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State v. Dockter

Supreme Court of North Dakota

July 30, 2019

State of North Dakota, Plaintiff and Appellee
v.
Amanda R. Dockter, Defendant and Appellant

          Appeal from the District Court of Eddy County, Southeast Judicial District, the Honorable James D. Hovey, Judge.

          Ashley L. Lies, State's Attorney, New Rockford, ND, for plaintiff and appellee.

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

          OPINION

          McEvers, Justice

         [¶1] Amanda Dockter appeals from an order revoking her probation. We conclude the district court did not abuse its discretion in revoking Dockter's probation. We affirm the order and remand to the court to correct the period of supervised probation from five years to three years as required by N.D.C.C. § 12.1-32-06.1(2).

         I

         [¶2] Dockter was initially charged with corruption or solicitation of a minor in Eddy County. In November 2017, the State amended the charge against Dockter to include abuse or neglect of a child, a class C felony. On November 9, 2017, Dockter pled guilty in Eddy County to the child neglect charge under N.D.C.C. § 14-09-22.1 and was committed to the Department of Corrections and Rehabilitation for a term of one year and one day with 336 days suspended and placed on supervised probation for a period of five years. Dockter was ordered to report to the Stutsman County Correctional Facility for the period of confinement on January 1, 2018. She finished serving her 30-day jail sentence on the child neglect charge on January 28, 2018.

         [¶3] In January 2019, Dockter's probation officer petitioned to revoke her probation, alleging she had tested positive for methamphetamine on November 30 and December 22, 2017, and was convicted of five other criminal charges in Stutsman County on January 14, 2019, including child neglect and felon in possession of a firearm.

         [¶4] At a February 14, 2019 probation revocation hearing, Dockter admitted she engaged in the conduct alleged in the petition to revoke and argued about the disposition. The district court found she violated the conditions of her probation. The court issued an order revoking her probation and committing her to the Department of Corrections and Rehabilitation for one year and one day with credit of 31 days for time served with supervised probation for five years.

         II

         [¶5] Dockter initially claims the originally imposed sentence was illegal under N.D.C.C. § 12.1-32-06.1(2), because the period of supervised probation was for five years and not three years as required by that statute. The State concedes the district court erred in initially sentencing Dockter to five years of supervised probation under N.D.C.C. § 12.1-32-06.1(2) and does not object to remanding to correct the illegal sentence consistent with the three-year period for supervised probation for "any other felony offense" in that statute. See State v. Isom, 2018 ND 60, ¶¶ 10, 17, 907 N.W.2d 340 (holding five-year supervised probation for felony offense falling within "any other felony offense" language of N.D.C.C. § 12.1-32-06.1(2) was illegal and reversing and remanding for sentencing consistent with the three-year maximum under that statute). Dockter pled guilty to child neglect under N.D.C.C. § 14-09-22.1, an "other felony offense" under N.D.C.C. § 12.1-32-06.1(2), and as in Isom, at ¶¶ 10, 17, a remand is necessary for sentencing consistent with the three-year maximum period for probation under that statute.

         III

         [¶6] Dockter argues the district court erred in finding she violated the terms of her probation because her probation did not start until she was released from incarceration on January 28, 2018, and all the alleged probation violations occurred before that date. She claims any conduct before she was placed on probation was not governed by the terms of her probation.

         [¶7] At the revocation hearing, Dockter admitted the probation violations and indicated there was "just going to be some argument on disposition." She asked the court to look at the time line and consider not revoking her probation and sentencing her to a period of incarceration because since her release from jail she has been complying with all conditions of probation. During oral argument to this ...


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