State v. Wells

265 N.W.2d 239

• Court: North Dakota Supreme Court
• Decided: April 4, 1978
• Docket: Cr. 621
• Status: Published

Opinions

VOGEL, Justice.

This is an appeal from a judgment and sentence of life imprisonment after a plea of guilty to the crime of murder. The errors alleged, and an attack on constitutionality, relate entirely to the dangerous special offender statute, Section 12.1-32-09, N.D.C.C. If the dangerous special offender statute had not been applied, the maximum sentence of confinement would have been 20 years, as specified in Section 12.1-32-01, subsection 1, N.D.C.C. We uphold the constitutionality of the statute, but remand for resentencing because of lack of compliance with the notice provision of the dangerous special offender statute.

The contentions of the appellant may be summarized as follows:

I

The defendant asserts that the hearing held to determine whether he was a dangerous special offender constituted a trial, or part of a trial, and therefore he was entitled to, but did not receive, constitutional rights including: (1) the right to a jury trial, (2) the right to confront the “witnesses” against him (presumably the persons whose reports were considered by the judge in the sentencing proceedings and persons referred to in the probation officer’s report), and (3) the right to have only admissible evidence received in connection with the sentencing.

II

That the statute is unconstitutionally vague for failure to define “mentally abnormal” and “persistent aggressive behavior.”

III

That the statute provides no ascertainable standard of guilt and is therefore unconstitutional.

IV

That the statute itself was violated because the State’s Attorney’s notice to the defendant specifying that the State would invoke the dangerous special offender statute did riot comply with the requirement of “setting out with particularity the reasons why such attorney believes the defendant to be a dangerous special offender.”

We uphold the constitutionality of the statute [Questions I, II, and III], but remand for resentencing because of the State’s failure to comply with the statute [Question IV].

Pertinent parts of the statute are set forth in the footnote.¹

I

We could, and we should, refuse to consider the arguments under this heading because none of them, except possibly the one relating to hearsay, was raised in the trial court. It is fundamental that a trial court must be given an opportunity to rule ,on issues, except jurisdictional issues, before they can be made issues on appeal. State v. Haakenson, 213 N.W.2d 394 (N.D.1973).

However, since this is a case involving a life sentence, and because we presume that the same issues would be raised in a post-conviction proceeding if not disposed of on the appeal, we will dispose of them now. See State v. Olmstead (3d appeal), 261 N.W.2d 880 (N.D.1978); State v. Metzner, 244 N.W.2d 215 (N.D.1976).

As to sentencing generally (without reference to dangerous special offender statute)

The answers to the procedural questions can readily be found in Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), or in other cases cited in a Note, “The Constitutionality of Statutes Permitting Increased Sentences for Habitual or Dangerous Criminals,” 89 Harv.L.Rev. 356 (Dec.1975). For a recent decision, indicating that some due-process considerations apply in sentencing, see United States v. Fatico, 441 F.Supp. 1285 (E.D.N.Y.1977).

1. There is no right to a jury trial on sentencing. Williams v. New York, supra; United States v. Glick, 463 F.2d 491, 494 (2d Cir. 1972); United States v. Interstate Engineering Corporation, 288 F.Supp. 402, 411 (D.N.H.1967), affirmed sub nom. New England Enterprises, Inc. v. United States, 400 F.2d 58 (1st Cir. 1968), cert. denied, 393 U.S. 1036, 89 S.Ct. 654, 21 L.Ed.2d 581 (1969). A jury trial on a sentence has never been a part of the judicial system of this State.

2. The right of confrontation of witnesses does not apply to sentencing proceedings. Williams v. New York, supra; Williams v. Oklahoma, 358 U.S. 576, 584, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959), but see United States v. Fatico, supra, holding that denial of access to an informant whose declarations are offered as evidence at a critical stage of the proceeding, as to crucial information that directly affects a substantial liberty interest of a defendant, offends the right of confrontation. 441 F.Supp. 1285 at 1297.

