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State v. Dubois

Supreme Court of North Dakota

December 12, 2019

State of North Dakota, Plaintiff and Appellee
v.
James Dubois, Jr., Defendant and Appellant

          Appeal 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.

          Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.

          OPINION

          McEvers, Justice.

         [¶1] 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.

         I

         [¶2] 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.

         [¶3] 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.

         II

         [¶4] 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).

         [¶5] 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.

         III

         [¶6] 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 its discretion.

         IV

         [¶7] 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.

         Dubois 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.

         [¶8] 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, ΒΆ 7, 924 N.W.2d 96). In order to establish obvious error, the defendant must demonstrate plain error affecting ...


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