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


                                  2019 ND 11


State of North Dakota,                                      Plaintiff and Appellee

      v.

Raymond Arthur Christensen,                              Defendant and Appellant


                                 No. 20180156


      Appeal from the District Court of Stark County, Southwest Judicial District,
the Honorable Rhonda R. Ehlis, Judge.

      SENTENCE VACATED AND REMANDED.

      Opinion of the Court by McEvers, Justice.

        Brittney A. Bornemann, Assistant State’s Attorney, Dickinson, ND, for
plaintiff and appellee; submitted on brief.

      Markus A. Powell, Dickinson, ND, for defendant and appellant.
                               State v. Christensen
                                   No. 20180156


       McEvers, Justice.
[¶1]   Raymond Christensen appeals from a criminal judgment and challenges his jail
sentence for leaving the scene of an accident involving injury and aggravated reckless
driving. Because the district court substantially relied upon an impermissible factor
in sentencing Christensen to jail, we vacate the sentence and remand for resentencing.


                                          I
[¶2]   On April 15, 2017, Christensen was involved in a motor vehicle accident in
Stark County. He was charged with leaving the scene of an accident involving injury
in violation of N.D.C.C. § 39-08-04, a class C felony, and aggravated reckless driving
in violation of N.D.C.C. § 39-08-03, a class A misdemeanor. On November 14, 2017,
Christensen pled guilty to both charges. A presentence investigation recommended
that Christensen be sentenced to a period of supervised probation by the Department
of Corrections.
[¶3]   On February 6, 2018, the district court held a sentencing hearing during which
the responding law enforcement officer and the victim’s fiancé testified. The State
argued that Christensen should be sentenced to serve time in jail. Christensen argued
he should be sentenced to probation as recommended by the presentence investigation
and as required by the presumptive probation statute, N.D.C.C. § 12.1-32-07.4(1).
The court found there were no aggravating factors present to avoid presumptive
probation under N.D.C.C. § 12.1-32-07.4(2), but questioned whether Christensen’s
vehicle could be considered a “dangerous weapon,” an exception to presumptive
probation under N.D.C.C. § 12.1-32-07.4(1). The court allowed the parties to brief
the issue.
[¶4]   The parties’ briefs focused on whether Christensen’s vehicle was a “dangerous
weapon” under this Court’s decision in State v. Vetter, 2013 ND 4, ¶¶ 1, 4, 826

                                          1
N.W.2d 334, in which the defendant was charged with and convicted by a jury of
aggravated assault with a dangerous weapon consisting of a vehicle and where the
jury specifically found that the defendant used a dangerous weapon to inflict injury.
Vetter intentionally drove his vehicle toward the victim, continuing to drive forward
after he fell, and rolled both front and rear tires over him. Vetter, at ¶ 17. This Court
held that, depending on how it is used, a vehicle may constitute a “dangerous
weapon” as defined in N.D.C.C. § 12.1-01-04(6) for purposes of applying the
mandatory minimum sentencing provisions of N.D.C.C. § 12.1-32-02.1, and the jury’s
finding on the issue was supported by the evidence. Vetter, at ¶¶ 4, 15, 16.
[¶5]   At the second sentencing hearing held on April 3, 2018, the district court relied
on Vetter and found “presumptive probation does not apply because there is an
exception because the offense involved a dangerous weapon in this case, which was
your vehicle.” The court sentenced Christensen to three years in jail with all but 360
days suspended for three years followed by supervised probation on the class C felony
charge, and a concurrent sentence of 360 days in jail with 360 days suspended for two
years after his release from incarceration followed by supervised probation on the
class A misdemeanor charge.


                                           II
[¶6]   Christensen argues the district court erred in finding he committed a crime
while using a dangerous weapon and the court misinterpreted the presumptive
probation statute in sentencing him to jail.
[¶7]   Our standard for reviewing criminal sentences is well established:
              We have explained that “[o]ur appellate review of a criminal
       sentence is very limited.” State v. Ennis, 464 N.W.2d 378, 382 (N.D.
       1990).
              “A trial judge is allowed the widest range of discretion in fixing
              a criminal sentence; this court has no power to review the
              discretion of the sentencing court in fixing a term of
              imprisonment within the range authorized by statute. Appellate
              review of a criminal sentence is generally confined to whether
              the [district] court acted within the sentencing limits prescribed

                                           2
                by statute, or substantially relied upon an impermissible factor.
                Statutory interpretation, however, is a question of law fully
                reviewable on appeal.”

State v. Murphy, 2014 ND 202, ¶ 15, 855 N.W.2d 647 (quoting State v. Corman, 2009
ND 85, ¶ 15, 765 N.W.2d 530).
[¶8]   The presumptive probation statute, N.D.C.C. § 12.1-32-07.4, which requires
a sentence of probation unless an exception applies, provides in relevant part:
       1.       The sentencing court shall sentence an individual who has pled
                guilty to, or has been found guilty of, a class C felony offense or
                class A misdemeanor offense to a term of probation at the time
                of initial sentencing, except for an offense involving domestic
                violence; an offense subject to registration under section 12.1-
                32-15 [sexual offenders]; an offense involving a firearm or
                dangerous weapon, explosive, or incendiary device; or if a
                mandatory term of incarceration is required by law.
(Emphasis added.)
[¶9]   We give the language of a criminal statute its plain, ordinary and commonly
understood meaning. See State v. Trevino, 2011 ND 232, ¶ 21, 807 N.W.2d 211. It
is undisputed that this case does not implicate an offense involving domestic violence,
sexual offender registration, or mandatory terms of incarceration. Although the
parties offer their varying interpretations of the Vetter decision, that case is irrelevant
here based on the offenses under which Christensen was charged. It is clear from the
record that Christensen was not charged with, nor did he plead guilty to, any “offense
involving a . . . dangerous weapon” under N.D.C.C. § 12.1-32-07.4(1). See N.D.C.C.
§ 12.1-32-02.1. The plain language of the presumptive probation statute does not
permit a district court to change the nature of an offense to which a defendant has pled
guilty to, or been found guilty of, for sentencing purposes. As a matter of law, the
“dangerous weapon” exception to the presumptive probation statute does not apply
in this case.
[¶10] The district court’s erroneous conclusion that the dangerous weapon exception
applied to negate the requirements of the presumptive probation statute was an
impermissible factor substantially relied upon by the court in sentencing Christensen.

                                             3
                                         III
[¶11] We do not address other arguments raised because they are either unnecessary
to the decision or are without merit. Because the district court substantially relied
upon an impermissible factor in sentencing Christensen to jail, we vacate the sentence
and remand for resentencing.
[¶12] Lisa Fair McEvers
      Daniel J. Crothers
      Jerod E. Tufte
      Jon J. Jensen

       I concur in the result.
       Gerald W. VandeWalle, C.J.




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