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State v. Nelson

Supreme Court of North Dakota

July 30, 2019

State of North Dakota, Plaintiff and Appellee
v.
Jessica Dawn Nelson, Defendant and Appellant

          Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Stephannie N. Stiel, Judge.

          Tracy J. Peters, Assistant State's Attorney, Fargo, ND, for plaintiff and appellee.

          Samuel A. Gereszek, East Grand Forks, MN, for defendant and appellant.

          OPINION

          Jensen, Justice.

         [¶1] Jessica Dawn Nelson appeals from a criminal judgment sentencing her to three years' imprisonment, the mandatory minimum sentence under N.D.C.C. § 19-03.1-23(1)(a). Nelson asserts the district court erred in denying her request to withdraw her guilty plea and erred by considering a prior dismissed deferred imposition of sentence when imposing the mandatory minimum sentence. We reverse and remand for resentencing.

         I.

         [¶2] On July 16, 2018, Nelson entered a plea of guilty to possession with intent to manufacture or deliver methamphetamine, a class B felony, in violation of N.D.C.C. § 19-03.1-23(1)(a)(1). At the request of Nelson's counsel, the district court postponed Nelson's sentencing to allow the parties to prepare arguments related to the appropriateness of deviating from the mandatory minimum sentence then applicable under N.D.C.C. § 12.1-32-02.3.

         [¶3] Prior to the sentencing hearing, both parties filed written materials addressing the application of the mandatory minimum sentence. At the sentencing hearing, and before the district court imposed a sentence, Nelson's counsel withdrew from the representation of Nelson to allow Nelson to "seek counsel as far as withdrawing the plea." The court continued the sentencing hearing for a month to allow Nelson to "get a second opinion... and do what you feel that you need to do and make any motions you feel you need to make." Nelson applied for, and was appointed, a public defender to represent her in this case.

         [¶4] At the rescheduled sentencing hearing, Nelson's court appointed counsel requested the district court order a presentence investigation to determine if the mandatory minimum sentence was appropriate or, alternatively, requested the hearing be postponed for another month. Nelson's counsel also expressed concern about imposing the mandatory minimum sentence because the prior conviction the State asserted as the trigger for imposition of the mandatory minimum sentence was a completed 2012 deferred sentence that had resulted in Nelson's guilty plea being vacated and the case being dismissed. Additionally, Nelson's new counsel raised the issue of Nelson withdrawing her guilty plea, although no motion for the withdrawal of Nelson's guilty plea had been filed.

         [¶5] The district court denied Nelson's request for a continuance of the sentencing hearing. After noting no written motion had been filed, the court stated that even if a motion to withdraw her guilty plea had been filed and the merits of Nelson's request been considered, the court would determine there were no grounds to withdraw the guilty plea. The court determined N.D.C.C. § 12.1-32-02 allowed the consideration of a deferred sentence for purposes of imposing the mandatory minimum sentence and proceeded to sentence Nelson to the mandatory minimum of three years imprisonment.

         [¶6] On appeal, Nelson argues the district court erred by not allowing her to withdraw her guilty plea. Nelson's appellate materials also raise the issue of whether the mandatory minimum sentence under N.D.C.C. § 12.1-32-02 can be triggered by a completed deferred sentence. Nelson argues because the issue was not thoroughly presented to the court, the issue is not ripe for appeal and requests the case be remanded.

         II.

         [¶7] This Court's review of a criminal sentence is very limited. State v. Smith, 2015 ND 133, ¶ 8, 864 N.W.2d 259. District courts are "allowed the widest range of discretion in fixing a criminal sentence." Id. If the term of imprisonment is within the range authorized by statute, this Court has no power to review the sentencing court's discretion. Id. Generally, appellate review of a criminal statute is "confined to whether the district court acted within the sentencing limits prescribed by statute, or substantially relied upon an impermissible factor." Id. However, statutory interpretation is a question of law fully reviewable on appeal. Id. "Words of a statute are given their plain, ordinary, and commonly understood meaning unless a contrary intention plainly appears." State v. Rufus, 2015 ND 212, ¶ 15, 868 N.W.2d 534.

         [¶8] The district court found Nelson's completed 2012 deferred imposition of sentence was a conviction, or guilty plea, sufficient to trigger the mandatory minimum sentence under N.D.C.C. § 19-03.1-23(1)(a). Subsequent to the court's imposition of sentence in this case, and while Nelson's appeal was pending, this Court decided State v. Overholt,2019 ND 173. In Overholt, we determined while the underlying criminal offense could be plead and proved by the State, in the context of a probation violation, ...


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