FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
JANUARY 10, 2024
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2024 ND 4
State of North Dakota, Plaintiff and Appellee
v.
Garron Gonzalez, Defendant and Appellant
No. 20230133
Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable James S. Hill, Judge.
REVERSED AND REMANDED.
Opinion of the Court by McEvers, Justice.
Julie A. Lawyer, State’s Attorney, Bismarck, ND, for plaintiff and appellee;
submitted on brief.
Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.
State v. Gonzalez
No. 20230133
McEvers, Justice.
[¶1] Garron Gonzalez appeals from a criminal judgment imposing new
sentences. Gonzalez argues the district court imposed illegal sentences by
ordering the two sentences to run consecutively because they exceeded the
concurrent sentences initially imposed but suspended. We reverse and remand
for resentencing.
I
[¶2] In September 2003, Gonzalez was charged with two counts of gross
sexual imposition, both class A felonies. Gonzalez pled guilty to the two counts
of gross sexual imposition and criminal judgment was entered. The district
court sentenced Gonzalez on each count to five years’ imprisonment, all but
130 days suspended, and placed him on five years of supervised probation. The
judgment also stated the sentences run concurrently and applied credit for
time in custody. On two separate occasions, Gonzalez’s probation was revoked
and he was resentenced to additional time, with credit for time served. In the
second amended judgment, the sentences imposed were to run consecutively.
[¶3] In 2012, Gonzalez filed a petition for post-conviction relief, which the
district court granted. The court vacated the second amended judgment and
scheduled a new hearing on the petition for revocation of probation. In June
2014, the hearing occurred and the court entered an order revoking probation
and entered a third amended criminal judgment. For each count, the court
sentenced Gonzalez to 20 years’ imprisonment, with the sentences running
consecutively, and applied credit in the amount of 6 years, 6 months, and 153
days. Gonzalez appealed to this Court, which affirmed the order revoking
probation and third amended judgment. See State v. Gonzalez, 2015 ND 106,
862 N.W.2d 535 (issues relevant to the current appeal not addressed by this
Court).
[¶4] Gonzalez filed a petition for post-conviction relief in April 2022. In
January 2023, the district court granted Gonzalez’s petition for post-conviction
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relief, finding the court’s June 2014 sentences were greater than the time
originally suspended and were illegal sentences. A re-sentencing hearing was
held in April 2023. The court entered an order revoking probation and
sentencing Gonzalez. For each count, the court sentenced Gonzalez to five
years’ imprisonment, served consecutively, and applied credit for time served
stating: “Against the two five-year consecutive sentences which totals ten
years, Defendant has credit for time served of six years, six months, and 153
days which leaves a sentence to be served of four years less 153 days. This time
is consecutive to the present federal sentence being served by Defendant in
New York Federal Prison.” Gonzalez timely appeals.
II
[¶5] Section 29-32.1-01(1)(a), N.D.C.C., provides that a person convicted of
and sentenced for a crime may petition for post-conviction relief on the ground
that the sentence was imposed in violation of the laws of North Dakota. Under
N.D.R.Crim.P. 35(a)(1), “[t]he sentencing court shall correct an illegal sentence
at any time and may correct a sentence imposed in an illegal manner within
the time provided for reduction of sentence in Rule 35(b)(1).” We have stated
the post-conviction remedies under N.D.R.Crim.P. 35(a) and N.D.C.C. § 29-
32.1-01(1)(a) coexist for similar purposes as they apply to illegal sentences, and
have suggested the motion should be treated as equivalent to a motion under
both provisions. State v. McClary, 2016 ND 31, ¶ 7, 876 N.W.2d 29. We have
also noted, regardless of the type of motion, the provisions of the Uniform
Postconviction Procedure Act, N.D.C.C. ch. 29-32.1, apply. Id.; see also State v.
Johnson, 1997 ND 235, ¶¶ 10-14, 571 N.W.2d 372 (holding a second motion to
correct an illegal sentence under N.D.R.Crim.P. 35(a) was barred by the misuse
of process provision of the Uniform Postconviction Procedure Act). The State
has not cross-appealed or otherwise argued the district court erred by not
ruling on affirmative defenses it may have raised to Gonzalez’s petition for
post-conviction relief.
