            Filed 12/12/19 by Clerk of Supreme Court

                  IN THE SUPREME COURT
                  STATE OF NORTH DAKOTA

                                2019 ND 284

State of North Dakota,                                  Plaintiff and Appellee
     v.
James Dubois, Jr.,                                  Defendant and Appellant



                                No. 20190062

Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable Steven L. Marquart, Judge.

AFFIRMED.

Opinion of the Court by McEvers, Justice.

Kimberlee J. Hegvik (appeared), Assistant State’s Attorney, and Emily J.
Christensen (argued), third-year law student, under the Rule on Limited
Practice of Law by Law Students, Fargo, ND, for plaintiff and appellee.

Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.
                               State v. Dubois
                                No. 20190062

McEvers, Justice.

[¶1] James Dubois, Jr., appeals from a criminal judgment entered after the
district court revoked his probation and resentenced him to five years’
incarceration. He argues the court abused its discretion in revoking his
probation and the sentence was illegal. We affirm.

                                        I

[¶2] In 2017, Dubois plead guilty to two counts of criminal trespass and
refusal to halt. The first criminal trespass count was a class C felony for which
he was sentenced to a term of eighteen months’ commitment to the North
Dakota Department of Corrections and Rehabilitation, first to serve 90 days
with the balance suspended for eighteen months of supervised probation, to be
served concurrently with the other two counts.

[¶3] In January 2019, a probation officer petitioned to revoke Dubois’
probation, alleging he committed three new criminal offenses, and a fourth
allegation that was later dismissed. Dubois was convicted of each of the three
offenses. Dubois admitted the allegations at the revocation hearing and asked
to be placed back on probation. The district court rejected that request and
asked for an alternative recommendation from Dubois. Dubois then argued for
a sentence of time already served. The court revoked his probation and
resentenced him to five years’ incarceration with credit for time previously
served.

                                       II

[¶4] Dubois argues the district court abused its discretion in revoking his
probation. “In an appeal of a probation revocation, we first review the district
court’s factual findings under the clearly erroneous standard and then review
the court’s decision to revoke probation under the abuse of discretion
standard.” State v. Dockter, 2019 ND 203, ¶ 11, 932 N.W.2d 98. Here, the
factual findings are not at issue, because Dubois admitted the allegations in


                                       1
the petition. Therefore, we review only for an abuse of discretion. “A district
court abuses its discretion when it acts in an arbitrary, unreasonable, or
unconscionable manner, or when it misinterprets or misapplies the law.”
Kalmio v. State, 2019 ND 223, ¶ 22, 932 N.W.2d 562 (quoting City of Napoleon
v. Kuhn, 2016 ND 150, ¶ 8, 882 N.W2d 301).

[¶5] Section 12.1-32-07(6), N.D.C.C., authorizes a district court to revoke
probation for a violation of probation conditions occurring before the expiration
or termination of the period of probation. As a result of the three new offenses
to which Dubois admitted, the court had legal authority to revoke his
probation. The State recommended the previous sentence be revoked and for
Dubois to be resentenced to serve five years with credit for time served. The
State’s recommendation was based on Dubois’ criminal history, including
previous failures on probation resulting in his probation being revoked. The
State described convictions in 2015 for felony assault and in 2016 for simple
assault. Prior to sentencing Dubois, the court considered his criminal history
and specifically noted the seriousness of the new offense. By revoking
probation for new criminal offenses after considering Dubois’ criminal history,
the court did not act arbitrarily, unreasonably, or unconscionably and did not
abuse its discretion.

                                       III

[¶6] Dubois argues the district court abused its discretion in resentencing
him because it did not analyze each factor of the statutory sentencing factors
under N.D.C.C. § 12.1-32-04. A court has discretion in sentencing, and review
of a sentence is generally limited “to whether the trial court acted within the
statutorily prescribed sentencing limits or substantially relied on an
impermissible factor.” State v. Gonzalez, 2011 ND 143, ¶ 6, 799 N.W.2d 402.
In Gonzales, this Court addressed sentencing following revocation of probation
and stated, a court need not explicitly reference the statutory sentencing
factors when fixing a sentence. Id. at ¶ 8. The record does not show the court
substantially relied on an impermissible factor and we conclude the court did
not abuse its discretion.




