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.
O. Diamond, Fargo, ND, for defendant and appellant.
VANDEWALLE, CHIEF JUSTICE.
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.
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.
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."
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.
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
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 ...