Dubois v. State

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
AUGUST 19, 2021
STATE OF NORTH DAKOTA

IN THE SUPREME COURT
STATE OF NORTH DAKOTA

2021 ND 153

James Aaron Dubois, Jr., Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee

No. 20210019

Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable Steven L. Marquart, Judge.

REVERSED AND REMANDED WITH INSTRUCTIONS.

Opinion of the Court by Crothers, Justice, in which Chief Justice Jensen and
Justice Tufte joined. Justice VandeWalle filed a dissenting opinion in which
Justice McEvers joined.

Kiara C. Kraus-Parr, Grand Forks, ND, for petitioner and appellant.

Alexis Madlom (argued), third-year law student, under the Rule on Limited
Practice of Law by Law Students, Robert C. Vallie (appeared) and Kimberlee J.
Hegvik (on brief), Assistant State’s Attorneys, Fargo, ND, for respondent and
appellee.

1
 Dubois v. State
No. 20210019

Crothers, Justice.

[¶1] James Dubois, Jr. appeals from an order denying his application for post-
conviction relief, arguing he received ineffective assistance of counsel, his plea
was not knowing, voluntary and intelligent, and his sentence was illegal. We
reverse and remand with instructions to sentence Dubois consistent with
N.D.C.C. § 12.1-32-07(6) and this opinion.

I

[¶2] In August 2017, Dubois pleaded guilty to two counts of criminal trespass
and one count of refusal to halt. Dubois was sentenced to 18 months with the
Department of Corrections and Rehabilitation, first to serve 90 days with the
balance suspended for 18 months of supervised probation.

[¶3] On January 28, 2019, Dubois appeared at a probation revocation
hearing. Dubois admitted to three probation violations and the district court
revoked Dubois’ probation and resentenced him to five years in prison.
Following resentencing, Dubois filed a direct appeal where he argued the
district court abused its discretion in revoking his probation and the court’s
new sentence was illegal because it exceeded his original sentence. State v.
Dubois, 2019 ND 284, ¶¶ 4, 7, 936 N.W.2d 380. This Court affirmed, concluding
the district court did not abuse its discretion in revoking probation and
resentencing, and the district court did not obviously err by imposing a
sentence consistent with North Dakota precedent. Id. at ¶¶ 5-6, 11.

[¶4] Dubois filed a post-conviction relief action claiming he received
ineffective assistance of counsel and his plea and admissions were not
voluntary. A hearing was held and the district court found Dubois’ counsel was
not ineffective and his plea was knowingly, voluntarily and intelligently made.
The court found Dubois’ counsel’s failure to argue illegality of Dubois’ sentence
on revocation fell within the wide range of reasonable professional assistance.
Dubois appealed from the order.

1
 II

[¶5] Dubois argues the district court erred in finding he received effective
assistance of counsel. Dubois claims his counsel failed to object to an illegal
sentence and did not explain to Dubois that probation revocation could result
in him being resentenced to five years.

[¶6] This Court’s standard of review for post-conviction proceedings is well
established:

“A trial court’s findings of fact in a post-conviction proceeding will
not be disturbed on appeal unless clearly erroneous under
N.D.R.Civ.P. 52(a). A finding is clearly erroneous if it is induced by
an erroneous view of the law, if it is not supported by any evidence,
or if, although there is some evidence to support it, a reviewing
court is left with a definite and firm conviction a mistake has been
made. Questions of law are fully reviewable on appeal of a post-
conviction proceeding.”

Brewer v. State, 2019 ND 69, ¶ 4, 924 N.W.2d 87 (citations omitted).

