from the District Court of Ramsey County, Northeast Judicial
District, the Honorable Donovan J. Foughty, Judge.
M. Agotness, State's Attorney, Devils Lake, ND, for
plaintiff and appellee; submitted on brief.
C. Kraus-Parr, Grand Forks, ND, for defendant and appellant;
submitted on brief.
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
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
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.
"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.
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.
The district court did not explain its authority to amend the
criminal judgment, and there was no motion pending before the
court. Rule 35, ...