from the District Court of Ramsey County, Northeast Judicial
District, the Honorable Donovan J. Foughty, Judge.
M. Agotness, State's Attorney, Devils Lake, ND, for
plaintiff and appellee.
C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.
Marlon Comes appeals from a Second Amended Criminal Judgment,
asserting the judgment imposes an illegal sentence. Comes
argues the sentence illegally postpones his eligibility for
parole beyond 85% of his life expectancy at the time of his
sentencing. We affirm.
On July 22, 1996, Comes pleaded guilty to a class AA felony
charge of murder and a class A felony charge of robbery. On
October 18, 1996, Comes was sentenced to life imprisonment
with the possibility of parole on the murder charge and a
concurrent ten years imprisonment on the Robbery charge, with
credit for 307 days he had served in custody pending the
disposition of his case.
In 2018 the Department of Corrections and Rehabilitation
[DOCR], in conjunction with considering when Comes would be
eligible for parole, requested the district court amend the
judgment to include a calculation of Comes' life
expectancy as of the date of sentencing. Pursuant to the
DOCR's request, the district court issued an amended
judgment on August 7, 2018, incorporating a life expectancy
calculation. Comes appealed, and this Court remanded the case
to the district court after concluding Comes had not been
provided with the required notice prior to the amendment of
On remand, the district court calculated Comes' life
expectancy and found that Comes' life expectancy at the
time of sentencing was 23.8 years. Neither the State nor
Comes has challenged the method of calculation used by the
district court or the result of the calculation.
On remand, the district court also found N.D.C.C. §
12.1-32-01(1) applied to Comes' sentence. Section
N.D.C.C. § 12.1-32-01(1) provides that individuals who
are sentenced to life imprisonment with the possibility of
parole are ineligible to have their sentence considered by
the parole board until thirty years after admission to the
penitentiary, less sentence reduction earned for good
conduct. The Second Amended Criminal Judgment provides Comes
would be eligible for consideration by the parole board after
thirty years of imprisonment, less sentence reduction earned
for good conduct. Comes appealed the second amended judgment
and argues the sentence is illegal because his eligibility
for parole should be determined by N.D.C.C. §
12.1-32-09.1 and be equal to 85% of his life expectancy
calculation of 23.8 years, less any sentence reduction earned
for good conduct.
The district court found Comes' sentence "was
subject to two qualifying statutory conditions":
N.D.C.C. § 12.1-32-09.1 and N.D.C.C. §
12.1-32-01(1). Section 12.1-32-09.1 provides that for certain
offenses, an individual who receives a sentence of
imprisonment is not eligible for release from confinement
until eighty-five percent of the sentence has been served or
the sentence is commuted. As noted above, N.D.C.C. §
12.1-32-01(1) provides that individuals who are sentenced to
life imprisonment with the possibility of parole are
ineligible to have their sentence considered by the parole
board for thirty years after admission to the penitentiary.
Comes argues N.D.C.C. § 12.1-32-09.1 is the more
specific of the two statutory provisions and, pursuant to
N.D.C.C. § 1-02-07, the more specific provision
prevails. When reviewing statutory provisions, we attempt to
give meaning to every word, phrase, and sentence, and, if
necessary, we attempt to reconcile and harmonize potentially
conflicting provisions. State v. Kostelecky, 2018 ND
12, ¶ 8, 906 N.W.2d 77. When a provision at issue ...