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State v. Johns

Supreme Court of North Dakota

August 26, 2019

State of North Dakota, Plaintiff and Appellee
v.
Joe Michael Johns, Defendant and Appellant

          Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable David E. Reich, Judge.

          Mindy L. Lawrence, Bismarck, ND, for plaintiff and appellee; submitted on brief.

          Erica M. Woehl, Bismarck, ND, for defendant and appellant; submitted on brief.

          OPINION

          CROTHERS, JUSTICE.

         [¶1] Joe Johns appeals from a criminal judgment entered upon a conditional guilty plea after the district court denied his motion to dismiss a charge for unlawful possession of drug paraphernalia as a class C felony second offense. Johns argues he did not have a prior conviction for enhancement purposes because a deferred imposition of sentence for a prior charge under N.D.C.C. title 19 resulted in a dismissal of that charge. We reverse the judgment and remand to allow Johns to withdraw his conditional guilty plea to the enhanced charge.

         I

         [¶2] On August 30, 2018, the State charged Johns with unlawful possession of drug paraphernalia as a class C felony second offense under N.D.C.C. § 19-03.4-03(2), which enhances the charge from a class A misdemeanor to a class C felony if the person previously has been convicted of an offense under N.D.C.C. title 19. The criminal information alleged that on August 29, 2018, Johns used or possessed with intent to use a glass smoking device for use with methamphetamine and that he "has a prior conviction in case no. 08-2016-CR-00295."

         [¶3] Johns moved to dismiss the charge, arguing the information failed to state an offense rising to the level of a class C felony for a second conviction of a drug paraphernalia offense because his prior conviction for unlawful possession of drug paraphernalia had been vacated and dismissed after he completed probation under a deferred imposition of sentence. He asserted that after the termination of his probation in the prior case, his guilty plea and the guilty verdict were vacated, the action was dismissed and the public record were sealed and deleted.

         [¶4] The State resisted Johns' motion, arguing N.D.C.C. § 12.1-32-02(4) authorizes pleading and proving a prior conviction for enhancement purposes. The State argued N.D.C.C. § 19-03.4-03(2) does not differentiate between convictions on an individual's public record and convictions no longer on the individual's public record, and contended N.D.C.C. § 19-03.4-03(2) only requires a conviction under N.D.C.C. title 19. The State argued Johns' conviction may be used for enhancement under N.D.C.C. § 12.1-32-02(4) even after the charge was dismissed.

         [¶5] The district court denied Johns' motion, ruling N.D.C.C. § 12.1-32-02(4) permitted the State to use Johns' conviction to enhance the charge in this case to a class C felony. Johns entered a conditional guilty plea to the enhanced charge.

         II

         [¶6] Johns argues the district court misinterpreted N.D.C.C. § 12.1-32-02(4) in denying his motion to dismiss. He asserts his conviction for possession of drug paraphernalia was vacated and dismissed under a deferred imposition of sentence and was not a prior conviction for purposes of enhancing the charge in this case to a class C felony under N.D.C.C. § 19-03.4-03(2). He asserts that for purposes of enhancement, N.D.C.C. §§ 12.1-32-02(4) and 12.1-32-07.1 must be read together to mean a vacated and dismissed deferred imposition of sentence is not a conviction. He contends the statutory language means that during the period of a suspended imposition of sentence, a conviction may be used to enhance a subsequent charge, but the conviction cannot be used for enhancement after dismissal of the prior charge.

         [¶7] The State responds that under N.D.C.C. § 12.1-32-02(4), the deferred imposition of sentence for the prior charge can be used to enhance a subsequent charge for possession of drug paraphernalia.

         [¶8] The issues raised in this appeal involve the interpretation of several statutes. In State v. Kuruc, 2014 ND 95, ¶ 32, 846 N.W.2d ...


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