State v. Neugebauer , 2023 ND 68 ( 2023 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
APRIL 13, 2023
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2023 ND 68State of North Dakota, Plaintiff and Appellee
v.
Michael D. Neugebauer, Defendant and Appellant
No. 20220174
Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable Bobbi Brown Weiler, Judge.
AFFIRMED.
Opinion of the Court by McEvers, Justice, in which Chief Justice Jensen and
Justices Crothers and Tufte joined. District Judge El-Dweek filed a concurring
opinion.
David L. Rappenecker, Assistant State’s Attorney, Bismarck, ND, for plaintiff
and appellee.
Steven Balaban, Bismarck, ND, for defendant and appellant.
State v. Neugebauer
No. 20220174
McEvers, Justice.
[¶1] Michael Neugebauer appeals from a district court order denying his
motion for a sentence reduction. On appeal, Neugebauer argues the district
court erred in determining N.D.C.C. § 12.1-32-13.1 does not apply retroactively.
We affirm.
I
[¶2] In 1992, Michael Neugebauer was charged with four counts of murder.
Neugebauer pled guilty to all counts and was sentenced to life imprisonment
on each count, running concurrently. On October 5, 2020, Neugebauer moved
for a reduction of his sentence under N.D.C.C. § 12.1-32-13.1 and requested
oral argument under N.D.R.Ct. 3.2. On October 9, 2020, the district court
denied the motion without a hearing, citing this Court’s holding in Garcia v.
State, 2019 ND 103, 925 N.W.2d 442 (holding N.D.C.C. § 12.1-32-13.1 does not
apply retroactively). Neugebauer appealed, and this Court reversed and
remanded for a hearing on the motion, concluding the district court abused its
discretion by ruling on the motion without giving Neugebauer an opportunity
to be heard under N.D.R.Ct. 3.2(a)(3). State v. Neugebauer, 2021 ND 54, ¶ 5,
956 N.W.2d 406.
[¶3] On March 22, 2022, the district court held a hearing on Neugebauer’s
motion. After the hearing, the court again denied his motion, concluding
N.D.C.C. § 12.1-32-13.1 does not apply retroactively. Neugebauer appeals.
II
[¶4] Neugebauer argues N.D.C.C. § 12.1-32-13.1 should apply retroactively.
He acknowledges our holding in Garcia v. State, 2019 ND 103, 925 N.W.2d 442,
but argues its analysis “negates the very essence of N.D.C.C. § 12.1-32-13.1”
and “presumes an idle act by the Legislature.” He also argues the application
of the ameliorative penal legislation exception to the general rule against
retroactivity applies because this case is not lessening punishment; it is simply
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giving an avenue to specific individuals to move the court for a reduction in
sentence.
[¶5] Section 12.1-32-13.1(1), N.D.C.C., provides:
Notwithstanding any other provision of law, a court may reduce a
term of imprisonment imposed upon a defendant convicted as an
adult for an offense committed and completed before the defendant
was eighteen years of age if:
a. The defendant has served at least twenty years in custody
for the offense;
b. The defendant filed a motion for reduction in sentence;
and
c. The court has considered the factors provided in this
section and determined the defendant is not a danger to the
safety of any other individual, and the interests of justice
warrant a sentence modification.
[¶6] Our standard for interpreting a statute is well established:
The interpretation of a statute is a question of law, which is fully
reviewable on appeal. The primary objective in interpreting a
statute is to determine the legislature’s intent, and we look at the
language of the statute first to determine intent. Words in a
statute are given their plain, ordinary, and commonly understood
meaning, unless they are defined by statute or unless a contrary
intention plainly appears. N.D.C.C. § 1-02-02. The letter of a
statute cannot be disregarded under the pretext of pursuing its
spirit when the language of the statute is clear and
unambiguous. N.D.C.C. § 1-02-05. A statute is ambiguous if it is
susceptible to different, rational meanings. Statutes are construed
as a whole and are harmonized to give meaning to related
provisions.
Peterka v. State, 2015 ND 156, ¶ 10, 864 N.W.2d 745.
[¶7] We addressed this issue in Garcia, 2019 ND 103. We ultimately held
that N.D.C.C. § 12.1-32-13.1 does not apply retroactively because retroactive
application would constitute an infringement on the executive pardoning
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power. Garcia, at ¶ 12. We reasoned because Garcia’s sentence was final prior
to enactment of N.D.C.C. § 12.1-32-13.1, retroactive application is barred. Id.
