State of North Dakota v. Neil McGinnis

Summary

The North Dakota Supreme Court reviewed Neil McGinnis’s appeals from probation revocation judgments and resentencing in two criminal cases. The court affirmed the judgment in case 08-2016-CR-01827 but reversed and remanded the judgment in case 08-2017-CR-00721, holding that the sentence imposed after probation revocation exceeded the suspended sentence authorized under N.D.C.C. § 12.1-32-07(6).

Holdings

1. A defendant may challenge an illegal sentence under N.D.R.Crim.P. 35(a)(1) at any time, even if the defendant did not timely appeal an earlier amended judgment involving a similar sentencing issue.
2. An objection is unnecessary to preserve a claim that a criminal judgment imposes an illegal sentence; the claim may be reviewed even if it was not raised at sentencing or through a Rule 35(a) motion.
3. Under the pre-amendment version of N.D.C.C. § 12.1-32-07(6), when a sentence's execution was suspended, a court could revoke probation and impose only the sentence previously imposed but suspended; it could not impose a longer sentence.
4. The five-year sentence imposed after revocation of probation in case 08-2017-CR-00721 was illegal because it exceeded the original three-year sentence imposed but suspended.

Questions Presented

1. Whether the Supreme Court could review McGinnis's challenge to the legality of the 2021 sentence despite his failure to timely appeal the 2018 amended judgment.
2. Whether an illegal-sentence claim is preserved for appellate review without an objection in the district court or a Rule 35 motion.
3. Whether, under the pre-amendment version of N.D.C.C. § 12.1-32-07(6), a court may resentence a defendant after probation revocation to a term exceeding the sentence originally imposed but suspended.
4. Whether the second amended judgment in case 08-2016-CR-01827 was illegal.

Disposition

reversed_and_remanded