1 

### IN THE SUPREME COURT STATE OF NORTH DAKOT A

2021 ND 1 53

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 REMANDE D 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 b rief), Assistant State’s Attorney s , 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 plead ed guilty to two counts of criminal trespass and one count of refusal to halt. Dubois was sentenced to 18 months with the Department o f 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 distri ct court

r evoked 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 , a nd the district court did not obvious ly 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 wa s held and the district court found Dubois ’ counsel was not ineffective and his plea was knowingly, voluntarily and intelligently made. T h e court found Dubo is’ counsel’s failure to argue illegality of Dubois’ sentence on revocation fell within the wide range of reasonable professional assistance. Dubois appeal ed from the order.2 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 exp lain 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 b e 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 review ing court is left with a def inite 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 proceedin gs 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 fe ll 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. T he first prong requires that the applicant must “overcome the ‘strong presumption’ that trial counsel’s representa tion fell within the wide rang e 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).3 A [¶8] Dubois argues his trial counsel was ineffective b y fai ling to o bject to his resentencing as illegal. Dubois asserts the re sentenc ing was illegal because he received a sentence longer than originally imposed

. T his 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 ti me of sentencing . . . ” Dubois , 2019 ND 284, ¶ 9. A t the time of Dubois’ resentencing, this Court’s precedent supported a longer sentence on revocation than originally imposed. Counsel’s failure to raise a n ov el 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 i llegal ity of the new sentence fell within the wide range of reasonable assistance.

B [¶9] Dubois argues his trial counsel was ineffective for not explain ing 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 revo ked , 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

.4 III [¶10] Dubois argues his probation violation admissions were not knowing ly , voluntar ily , or intelligently made. Dubois argues adherence to N.D.R.Crim.P. 11 is required for admissions on revocation. T he 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 c ases

. Id

. Further, Dubois cites no cases and we have found none applying Rule 11 to probation revocation admissions. Because Rule 11 does not a pply 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), wh ich at the time Dubois was resentenced state d : “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 remain s 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 exi sting 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 de fendant to suffer the penalty of the sentence previously imposed upon the defendant.” 1

1 Section 12.1

- 32

- 07(6) was amended by the 2021 Legislature. 2021 Sess. Laws ch. 111. Changes were as follows:5

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 f or post

- conviction relief. Rule 35(a)(1), N.D.R. Crim.P., provides that “[t]he sentencing court shall correct an ill egal sentence at any time

. . . ” Section 2 9

- 32.1

- 01(1)(a), N.D.C.C., of the Uniform Post [

- ]C onviction 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 pu rposes as to illegal sentences, these remedies under compar able provisions of federal law are often used interchang e ably 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 provis ions. ” 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 existin g 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 impose d upon the defendant. ”6 B [¶14] Dubois claims the district court i mposed an illegal sentence by sentenc ing him to five years ’ imprisonment rather than no more than what was left of his 18

- month sus pended sentence. Dubois asks this Court to overturn our long

- standing precedent holding N.D.C.C. § 12.1

- 32

- 07(6) allow s a district court to impose any sentence available at the time of initial sentencing upon r evocation of probation. To understand that precedent , we revie w 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 modify ing 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 A ugust 1, 1989, s ection 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

a mended s ection 12.1

- 32

- 07, N.D.C.C., mov ed subsection four to subsection five and add ed the limit ing directive from N.D.C.C. § 12

- 53

- 11 to the end of section 12.1

- 32

- 07(5) . E ffective 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 the7

probation remains conditional. If the defendant violates a cond ition 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

sen tence 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. ” ( E mphasis added

. )
[¶16] T his Cour t 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 t he origina l 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. T his 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 d ouble 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 t his Court declined to apply N.D.C.C. § 12

- 53

- 11 to impose the suspended sentence upon revocation , s tating :8

“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 defini ng 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, 1 989. 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 co nsistently with Miller and Jones under the law in effect when those cases were decided

. [¶19] T his Court next deci ded State v. Gefroh , 458 N.W.2d 479 , 483

- 84 (N.D. 1990) , interpret ing the amend ment to N.D.C.C. § 12.1

- 32

- 07 as l egislat ive 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 , t his 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 implied ly adopted [this Court’s] construction of those sections [in Miller , Jones , and Vavrovsky ] .” Id . at 483

- 84.
[¶20] T his Court ’s holding in Gefroh that the l egislature’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 f oundation for decisions9

addressing the inconsistencies between N.D.C.C. §§ 12

- 53

- 11 and 12.1

- 32

- 07(4). Th e Vavrovsky decision w as issued after the l egislature’s vote to merge the statutes but before the effective date of N.D.C.C. § 12.1

- 32

- 07 (5) . Thus, the l egislature could not have relied on our interpretation in Vavrovsky when amend ing those law s. 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 leg islation” 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 l egislature’s decision to mov e 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

mea ning unless defined by statute or unless a contrary intention plainly
appears. N.D.C.C. § 1

- 02

- 02. If the language of a stat ute 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 s tatutes as a whole and harmonized to give meaning to related provisions. N.D.C.C. § 1

- 02

- 07. We generally strictly construe p enal 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 774.10

[¶23] Here, r eading the statute as a whole, the first sen tence 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 “I n the case o f 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 sent ence 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 therefor e 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 th at 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 statutor y 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 ratificatio n 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).11

[¶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 i ntent. 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 specie s 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 ‘reenactme nt 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 th e 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 langu age 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.12 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 le gislature’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 assemb ly 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. 1 994)).
[¶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 impliedl y adopted our construction of N.D.C.C. §§ 12

- 53

- 11 and13

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, 9 36 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 asce rtaining 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 int ent. 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 proba tion 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) (introducti on 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 resentence14

a defendant up to the maximum sentence availab le 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 A ssistant 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

concur ring 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 cont inue 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