State v. Everett

785 N.W.2d 262 (2010) 2010 ND 129

STATE of North Dakota, Plaintiff and Appellee
v.
James Michael EVERETT, Defendant and Appellant.

No. 20090386.

Supreme Court of North Dakota.

July 13, 2010.

Peter D. Welte, State's Attorney, and Sean B. Kasson, third-year law student, Grand Forks, N.D., for plaintiff and appellee; submitted on brief.

Kent M. Morrow, Bismarck, N.D., for defendant and appellant; submitted on brief.

PER CURIAM.

[¶ 1] James Michael Everett appeals from an order revoking his probation and resentencing him to five year's incarceration with one year suspended. On appeal, Everett argues the trial court abused its discretion by revoking his probation. He argues the trial court should have made findings that incarceration was necessary under ABA Standards Relating to Probation, § 5.1(a). Everett is requesting this Court to review his sentence in the context of whether he should have received probation or incarceration. Appellate review of a sentence focuses only on whether the trial court "acted within the limits prescribed by statute, or substantially relied on an impermissible factor." State v. Wardner, 2006 ND 256, ¶ 27, 725 N.W.2d 215; see State v. Ennis, 464 N.W.2d 378, 382 (N.D.1990) ("On appeal of a claim that a sentence is excessive or incorrect, this court has no power to review the discretion of a sentencing court in fixing a term of imprisonment within the range authorized by statute."). Because the trial court had the discretion to sentence Everett to incarceration and nothing in the record indicates the trial court relied on impermissible sentencing factors, we affirm under N.D.R.App.P. 35.1(a)(4) and (7).

[¶ 2] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, DANIEL J. CROTHERS, DALE V. SANDSTROM, and CAROL RONNING KAPSNER, JJ., concur.