State v. Bearce

                                                                               FILED
                                                                       IN THE OFFICE OF THE
                                                                    CLERK OF SUPREME COURT
                                                                         DECEMBER 15, 2023
                                                                     STATE OF NORTH DAKOTA




                  IN THE SUPREME COURT
                  STATE OF NORTH DAKOTA

                                

State of North Dakota,                                 Plaintiff and Appellant
      v.
Mark Edward Bearce,                                   Defendant and Appellee

                                No. 20230120

Appeal from the District Court of Williams County, Northwest Judicial
District, the Honorable Benjamen J. Johnson, Judge.

AFFIRMED.

Opinion of the Court by Jensen, Chief Justice.

Meredith H. Larson, Assistant Attorney General, Grand Forks, ND, for
plaintiff and appellant; submitted on brief.

Jeff L. Nehring, Williston, ND, for defendant and appellee; submitted on brief.
                              State v. Bearce
                               No. 20230120

Jensen, Chief Justice.

[¶1] The State of North Dakota appeals from an amended judgment
modifying Mark Bearce’s sentence under North Dakota Rules of Criminal
Procedure 35(b). We conclude the district court had jurisdiction to amend the
judgment, but abused its discretion by failing to state the reasons for the
reduction in writing as required by Rule 35(b), N.D.R.Crim.P. However, as
mandated by N.D.C.C. § 29-28-35, our opinion is limited to affirming the
sentence imposed by the court and pointing out the error in the proceeding. We
further conclude the court did not err when reducing Bearce’s sentence without
the victim’s consideration in the absence of the right being asserted by the
victim or other recognized holder of the right. We accordingly affirm the
amended judgment.

                                      I

[¶2] On November 9, 2021, Bearce was charged with six criminal offenses,
including two counts of driving under the influence while causing the death of
another and four counts of reckless endangerment. On October 6, 2022, Bearce
plead guilty to the two counts of driving under the influence in exchange for
dismissal of the four reckless endangerment charges.

[¶3] A sentencing hearing was held on October 18, 2022. Following
arguments by the parties, review of the victim impact statements, and
character letters that were submitted, the district court sentenced Bearce to a
prison term of 12 years for count I, and a prison term of 20 years with 8 years
suspended and a term of 3 years’ probation commencing upon release for count
II. Judgment was entered that same day. The sentences were to be served
consecutively.

[¶4] On December 1, 2022, Bearce filed a motion to amend the criminal
judgment asserting he was not given credit for time served. The State did not
object to Bearce’s motion. The district court resentenced Bearce and entered



                                      1
an amended criminal judgment on December 19, 2022, giving Bearce 15 days
credit for time served on count I which was to run consecutively with count II.

[¶5] On January 10, 2023, Bearce filed a motion under N.D.R.Crim.P. 35(b)
for a reduction of his sentence. Bearce’s motion provided little to no new
information to the district court. The State opposed the Rule 35(b) motion. The
State did not request a hearing on the motion.

[¶6] On April 6, 2023, the district court granted Bearce’s motion and amended
his sentence so that count I and count II run concurrently. The order granting
the reduction did not include reasons for the reduction. A second amended
judgment was entered on April 10, 2023. The State appealed.

                                      II

[¶7] The State argues the district court order reducing Bearce’s sentence was
not issued within the prescribed period of time set out in Rule 35(b),
N.D.R.Crim.P. Rule 35(b), N.D.R.Crim.P., provides in relevant part:

         (1) Time for Reduction. The sentencing court may reduce a
         sentence:
             (A) within 120 days after the court imposes sentence or
             revokes probation[.]

[¶8] The explanatory notes to Rule 35(b), N.D.R.Crim.P., states the period is
not defined as the time in which the motion may be made, but is rather the
time in which the district court may act. In State v. Hanson, this Court noted
“[t]he plain language of N.D.R.Crim.P. 35(b), emphasized in its explanatory
note, means that the failure of a sentencing court to act within 120 days
forecloses its power to reduce a criminal sentence.” 

 (N.D.
1990).

