State v. Comes , 2019 ND 290 ( 2019 )

Filed 12/12/19 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2019 ND 290State of North Dakota, Plaintiff and Appellee
v.
Marlon Leon Comes, Defendant and Appellant
No. 20190213
Appeal from the District Court of Ramsey County, Northeast Judicial District,
the Honorable Donovan J. Foughty, Judge.
AFFIRMED.
Opinion of the Court by Jensen, Justice.
Kari M. Agotness, State’s Attorney, Devils Lake, ND, for plaintiff and appellee.
Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.
State v. Comes
No. 20190213
Jensen, Justice.
[¶1] Marlon Comes appeals from a Second Amended Criminal Judgment,
asserting the judgment imposes an illegal sentence. Comes argues the
sentence illegally postpones his eligibility for parole beyond 85% of his life
expectancy at the time of his sentencing. We affirm.
I
[¶2] On July 22, 1996, Comes pleaded guilty to a class AA felony charge of
murder and a class A felony charge of robbery. On October 18, 1996, Comes
was sentenced to life imprisonment with the possibility of parole on the murder
charge and a concurrent ten years imprisonment on the Robbery charge, with
credit for 307 days he had served in custody pending the disposition of his case.
II
[¶3] In 2018 the Department of Corrections and Rehabilitation [DOCR], in
conjunction with considering when Comes would be eligible for parole,
requested the district court amend the judgment to include a calculation of
Comes’ life expectancy as of the date of sentencing. Pursuant to the DOCR’s
request, the district court issued an amended judgment on August 7, 2018,
incorporating a life expectancy calculation. Comes appealed, and this Court
remanded the case to the district court after concluding Comes had not been
provided with the required notice prior to the amendment of the judgment.
[¶4] On remand, the district court calculated Comes’ life expectancy and
found that Comes’ life expectancy at the time of sentencing was 23.8 years.
Neither the State nor Comes has challenged the method of calculation used
by the district court or the result of the calculation.
[¶5] On remand, the district court also found N.D.C.C. § 12.1-32-01(1) applied
to Comes’ sentence. Section N.D.C.C. § 12.1-32-01(1) provides that individuals
who are sentenced to life imprisonment with the possibility of parole are
ineligible to have their sentence considered by the parole board until thirty
1
years after admission to the penitentiary, less sentence reduction earned for
good conduct. The Second Amended Criminal Judgment provides Comes
would be eligible for consideration by the parole board after thirty years of
imprisonment, less sentence reduction earned for good conduct. Comes
appealed the second amended judgment and argues the sentence is illegal
because his eligibility for parole should be determined by N.D.C.C. § 12.1-32-
09.1 and be equal to 85% of his life expectancy calculation of 23.8 years, less
any sentence reduction earned for good conduct.
III
[¶6] The district court found Comes’ sentence “was subject to two qualifying
statutory conditions”: N.D.C.C. § 12.1-32-09.1 and N.D.C.C. § 12.1-32-01(1).
Section 12.1-32-09.1 provides that for certain offenses, an individual who
receives a sentence of imprisonment is not eligible for release from confinement
until eighty-five percent of the sentence has been served or the sentence is
commuted. As noted above, N.D.C.C. § 12.1-32-01(1) provides that individuals
who are sentenced to life imprisonment with the possibility of parole are
ineligible to have their sentence considered by the parole board for thirty years
after admission to the penitentiary.
[¶7] Comes argues N.D.C.C. § 12.1-32-09.1 is the more specific of the two
statutory provisions and, pursuant to N.D.C.C. § 1-02-07, the more specific
provision prevails. When reviewing statutory provisions, we attempt to give
meaning to every word, phrase, and sentence, and, if necessary, we attempt to
reconcile and harmonize potentially conflicting provisions. State v. Kostelecky,
2018 ND 12, ¶ 8, 906 N.W.2d 77. When a provision at issue is unambiguous,
we look to the plain language of statute to ascertain its meanings. Id. (citing
N.D.C.C. § 1-02-05).
[¶8] Section 12.1-32-01(1) provides “a person found guilty of a class AA felony
and who receives a sentence of life imprisonment with parole, shall not be
eligible to have that person’s sentence considered by the parole board for thirty
years, less sentence reduction earned for good conduct, after that person’s
admission to the penitentiary.” Section 12.1-32-09.1 provides an individual
convicted of certain crimes “and who receives a sentence of imprisonment is
2
not eligible for release from confinement on any basis until eighty-five percent
of the sentence imposed by the court has been served or the sentence is
commuted.” Subsection 2 of N.D.C.C. § 12.1-32-09.1 references life sentences
with the possibility of parole, confirming Comes’ assertion it can have
application to sentences like the sentence imposed on him.
[¶9] Comes has failed to demonstrate either N.D.C.C. § 12.1-32-09.1 or
N.D.C.C. § 12.1-32-01(1) is ambiguous and we conclude the two provisions can
be reconciled and harmonized. How the two statutes interact can be
demonstrated by comparing two offenders sentenced to life with the possibility
of parole, one with a life expectancy more than thirty years and one with a life
expectancy of less than thirty years. The floor created by N.D.C.C. § 12.1-32-
01(1) insures the offender with a life expectancy less than thirty years will not
be eligible for parole until the minimum thirty year period has run. The second
offender, with a life expectancy more than thirty years, would have a floor set
by N.D.C.C. § 12.1-32-09.1, delaying eligibility until the offender had served
85% of the offender’s life expectancy, a period greater than thirty years. The
two statutes can be reconciled and harmonized.
[¶10] We also note the current version of N.D.C.C. § 12.1-32-09.1(3)
contemplates the factual circumstances of this case. Subsection 3 reads as
follows: “Notwithstanding this section, an offender sentenced under subsection
1 of section 12.1-32-01 may not be eligible for parole until the requirements of
that subsection have been met.” Subsection 3 establishes a floor of thirty years
for individuals receiving a sentence of life with the possibility of parole.
[¶11] Comes received a sentence of life with the possibility of parole. We
conclude N.D.C.C. § 12.1-32-09.1 and N.D.C.C. § 12.1-32-01(1) can be
reconciled and harmonized by applying a floor of thirty years, less sentence
reduction earned for good conduct, before Comes is eligible for consideration
3
for parole because his life expectancy at the time of sentencing was less than
thirty years. We affirm the Second Amended Criminal Judgment.
[¶12] Jon J. Jensen
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Gerald W. VandeWalle, C.J.
4