IN THE SUPREME COURT
STATE OF NORTH DAKOTA
|State of North Dakota,|
|Plaintiff and Appellee,||Supreme Court No. 20120406|
|Matthew Eagleman,||Ramsey County District Court|
|Defendant and Appellant.|
Appeal from Order of Correction of Illegal Sentence
From the District Court of Ramsey County, North Dakota
BRIEF OF APPELLEE
|Dated this ____ day of March, 2013.|
|Lonnie W. Olson (ND Bar Id # 04526)|
|Ramsey County States Attorney|
|524 4th Ave NE, Unit 16|
|Devils Lake, ND 58301|
|Attorney for Plaintiff/Appellee|
|TABLE OF CONTENTS|
|I. Table of Authoritiesii|
|II. Statement of Facts.1|
|III. Law and Argument2|
|TABLE OF AUTHORITIES|
|Bozza v. United States, 330 U.S. 160 (1947)..13|
|United States v. Contreras-Subias, 13 F.2d 341 (9th Cir. 1994).13|
|State v. Bryan, 316 NW2d 335 (ND 1982)12|
|State v. Peltier, 2003 ND 27, 657 NW2d 2388,9|
|State v. Perales, 2012 ND 158, 820 NW2d 1193, 5, 11, 12|
|State v. Stavig, 2006 ND 63, 711 NW2d 183..3, 12|
|State v. Trieb, 533 NW2d 678 (ND 1995)....13|
|N.D.C.C, Section12.1-32-01(2)...7, 13|
|N.D.C.C., Section 12.1-32-07(6)....8|
|North Dakota Rules of Criminal Procedure|
|Rule 35..11, 12|
STATEMENT OF FACTS
 On September 19,2002, the Defendant entered a guilty plea, pursuant to a plea agreement,
on the charge of Gross Sexual Imposition, a class A Felony, and Harboring a Runaway Minor, a Class A
Misdemeanor.. On the Gross Sexual Imposition charge, the Defendant was sentenced to 5 years in the
DOCR, with credit for 127 days served. The remaining prison sentence was suspended for a period of 5
years, and he was placed on supervised probation. Appendix 011.
Eleven days later, on September 30, 2002, a Petition For Revocation of Probation was filed in
the District Court, alleging, among other things, that on September 27, 2002, the Defendant had
barricaded himself in an apartment with the minor victim of the Gross Sexual Imposition. App. 016. The
Court found him in violation of the terms of the suspended sentence, and resentenced the Defendant to
one year in the DOCR on the Harboring charge, and 5 years in the DOCR, to serve 4 years consecutively
with the misdemeanor, and one year was suspended for a period of 5 years from his date of release.
After his release on supervision, on June 18, 2008, another Petition For Revocation of
Probation was filed in the District Court, and which was subsequently amended to add many new
allegations of violations. App. 022 and App. 027. After an extensive revocation hearing, the Court found
that the Defendant had violated his probation in 20 different manners. Included in the proven
allegations were the fact that the defendant was present in the parking lot of a public swimming pool
where minor children were present. App. 034. Further, the Court found that the Defendant was
socializing with a woman who had three young children, including being in a vehicle with them. He was
also loitering near places where young children were located. App. 034. He failed to provide an access
code for his cell phone for the probation officer to verify contacts. App. 034. He also violated his curfew
many times. App. 034-036. The Court revoked his probation and resentenced him to 20 years in the
DOCR, to serve 7 years, with credit for 4 years served. However, the Court suspended the 13 years of
incarceration for a period of 5 years from his date of release. App. 037. (In retrospect, this additional
probationary period would constitute an illegal sentence by being a third period of probation pursuant
to State v. Stavig, 2006 ND 63, 711 NW 2d 183, and State v Perales, 2012 ND 158, 820 NW2d 119).
After his release, he was placed on supervision again, and another Petition For Revocation of
Probation was filed on July 22, 2011. App. 038-039. The Court later found the Defendant had violated
the terms by not satisfactorily participating in sex offender counseling, by damaging property at the
DOCR trailer residence, and dishonesty with his probation officer regarding a second cell phone. App.
043. The Court revoked the probation again, and resentenced the Defendant to 20 years in the DOCR,
to serve 10 years, with credit for time served, and 10 years were to be suspended for 10 years upon his
release. (This probationary period would also constitute an illegal probation sentence).
