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State v. Myers

Supreme Court of North Dakota

November 16, 2017

State of North Dakota, Plaintiff and Appellee
v.
Danny Myers, Defendant and Appellant

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

          Derek K. Steiner, Assistant State's Attorney, Bismarck, N.D., for plaintiff and appellee.

          Samuel A. Gereszek, East Grand Forks, MN, for defendant and appellant.

          OPINION

          McEvers, Justice.

         [¶ 1] Danny Myers appeals from a district court order denying his motion to correct his sentence under N.D.R.Crim.P. 35(a)(2). Myers's motion sought to retroactively apply 2015 legislative amendments, which removed class C felony aggravated assault from the statutory provision requiring a person to serve eighty-five percent of a sentence of incarceration. We conclude the court did not abuse its discretion in denying his motion under N.D.R.Crim.P. 35(a)(2) because his sentence did not contain an arithmetical, technical, or other clear error to correct. We affirm.

         I

         [¶ 2] In 2012, Myers pled guilty to aggravated assault, a class C felony, and was sentenced to five years with the department of corrections with all five years suspended for five years of supervised probation.

         [¶ 3] In 2013, the State petitioned the district court to revoke Myers's probation. After a revocation hearing, the court revoked his probation and resentenced him to five years with the department of corrections. In 2015, the legislature amended both N.D.C.C. § 12.1-17-02 (defining class B and C felony offenses for aggravated assault) and N.D.C.C. § 12.1-32-09.1 (requiring service of eighty-five percent of a sentence for specified offenses) to remove class C felony aggravated assault from the eighty-five percent service requirement.

         [¶ 4] In February 2017, Myers moved the district court to correct his sentence, asserting his original judgment and amended judgment are silent on whether the statutory eighty-five percent service requirement applies. His motion essentially sought retroactive application of the 2015 legislative changes to his 2012 class C felony conviction and 2013 sentence. The State opposed his motion. After a hearing, the court entered an order denying his motion.

         II

         [¶ 5] Myers argues the district court abused its discretion in denying his motion to correct his sentence under N.D.R.Crim.P. 35(a)(2). Specifically, he asserts a "technical or clear error" exists because both the original judgment and amended judgment are silent on whether the eighty-five percent service requirement under N.D.C.C. § 12.1-32-09.1 applies to his sentence.

         [¶ 6] Rule 35(a)(2), N.D.R.Crim.P., states in relevant part: "After giving any notice it considers appropriate, the sentencing court may correct a sentence that resulted from arithmetical, technical, or other clear error." We have said that "[t]he district court's decision to amend a judgment is subject to sound judgment and will not be reversed on appeal unless there is an abuse of discretion." State v. Peterson, 2016 ND 192, ¶ 8, 886 N.W.2d 71. A court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, if its decision is not the product of a rational mental process leading to a reasoned determination, or if it misinterprets or misapplies the law. Id.; see also State v. Moos, 2008 ND 228, ¶ 30, 758 N.W.2d 674.

         [¶ 7] At the time of Myers's 2012 conviction and 2013 resentencing, N.D.C.C. § 12.1-17-02, which defines class B and C aggravated assault, provided:

A person is guilty of a class C felony, except if the victim is under the age of twelve years or the victim suffers permanent loss or impairment of the function of a bodily member or organ in which case ...

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