest Judicial District, the Honorable David W. Nelson, Judge.

          Marlyce A. Wilder, State's Attorney, Williston, ND, for plaintiff and appellant; submitted on brief.

          Steven D. Mottinger, Fargo, ND, for defendant and appellee; submitted on brief.

          OPINION

          Kapsner, Justice.

         [¶ 1] The State appeals from a district court order denying its motion to correct an illegal sentence. Because we conclude the sentence in this case was not an illegal sentence, we affirm.

         I

         [¶ 2] Eric Hutchinson was charged with two counts of class AA felony gross sexual imposition and one count of class C felony corruption or solicitation of minors. Hutchinson pleaded not guilty to the charges on December 1, 2015. At a January 11, 2016 change of plea hearing, the State indicated the parties had reached a plea agreement. The State agreed to dismiss one count of class AA felony gross sexual imposition and amend the remaining class AA felony gross sexual imposition charge to a class C felony corruption of a minor charge. The State suggested a five-year sentence with credit for time served for count 1 and a consecutive five-year sentence, all suspended for a period of five years from the date of Hutchinson's release. The State clarified the sentence would be "five years to serve, and then a consecutive five years that would be served all on probation." The district court asked Hutchinson if that was his understanding of the agreement, to which Hutchinson replied, "Yes, sir." Hutchinson then entered guilty pleas to two charges of class C felony corruption or solicitation of minors in violation of N.D.C.C. § 12.1-20-05. The district court accepted the guilty pleas, ordered a pre-sentence investigation, and stated, "based on that we will determine whether or not to accept the agreement...."

         [¶ 3] The district court held a sentencing hearing on August 23, 2016. At the hearing, the State was asked to recite the terms of the plea agreement. The State indicated a sentence that included five years with credit for time served suspended for a period of five years after release on one count, and the same for the second count, all to run concurrent. The district court asked the State if the intention was for Hutchinson to be released that day to serve his suspended sentence on supervised probation. The State asked Hutchinson's attorney to "weigh in" and "Help [the State] with this, since we changed a few things when we came--right before we came on the record." Hutchinson's counsel indicated it was his understanding the sentence would be "five [years incarceration], serve three on each, concurrent, with credit for 319 days." Hutchinson's counsel indicated that Hutchinson knew he still had "some time to do yet." The State was again asked to recite the sentence and stated: "The sentences, which would be concurrent, would be five years with the Department of Corrections. Three years to serve. Credit for 319 days, that he has served as of now." The district court stated, "[t]he sentence will be as you folks have agreed. And judgments will be entered accordingly." The district court entered criminal judgments on August 31, 2016. The criminal judgments stated Hutchinson was sentenced to five years incarceration with credit for 327 days spent in custody, concurrent with the same sentence for the other count, and two years incarceration, suspended for a period of five years of supervised probation from the date of release.

         [¶ 4] The State realized it mistakenly agreed to a different sentence than had been recited and agreed to by Hutchinson at the change of plea hearing. The State requested a status conference to discuss the error in sentencing. At the hearing, the State's attorney explained she had realized the wrong sentence was recited at the sentencing hearing after the hearing had concluded. The State's attorney made it clear she was not alleging anyone intentionally mislead the district court, but indicated she had mistakenly "blindly--followed [Hutchinson's counsel's] lead" at the hearing. Hutchinson's attorney indicated he had several matters he was handling at the courthouse on that day, one of which included a tentative offer of five years of incarceration with two years suspended. Hutchinson's attorney indicated he had mixed up the files and mistakenly suggested the wrong sentence at the sentencing hearing. He also indicated Hutchinson was not willing to agree to an increase in his sentence, even if it had been an error. The district court indicated the State could file a motion under Rule 35, N.D.R.Crim.P., and request modification of the sentence.

         [¶ 5] The State filed a motion to correct an illegal sentence on November 17, 2016. Along with the motion, the State filed two exhibits containing email conversations between the State's attorney and Hutchinson's attorney. The State, in its brief in support of motion to correct an illegal sentence, included excerpts from the change of plea hearing where the plea agreement was recited and Hutchinson indicated he understood the agreement. The State argued both attorneys recognized an error had been made at the sentencing hearing and that the agreement had previously been for Hutchinson to serve five years of incarceration followed by a five-year suspended sentence to be served consecutively. The State argued the sentence was illegal because it failed to comply with promises made in the parties' plea bargain. The State asserted a correction of the sentence would not violate double jeopardy and asked the district court to amend the criminal judgments. Hutchinson, in his brief in opposition, asserted the State indicated the plea agreement had changed before the sentencing hearing began and that the State recited the "wrong" sentence itself at the hearing. Hutchinson argued the sentence was not illegal, and to increase the sentence would be double jeopardy. The district court denied the State's motion to correct an illegal sentence. The State appealed.

         II

         [¶ 6] On appeal, the State argues the district court erred when it denied its motion to correct an illegal sentence. Hutchinson asks this Court to affirm, because granting the State's motion would have resulted in an increase in his sentence, which would constitute double jeopardy, and would violate Hutchinson's due process rights.

         A

         [¶ 7] "The State's right to appeal must be expressly granted by statute." State v. Goldmann, 2013 ND 105, ¶ 6, 831 N.W.2d 748 (quoting State v. Erickson, 2011 ND 49, ¶ 6, 795 N.W.2d 375). The State may appeal from "[a]n order made after judgment affecting any substantial right of the state." N.D.C.C. § 29-28-07(4). This Court previously determined a district court's "order denying the State's motion to correct an illegal sentence... affects a substantial right of the State, and is appealable." State v. Wika, 1 ...


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