[¶7] Post-conviction proceedings are civil in nature and the applicant carries
the burden of establishing the grounds for relief. Rourke v. State, 2018 ND 137,
¶ 5, 912 N.W.2d 311. To succeed on a claim for ineffective assistance of counsel,
the applicant must show that: (1) “counsel’s representation fell below an
objective standard of reasonableness,” and (2) “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. (quoting Strickland v. Washington,
466 U.S. 668 (1984)). The Strickland test is a high bar and must be applied
with scrupulous care. Rourke, ¶ 5. The first prong requires that the applicant
must “overcome the ‘strong presumption’ that trial counsel’s representation fell
within the wide range of reasonable professional assistance, and courts must
consciously attempt to limit the distorting effect of hindsight.” Id. (quoting
Laib v. State, 2005 ND 187, ¶ 9, 705 N.W.2d 845).

2
 A

[¶8] Dubois argues his trial counsel was ineffective by failing to object to his
resentencing as illegal. Dubois asserts the resentencing was illegal because he
received a sentence longer than originally imposed. This Court has “long held
that the current provisions of N.D.C.C. § 12.1-32-07(6) allow a district court to
impose any sentence available at the initial time of sentencing . . .” Dubois,
2019 ND 284, ¶ 9. At the time of Dubois’ resentencing, this Court’s precedent
supported a longer sentence on revocation than originally imposed. Counsel’s
failure to raise a novel or groundbreaking legal claim does not constitute
ineffective assistance of counsel. See Yoney v. State, 2021 ND 132, ¶ 12
(counsel’s submission of jury instruction that was consistent with precedent
was not ineffective assistance); accord Ragland v. U.S., 756 F.3d 597, 601 (8th
Cir. 2014) (counsel’s failure to raise a “novel argument” did not render his
performance constitutionally ineffective); Brown v. U.S., 311 F.3d 875, 878 (8th
Cir. 2002) (counsel’s decision to not raise issue unsupported by precedent did
not constitute ineffective assistance). Therefore, the district court did not err
in finding Dubois’ counsel’s failure to argue illegality of the new sentence fell
within the wide range of reasonable assistance.

B

[¶9] Dubois argues his trial counsel was ineffective for not explaining he
could be resentenced to five years. Dubois testified his trial counsel never
discussed with him the maximum potential sentence for revocation of his
probation. Dubois’ trial counsel testified his practice was to inform clients that,
if probation was revoked, it was possible to be resentenced to the maximum
amount of time, or five years in this case. The district court found Dubois’
assertion was “incredulous” in light of his trial counsel’s testimony. “The
district court is the best credibility evaluator in cases of conflicting testimony,
and we will not second-guess the district court’s credibility determinations.” In
re Johnson, 2013 ND 146, ¶ 7, 835 N.W.2d 806. The court did not err in finding
Dubois received effective assistance of counsel.

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 III

[¶10] Dubois argues his probation violation admissions were not knowingly,
voluntarily, or intelligently made. Dubois argues adherence to N.D.R.Crim.P.
11 is required for admissions on revocation. The plain language of
N.D.R.Crim.P. 11 makes no mention of admissions on revocation. Instead, Rule
11 only addresses plea agreements and pleading procedures in criminal cases.
Id. Further, Dubois cites no cases and we have found none applying Rule 11 to
probation revocation admissions. Because Rule 11 does not apply to admissions
on revocation, and because Dubois only argues his revocation admissions were
improper under Rule 11, Dubois’ argument fails.

IV

[¶11] Dubois argues the district court’s new sentence of five years’
imprisonment is illegal because it exceeds the balance of the 18-month term he
originally was sentenced to serve. In support, Dubois cites N.D.C.C. § 12.1-32-
07(6), which at the time Dubois was resentenced stated:

“The court, upon notice to the probationer and with good cause,
may modify or enlarge the conditions of probation at any time prior
to 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. In the case of
suspended execution of sentence, the court may revoke the
probation and cause the defendant to suffer the penalty of the
sentence previously imposed upon the defendant.”1

1Section 12.1-32-07(6) was amended by the 2021 Legislature. 2021 Sess. Laws ch. 111. Changes were
as follows:

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Dubois argues the last clause of N.D.C.C. § 12.1-32-07(6) limits a court’s
resentencing authority on revocation of probation to the balance of the
suspended sentence.