                                       2
                                       IV

[¶7] Dubois argues the district court’s new sentence of five years’
imprisonment is illegal because it exceeds the balance of the eighteen-month
term to which he was originally sentenced. In support, he cites N.D.C.C. §
12.1-32-07(6), which states:

      The court, upon notice to the probationer and with good cause, may
      modify or enlarge the conditions of probation at any time prior to
      the expiration or termination of the period for which the probation
      remains conditional. If the defendant violates a condition of
      probation at any time before the expiration or termination of the
      period, the court may continue the defendant on the existing
      probation, with or without modifying or enlarging the conditions,
      or may revoke the probation and impose any other sentence that
      was available under section 12.1-32-02 or 12.1-32-09 at the time of
      initial sentencing or deferment. In the case of suspended execution
      of sentence, the court may revoke the probation and cause the
      defendant to suffer the penalty of the sentence previously imposed
      upon the defendant.

Dubois argues the last sentence of N.D.C.C. § 12.1-32-07(6) limits a court’s
resentencing authority on revocation of probation to the balance of a previously
suspended sentence. Review of the transcript of the revocation hearing and
the record show Dubois did not make this argument to the court.


[¶8] Issues not raised in the district court cannot generally be raised for the
first time on appeal. State v. Dockter, 2019 ND 203, ¶ 8, 932 N.W.2d 98. The
purpose of an appeal is to review the actions of the court, rather than to give
the appellant an opportunity to develop new theories of strategies. Id. We
may, however, consider an issue raised for the first time on appeal if it rises to
the level of obvious error. Id. (relying on State v. Alberts, 2019 ND 66, ¶ 7, 924
N.W.2d 96). In order to establish obvious error, the defendant must
demonstrate plain error affecting substantial rights.             Id.   See also
N.D.R.Crim.P. 52(b). To show obvious error there must be a clear deviation
from an applicable legal rule. Dockter, at ¶ 8.




                                        3
[¶9] We have long held that the current provisions of N.D.C.C. § 12.1-32-07(6)
allow a district court to impose any sentence available at the initial time of
sentencing upon revocation of probation. Peltier v. State, 2003 ND 27, ¶ 13,
657 N.W.2d 238; Davis v. State, 2001 ND 85, ¶ 13, 625 N.W.2d 855; State v.
Lindgren, 483 N.W.2d 777, 779 (N.D. 1992); State v. Gefroh, 458 N.W.2d 479,
483 (N.D. 1990); State v. Vavrosky, 442 N.W.2d 433, 437 (N.D. 1989).

[¶10] Our longstanding interpretation recognizes that a sentence which
includes probation is not final and is intended to provide the district court with
a flexible alternative to monitoring a defendant’s conduct while on probation,
but reflects the need to alter a sentence that was not effective. Davis, 2001 ND
85, ¶ 11, 625 N.W.2d 855.

[¶11] Dubois did not argue that his sentence was illegal in the district court,
nor did he argue obvious error on appeal. We conclude the court did not commit
obvious error because it did not deviate from our longstanding precedent.

[¶12] We affirm the judgment.

[¶13] Lisa Fair McEvers
      Daniel J. Crothers
      Gerald W. VandeWalle, C.J.




