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State v. Ulmer12/22/1999
ion (2) provide useful insight into the drafters' intended meaning of the phrase "substantially different criminal objective" under Subsection (4) of the federal draft.
[ ] Subsection (2) states:
(2) Multiple Sentences. A defendant may not be sentenced consecutively for more than one offense to the extent:
(a) one offense is an included offense of the other;
(b) one offense consists only of a conspiracy, attempt, solicitation or other form of preparation to commit, or facilitation of, the other; or
(c) the offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.
The Comment to Subsection (2) explains:
Subsection (2) prohibits consecutive sentences in three situations where the multiple crimes result from one criminal objective. An alternative and more general statement might be: "The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective."
[Emphasis added.] Subsection (2) defines, in effect, the circumstances under which multiple offenses involve one criminal objective rather than different criminal objectives. This proposed federal language offers a bright-line definition for determining when multiple offenses involve different criminal objectives. We conclude that under N.D.C.C. § 12.1-32-11(3), multiple class A misdemeanor offenses may be deemed by the sentencing court to involve substantially different criminal objectives if they do not fall under one of the following three categories: (1) one offense is an included offense of the other; (2) one offense consists of a conspiracy, attempt, solicitation, or other form of preparation to commit, or facilitation of, the other; or (3) the offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.
IV.
[ ] Ulmer was found guilty of driving under the influence of alcohol and was also found guilty of driving a vehicle with a suspended license. Each of these violations requires evidence or proof of a fact different from or additional to the proof required to convict of the other. Neither offense is an included offense of the other. Neither offense consists of a conspiracy, attempt, or other form of preparation to commit the other. Lastly, neither offense prohibits generally the same conduct prohibited specifically by the other. We, therefore, hold, as a matter of law, the two class A misdemeanor offenses for which Ulmer was convicted each involved a substantially different criminal objective. We further hold the trial court was authorized under N.D.C.C. § 12.1-32-11(3), to impose consecutive sentences for Ulmer's convictions, and we affirm the order denying Ulmer's motion for correction of sentence.
[ ] William F. Hodny, S.J., sitting in place of VandeWalle, C.J., disqualified.
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