A

[¶12] Statutory interpretation is a question of law, fully reviewable on appeal.
State v. Corman, 2009 ND 85, ¶ 15, 765 N.W.2d 530.

[¶13] Dubois raised the issue of illegal sentence as part of his application for
post-conviction relief. Rule 35(a)(1), N.D.R.Crim.P., provides that “[t]he
sentencing court shall correct an illegal sentence at any time . . . ” Section 29-
32.1-01(1)(a), N.D.C.C., of the Uniform Post[-]Conviction Procedure Act
similarly provides that a person convicted of and sentenced for a crime may
apply for post-conviction relief upon the ground that “the sentence was imposed
in violation of the laws . . . of North Dakota.” This Court has said:

“[T]hese post-conviction remedies co-exist for similar purposes as
to illegal sentences, these remedies under comparable provisions
of federal law are often used interchangeably to attack a sentence
illegal on its face, and [we] have suggested a motion under the rule
or the statute should be treated as equivalent to a motion under
both provisions.”

State v. McClary, 2016 ND 31, ¶ 7, 876 N.W.2d 29 (citations omitted). We
therefore consider Dubois’ claim as presented.

“The court, upon notice to the probationer and with good cause, may modify or enlarge
the conditions of probation at any time prior to 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. In the case of suspended execution of sentence, the
court may revoke the probation and cause the defendant to suffer the penalty of the
sentence previously imposed upon the defendant.”

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 B

[¶14] Dubois claims the district court imposed an illegal sentence by
sentencing him to five years’ imprisonment rather than no more than what
was left of his 18-month suspended sentence. Dubois asks this Court to
overturn our long-standing precedent holding N.D.C.C. § 12.1-32-07(6) allows
a district court to impose any sentence available at the time of initial
sentencing upon revocation of probation. To understand that precedent, we
review this Court’s decisions on probation revocation in suspended sentence
cases, as well as intervening amendments to the controlling law.

[¶15] Prior to 1989, resentencing after revocation of probation was controlled
by N.D.C.C. § 12.1-32-07(4), which provided:

“If the defendant violates a condition [of probation] at any time
prior to the expiration or termination of the period, the court may
continue him on the existing sentence, with or without modifying
or enlarging the conditions, or if such continuation, modification,
or enlargement is not appropriate, may impose any other sentence
that was available under section 12.1-32-02 or 12.1-32-09 at the
time of initial sentencing.”

Prior to its repeal on August 1, 1989, section 12-53-11, N.D.C.C., also
addressed revocation of probation and provided: “[A]fter a full investigation
and a personal hearing, may revoke the suspension of the sentence of a person
convicted of a felony and placed on probation and may terminate the probation
and cause said person to suffer the penalty of the sentence previously imposed
upon him . . .” Sections 12.1-32-07(4) and 12-53-11, N.D.C.C., are the
predecessors to what is now N.D.C.C. § 12.1-32-07(6). In 1989, the legislature
amended section 12.1-32-07, N.D.C.C., moved subsection four to subsection
five and added the limiting directive from N.D.C.C. § 12-53-11 to the end of
section 12.1-32-07(5). Effective August 1, 1989, amended N.D.C.C. § 12.1-32-
07(5) read:

“The court, upon notice to the probationer and with good cause,
may modify or enlarge the conditions of probation at any time prior
to the expiration or termination of the period for which the

6
 probation remains conditional. If the defendant violates a
condition of probation at any time prior to 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. In the case of
suspended execution of sentence, the court may revoke the probation
and cause the defendant to suffer the penalty of the sentence
previously imposed upon the defendant.”

(Emphasis added.)