[¶8] Section 1-02-10, N.D.C.C., states no part of the code is retroactive unless
it is expressly declared to be so. However, “[s]ection 1-02-10, N.D.C.C., is a rule
of statutory construction which is ‘subservient to the main rule that the intent
and purpose of the legislature must be given effect.’” Smith v. Baumgartner,
2003 ND 120, ¶ 14, 665 N.W.2d 12 (quoting State v. Davenport, 536 N.W.2d
686, 688 (N.D. 1995)). “[T]here is no need to resort to N.D.C.C. § 1-02-10 to
discern legislative intent if we are able to rationally infer from other sources
that the legislature intended retroactive application of the statute.”
Davenport, 536 N.W.2d at 689. We can discern no such inference here. In this
instance, a review of the legislative history demonstrates the Legislative
Assembly specifically considered retroactivity with testimony supporting both
sides. After passing the House, Representative Lawrence Klemin presented
the bill to the Senate, explaining, “[t]he bill is not expressly stated to be
retroactive and therefore should not be retroactive. See Section 1-02-10 of the
North Dakota Century Code.” Hearing on H.B. 1195 Before the Senate
Judiciary Comm., 65th N.D. Legis. Sess (March 13, 2017) (testimony of
Lawrence Klemin, Representative).
[¶9] Neugebauer was convicted of murder as a juvenile and sentenced to life
imprisonment. Like Garcia, Neugebauer brings his motion for sentence
reduction under N.D.C.C. § 12.1-32-13.1. Notably, Neugebauer’s conviction
includes the possibility of parole. Neugebauer’s convictions were final long
before enactment of this statute. Judgment was entered for the first count of
murder on October 7, 1993, and on January 24, 1994, for counts two through
five. The statute was enacted on August 1, 2017. Therefore, as the Court
explained in Garcia, N.D.C.C. § 12.1-32-13.1 does not apply retroactively. 2019
ND 103, at ¶ 12. Moreover, our interpretation of the statute does not render it
meaningless or allow an idle act. “We construe statutes in a way which does
not render them meaningless because we presume the Legislature acts with
purpose and does not perform idle acts.” Motisi v. Hebron Pub. Sch. Dist., 2021
ND 229, ¶ 13, 968 N.W.2d 191 (citation omitted). In Garcia, this Court
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explained the recent holdings of the United States Supreme Court as to
sentencing a juvenile offender:
The Court held the Eighth Amendment forbids mandatory
sentences of life in prison without the possibility of parole for
juvenile offenders . . . . The Court further explained its decision
did not categorically bar the penalty of life in prison without the
possibility of parole, but it mandates that a sentencer consider a
juvenile offender’s youth and attendant characteristics before
imposing the sentence.
...
The holding of Miller is limited to mandatory sentences of
life in prison without the possibility of parole, and its central
rationale rests on the mandatory nature of the sentence
prohibiting the sentencing court from considering the mitigating
attributes of youth.
Garcia v. State, 2017 ND 263, ¶¶ 19-22, 903 N.W.2d 503 (relying on Miller v.
Alabama, 567 U.S. 460 (2012); Montgomery v. Louisiana, 577 U.S. 190 (2016)).
In Miller and Montgomery, the United States Supreme Court held that
mandatory life-without-parole sentences for juveniles are often
unconstitutional and should only be given in rare circumstances, and
announced factors to be considered when sentencing juveniles. Miller, 567 U.S.
460; Montgomery, 577 U.S. 190. The Court’s Montgomery announcement of
retroactivity “means that because the source of the Miller rule ‘is the
Constitution itself,’ it ‘necessarily pre-exists our articulation of the new rule.”
Garcia, at ¶ 21. Stated plainly, the “rule” is retroactive because it is a
constitutional violation. The constitutional violation only applies to
mandatory life imprisonment without parole for juvenile offenders.
[¶10] These holdings allow for a discretionary sentence of life without parole
“for the rare juvenile offender.” Our Legislative Assembly removed the
unconstitutional mandatory life sentence without parole for juvenile offenders
in N.D.C.C. § 12.1-20-03(4). In enacting N.D.C.C. § 12.1-32-13.1, the
Legislative Assembly also “allows juvenile offenders who have been in state
custody for more than twenty years to seek relief from their sentence” based
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upon factors set forth in Miller and Montgomery. Garcia, 2019 ND 103, ¶ 4.
The statute provides greater relief than Miller and Montgomery, and was not
an idle act by the Legislative Assembly.