                                        4
Jensen, Justice, concurring specially.

                                       I

[¶14] The majority opinion is well written and follows this Court’s precedent
regarding revocation of probation and resentencing a defendant. I concur in
part I of the majority opinion outlining the facts and part II of the majority
opinion affirming the revocation of Dubois’ probation for the commission of a
subsequent criminal offense. I also concur in part III of the majority opinion
concluding the district court did not abuse its discretion in resentencing Dubois
by not providing a factor-by-factor analysis of the statutory sentencing factors.
Part IV is also well written, adheres to our precedent and, after determining
the issue was not raised below, applies the obvious error standard of review to
affirm the district court. I concur in the result of part IV. However, I write
separately because N.D.C.C. § 12.1-32-07(6) unambiguously limits
resentencing in this case to the previously imposed suspended sentence, and if
the issue had been raised in the district court, the appropriate result would
have been to reverse and remand this case for the imposition of a sentence
consistent with Dubois’ prior suspended sentence.

                                       II

[¶15] In 2017, Dubois was originally sentenced to eighteen months of
incarceration with all but ninety days suspended during a period of eighteen
months of supervised probation. In January of 2019, the district court revoked
his probation and resentenced him to five years of incarceration. On appeal,
Dubois argues the new sentence is illegal because the term of imprisonment
exceeds the suspended balance of the eighteen-month term to which he was
originally sentenced. Dubois relies upon the language of N.D.C.C. § 12.1-32-
07(6), which states:

      The court, upon notice to the probationer and with good cause, may
      modify or enlarge the conditions of probation at any time prior to
      the expiration or termination of the period for which the probation
      remains conditional. If the defendant violates a condition of
      probation at any time before the expiration or termination of the
      period, the court may continue the defendant on the existing


                                       5
      probation, with or without modifying or enlarging the conditions,
      or may revoke the probation and impose any other sentence that
      was available under section 12.1-32-02 or 12.1-32-09 at the time of
      initial sentencing or deferment. In the case of suspended execution
      of sentence, the court may revoke the probation and cause the
      defendant to suffer the penalty of the sentence previously imposed
      upon the defendant.

(Emphasis added.)

                                      III

[¶16] The majority opinion accurately notes our Court has held that a district
court may impose any sentence available at the initial time of sentencing upon
revocation of probation, even when the prior sentence has suspended execution
of some or all of the sentence. Applying an obvious error standard of review,
the majority affirms the judgment sentencing Dubois to a term of
imprisonment exceeding the prior suspended sentence. To understand how we
reached where we are today, we must start with this Court’s decision in State
v. Vavrosky, 442 N.W.2d 433, 437 (N.D. 1989).

[¶17] In Vavrosky the Court was asked to interpret and apply the language of
N.D.C.C. § 12-53-11 which read, in part, as follows:

      “The court . . . may revoke the suspension of the sentence of a
      person convicted of a felony and placed on probation and may
      terminate the probation and cause said person to suffer the
      penalty of the sentence previously imposed upon him, if the court
      shall determine . . . that the probationer has violated any of the
      rules and regulations prescribed for the conduct of probationers.”

When Vavrosky was decided N.D.C.C. § 12.1-32-07(4), the predecessor of
N.D.C.C. § 12.1-32-07(6), did not include the final sentence currently included
in N.D.C.C. § 12.1-32-07(6). That language was included within N.D.C.C. § 12-
53-11. This Court declined to apply the directive provided by N.D.C.C. § 12-
53-11 to impose the suspended sentence upon revocation by concluding as
follows:




                                      6
      Section 12.1-32-07(4), on the other hand, was enacted by the
      Legislature in 1973 as part of a comprehensive revision of our
      criminal code. See 1973 N.D.Sess.Laws Ch. 116, § 31. It was
      obviously intended to be the paramount legislation not only in
      defining criminal offenses but also in the area of sentencing and
      probation. Thus, even if there is a conflict between the two
      sections, and we do not concede there is, Section 12.1-32-07(4)
      controls.