[¶16] This Court decided several probation revocation cases prior to the
legislature’s 1989 amendment to N.D.C.C. § 12.1-32-07. In State v. Miller, 418
N.W.2d 614, 616 (N.D. 1988), this Court affirmed a defendant’s sentence
following probation revocation, broadly concluding N.D.C.C. § 12.1-32-07(4)
provided district courts with the authority upon probation revocation to impose
any sentence initially available. In State v. Jones, 418 N.W.2d 782, 786 (N.D.
1988), this Court affirmed a district court’s denial of a motion for correction of
sentence. There, Jones appealed the denial, arguing the imposition on
revocation of a sentence greater than the original sentence violated his double
jeopardy rights under the Fifth Amendment. Id. at 783. In affirming, this
Court concluded N.D.C.C. § 12.1-32-07(4) allowed a district court, after
revoking probation, to impose any sentence available at the initial time of
sentencing. Id. at 784. This Court further explained that applicable statutes
placed the defendant on notice of the possibility of a harsher sentence after
revocation of probation and therefore did not constitute double jeopardy. Id. at
785-86.

[¶17] Following Miller and Jones, this Court issued its decision in State v.
Vavrovsky, 442 N.W.2d 433 (N.D. 1989). When Vavrovsky was decided,
N.D.C.C. § 12.1-32-07(4) did not include the final sentence currently included
in N.D.C.C. § 12.1-32-07(6). Instead, that language was in N.D.C.C. § 12-53-
11. In Vavrovsky this Court declined to apply N.D.C.C. § 12-53-11 to impose
the suspended sentence upon revocation, stating:

7
 “Section 12.1-32-07(4), on the other hand, was enacted by the
Legislature in 1973 as part of a comprehensive revision of our
criminal code. See 1973 N.D. Sess. Laws Ch. 116, § 31. It was
obviously intended to be the paramount legislation not only in
defining criminal offenses but also in the area of sentencing and
probation. Thus, even if there is a conflict between the two
sections, and we do not concede there is, Section 12.1-32-07(4)
controls.”

Id. at 437.

[¶18] The Vavrovksy decision was issued on June 27, 1989. Id. at 433. The
amendment to N.D.C.C. § 12.1-32-07 was adopted during the 1989 legislative
session and took effect August 1, 1989. 1989 N.D. Sess. Laws ch. 158, § 4.
Vavrovsky was decided consistently with Miller and Jones under the law in
effect when those cases were decided.

[¶19] This Court next decided State v. Gefroh, 458 N.W.2d 479, 483-84 (N.D.
1990), interpreting the amendment to N.D.C.C. § 12.1-32-07 as legislative
adoption of this Court’s interpretation of N.D.C.C. §§ 12.1-32-07 and 12-53-11
in Miller, Jones, and Vavrovsky. In Gefroh, the defendant’s original sentence
was issued in 1987, his probation was revoked, and he was resentenced on
August 14, 1989. Id. at 479. On appeal after revocation and resentencing, this
Court concluded: “We adhere to our decision in Vavrovsky and hold that § 12.1-
32-07(4), N.D.C.C., authorized the district court to increase the length of the
sentence imposed, but suspended, upon resentencing Gefroh after revocation
of his probation.” Id. at 484. The Court in Gefroh also concluded that “[b]y
reenacting § 12.1-32-07(4), N.D.C.C., [now, 12.1-32-07(5), N.D.C.C.] and
amending it by adding a sentence drawn, without substantial change, from
former § 12-53-11, N.D.C.C., the Legislature impliedly adopted [this Court’s]
construction of those sections [in Miller, Jones, and Vavrovsky].” Id. at 483-84.

[¶20] This Court’s holding in Gefroh that the legislature’s repeal of N.D.C.C. §
12-53-11 and amendment of N.D.C.C. § 12.1-32-07 amounted to an adoption of
the interpretation of those provisions in Miller, Jones and Vavrovsky is
problematic for two reasons. First, Vavrovsky was the foundation for decisions

8
addressing the inconsistencies between N.D.C.C. §§ 12-53-11 and 12.1-32-
07(4). The Vavrovsky decision was issued after the legislature’s vote to merge
the statutes but before the effective date of N.D.C.C. § 12.1-32-07(5). Thus, the
legislature could not have relied on our interpretation in Vavrovsky when
amending those laws. See Dubois, 2019 ND 284, ¶ 17 (Jensen, J., specially
concurring).