III
[¶11] Neugebauer also argues his sentence must be reviewed for compliance
with Miller and Montgomery due to the analysis regarding juvenile offenders
and their diminished culpability.
[¶12] Section 12.1-32-13.1, N.D.C.C., was enacted in response to the United
States Supreme Court cases relating to the constitutionality of punishments
for juveniles sentenced to life terms in prison, such as Miller and Montgomery.
However, the district court reviewed this Court’s holding in Garcia and the
significance of Miller and Montgomery and correctly concluded those cases
dealt with juveniles sentenced to life without the possibility of parole.
Neugebauer was sentenced to life with the possibility of parole and will be
eligible for parole in October of 2027. Given this distinction, a separate
analysis of the cases in question is not necessary. The district court addressed
the constitutionality of Neugebauer’s sentence and correctly concluded
Neugebauer does not qualify for relief under Garcia, Miller or Montgomery.
IV
[¶13] Neugebauer also argues the district court abused its discretion by
denying his motion to reduce his sentence by erroneously weighing the factors
under N.D.C.C. § 12.1-32-13.1. Because the statute does not apply
retroactively, we need not address this argument.
V
[¶14] We have considered the remaining issues and arguments raised by
Neugebauer and conclude them to be either without merit or unnecessary to
our decision. We affirm the district court’s denial of Neugebauer’s motion for
reduction of sentence.
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[¶15] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
El-Dweek, District Judge, concurring.
[¶16] I concur with the majority’s result because the district court thoroughly
reviewed and considered the factors in N.D.C.C. § 12.1-32-13.1(3) and rightly
found that a reduction was unwarranted at the present time. However, I write
separately because N.D.C.C. § 12.1-32-13.1 should not be subject to the general
rule against retroactivity.
[¶17] The majority correctly points out that N.D.C.C. § 1-02-10 “states no part
of the code is retroactive unless it is expressly declared to be so.” Supra, ¶ 8.
However, the Supreme Court recently renewed its long-standing position to
“construe statutes in a way which does not render them meaningless because
we presume the Legislature acts with purpose and does not perform idle acts.”
Larson v. N.D. Workforce Safety and Ins., 2022 ND 118, ¶ 21, 975 N.W.2d 552(citing Christiansen v. Panos, 2022 ND 27, ¶ 9, 969 N.W.2d 709 and Dubois v.
State, 2021 ND 153, ¶ 22, 963 N.W.2d 543 (internal quotation marks omitted)).
[¶18] The majority has concluded because Neugebauer was sentenced before
the enactment of N.D.C.C. § 12.1-32-13.1, he is ineligible to even petition a
court to review his sentence under the statute because of the bar against
retroactivity. This implies that the statute cannot have any effect until at least
the year 2037, or 20 years from the enactment of the statute. It is my opinion
this application of the statute is the very essence of an idle act by the
Legislature. At oral argument, the State rightly conceded the point: the State
argued the Legislature did not have to act for the United States Supreme Court
decisions in Miller and Montgomery to apply in North Dakota. In the face of
this reality, the Legislature still chose to act by enacting N.D.C.C. § 12.1-32-
13.1.
[¶19] I recognize that the Supreme Court has characterized N.D.C.C. § 12.1-
32-13.1 as legislation that lessened punishment in Garcia v. State, 2019 ND
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103, ¶¶ 10-13, 925 N.W.2d 442, and is therefore not retroactive. The Garcia
Court cited State v. Cummings in support of the proposition that “[a] statute
that lessens the punishment for a criminal act cannot be applied to a sentence
if the statute become effective after a conviction is final.” Id. at ¶ 10. However,
Cummings was a case of what sentence should be applied to a Driving Under
Suspension conviction—either 15 days under an old law or 4 days under the
current version. State v. Cummings, 386 N.W.2d 468, 470 (N.D. 1986). That is
distinguishable from a statute at issue here which allows a mechanism by
which a Defendant may apply for a sentence reduction under some very limited
circumstances. The statute does not even provide for any additional mitigating
sentencing factors—all it provides is a mechanism to consider a reduction.
[¶20] Despite the district court finding that the statute did not have
retroactive effect, I concur with the result of the majority because the district
court correctly analyzed the facts of the case in light of N.D.C.C. § 12.1-32-13.1.
[¶21] Daniel S. El-Dweek, D.J.
[¶22] The Honorable Daniel S. El-Dweek, D.J., sitting in place of Bahr, J.,
disqualified.
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