[¶9] The State asserts the calculation for the 120-day period under Rule
35(b), N.D.R.Crim.P., began to run on October 18, 2022, the date of the
sentencing hearing and when judgment was entered. We disagree. The district
court entered an amended judgment giving Bearce credit for time served on




                                      2
December 19, 2022. One hundred and eight days passed from December 19,
2022, to April 6, 2022, the date the court acted on Bearce’s Rule 35(b) motion.

[¶10] Because the district court acted on Bearce’s Rule 35(b) motion within 120
days, the court had the authority to reduce Bearce’s criminal sentence.

                                     III

[¶11] The State argues the district court erred when it reduced Bearce’s
sentence without stating its reasons for the reduction, in writing, as mandated
by Rule 35 of the North Dakota Rules of Criminal Procedure.

[¶12] Rule 35(b)(2), N.D.R.Crim.P., states, “[i]f the sentencing court grants a
sentence reduction, it must state its reasons for the reduction in writing.” The
word “must” in a statute normally indicates a mandatory duty. James Valley
Grain, LLC v. David, 

, 

.

[¶13] We have no record before us or any given reasons or statements by the
district court supporting its issuance of the order reducing Bearce’s sentence.
The sentencing judge, when reducing the sentence under Rule 35, must give
reasons for the reduction. We conclude the court abused its discretion when it
reduced Bearce’s sentence without providing its reasons for doing so in writing
as required by Rule 35(b)(2), N.D.R.Crim.P.

                                      IV

[¶14] Bearce argues N.D.C.C. § 29-28-35 precludes a decision of this Court
from increasing his punishment, any adverse ruling by this Court must affirm
his sentence, and any recognition of an error is limited to an advisory opinion
for the district court. Section 29-28-35, N.D.C.C., reads as follows:

      If the appeal is taken by the state, the supreme court cannot
      reverse the judgment or modify it so as to increase the punishment,
      but may affirm it, and shall point out any errors in the proceedings
      or in the measure of punishment, and its opinion is obligatory on
      the district court as the correct exposition of the law.




                                       3
[¶15] This Court has recently analyzed the interplay between Rule 35(b) and
N.D.C.C. § 29-28-35. See State v. Neilan, 

, 

.

[¶16] In Neilan, the parties appeared at a change of plea hearing. 

. At the hearing, the State detailed a plea agreement which provided
that Neilan would be incarcerated for four years with all but 18 months
suspended. 

 The district court reluctantly accepted the agreement and
sentenced Neilan to the plea terms. Id. at ¶ 3. The next day, the court signed
and entered judgment consistent with the terms of the plea agreement. Id. at
¶ 4. Later that day, the court initiated its own N.D.R.Crim.P. 35(b) motion to
consider reducing the sentence from incarceration to probation. Id. The court
directed the parties to file their respective responses within a day. Id.
Following briefing by the parties, the court entered an order reducing Neilan’s
sentence from a term of incarceration to probation. Id. at ¶ 6.

[¶17] The State appealed, arguing the district court’s acceptance of the plea
agreement under N.D.R.Crim.P. 11 precluded the court from thereafter
unilaterally reducing the sentence under N.D.R.Crim.P. 35. Neilan, 

. While we disagreed with the State’s argument, we concluded the
court intended to circumvent the plea agreement and, thus, the court abused
its discretion in accepting the plea agreement and subsequently modifying the
agreed upon sentence. Id. at ¶ 20.

[¶18] The amended judgment in Neilan eliminated 18 months of incarceration
and increased the amount of suspended sentence by 18 months. Neilan, 

. Reversal of the amended judgment would have increased
Neilan’s punishment. 

 As such and as mandated by N.D.C.C. § 29-28-35, our
opinion in Neilan was limited to affirming the sentence imposed by the district
court and pointing out the error in the proceeding. Id.

[¶19] “Section 29-28-35, N.D.C.C., is unambiguous. This Court is precluded
from reversing or modifying a criminal judgment in a manner which would
increase the punishment imposed on a defendant.” Neilan, 

.

[¶20] Like Neilan, the second amended judgment in this matter eliminated
twelve years of incarceration. The reversal of the second amended judgment

                                      4
would increase Bearce’s punishment. Accordingly, we are precluded from
reversing or modifying a criminal judgment in a manner which would increase
the punishment imposed on a defendant.

