CHAPTER 12.1-32 PENALTIES AND SENTENCING 12.1-32-01 ...

CHAPTER 12.1-32

PENALTIES AND SENTENCING

12.1-32-01. Classification of offenses - Penalties.

Offenses are divided into seven classes, which are denominated and subject to maximum

penalties, as follows:

1. Class AA felony, for which a maximum penalty of life imprisonment without parole may

be imposed. The court must designate whether the life imprisonment sentence

imposed is with or without an opportunity for parole. Notwithstanding the provisions of

section 12-59-05, a person found guilty of a class AA felony and who receives a

sentence of life imprisonment with parole, shall not be eligible to have that person's

sentence considered by the parole board for thirty years, less sentence reduction

earned for good conduct, after that person's admission to the penitentiary.

2. Class A felony, for which a maximum penalty of twenty years' imprisonment, a fine of

twenty thousand dollars, or both, may be imposed.

3. Class B felony, for which a maximum penalty of ten years' imprisonment, a fine of

twenty thousand dollars, or both, may be imposed.

4. Class C felony, for which a maximum penalty of five years' imprisonment, a fine of ten

thousand dollars, or both, may be imposed.

5. Class A misdemeanor, for which a maximum penalty of imprisonment for three

hundred sixty days, a fine of three thousand dollars, or both, may be imposed.

6. Class B misdemeanor, for which a maximum penalty of thirty days' imprisonment, a

fine of one thousand five hundred dollars, or both, may be imposed.

7. Infraction, for which a maximum fine of one thousand dollars may be imposed. Any

person convicted of an infraction who, within one year before commission of the

infraction of which the person was convicted, has been convicted previously at least

twice of the same offense classified as an infraction may be sentenced as though

convicted of a class B misdemeanor. If the prosecution contends that the infraction is

punishable as a class B misdemeanor, the complaint must specify the offense is a

misdemeanor.

This section shall not be construed to forbid sentencing under section 12.1-32-09, relating to

extended sentences.

12.1-32-01.1. Organizational fines.

Any organization, as defined in section 12.1-03-04, shall, upon conviction, be subject to a

maximum fine in accordance with the following classification:

1. For a class A felony, a maximum fine of one hundred thousand dollars.

2. For a class B felony, a maximum fine of seventy thousand dollars.

3. For a class C felony, a maximum fine of fifty thousand dollars.

4. For a class A misdemeanor, a maximum fine of thirty thousand dollars.

5. For a class B misdemeanor, a maximum fine of twenty thousand dollars.

Nothing in this section shall be construed as preventing the imposition of the sanction provided

for in section 12.1-32-03, nor as preventing the prosecution of agents of the organization under

section 12.1-03-03.

12.1-32-02. Sentencing alternatives - Credit for time in custody - Diagnostic testing.

1. Every person convicted of an offense who is sentenced by the court must be

sentenced to one or a combination of the following alternatives, unless the sentencing

alternatives are otherwise specifically provided in the statute defining the offense or

sentencing is deferred under subsection 4:

a. Payment of the reasonable costs of the person's prosecution.

b. Probation.

c. A term of imprisonment, including intermittent imprisonment:

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In a state correctional facility in accordance with section 29-27-07, in a

regional corrections center, or in a county jail, if convicted of a felony or a

class A misdemeanor.

(2) In a county jail or in a regional corrections center, if convicted of a class B

misdemeanor.

(3) In a facility or program deemed appropriate for the treatment of the

individual offender, including available community-based or faith-based

programs.

(4) In the case of persons convicted of an offense who are under eighteen

years of age at the time of sentencing, the court is limited to sentencing the

minor defendant to a term of imprisonment in the custody of the department

of corrections and rehabilitation.

d. A fine.

e. Restitution for damages resulting from the commission of the offense.

f. Restoration of damaged property or other appropriate work detail.

g. Commitment to an appropriate licensed public or private institution for treatment

of alcoholism, drug addiction, or mental disease or defect.

h. Commitment to a sexual offender treatment program.

i. Drug court program. A drug court is a district court supervised treatment program

approved by the supreme court which combines judicial supervision with alcohol

and drug testing and substance use disorder treatment in a licensed treatment

program. The supreme court may adopt rules, including rules of procedure, for

drug court programs.

j. Veterans treatment docket. A veterans treatment docket is a district court

supervised docket approved by the supreme court which combines judicial

supervision with licensed treatment programs to treat substance use disorders,

mental health conditions, behavioral health conditions, traumatic brain injuries,

military sexual trauma, and co-occurring disorders. The supreme court may adopt

rules, including rules of procedure, for veterans treatment dockets.

k. Completion of a restorative justice program. For purposes of this section,

"restorative justice program" means a system of justice which focuses on the

rehabilitation of offenders through reconciliation with victims and the community

at large.

l. Mental health court program. A mental health court is a district court supervised

treatment program approved by the supreme court which combines judicial

supervision with mental health services and treatment in a licensed treatment

program. The supreme court may adopt rules, including rules of procedure, for

mental health court programs.