[¶18] This Court issued the decision in Vavrosky on June 27, 1989. Before it
was published the Legislature took the following action, effectively eliminating
the rationale that would subsequently appear in Vavrosky:

      Chapter 12-53, N.D.C.C., was repealed by the 1989 Legislative
      Assembly (S.L. 1989, Ch. 158, § 18). Section 12.1-32-07(4),
      N.D.C.C., was renumbered as 12.1-32-07(5), N.D.C.C., and
      amended by adding the following sentence: “In the case of
      suspended execution of sentence, the court may revoke the
      probation and cause the defendant to suffer the penalty of the
      sentence previously imposed upon the defendant.” S.L. 1989, Ch.
      158, § 4.

State v. Gefroh, 458 N.W.2d 479, 483 (N.D. 1990). In Gefroh, this Court
interpreted that action as the Legislature impliedly adopting our construction
of those sections. Id. at 483-84. This Court went on to conclude as follows:
“We adhere to our decision in Vavrosky and hold that § 12.1-32-07(4), N.D.C.C.,
authorized the district court to increase the length of the sentence imposed,
but suspended, upon resentencing Gefroh after revocation of his probation.”
Id. at 484. Since our decision in Gefroh, this Court has mechanically applied,
without further analysis, Vavrosky and Gefroh’s holdings to eliminate the
directive contained in the last sentence of N.D.C.C. § 12.1-32-07(6) requiring a
district court to impose the suspended portion of any sentence upon the
revocation of probation.

[¶19] The continued application of Vavrosky to eliminate the directive
contained in the last sentence of N.D.C.C. § 12.1-32-07(6), which requires the
imposition of the sentence previously imposed on the defendant, is not
appropriate. First, as conceded by the State, ignoring the final sentence of


                                       7
N.D.C.C. § 12.1-32-07(6) eliminates any purpose for imposing a “suspended
sentence.” Currently, a “suspended sentence” has neither meaning nor
application because the subsequent revocation and resentencing are treated
the same as any other sentence.

[¶20] Second, the original rationale of this Court in Vavrosky was premised
upon N.D.C.C. § 12.1-32-07(4), the predecessor to N.D.C.C. § 12.1-32-07(6),
being “paramount” legislation justifying the suspended sentence language of
N.D.C.C. § 12-53-11 not be applied. However, Vavrosky was issued after the
Legislature had already taken action to repeal Chapter 12-53 and amended the
N.D.C.C. § 12.1-32-07(4) to include the suspended sentence language from
N.D.C.C. § 12-53-11. What actually occurred was the Legislature placed the
language at issue in this case into the “paramount legislation” from the
subordinate legislation. The Legislature must have believed the language had
some meaning. The Legislature certainly would not have moved the language
from the repealed Chapter 12-53 if it did not have any application. The
Legislature had effectively eliminated the rationale relied upon for the opinion
in Vavrosky before the opinion was even published.

[¶21] Third, one year after our opinion in Vavrosky, and before the Legislature
reconvened for another session, this Court issued its opinion in Gefroh. There
we proclaimed the repeal of Chapter 12-53 was evidence of the Legislature
impliedly adopting our construction of those sections. Id. at 484. There are
at least three problems with that explanation. One problem is the Legislature
passed the repeal prior to the Vavrosky opinion being published. It is
improbable that the Legislature adopted our rationale, as stated in Vavrosky,
by taking action prior to the issuance of the opinion. A second problem is the
Legislature had not reconvened between the issuance of the Vavrosky opinion
in June of 1989 and the issuance of the Gefroh opinion in 1990. I decline to
proclaim “legislative acquiescence” based on action prior to our Court issuing
an opinion or based on inaction between legislative sessions.

