State v. Mora , 2000 N.D. LEXIS 190 ( 2000 )

VANDE WALLE, Chief Justice.

[¶ 1] Juan Raul Mora appeals from a criminal judgment of conviction upon a plea of guilty to delivery of a controlled substance. We affirm, concluding the district court properly entered sentence.

[¶ 2] Mora was charged with delivering cocaine, a schedule II controlled substance, to an undercover police officer on September 16, 1998. Mora had two prior convictions in Minnesota for delivery of methamphetamine, which is also a schedule II controlled substance.

[II3] Section 19-03.1-23, N.D.C.C., prohibits the delivery of a controlled substance and provides:

1.... Any person who violates this subsection with respect to:

a. A controlled substance classified in schedule I or II which is a narcotic drug, or methamphetamine, is guilty of a class A felony and must be sentenced:

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(3) For a third or subsequent offense, to imprisonment for twenty years.

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5. A violation of this chapter or a law of another state or the federal government which is equivalent to an offense under this chapter committed while the offender was an adult and which resulted in a plea or finding of guilt must be considered a prior offense under subsections 1, 3, and 4. The prior offense must be alleged in the complaint, information, or indictment. (Emphasis supplied).

[¶ 4] The issue in this case centers on the underlined portion of the statute because the information charging Mora with this offense does not specifically mention the two prior Minnesota convictions. However, the penalty section at the bottom of the information states:

Penalty Section:

Count 1: 19 — 03.1—23(l)(a)(3)

Class A Felony

(Mandatory Minimum 20 years Imprisonment)

[¶ 5] Mora, with counsel, appeared before the district court and pleaded guilty to the offense. Because Mora speaks Spanish, an interpreter was used at the proceeding. The district court addressed the minimum mandatory sentence numerous times throughout the proceedings. The district court stated, “It is alleged by the State that because of your prior record if you are convicted of this offense there is a minimum mandatory sentence of 20 years imprisonment which the court must impose.” Mora responded that he understood the charge and the maximum and minimum penalty.

[¶ 6] Later, the court stated, “If you plead guilty the court must impose any minimum mandatory sentence required by law.” Mora again indicated that he understood the court’s statements. When the court inquired about a sentence recommendation, the following exchange occurred:

THE COURT: And you understand that the State is alleging that you have two prior delivery offenses which would result in a minimum mandatory penalty? THE DEFENDANT: Yes.

THE COURT: And in this case the minimum mandatory penalty alleged is 20 years in prison, you understand?

THE DEFENDANT: Yes.

THE COURT: To the charge of delivery of a controlled substance, a Class A Felony, alleged to have occurred on September 16,1998, how do you plead?

THE DEFENDANT: Guilty.

[¶ 7] At sentencing, Mora argued the twenty-year mandatory minimum sentence under N.D.C.C. § 19-03.1-23(l)(a) (3) should not apply because the State had failed to allege the prior offenses in the information as required by N.D.C.C. § 19-03.1-23(5). The district court concluded the twenty-year mandatory minimum sentence applied, and sentenced Mora accordingly.

[¶ 8] On appeal, Mora argues the information must specifically identify the two prior convictions the State is relying upon to satisfy the requirement of N.D.C.C. § 19-03.1-23(5). The' state argues the general reference to the statute and the mandatory minimum sentence in the information’s penalty section was sufficient to put Mora on notice the State was relying on prior convictions. The State, at oral argument, adVised the Court that the penalty provision format used here was not an oversight; rather," the penalty provision format used here is the regular practice in the Cass County State’s Attorney’s office.

[¶ 9] Counsel for Mora conceded Mora was fully aware of the maximum and minimum penalties of the charge. At the plea hearing, Mora acknowledged the State intended to use the prior,convictions to seek the mandatory minimum sentence. Also, the State had provided Mora certified copies of the records related to his prior convictions during discovery. Mora does not contest the voluntariness of his plea but argues the district court erred in imposing a mandatory minimum sentence of twenty years imprisonment.