Except as provided by section 12.1-32-06.1, sentences imposed under this subsection

may not exceed in duration the maximum sentences of imprisonment provided by

section 12.1-32-01, section 12.1-32-09, or as provided specifically in a statute defining

an offense. This subsection does not permit the unconditional discharge of an offender

following conviction. A sentence under subdivision e or f must be imposed in the

manner provided in section 12.1-32-08. If the person is sentenced to a term of

imprisonment, the court may prohibit the person from contacting the victim during the

term of imprisonment. For purposes of this subsection, "victim" means victim as

defined in section 12.1-34-01.

Credit against any sentence to a term of imprisonment must be given by the court to a

defendant for all time spent in custody as a result of the criminal charge for which the

sentence was imposed or as a result of the conduct on which such charge was based.

"Time spent in custody" includes time spent in custody in a jail or mental institution for

the offense charged, whether that time is spent prior to trial, during trial, pending

sentence, or pending appeal. The total amount of credit the defendant is entitled to for

time spent in custody and any credit for sentence reduction under section 12-44.1-32

or 12-54.1-01 the defendant is entitled to must be stated in the criminal judgment.

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A court may suspend the execution of all or a part of the sentence imposed. The court

shall place the defendant on probation during the term of suspension.

A court, upon application or its own motion, may defer imposition of sentence. The

court must place the defendant on probation during the period of deferment. An order

deferring imposition of sentence is reviewable upon appeal from a verdict or judgment.

In any subsequent prosecution, for any other offense, the prior conviction for which

imposition of sentence is deferred may be pleaded and proved, and has the same

effect as if probation had not been granted or the information or indictment dismissed

under section 12.1-32-07.1.

A court may, prior to imposition of sentence, order the convicted offender committed to

an appropriate licensed public or private institution for diagnostic testing for such

period of time as may be necessary, but not to exceed thirty days. The court may, by

subsequent order, extend the period of commitment for not to exceed thirty additional

days. The court may also order such diagnostic testing without ordering commitment to

an institution. Validity of a sentence must not be challenged on the ground that

diagnostic testing was not performed pursuant to this subsection.

All sentences imposed must be accompanied by a written statement by the court

setting forth the reasons for imposing the particular sentence. The statement must

become part of the record of the case.

If an offender is sentenced to a term of imprisonment, that term of imprisonment

commences at the time of sentencing, unless, upon motion of the defendant, the court

orders the term to commence at some other time.

Unless otherwise specifically authorized in the statute defining the offense, a court

may not include a minimum term of imprisonment as part of its sentence.

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.

A court shall order a defendant to pay fifty dollars to the department of corrections and

rehabilitation at the time a presentence investigation is initiated to partially defray the

costs incurred by the department for the preparation of the presentence report. The

court may also order that any additional costs incurred by the department relating to

the presentence investigation and report be paid by the defendant at a rate of payment

up to the full costs of conducting the investigation and preparing the report as

established by the department.

Before sentencing a defendant on a felony charge under section 12.1-20-03,

12.1-20-03.1, 12.1-20-11, 12.1-27.2-02, 12.1-27.2-03, 12.1-27.2-04, or 12.1-27.2-05, a

court shall order the department of corrections and rehabilitation to conduct a

presentence investigation and to prepare a presentence report. A presentence

investigation for a charge under section 12.1-20-03 must include a risk assessment. A

court may order the inclusion of a risk assessment in any presentence investigation. In

all felony or class A misdemeanor offenses, in which force, as defined in section

12.1-01-04, or threat of force is an element of the offense or in violation of section

12.1-22-02, or an attempt to commit the offenses, a court, unless a presentence

investigation has been ordered, must receive a criminal record report before the

sentencing of the defendant. Unless otherwise ordered by the court, the criminal

record report must be conducted by the department of corrections and rehabilitation

after consulting with the prosecuting attorney regarding the defendant's criminal

record. The criminal record report must be in writing, filed with the court before

sentencing, and made a part of the court's record of the sentencing proceeding.

12.1-32-02.1. Mandatory prison terms for armed offenders.

1. Notwithstanding any other provision of this title, a term of imprisonment must be

imposed upon an offender and served without benefit of parole when:

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In the course of committing an offense, the offender inflicts or attempts to inflict

bodily injury upon another, threatens or menaces another with imminent bodily

injury with a dangerous weapon, explosive, destructive device, or firearm; or

b. An offender prohibited from possessing a firearm under section 62.1-02-01

possesses a firearm while in the course of committing any felony offense under

subsection 1, 3, or 7 of section 19-03.1-23.

This requirement applies only when possession of a dangerous weapon, explosive,

destructive device, or firearm has been charged and admitted or found to be true in the

manner provided by law, and must be imposed as follows:

a. If the offense for which the offender is convicted is a class AA, class A, or class B

felony, the court shall impose a minimum sentence of four years' imprisonment.

b. If the offense for which the offender is convicted is a class C felony, the court

shall impose a minimum sentence of two years' imprisonment.

This section applies even when being armed is an element of the offense for which the

offender is convicted.

