from the District Court of Burleigh County, South Central
Judicial District, the Honorable David E. Reich, Judge.
L. Lawrence, Bismarck, ND, for plaintiff and appellee;
submitted on brief.
M. Woehl, Bismarck, ND, for defendant and appellant;
submitted on brief.
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
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.
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.
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
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
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.
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
The issues raised in this appeal involve the interpretation
of several statutes. In State v. Kuruc, 2014 ND 95,
¶ 32, 846 N.W.2d ...