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State v. Comes

Supreme Court of North Dakota

April 11, 2019

State of North Dakota, Plaintiff and Appellee
v.
Marlon Leon Comes, Defendant and Appellant

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

          Kari M. Agotness, State's Attorney, Devils Lake, ND, for plaintiff and appellee; submitted on brief.

          Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant; submitted on brief.

          OPINION

          McEVERS, JUSTICE.

         [¶1] Marlon Comes appeals from a district court's second amended criminal judgment entered over twenty years after the original criminal judgment. We vacate the second amended judgment and remand, concluding the district court abused its discretion by sua sponte amending the criminal judgment without providing the parties notice of its intent to amend the judgment.

         I

         [¶2] In 1996, the State charged Comes with murder, a class AA felony, and robbery, a class A felony. Comes pleaded guilty to both charges and the district court sentenced him on the murder charge to life imprisonment at the North Dakota Department of Corrections and Rehabilitation ("DOCR") with the possibility of parole, and a concurrent 10 years for robbery, with 307 days credit for time served. Comes has filed several previous post-conviction relief petitions that have all been denied. See Comes v. State, 2018 ND 54, ¶¶ 3, 5, 907 N.W.2d 393.

         [¶3] In August 2018, the district court issued a memorandum of law and order for second amended judgment. No post-conviction relief petition was filed prompting the court's action. While there is nothing in the record to reflect why the court acted, based on the court's memorandum, the court was apparently responding to a request from DOCR for an amended judgment "that contains a calculation of [Comes'] life expectancy, in order for DOC[R] to determine when he becomes eligible for parole." The court noted DOCR's request referenced the 1997 version of N.D.C.C. § 12.1-32-09.1, a sentencing statute, which explains a mortality table should be used to calculate the "sentence imposed." The court relied on a table specific to American Indian mortality rates to calculate Comes' life expectancy of 52 years rather than following the mortality table promulgated by N.D. Sup. Ct. Admin. R. 51. The court's second amended judgment indicates Comes must serve 44 years and 73 days, taking into account the credit for 307 days previously served.

         II

         [¶4] "The district court's decision to amend a judgment is subject to sound judgment and will not be reversed on appeal unless there is an abuse of discretion." State v. Peterson, 2016 ND 192, ¶ 8, 886 N.W.2d 71 (citing State v. Rueb, 249 N.W.2d 506, 511-12 (N.D. 1976)). "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." Peterson, at ¶ 8 (citation omitted). "The standard of review for constitutional issues is de novo." Id. (citation omitted).

         III

         [¶5] Under U.S. Const. art. I, § 10 and N.D. Const. art. I, § 18, Comes argues the district court violated the prohibition on ex post facto punishment by relying on N.D.C.C. § 12.1-32-09.1, including its 1997 amendments, in calculating Comes' sentence in the 2018 second amended criminal judgment. Comes raises this argument for the first time on appeal. We have repeatedly held that issues not raised before the district court, including constitutional issues, will not be considered for the first time on appeal. State v. Gray, 2017 ND 108, ¶ 13, 893 N.W.2d 484. Here, however, Comes was deprived of the opportunity to present his argument before the district court because the court failed to provide notice to either Comes or the State prior to entering the second amended judgment.

         [¶6] The district court did not explain its authority to amend the criminal judgment, and there was no motion pending before the court. Rule 35, ...


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