[¶22] Yet another problem was the Legislature did not eliminate the
suspended sentence directive when it repealed Chapter 12-53 as appears to be
assumption in Gefroh. To the contrary, it took that specific directive and added


                                       8
as the last sentence of N.D.C.C. § 12.1-32-07(6). Gefroh simply adopts the
conclusion from our prior decision in Vavrosky without any new analysis or
recognition the suspended sentence directive had been added to N.D.C.C.
§ 12.1-32-07(6). This is problematic since the rationale for Vavrosky was to
ignore the Legislature’s directive to treat suspended sentences differently
because it was not included within the paramount legislation dealing with
probation revocation. The Gefroh opinion does not recognize that prior to
Vavrosky, and effective within months after Vavrosky, the Legislature had
moved the suspended sentence language into the paramount legislation. The
rationale upon which Vavrosky was issued had been eliminated by legislative
action. Rather than legislative acquiescence, as stated in Gefroh, the
Legislature had taken action contrary to the rationale of the Vavrosky decision.
No subsequent decision has offered new rationale for ignoring the
unambiguous language of the statute.

[¶23] The United States Supreme Court has recognized the doctrine of stare
decisis is diminished “when the precedent’s underlying reasoning has become
so discredited that the Court cannot keep the precedent alive without jury-
rigging new and different justifications to shore up the original mistake.”
Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 379 (2010). No new
rationale for ignoring the unambiguous language regarding suspended
sentences has been offered by this Court subsequent to Vavrosky. Therefore,
this Court must necessarily continue to rely on “paramount legislation”
rationale of Vavrosky. That rationale was eliminated by the Legislature before
the Vavrosky opinion was even issued, effective within months after Vavrosky
was issued. Stare decisis does not control when adherence to the prior decision
requires “fundamentally revising its theoretical basis” and stare decisis
certainly should not carry the day when the original rationale has been
eliminated and no alternative rationale has been proposed.

[¶24] In rejecting the application of stare decisis in Citizens United, the United
States Supreme Court provided the following summary:

      To the extent that the Government’s case for reaffirming Austin
      depends on radically reconceptualizing its reasoning, that


                                        9
      argument is at odds with itself. Stare decisis is a doctrine of
      preservation, not transformation. It counsels deference to past
      mistakes, but provides no justification for making new ones. There
      is therefore no basis for the Court to give precedential sway to
      reasoning that it has never accepted, simply because that
      reasoning happens to support a conclusion reached on different
      grounds that have since been abandoned or discredited.

      Doing so would undermine the rule-of-law values that justify stare
      decisis in the first place. It would effectively license the Court to
      invent and adopt new principles of constitutional law solely for the
      purpose of rationalizing its past errors, without a proper analysis
      of whether those principles have merit on their own. This
      approach would allow the Court’s past missteps to spawn future
      mistakes, undercutting the very rule-of-law values that stare
      decisis is designed to protect.

Citizens United, 558 U.S. at 384 (2010). The original rationale for ignoring the
unambiguous language related to suspended sentences no longer exists, and
had in fact been eliminated before the rationale was even stated by this Court.
We should not adopt or invent new principles for the purpose of rationalizing
our past errors.

[¶25] Fourth, the language of N.D.C.C. § 12.1-32-07(6) is unambiguous and
reads as follows: “In the case of suspended execution of sentence, the court may
revoke the probation and cause the defendant to suffer the penalty of the
sentence previously imposed upon the defendant.” The State appears to
concede the language is unambiguous, relying exclusively on our decision in
Vavrosky and subsequent cases to support its argument.

[¶26] The meaning of the final sentence of N.D.C.C. § 12.1-32-07(6) becomes
even clearer when you compare the final two sentences. Together, those
sentences read as follows:

      If the defendant violates a condition of probation at any time before
      the expiration or termination of the period, the court may continue
      the defendant on the existing probation, with or without modifying
      or enlarging the conditions, or may revoke the probation and
      impose any other sentence that was available under section 12.1-


                                       10
      32-02 or 12.1-32-09 at the time of initial sentencing or deferment.
      In the case of suspended execution of sentence, the court may revoke
      the probation and cause the defendant to suffer the penalty of the
      sentence previously imposed upon the defendant.

