State v. Brown , 2023 ND 97 ( 2023 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
MAY 30, 2023
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2023 ND 97State of North Dakota, Plaintiff and Appellee
v.
Alvin Henry Brown, Jr., Defendant and Appellant
No. 20220315
Appeal from the District Court of Ramsey County, Northeast Judicial District,
the Honorable Donovan J. Foughty, Judge.
AFFIRMED.
Opinion of the Court by Tufte, Justice, in which Chief Justice Jensen and
Justices McEvers and Bahr joined. Justice Crothers filed a specially concurring
opinion.
Maren H. Halbach, Assistant State’s Attorney, Devils Lake, N.D., for plaintiff
and appellee; submitted on brief.
Kiara C. Kraus-Parr, Grand Forks, N.D., for defendant and appellant.
State v. Brown
No. 20220315
Tufte, Justice.
Alvin Brown appeals from an order revoking probation. Brown argues
the district court erred by revoking his probation without giving him notice of
the allegations against him and by making inadequate findings. We affirm.
I
In 2020, Brown pled guilty to two counts of endangerment of a child, a
class C felony. The district court sentenced him to a term of incarceration
followed by two years of supervised probation.
In July 2022, Brown’s probation officer petitioned for revocation of his
probation, alleging a series of violations including failing to report to the
probation office, failing to attend treatment, using illegal substances, drinking
alcohol, and leaving the re-entry center while intoxicated. At the August 2022
hearing, Brown admitted to committing all five violations.
The district court entered an order after the August hearing titled Order
for 120 Day Review. Paragraph 3 of the Order specifically finds, by a
preponderance of the evidence, Brown violated the conditions of his probation
as stated in the five allegations of the Petition. The Order continues:
¶4. The Court having found the Defendant in violation of his
sentence, and the Defendant having no legal reason to give why
sentence should not be pronounced, the sentence which the Court
shall impose upon the Defendant:
JUDGMENT AND COMMITAL under Chapter 12.1-
32[,] NDCC;
¶5. IT IS THE ORDER AND JUDGMENT of this Court that this
matter be set for a 120 day review. The Defendant shall remain on
supervised probation . . . . The Defendant shall be on SCRAM with
zero tolerance for alcohol or drug usage. . . .
(Bold retained, emphasis added.)
1
About three weeks after the August hearing, the district court issued a
bench warrant for Brown’s arrest for absconding from the Lake Region Reentry
Center. The State charged Brown with escape in case number 36-2022-CR-579.
Brown pled guilty to the charge and was sentenced to incarceration for a year
and a day. On September 27, 2022, at Brown’s request the court held the 120-
day review hearing previously set for December 1. The State recommended
that Brown serve the balance of his five-year term. Brown acknowledged his
sentence would run consecutively to the sentence for escape and would extend
approximately four years. He took responsibility for his actions and did not
provide an alternative sentencing recommendation. After the hearing, the
court issued an order revoking Brown’s probation and resentencing him to a
term of five years of incarceration with credit for time served, running
consecutively to the escape charge.
II
Brown argues the district court erred by revoking his probation and
resentencing him without providing him notice of the alleged violations and by
making inadequate findings. We review the district court’s factual finding of a
probation violation under the clearly erroneous standard and its decision that
revocation of probation was warranted under the abuse of discretion standard.
State v. Wardner, 2006 ND 256, ¶¶ 19, 26, 725 N.W.2d 215. “A finding of fact
is clearly erroneous when it is induced by an erroneous view of the law, when
there is no evidence to support it, or if, although there is some evidence to
support it, on the entire evidence, the court is left with a definite and firm
conviction that a mistake has been made.” Id. at ¶ 19. “A district court abuses
its discretion when it acts in an arbitrary, unreasonable, unconscionable, or
capricious manner, or if its decision is not the product of a rational mental
process leading to a reasoned determination, or if it misinterprets or
misapplies the law.” Id. at ¶ 26.
