IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2021 ND 60

State of North Dakota, Plaintiff and Appellee

v.

Andrew Glasser, Defendant and Appellant

No. 20200220

State of North Dakota, Plaintiff and Appellee

v.

Andrew James Glasser, Defendant and Appellant

No. 20200221

Appeals from the District Court of Burleigh County, South Central Judicial 

District, the Honorable David E. Reich, Judge.

REVERSED AND REMANDED.

Opinion of the Court by Tufte, Justice.

Julie A. Lawyer, State’s Attorney, Bismarck, N.D., for plaintiff and appellee.

Benjamin C. Pulkrabek, Mandan, N.D., for defendant and appellant.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

MARCH 24, 2021 

STATE OF NORTH DAKOTA
1

State v. Glasser

Nos. 20200220 & 20200221

Tufte, Justice.

[¶1] Andrew Glasser appeals from a district court’s corrected, amended 

criminal judgment modifying his sentence for conviction of gross sexual 

imposition and from an amended criminal judgment for conviction of 

possession of certain materials prohibited. On appeal, Glasser contends the 

court lost jurisdiction upon announcement of his original sentence and thus

had no authority to amend his judgments. We reverse and remand for entry of 

judgments reinstating Glasser’s original sentences.

I

[¶2] Glasser was charged with and pled guilty to one count of gross sexual 

imposition (GSI) and ten counts of possession of child sexual abuse materials. 

The district court ordered a presentence investigation. Before the February 24, 

2020 sentencing hearing, Glasser filed 26 letters from a variety of people in 

support of his request for leniency. On the GSI count, the district court 

sentenced Glasser to ten years in prison with all but four years suspended for 

five years of supervised probation. On each of the other ten counts, the court 

sentenced Glasser to five years in prison, all suspended for three years’ 

supervised probation. All sentences ran concurrently. When determining this

sentence, the court indicated it considered a number of factors, including the 

character reference letters.

[¶3] After the hearing, the State was contacted by the purported author of 

one of the letters Glasser had filed who stated he had neither written the letter 

nor allowed anyone to sign it on his behalf. The State investigated further and 

discovered two additional letters that had not been written or signed by the 

purported authors. The State moved to correct the judgment under 

N.D.R.Crim.P. 35, arguing the sentence was illegal or had been imposed in an 

illegal manner. Glasser’s attorney withdrew from representation, and Glasser

did not file a response in the extended time allowed by the district court. On 

April 2, 2020, the court granted the State’s request for a new sentencing 

hearing.
2

[¶4] Glasser was charged with and pled guilty to forging three letters and 

filing the letters with the court. On July 31, 2020, the court re-sentenced 

Glasser on the GSI count to twenty years with all but ten years suspended for 

five years of supervised probation and on the prohibited materials counts to 

five years all suspended for three years of supervised probation to run 

consecutively. On each of the three forgery charges, the court sentenced 

Glasser to 360 days to run consecutively to the other sentences. The court 

stated its authority to hold a resentencing hearing was authorized by Rule 

35(a)(1), N.D.R.Crim.P. The court relied on State v. Foster, 484 N.W.2d 113 

(N.D. 1992), for the proposition that the sentence was subject to modification 

because it was obtained through fraud.

II

[¶5] “The district court’s decision to amend a judgment is subject to sound 

judgment and will not be reversed on appeal unless there is an abuse of 

discretion.” State v. Comes, 2019 ND 99, ¶ 4, 926 N.W.2d 117. The district court 

abuses its discretion “if it acts in an arbitrary, unreasonable, or unconscionable 

manner, 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.

[¶6] It is a well-established rule that subject matter jurisdiction cannot be 

waived, and the question of whether a court has jurisdiction can be raised at 

any time while the case is pending. State v. Berg, 2015 ND 61, ¶ 5, 860 N.W.2d 

829; N.D.R.Crim.P. 12(b)(2). Generally, a district court “loses jurisdiction to 

alter, amend, or modify [a] judgment” once it is final. State v. Vollrath, 2018 

ND 269, ¶ 4, 920 N.W.2d 746 (quoting State v. Meier, 440 N.W.2d 700, 702 

(N.D. 1989)). “Prior to the adoption of Rule 35, [N.D.R.Crim.P.,] the courts had 

no power to change the sentence.” State v. Bryan, 316 N.W.2d 335, 336 (N.D. 

1982). Once a case has been tried “and sentence . . . pronounced, the court 

los[es] its jurisdiction.” Id. (citing State v. Gronlie, 213 N.W.2d 874 (N.D. 1973); 

John v. State, 160 N.W.2d 37 (N.D. 1968)). For purposes of the district court’s 

jurisdiction to modify it, Glasser’s sentence became final when it was 

pronounced on February 24. The court granted the State’s motion to correct 

sentence on April 2 and resentenced Glasser on July 31.
3

[¶7] “[A]ny attempt by the trial court to amend or modify a final judgment is 

void unless it is made upon grounds provided by statute or by the Rules of 

Criminal Procedure for correcting or amending a judgment.” Meier, 440 

N.W.2d at 702. The district court concluded it had authority under 

N.D.R.Crim.P. 35(a)(1) and Foster, 484 N.W.2d 113. “The sentencing court 

shall correct an illegal sentence at any time and may correct a sentence 

imposed in an illegal manner within [120 days].” N.D.R.Crim.P. 35(a)(1). A 

sentence is illegal under Rule 35(a) if it is not authorized by the judgment of 

conviction. State v. Hutchinson, 2017 ND 160, ¶ 9, 897 N.W.2d 321.