This section applies even if the offender is prosecuted for a violation of section

62.1-02-01 for the same conduct.

An offender serving a sentence subject to this section may be eligible to participate in

a release program under section 12-48.1-02 during the last six months of the

offender's sentence.

12.1-32-02.2. Repayment of rewards paid by crimestoppers programs - Duties of

attorney general - Qualified local programs - Disbursement of moneys collected.

1. After a defendant has been convicted of a felony, the court may order the defendant to

repay all or part of any reward paid by a qualified local program. In determining

whether the defendant must repay the reward or part of the reward, the court shall

consider:

a. The ability of the defendant to make the payments, including any financial

hardship that payment may cause to the defendant's dependents.

b. Whether the information that was reported to the qualified local program

substantially contributed to the defendant being charged with the offense. To the

extent allowed by law, the court shall respect the confidentiality of the records of

the qualified local program.

2. "A qualified local program" means a program approved by the attorney general to

receive repayment of rewards. The attorney general shall consider the organization,

continuity, leadership, community support, and general conduct of the program to

determine whether the repayments will be spent to further crime prevention purposes

of the program. The attorney general also shall determine that the qualified local

program provides rewards to persons who report information concerning criminal

activity and whether that information substantially leads to defendants being charged

with felonies.

3. If the court determines that a defendant is capable of repaying all or any part of a

reward paid by a qualified local program, the judgment must include a statement of the

amount owed, the identity of the qualified local program, and a schedule, if any, of

payments to be made by the defendant. The clerk of court may establish an account

within which to deposit repayments of rewards and at least quarterly shall pay over to

each qualified local program the sums that have been collected for the benefit of that

program.

4. A judgment that includes a repayment of reward, either alone or in conjunction with

section 29-26-22, may be docketed and thereafter constitutes a lien upon the real

estate of the defendant in the same manner as a judgment for money rendered in a

civil action.

12.1-32-02.3. Mandatory sentences - Exceptions.

1. In addition to any other provision of law, when sentencing an individual convicted of a

violation in chapter 19-03.1 for which there is a mandatory minimum sentence, the

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court may depart from the applicable mandatory minimum sentence if the court, in

giving due regard to the nature of the crime, history and character of the defendant,

and the defendant's chances of successful rehabilitation, finds a compelling reason on

the record that imposition of the mandatory minimum sentence would result in

manifest injustice to the defendant and that the mandatory minimum sentence is not

necessary for the protection of the public.

Subsection 1 does not apply if the individual is sentenced under section 12.1-32-02.1.

Upon departing from a mandatory minimum sentence, a judge shall report to the state

court administrator who shall make available in electronic form and on the world wide

web an annual report by July 1 of each year on the total number of departures from

mandatory minimum sentences.

12.1-32-03. Special sanction for organizations.

When an organization is convicted of an offense, the court may, in addition to any other

sentence which may be imposed, require the organization to give notice of its conviction to the

persons or class of persons ostensibly harmed by the offense, by mail or by advertising in

designated areas or by designated media or otherwise.

12.1-32-03.1. Procedure for trial of infraction - Incidents.

1. Except as provided in this subsection, all procedural provisions relating to the trial of

criminal cases as provided in the statutes or rules relating to criminal procedure shall

apply to the trial of a person charged with an infraction. A person charged with an

infraction is not entitled to be furnished counsel at public expense nor to have a trial by

jury unless the person may be subject to a sentence of imprisonment under

subsection 7 of section 12.1-32-01.

2. Except as provided in this title, all provisions of law and rules of criminal procedure

relating to misdemeanors shall apply to infractions, including, but not limited to, the

powers of law enforcement officers, the jurisdiction of courts, the periods for

commencing action and bringing a case to trial, and the burden of proof.

3. Following conviction of an infraction, the offender may be sentenced in accordance

with subsection 1 of section 12.1-32-02, except that a term of imprisonment may not

be imposed except in accordance with subsection 3 of section 12.1-32-05, or

subsection 7 of section 12.1-32-01.

4. If a statute provides that conduct is an infraction without specifically including a

requirement of culpability, no culpability is required.

12.1-32-04. Factors to be considered in sentencing decision.

The following factors, or the converse thereof where appropriate, while not controlling the

discretion of the court, shall be accorded weight in making determinations regarding the

desirability of sentencing an offender to imprisonment:

1. The defendant's criminal conduct neither caused nor threatened serious harm to

another person or his property.

2. The defendant did not plan or expect that his criminal conduct would cause or threaten

serious harm to another person or his property.

3. The defendant acted under strong provocation.

4. There were substantial grounds which, though insufficient to establish a legal defense,

tend to excuse or justify the defendant's conduct.

5. The victim of the defendant's conduct induced or facilitated its commission.

6. The defendant has made or will make restitution or reparation to the victim of his

conduct for the damage or injury which was sustained.

7. The defendant has no history of prior delinquency or criminal activity, or has led a

law-abiding life for a substantial period of time before the commission of the present

offense.

8. The defendant's conduct was the result of circumstances unlikely to recur.

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