            Filed 11/20/19 by Clerk of Supreme Court

                  IN THE SUPREME COURT
                  STATE OF NORTH DAKOTA

                                2019 ND 274

State of North Dakota,                                  Plaintiff and Appellee
      v.
Jeremy Michael Maines,                              Defendant and Appellant



                         Nos. 20180395 & 20180396

Appeal from the District Court of Mountrail County, North Central Judicial
District, the Honorable Douglas L. Mattson, Judge.

AFFIRMED.

Opinion of the Court by McEvers, Justice.

Wade G. Enget, State’s Attorney, Stanley, ND, for plaintiff and appellee.

Ashley K. Schell, Fargo, ND, for defendant and appellant.
                              State v. Maines
                         Nos. 20180395 & 20180396

McEvers, Justice.

[¶1] Jeremy Maines appeals from the district court’s amended criminal
judgments and finding he is a habitual offender. We affirm.

                                       I

[¶2] In April 2017, Maines was charged with robbery and theft of property.
The State later charged Maines with four counts of terrorizing. The State filed
notices alleging Maines was subject to imposition of an enhanced sentence as
a habitual offender under N.D.C.C. § 12.1-32-09(2), based on prior felony
convictions in the state of Washington. In July 2018, Maines plead guilty to
robbery and four counts of terrorizing. On October 25, 2018, the district court
held a hearing to determine whether Maines was a habitual offender under
N.D.C.C. § 12.1-32-09(1)(c). The district court found Maines was a habitual
offender because his prior convictions in Washington were felonies that
occurred while he was an adult. The court sentenced Maines to 20 years with
8 years suspended for 5 years for the robbery charge. Maines was sentenced
to 5 years on each count of the terrorizing charges, to run concurrently with
each other and the previous sentence. On October 26, 2018, the court entered
judgments consistent with the sentence. Maines appeals.

                                       II

[¶3] Maines argues on appeal the district court abused its discretion by
sentencing him as a habitual offender. Specifically, he claims his prior
convictions are misdemeanors under North Dakota law and do not apply under
the habitual offender statute.

[¶4] “A district court has discretion in sentencing, and review of a sentence is
generally limited ‘to whether the court acted within the statutorily prescribed
sentencing limits or substantially relied on an impermissible factor.’” State v.
Clark, 2012 ND 135, ¶ 18, 818 N.W.2d 739 (quoting State v. Gonzalez, 2011
ND 143, ¶ 6, 799 N.W.2d 402). This Court reviews habitual offender


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proceedings under N.D.C.C. § 12.1-32-09 and the application of a sentence
enhancement for an abuse of discretion. Clark, at ¶ 18. “A trial court abuses
its discretion only when it acts in an arbitrary, unreasonable, or capricious
manner, or misinterprets or misapplies the law.” State v. Cain, 2011 ND 213,
¶ 16, 806 N.W.2d 597 (quoting State v. Carpenter, 2011 ND 20, ¶ 22, 793
N.W.2d 765).

[¶5] To determine whether the district court abused its discretion in
sentencing, we must look to the application of the habitual offender statute.
“Statutory interpretation is a question of law, which this Court reviews de
novo.” Rice v. Neether, 2016 ND 247, ¶ 9, 888 N.W.2d 749. “In construing
statutes, the specific controls the general.” McKenzie Cty. v. Reichman, 2012
ND 20, ¶ 18, 812 N.W.2d 332; N.D.C.C. § 1-02-07.

[¶6] Maines does not dispute he has prior convictions in Washington. Maines
argues his prior convictions are misdemeanors under N.D.C.C. § 12.1-32-02(9)
for the purpose of determining whether he was a habitual offender. N.D.C.C.
§ 12.1-32-02(9) states:

     A person who is convicted of a felony and sentenced to
     imprisonment for not more than three hundred sixty days is
     deemed to have been convicted of a misdemeanor. However, if an
     order is entered revoking a term of probation that was imposed as
     part of a sentence, the person is deemed to have been convicted of
     a felony.

[¶7] Maines was convicted in Washington of second degree theft in 1994, and
faced a maximum possible penalty of 5 years. Maines was sentenced to 60 days
with 12 months of probation. Maines’ second Washington conviction was in
1996 for second degree burglary, and the maximum penalty Maines could have
faced was 10 years. Maines was sentenced to 9 months with 12 months of
probation. There was no information in the record whether Maines’ probation
was revoked.

[¶8] Maines contends because both of his Washington convictions included
sentences that were less than 360 days and there was no evidence presented



                                     2
that his probation was revoked, both convictions should be considered
misdemeanors under N.D.C.C. § 12.1-32-02(9).

[¶9] The district court may extend an offender’s sentence if the offender is
found to be a habitual offender under N.D.C.C. § 12.1-32-09, which states, in
relevant part:

      1.     A court may sentence a convicted offender to an extended
      sentence as a dangerous special offender or a habitual offender in
      accordance with this section upon a finding of any one or more of
      the following:
      ...
      c.     The convicted offender is a habitual offender. The court may
      not make such a finding unless the offender is an adult and has
      previously been convicted in any state or states or by the United
      States of two felonies of class C or above committed at different
      times when the offender was an adult. For the purposes of this
      subdivision, a felony conviction in another state or under the laws
      of the United States is considered a felony of class C or above if it
      is punishable by a maximum term of imprisonment of five years or
      more.

(Emphasis added.)

[¶10] The issue here is whether N.D.C.C. § 12.1-32-02(9) applies to make
Maines’ Washington convictions misdemeanors based on the length of his
sentences for those convictions. “Words used in any statute are to be
understood in their ordinary sense, unless a contrary intention plainly
appears, but any words explained in this code are to be understood as thus
explained.” N.D.C.C. § 1-02-02. Section 12.1-32-09, N.D.C.C., specifically
refers to convictions in another state and defines a felony in another state as
“if it is punishable by a maximum term of imprisonment of five years or more.”

[¶11] A plain reading of N.D.C.C. § 12.1-32-09 contains no reference to actual
time served, rather it refers to the maximum possible term of imprisonment.
Even assuming N.D.C.C. § 12.1-32-02(9) may apply to out of state convictions
whereby felonies could be deemed misdemeanors for another purpose,
N.D.C.C. § 12.1-32-09 specifically defines what constitutes an out of state


                                       3
felony conviction for purposes of sentencing as a habitual offender. The specific
controls the general and “punishable” does not have the same meaning as
“punished.”

[¶12] This case is similar to Peltier v. U.S., 867 F.2d 1125 (8th Cir. 1989).
Peltier received an enhanced federal sentence because he had previously been
convicted of three prior offenses each “punishable . . . by death or imprisonment
in excess of one year” under North Dakota state law. Id. at 1127. Peltier
argued his charge of unauthorized use of a motor vehicle should not be
considered for enhancement, as North Dakota considered it a misdemeanor.
Id. The Eighth Circuit concluded “[w]hether North Dakota chooses to label an
offense as a misdemeanor or a felony after completion of a particular sentence
is of secondary importance; what matters is the potential penalty which the
offense carries under state law.” Id.

[¶13] Maines’ prior convictions had potential punishable sentences of at least
five years, as required by the statute to be considered a felony for a habitual
offender. Like Peltier, what matters is the potential penalty which the offense
carries under state law.

                                       III

[¶14] The district court’s amended judgments are affirmed.

[¶15] Lisa Fair McEvers
      Daniel J. Crothers
      Jerod E. Tufte
      Jon J. Jensen
      Gerald W. VandeWalle, C.J.




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