A
Brown contends there was no pending petition to revoke his probation at
the time of the September revocation hearing and thus he did not receive notice
of the allegations against him. Brown misapprehends the effect of the August
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hearing and order. At the August hearing, Brown admitted to committing the
five violations contained in the July petition for revocation. In its August order,
the district court found Brown violated the terms of his probation and ordered
a “120 day review.” During the review period, Brown was ordered to remain on
supervised probation and wear an alcohol-monitoring bracelet. The court set
the “120 day review hearing” for December, but it did not revoke Brown’s
probation at the August hearing or issue a final order disposing of the petition.
Under N.D.C.C. § 12.1-32-07(6), the district court is authorized to modify
or enlarge the conditions of probation:
The court, upon notice to the probationer and with good cause, may
modify or enlarge the conditions of probation at any time before
the expiration or termination of the period for which the probation
remains conditional. If the defendant violates a condition of
probation at any time before the expiration or termination of the
period, the court may continue the defendant on the existing
probation, with or without modifying or enlarging the conditions,
or may revoke the probation and impose any other sentence that
was available under section 12.1-32-02 or 12.1-32-09 at the time of
initial sentencing or deferment.
Instead of revoking Brown’s probation at the August hearing, the court
continued Brown’s existing probation, modifying or enlarging the conditions,
which included the condition of wearing an alcohol-monitoring bracelet.
After Brown requested the 120-day review hearing be held earlier, the
district court held the final revocation hearing in September. At the September
hearing, the court revoked Brown’s probation on the basis of the allegations
contained in the July petition. Because the court had already accepted Brown’s
admissions to those five violations during the August hearing and found Brown
violated his conditions of probation in its August order, the court properly
sentenced Brown at the September hearing. Without objection to this
procedure, the court sentenced Brown in accordance with the State’s
recommendation to five years less time served, running consecutively with the
escape charge. Both hearings and orders pertained to the same petition and
the same violations of probation.
3
The confusion regarding the August Order for 120 Day Review is created
by the phrase “the sentence which the Court shall impose” when the court only
ordered a review hearing. The order entered after the September hearing is
titled Order Revoking Probation. Paragraph 3 of the Order Revoking Probation
notes the district court found at the August hearing Brown violated the
conditions of his probation as stated in the five allegations of the Petition. The
court made no finding Brown violated the conditions of his probation by
absconding from the Lake Region Reentry Center. The court then proceeded to
revoke Brown’s original sentence and resentence him.
When the Order for 120 Day Review and the Order Revoking Probation
are read together and in the context of the August and September hearings, it
is clear the district court did not resentence Brown at the August 2022 hearing.
It is also clear the sentence revocation and resentencing at the September 2022
hearing was based on the probation violations alleged in the Petition and
admitted by Brown and found by the court at the August 2022 hearing. Thus,
contrary to Brown’s argument, he received notice of the alleged probation
violations.
The United States Supreme Court has held that under the Due Process
Clause of the Fourteenth Amendment a “probationer is entitled to written
notice of the claimed violations of his probation.” Black v. Romano, 471 U.S.
606, 612 (1985); see also State v. Ennis, 464 N.W.2d 378, 384-85 (N.D. 1990).
Under N.D.R.Crim.P. 32(f)(3)(A), the hearing on the revocation of probation
“must be in open court with . . . a prior written notice of the alleged violation
given to the probationer.” We conclude the petition for revocation satisfied the
notice requirements and Brown received notice of the allegations against him.
B
Brown argues the district court failed to make adequate findings
warranting revocation of probation. “If the probationer contests the violation,
the prosecution must establish the violation by a preponderance of the
evidence.” N.D.R.Crim.P. 32(f)(3)(B). Brown did not contest the five violations
of his probation—he admitted to them. The court accepted his admissions and
found he violated his conditions of probation. At the September revocation
4
hearing, Brown did not recommend a sentence to the court or argue for leniency
after the State recommended that he serve the balance of his 5-year term. The
September order revoked Brown’s probation and resentenced him to a term of
five years of incarceration with credit for time served, running consecutively
to the escape charge. We conclude the court made adequate findings of fact and
did not abuse its discretion by revoking Brown’s probation and resentencing
him to the balance of his term of imprisonment, less time served.
