from the District Court of Burleigh County, South Central
Judicial District, the Honorable Bruce B. Haskell, Judge.
K. Steiner, Assistant State's Attorney, Bismarck, N.D.,
for plaintiff and appellee.
A. Gereszek, East Grand Forks, MN, for defendant and
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.
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
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.
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
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 ...