RULE 32. SENTENCING AND JUDGMENT
(1) Time of Sentencing. The court must impose sentence or other authorized disposition without unnecessary delay. Until disposition, the court may continue or alter bail or require the defendant to be held without bail.
(2) Presentence Requirements. Before imposing sentence, the court must:
(A) determine whether the defendant and the defendant's counsel had an opportunity to read and discuss the presentence investigation report, if made available under Rule 32(c)(4)(B), or a summary made available under Rule 32(c)(4)(D);
(B) give counsel an opportunity to speak on behalf of the defendant; and
(C) determine whether the defendant wishes to make a statement
in on the defendant's own behalf or wishes to present information in mitigation of punishment or information that would require the court to withhold judgment and sentence.
The court must give the prosecution an opportunity to be heard on any matter material to the imposition of sentence.
(2) Notification of Right to Appeal. After imposing sentence in a case that has gone to trial, the court must advise the defendant of the defendant's right to appeal and of the right of a person who is unable to pay the costs of an appeal to apply for appointment of counsel for purposes of appeal. The court is under no duty to advise the defendant of any right of appeal when sentence is imposed following a plea of guilty.
(b) Judgment. A judgment of conviction must include the plea, the verdict, and the sentence imposed. If the defendant is found not guilty or for any reason is entitled to be discharged, the court must enter judgment accordingly. The judge shall sign and the clerk shall enter the judgment.
(c) Presentence Investigation.
(1) When Made. The court may order a presentence investigation and report at any time. Except when the defendant consents in writing, the report may not be submitted to the court or its contents disclosed unless the defendant has pleaded guilty or has been found guilty.
(2) Presence of Counsel. The defendant's counsel is entitled to notice and a reasonable opportunity to attend any interview of the defendant conducted by parole and probation staff in the course of a presentence investigation.
(A) Contents of Report. The presentence report may contain the defendant's previous criminal record and information about the defendant's characteristics, including:
(i) family, educational, and social history
(ii) employment history and financial condition
(iii) circumstances affecting the defendant's behavior that may be helpful in imposing sentence or in the correctional treatment of the defendant; and
(iv) any information required by the court.
(B) Information Excluded from Report. The following types of information may not be included in a presentence report, but may be submitted to the court as an addendum to the report:
(i) any diagnostic or prognostic opinion that, if disclosed, might seriously disrupt a program of rehabilitation;
(ii) information or sources of information obtained confidentially, but subject to disclosure by the court as provided in Rule 32(c)(4)(A);
(iii) any sentence recommendation by parole and probation staff or the victim;
(iv) any victim impact statement; or
(v) any other information, including medical, psychiatric, or psychological information, information relating to the victim or victims, and other matters the court may consider confidential, that if disclosed, might result in harm, physical or otherwise, to the defendant, to a victim, or to other persons.
(4) Disclosure of Presentence Report.
(A) Confidentiality. The presentence report and any addendum are confidential. Neither the public nor the parties may read or copy the presentence report or any addendum, unless the court, in its discretion, gives permission.
(B) Disclosure to Defendant. If the court allows the defendant to examine any part of the presentence report or any addendum, this disclosure must be made at least 10 days before sentence is imposed, unless the defendant waives the 10-day requirement. The court must provide the defendant and the defendant's counsel a copy of the disclosed material and give them an opportunity to comment. The court may allow the defendant and the defendant's counsel to introduce testimony or other information relating to any alleged factual inaccuracy in the disclosed material. Any material disclosed to the defendant and the defendant's counsel must also be disclosed to the prosecuting attorney.
(C) Disclosure to Attorney General. The court may disclose the presentence report and any addendum to the Attorney General or the Attorney General's designee only for purposes of the individual risk assessment required by N.D.C.C. § 12.1-32-15 (12) and (13). A presentence report and addendum disclosed to the Attorney General or the Attorney General's designee must remain confidential and may not be read or copied by anyone else
(D) Harmful Information. If the court finds there is information in the presentence report or any addendum that would be harmful to the defendant or to other persons if disclosed, the court must not permit the public or the parties to read or copy that portion of the report or the addendum. The court must give an oral or written summary of any non-disclosed information it will rely on in determining sentence and must give the defendant or the defendant's counsel an opportunity to comment. The court may give its summary to the parties in camera.
(E) Defendant's Comments. If the comments of the defendant and the defendant's counsel, or testimony or other information introduced by them, allege any factual inaccuracy in the presentence report or any addendum, or in any of the information summarized, the court, for each matter controverted, must:
(i) make a finding on the allegation, or
(ii) make a determination that no finding is necessary because the matter controverted will not be taken into account in sentencing.
A written record of the court's findings and determinations must be appended to and accompany any copy of the presentence report later made available to the parole board or the pardon clerk.
(d) Plea withdrawal.
(1) In General. The court must allow the defendant to withdraw a plea of guilty whenever the defendant, on a timely motion for withdrawal, proves withdrawal is necessary to correct a manifest injustice.
(2) Timeliness. A motion for withdrawal is timely if made with due diligence, considering the nature of the allegations, and is not necessarily barred because made subsequent to judgment or sentence.
(3) Court's Discretion. If the defendant does not show that withdrawal is necessary to correct a manifest injustice, the defendant may not withdraw a plea of guilty as a matter of right once the court has accepted the plea. Before sentence, the court in its discretion may allow the defendant to withdraw a plea for any fair and just reason unless the prosecution has been substantially prejudiced by reliance on the defendant's plea.
