Opinion

State v. Brown

2023 ND 97

Court: North Dakota Supreme Court
Filed: May 30, 2023
Status: Published
On the bench: Tufte, Jerod E.
Nature of suit: MISC. STATUTORY OFFENSE (FELONY)
Cited by: 2 cases
Authority: More cited than 66.1%

The opinion

FILED

IN THE OFFICE OF THE

CLERK OF SUPREME COURT

MAY 30, 2023

STATE OF NORTH DAKOTA

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2023 ND 97

State of North Dakota, Plaintiff and Appellee

Alvin Henry Brown, Jr., Defendant and Appellant

No. 20220315

Appeal from the District Court of Ramsey County, Northeast Judicial District,

the Honorable Donovan J. Foughty, Judge.

AFFIRMED.

Opinion of the Court by Tufte, Justice, in which Chief Justice Jensen and

Justices McEvers and Bahr joined. Justice Crothers filed a specially concurring

opinion.

Maren H. Halbach, Assistant State’s Attorney, Devils Lake, N.D., for plaintiff

and appellee; submitted on brief.

Kiara C. Kraus-Parr, Grand Forks, N.D., for defendant and appellant.

State v. Brown

No. 20220315

Tufte, Justice.

Alvin Brown appeals from an order revoking probation. Brown argues

the district court erred by revoking his probation without giving him notice of

the allegations against him and by making inadequate findings. We affirm.

In 2020, Brown pled guilty to two counts of endangerment of a child, a

class C felony. The district court sentenced him to a term of incarceration

followed by two years of supervised probation.

In July 2022, Brown’s probation officer petitioned for revocation of his

probation, alleging a series of violations including failing to report to the

probation office, failing to attend treatment, using illegal substances, drinking

alcohol, and leaving the re-entry center while intoxicated. At the August 2022

hearing, Brown admitted to committing all five violations.

The district court entered an order after the August hearing titled Order

for 120 Day Review. Paragraph 3 of the Order specifically finds, by a

preponderance of the evidence, Brown violated the conditions of his probation

as stated in the five allegations of the Petition. The Order continues:

¶4. The Court having found the Defendant in violation of his

sentence, and the Defendant having no legal reason to give why

sentence should not be pronounced, the sentence which the Court

shall impose upon the Defendant:

JUDGMENT AND COMMITAL under Chapter 12.1-

32[,] NDCC;

¶5. IT IS THE ORDER AND JUDGMENT of this Court that this

matter be set for a 120 day review. The Defendant shall remain on

supervised probation . . . . The Defendant shall be on SCRAM with

zero tolerance for alcohol or drug usage. . . .

(Bold retained, emphasis added.)

About three weeks after the August hearing, the district court issued a

bench warrant for Brown’s arrest for absconding from the Lake Region Reentry

Center. The State charged Brown with escape in case number 36-2022-CR-579.

Brown pled guilty to the charge and was sentenced to incarceration for a year

and a day. On September 27, 2022, at Brown’s request the court held the 120-

day review hearing previously set for December 1. The State recommended

that Brown serve the balance of his five-year term. Brown acknowledged his

sentence would run consecutively to the sentence for escape and would extend

approximately four years. He took responsibility for his actions and did not

provide an alternative sentencing recommendation. After the hearing, the

court issued an order revoking Brown’s probation and resentencing him to a

term of five years of incarceration with credit for time served, running

consecutively to the escape charge.

Brown argues the district court erred by revoking his probation and

resentencing him without providing him notice of the alleged violations and by

making inadequate findings. We review the district court’s factual finding of a

probation violation under the clearly erroneous standard and its decision that

revocation of probation was warranted under the abuse of discretion standard.

State v. Wardner, 2006 ND 256, ¶¶ 19, 26, 725 N.W.2d 215. “A finding of fact

is clearly erroneous when it is induced by an erroneous view of the law, when

there is no evidence to support it, or if, although there is some evidence to

support it, on the entire evidence, the court is left with a definite and firm

conviction that a mistake has been made.” Id. at ¶ 19. “A district court abuses

its discretion when it acts in an arbitrary, unreasonable, unconscionable, or

capricious manner, or if its decision is not the product of a rational mental

process leading to a reasoned determination, or if it misinterprets or

misapplies the law.” Id. at ¶ 26.

Brown contends there was no pending petition to revoke his probation at

the time of the September revocation hearing and thus he did not receive notice

of the allegations against him. Brown misapprehends the effect of the August

hearing and order. At the August hearing, Brown admitted to committing the

five violations contained in the July petition for revocation. In its August order,

the district court found Brown violated the terms of his probation and ordered

a “120 day review.” During the review period, Brown was ordered to remain on

supervised probation and wear an alcohol-monitoring bracelet. The court set

the “120 day review hearing” for December, but it did not revoke Brown’s

probation at the August hearing or issue a final order disposing of the petition.

