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State v. Alberts

Supreme Court of North Dakota

March 13, 2019

State of North Dakota, Plaintiff and Appellee
v.
James X. Alberts, Jr., Defendant and Appellant

          Appeal from the District Court of Ramsey County, Northeast Judicial District, the Honorable Donovan J. Foughty, Judge.

          Opinion of the Court by VandeWalle, Chief Justice. Kari M. Agotness, Ramsey County State's Attorney, Devils Lake, ND, for plaintiff and appellee.

          Scott O. Diamond, Fargo, ND, for defendant and appellant.

          OPINION

          VANDEWALLE, CHIEF JUSTICE.

         [¶1] James Alberts Jr. appealed from an amended order revoking his probation and sentencing him to life in prison with the possibility of parole. Alberts argues the district court erred in revoking his probation because he was not on probation and the court had no legal authority to act. We affirm the order.

         I

         [¶2] In 2008, Alberts pled guilty to murder under N.D.C.C. § 12.1-16-01, a class AA felony. The district court sentenced Alberts to 20 years in prison with the balance suspended for five years after he served seven years. The court ordered Alberts to serve the suspended portion on probation subject to the conditions set out in Appendix A, entitled "Conditions for Sentence to Probation Deferred or Suspended Sentence." In May 2013, the conditions of Alberts' probation were amended to include that he have no contact with children under the age of 18, except his biological siblings and their biological children and only if another adult approved by his probation officer was present.

         [¶3] In October 2013, the State moved to revoke Alberts' probation. After a hearing, the district court revoked Alberts' probation, finding he violated the conditions of his probation. The court resentenced Alberts to life in prison, ordering him to serve 11 years with credit for time previously served and with "the remainder suspended for five (5) years from release from DOCR, with his previous Appendix A reimposed."

         [¶4] In December 2017, the State moved to revoke Alberts' probation. The State alleged Alberts violated various conditions of his probation including being in possession of a dangerous weapon, failing to report to his probation officer, and committing multiple offenses.

          [¶5] After a hearing, the district court entered an order finding Alberts violated the conditions of his probation and revoking his probation. The court resentenced Alberts to life in prison with the possibility of parole. The order was later amended to include information about when Alberts may be eligible for release from confinement.

         II

         [¶6] Alberts argues the district court erred by revoking his probation. He claims the court's 2013 order resentencing him did not say the suspended portion of the sentence was subject to probation or state the length of the term of probation, and therefore the court did not impose probation as part of his sentence. He contends he was not on probation and the court had no authority to revoke his probation and resentence him.

         [¶7] Alberts did not raise this issue before the district court. We generally do not consider issues raised for the first time on appeal unless they rise to the level of obvious error under N.D.R.Crim.P. 52(b). State v. Lott, 2019 ND 18, ¶ 8, 921 N.W.2d 428.

To establish obvious error, the defendant has the burden to demonstrate plain error which affected his substantial rights. To constitute obvious error, the error must be a clear deviation from an applicable legal rule under current law. There is no obvious ...

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