from the District Court of Burleigh County, South Central
Judicial District, the Honorable Bruce B. Haskell, Judge.
Spahr, Assistant State's Attorney, Bismarck, N.D., for
plaintiff and appellee.
A. Rath, Bismarck, N.D., respondent and appellant.
1] Mark Rath appeals from a district court order denying his
petition to correct his sentence or declare a
"mistrial" based on his claim of prejudicial
sentencing. We conclude the court did not abuse its
discretion in denying Rath's petition under N.D.R.Crim.P.
35 because his sentence was not illegal. We treat his request
on appeal, however, as a request for a writ of supervision
based on the district court's oral pronouncement during
his resentencing in 2012 for a felony that he would keep his
"misdemeanor disposition." We conclude this is an
appropriate case to exercise our discretionary supervisory
jurisdiction. We remand with instructions for the district
court to direct the clerk of district court to change the
disposition of this case to a misdemeanor under N.D.C.C.
2] In May 2012, Rath pled guilty to perjury, a class C
felony. The district court entered a criminal judgment
sentencing him to one year in prison, commencing on May
7, 2012, with all but three days suspended, and to three
years of supervised probation subject to specified
conditions. He was also given credit for time served.
3] On May 29, 2012, the State petitioned the court to revoke
Rath's probation. At an August 28, 2012, revocation
hearing, the district court found Rath violated the terms of
his probation, revoked his probation and resentenced him,
And so what I'm going to sentence you to in this case,
I'm not going to take away the misdemeanor
disposition, I'll--it will stay one year all but
time served suspended for three years, we're going to
stay on supervised probation. You're going to stay on
electronic monitoring with the one quarter mile restriction.
I am going to add a requirement that you obtain a
psychological evaluation within 90 days and follow through
with recommended treatment. I'm not going to impose a
domestic violence treatment that was requested, at least not
at this time. I guess if--we'll see what the treatment,
if any is, as a result of the psychological evaluation.
But I'm hoping that with these additional requirements
and the clarification and the monitoring that we won't
see you back here on this at least.
added.) On August 31, 2012, the district court entered its
order revoking Rath's probation and entered an amended
criminal judgment resentencing him to one year in prison,
commencing on August 28, 2012, with all but eight
days suspended, and to three years of supervised probation
with additional conditions. He was again given credit for
4] In July 2015, Rath filed a petition in the district court
seeking to clarify whether his sentence would still be
classified as a misdemeanor after successful completion of
his probation. In August 2015, the court, through a different
judge, responded by letter that answering Rath's petition
would constitute legal advice. The State also filed a
response. The court did not enter a formal order on
5] In February 2017, Rath filed a petition to correct his
sentence or to declare a mistrial on prejudicial sentencing,
contending his felony charge should be reduced to a
misdemeanor based on the sentencing judge's oral
pronouncement at the August 2012 resentencing. The court
entered an order denying his petition, stating: "The
defendant did not successfully ...