(Emphasis added.) The first of those two sentences establishes a general rule
allowing the court to revoke probation and “impose any other sentence that
was available.” The second sentence is a clear exception to the general rule
and begins “[i]n the case of suspended execution of sentence.” There is no
ambiguity in what the Legislature intended.

[¶27] Fifth, I do not believe there is a compelling rationale for continuing to
follow judicial decisions contrary to the unambiguous language of the statute.
Although there would be a number of sentences impacted by applying the
statute as written, the number would not be overwhelming. Some sentences
violating the statute would be less than the suspended sentence. In those
cases, the State could use its discretion and decline to seek correction of the
sentence. Some sentences may exceed the remaining length of the suspended
sentence. In those cases, I would error on the side of protecting the rights of
the individual defendants, rather than avoiding any administrative
inconvenience caused by having to resentence defendants correctly under
N.D.C.C. § 12.1-32-07(6).

[¶28] The justification for continuing to follow an incorrect judicial decision
based on the potential impact on previously imposed sentences would be an
application of the “reliance” analysis often coupled with the consideration of
stare decisis. I question whether this Court should even apply the “reliance”
analysis in a future challenge to our prior decisions.

      Considerations in favor of stare decisis are at their acme in cases
      involving property and contract rights, where reliance interests
      are involved, see Swift & Co. v. Wickham, 382 U.S. 111, 116, 15 L.
      Ed.2d 194, 86 S. Ct. 258 (1965); Oregon ex rel. State Land Bd. v.
      Corvallis Sand & Gravel Co., 429 U.S. 363, 50 L. Ed. 2d 550, 97 S.
      Ct. 582 (1977); Burnet v. Coronado Oil & Gas Co., supra, at 405–
      411, (Brandeis, J., dissenting); United States v. Title Ins. & Trust
      Co., 265 U.S. 472, 68 L. Ed. 1110, 44 S. Ct. 621 (1924); The Genesee


                                      11
      Chief v. Fitzhugh, 53 U.S. 443, 12 How. 443, 458, 13 L. Ed. 1058
      (1852); the opposite is true in cases such as the present one
      involving procedural and evidentiary rules.

Payne v. Tennessee, 501 U.S. 808 (1991). It is possible a future defendant,
sentenced to the actual suspended sentence on revocation, may argue they
relied on the possibility of a future probation revocation sentence less than the
suspended sentence. That issue is not presented here and, if necessary, can be
addressed in future cases.

[¶29] This Court has recognized “the [stare decisis] rule is not sacrosanct.”
Abbey v. State, 202 N.W.2d 844, 852 (N.D. 1972). Stare decisis should not apply
when the precedent to follow is a “product of mechanical adherence to the latest
decision.” C.R.C. v. C.R.C., 2001 ND 83, ¶ 40, 625 N.W.2d 533 (Neumann, J.,
concurring). The underlying rationale for Vavrosky and Gefroh was eliminated
by the Legislature. The cases following those decisions were mechanical
applications of those two decisions without the expression of any new rationale.
The statute at issue is unambiguous and contrary to our prior decisions. We
should not continue to compound our error in the face of such overwhelming
justification for taking action.

[¶30] This case arises as the result of a defendant receiving a sentence in
excess of the previously suspended sentence. However, it is possible this issue
may return to this Court at the request of the State, following the imposition
of a sentence less than the previously suspended sentence. The analysis should
not change and N.D.C.C. § 12.1-32-07(6) should be applied to impose the
suspended sentence.

                                       IV

[¶31] I concur in parts I, II, and III of the majority opinion. I concur in the
result of part IV of the majority opinion only because the issue was not raised
below and is subject to our obvious error standard of review. Had the issue
been properly raised, I would reverse the judgment, remand this case for




                                       12
sentencing consistent with the final sentence of N.D.C.C. § 12.1-32-07(6), and
direct the imposition of the defendant’s suspended sentence.

[¶32] Jon J. Jensen
      Jerod E. Tufte




                                     13
