State v. Ferderer , 2018 ND 254 ( 2018 )

Filed 12/6/18 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2018 ND 254State of North Dakota, Plaintiff and Appellee
v.
Jeremy John Ferderer, Defendant and Appellant
No. 20180072
Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable David E. Reich, Judge.
AFFIRMED.
Opinion of the Court by Crothers, Justice.
Kiara Costa Kraus-Parr, Grand Forks, ND, for defendant and appellant.
Marina Spahr (argued) and Patrick W. Waters (appeared), Assistant State’s
Attorneys, Bismarck, ND, for plaintiff and appellee.
State v. Ferderer
No. 20180072
Crothers, Justice.
[¶1] Jeremy Ferderer appeals from a January 25, 2018 order entered after the
district court initially denied his self-represented motions under N.D.R.Crim.P. 35(a)
for correction of an illegal sentence and for summary judgment, and thereafter denied
his self-represented “informational motion to compel and answer.” We affirm the
January 25, 2018 order.
I
[¶2] In November 2013 Ferderer pled guilty to stalking, a class C felony. The
district court sentenced Ferderer to the custody of the Department of Corrections for
5 years with all but 18 months suspended and, following release from the Department
of Corrections, placed him in the custody of the division of parole and probation for
5 years. The judgment gave Ferderer credit for 32 days for time served. According
to the State, Ferderer was released from incarceration on supervised probation on
October 14, 2014. In March 2017 the court revoked Ferderer’s probation and an
amended judgment was entered committing him to the custody of the Department of
Corrections for 4 years. The amended judgment gave Ferderer credit for 18 months
and 68 days for time served.
[¶3] Ferderer sent the district court a July 17, 2017 letter requesting a recalculation
of his credit for time served. The State responded to Ferderer’s request with its own
recalculation, claiming he had received too much credit for time served. The State
asserted Ferderer’s credit for time served should have been decreased from 18 months
and 68 days to 11 months and 107 days. A second amended judgment was filed on
August 4, 2017, reducing Ferderer’s credit for time served to 11 months and 107 days.
[¶4] In December 2017 Ferderer filed self-represented motions under
N.D.R.Crim.P. 35(a) for correction of an illegal sentence and for summary judgment.
In an affidavit in support of his motion to correct an illegal sentence, Ferderer claimed
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every part of his sentence for a class C felony, including the term of probation, must
fall within a five year maximum incarceration range and that the double jeopardy
clause forbids more than a single punishment of incarceration. He claimed
“PUNISHMENT includes both imprisonment and supervision upon release and credit
must be given both to keep sentence from being a double jeopardy violation and to
keep a sentence from exceeding the maximum punishment.” The State responded,
arguing Ferderer’s sentence was not illegal because his was a second conviction for
stalking, and under N.D.C.C. § 12.1-32-06.1(6)(a) and (b) he was subject to ten years
of supervised probation in no more than five year increments.
[¶5] In a January 5, 2018 order the district court denied Ferderer’s motions for
correction of an illegal sentence and for summary judgment. The court explained the
revocation of Ferderer’s probation did not constitute double jeopardy, and neither the
original sentence nor the amended sentence exceeded the maximum sentence allowed
by law.
[¶6] On January 19, 2018, Ferderer filed an “informational motion to compel and
answer.” On January 25, 2018, the court denied that motion, stating there was “no
matter pending to which a motion to compel could be addressed” and if Ferderer’s
motion was intended as a motion to reconsider the earlier January order, the motion
to reconsider was denied. Ferderer filed a self-represented notice of appeal from the
January 25, 2018 order.
II
[¶7] Ferderer argues the district court erred in denying his motion to correct an
illegal sentence. He essentially argues all individuals on parole are deemed to be
serving their sentence and he was entitled to credit for time served while he was on
parole. He claims the August 2017 second amended judgment contained an illegal
sentence.
[¶8] However, Ferderer’s notice of appeal states his appeal is “from the judgment
by [the district] court on January 25, 2018.” The court’s January 25 order denied
Ferderer’s “informational motion to compel and answer.” The court also said that to
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the extent Ferderer’s motion was intended as a motion to reconsider the earlier
January order denying his motion to correct an illegal sentence, the motion was
denied.
[¶9] Contrary to Ferderer’s argument, he has not directly or timely appealed from
the August 2017 second amended judgment or the January 5, 2018 order denying his
motion to correct an illegal sentence. Ferderer’s notice of appeal limits this Court’s
review to the district court order denying his “informational motion to compel and
answer.”
[¶10] We agree with the district court that there was no pending matter for which a
motion to compel could be addressed. To the extent the court treated Ferderer’s
January 2018 “informational motion to compel and answer” as a request for
reconsideration of his December 2017 motion to correct an illegal sentence, his
January 2018 motion did not provide any cogent rationale meriting reconsideration
of his earlier motion. We conclude the court did not err in denying his later motion.
[¶11] To the extent Ferderer’s December 2017 motion to correct an illegal sentence
claimed his sentence in the second amended judgment violated double jeopardy, this
Court has held that the revocation of a sentence based upon a probation violation and
the imposition of a greater sentence than originally imposed does not violate double
jeopardy. State v. Jones, 418 N.W.2d 782, 783-86 (N.D. 1988). Those principles are
dispositive of Ferderer’s double jeopardy argument in his December motion to correct
the claimed illegal sentence.
III
[¶12] We affirm the January 25, 2018 order.
[¶13] Daniel J. Crothers
Lisa Fair McEvers
Jon J. Jensen
Jerod E. Tufte
Gerald W. VandeWalle, C.J.
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