from the District Court of Morton County, South Central
Judicial District, the Honorable David W. Nelson, Surrogate
M. Koppy, Morton County State's Attorney, Mandan, ND, for
plaintiff and appellee.
Caitlyn A. Pierson, Minot, ND, for defendant and appellant.
1] MyKennah Leigh Lott appeals from a criminal judgment after
she was found guilty of preventing arrest following a bench
trial. Lott challenges the sufficiency of the evidence and
asserts she was improperly denied an opportunity to address
the court during sentencing. We affirm the conviction, vacate
the sentence, and remand for resentencing.
2] In January 2017, Lott and an acquaintance were found
walking on property owned by the Dakota Access Pipeline. Law
enforcement personnel approached the pair and Lott began to
"step backwards at a fairly brisk pace" while law
enforcement gathered more information. Lott was eventually
informed she was under arrest for trespassing. Lott resisted
arrest, broke free, and eventually had to be taken to the
ground in order to be arrested. After a bench trial, Lott was
found guilty of preventing arrest under N.D.C.C. §
12.1-08-02. During sentencing, the district court asked
Lott's counsel for a sentencing recommendation. Counsel
conferred with Lott and requested fines and fees be waived.
Nothing in the record indicates Lott was personally addressed
and afforded the opportunity to speak on her behalf during
the sentencing phase.
3] Lott argues the evidence was insufficient to convict her
of preventing arrest. We summarily affirm the conviction of
preventing arrest under N.D.R.App.P. 35.1(a)(3), concluding
there was sufficient evidence to support the guilty verdict.
4] Lott argues the case should be remanded for resentencing
because she was denied an opportunity to make a statement
prior to being sentenced. Under N.D.R.Crim.P. 32, the
district court "must... determine whether the defendant
wishes to make a statement on the defendant's own behalf
or wishes to present information in mitigation of punishment
or information that would require the court to withhold
judgment and sentence." This Court has stated:
Rule 32, N.D.R.Crim.P., is similar to its federal
counterpart. The United States Supreme Court has interpreted
Rule 32(a), Fed.R.Crim.P., as being intended to allow the
defendant to personally be afforded the opportunity to speak
before the imposition of sentence. Green v. United
States, 365 U.S. 301, 304, 81 S.Ct. 653, 5 L.Ed.2d 670
(1961). The Supreme Court rejected the contention that merely
affording the defendant's counsel an opportunity to speak
before sentencing fulfills the role of Rule 32(a).
State v. Beckman, 1999 ND 54, ¶ 16, 591 N.W.2d
5] In Beckman, the district court did not directly
address the defendant before imposing the sentence. 1999 ND
54, ¶ 17, 591 N.W.2d 120. Rather, the district court
heard the prosecutor's recommendation and then the
defendant's counsel provided a recommendation.
Id. The district court went on to sentence the
defendant without personally addressing her to determine if
she wished to make a statement. Id. On appeal, this
Court remanded for resentencing and stated that "[w]hile
it is unclear whether Beckman would have taken the
opportunity to speak, Rule 32, N.D.R.Crim.P., at the very
least mandates she be given an opportunity."
6] This case mirrors Beckman. The record indicates
Lott's counsel was prompted about sentencing and then
conferred with Lott. After conferring with Lott, counsel
indicated Lott was requesting the fines and fees be waived
and she be given credit for time served. The record ...