State v. Aguero

VANDE WALLE, Chief Justice,

concurring specially.

[¶ 69] I agree with the result reached by the majority opinion. I write specially to encourage the trial courts to make the appropriate findings in these matters.

[¶ 70] In State v. Kunze, 2007 ND 143, ¶ 24, 738 N.W.2d 472 we stated:

In cases ordering restraints decided by the district court after our decision in In re R.W.S. [2007 ND 37, 728 N.W.2d 326], the district court is to make case-specific findings and explain on the record, and at greater length than in this case, its rationale for the order even in those instances in which the district court believes the reasons are readily apparent on the record. That explanation should include the reason for not accommodating a request for one type of restraint rather than the other when the reason is not obvious on the record.

[¶ 71] The Court would not be required to parse the record in an attempt to justify the trial court’s action or to determine the trial court’s reasons and rationale or engage in a harmless error analysis if the findings are made as directed in Kunze. Although here we do both, our decision in this case should not be viewed as retreating from our statement in Kunze.

[¶ 72] GERALD W. VANDE WALLE, C.J.