               Filed 1/15/19 by Clerk of Supreme Court
                         IN THE SUPREME COURT
                     STATE OF NORTH DAKOTA


                                 2019 ND 154


State of North Dakota,                                     Plaintiff and Appellee

      v.

MyKennah Lott,                                          Defendant and Appellant


                                 No. 20180154


       Appeal from the District Court of Morton County, South Central Judicial
District, the Honorable David W. Nelson, Surrogate Judge.

      AFFIRMED, SENTENCE VACATED, AND REMANDED.

      Opinion of the Court by Jensen, Justice.

      Allen M. Koppy, Morton County State’s Attorney, Mandan, ND, for plaintiff
and appellee.

      Caitlyn A. Pierson, Minot, ND, for defendant and appellant.
                                    State v. Lott
                                    No. 20180154


       Jensen, Justice.
[¶1]   MyKennah Leigh Lott appeals from a criminal judgment after she was found
guilty of preventing arrest following a bench trial. Lott challenges the sufficiency of
the evidence and asserts she was improperly denied an opportunity to address the
court during sentencing. We affirm the conviction, vacate the sentence, and remand
for resentencing.
                                          I.
[¶2]   In January 2017, Lott and an acquaintance were found walking on property
owned by the Dakota Access Pipeline. Law enforcement personnel approached the
pair and Lott began to “step backwards at a fairly brisk pace” while law enforcement
gathered more information. Lott was eventually informed she was under arrest for
trespassing. Lott resisted arrest, broke free, and eventually had to be taken to the
ground in order to be arrested. After a bench trial, Lott was found guilty of
preventing arrest under N.D.C.C. § 12.1-08-02. During sentencing, the district court
asked Lott’s counsel for a sentencing recommendation. Counsel conferred with Lott
and requested fines and fees be waived. Nothing in the record indicates Lott was
personally addressed and afforded the opportunity to speak on her behalf during the
sentencing phase.
                                          II.
[¶3]   Lott argues the evidence was insufficient to convict her of preventing arrest.
We summarily affirm the conviction of preventing arrest under N.D.R.App.P.
35.1(a)(3), concluding there was sufficient evidence to support the guilty verdict.
[¶4]   Lott argues the case should be remanded for resentencing because she was
denied an opportunity to make a statement prior to being sentenced.             Under
N.D.R.Crim.P. 32, the district court “must . . . determine whether the defendant
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wishes to make a statement on the defendant’s own behalf or wishes to present
information in mitigation of punishment or information that would require the court
to withhold judgment and sentence.” This Court has stated:
       Rule 32, N.D.R.Crim.P., is similar to its federal counterpart. The
       United States Supreme Court has interpreted Rule 32(a),
       Fed.R.Crim.P., as being intended to allow the defendant to personally
       be afforded the opportunity to speak before the imposition of sentence.
       Green v. United States, 365 U.S. 301, 304, 81 S.Ct. 653, 5 L.Ed.2d 670
       (1961). The Supreme Court rejected the contention that merely
       affording the defendant’s counsel an opportunity to speak before
       sentencing fulfills the role of Rule 32(a). Id.
State v. Beckman, 1999 ND 54, ¶ 16, 591 N.W.2d 120.
[¶5]   In Beckman, the district court did not directly address the defendant before
imposing the sentence. 1999 ND 54, ¶ 17, 591 N.W.2d 120. Rather, the district court
heard the prosecutor’s recommendation and then the defendant’s counsel provided a
recommendation. Id. The district court went on to sentence the defendant without
personally addressing her to determine if she wished to make a statement. Id. On
appeal, this Court remanded for resentencing and stated that “[w]hile it is unclear
whether Beckman would have taken the opportunity to speak, Rule 32,
N.D.R.Crim.P., at the very least mandates she be given an opportunity.” Id.
[¶6]   This case mirrors Beckman. The record indicates Lott’s counsel was prompted
about sentencing and then conferred with Lott. After conferring with Lott, counsel
indicated Lott was requesting the fines and fees be waived and she be given credit for
time served. The record does not indicate whether Lott was asked if she would like
to make a statement.
[¶7]   The State argues Lott indirectly made her wishes known with regard to
sentencing through her attorney. The United States Supreme Court has stated the
right of allocution “explicitly affords the defendant two rights: to make a statement
in his own behalf, and to present any information in mitigation of punishment.”
Green v. United States, 365 U.S. 301, 304 (1961) (internal quotation marks omitted).