We note, in passing, that the defendant examined both the psychiatrist and the probation officer who prepared the presen-tence report. The former was called as a court witness, after both prósecution and defense failed to call' him, and the latter was called by the defendant and was examined by the defense. No request was made to call any other witness. No obstacle was placed in the way of the defense as to calling any witness it chose. We find no error in this procedure. United States v. Fatico, supra.

3. Inadmissible evidence may be considered in sentencing. Williams v. New York, supra; Williams v. Oklahoma, supra. The court may even consider evidence as to crimes of which the defendant was acquitted [United States v. Sweig, 454 F.2d 181, 184 (2d Cir. 1972)], arrests which did not result in convictions [City of Dickinson v. Mueller, 261 N.W.2d 787 (N.D.1977); Houle v. United States, 493 F.2d 915 (5th Cir. 1974)], and criminal conduct as to which no charge has been made [United States v. Johnson, 507 F.2d 826 (7th Cir. 1974), cert. denied, 421 U.S. 949, 95 S.Ct. 1682, 44 L.Ed.2d 103 (1975).

The basis for the lessened procedural rigor of sentencing as compared to trial is stated in Williams v. New York, supra. In brief, the judge should be allowed the widest possible range of information to assist him in the exercise of his discretion in fixing sentences within statutory and constitutional limitations. If information available to a sentencing judge were limited to evidence adduced in open court, after a conviction, it is probable that the defendant would more often be harmed than helped.

The rules of evidence, except those relating to privileges, do not apply to sentencing procedures. Rule 1101(d)(3), N.D.R.Ev.

The foregoing statements apply generally to all sentencing procedures. When the dangerous special offender statute is invoked, additional procedural requirements must be met. These include notice in advance to the defendant that the statute will be invoked, the requirement of setting out with particularity the reasons why the prosecuting attorney believes the defendant to be a dangerous special offender (discussed below), the requirement of a sentencing hearing, the requirement of a presentence report except in extraordinary cases, five days’ advance notice of the hearing date, the right to inspect the presen-tence report and an opportunity to verify statements made in it except in extraordinary cases, and the right to compulsory process and cross-examination of witnesses produced by the prosecution. These rights are in addition to the rights of all persons being sentenced. All of these rights were allowed the defendant in the present case, except as will be mentioned below in connection with the notice.

Much of the attack of the appellant on the sentence imposed appears to be based upon a misapprehension of the provisions of the criminal code as to dangerous special offenders. The appellant seems to assume that he cannot be considered as a dangerous special offender unless he is charged with the crime of being such an offender, and is tried on that charge with the aid of counsel and found guilty of that charge. Actually, the whole process of being found to be, and sentenced as, a dangerous special offender is a discretionary part of the procedure of sentencing a defendant upon conviction of a substantive charge, which in this case was that of murder. We have never held, and do not hold now, that the defendant is entitled to a jury trial as to the extent of the sentence imposed upon him. On the contrary, sentencing is a function of the judge.

The North Dakota Criminal Code, adopted in 1973 and effective July 1,1975, including the dangerous special offender statute, was adapted in large part from a proposed Federal criminal code, but it was also drafted to comply to a great extent with the recommendations of the American Bar Association Project on Standards for Criminal Justice, particularly the Standards relating to Courts, Corrections, Sentencing Alternatives and Procedures, and Probation, and it is consistent with the Standards and Goals of the National Advisory Commission on Criminal Justice Standards and Goals.

One of the underlying concepts of the Standards and of the Standards and Goals is that maximum sentences should normally be fixed so as to apply to the ordinary offender, rather than the extraordinary, or worst possible, offender. It has been customary in this country for statutes on sentencing to specify maximum sentences sufficient to punish the worst possible offender. The sometimes-unfortunate result is that less reprehensible acts are punished by maximum sentences which are excessive. The concept of the new criminal code is that sentences longer than ordinary maxi-ma should be allowed in cases involving the worst possible offender, upon compliance with certain procedures and satisfying specified criteria. Thus the North Dakota Criminal Code provides for a maximum sentence for Class A felonies, including homicide, of 20 years’ imprisonment, or a fine of $10,000, or both [Section 12.1-32-01, N.D. C.C., subsection 1], but also provides that an extended sentence up to life imprisonment may be imposed if the offender is either a dangerous, mentally abnormal offender, a professional criminal, a persistent offender, has twice been convicted of an offense which seriously endangered the life of another person, or is especially dangerous because he used a firearm, dangerous weapon, or destructive device [Sec. 12.1-32-09, N.D. C.C.]. See Standards Relating to Sentencing Alternatives and Procedures, Standards 2.1, 2.5(d), and 3.1(c), and Standards Relating to Corrections, Standard 5.3, of the National Advisory Commission.