[¶21] Section 29-28-07(4), N.D.C.C., provides the State with the right to
appeal. However, once a judgment has been entered in the district court,
N.D.C.C. § 29-28-35 limits what this Court can do in response to an appeal by
the State. We conclude N.D.C.C. § 29-28-35 requires this Court to affirm the
judgment.1

                                                 V

[¶22] The State argues the district court committed obvious error when it
granted Bearce’s N.D.R.Crim.P. 35(b) motion without providing notification to
the victims or other individuals identified within N.D. Const. art. I, § 25(1)(q)
and giving them an opportunity to appear. The State concedes it did not raise
this issue at the district court level. “Issues raised for the first time on appeal
will not be addressed unless the alleged error rises to the level of obvious error.”
State v. Aune, 

, 

. Under obvious error review,
the burden falls on the appellant to establish obvious error by showing: (1)
error, (2) that is plain, and (3) that affects substantial rights. State v. Doppler,

, 

. “To affect substantial rights, a plain error
must have been prejudicial, or have affected the outcome of the proceeding.”
State v. Wegley, 

, 

.

[¶23] The first inquiry under the framework for obvious error is whether an
error occurred. See State v. Thompson, 

, 

. If
requested by the victim, N.D. Const. art. I, § 25 provides a victim with the right
to be informed of and to participate in matters that arise post-judgment. N.D.



1 Bearce also argued on appeal that the district court’s original sentence was illegal as contemplated

by N.D.R.Crim.P. 35(a). Our decision rests on the discretionary power of the court to modify a sentence
under N.D.R.Crim.P. 35(b). We leave unresolved any question regarding the interplay between Rule
35(a) and N.D.C.C. § 29-28-35.




                                                  5
Const. art. I, § 25(1)(q). Under N.D. Const. art. I, § 25(4), “If a victim is
deceased, . . . the victim’s spouse, parent, grandparent, child, sibling,
grandchild, or guardian, and any person with a relationship to the victim that
is substantially similar to a listed relationship, may also exercise these rights.”

[¶24] The record before us indicates that family members of the deceased
submitted both written and oral victim impact statements during the
sentencing phase of this matter. The State appears to argue that participation
in the sentencing phase alone invokes N.D. Const. art. I, § 25(1)(q) rights. None
of the individuals expressly indicated they intended to exercise their rights
provided within section 25(1)(q). “Section 25 does not provide for the court’s
enforcement of a crime victim’s rights on behalf of a deceased victim absent the
assertion by an individual listed under § 25(4).” State v. Kollie, 

, 

, reh’g denied (Sept. 6, 2023) (citing to State v.
Montgomery, 

, 

, 

(cautioning courts to refrain from reading more into crime victims’ rights
beyond the language of the constitutional provisions)).

[¶25] Neither the district court nor the State may independently invoke
section 25 rights on behalf of a victim or other identified individuals. We have
not previously been asked to determine if an appearance without an express
assertion of the section 25 rights is sufficient to trigger the right to the notice
of future proceedings. To demonstrate there has been an obvious error, there
must be a clear deviation from prior precedent. State v. Dockter, 

, 

. Absent prior precedent establishing an appearance alone
is sufficient to trigger section 25 rights with regard to future proceedings, we
conclude the court did not err when it reduced Bearce’s sentence without their
consideration. Additionally, as noted above, we are “precluded from reversing
or modifying a criminal judgment in a manner which would increase the
punishment imposed on a defendant.” Neilan, 

. Since the
State has failed to establish error, the first inquiry under our framework for
analyzing obvious error, we conclude the court did not commit obvious error in
granting Bearce’s N.D.R.Crim.P. 35(b) motion without providing notification to
the victims and giving them an opportunity to be heard.



                                        6
                                      VI

[¶26] Although the district court erred in modification of the judgment without
providing the reason for the modification, we are limited by N.D.C.C. § 29-28-
35 to noting the court’s error and affirming the judgment. The court did not err
in modification of the judgment without the victim’s consideration in the
absence of a request to participate made by, or on behalf of, the victim. The
amended judgment is affirmed.

[¶27] Jon J. Jensen, C.J.
      Daniel J. Crothers
      Lisa Fair McEvers
      Jerod E. Tufte
      Douglas A. Bahr




                                       7