§ 12.1-32-09 — Dangerous special offenders - Habitual offenders - Extended sentences - Procedure

Procedure.
1. A court may sentence a convicted offender to an extended sentence as a dangerous
special offender or a habitual offender in accordance with this section upon a finding of
any one or more of the following:
a. The convicted offender is a dangerous, mentally abnormal person whose conduct
has been characterized by persistent aggressive behavior and the behavior
makes the offender a serious danger to other persons.
b. The convicted offender is a professional criminal who has substantial income or
resources derived from criminal activity.
c. The convicted offender is a habitual offender. The court may not make such a
finding unless the offender is an adult and has previously been convicted in any
state or states or by the United States of two felonies committed at different times
when the offender was an adult. For the purposes of this subdivision, a felony
conviction in another state or under the laws of the United States is considered a
felony.
d. The offender was convicted of an offense that seriously endangered the life of
another person and the offender had previously been convicted of a similar
offense.
e. The offender is especially dangerous because the offender used a firearm,
dangerous weapon, or destructive device in the commission of the offense or
during the flight therefrom.
A conviction shown on direct or collateral review or at the hearing to be invalid or for
which the offender has been pardoned on the ground of innocence must be
disregarded for purposes of subdivision c. In support of findings under subdivision b, it
may be shown that the offender has had control of income or property not explained
as derived from a source other than criminal activity. For purposes of subdivision b, a
substantial source of income means a source of income which for any period of one
year or more exceeds the minimum wage, determined on the basis of a forty-hour
week and a fifty-week year, without reference to exceptions, under section 6(a)(1) of
the Fair Labor Standards Act of 1938, as amended, for an employee engaged in
commerce or in the production of goods for commerce, and which for the same period
exceeds fifty percent of the offender's declared adjusted gross income under chapter
57-38.
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.
b. If the offense for which the offender is convicted is a class B felony, the court may
impose a sentence up to a maximum of imprisonment for twenty years.
c. If the offense for which the offender is convicted is a class C felony, the court may
impose a sentence up to a maximum of imprisonment for ten years.
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 or a habitual offender, the 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 or a
habitual offender who upon conviction for the felony is subject to the imposition of a
sentence under subsection 2, and setting out with particularity the reasons why the
attorney believes the defendant to be a dangerous special offender or a habitual
offender. In no case may the fact that the prosecuting attorney is seeking sentencing
of the defendant as a dangerous special offender or a habitual offender be disclosed to
the jury before a verdict. If the court finds that the filing of the notice as a public record
may prejudice fair consideration of a pending criminal matter, the court may order the
notice sealed and the notice is not subject to subpoena or public inspection during the
pendency of the criminal matter, except on order of the court, but is subject to
inspection by the defendant alleged to be a dangerous special offender or a habitual
offender and the offender's counsel.
4. Upon any plea of guilty, or verdict or finding of guilt of the defendant of such felony, a
hearing must be held, before sentence is imposed, in accordance with this subsection
as follows:
a. By a jury, or the court if a jury is waived by the defendant, if the notice alleges that
the defendant is a dangerous special offender under subdivision a, b, d, or e of
subsection 1. The jury, or the court if a jury is waived, must find that the defendant
is a dangerous special offender under one or more of these subdivisions by proof
beyond a reasonable doubt. However, in the case of a notice alleging only
subdivision e of subsection 1, the trial jury, or the trial court if a jury is waived,
may make a special finding of proof of this subdivision without an additional
hearing subsequent to a verdict or finding of guilt.
b. By the court if the notice alleges that the defendant is a habitual offender under
subdivision c of subsection 1. The court must find that the defendant is a habitual
offender by a preponderance of the evidence.
5. Except in the most extraordinary cases, the court shall obtain a presentence report
and may receive a diagnostic testing report under subsection 5 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 must 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 the defendant is not represented by counsel, to inspect
the presentence report sufficiently before 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 that 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 is 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 is prima facie evidence of such former
judgment or commitment. If the jury or the court finds, after hearing, one or more of the
grounds set forth in subsection 1, that the defendant is a dangerous special offender
or a habitual offender, the court shall sentence the defendant to imprisonment for an
appropriate term within the limits specified in subsection 2.