State v. Mora

2000 ND 179, 617 N.W.2d 478, 2000 N.D. LEXIS 190, 2000 WL 1460758
CourtNorth Dakota Supreme Court
DecidedOctober 3, 2000
Docket990377
StatusPublished
Cited by8 cases

This text of 2000 ND 179 (State v. Mora) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Mora, 2000 ND 179, 617 N.W.2d 478, 2000 N.D. LEXIS 190, 2000 WL 1460758 (N.D. 2000).

Opinions

[479]*479VANDE WALLE, Chief Justice.

[¶ 1] Juan Raul Mora appeals from a criminal judgment of conviction upon a plea of guilty to delivery of a controlled substance. We affirm, concluding the district court properly entered sentence.

[¶ 2] Mora was charged with delivering cocaine, a schedule II controlled substance, to an undercover police officer on September 16, 1998. Mora had two prior convictions in Minnesota for delivery of methamphetamine, which is also a schedule II controlled substance.

[II3] Section 19-03.1-23, N.D.C.C., prohibits the delivery of a controlled substance and provides:

1.... Any person who violates this subsection with respect to:
a. A controlled substance classified in schedule I or II which is a narcotic drug, or methamphetamine, is guilty of a class A felony and must be sentenced:
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(3) For a third or subsequent offense, to imprisonment for twenty years.
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5. A violation of this chapter or a law of another state or the federal government which is equivalent to an offense under this chapter committed while the offender was an adult and which resulted in a plea or finding of guilt must be considered a prior offense under subsections 1, 3, and 4. The prior offense must be alleged in the complaint, information, or indictment. (Emphasis supplied).

[¶ 4] The issue in this case centers on the underlined portion of the statute because the information charging Mora with this offense does not specifically mention the two prior Minnesota convictions. However, the penalty section at the bottom of the information states:

Penalty Section:

Count 1: 19 — 03.1—23(l)(a)(3)

Class A Felony

(Mandatory Minimum 20 years Imprisonment)

[¶ 5] Mora, with counsel, appeared before the district court and pleaded guilty to the offense. Because Mora speaks Spanish, an interpreter was used at the proceeding. The district court addressed the minimum mandatory sentence numerous times throughout the proceedings. The district court stated, “It is alleged by the State that because of your prior record if you are convicted of this offense there is a minimum mandatory sentence of 20 years imprisonment which the court must impose.” Mora responded that he understood the charge and the maximum and minimum penalty.

[¶ 6] Later, the court stated, “If you plead guilty the court must impose any minimum mandatory sentence required by law.” Mora again indicated that he understood the court’s statements. When the court inquired about a sentence recommendation, the following exchange occurred:

THE COURT: And you understand that the State is alleging that you have two prior delivery offenses which would result in a minimum mandatory penalty? THE DEFENDANT: Yes.
THE COURT: And in this case the minimum mandatory penalty alleged is 20 years in prison, you understand?
THE DEFENDANT: Yes.
THE COURT: To the charge of delivery of a controlled substance, a Class A Felony, alleged to have occurred on September 16,1998, how do you plead?
THE DEFENDANT: Guilty.

[¶ 7] At sentencing, Mora argued the twenty-year mandatory minimum sentence under N.D.C.C. § 19-03.1-23(l)(a) (3) should not apply because the State had failed to allege the prior offenses in the information as required by N.D.C.C. § 19-03.1-23(5). The district court concluded [480]*480the twenty-year mandatory minimum sentence applied, and sentenced Mora accordingly.

[¶ 8] On appeal, Mora argues the information must specifically identify the two prior convictions the State is relying upon to satisfy the requirement of N.D.C.C. § 19-03.1-23(5). The' state argues the general reference to the statute and the mandatory minimum sentence in the information’s penalty section was sufficient to put Mora on notice the State was relying on prior convictions. The State, at oral argument, adVised the Court that the penalty provision format used here was not an oversight; rather," the penalty provision format used here is the regular practice in the Cass County State’s Attorney’s office.

[¶ 9] Counsel for Mora conceded Mora was fully aware of the maximum and minimum penalties of the charge. At the plea hearing, Mora acknowledged the State intended to use the prior,convictions to seek the mandatory minimum sentence. Also, the State had provided Mora certified copies of the records related to his prior convictions during discovery. Mora does not contest the voluntariness of his plea but argues the district court erred in imposing a mandatory minimum sentence of twenty years imprisonment.

[¶ 10] The express language of N.D.C.C. § 19-03.1-23(5) is clear: prior offenses must be alleged in the information or indictment. See N.D.C.C. § 1-02-05 (stating, “When the wording of a statute is clear and free of all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.”). Unless and until the legislature amends the statute, allegation's of the specific prior convictions must be made in the information.

[¶ 11] We do not believe the Legislature required an allegation in the information as an idle act. Rather, the State must allege and prove that the defendant was convicted of specific prior offenses. The statute requires, in plain language, that the prior offense must be alleged, not that the penalty section must be alleged, which is what the information here does. It is possible for a defendant to be aware the State is alleging commission of prior offenses and seeking a mandatory sentence under the statute without being aware of the specific offenses upon which the State relies. Thus, this is an issue of notice, one with constitutional underpinnings. State v. Gahner, 413 N.W.2d 359 (N.D.1987).

[¶ 12] Although we view the allegation of a former conviction more liberally because it is not the offense for which the defendant is being tried, the time and place of the former conviction should be stated. State v. Bloomdale, 21 N.D. 77, 128 N.W. 682, 684 (1910). This enables the defendant to ascertain the crime which the State claims he was formerly convicted of. Id. A defendant might seek a bill of particulars under N.D.R.Crim.P. (7)(f) or other discovery under N.D.R.Crim.P. 16, but the defendant is not under obligation to do so. The statute places the affirmative burden on the State to allege the prior offense upon which it relies for the imposition of the mandatory sentence. The State does not meet that burden by the penalty format it uses here.

[¶ 13] In State v. Gielen, 54 N.D. 768, 210 N.W. 971, 975 (1926), the Court stated:

It may be said that while the information in this case, under the circumstances presented by the record on this appeal, is held sufficient to sustain the verdict found and the judgment of conviction based thereon, we do not approve of such information as a model pleading, nor do we express any opinion as to whether the allegations, as to the former conviction, would have been sufficient as against a proper and timely objection in the trial court.

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Cite This Page — Counsel Stack

Bluebook (online)
2000 ND 179, 617 N.W.2d 478, 2000 N.D. LEXIS 190, 2000 WL 1460758, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mora-nd-2000.