[¶6] “Section 12.1-32-07(6), N.D.C.C., governs a district court’s ability to
modify a defendant’s sentence upon revocation of probation.” State v. Larsen,
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2023 ND 144, ¶ 6, 994 N.W.2d 194. Our standard of review for reviewing
criminal sentences is well established:
A trial court has broad discretion in fixing a criminal
sentence. Within this discretion also lies a trial court’s authority to
decide whether a sentence should run concurrently or
consecutively. We have repeatedly held we have no power to review
the discretion of the sentencing court in fixing a term of
imprisonment within the range authorized by statute. Rather, our
review of a criminal sentence is generally confined to whether the
trial court acted within the statutorily prescribed sentencing limits
or substantially relied on an impermissible factor. Thus, we will
vacate a trial court’s sentencing decision only if the trial court
acted outside the limits prescribed by statute or substantially
relied on an impermissible factor in determining the severity of the
sentence.
State v. Gonzalez, 2011 ND 143, ¶ 6, 799 N.W.2d 402 (cleaned up).
III
[¶7] Gonzalez argues his sentences are illegal under N.D.C.C. § 12.1-32-07(6)
because the amended judgment imposes more severe sentences than the
original sentences and retroactively increases the punishment for Gonzalez’s
prior conduct.
[¶8] Since Gonzales was originally sentenced, N.D.C.C. § 12.1-32-07(6) has
been amended. In State v. McGinnis, this Court clarified the pre-amendment
version of N.D.C.C. § 12.1-32-07(6) should apply in cases where the judgment
of conviction and the subsequent revocation and resentencing happened prior
to the amended version of N.D.C.C. § 12.1-32-07(6). 2022 ND 46, ¶¶ 12-14, 971
N.W.2d 379, reh’g denied (Apr. 6, 2022). Under application of the pre-
amendment version, “in cases of suspended sentences, the statute
‘unambiguously restrains a district court’s authority in probation revocation
cases to imposition of the sentence initially imposed but suspended.’” Id. at
¶ 12 (quoting Dubois v. State, 2021 ND 153, ¶ 23, 963 N.W.2d 543). In
McGinnis, this Court concluded the district court imposed an illegal sentence
upon revocation of probation by re-sentencing the defendant to a duration
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exceeding the suspended sentence imposed in the original judgment of
conviction. Id. at ¶ 14.
[¶9] In this case, Gonzalez’s conviction and revocation occurred prior to the
amendment of N.D.C.C. § 12.1-32-07(6), but his resentencing following the
district court granting post-conviction relief took place after the amendment.
In Larsen, we determined that the amendment to N.D.C.C. § 12.1-32-07(6) was
not retroactive. 2023 ND 144, ¶ 11. In Larsen, the defendant’s criminal
convictions and sentencing occurred prior to the amendment of the statute, but
his revocation and resentencing took place after the amendment. Id. at ¶ 13.
We held in Larsen, “[b]ecause the resentencing upon revocation is punishment
for the original offenses, the version of N.D.C.C. § 12.1-32-07(6) in effect at the
time of Larsen’s original convictions and sentencing must be applied at the
revocation and resentencing.” Id. at ¶ 17.
[¶10] “Generally, unless there is a statute to the contrary, it is within the trial
court’s sound discretion whether a sentence should run concurrently with or
consecutively to another sentence.” State v. Ulmer, 1999 ND 245, ¶ 4, 603
N.W.2d 865 (citation omitted). In this instance, the district court’s discretion
was limited by this Court’s interpretation of the pre-amendment version of
N.D.C.C. § 12.1-32-07(6), which precludes increasing the length of a sentence
on revocation. Here, the original sentences imposed a term of imprisonment of
five years on each count, with 130 days credit for time served, to be served
concurrently. The amended judgment imposed consecutive sentences of five
years on each count, with credit for 6 years, 6 months, and 153 days. By
resentencing Gonzalez to consecutive sentences, the court effectively increased
Gonzalez’s total term of imprisonment to 10 years. This duration of
imprisonment exceeded the suspended sentences originally imposed. We
conclude Gonzalez’s sentences were illegal under application of the pre-
amended version of N.D.C.C. § 12.1-32-07(6) because the sentences were
greater than the originally imposed, but suspended, sentences.
[¶11] We conclude the district court misapplied the law in resentencing
Gonzalez to consecutive sentences because doing so increased his sentence to
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two five-year consecutive sentences. Therefore, the sentences imposed were
illegal.
[¶12] We have considered the remaining arguments and conclude they are
either unnecessary to our decision or are without merit.
IV
[¶13] We reverse and remand for resentencing consistent with this opinion.
[¶14] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
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