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State v. Rath

Supreme Court of North Dakota

August 29, 2017

State of North Dakota, Plaintiff and Appellee
v.
Mark Rath, Respondent and Appellant

         Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Bruce B. Haskell, Judge.

          Marina Spahr, Assistant State's Attorney, Bismarck, N.D., for plaintiff and appellee.

          Mark A. Rath, Bismarck, N.D., respondent and appellant.

          OPINION

          McEvers, Justice.

         [¶ 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. § 12.1-32-02(9).

         I

         [¶ 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, stating:

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.

         (Emphasis 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 time served.

         [¶ 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 Rath's petition.

         [¶ 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 ...


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