Under N.D.C.C. § 12.1-32-07(6), the district court is authorized to modify

or enlarge the conditions of probation:

The court, upon notice to the probationer and with good cause, may

modify or enlarge the conditions of probation at any time before

the expiration or termination of the period for which the probation

remains conditional. If the defendant violates a condition of

probation at any time before the expiration or termination of the

period, the court may continue the defendant on the existing

probation, with or without modifying or enlarging the conditions,

or may revoke the probation and impose any other sentence that

was available under section 12.1-32-02 or 12.1-32-09 at the time of

initial sentencing or deferment.

Instead of revoking Brown’s probation at the August hearing, the court

continued Brown’s existing probation, modifying or enlarging the conditions,

which included the condition of wearing an alcohol-monitoring bracelet.

After Brown requested the 120-day review hearing be held earlier, the

district court held the final revocation hearing in September. At the September

hearing, the court revoked Brown’s probation on the basis of the allegations

contained in the July petition. Because the court had already accepted Brown’s

admissions to those five violations during the August hearing and found Brown

violated his conditions of probation in its August order, the court properly

sentenced Brown at the September hearing. Without objection to this

procedure, the court sentenced Brown in accordance with the State’s

recommendation to five years less time served, running consecutively with the

escape charge. Both hearings and orders pertained to the same petition and

the same violations of probation.

The confusion regarding the August Order for 120 Day Review is created

by the phrase “the sentence which the Court shall impose” when the court only

ordered a review hearing. The order entered after the September hearing is

titled Order Revoking Probation. Paragraph 3 of the Order Revoking Probation

notes the district court found at the August hearing Brown violated the

conditions of his probation as stated in the five allegations of the Petition. The

court made no finding Brown violated the conditions of his probation by

absconding from the Lake Region Reentry Center. The court then proceeded to

revoke Brown’s original sentence and resentence him.

When the Order for 120 Day Review and the Order Revoking Probation

are read together and in the context of the August and September hearings, it

is clear the district court did not resentence Brown at the August 2022 hearing.

It is also clear the sentence revocation and resentencing at the September 2022

hearing was based on the probation violations alleged in the Petition and

admitted by Brown and found by the court at the August 2022 hearing. Thus,

contrary to Brown’s argument, he received notice of the alleged probation

violations.

The United States Supreme Court has held that under the Due Process

Clause of the Fourteenth Amendment a “probationer is entitled to written

notice of the claimed violations of his probation.” Black v. Romano, 471 U.S.

606, 612 (1985); see also State v. Ennis, 464 N.W.2d 378, 384-85 (N.D. 1990).

Under N.D.R.Crim.P. 32(f)(3)(A), the hearing on the revocation of probation

“must be in open court with . . . a prior written notice of the alleged violation

given to the probationer.” We conclude the petition for revocation satisfied the

notice requirements and Brown received notice of the allegations against him.

Brown argues the district court failed to make adequate findings

warranting revocation of probation. “If the probationer contests the violation,

the prosecution must establish the violation by a preponderance of the

evidence.” N.D.R.Crim.P. 32(f)(3)(B). Brown did not contest the five violations

of his probation—he admitted to them. The court accepted his admissions and

found he violated his conditions of probation. At the September revocation

hearing, Brown did not recommend a sentence to the court or argue for leniency

after the State recommended that he serve the balance of his 5-year term. The

September order revoked Brown’s probation and resentenced him to a term of

five years of incarceration with credit for time served, running consecutively

to the escape charge. We conclude the court made adequate findings of fact and

did not abuse its discretion by revoking Brown’s probation and resentencing

him to the balance of his term of imprisonment, less time served.

III

We affirm the order revoking probation.

Jon J. Jensen, C.J.

Lisa Fair McEvers

Jerod E. Tufte

Douglas A. Bahr

Crothers, Justice, specially concurring.

Brown argues the order on appeal was not entered when a petition to

revoke probation was pending before the district court, and the district court

erred by revoking Brown’s probation without him receiving notice as required

by law. The majority concludes, and I agree, both the August and September

hearings pertained to the July petition and the same probation violations.

Majority opinion, ¶ 11. I write separately to express concern over the district

court’s use of a “review hearing” process that could enable the use of one

petition to stretch a court’s authority to modify or revoke probation until the

limits set by law are reached. See N.D.C.C. § 12.1-32-06.1 (length and

termination of probation).

Section 12.1-32-07(6), N.D.C.C., addresses revocation of probation and

provides the district court with broad authority to modify or revoke probation: