from the District Court of Ward County, North Central
Judicial District, the Honorable Gary H. Lee, Judge.
A. Dillon, Assistant State's Attorney, Minot, ND, for
plaintiff and appellee.
C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.
1] James Blue II appeals from a criminal judgment after he
entered Alford pleas to two counts of terrorizing, seven
counts of reckless endangerment, two counts of simple assault
on emergency medical personnel, three counts of contact by
bodily fluids, unlawful possession of a firearm, interference
with a telephone during an emergency call, and attempted
murder. We affirm the district court's criminal judgment
in part, reverse in part, and remand for a consideration of
the defendant's ability to pay restitution.
2] The State charged Blue with two counts of terrorizing,
seven counts of reckless endangerment, two counts of simple
assault on emergency medical personnel, four counts of
contact by bodily fluids (one count was later dismissed),
unlawful possession of a firearm, interference with a
telephone during an emergency call, and attempted murder. In
October 2017, Blue entered Alford pleas to each charge. Blue
agreed with the factual basis the State presented for each
charge. During the change of plea hearing, the State provided
the following facts. On December 8, 2016, the Minot Police
Department was dispatched to the emergency room at Trinity
Hospital to meet with an assault victim. The victim initially
refused to provide information to the police. She told an
investigator that she had been involved with her assailant
for approximately two months. She said the two argued and he
pushed her over a kitchen counter backwards, strangled her
twice, and hit her in the face, first with an open hand and
then with a closed fist. The victim indicated he strangled
her a third time, resulting in her loss of consciousness.
When she regained consciousness, she found herself on the
floor vomiting and spitting blood. The officer observed the
victim had scratches on her neck, cuts on her lip, and her
face appeared swollen and red. The victim's friend, who
had driven her to the hospital, identified the victim's
boyfriend as James Blue.
3] The State continued with the factual basis that on January
17, 2017, the victim called the police, stating Blue was in
her home and she wanted him removed. During the call, the
victim yelled, "Don't shoot me." Police
officers responded. While officers were en route, another
caller reported hearing gunshots coming from the victim's
residence. A third caller reported a man shooting a handgun
outside of the victim's residence.
4] Blue left the residence walking into the roadway with his
handgun drawn. He stopped and fired multiple times back
toward the direction of the residence. He pointed his firearm
at the officers multiple times. Blue returned to the
residence, broke out windows and damaged other property
inside. Officers took Blue into custody.
5] Blue was bleeding from an injury to his hand. He was
combative with officers trying to restrain him. An officer
had an open cut on her hand, and Blue's blood and saliva
came in contact with the cut. Ambulance personnel arrived to
render aid to Blue. Blue spit at the officers, with saliva
landing on an officer's cheek and chest. While ambulance
personnel attempted to render aid to Blue, he grabbed both of
their arms or wrists at different points, applying enough
force for both of them to sustain injury. While Blue was
being transported to Trinity Hospital, he spit at officers
and the ambulance personnel, and saliva landed on their face,
eye, and mouth.
6] The victim reported she heard Blue coming down the hall to
the bedroom where she was hiding, and he fired shots toward
the master bedroom. Blue then returned to the living room,
where he put a gun to the victim's forehead. The victim
let her child go and thought he ran out of the residence, and
she ran outside with Blue firing his gun at her. Once
outside, she realized her child was still in the residence,
so she went back to retrieve her child while Blue continued
to fire the gun at her.
7] When the victim arrived home the prior evening, Blue was
waiting for her. He was intoxicated and became angry. She
attempted to call 911, and Blue knocked the phone out of her
hand. The victim went to the back bedroom and Blue pointed a
pistol in her face and threatened to shoot her and her child.
Blue again pointed the pistol at her forehead and said,
"Do you think I'm playing, bitch?" The victim
stated he held the gun at a downward angle between her eyes
and said he would shoot her in the head and through her
spine. Blue began to leave, but returned, again putting the
gun to her head and threatening to shoot her in front of her
child. He finally left the residence.
8] Blue's criminal history included a felony conviction
from 2010, making it illegal for him to possess a firearm.
9] After he entered his pleas, the State requested
restitution in the amount of $2, 716.13. The requested
restitution represented the cost of disposing of the
destroyed residence, reimbursement to Workers'
Compensation (or the equivalent), and reimbursement to
Medicaid for various medical expenses. The district court
asked Blue if he wanted a restitution hearing or if he wanted
to stipulate to the amount. Blue indicated he would stipulate
to the restitution and the court found Blue was making a
knowing and intelligent decision to stipulate to restitution
in the amount of $2, 716.13.
10] Blue argued that even though he stipulated to the
restitution, the district court still needed to make a
factual finding that he is able to pay restitution. The court
indicated that statutorily that was true, but under N.D.
Const. art. I, § 25(1)(n) victims have the right to full
restitution. Blue did not argue for a reduction of the
restitution; rather, he only argued the court needed to make
a factual finding that he is able to pay the restitution.
11] Blue submitted multiple cases to the district court and
argued the cases presented were similar to the case at bar.
Blue presented four cases to the court, arguing the sentences
were disproportionate to what the State was asking for in his
12] Blue argued his sentence should be consistent with the
submitted cases. The district court sentenced Blue to 20
years imprisonment, with five years suspended on the class A
felony, and five years on each of the class C felonies. All
sentences were ordered to run concurrently, except two class
C felonies, which were ordered to run concurrently with each
other, but consecutively to the other sentences. The court
imposed conditions of supervised probation including the
following conditions: "10. The Defendant will pay
restitution as set forth in the most recent judgment entered
in this matter.... 32. The Defendant will pay all fines, fees
and restitution as ordered by the Court, or in accordance
with a payment plan devised by the Defendant's probation
13] Blue argues the district court abused its discretion in
ordering restitution without considering his ability to pay.
When reviewing a restitution order, we look to whether the
district court acted "within the limits set by
statute," which is a standard similar to our abuse of
discretion standard. "A district 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.
State v. Carson, 2017 ND 196, ¶ 5, 900 N.W.2d
41 (citation omitted). It is a defendant's burden to
raise and prove an inability to pay restitution. State v.
Bruce, 2018 ND 45, ¶ 16, 907 N.W.2d 773 (relying on
State v. Tupa, 2005 ND 25, 691 N.W.2d 579). Even if
a defendant has no current ability to pay due to
imprisonment, a defendant may have an ability to pay based on
the possibility of future gainful employment. Id. We
review questions of law de novo in determining whether or not
the district court abused its discretion through
misapplication or misinterpretation of the law. State v.
Kostelecky, 2018 ND 12, ¶ 6, 906 N.W.2d 77.
14] Blue does not contest the amount of restitution ordered,
but argues the district court erred by failing to make
findings on his ability to pay the restitution ordered. The
court informed Blue that he had the right to request a
hearing on restitution to determine whether the amounts were
validly stated and whether the amounts were directly
attributable to the criminal actions he was charged with. The
court further stated "[y]ou can have a hearing on those
two issues or you can stipulate and say you agree to
this." Blue then stated "I'll take the
27." The court replied, "[a]ll right. ...