                Filed 4/11/19 by Clerk of Supreme Court
                         IN THE SUPREME COURT
                      STATE OF NORTH DAKOTA


                                   2019 ND 99


State of North Dakota,                                       Plaintiff and Appellee

      v.

Marlon Leon Comes,                                       Defendant and Appellant


                                  No. 20180312


      Appeal from the District Court of Ramsey County, Northeast Judicial District,
the Honorable Donovan J. Foughty, Judge.

      VACATED AND REMANDED.

      Opinion of the Court by McEvers, Justice.

       Kari M. Agotness, State’s Attorney, Devils Lake, ND, for plaintiff and
appellee; submitted on brief.

       Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant; submitted
on brief.
                                   State v. Comes
                                    No. 20180312


       McEvers, Justice.
[¶1]   Marlon Comes appeals from a district court’s second amended criminal
judgment entered over twenty years after the original criminal judgment. We vacate
the second amended judgment and remand, concluding the district court abused its
discretion by sua sponte amending the criminal judgment without providing the
parties notice of its intent to amend the judgment.


                                           I
[¶2]   In 1996, the State charged Comes with murder, a class AA felony, and robbery,
a class A felony. Comes pleaded guilty to both charges and the district court
sentenced him on the murder charge to life imprisonment at the North Dakota
Department of Corrections and Rehabilitation (“DOCR”) with the possibility of
parole, and a concurrent 10 years for robbery, with 307 days credit for time served.
Comes has filed several previous post-conviction relief petitions that have all been
denied. See Comes v. State, 2018 ND 54, ¶¶ 3, 5, 907 N.W.2d 393.
[¶3]   In August 2018, the district court issued a memorandum of law and order for
second amended judgment. No post-conviction relief petition was filed prompting the
court’s action. While there is nothing in the record to reflect why the court acted,
based on the court’s memorandum, the court was apparently responding to a request
from DOCR for an amended judgment “that contains a calculation of [Comes’] life
expectancy, in order for DOC[R] to determine when he becomes eligible for parole.”
The court noted DOCR’s request referenced the 1997 version of N.D.C.C. § 12.1-32-
09.1, a sentencing statute, which explains a mortality table should be used to calculate
the “sentence imposed.” The court relied on a table specific to American Indian
mortality rates to calculate Comes’ life expectancy of 52 years rather than following
the mortality table promulgated by N.D. Sup. Ct. Admin. R. 51. The court’s second

                                           1
amended judgment indicates Comes must serve 44 years and 73 days, taking into
account the credit for 307 days previously served.


                                            II
[¶4]   “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. Peterson, 2016 ND 192, ¶ 8, 886 N.W.2d 71 (citing State v. Rueb, 249
N.W.2d 506, 511-12 (N.D. 1976)). “A 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.” Peterson, at ¶ 8 (citation omitted). “The standard of review
for constitutional issues is de novo.” Id. (citation omitted).


                                           III
[¶5]   Under U.S. Const. art. I, § 10 and N.D. Const. art. I, § 18, Comes argues the
district court violated the prohibition on ex post facto punishment by relying on
N.D.C.C. § 12.1-32-09.1, including its 1997 amendments, in calculating Comes’
sentence in the 2018 second amended criminal judgment. Comes raises this argument
for the first time on appeal. We have repeatedly held that issues not raised before the
district court, including constitutional issues, will not be considered for the first time
on appeal. State v. Gray, 2017 ND 108, ¶ 13, 893 N.W.2d 484. Here, however,
Comes was deprived of the opportunity to present his argument before the district
court because the court failed to provide notice to either Comes or the State prior to
entering the second amended judgment.
[¶6]   The district court did not explain its authority to amend the criminal judgment,
and there was no motion pending before the court. Rule 35, N.D.R.Crim.P., addresses
modifying sentences as follows:
       (a) Correction of Sentence.
              (1) Illegal Sentence. The sentencing court shall correct
              an illegal sentence at any time and may correct a

                                            2
             sentence imposed in an illegal manner within the time
             provided for reduction of sentence in Rule 35(b)(1).
             (2) Clear Error. After giving any notice it considers
             appropriate, the sentencing court may correct a sentence
             that resulted from arithmetical, technical, or other clear
             error.
       (b) Reduction of Sentence.
             (1) Time for Reduction. The sentencing court may
             reduce a sentence:
                     (A) within 120 days after the court
                     imposes sentence or revokes probation; or
                     (B) within 120 days after the court
                     receives the mandate issued upon
                     affirmance of the judgment or dismissal of
                     the appeal; or
                     (C) within 120 days after the Supreme
                     Court of the United States enters any order
                     or judgment denying review of, or having
                     the effect of upholding a judgment of
                     conviction or probation revocation.
             (2) Motion for Reduction. On a party’s motion or on its
             own, and with notice to the parties, the court may grant
             a sentence reduction. Changing a sentence from a
             sentence of incarceration to a grant of probation is a
             permissible sentence reduction. If the sentencing court
             grants a sentence reduction, it must state its reasons for
             the reduction in writing.
[¶7]   In State v. Rueb, 249 N.W.2d 506, 510 (N.D. 1976), we considered the State’s
argument that it was entitled to notice of a defendant’s motion for reduction of
sentence. We emphasized the value that notice to both parties provides to the judicial
process:
              In addition to the specific requirements of the Rules, we are
       convinced that it is for the protection and to the benefit of the
       sentencing judge to receive information and argument from the State’s
       Attorney whether or not a sentence should be reduced. This is [a]
       safety measure that the judge should insist upon even if the Rules did
       not require this. We construe the provisions of Rules 35, 47, and 49,
       NDRCrimP, to mean that whenever a motion is made by an attorney for
       a defendant to reduce a sentence, such motion must be served upon the
       State’s Attorney, and where the application is made by the defendant
       pro se the court should give notice of such application to the State’s

                                          3
       Attorney. By giving such notice, the court will have the benefit of the
       two sides and will also eliminate any unwarranted criticism of the
       judicial process. It has been stated that it is not sufficient that justice
       be done but that justice must also appear to be done. This would give
       recognition to this philosophic concept. Where the court decides to
       reduce the sentence sua sponte prior notice is also required as stated
       above and for the same reasons.
Id. at 511 (emphasis added).
[¶8]   Following Rueb, amendments made to N.D.R.Crim.P. 35(a)(2) in 2006
provided that the sentencing court may correct a sentence that resulted from
arithmetical, technical, or other clear error “after giving any notice it considers
appropriate.” (Emphasis added.) Assuming, without deciding, the district court acted
under N.D.R.Crim.P. 35(a)(2), it was required to give an appropriate amount of
advance notice to both Comes and the State prior to issuing the second amended
judgment. Nothing in the record indicates either party received any notice that the
court intended to amend the judgment. Because we conclude the court abused its
discretion in sua sponte amending the judgment without providing notice, the
arguments Comes makes regarding the propriety of the court’s application of
N.D.C.C. § 12.1-32-09.1, including its 1997 amendments, to his second amended
judgment may be considered on remand once notice has been provided to both parties.


                                           IV
[¶9]   We vacate the second amended judgment and remand for further proceedings
consistent with this opinion.
[¶10] Lisa Fair McEvers
      Jon J. Jensen
      Jerod E. Tufte
      Daniel J. Crothers
      Gerald W. VandeWalle, C.J.




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