(e) Probation. After conviction of an offense, the defendant may be placed on probation as provided by law.
(f) Revocation of Probation Where Court Retains Jurisdiction Under Law.
(1) Taking into Custody. If there is probable cause to believe a probationer has violated a condition of probation, the court that originally placed the probationer on probation may conduct a hearing on the alleged violation. Any state parole and probation officer or any peace officer directed by a state parole and probation officer or directed by an order of the court having jurisdiction may take the probationer into custody and bring the probationer before the court. Costs incurred in bringing the probationer before the court must be borne by the county in which the probation was granted. The probationer may be admitted to bail pending the hearing.
(2) Transfer. If the probationer does not contest the violation, the hearing may be transferred, under the procedure set out in Rule 20, to the county where the probationer is arrested, held or present. This procedure is available only upon the consent of the court that placed the probationer on probation.
(A) In General. The hearing must be in open court with:
(i) the probationer present;
(ii) a prior written notice of the alleged violation given to the probationer; and
(iii) representation by retained or appointed counsel unless waived.
The probationer must be given an opportunity to make a statement and present any evidence in mitigation.
(B) Resolution. If the probationer contests the violation, the prosecution must establish the violation by a preponderance of the evidence. After the hearing and subject to limitations imposed by law, the court may:
(i) revoke an order suspending a sentence or an order suspending the imposition of sentence; or
(ii) continue probation on the same or different conditions.
A record of the proceedings must be made.
Rule 32 was amended, effective January 1, 1980; March 1, 1986; March 1, 1990; March 1, 1992, on an emergency basis; July 14, 1993; March 1, 1999; October 31, 2001, on an emergency basis; April 1, 2002; March 1, 2006; ____________________.
Rule 32 was amended, effective March 1, 2006, in response to the December 1, 2002, revision of the Federal Rules of Criminal Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Paragraph (c)(4) was amended, effective March 1, 1999, to allow the court to decide, in its discretion, whether a presentence investigation report and any addendum may be inspected by the public or the parties.
Parole and probation staff conducting a presentence investigation must be mindful that they cannot make a binding promise of complete confidentiality regarding information included in the addendum to a presentence report. Under paragraph (c)(4), the promise of confidentiality is subject to the court's discretion to allow the parties to inspect the addendum.
Paragraph (c)(4) was amended, effective October 31, 2001, to allow disclosure of the presentence report and any addendum to the Attorney General or the Attorney General's designee to enable the Attorney General to comply with subsections 12 and 13 of N.D.C.C. § 12.1-32-15. Disclosure to the Attorney General or the Attorney General's designee must comply with all applicable state and federal statutes, rules and regulations governing drug and alcohol records, and private medical information.
Subdivision (d) is adapted from A.B.A. Standards for Criminal Justice, Standards Relating to Pleas of Guilty, §§ 2.1(a), 2.1(a)(i) and 2.1(b). (Approved Draft, 1968).
Paragraph (f)(1) is adapted from and supersedes N.D.C.C. § 12-53-15.
Paragraph (f)(2) was added, effective March 1, 2006, to allow transfer of a revocation hearing to the county where the probationer is present. Rule 20 (Transfer from the County for Plea and Sentence) sets out the procedure for obtaining a transfer.
Paragraph (f)(3) is adapted in part from the A.B.A. Standards for Criminal Justice, Standards Relating to Probation, § 5.4 at 65 (Approved Draft, 1970). Paragraph (f)(3) was amended, effective, ___________________, to clarify that a probationer must be given the opportunity to make a statement and present mitigating information at a revocation hearing.
SOURCES: Joint Procedure Committee Minutes of ______________ pages ___; April 28-29, 2005, pages 3-5; January 27-28, 2005, pages 28-29; January 24-25, 2002, pages 9-14; January 29-30, 1998, pages 10-11; September 25-26, 1997, pages 3-6; January 30, 1997, pages 2-6; September 26-27, 1996, pages 6-8; April 25, 1996, pages 16-18; November 7-8, 1991, page 4; October 25-26, 1990, pages 15-16; April 20, 1989, page 4; December 3, 1987, page 15; November 29, 1984, pages 15-18; April 26, 1984, page 6; December 7-8, 1978, pages 15-23; October 12-13, 1978, pages 10-14; December 11-15, 1972, pages 5-16; November 20-21, 1969, pages 5-6; May 15-16, 1969, pages 1-2; February 20-21, 1969, pages 5-14; Fed.R.Crim.P. 32.
SUPERSEDED: N.D.C.C. §§ 12-53-15, 29-14-22, 29-26-01, 29-26-02, 29-26-15, 29-26-19, 33-12-26, 33-12-27, 33-12-29.
CONSIDERED: N.D.C.C. §§ 1-01-41, 12-53-03, 12-53-04, 12-53-05, 12-53-06, 12-53-10, 12-53-11, 12-53-12, 12-53-13, 12-53-14, 12-53-17, 12-53-20, 12-55-30, 29-26-03, 29-26-11, 29-26-12, 29-26-13, 29-26-14, 29-26-16, 29-26-17, 29-26-18, 29-26-20, 29-26-23, 33-12-28.
CROSS REFERENCES: N.D.R.Crim.P. 20 (Transfer from the County for Plea and Sentence); N.D.C.C. § 12.1-32-15.