Consecutive Misdemeanor Sentences Permitted When Offenses Target Different Victims on Different Dates: State v. Cotton (2025 ND 191)

Consecutive Misdemeanor Sentences Permitted When Offenses Target Different Victims on Different Dates: State v. Cotton (2025 ND 191)

Court: Supreme Court of North Dakota

Date: November 5, 2025

Author: Jensen, C.J.

Introduction

In State v. Cotton, 2025 ND 191, the North Dakota Supreme Court affirmed consecutive jail terms for four class A misdemeanor convictions arising from a pattern of digital harassment and restraining-order violations. The principal legal question was whether North Dakota’s “merger statute” for multiple terms of imprisonment, N.D.C.C. § 12.1-32-11, prohibits consecutive misdemeanor sentences when the offenses share a common theme and methodology but involve different victims and dates. The Court held that the statute’s exception for offenses committed as part of a “different course of conduct” applied, permitting the district court to impose consecutive 360-day sentences on four counts—one count of stalking and three counts of violating a disorderly conduct restraining order.

The decision clarifies how the “different course of conduct” exception operates in cases where a defendant engages in a coordinated harassment campaign across multiple victims and platforms over overlapping timeframes. It confirms that similarity in method or motive does not, by itself, merge offenses into a single “course of conduct” for sentencing purposes. This opinion builds on recent North Dakota precedents—especially State v. Glasser and State v. Rivera—by applying the same principles to contemporary digital harassment dynamics and reinforcing the analytical framework that centers on distinctions in time, place, victim, and proof.

Parties: The State of North Dakota prosecuted Carrie Beth Cotton for stalking an ex-partner (T.B.) and for violating a disorderly conduct restraining order protecting a family associated with him (H.C., B.C., and their 13-year-old daughter, T.C.). Cotton entered Alford pleas to all charges and received four consecutive 360-day sentences on the specified counts, with probationary terms on remaining counts. She appealed, asserting her sentence was illegal under § 12.1-32-11.

Summary of the Opinion

The North Dakota Supreme Court affirmed the amended criminal judgments. It held:

  • The general rule under N.D.C.C. § 12.1-32-11 merges shorter terms when a defendant serves multiple terms, but subsection (3) creates exceptions for misdemeanor sentencing that allow consecutive sentences in two circumstances: (a) where each class A misdemeanor was committed as part of a different course of conduct; or (b) where each involved a substantially different criminal objective.
  • These two exceptions are alternative grounds; satisfying either suffices. Here, the “different course of conduct” exception applies as a matter of law because Cotton’s offenses were committed on different dates against different victims and require different proof.
  • Similarity in method and motive (e.g., using fake accounts, repeated messaging, overlapping timeframes) does not collapse separate offenses into a single course of conduct. The Court relied heavily on Glasser and Rivera.
  • Because the record presented no factual dispute and the issue on appeal was legal (whether the facts fit the statutory exception), the absence of express district court findings on the merger statute did not invalidate the sentence.
  • The Court declined to issue an advisory opinion on potential future resentencing scenarios after probation violations, reiterating that upon revocation, courts may impose any sentence available at the time of initial sentencing, and hypothetical concerns are not justiciable.

Bottom line: Consecutive misdemeanor sentences are lawful where each offense reflects a different course of conduct, even if the defendant’s overall behavior was a coordinated harassment campaign. The aggregate consecutive term remained within the statutory cap (the class C felony maximum under § 12.1-32-01).

Analysis

Precedents Cited and Their Role

  • N.D.C.C. § 12.1-32-11 (Merger Statute):
    • Baseline rule: concurrent service—“the shorter term shall be merged” into the longer term when serving multiple sentences.
    • Key misdemeanor limitation and exceptions (subsection 3): When sentenced only for misdemeanors, a defendant cannot be consecutively sentenced to more than one year, except that consecutive sentencing producing an aggregate up to the class C felony maximum is permitted if each class A misdemeanor was committed as part of a different course of conduct or each involved a substantially different criminal objective.
  • State v. Mees, 272 N.W.2d 61 (N.D. 1978):
    • Recognizes the common-law presumption of concurrent sentences absent contrary direction, framing the merger principle applied today.
  • State v. Huffing, 2009 ND 3, 763 N.W.2d 799:
    • Confirms district courts have discretion to impose consecutive sentences for felonies. Cotton contrasts this with the statutory limits for misdemeanors, setting the stage for the specific misdemeanor exceptions analysis.
  • Glasser v. State, 2023 ND 111, 992 N.W.2d 7:
    • Central authority on the “different course of conduct” test: turns significantly on whether the offenses occurred at the same time and place and whether each requires different proof.
    • Held that forging separate letters for different victims constituted different courses of conduct even if they served a singular strategy (mitigating sentencing) and used similar methods.
    • Also clarifies the alternative nature of the two exceptions—courts need not reach “different criminal objective” if “different course of conduct” is satisfied.
  • State v. Rivera, 2018 ND 15, 905 N.W.2d 739:
    • Reinforces that similar means and motives (collecting sexual images) do not create a single course of conduct where offenses are committed against different victims on different dates at different locations.
  • State v. Salveson, 2006 ND 169, 719 N.W.2d 747, and State v. Ulmer, 1999 ND 245, 603 N.W.2d 865:
    • Define the “substantially different criminal objective” exception by exclusion: different objectives exist unless (1) one offense is an included offense of the other; (2) one is preparatory to the other; or (3) they differ only by general vs. specific prohibitions of the same conduct. Cotton did not require application of this prong, but the Court restated the test for completeness.
  • Standards and Scope of Review:
    • Glasser: The exceptions present mixed questions of fact and law; factual findings are reviewed for clear error.
    • Rivera: Interpretation and application of the exceptions are legal issues reviewed de novo.
    • In re Estate of Lindberg, 2024 ND 10, 2 N.W.3d 220: Whether facts meet a legal standard is a question of law.
    • State v. Larsen, 2023 ND 144, 994 N.W.2d 194 and State v. Gonzalez, 2011 ND 143, 799 N.W.2d 402: Appellate courts will not vacate a sentence absent statutory overreach or reliance on impermissible factors.
  • Probation Revocation and Advisory Opinions:
    • N.D.C.C. § 12.1-32-07(6); State v. Nelson, 2024 ND 55, 5 N.W.3d 554; State v. Rinde, 2024 ND 33, 3 N.W.2d 165: Upon probation revocation, courts may impose any sentence that was available at initial sentencing; a 2021 amendment broadened the court’s authority beyond reimposing suspended time only.
    • Richland Cnty. Water Res. Bd. v. Pribbernow, 442 N.W.2d 916 (N.D. 1989): The Court does not issue advisory opinions—used to decline Cotton’s hypothetical challenge about potential future consecutive sentences upon revocation.

Legal Reasoning

The Court’s reasoning tracked the architecture of § 12.1-32-11(3). First, it reaffirmed the general merger rule and the misdemeanor-specific cap. Then it framed the two disjunctive exceptions permitting consecutive sentences for class A misdemeanors: different course of conduct or substantially different criminal objective. Leaning on Glasser and Rivera, the Court emphasized that the “course of conduct” inquiry turns on concrete distinctions—time, place, victim, and elements of proof—not on similarities in method or motive.

Applying that framework, the Court looked to Cotton’s own Alford-plea petitions as the undisputed factual basis. Those documents separated the conduct into distinct counts by victim and date:

  • Stalking T.B. over several months (September 18, 2022 to February 14, 2023) through letters, texts, and Facebook messages—conduct constituting a statutorily defined “course of conduct” directed at a single victim.
  • Three discrete restraining-order violations, each on a separate date, and each directed at a distinct protected party: H.C. (January 15, 2023), B.C. (January 6, 2023), and T.C. (February 12, 2023).

From this structure, the Court concluded the offenses were categorically separate for merger purposes because they involved different victims on different dates and required proof of different facts (for example, proof that each victim was contacted on the specified date, and, for the stalking count, proof of a course of conduct directed at T.B.). The existence of a common narrative—a campaign targeting an ex and associates via multiple phone numbers and fake social media accounts—did not merge the offenses into a single course of conduct. As in Glasser (distinct forged letters) and Rivera (images of different victims on different dates and places), shared methodology and motive do not suffice to bar consecutive sentences.

The Court found it unnecessary to reach the alternative “substantially different criminal objective” exception. It also addressed Cotton’s procedural challenge regarding the lack of explicit district court findings applying § 12.1-32-11(3). Because Cotton identified no factual disputes and raised a pure legal question (whether the undisputed facts fit the statutory exception), the Supreme Court conducted a de novo application of law to undisputed facts and affirmed. Finally, the Court rejected Cotton’s concern about hypothetical future probation-revocation sentencing, invoking the prohibition on advisory opinions and reiterating the scope of resentencing authority under § 12.1-32-07(6).

Impact and Practical Implications

State v. Cotton reinforces and operationalizes North Dakota’s misdemeanor merger exceptions in the context of modern digital harassment. The decision’s practical effects are significant:

  • Sentencing in Harassment/Stalking Cases:
    • Prosecutors can seek consecutive sentences for multiple class A misdemeanor counts when each count is anchored to a different victim or a different date, even if the conduct arises from a single overarching “campaign.”
    • Trial courts may impose aggregate consecutive terms up to the class C felony maximum authorized by § 12.1-32-01 (currently five years), provided each class A misdemeanor satisfies an exception in § 12.1-32-11(3).
    • Defense counsel should not rely solely on arguments of “same method/same motive” to force concurrency; instead, they must contest the separateness of victims/dates, time-and-place unity, or the distinct elements of proof if the record supports it.
  • Record-Building and Plea Practice:
    • How counts are framed matters. Charging instruments and plea colloquies that specify unique victims, dates, and factual elements will support a finding of different courses of conduct.
    • Alford pleas still require a clear factual basis. Cotton demonstrates that the factual basis articulated by the defendant can establish separateness for merger analysis on appeal.
  • Appellate Review and District Court Findings:
    • While explicit findings applying the merger statute are best practice, their absence is not fatal when facts are undisputed and the appellate court can apply the law de novo.
    • To avoid remand in closer cases, trial courts may wish to expressly identify why each count qualifies as a different course of conduct (e.g., distinct victims/dates/locations and distinct proof).
  • Probation Revocation:
    • Cotton underscores that appellate courts will not entertain hypothetical resentencing disputes. Upon revocation, § 12.1-32-07(6) empowers the court to impose any sentence available at initial sentencing, subject to the same merger and exception limits.
  • Doctrinal Clarity:
    • The opinion harmonizes past precedent by reaffirming that “different course of conduct” centers on differences in time, place, victim, and elements of proof; similarity of method and motive is insufficient.
    • This clarity likely reduces litigation over whether coordinated multi-victim conduct must be treated as a single course, especially in digital harassment, stalking, and protective-order violation contexts.

Complex Concepts Simplified

  • Merger Statute (N.D.C.C. § 12.1-32-11):
    • General rule: When a person is serving multiple terms, the shorter term merges into the longer—so sentences run concurrently—unless a court orders otherwise.
    • Misdemeanor limitation: When sentenced only for misdemeanors, consecutive sentences cannot exceed one year total. Exception: For multiple class A misdemeanors, the court may impose consecutive sentences up to the class C felony maximum if each offense is part of a different course of conduct or involves a substantially different criminal objective.
  • Different Course of Conduct:
    • Focus: Time, place, victim, and distinct proof.
    • If each offense requires proof of a different fact (such as a distinct victim, a separate date, or a separate act), they are likely different courses of conduct.
    • Shared method (e.g., the same messaging platform) or shared motive (e.g., harassing the same social circle) does not make separate offenses one course.
  • Substantially Different Criminal Objective:
    • Alternative exception (not applied in Cotton).
    • Offenses lack substantially different objectives if: one is included in the other; one is merely preparatory to the other; or the only difference is general vs. specific statutory prohibitions of the same conduct.
  • Alford Plea:
    • A defendant maintains innocence but acknowledges that the State’s evidence would likely result in conviction.
    • Courts still require a factual basis; the defendant’s own plea documentation can supply facts that affect sentencing analysis—as happened in Cotton.
  • Standards of Review:
    • Mixed questions: The merger exceptions involve both facts and law.
    • Fact findings: Reviewed for clear error.
    • Application/interpretation: Reviewed de novo (the appellate court decides anew).
  • Advisory Opinions:
    • Courts decide actual disputes, not hypotheticals. Cotton’s argument about potential future consecutive sentencing after probation revocation was not justiciable.

Conclusion

State v. Cotton cements a straightforward yet consequential rule: For class A misdemeanors, consecutive sentences are permissible under N.D.C.C. § 12.1-32-11(3) when each offense is part of a different course of conduct, and offenses constitute different courses of conduct when they occur on different dates, target different victims, and require different proof—even if they share a common method or motive. This aligns with and extends the logic of Glasser and Rivera to the realities of coordinated digital harassment.

The Court’s decision underscores practical guidance for charging, plea practice, and sentencing: delineate offenses by distinct victims and dates; develop a clear factual basis; and understand that similarity in modus operandi does not force concurrency. While explicit merger findings at sentencing remain prudent, Cotton confirms that appellate courts will affirm consecutive misdemeanor sentences where the record clearly demonstrates separate courses of conduct and the aggregate term remains within statutory limits.

Key takeaways:

  • Similarity in method/motive does not merge distinct offenses for misdemeanor sentencing.
  • Different victims and dates—paired with distinct proof—support “different course of conduct.”
  • Either merger exception (different course of conduct or different criminal objective) suffices; courts need not apply both.
  • Explicit sentencing findings are advisable but not strictly necessary when facts are undisputed and the issue is legal.
  • Probation-revocation hypotheticals do not present justiciable controversies; resentencing is limited to what was available at initial sentencing.

Cotton thus provides a clear, contemporary blueprint for applying North Dakota’s merger statute to multi-count misdemeanor cases, especially those involving digital misconduct across multiple victims.

Case Details

Year: 2025
Court: Supreme Court of North Dakota

Judge(s)

Jensen, Jon J.

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