The dangerous special offender statute does not create a new crime. It only provides for an increase in the penalty for the offense of which the defendant was convicted. United States v. Stewart, 531 F.2d 326 (6th Cir. 1976), cert. denied, 426 U.S. 922, 96 S.Ct. 2629, 49 L.Ed.2d 376 (1976).

A serious question is raised as to the definitions of “mentally abnormal” and “persistent aggressive behavior.”

While the term “mentally abnormal” is not defined in the statute, subdivision 1-a of Section 12.1-32-09 provides that a court shall not make a finding that a person is a dangerous, mentally abnormal person “unless the presentence report, including a psychiatric examination, concludes that the offender’s conduct has been characterized by persistent aggressive behavior, and that such behavior makes him a serious danger to other persons.”

While the statute does not define the term “persistent aggressive behavior,” it will be noted that it is not the jury, if there is one, which decides whether there is “persistent aggressive behavior,” but that the presentence report and psychiatric examination must so indicate. Incidentally, the literal language of the section would indicate that the presentence report, which is prepared by a parole officer, must “conclude” that the offender’s conduct has been characterized by persistent aggressive behavior. If read literally, this would put a part of the sentencing process into the hands of a probation officer, which would subject the statute to serious constitutional challenge as an invasion of the judicial function. We interpret this language to mean that the court may not make a finding that the defendant is a dangerous, mentally abnormal person unless the court concludes, from the presentence report, including a psychiatric examination, that the offender’s conduct may be so characterized.

As so interpreted, we find no constitutional bar to the application of the statute. Certainly in this case a probation officer, the psychiatrist, and the court evinced a full understanding of the meanings of the terms “persistent aggressive behavior” and “mentally abnormal.” We believe these are terms which are readily comprehensible to courts, probation officers, and psychiatrists, and that attempts to further refine the definitions would be counterproductive. See State v. Motsko, 261 N.W.2d 860 (N.D.1977).

We hold that the statute, read as a whole, is sufficiently specific to apprise a defendant of factors which may be considered in order to determine whether he is or is not a dangerous special offender, and to permit him to prepare for and participate in the sentencing procedure intelligently. This is all that is required. State v. Motsko, supra.

A Federal statute [18 U.S.C. § 3575] generally similar to our dangerous special offender statute has been held constitutional when attacked on due-process grounds. United States v. Stewart, supra.

We turn now to the contention that the statute relating to dangerous special offenders was not complied with in the present case, in that the notification filed pursuant to the statute did not meet the statutory requirement of “setting out with particularity the reasons why such attorney believes the defendant to be a dangerous special offender.”

A similar contention was before this court in State v. Ternes, 259 N.W.2d 296 (N.D.1977). In that case the notice filed by the State’s Attorney gave as a reason for invoking the statute “that Philip J. Ternes used a firearm in the commission of the offense of murder as charged in the information in the above-captioned action.” The majority opinion held that this complied with subdivision 1-e of Section 12.1-32-09, quoted above. The dissent disagreed. However, the majority opinion went on to say:

“We interpret the words of the statute as establishing four categories of special offenders who may be shown to be dangerous, and one category of special offenders who are, per se, dangerous.” 259 N.W.2d 296 at 299.

The one category of offenders deemed, per se, dangerous was, of course, the category of offenders who used firearms, dangerous weapons, or destructive devices in the commission of the offense. The minority opinion would have held that the notice in Ternes was insufficient. Thus the majority and minority opinions agree in requiring that the State’s Attorney who attempts to invoke the dangerous special offender statute as one of the first four categories must comply with the provision requiring “setting out with particularity the reasons why such attorney believes the defendant to be a dangerous special offender.”

