IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2021 ND 107

Marlon Comes, Petitioner and Appellant

 v.

State of North Dakota, Respondent and Appellee

No. 20210005

Appeal from the District Court of Ramsey County, Northeast Judicial District, 

the Honorable Donovan J. Foughty, Judge.

AFFIRMED.

Opinion of the Court by Jensen, Chief Justice.

Tyler J. Morrow (argued) and Kiara C. Kraus-Parr (on brief), Grand Forks, 

ND, for petitioner and appellant. 

Beau M. Cummings, State’s Attorney, Devils Lake, ND, for respondent and 

appellee.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

JUNE 24, 2021 

STATE OF NORTH DAKOTA
1

Comes v. State

No. 20210005

Jensen, Chief Justice.

[¶1] Marlon Comes appeals from an order denying his application for postconviction relief. He argues his sentence is illegal because it fails to accurately 

reflect credit for “good time” and the corresponding sentence reduction, and his 

sentence fails to properly account for time he was held in custody prior to 

sentencing. The district court found that the North Dakota Department of 

Corrections and Rehabilitation (“Department of Corrections”) has exclusive 

discretion to determine whether an offender should be credited with a 

performance-based sentence reduction. The court also found the statutory 

remedy of post-conviction relief pursuant to N.D.C.C. ch. 29-32.1 is not 

available to provide relief for disciplinary measures, custodial treatment, or 

other violations of civil rights of a convicted person occurring after the 

imposition of sentence. We affirm the order dismissing Comes’ application for 

post-conviction relief.

I

[¶2] In July 1996, Comes pled guilty to robbery, a class A felony, and murder, 

a class AA felony. On October 18, 1996, the district court sentenced Comes to 

life imprisonment with parole with credit for 307 days of time served. Comes 

has initiated several challenges to the criminal judgment. See Comes v. State, 

2018 ND 54, 907 N.W.2d 393 (dismissing appeal from a dismissal of an 

application for post-conviction relief and motion for a new trial); State v. 

Comes, 2019 ND 99, 926 N.W.2d 117 (remanding to the district court to provide 

notice and opportunity to be heard regarding an amended judgment); State v. 

Comes, 2019 ND 290, 936 N.W.2d 114 (affirming the entry of a second amended 

judgment). This Court has also summarily affirmed several other denials of 

applications for post-conviction relief filed by Comes. Comes v. State, 2000 ND 

142, 618 N.W.2d 724; Comes v. State, 2014 ND 141, 859 N.W.2d 929; Comes v. 

State, 2016 ND 118, 881 N.W.2d 256.
2

[¶3] Comes filed his current post-conviction relief challenge to the second 

amended judgment on October 12, 2020. Comes contends his sentence was 

illegal because he has not received a sentence reduction for “good time” as 

required by law, and he has not received credit for the 307 days he spent in 

custody prior to his sentencing. The State moved to dismiss or, in the 

alternative, requested summary disposition of Comes’ petition for postconviction relief. The district court dismissed Comes’ petition for postconviction relief after finding that the Department of Corrections has the 

exclusive discretion to determine whether an offender should be credited with 

a sentence reduction, and post-conviction relief is a limited statutory remedy

not available to provide relief for disciplinary measures, custodial treatment, 

or other violations of civil rights of a convicted person occurring after the 

imposition of sentence.

II

[¶4] Comes argues he has been denied credit for “good time” he earned while 

in custody. He argues he is entitled to have this credit applied toward a 

reduction of his sentence. Comes filed the present action as an application for 

post-conviction relief under N.D.C.C. ch. 29-32.1. “A proceeding under 

[Chapter 29-32.1] is not available to provide relief for disciplinary measures, 

custodial treatment, or other violations of civil rights of a convicted person 

occurring after the imposition of sentence.” N.D.C.C. § 29-32.1-01(4). A 

sentencing court goes outside its jurisdiction when prohibiting, limiting or 

granting good time, an administrative tool which the legislature has given the 

Department of Corrections. State v. Trieb, 516 N.W.2d 287 (N.D. 1994). “The 

computation of good time credits is exclusively an administrative 

responsibility.” Id. at 292 (quoting State v. Aqui, 721 P.2d 771, 774 (N.M. 1986)) 

(internal quotation marks omitted). Based on the express language of N.D.C.C. 

§ 29-32.1-01(4) and our decision in Trieb, we conclude the district court

properly dismissed Comes’ N.D.C.C. ch. 29-32.1 post-conviction relief claim 

challenging the administrative accumulation and credit of “good time.”
3

III

[¶5] Comes asserts he is entitled to post-conviction relief because he was not 

provided with a reduction of his sentence for the 307 days he was held in 

custody prior to his sentencing. Section 12.1-32-02(2), N.D.C.C., requires credit 

be given toward a defendant’s sentence for pretrial custody of a defendant as 

follows:

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. The 

total amount of credit the defendant is entitled to for time spent in 

custody and any credit for sentence reduction under section 12-

44.1-32 or 12-54.1-01 the defendant is entitled to must be stated in 

the criminal judgment.

[¶6] Comes asserts he has not been provided with credit for 307 days of 

pretrial custody. To the extent he challenges the second amended judgment

itself, his argument fails on its face because the second amended judgment 

expressly provides that Comes is to be given credit for the 307 days he was 

held in custody prior to sentencing. To the extent his argument challenges the 

administrative actions of the Department of Corrections, as explained in 

Section II of this opinion, N.D.C.C. ch. 29-32.1 pertaining to post-conviction 

relief does not provide a remedy.

IV

[¶7] The district court properly dismissed Comes’ N.D.C.C. ch. 29-32.1 postconviction relief challenge to the accumulation and credit of good time, and 
4

his challenge asserting he has not been given credit for the 307 days he was 

held in custody prior to his sentencing. We affirm the order dismissing Comes’ 

application for post-conviction relief.

[¶8] Jon J. Jensen, C.J.

Gerald W. VandeWalle

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte