IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2022 ND 153

State of North Dakota, Plaintiff and Appellee

v.

Milford Earl Netterville, Jr., Defendant and Appellant

No. 20220017

Appeal from the District Court of Richland County, Southeast Judicial District, 

the Honorable Bradley A. Cruff, Judge.

REVERSED AND REMANDED.

Opinion of the Court by Tufte, Justice.

Megan E. Kummer, State’s Attorney, Wahpeton, N.D., for plaintiff and 

appellee; submitted on brief.

Samuel A. Gereszek, Grand Forks, N.D., for defendant and appellant; 

submitted on brief.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

AUGUST 4, 2022 

STATE OF NORTH DAKOTA
1

State v. Netterville

No. 20220017

Tufte, Justice.

[¶1] Milford Netterville appeals from a criminal judgment revoking his 

probation and resentencing him to two years’ imprisonment. He argues the 

district court entered an illegal order because the court failed to give him credit 

for time served and there was ambiguity in the court’s sentence. We reverse 

and remand with instructions.

I

[¶2] In 2020, Netterville pled guilty to domestic violence in violation of 

N.D.C.C. § 12.1-17-01.2(2)(c), punishable by a maximum penalty of five years’ 

imprisonment. The district court sentenced him to 366 days’ imprisonment, 

with credit for 99 days, and 18 months of supervised probation to follow upon 

his release. In 2021, the State filed a petition to revoke Netterville’s probation 

after he failed to report to his probation officer during the months of October 

and November 2021. After a probation revocation hearing was held, the district 

court revoked his probation and resentenced him to 2 years’ imprisonment with 

no probation to follow. He appeals the amended criminal judgment to this 

Court.

II

[¶3] In reviewing appeals from a district court’s decision to revoke probation, 

this Court applies a two-step analysis. We first review the court’s “factual 

findings under the clearly erroneous standard and then review the court’s 

decision to revoke probation under the abuse-of-discretion standard.” State v. 

Dockter, 2019 ND 203, ¶ 11, 932 N.W.2d 98. A court abuses its discretion “if it 

acts in an arbitrary, unreasonable, unconscionable, or capricious 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.
2

[¶4] Netterville argues the district court entered an illegal sentence.1 We 

have outlined the procedure for correcting an illegal sentence under 

N.D.R.Crim.P. 35.

Rule 35(a)(1), N.D.R.Crim.P., provides, “The sentencing 

court may 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).” A sentence is illegal 

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

conviction. State v. Raulston, 2005 ND 212, ¶ 7, 707 N.W.2d 464. 

We have recognized that an illegal sentence may be contrary to 

statute, fail to comply with a promise of a plea bargain, or be 

inconsistent with the oral pronouncement of the sentence. Id.

State v. Gray, 2017 ND 108, ¶ 17, 893 N.W.2d 484.

[¶5] The State argues that we should decline to consider Netterville’s illegal 

sentence argument on appeal because he did not raise this issue below. We 

reject this argument. We have previously held that “[a]lthough [the defendant]

did not raise this [illegal sentence] argument below by objecting at sentencing

or through a motion under N.D.R.Crim.P. 35(a), we address the claim because

an objection is unnecessary to preserve a claim of illegal sentence imposed in

a criminal judgment from which an appeal may be immediately taken.” State

v. Thomas, 2020 ND 30, ¶ 16, 938 N.W.2d 897; see also State v. McGinnis, 2022 

ND 46, ¶¶ 1, 5, 971 N.W.2d 380 (we considered the defendant’s illegal sentence 

argument despite the fact that the appeal was from the amended criminal 

judgments and not from the denial of his Rule 35 motion). Therefore, we move 

on to address the merits of Netterville’s illegal sentence argument.

III

[¶6] Netterville first argues the district court’s order was illegal because it 

was ambiguous. He argues the court “issued an ambiguous oral 

1 Netterville argues an illegal order was also entered in 39-2020-CR-0313, an offense which runs 

concurrently with the sentence in 39-2020-CR-0468. Because Netterville only appealed the judgment 

in -0468, our review is limited to this judgment on appeal.
3

pronouncement and subsequent judgment” because the oral pronouncement is 

susceptible to differing interpretations. Specifically, he argues the “court’s oral 

pronouncement could be interpreted to articulate Netterville was to serve an 

additional two years to what he has already served” or it “could have been to 

simply impose the original recommended sentence by the State of two years.”

[¶7] “[A] sentence is ambiguous if its pronouncement is susceptible of 

differing interpretations based on the totality of the circumstances.” State v. 