[¶ 10] The express language of N.D.C.C. § 19-03.1-23(5) is clear: prior offenses must be alleged in the information or indictment. See N.D.C.C. § 1-02-05 (stating, “When the wording of a statute is clear and free of all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.”). Unless and until the legislature amends the statute, allegation's of the specific prior convictions must be made in the information.

[¶ 11] We do not believe the Legislature required an allegation in the information as an idle act. Rather, the State must allege and prove that the defendant was convicted of specific prior offenses. The statute requires, in plain language, that the prior offense must be alleged, not that the penalty section must be alleged, which is what the information here does. It is possible for a defendant to be aware the State is alleging commission of prior offenses and seeking a mandatory sentence under the statute without being aware of the specific offenses upon which the State relies. Thus, this is an issue of notice, one with constitutional underpinnings. State v. Gahner, 413 N.W.2d 359 (N.D.1987).

[¶ 12] Although we view the allegation of a former conviction more liberally because it is not the offense for which the defendant is being tried, the time and place of the former conviction should be stated. State v. Bloomdale, 21 N.D. 77, 128 N.W. 682, 684 (1910). This enables the defendant to ascertain the crime which the State claims he was formerly convicted of. Id. A defendant might seek a bill of particulars under N.D.R.Crim.P. (7)(f) or other discovery under N.D.R.Crim.P. 16, but the defendant is not under obligation to do so. The statute places the affirmative burden on the State to allege the prior offense upon which it relies for the imposition of the mandatory sentence. The State does not meet that burden by the penalty format it uses here.

[¶ 13] In State v. Gielen, 54 N.D. 768, 210 N.W. 971, 975 (1926), the Court stated:

It may be said that while the information in this case, under the circumstances presented by the record on this appeal, is held sufficient to sustain the verdict found and the judgment of conviction based thereon, we do not approve of such information as a model pleading, nor do we express any opinion as to whether the allegations, as to the former conviction, would have been sufficient as against a proper and timely objection in the trial court.

The case before us demonstrates that those in charge of criminal prosecutions should exercise the greatest possible care in the preparation of criminal infor-mations. The numerous practice questions which arise in criminal cases are a burden upon the courts which might well be obviated, and which would be obviated if the attorneys for the prosecution exercised that care in the performance of their labors which the importance thereof justifies and requires.

The words remain true today.

[¶ 14] If the record did not reflect actual knowledge on Mora’s part, we would reverse because of the inadequacy of the allegations of the information. But, the transcript does reveal, and his counsel conceded, Mora was aware the State intended to use prior convictions to seek the mandatory minimum sentence and the State provided Mora with certified copies of the record relating to his prior convictions during discovery.

[¶ 15] Under N.D.R.Crim.P. 52, i.e., any “error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” Because Mora had notice the State was alleging a prior offense and of the specific offenses it was alleging, no substantial right was affected. State v. Gielen, 210 N.W. at 975 (holding there was no claim and no basis for a claim of surprise concerning allegation of a former conviction); State v. Bloomdale, 21 N.D. 77, 128 N.W. 682 (1910) (holding allegation of former conviction is sufficient if it enables plaintiff to prepare for trial of whether he is the convict).

[¶ 16] The dissent cites several Federal decisions which have reached what appears to be the opposite conclusion. But, we have not adopted a strict compliance standard. Rather, we have interpreted the statute as a notice requirement to which the harmless error analysis applies. Cf. State v. Anderson, 303 N.W.2d 98 (N.D.1981) (holding probationer who did not receive notice of specific offenses she was believed to have committed but had notice of probation terms state’s attorney believed were violated and of the facts constituting violation was not harmed). The analysis in the Federal decisions appears to rest on a special sentencing relationship between the Federal courts and Congress, but that analysis does not supersede our harmless-error jurisprudence.

[¶ 17] The judgment of conviction is affirmed.

[¶ 18] CAROL RONNING KAPSNER, WILLIAM A. NEUMANN, JJ., concur.