State v. Christensen ( 2019 )


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  •                 Filed 1/15/19 by Clerk of Supreme Court
    IN THE SUPREME COURT
    STATE OF NORTH DAKOTA
    
    2019 ND 11
    State of North Dakota,                                      Plaintiff and Appellee
    v.
    Raymond Arthur Christensen,                              Defendant and Appellant
    No. 20180156
    Appeal from the District Court of Stark County, Southwest Judicial District,
    the Honorable Rhonda R. Ehlis, Judge.
    SENTENCE VACATED AND REMANDED.
    Opinion of the Court by McEvers, Justice.
    Brittney A. Bornemann, Assistant State’s Attorney, Dickinson, ND, for
    plaintiff and appellee; submitted on brief.
    Markus A. Powell, Dickinson, ND, for defendant and appellant.
    State v. Christensen
    No. 20180156
    McEvers, Justice.
    [¶1]   Raymond Christensen appeals from a criminal judgment and challenges his jail
    sentence for leaving the scene of an accident involving injury and aggravated reckless
    driving. Because the district court substantially relied upon an impermissible factor
    in sentencing Christensen to jail, we vacate the sentence and remand for resentencing.
    I
    [¶2]   On April 15, 2017, Christensen was involved in a motor vehicle accident in
    Stark County. He was charged with leaving the scene of an accident involving injury
    in violation of N.D.C.C. § 39-08-04, a class C felony, and aggravated reckless driving
    in violation of N.D.C.C. § 39-08-03, a class A misdemeanor. On November 14, 2017,
    Christensen pled guilty to both charges. A presentence investigation recommended
    that Christensen be sentenced to a period of supervised probation by the Department
    of Corrections.
    [¶3]   On February 6, 2018, the district court held a sentencing hearing during which
    the responding law enforcement officer and the victim’s fiancé testified. The State
    argued that Christensen should be sentenced to serve time in jail. Christensen argued
    he should be sentenced to probation as recommended by the presentence investigation
    and as required by the presumptive probation statute, N.D.C.C. § 12.1-32-07.4(1).
    The court found there were no aggravating factors present to avoid presumptive
    probation under N.D.C.C. § 12.1-32-07.4(2), but questioned whether Christensen’s
    vehicle could be considered a “dangerous weapon,” an exception to presumptive
    probation under N.D.C.C. § 12.1-32-07.4(1). The court allowed the parties to brief
    the issue.
    [¶4]   The parties’ briefs focused on whether Christensen’s vehicle was a “dangerous
    weapon” under this Court’s decision in State v. Vetter, 
    2013 ND 4
    , ¶¶ 1, 4, 826
    
    1 N.W.2d 334
    , in which the defendant was charged with and convicted by a jury of
    aggravated assault with a dangerous weapon consisting of a vehicle and where the
    jury specifically found that the defendant used a dangerous weapon to inflict injury.
    Vetter intentionally drove his vehicle toward the victim, continuing to drive forward
    after he fell, and rolled both front and rear tires over him. Vetter, at ¶ 17. This Court
    held that, depending on how it is used, a vehicle may constitute a “dangerous
    weapon” as defined in N.D.C.C. § 12.1-01-04(6) for purposes of applying the
    mandatory minimum sentencing provisions of N.D.C.C. § 12.1-32-02.1, and the jury’s
    finding on the issue was supported by the evidence. Vetter, at ¶¶ 4, 15, 16.
    [¶5]   At the second sentencing hearing held on April 3, 2018, the district court relied
    on Vetter and found “presumptive probation does not apply because there is an
    exception because the offense involved a dangerous weapon in this case, which was
    your vehicle.” The court sentenced Christensen to three years in jail with all but 360
    days suspended for three years followed by supervised probation on the class C felony
    charge, and a concurrent sentence of 360 days in jail with 360 days suspended for two
    years after his release from incarceration followed by supervised probation on the
    class A misdemeanor charge.
    II
    [¶6]   Christensen argues the district court erred in finding he committed a crime
    while using a dangerous weapon and the court misinterpreted the presumptive
    probation statute in sentencing him to jail.
    [¶7]   Our standard for reviewing criminal sentences is well established:
    We have explained that “[o]ur appellate review of a criminal
    sentence is very limited.” State v. Ennis, 
    464 N.W.2d 378
    , 382 (N.D.
    1990).
    “A trial judge is allowed the widest range of discretion in fixing
    a criminal sentence; this court has no power to review the
    discretion of the sentencing court in fixing a term of
    imprisonment within the range authorized by statute. Appellate
    review of a criminal sentence is generally confined to whether
    the [district] court acted within the sentencing limits prescribed
    2
    by statute, or substantially relied upon an impermissible factor.
    Statutory interpretation, however, is a question of law fully
    reviewable on appeal.”
    State v. Murphy, 
    2014 ND 202
    , ¶ 15, 
    855 N.W.2d 647
     (quoting State v. Corman, 
    2009 ND 85
    , ¶ 15, 
    765 N.W.2d 530
    ).
    [¶8]   The presumptive probation statute, N.D.C.C. § 12.1-32-07.4, which requires
    a sentence of probation unless an exception applies, provides in relevant part:
    1.       The sentencing court shall sentence an individual who has pled
    guilty to, or has been found guilty of, a class C felony offense or
    class A misdemeanor offense to a term of probation at the time
    of initial sentencing, except for an offense involving domestic
    violence; an offense subject to registration under section 12.1-
    32-15 [sexual offenders]; an offense involving a firearm or
    dangerous weapon, explosive, or incendiary device; or if a
    mandatory term of incarceration is required by law.
    (Emphasis added.)
    [¶9]   We give the language of a criminal statute its plain, ordinary and commonly
    understood meaning. See State v. Trevino, 
    2011 ND 232
    , ¶ 21, 
    807 N.W.2d 211
    . It
    is undisputed that this case does not implicate an offense involving domestic violence,
    sexual offender registration, or mandatory terms of incarceration. Although the
    parties offer their varying interpretations of the Vetter decision, that case is irrelevant
    here based on the offenses under which Christensen was charged. It is clear from the
    record that Christensen was not charged with, nor did he plead guilty to, any “offense
    involving a . . . dangerous weapon” under N.D.C.C. § 12.1-32-07.4(1). See N.D.C.C.
    § 12.1-32-02.1. The plain language of the presumptive probation statute does not
    permit a district court to change the nature of an offense to which a defendant has pled
    guilty to, or been found guilty of, for sentencing purposes. As a matter of law, the
    “dangerous weapon” exception to the presumptive probation statute does not apply
    in this case.
    [¶10] The district court’s erroneous conclusion that the dangerous weapon exception
    applied to negate the requirements of the presumptive probation statute was an
    impermissible factor substantially relied upon by the court in sentencing Christensen.
    3
    III
    [¶11] We do not address other arguments raised because they are either unnecessary
    to the decision or are without merit. Because the district court substantially relied
    upon an impermissible factor in sentencing Christensen to jail, we vacate the sentence
    and remand for resentencing.
    [¶12] Lisa Fair McEvers
    Daniel J. Crothers
    Jerod E. Tufte
    Jon J. Jensen
    I concur in the result.
    Gerald W. VandeWalle, C.J.
    4
    

Document Info

Docket Number: 20180156

Judges: McEvers, Lisa K. Fair

Filed Date: 1/15/2019

Precedential Status: Precedential

Modified Date: 3/13/2019