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During a pre-sentence statement, a defendant may take responsibility for their actions,
describe mitigating personal factors, or humanize themselves in front of the court.
Kimberly A. Thomas, Beyond Mitigation: Towards a Theory of Allocution, 75
Fordham L. Rev. 2641, 2655, 2666 (2007). “By requiring the sentencing judge to
listen with care to the defendant’s statement, courts emphasize that the defendant’s
opportunity for allocution should not be viewed as an empty ritual, but rather as a
vital and integral part of the sentencing process.” Mary Margaret Giannini, Equal
Rights for Equal Rites?: Victim Allocution, Defendant Allocution, and the Crime
Victims’ Rights Act, 26 Yale L. & Pol’y Rev. 431, 463 (2008). Further, the right of
allocution “is the type of important safeguard that helps assure the fairness, and hence
legitimacy, of the sentencing process.” United States v. Adams, 252 F.3d 276, 288
(3d Cir. 2001) (holding that failing to personally address the defendant before
sentencing was plain error). The right to allocation includes more than the defendant
expressing their desired sentence.
[¶8]   Lott did not object to her lack of an opportunity to make an allocution
statement during sentencing. Generally, issues not raised at trial will not be addressed
on appeal unless the alleged error rises to the level of obvious error under
N.D.R.Crim.P. 52(b). State v. Frohlich, 2007 ND 45, ¶ 31, 729 N.W.2d 148. This
Court’s obvious error standard is well established:
       To establish obvious error, the defendant has the burden to demonstrate
       plain error which affected his substantial rights. To constitute obvious
       error, the error must be a clear deviation from an applicable legal rule
       under current law. There is no obvious error when an applicable rule
       of law is not clearly established.
State v. Tresenriter, 2012 ND 240, ¶ 12, 823 N.W.2d 774 (citations omitted).
[¶9]   This Court held in Beckman that a district court’s omission of a defendant’s
opportunity to make a statement before sentencing is a legal error. The Beckman
holding constitutes established law for which the failure to follow constitutes obvious



                                           3
error. However, we are still required to determine whether this error affects
substantial rights.
[¶10] North Dakota’s obvious error standard is adapted from Fed.R.Crim.P. 52. See
N.D.R.Crim.P. 52, Explanatory Note. “[North Dakota’s] rule differs from the federal
rule only in the substitution of the word ‘obvious’ for ‘plain.’” State v. Olander, 1998
ND 50, ¶ 13, 575 N.W.2d 658 (discussing N.D.R.Crim.P. 52, Explanatory Note).
When our rule is derived from a federal rule, we may look to the federal courts’
interpretation or construction of identical or similar language as persuasive authority
for interpreting our rule. State v. Runck, 534 N.W.2d 829, 831 (N.D. 1995).
[¶11] The Eighth Circuit has recognized plain error when the right to make an
allocution statement is overlooked, but has not provided a detailed analysis. See
United States v. Harper, No. 91-2347, 1991 WL 206287 (8th Cir. Oct. 16, 1991)
(district court’s omission of an opportunity for defendant to allocute required
resentencing). However, the Tenth Circuit has gone into greater detail. In United
States v. Bustamante-Conchas, the Tenth Circuit held that unpreserved allocution
errors are subject to plain error review. 850 F.3d 1130, 1137 (10th Cir. 2017). The
Tenth Circuit acknowledged the inherent difficulty of speculating as to whether a
defendant’s allocution statement would have resulted in a different sentence. Id. at
1139. The Bustamante-Conchas Court addressed this difficulty by holding that
generally an individual who has been denied the right of allocution has met the burden
of showing their substantial rights were affected. Id. However, if a defendant cannot
potentially receive a lower sentence, the error is not prejudicial. Id. at 1140.




                                          III.
[¶12] Beckman established that N.D.R.Crim.P. 32., mandates a defendant be given
an opportunity to make a statement prior to sentencing, and we hold that an individual
who has been denied the right of allocution has generally met the burden of showing
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their substantial rights were affected. Lott received a reasonable sentence, but not the
minimum allowable sentence and it is possible Lott may have received a lighter
sentence had she been given the opportunity to allocute. Rule 32, N.D.R.Crim.P.,
mandates Lott be given an opportunity to speak on her behalf before sentencing. We
affirm the conviction, vacate the sentence, and remand for resentencing consistent
with this opinion.
[¶13] Jon J. Jensen
      Lisa Fair McEvers
      Daniel J. Crothers
      Jerod E. Tufte
      Gerald W. VandeWalle, C.J.




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