III
We affirm the order revoking probation.
Jon J. Jensen, C.J.
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
Crothers, Justice, specially concurring.
Brown argues the order on appeal was not entered when a petition to
revoke probation was pending before the district court, and the district court
erred by revoking Brown’s probation without him receiving notice as required
by law. The majority concludes, and I agree, both the August and September
hearings pertained to the July petition and the same probation violations.
Majority opinion, ¶ 11. I write separately to express concern over the district
court’s use of a “review hearing” process that could enable the use of one
petition to stretch a court’s authority to modify or revoke probation until the
limits set by law are reached. See N.D.C.C. § 12.1-32-06.1 (length and
termination of probation).
Section 12.1-32-07(6), N.D.C.C., addresses revocation of probation and
provides the district court with broad authority to modify or revoke probation:
The court, upon notice to the probationer and with good cause, may
modify or enlarge the conditions of probation at any time before
the expiration or termination of the period for which the probation
remains conditional. If the defendant violates a condition of
5
probation at any time before the expiration or termination of the
period, the court may continue the defendant on the existing
probation, with or without modifying or enlarging the conditions,
or may revoke the probation and impose any other sentence that
was available under section 12.1-32-02 or 12.1-32-09 at the time of
initial sentencing or deferment.
The purpose of N.D.C.C. § 12.1-32-07(6) is to provide the sentencing
court with the ability to monitor a probationer’s status, and adjust the sentence
as necessary. We have noted, “A sentence which includes probation is not final,
and section 12.1-32-07(6), N.D.C.C., is intended to provide the trial court with
a flexible alternative to monitor the defendant’s conduct while on probation.”
Davis v. State, 2001 ND 85, ¶ 11, 625 N.W.2d 855. The flexibility “reflects the
need to alter the defendant’s sentence in light of the fact that the court’s initial
sentence of probation was not effective and must be altered.” Id. (citation
omitted). “Notwithstanding the fact that a sentence to probation subsequently
can be modified or revoked, a judgment that includes such a sentence
constitutes a final judgment for all other purposes.” N.D.C.C. § 12.1-32-06.1(8).
Here, the August hearing transcript demonstrates the district court’s
concern about Brown’s ability to maintain sobriety and complete his sentence
without incarceration. The district court offered Brown the opportunity to
avoid prison by not immediately granting the State’s July petition to revoke
probation. The district court instead imposed new conditions, including
Brown’s placement in a reentry facility and being “eligible to have an alcohol
and drug evaluation, eligible to attend treatment and other programming
deemed appropriate by his probation officer. The Defendant shall be on
SCRAM with zero tolerance for alcohol or drug usage.” As we hold here, the
law permitted the district court’s actions. But our holding should not be read
to endorse the actions as a model of how probation modification should be
handled.
Rather than continuing modified probation without expressly saying so,
and instead setting a 120-day review hearing, the better practice would have
been for the district court to rule on the State’s petition for revocation when it
issued the August order. By promptly ruling on the petition, docket currency is
maintained, and Brown could have timely appealed if he was dissatisfied with
6
the new terms and conditions of probation. See State v. Causer, 2004 ND 75, ¶
23, 678 N.W.2d 552 (“The defendant’s statutory right of appeal includes the
right to appeal from an order revoking probation. See N.D.C.C. §§ 29-28-03 and
29-28-06; State v. Vondal, 1998 ND 188, ¶¶ 27, 29, 585 N.W.2d 129.”). Timely
ruling on the July petition and requiring a new petition for subsequent alleged
violations also would have afforded Brown additional notice and adequate due
process at the later hearing to revoke his probation and sentence him to the
remainder of his 5-year sentence.
Daniel J. Crothers
7