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
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