State v. Ternes

VOGEL, Justice,

dissenting.

I dissent from that portion of the opinion which sustains the additional sentence based upon Section 12.1-32-09, N.D.C.C., the statute authorizing additional sentence if the defendant is found to be a “dangerous special offender.”

I

The statute as applied in this ease, prior to the 1977 amendment, required that the trial judge not be informed (until after verdict) of the filing of the notice of the State’s Attorney that he invokes the dangerous special offender statute. As appellant points out, the inevitable consequence of this is that the trial judge tells the defendant one thing — that the maximum penalty for murder is 20 years’ imprisonment — and the defendant’s own attorney tells him something else — that the maximum penalty is life imprisonment. No matter how conscientiously the attorney attempts to explain this, a defendant is going to doubt that his attorney knows what he is talking about, or that the judge does. It is basic law that the defendant is entitled to know what conduct is proscribed by a criminal statute [State v. Hanson, 256 N.W.2d 364 (N.D.1977)], and I believe he is also entitled to know what the maximum penalty is if he pleads guilty or is found guilty.

He cannot know what the penalty is if he gets wildly variant information from his own attorney and from the judge.

The majority opinion attempts to dispose of this defect by saying that no record was presented to indicate that the conflicting statements were made by court and counsel. None was necessary.

We all know that committing magistrates and trial judges advise defendants as to the maximum penalty, and it is the duty of attorneys to do the same. The attorney for the defendant said in argument that a *302judge and a magistrate “advised him of what charges were against him, that being a Class A murder felony carrying a maximum penalty of 20 years,” and the facts were not disputed by the State’s Attorney, who said he didn’t know what could be said of the argument that a defendant might believe the judge rather than his own attorney.

I have no doubt that the contradictory information was given. The defendant is entitled to know what the penalty is if he is convicted. He should not have to guess.

II

The statute provides that the State’s Attorney, if he believes that the defendant is a dangerous special offender, may file a notice so stating and “setting out with particularity the reasons why such attorney believes the defendant to be a dangerous special offender.” The reason given in the notice-filed in this case is “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.” This is nothing, more than a statement of what the court must find as a fact before imposing additional punishment under Section 12.1-32-09, subsection (l)(e). It is not a statement “setting out with particularity the reasons why ” the attorney believes him to be specially dangerous.

III

Contrary to the majority opinion, which says that United States v. Kelly, 519 F.2d 251 (8th Cir. 1975), “has no application here,” I say that it is in point and compellingly persuasive. In Kelly, the applicable statute permitted more severe sentences if the prosecutor filed in advance of trial a notice “setting out with particularity the reasons why such attorney believes the defendant to be a dangerous special offender,” and if the court found (as one of several alternative possible findings) that “. . .a period of confinement longer than that provided for such felony is required for the protection of the public from further criminal conduct by the defendant.” The prosecutor’s statement invoking the statute alleged as his reason for doing so that “The defendant is dangerous within the meaning of [the Federal statute] requiring ... a period of confinement longer than that provided for the offense for which he was convicted, ... to protect the public from further criminal conduct by said defendant.”

Thus, exactly as in the case before us, the prosecutor invoked the statute by alleging in the words of the statute one of the findings which the court was authorized to make in order to justify applying the statute and extending the sentence. The prosecution argued that the notice was sufficient.

The Eighth Circuit said, in language we would do well to adopt, that

“. . . the plain language of the act itself defeats the government’s argument. ...” 519 F.2d at 255-256.

And,

In sum it is not for the court to say, where the language of the statute is clear, that a legislative act may encompass a more restricted meaning. We believe that the district court correctly found the notice insufficient. Under the circumstances we need not meet the more serious challenge to the act’s constitutionality.” 519 F.2d at 256.

CONCLUSION

Since all the defects I have discussed relate only to sentencing, the case should be remanded for resentencing of the defendant without reference to the statute as to dangerous special offenders, which has not been properly invoked or applied in this case.