from the District Court of Cass County, East Central Judicial
District, the Honorable Steven L. Marquart, Judge.
Kimberlee J. Hegvik (appeared), Assistant State's
Attorney, and Emily J. Christensen (argued), third-year law
student, under the Rule on Limited Practice of Law by Law
Students, Fargo, ND, for plaintiff and appellee.
C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.
James Dubois, Jr., appeals from a criminal judgment entered
after the district court revoked his probation and
resentenced him to five years' incarceration. He argues
the court abused its discretion in revoking his probation and
the sentence was illegal. We affirm.
In 2017, Dubois plead guilty to two counts of criminal
trespass and refusal to halt. The first criminal trespass
count was a class C felony for which he was sentenced to a
term of eighteen months' commitment to the North Dakota
Department of Corrections and Rehabilitation, first to serve
90 days with the balance suspended for eighteen months of
supervised probation, to be served concurrently with the
other two counts.
In January 2019, a probation officer petitioned to revoke
Dubois' probation, alleging he committed three new
criminal offenses, and a fourth allegation that was later
dismissed. Dubois was convicted of each of the three
offenses. Dubois admitted the allegations at the revocation
hearing and asked to be placed back on probation. The
district court rejected that request and asked for an
alternative recommendation from Dubois. Dubois then argued
for a sentence of time already served. The court revoked his
probation and resentenced him to five years'
incarceration with credit for time previously served.
Dubois argues the district court abused its discretion in
revoking his probation. "In an appeal of a probation
revocation, we first review the district court's factual
findings under the clearly erroneous standard and then review
the court's decision to revoke probation under the abuse
of discretion standard." State v. Dockter, 2019
ND 203, ¶ 11, 932 N.W.2d 98. Here, the factual findings
are not at issue, because Dubois admitted the allegations in
the petition. Therefore, we review only for an abuse of
discretion. "A district court abuses its discretion when
it acts in an arbitrary, unreasonable, or unconscionable
manner, or when it misinterprets or misapplies the law."
Kalmio v. State, 2019 ND 223, ¶ 22, 932 N.W.2d
562 (quoting City of Napoleon v. Kuhn, 2016 ND 150,
¶ 8, 882 N.W.2d 301).
Section 12.1-32-07(6), N.D.C.C., authorizes a district court
to revoke probation for a violation of probation conditions
occurring before the expiration or termination of the period
of probation. As a result of the three new offenses to which
Dubois admitted, the court had legal authority to revoke his
probation. The State recommended the previous sentence be
revoked and for Dubois to be resentenced to serve five years
with credit for time served. The State's recommendation
was based on Dubois' criminal history, including previous
failures on probation resulting in his probation being
revoked. The State described convictions in 2015 for felony
assault and in 2016 for simple assault. Prior to sentencing
Dubois, the court considered his criminal history and
specifically noted the seriousness of the new offense. By
revoking probation for new criminal offenses after
considering Dubois' criminal history, the court did not
act arbitrarily, unreasonably, or unconscionably and did not
abuse its discretion.
Dubois argues the district court abused its discretion in
resentencing him because it did not analyze each factor of
the statutory sentencing factors under N.D.C.C. §
12.1-32-04. A court has discretion in sentencing, and review
of a sentence is generally limited "to whether the trial
court acted within the statutorily prescribed sentencing
limits or substantially relied on an impermissible
factor." State v. Gonzalez, 2011 ND 143, ¶
6, 799 N.W.2d 402. In Gonzales, this Court addressed
sentencing following revocation of probation and stated, a
court need not explicitly reference the statutory sentencing
factors when fixing a sentence. Id. at ¶ 8. The
record does not show the court substantially relied on an
impermissible factor and we conclude the court did not abuse
Dubois argues the district court's new sentence of five
years' imprisonment is illegal because it exceeds the
balance of the eighteen-month term to which he was originally
sentenced. In support, he cites N.D.C.C. §
12.1-32-07(6), which states:
The court, upon notice to the probationer and with good
cause, may modify or enlarge the conditions of probation at
any time prior to the expiration or termination of the period
for which the probation remains conditional. If the defendant
violates a condition of probation at any time before the
expiration or termination of the period, the court may
continue the defendant on the existing probation, with or
without modifying or enlarging the conditions, or may revoke
the probation and impose any other sentence that was
available under section 12.1-32-02 or 12.1-32-09 at the time
of initial sentencing or deferment. In the case of suspended
execution of sentence, the court may revoke the probation and
cause the defendant to suffer the penalty of the sentence
previously imposed upon the defendant.
argues the last sentence of N.D.C.C. § 12.1-32-07(6)
limits a court's resentencing authority on revocation of
probation to the balance of a previously suspended sentence.
Review of the transcript of the revocation hearing and the
record show Dubois did not make this argument to the court.
Issues not raised in the district court cannot generally be
raised for the first time on appeal. State v.
Dockter, 2019 ND 203, ¶ 8, 932 N.W.2d 98. The
purpose of an appeal is to review the actions of the court,
rather than to give the appellant an opportunity to develop
new theories of strategies. Id. We may, however,
consider an issue raised for the first time on appeal if it
rises to the level of obvious error. Id. (relying on
State v. Alberts, 2019 ND 66, ¶ 7, 924 N.W.2d
96). In order to establish obvious error, the defendant must
demonstrate plain error affecting ...