Winter 2018 Gavel Winter 2018 Gavel | Page 21

In 2013, the District Court, on motion of the state’s attorney, revoked defendant’s probation and sentenced defendant to serve the five years of incarceration. In 2015, the Legislature changed the law, providing one convicted of the Class C felony of aggravated assault no longer needed to serve a minimum of 85 percent of the incarceration before release from incarceration. In 2017, the defendant sought a retroactive application of the 2015 Legislative change to his 2013 sentence on the Class C felony aggravated assault, contending the change in the law conferred a benefit to him and should, therefore, be applied to him retroactively. Defendant’s motion was also brought pursuant to North Dakota Rule of Criminal Procedure 35(a)(2) providing for relief from a judgment due to an arithmetic, technical, or other clear error. The District Court denied defendant’s motion. On appeal, the Supreme Court affirmed that denial. The Court st ated the 2015 law change would not apply retroactively to defendant’s 2013 criminal judgment because the Legislature, in passing the 2015 legislation, did not expressly manifest an indication it be applied retroactively. See, N.D.C.C. § 1-02-10. Moreover, the Supreme Court stated defendant’s motion under Rule 35(a)(2) was misplaced because the mere silence in defendant’s 2013 criminal judgment as to whether the 85 percent “service” rule would apply did not cause there to be an arithmetic, technical, or other clear error in the judgment which would serve as a basis for a Rule 35(a) (2) motion. All was not lost, however, for this defendant because a statutory amendment in 2017 allowed the defendant to have his sentence considered by the Parole Board. In the Interest of B.A.C., 2017 ND 247, 902 N.W.2d 767 This case involved an appeal of a mental health commitment. The defendant was ordered hospitalized at the State Hospital for 90 days with involuntary medication for that same period of time. The District Court also found the federal firearms restrictions under 18 U.S.C. § 922(d)(4) and (g)(4) applied to the defendant. Under that federal law, one who has been adjudicated as a “mental defective” or “committed to any mental institution” is prohibited from possession of firearms and ammunition. After only 14 days into his commitment, defendant was released, with a finding he was no longer in need of treatment. However, because of the federal prohibition against possession of firearms, defendant appealed his mental health commitment. The Supreme Court stated, because the federal prohibition against possession of firearms was a collateral consequence of defendant’s mental health commitment, his appeal of his commitment was not moot by virtue of his early release from the confinement and the fact he was released at the time his appeal was considered. In other words, notwithstanding his release from commitment, an actual controversy remained regarding that commitment, because of the attendant collateral consequence on defendant’s right to possess firearms because of the commitment, which consequence remained in place even after his release. Accordingly, defendant’s appeal was not moot. However, having said this, the Supreme Court concluded there was clear and convincing evidence defendant required the mental health commitment and treatment and, therefore, affirmed the District Court’s Order. State v. Trulove, 2017 ND 283 The underlying factual details recited in the opinion of this case are graphic. Accordingly, viewer discretion is advised. Suffice it to say, the defendant in this case was convicted of gross sexual imposition (GSI). The defendant appealed his conviction. His criminal conviction for GSI was affirmed by the Supreme Court. The Supreme Court held that the use of force or physical action compelling the victim to submit to the non-consensual sexual act must exist either prior to or during the commission of the sexual act, and not after, in order for the crime to be committed under N.D.C.C. § 12.1-20- 03. As said, the Supreme Court affirmed the criminal judgment entered by the District Court. WINTER 2018 21