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State v. Ulmer12/22/1999
Appeal from the District Court of McIntosh County, South Central Judicial District, the Honorable Donald L. Jorgensen, Judge.
AFFIRMED.
[ ] Russel Ulmer appealed from an order of the district court denying his motion under N.D.R.Crim.P. 35 for correction of his sentence. We hold the trial court's imposition of consecutive one-year sentences of incarceration for Ulmer's two misdemeanor convictions did not violate N.D.C.C. § 12.1-32-11(3), and we affirm.
I.
[ ] On April 4, 1998 Ulmer drove his vehicle off the highway, causing it to roll over. He was charged with driving while under the influence of intoxicating liquor, in violation of N.D.C.C. § 39-08-01, and was also charged with driving a motor vehicle while his license to drive was under suspension, in violation of N.D.C.C. § 39-06-42. Because Ulmer had prior violations, each of these charges was filed as a class A misdemeanor. A jury found Ulmer guilty on both counts.
[ ] The district court sentenced Ulmer to one year of incarceration on each of the two convictions, with the sentences to run consecutively. Ulmer filed a motion under N.D.R.Crim.P. 35, requesting the court to amend his sentence, claiming N.D.C.C. § 12.1-32-11(3) prohibited imposition of consecutive sentences in this case, and requesting the court to make the one-year sentences run concurrently. The trial court denied the motion, and Ulmer appealed.
II.
[ ] Generally, unless there is a statute to the contrary, it is within the trial court's sound discretion whether a sentence should run concurrently with or consecutively to another sentence. State v. McClean, 1998 ND 21, 10, 575 N.W.2d 200. N.D.C.C. § 12.1-32-11(3) places some limitation upon imposing consecutive sentences for multiple misdemeanor convictions:
When sentenced only for misdemeanors, a defendant may not be consecutively sentenced to more than one year, except that a defendant being sentenced for two or more class A misdemeanors may be subject to an aggregate maximum not exceeding that authorized by section 12.1-32-01 for a class C felony if each class A misdemeanor was committed as part of a different course of conduct or each involved a substantially different criminal objective.
Under this statute, the district court was authorized to sentence Ulmer to consecutive terms of incarceration for the two class A misdemeanor convictions if each misdemeanor was committed "as part of a different course of conduct" or if each misdemeanor "involved a substantially different criminal objective." The district court concluded Ulmer's misdemeanors involved different criminal objectives and imposed consecutive sentences.
[ ] On appeal, Ulmer argues the convictions arose from a single course of conduct and, even though he violated two separate criminal statutes, the violations did not involve "substantially different criminal objective ." He claims the trial court was not, therefore, authorized to impose consecutive sentences of incarceration. We disagree.
[ ] Resolution of this issue requires interpretation of N.D.C.C. § 12.1-32-11(3), which is a question of law. Blikre v. ACandS, Inc., 1999 ND 96, 5, 593 N.W.2d 775. In construing a statute, our duty is to ascertain the intent of the legislature. Anderson v. Anderson, 1999 ND 57, 4, 591 N.W.2d 138. In ascertaining legislative intent, we look first to the language of the statute as a whole and construe the statute's words in their plain, ordinary and commonly understood sense. Id. Under the statute, the trial court can impose consecutive sentences for class A misdemeanors if they involve substantially different criminal objectives. The word "s
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