1

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2021 ND 153

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 REMANDED 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 brief), Assistant State’s Attorneys, Fargo, ND, for respondent and 

appellee.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

AUGUST 19, 2021 

STATE OF NORTH DAKOTA
1

Dubois v. State

No. 20210019

Crothers, Justice.

[¶1] James Dubois, Jr. appeals from an order denying his application for postconviction 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 pleaded guilty to two counts of criminal trespass 

and one count of refusal to halt. Dubois was sentenced to 18 months with the 

Department of 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 district court 

revoked 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, and the district court did not obviously 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 was held and the district court found Dubois’ counsel was 

not ineffective and his plea was knowingly, voluntarily and intelligently made. 

The court found Dubois’ counsel’s failure to argue illegality of Dubois’ sentence 

on revocation fell within the wide range of reasonable professional assistance. 

Dubois appealed 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 explain 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 be 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 reviewing 

court is left with a definite and firm conviction a mistake has been 

made. Questions of law are fully reviewable on appeal of a postconviction proceeding.”

Brewer v. State, 2019 ND 69, ¶ 4, 924 N.W.2d 87 (citations omitted). 

[¶7] Post-conviction proceedings 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 fell 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. The first prong requires that the applicant 

must “overcome the ‘strong presumption’ that trial counsel’s representation fell 

within the wide range 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 by failing to object to his 

resentencing as illegal. Dubois asserts the resentencing was illegal because he 

received a sentence longer than originally imposed. This 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 time of sentencing . . .” Dubois, 

2019 ND 284, ¶ 9. At the time of Dubois’ resentencing, this Court’s precedent 

supported a longer sentence on revocation than originally imposed. Counsel’s 

failure to raise a novel 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 illegality of the new sentence fell 

within the wide range of reasonable assistance. 

B 

[¶9] Dubois argues his trial counsel was ineffective for not explaining 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 revoked, 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 knowingly, 

voluntarily, or intelligently made. Dubois argues adherence to N.D.R.Crim.P. 

11 is required for admissions on revocation. The 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 cases.

Id. Further, Dubois cites no cases and we have found none applying Rule 11 to 

probation revocation admissions. Because Rule 11 does not apply 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), which at the time Dubois was resentenced stated:

“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 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 existing 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 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 for 

post-conviction relief. Rule 35(a)(1), N.D.R.Crim.P., provides that “[t]he 

sentencing court shall correct an illegal sentence at any time . . . ” Section 29-

32.1-01(1)(a), N.D.C.C., of the Uniform Post[-]Conviction 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 purposes as 

to illegal sentences, these remedies under comparable provisions 

of federal law are often used interchangeably 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 provisions.”

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 existing 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 imposed upon the defendant.”
6

B 

[¶14] Dubois claims the district court imposed an illegal sentence by

sentencing him to five years’ imprisonment rather than no more than what 

was left of his 18-month suspended sentence. Dubois asks this Court to 

overturn our long-standing precedent holding N.D.C.C. § 12.1-32-07(6) allows

a district court to impose any sentence available at the time of initial

sentencing upon revocation of probation. To understand that precedent, we

review 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 modifying 

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 August 1, 1989, section 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

amended section 12.1-32-07, N.D.C.C., moved subsection four to subsection 

five and added the limiting directive from N.D.C.C. § 12-53-11 to the end of 

section 12.1-32-07(5). Effective 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 the 
7

probation remains conditional. If the defendant violates a 

condition 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 

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 imposed upon the defendant.”

(Emphasis added.)

[¶16] This Court 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 the original 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. This 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 double 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 this Court declined to apply N.D.C.C. § 12-53-11 to impose 

the suspended sentence upon revocation, stating: 
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 

defining 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, 1989. 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 consistently with Miller and Jones under the law in 

effect when those cases were decided. 

[¶19] This Court next decided State v. Gefroh, 458 N.W.2d 479, 483-84 (N.D. 

1990), interpreting the amendment to N.D.C.C. § 12.1-32-07 as legislative

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, this 

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 impliedly adopted [this Court’s]

construction of those sections [in Miller, Jones, and Vavrovsky].” Id. at 483-84.

[¶20] This Court’s holding in Gefroh that the legislature’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 foundation for decisions 
9

addressing the inconsistencies between N.D.C.C. §§ 12-53-11 and 12.1-32-

07(4). The Vavrovsky decision was issued after the legislature’s vote to merge 

the statutes but before the effective date of N.D.C.C. § 12.1-32-07(5). Thus, the 

legislature could not have relied on our interpretation in Vavrovsky when

amending those laws. 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 legislation” 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 legislature’s decision 

to move 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 

meaning unless defined by statute or unless a contrary intention plainly 

appears. N.D.C.C. § 1-02-02. If the language of a statute 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 statutes as a 

whole and harmonized to give meaning to related provisions. N.D.C.C. § 1-02-

07. We generally strictly construe penal 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, reading the statute as a whole, the first sentence 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 “In the case of 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 sentence 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 therefore 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 that 

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 

statutory 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 ratification 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 intent. 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 species 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 ‘reenactment 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 the 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 language 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 postconviction 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 legislature’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 

assembly 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. 1994)). 

[¶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 impliedly adopted our construction of N.D.C.C. §§ 12-53-11 and 
13

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, 936 

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 ascertaining 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 intent. 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 probation 

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) (introduction 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 resentence 
14

a defendant up to the maximum sentence available 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 

Assistant 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 

concurring 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 continue 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