[¶21] Second, Miller and Jones only addressed the district court’s authority to
impose any sentence available at the time of initial sentencing upon revocation
of probation under N.D.C.C. § 12.1-32-07(4). Those courts refused to apply the
limiting language in N.D.C.C. § 12-53-11 to what was later described in
Vavrovsky as the “paramount legislation” of N.D.C.C. § 12.1-32-07(4). See
Miller, 418 N.W.2d at 616; Jones, 418 N.W.2d at 784-86. The issue proceeded
without further discussion until Vavrovsky in 1989. The legislature’s decision
to move the suspended sentence limitation directly into the statute at issue in
Miller and Jones informs us that the desired outcome was to clarify the
application of the limitation rather than eliminate it as stated in Gefroh.
Gefroh, 458 N.W.2d at 483-84; see Dubois, 2019 ND 284, ¶¶ 18-22 (Jensen, J.,
specially concurring).

[¶22] “The primary purpose of statutory interpretation is to determine
legislative intent.” State v. Bearrunner, 2019 ND 29, ¶ 5, 921 N.W.2d 894.
Words in a statute are given their plain, ordinary, and commonly understood
meaning unless defined by statute or unless a contrary intention plainly
appears. N.D.C.C. § 1-02-02. If the language of a statute is clear and
unambiguous, “the letter of [the statute] is not to be disregarded under the
pretext of pursuing its spirit.” N.D.C.C. § 1-02-05. We construe statutes as a
whole and harmonized to give meaning to related provisions. N.D.C.C. § 1-02-
07. We generally strictly construe penal statutes against the government.
Corman, 2009 ND 85, ¶ 15. Further, “[w]e construe statutes in a way which
does not render them meaningless because we presume the Legislature acts
with purpose and does not perform idle acts.” Meier v. N.D. Dept. of Human
Svcs., 2012 ND 134, ¶ 10, 818 N.W.2d 774.

9
[¶23] Here, reading the statute as a whole, the first sentence establishes a
general rule allowing the court to revoke probation and “impose any other
sentence that was available . . .” N.D.C.C. § 12.1-32-07(6). The second sentence
limits the general rule and begins “In the case of suspended execution of
sentence . . .” Id. The second sentence unambiguously restrains a district
court’s authority in probation revocation cases to imposition of the sentence
initially imposed but suspended. Construing the statute as allowing a district
court to impose any sentence initially available renders the last sentence
meaningless, requires us to effectively write out the limiting directive, and
presumes the legislature performed an idle act by amending N.D.C.C. § 12.1-
32-07(4) (now N.D.C.C. § 12.1-32-07(6)). We therefore overrule Gefroh and
State v. Lindgren, 483 N.W.2d 777, 779 (N.D. 1992), which allowed district
courts to resentence defendants on probation revocation to any sentence
initially available, and did not limit the new sentence to no more than that
which was suspended. See Gefroh, 458 N.W.2d at 483-84. We reverse and
remand this case to the district court for proceedings consistent with this
opinion.

[¶24] The dissent is critical of the majority opinion for not reaching a different
result based on legislative acquiescence. Dissent, ¶ 30. They ultimately
conclude legislative acquiescence, on that basis alone, means we should affirm
the district court and not upset this Court’s longstanding misinterpretation of
N.D.C.C. § 12.1-32-07. Dissent, ¶¶ 32, 35.

[¶25] Admittedly, this Court has embraced legislative acquiescence, perhaps
to a degree greater than justified by separation of powers or even the rules of
statutory construction. A Kansas Supreme Court decision aptly acknowledged
that legislative acquiescence has limitations, stating “We may understand the
absence of legislative action to revise the effect of [the prior decision] to
represent legislative ratification of that decision. More important, however, is
the application of the doctrine of statutory interpretation that directs us to
consider the plain language of the statutes.” Hall v. Dillon Cos., Inc., 189 P.3d
508, 516 (Kan. 2008).