When we examine the amended notice filed by the State’s Attorney in the present case, we find the following language:

“The undersigned, . . . believes that the defendant is a dangerous special offender who upon conviction for the charge of murder is subject to the imposition of a sentence under subsection 2 of the aforementioned statute. The reason for said notice being given is that the defendant was over the age of eighteen years at that time the offense of murder was committed; that the defendant is a dangerous, mentally abnormal person as defined by the provisions of subsection (1 a) of the aforementioned statute; that the defendant committed the crime of murder by using a dangerous weapon as defined by the provisions of subsection (1 e) of the aforementioned statute; that the defendant committed the offense in a manner indicating his lack of regard for the value of human life.”

The majority opinion in State v. Ternes would perhaps permit a finding that the defendant was a dangerous special offender under subdivision 1-e, if he had used a dangerous weapon, but the evidence before the district judge showed that the so-called “dangerous weapon” was either a brassiere or other ligature used for strangulation, and the district judge found that the ligature was not a dangerous weapon and declined to find the defendant to be a dangerous special offender on that account.

The district judge then proceeded to consider whether the defendant was a “dangerous, mentally abnormal person” under the provisions of subsection 1-a of the statute, and found that he was. It will be seen from the language of the notice quoted above that the only notice given to the defendant by the language of the amended notice as to the reasons for invoking the statute are (1) that he was over the age of 18 years when he committed the offense of murder; (2) that he is a “dangerous, mentally abnormal person,” as defined by the provisions of subsection 1-a; and (3) that he committed the offense in a manner indicating his lack of regard for the value of human life.

These statements fall far short of “setting out with particularity the reasons why such attorney believes the defendant to be a dangerous special offender.”

The difference between the notice given and the notice that could have been given is illustrated by the evidence presented by the prosecution at the hearing to determine whether the defendant was or was not a dangerous special offender. At that hearing the State gave evidence of a psychiatric examination and the report of the probation officer containing considerable detail as to the prior criminal and other activities of the defendant. This material disclosed an arrest for rape in South Dakota, resulting in a plea of guilty to a reduced charge of fourth-degree burglary. There was evidence of several episodes of breaking into young women’s living quarters and stealing undergarments. There was evidence of a prior attempted rape, not consummated. The record discloses no reason why details of such evidence could not have been included in an amended notice, thereby giving the defendant an opportunity to prepare for, and if possible controvert, the evidence offered by the State.

We do not hold that the defendant is entitled to a particularized notice of evidence to be offered by the State at the time of sentencing in the usual case. What we do hold is that a statute containing specific requirements that a notice setting out “with particularity the reasons why” an extended sentence should be imposed is not complied with by generalities and language copied from the statute itself, or merely paraphrasing the statute. State v. Ternes, supra; United States v. Sutton, 415 F.Supp. 1323 (D.D.C.1976); United States v. Tramunti, 377 F.Supp. 6 (S.D.N.Y.1974); United States v. Kelly, 384 F.Supp. 1394 (W.D.Mo.1974), affirmed, 519 F.2d 251 (8th Cir. 1975).

In fairness to the prosecution, we add that the hearing in this case on the question of whether Wells was a dangerous special offender was held prior to the release of our opinion in State v. Ternes, supra.

A majority of the court holds that the error is an error in sentencing, which can be corrected upon a remand to the district court. It therefore is ordered that the case is remanded for further sentencing proceedings, and that the State may amend its notice prior to the hearing so as to comply with the requirements of the statute.

ERICKSTAD, C. J., and PEDERSON, PAULSON and SAND, JJ., concur.

ADDENDUM

The following remarks are not part of the majority opinion of the court, but are comments of the author of the opinion.

