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State v. Lott

Supreme Court of North Dakota

January 15, 2019

State of North Dakota, Plaintiff and Appellee
v.
MyKennah Lott, Defendant and Appellant

          Appeal from the District Court of Morton County, South Central Judicial District, the Honorable David W. Nelson, Surrogate Judge.

          Allen M. Koppy, Morton County State's Attorney, Mandan, ND, for plaintiff and appellee.

          Caitlyn A. Pierson, Minot, ND, for defendant and appellant.

          OPINION

          Jensen, Justice.

         [¶ 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.

         I.

         [¶ 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.

         II.

         [¶ 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). Id.

State v. Beckman, 1999 ND 54, ¶ 16, 591 N.W.2d 120.

         [¶ 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." Id.

         [¶ 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 ...


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