Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Comes

Supreme Court of North Dakota

December 12, 2019

State of North Dakota, Plaintiff and Appellee
v.
Marlon Leon Comes, Defendant and Appellant

          Appeal from the District Court of Ramsey County, Northeast Judicial District, the Honorable Donovan J. Foughty, Judge.

          Kari M. Agotness, State's Attorney, Devils Lake, ND, for plaintiff and appellee.

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

          OPINION

          Jensen, Justice.

         [¶1] 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.

         I

         [¶2] 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.

         II

         [¶3] 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 the judgment.

         [¶4] 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.

         [¶5] 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.

         III

         [¶6] 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.

         [¶7] 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.