I would hold that the notice cannot be amended after a plea or verdict of guilty. In my view, the defendant is entitled to notice in advance of the charge against him and of the maximum penalty which can be imposed. See dissent in State v. Ternes, supra. Particularly is this true in cases where he pleads guilty. Such a plea must be assumed to be based on the charge against him, including the notice of intention to invoke the dangerous special offender statute. The statute itself requires that the notice be filed “a reasonable time before trial or acceptance by the court of a plea of guilty, . . ” Cases holding that the notice cannot be amended after verdict or acceptance of plea of guilty include United States v. Sutton, supra; United States v. Kelly, supra; and United States v. Edwards, supra. I therefore would hold that upon remand the district court should be directed to enter a sentence of not more than 20 years’ imprisonment, the maximum sentence when the dangerous special offender statute is not invoked.

1 . “12.1-32-09. Dangerous special offenders, extended sentences — Procedure.—1. A court may sentence a convicted offender to an extended sentence as a dangerous special offender in accordance with the provisions of this section upon a finding of any one or more of the following:

“a. The convicted offender is a dangerous, mentally abnormal person. The court shall not make such a finding unless the presentence report, including a psychiatric examination, concludes that the offender’s conduct has been characterized by persistent aggressive behavior, and that such behavior makes him a serious danger to other persons.

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“e. The offender is especially dangerous because he used a firearm, dangerous weapon, or destructive device in the commission of the offense or during the flight therefrom.

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“2. The extended sentence may be imposed in the following manner:

“a. If the offense for which the offender is convicted is a class A felony, the court may impose a sentence up to a maximum of life imprisonment.

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“3. Whenever an attorney charged with the prosecution of a defendant in a court of this state for an alleged felony committed when the defendant was over the age of eighteen years has reason to believe that the defendant is a dangerous special offender, such attorney, at a reasonable time before trial or acceptance by the court of a plea of guilty, may sign and file with the court, and may amend, a notice specifying that the defendant is a dangerous special offender who upon conviction for such felony is subject to the imposition of a sentence under subsection 2, and setting out with particularity the reasons why such attorney believes the defendant to be a dangerous special offender. In no case shall the fact that the prosecuting attorney is seeking sentencing of the defendant as a dangerous special offender be disclosed to the jury. If the court finds that the filing of the notice as a public record may prejudice fair consideration of a pending criminal matter, it may order the notice sealed and the notice shall not be subject to subpoena or public inspection during the pendency of such criminal matter, except on order of the court, but shall be subject to inspection by the defendant alleged to be a dangerous special offender and his counsel.

“4. Upon any plea of guilty, or verdict or finding of guilt of the defendant of such felony, a hearing shall be held, before sentence is imposed, by the court sitting without a jury. Except in the most extraordinary cases, the court shall obtain a presentence report and may receive a diagnostic testing report under subsection 4 of section 12.1-32-02 before holding a hearing under this subsection. The court shall fix a time for the hearing, and notice thereof shall be given to the defendant and the prosecution at least five days prior thereto. The court shall permit the prosecution and counsel for the defendant, or the defendant if he is not represented by counsel, to inspect the presen-tence report sufficiently prior to the hearing as to afford a reasonable opportunity for verification. In extraordinary cases, the court may withhold material not relevant to a proper sentence, diagnostic opinion which might seriously disrupt a program of rehabilitation, any source of information obtained on a promise of confidentiality, and material previously disclosed in open court. A court withholding all or part of a presentence report shall inform the parties of its action and place in the record the reasons therefor. The court may require parties inspecting all or part of a presentence report to give notice of any part thereof intended to be controverted. In connection with the hearing, the defendant shall be entitled to compulsory process, and cross-examination of such witnesses as appear at the hearing. A duly authenticated copy of a former judgment or commitment shall be prima facie evidence of such former judgment or commitment. If it appears by a preponderance of the information, including information submitted during the trial of such felony and the sentencing hearing and so much of the presentence report as the court relies upon, that the defendant is a dangerous special offender, the court shall sentence the defendant to imprisonment for an appropriate term within the limits specified in subsection 2. The court shall place in the record its findings including an identification of the information relied upon in making such findings, and its reasons for the sentence imposed.”