Rath, 2017 ND 213, ¶ 13, 901 N.W.2d 51 (citation omitted). When an 

unambiguous oral pronouncement of a sentence directly conflicts with the 

written judgment, we have said the oral pronouncement must control. Id. at 

¶ 7 (citation omitted). “[I]f only an ambiguity exists between the two sentences, 

the record must be examined to determine the district court’s intent.” Id. 

(citation omitted).

[¶8] There is no conflict between the oral pronouncement and the written 

judgment, nor are there differing reasonable interpretations. After the State 

requested “Netterville be resentenced to the Department of Corrections and 

Rehabilitation for 3 years and terminate his probation,” the court orally 

pronounced:

THE COURT: ..things of that nature. So basically on the testimony 

here provided today so 2 years with DOCR and..

MR. NETTERVILLE: ..your Honor please. Your Honor..

THE COURT: ..with no probation to follow.

Further, the judgment states: “Committed to: Department of Corrections and 

Rehabilitation, Term: 2 years.” We see no ambiguity in either the oral 

pronouncement or the written sentence. The oral pronouncement and the 

written judgment both clearly articulate that Netterville is sentenced to 2 

years’ imprisonment in addition to the 366 days he previously served on the 

original sentence. Thus, we conclude the district court’s sentence is 

unambiguous.
4

IV

[¶9] Netterville also argues his sentence was illegal because the court failed 

to provide him with credit for time served. He argues that he was entitled to 

credit for the 366 days he served with the Department of Corrections on the 

original sentence; however, the amended criminal judgment failed to state this 

credit. Section 12.1-32-02(2), N.D.C.C., provides:

Credit against any sentence to a term of imprisonment must be 

given by the court to a defendant for all time spent in custody as a 

result of the criminal charge for which the sentence was imposed 

or as a result of the conduct on which such charge was based. “Time 

spent in custody” includes time spent in custody in a jail or mental 

institution for the offense charged, whether that time is spent prior 

to trial, during trial, pending sentence, or pending appeal.

[¶10] The State, on the other hand, argues Netterville is not entitled to credit 

for time served on the underlying criminal charge because “[a] probation 

revocation is a new matter.” In other words, because Netterville served the 366 

days on the original sentence, he is not entitled to credit for that time served 

on the probation revocation sentence. We reject this argument. We recognize 

that a defendant is not entitled to credit “for time served in connection with 

wholly unrelated charges based on conduct other than for which the defendant 

is ultimately sentenced.” State v. Eugene, 340 N.W.2d 18, 35 (N.D. 1983). Here,

however, Netterville’s probation was revoked, and on resentencing he seeks

credit for time served on the original sentence. Unlike the unrelated charges

in Eugene, a sentence resulting from probation revocation is wholly related to

the original charge because it is based on the same conduct for which the

defendant was originally sentenced. An amended judgment revoking probation

and resentencing a defendant is not a “whole new process” leading to a

“separate judgment” as the State argues, but instead simply amends and 

replaces the initial judgment.

[¶11] An amended judgment entered after revocation must total up all time 

served for the offense, including time served on the original sentence and time 

served prior to the revocation hearing, to ensure a defendant does not serve 

more than the maximum possible sentence for the offense. Because section 
5

12.1-32-02(2) requires a judgment to reflect “all time spent in custody as a 

result of the criminal charge,” the amended judgment should have reflected 

credit for 366 days served on the original sentence. Importantly, the amended 

judgment should also have included the length of the original sentence.

Inclusion of the credit served on the original sentence would not give 

Netterville “a bonus 366 days of credit” so long as the district court includes all 

time sentenced along with all time previously served. It is clear the intended 

sentence was described in terms of the net sentence left to serve, but the 

statute requires that be expressed in terms of all time sentenced less credit for 

time already served as a result of that criminal charge.

[¶12] Further, the record does not indicate there is any credit owed to 

Netterville for time served after the petition to revoke probation was filed. It

does not appear that Netterville was ever arrested or spent any time in custody

during the pendency of the probation revocation hearing. Although a warrant

to apprehend was issued after the petition for revocation was filed, Netterville

appeared on his own recognizance. Therefore, we conclude that the judgment 

should have reflected a sentence of 3 years plus 1 day with credit for 366 days 

served. Thus, we remand for the district court to correct the judgment to 

accurately describe the sentence.

V

[¶13] We reverse the judgment and remand with instructions to correct the 

judgment consistent with this opinion.

[¶14] Jon J. Jensen, C.J.

Gerald W. VandeWalle

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte