from the District Court of Grand Forks County, Northeast
Central Judicial District, the Honorable Donald Hager, Judge.
Carmell F. Mattison, Assistant State's Attorney, Grand
Forks, N.D., for plaintiff and appellee; submitted on brief.
C. Ringsak, Bismarck, N.D., for defendant and appellant;
submitted on brief.
Dametrian Marcel Welch appeals from a district court order
and amended criminal judgment. The judgment states Welch pled
guilty to "Criminal Facilitation to Murder" under
N.D.C.C. § 12.1-06-02. He argues that "to
Murder" should not be on the judgment because it is not
the title of the statute under which he was convicted. The
State argues the district court did not abuse its discretion
in describing the offense of conviction as "Criminal
Facilitation to Murder." We affirm.
In the original judgment, count one incorrectly stated that
Welch pled guilty to murder in violation of N.D.C.C. §
12.1-16-01(1). Although Welch was originally charged with
murder, under the plea agreement the State amended the charge
to "Criminal Facilitation to Murder" in exchange
for Welch's guilty plea to both criminal facilitation to
murder and conspiracy to commit burglary. Welch requested the
court correct its clerical error in the original judgment by
amending the title of the offense in count one from
"murder" to "criminal facilitation" and
listing the facilitation statute, N.D.C.C. § 12.1-06-02,
instead of the murder statute. The State agreed that the
facilitation statute could be added but should not replace
the murder statute because the charge was facilitation of
murder. The State agreed to rename the offense but suggested
using "Criminal Facilitation to Murder."
The court held a hearing on the matter. It was determined
that two statutes could not be inserted into one count on the
judgment due to a limitation of the court's computer
system. The court decided that the judgment should be amended
to cite the correct statute for facilitation (N.D.C.C. §
12.1-06-02) and that the offense should be titled
"Criminal Facilitation to Murder." The court
reasoned that adding the phrase "to Murder"
explained the offense's classification as a C felony.
Welch argues it was an abuse of discretion for the district
court to include "to Murder" on the title of the
offense of count one in the amended judgment.
This Court has determined "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. Myers, 2017 ND 265,
¶ 6, 903 N.W.2d 520 (quoting State v. Peterson,
2016 ND 192, ¶ 8, 886 N.W.2d 71). "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.
Rule 36, N.D.R.Crim.P., states: "After giving any notice
it considers appropriate, the court may at any time correct a
clerical error in a judgment, order, or other part of the
record, or correct an error in the record arising from
oversight or omission." The rule's explanatory note
states that Rule 36 is "adapted from and contains
language identical to Fed.R.Crim.P. 36 . . . and provides for
correction of [a] clerical error at any time."
Peterson, 2016 ND 192, ¶ 17, 886 N.W.2d 71
(quoting N.D.R.Crim.P. 36, Explanatory Note). Rule 36
"is limited in scope to correction of clerical errors or
errors of oversight or omission and does not apply to
correction of errors of substance." Peterson,
at ¶ 17 (citing N.D.R.Crim.P. 36, Explanatory Note).
Federal case law further describes what constitutes a
clerical error as one that "must not be . . . of
judgment or even of misidentification, but merely of
recitation . . . mechanical in nature."
Peterson, at ¶ 18. Thus a "clerical error
in a judgment capable of correction under N.D.R.Crim.P. 36,
'includes a failure to accurately record action taken by
the court, but the rule does not extend to correction of
errors of substance.'" Peterson, at ¶
19 (quoting Peltier v. State, 2013 ND 246, ¶ 5,
841 N.W.2d 236 (citing N.D.R.Crim.P. 36, Explanatory Note
("A clerical error involves a failure to record
accurately a statement made or action taken by the court or
one of the parties."))). Thus, it was within the
district court's power to correct the error. The only
question that remains is whether the court abused its
discretion by including "to Murder" in the title of
the offense when it corrected the title of the crime listed
under count one in the original judgment.
Welch argues the judgment should read only "Criminal
Facilitation" because "there is no law requiring,
or allowing, additional criminal statutes to be
'listed' on a criminal conviction for sake of
'clarity.'" He asserts the only things that may
be listed on the criminal judgment are the crimes for which a
person has been convicted. In its essence, Welch's
argument is that "Criminal Facilitation to Murder"
is not the title of the statute he violated, is not listed
within that statute, and is not the title of any statute.
Thus, he claims the judgment "cannot state a crime for
which there is no specific statute."
Under N.D.R.Crim.P. 32(b), a judgment "must include the
plea, the verdict, and the sentence imposed." When
interpreting rules, "we apply principles of statutory
construction." Sanderson v. Walsh County, 2006
ND 83, ¶ 16, 712 N.W.2d 842. We give words "their
plain, ordinary and commonly understood meaning."
Bride v. Trinity Hospital, 2019 ND 131, ¶ 7,
927 N.W.2d 416. We give meaning to each word and phrase.
Sanderson, at ¶ 16. "We also consider the
actual language, its connection with other clauses, and the
words or expressions which obviously are by design omitted.
In construing statutes and rules, the law is what is said,
not what is unsaid, and the mention of one thing implies
exclusion of another." Id. (internal citations
and quotations omitted). Rule 32(b) lists three things a
judgment must include: the plea, the verdict, and the
sentence. Nothing more is required, but additional words may
be included so long as they do not constitute an abuse of
The fact that the statute is not titled "Criminal
Facilitation to Murder" is inconsequential. The title of
a statute is not part of the statute. See N.D.C.C.
§ 1-02-12. The presence of the phrase in Welch's
amended judgment was included by the district court to fully
describe the offense of conviction. None of the inchoate
criminal statutes include the names of the underlying crimes
to which they apply in the titles of the statutes.
See N.D.C.C. § 12.1-06-01 through §
12.1-06-04 (defining criminal attempt, criminal facilitation,
criminal solicitation, and criminal conspiracy). When a
defendant is charged with one of these crimes, it is
necessary to include the name of the underlying crime in the
charging document and the judgment. Without identifying the
underlying crime, there would be no indication of the
required elements or the ...