Examples of illegal sentences include: a sentence in excess of a 

statutory provision or in some other way contrary to an applicable 

statute, a sentence which fails to conform to the oral 

pronouncement of the sentence, or a sentence which is ambiguous 

with respect to the time and manner in which it is to be served. In 

addition, a sentence is illegal if it does not comply with a promise 

of a plea bargain or when the sentencing court lacks jurisdiction to 

impose it.

Id. (citations omitted). A sentence is imposed in an illegal manner if the 

sentencing court does not observe rules or statutes providing procedural 

safeguards. State v. Wishnatsky, 491 N.W.2d 733, 734 (N.D. 1992).

[¶8] In its brief in support of the motion to correct sentence, the State argued 

the sentence was imposed in an illegal manner because the court considered 

intentionally false information provided by the defendant. At the second 

sentencing hearing, the district court stated that in granting the State’s motion 

to correct Glasser’s sentence, it considered Rule 35(a)(1), N.D.R.Crim.P., and 

had concluded “[a] sentence obtained by fraud [was] illegal.” Our review of the 

record reveals that Glasser’s sentence was authorized by the judgment of 

conviction, was not in excess of the statutory limits, conformed to the court’s 

oral pronouncement, and was not ambiguous. Although Glasser misled the 

court during sentencing by presenting forged character reference letters, that 

did not make his sentence illegal, nor did it deviate from procedural rules or 

statutes. We conclude the district court misinterpreted Rule 35 and ultimately 

misapplied the law.
4

[¶9] The district court also relied on language in Foster for the proposition 

that it had inherent authority to correct Glasser’s sentence. William Foster 

was arrested for aggravated assault and terrorizing. Foster, 484 N.W.2d at 114. 

Foster was charged, pled guilty, and was sentenced under the name Robert 

John Langton. Id. Eventually, personnel at the State Penitentiary learned of 

his true identity, and Foster was resentenced under his true identity. Id. This 

Court concluded that Foster’s original sentence was illegal under Rule 35,

N.D.R.Crim.P. Foster was personally present before the court when he was 

sentenced. Foster, the individual in the courtroom, was properly sentenced, but 

as a result of the false name provided, the judgment reflected the name Robert 

John Langton rather than William Foster. Because the court sentenced Foster, 

the individual physically present, and not the person whose identity Foster 

was using, the sentence did not conform to the court’s oral pronouncement and 

was illegal under N.D.R.Crim.P. 35(a). See id.

[¶10] This Court went on in dicta to state that, separate and apart from Rule 

35, “a court of law has the inherent authority to correct judgments obtained 

through fraud.” Id. at 117. Foster was decided under Rule 35, and this brief 

discussion of inherent authority was not necessary to the decision. Id. Foster’s

reference to inherent authority relied on nonbinding federal precedent for that

proposition. Id. (citing United States v. Bishop, 774 F.2d 771 (7th Cir. 1985)).

Since our decision in Foster, Fed.R.Crim.P. 35 has been amended, and other 

federal courts have rejected any inherent authority to modify a sentence that 

would expand authority under statutes or Rule 35. See Carlisle v. United 

States, 517 U.S. 416, 426 (1996); United States v. Washington, 549 F.3d 905, 

917 (3rd Cir. 2008); United States v. Hall, 644 F. App’x 274, 276 (4th Cir. 

2016) (“[T]here is no ‘inherent authority’ for a district court to modify a 

sentence . . . .”).

[¶11] We conclude that the Foster dictum was an incorrect statement of law, 

and a district court does not have inherent authority to modify a criminal 

judgment obtained through fraud. “[A]ny attempt by the trial court to amend 

or modify a final judgment is void unless it is made upon grounds provided by 

statute or by the Rules of Criminal Procedure for correcting or amending a 

judgment.” Vollrath, 2018 ND 269, ¶ 4, (quoting Meier, 440 N.W.2d at 702). 
5

The court’s authority to modify a judgment is limited to those rules and 

statutes in effect at the time of sentencing that qualify, condition, or delay

finality under defined circumstances, such as Rule 35 or any statute 

authorizing later modification of a final sentence. Bryan, 316 N.W.2d at 336 

(“Prior to the adoption of Rule 35, the courts had no power to change the 

sentence.”); John, 160 N.W.2d at 42 (“[W]here sentence is pronounced . . . the 

trial court loses jurisdiction . . . [but] if imposition of sentence is deferred under 

Section 12-53-13, N.D.C.C., there has, in effect, been no sentence passed, and 

the trial court retains jurisdiction of the defendant for the purpose of passing 

sentence at some future date, should it become necessary.”). Glasser’s sentence 

was not an illegal sentence under N.D.R.Crim.P. 35(a), and we find no 

authority in statute or rule that would permit the court to modify a final 

sentence in these circumstances.

III

[¶12] We conclude the district court did not have jurisdiction to amend the 

criminal judgments to modify Glasser’s sentences. We reverse and remand for 

entry of judgments reinstating Glasser’s original sentences.

[¶13] Jon J. Jensen, C.J.

Gerald W. VandeWalle

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte