State v. Glasser , 2021 ND 60 ( 2021 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
MARCH 24, 2021
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2021 ND 60State 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.
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.
1
[¶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.
2
[¶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.
3
[¶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).
4
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
5