10
[¶26] The California Supreme Court also probed the limitations of legislative
acquiescence, stating:

“The presumption of legislative acquiescence in prior judicial
decisions is not conclusive in determining legislative intent. As we
have also stated: Legislative silence after a court has construed a
statute gives rise at most to an arguable inference of acquiescence
or passive approval. . . . But something more than mere silence is
required before that acquiescence is elevated into a species of
implied legislation. . . . In the area of statutory construction, an
examination of what the Legislature has done (as opposed to what
it has left undone) is generally the more fruitful inquiry.”

Harris v. Capital Growth Inv’rs XIV, 805 P.2d 873, 880 (Cal. 1991) (internal
citations and quotation marks omitted) (overruled on other grounds). See also
Devillers v. Auto Club Ins. Ass’n, 702 N.W.2d 539, n.66 (Mich. 2005) (internal
citations and quotation marks omitted) (overruled on other grounds) (“Neither
‘legislative acquiescence’ nor the ‘reenactment doctrine’ may be utilized to
subordinate the plain language of a statute. ‘Legislative acquiescence’ has been
repeatedly rejected by this Court because Michigan courts [must] determine
the Legislature’s intent from its words, not from its silence. In the absence of
a clear indication that the Legislature intended to either adopt or repudiate
this Court’s prior construction, there is no reason to subordinate our primary
principle of construction—to ascertain the Legislature’s intent by first
examining the statute’s language—to the reenactment rule.”); Ritchie v. Rupe,
443 S.W.3d 856, n.16 (Tex. 2014) (“[T]his Court has consistently refused to rely
on ‘legislative acquiescence’ as a doctrine of statutory construction when it
runs contrary to the plain language of the statute.”).

[¶27] We agree with the Supreme Courts of our sister states in concluding
reliance on legislative acquiescence must be secondary to following the plain
language of the statute in question. Applying those rules here, the plain words
of N.D.C.C. § 12.1-32-07(6) require the result achieved.

11
 V

[¶28] We reverse and remand the order denying Dubois’ application for post-
conviction relief with instructions to sentence Dubois consistent with N.D.C.C.
§ 12.1-32-07(6) and this opinion.

[¶29] Jon J. Jensen, C.J.
Daniel J. Crothers
Jerod E. Tufte

VandeWalle, Justice, dissenting.

[¶30] Because the majority opinion does not apply the long-standing doctrine
of legislative acquiescence nor adequately explain the reasons for not doing so,
I respectfully dissent.

[¶31] Our primary objective in interpreting a statute is to ascertain legislative
intent. M.M. v. Fargo Pub. Sch. Dist. No. 1, 2010 ND 102, ¶ 12, 783 N.W.2d
806. We have said the legislature is presumed to know the courts’ construction
of its statutes and the legislature’s failure to amend the statute indicates
legislative acquiescence to that construction. See Effertz v. N.D. Workers Comp.
Bureau, 525 N.W.2d 691, 693 (N.D. 1994) (citing N. States Power Co. v. Bd. of
R.R. Comm’rs, 298 N.W. 423, 430 (N.D. 1941)); see also Skinner v. Am. State
Bank, 189 N.W.2d 665, 670 (N.D. 1971). “Where courts of this State have
construed [a] statute and such construction is supported by the long
acquiescence on the part of the legislative assembly and by the failure of the
assembly to amend the law, it will be presumed that such interpretation of the
statute is in accordance with legislative intent.” Lamb v. State Bd. of Law
Examiners, 2010 ND 11, ¶ 10, 777 N.W.2d 343 (quoting City of Bismarck v.
Uhden, 513 N.W.2d 373, 376 (N.D. 1994)).

[¶32] Ordinarily, we would presume the legislature was aware of this Court’s
opinion in State v. Gefroh, 458 N.W.2d 479 (N.D. 1990), and our interpretation
of what is now N.D.C.C. § 12.1-32-07(6), including our determination that the
legislature impliedly adopted our construction of N.D.C.C. §§ 12-53-11 and

12
12.1-32-07. The legislature has had more than thirty years to correct any error
in our interpretation of what was then N.D.C.C. § 12.1-32-07(4) in Gefroh. But
they did not amend the relevant provisions of the statute until 2021. The
legislature’s acquiescence is evidence Gefroh is consistent with legislative
intent.

[¶33] Here, however, we need not rely solely on the mere passage of time to
confirm legislative acquiescence. In 2021, the legislature amended N.D.C.C. §
12.1-32-07(6) to remove the sentence stating, “In the case of suspended
execution of sentence, the court may revoke the probation and cause the
defendant to suffer the penalty of the sentence previously imposed upon the
defendant.” 2021 N.D. Sess. Laws ch. 111. This is the language Justice
Jensen’s special concurrence to State v. Dubois, 2019 ND 284, ¶¶ 25-26, 936
N.W.2d 380, stated was unambiguous and created an exception to the general
rule of allowing the court to revoke probation and impose any sentence that
was initially available. The majority states that this language unambiguously
limits the general rule and that continuing to construe the statute as we had
since Gefroh presumes the legislature performed an idle act by amending
N.D.C.C. § 12.1-32-07 to include this language.

[¶34] This Court has recognized “subsequent amendments to a statute may be
used in ascertaining the legislative intent of an earlier version of the statute.”
Effertz, 525 N.W.2d at 693. The legislative history for the 2021 amendment
confirms that this Court’s prior construction of the statute in Gefroh was
consistent with the legislative intent. Senator Jim Roers introduced the bill
amending N.D.C.C. § 12.1-32-07(6) in the House Judiciary Committee, and
stated his understanding was that judges have always had the discretion to
resentence defendants who violate terms of probation or have probation
revoked, a recent Supreme Court case challenged that understanding, and the
bill seeks to protect how the system has always operated in the past. Hearing
on S.B. 2204 Before the House Judiciary Comm., 67th N.D. Legis. Sess. (Mar.
16, 2021) (introduction by Sen. Jim Roers) http://legis.nd.gov/assembly/67-
2021/bill-video/bv2204.html. Robert Vallie, Cass County State’s Attorney’s
Office, testified that it has been long understood that a judge could resentence

13
a defendant up to the maximum sentence available when the court revokes the
defendant’s probation, including when a suspended sentence was initially
ordered. Hearing on S.B. 2204 Before the House Judiciary Comm., 67th N.D.
Legis. Sess. (Mar. 16, 2021) (written testimony of Robert Vallie, Cass County
Assistant State’s Attorney). He testified the legislation came about as a result
of the concurring opinion in Dubois, stating:

The legislation before the Committee comes from the North
Dakota Supreme Court case State v. Dubois from 2019. . . . [T]he
concurring opinion laid out a notice to evaluate whether the
statute supports what has been the long-standing understanding
of a judge’s authority and the need to consider a change. In review
of the opinion, with the structure of the statute, a change is needed
to ensure our Criminal Justice system operates the way we expect.

As proposed, this bill would remove the last sentence of this
statute to remove the issue pertaining to the suspended sentence
outlined in Dubois. With this modification, judges will continue to
be able to re-sentence up [to] the maximum allowed under law, if
a judge were to believe such a sentence was necessary.

Id. He testified the bill protects the long-standing understanding of this
statute. Id. The legislature amended the statute in response to the Dubois
concurrence.

[¶35] Because the legislature’s acquiescence and immediate response to the
prior Dubois appeal confirm Gefroh is consistent with legislative intent, I
would not overrule Gefroh and State v. Lindgren, 483 N.W.2d 777, 779 (N.D.
1992). The district court did not impose an illegal sentence by sentencing
Dubois to five years’ imprisonment. I would affirm the order denying Dubois’
application for post-conviction relief.

[¶36] Gerald W. VandeWalle
Lisa Fair McEvers

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