Upon review of State v. Perales, the State filed a Motion to Correct Illegal Sentence. App. 045.
A hearing on the Motion was held on October 16, 2012, Upon reviewing its option for resentencing a
Class A Felony, the Court issued an order to correct the illegal sentence by sentencing the Defendant to
20 years in the DOCR, with credit for time served. App. 047 to 049. The Court even gave the Defendant
credit for one year and 48 days for time spent in the North Dakota State Hospital pending a hearing on
an SDI petition, which was eventually dismissed by another Court. App. 049.
The Defendant now appeals the Order of Correction of Illegal Sentence. App. 050.
LAW AND ARGUMENT
The maximum sentence available for a Class A Felony is 20 years imprisonment and a $10,000
fine. N.D.C.C. Section 12.1-32-01(2). The Defendant was convicted of Gross Sexual Imposition, a Class A
Felony. The District Court had the authority to sentence the Defendant to a maximum of 20 years at the
time of the original sentencing.
When the District Court revokes a probationary sentence, the Court has the discretion to
impose any other sentence which was available at the time of the initial sentencing. N.D.C.C., Section
12.1-32-07(6). As such, the District Court has the discretion to impose a harsher sentence upon a
defendant after a revocation of probation than had originally been imposed at the sentencing. State v.
Peltier, 2003 ND 27 (Pp. 16), 657 NW2d 238, 243.
At the second revocation hearing held on September 16, 2008 the Court revoked the
probation and resentenced the Defendant to the maximum of 20 years in the DOCR. The Court did
suspend 13 years for a period of 5 years from the date of release. The suspended time is the only illegal
aspect of the Courts sentence. The District Court had every legal authority to sentence the Defendant to
the full amount of 20 years of incarceration, as authorized in Peltier.
The third revocation hearing held by the Court August 31, 2011 resulted in another 20 year
sentence of incarceration, and another illegal suspended sentence of supervised probation, that being
10 years of the 20 years was suspended for 10 years. Once again, the illegal aspect of the sentence is
the additional period of probation, not the 20 years of incarceration.
Not long after the State v. Perales decision was rendered, the State filed a motion to correct
an illegal sentence, pursuant to N.D.R.Crim.P., Rule 35(a). The State's motion pointed out the fact that
both the September 17, 2008 order of revocation and the August 31, 2011 order of revocation included
illegal periods of supervised probation.
The District Court may only change sentences pursuant to the authority and limitations of
Rule 35. State v. Bryan, 316 NW2d 335 (N.D.1982). A sentencing court may correct an illegal sentence at
anytime, pursuant to N.D.R.Crim.P., Rule 35(a). A hearing was held on the State's motion, and the
Court issued its Order of Correction of Illegal Sentence on October 31, 2012. The Court heard
arguments of counsel, and ruled that the Court did not have authority to place the Defendant on
supervised probation. It weighed the options and resentenced the Defendant to the same prior
sentence of 20 years in the DOCR. However since the Court could not suspend any time based upon
Stavig and Perales, the Court did not suspend any of the time as it had done prior.
As previously stated, under Rule 35(a), the sentencing court may correct an illegal sentence
at any time. The trial court may correct an illegal sentence even if the correction results in a harsher
sentence for the defendant. State v Trieb, 533 NW2d 678, 680(ND 1995), citing Bozza v. United States,
330 U.S. 160(1947); United States v. Contreras-Subias, 13 F.3d 1341 (9th Cir. 1994). In the case at hand,
the Court reviewed its options and resentenced the Defendant to the same 20 years in the DOCR as it
had on September 17, 2008 and August 31, 2011. The only difference was the suspended period of
incarceration. In that respect, the Court did not sentence the Defendant to a harsher sentence than at
the earlier revocation hearings. Even if it is argued that the incarceration sentence is a longer sentence
than at the earlier revocation hearings, it was clearly within the District Court's discretion to do so,
pursuant to N.D.C.C., Section 12.1-32-01(2), and further expressly permitted under State v. Trieb, 533
NW2d 678 ND 1995).
The District Court corrected earlier illegal sentences, and resentenced the Defendant to a
lawful sentence. The District Court did not abuse its discretion in the sentence. The State requests the
order of the District Court be affirmed.