Dismissed-with-Prejudice, Joined Charges: Probable-Cause Affidavit Allegations May Be Considered at Sentencing Without Triggering the Pending-Charge Rule

1. Introduction

In State v. Pope, 2026 ND 116, the North Dakota Supreme Court addressed the boundary between (a) the broad information a sentencing court may consider and (b) the narrow constitutional limit that forbids sentencing courts from penalizing a defendant for exercising trial rights on a pending charge. John Bruce Pope appealed a probation-revocation sentence after the district court resentenced him to a total of twenty years’ imprisonment (maximum consecutive terms on multiple class C felonies).

The key issue was whether the district court substantially relied on an impermissible sentencing factor by referencing factual allegations found in an affidavit of probable cause filed in a joined child-abuse case—charges that were later dismissed with prejudice under a binding plea agreement. Pope argued those allegations were analogous to a pending charge (impermissible under North Dakota law), because they were never admitted, proven, or adjudicated.

2. Summary of the Opinion

The Supreme Court affirmed. It held that the district court did not rely on an impermissible sentencing factor when it considered factual assertions in a probable-cause affidavit from a joined case whose charges had been dismissed with prejudice as part of a plea agreement.

The Court explained that the “pending-charge” rule is not an evidentiary-reliability rule; it is a constitutional protection designed to prevent a sentencing court from burdening a defendant’s right to a jury trial and the presumption of innocence on a live, unresolved charge. Once charges are dismissed with prejudice, that constitutional concern is absent. The allegations also were part of the record because the cases were joined and the affidavits were before the sentencing court.

3. Analysis

3.1. Precedents Cited

Sentencing review framework

• State v. Gonzalez, 2024 ND 4 and State v. Maher, 2026 ND 35: The Court restated the familiar North Dakota standard—sentencing is reviewed for whether the court stayed within statutory limits or “substantially relied on an impermissible factor.” Pope conceded statutory limits were not exceeded, narrowing the appeal to impermissible-factor analysis.

The breadth of permissible sentencing information

• State v. Wells (discussing Williams v. New York): This is the opinion’s doctrinal anchor. Wells explains a sentencing judge should have “the widest possible range of information” and may consider even inadmissible information. The Court used Wells to reject Pope’s attempt to turn the case into a reliability-based exclusion rule.
  
  The Wells catalogue (quoted in the opinion) illustrates just how expansive sentencing inputs can be:
  • United States v. Sweig: conduct related to charges on which the defendant was acquitted.
  • City of Dickinson v. Mueller and Houle v. United States: arrests not resulting in convictions.
  • United States v. Johnson: criminal conduct for which no charge was filed.
  The Court’s use of these authorities underscores that lack of adjudication does not, by itself, make information “impermissible” at sentencing in North Dakota.
• N.D.R.Ev. 1101(d)(3)(D)-(E) and State v. Hamilton, 2023 ND 233: The Court reinforced Wells with the rules of evidence, which generally do not apply at sentencing (except privileges), and with Hamilton’s confirmation that sentencing courts may rely on record evidence and reasonable inferences.
• State v. Woodman, 2025 ND 12 and State v. Glasser, 2021 ND 60: The Court used character-reference letters as a practical example of sentencing’s evidentiary looseness, emphasizing that sentencing permissibility is not conditioned on trial-like reliability screening. In Glasser, even forged letters did not make a sentence “illegal” under N.D.R.Crim.P. 35(a). This supported the Court’s broader point: Pope’s argument, framed around “unproven” allegations, is misdirected in North Dakota sentencing doctrine.
• United States v. Richey: The Court distinguished Pope’s reliance on federal sentencing-guidelines procedural-error concepts, declining to import that framework into North Dakota’s analysis here.

The constitutional “pending charge” exception

• State v. Hoverson, 2006 ND 49 (and “see also” State v. Woodman, 2025 ND 12): Hoverson articulates the rule that the “mere fact” of a pending criminal charge is an impermissible sentencing factor. Pope sought to extend Hoverson to dismissed-with-prejudice charges and their supporting allegations.
• State v. Hass, 268 N.W.2d 456: The Court located Hoverson in the constitutional principle that a sentencing court may not penalize the exercise of constitutional rights (standing trial or remaining silent). This is critical: it reframes the “pending charge” rule as a rights-burdening doctrine, not a truth-testing doctrine.
• State v. Smith, 238 N.W.2d 662, overruled on other grounds by State v. Himmerick, 499 N.W.2d 568: The Court cited these to explain the constitutional concern behind the pending-charge prohibition—presumption of innocence and the right to a jury trial in the unresolved case.

3.2. Legal Reasoning

The Court’s reasoning proceeds in three steps:

1. North Dakota sentencing is intentionally information-rich. Building from State v. Wells and N.D.R.Ev. 1101(d)(3)(D)-(E), the Court reiterated that sentencing courts may consider a wide range of information, including inadmissible and uncharged (or even acquitted) conduct. This forecloses Pope’s central premise that “unadjudicated” equals “impermissible.”
2. The “pending charge” rule is constitutional, not evidentiary. Relying on Hoverson as explained through Hamilton and Hass, the Court clarified that a pending charge is impermissible because increasing a sentence based on a live accusation can burden the defendant’s presumption of innocence and trial rights in that unresolved proceeding.
3. Dismissal with prejudice removes the constitutional danger that animates the rule. Here, the child-abuse charges were not pending at resentencing; they were dismissed with prejudice as a negotiated term of a plea agreement Pope accepted. Because “those charges will never be tried,” the district court’s consideration of the affidavit’s factual assertions could not burden Pope’s right to a trial on them. The Court also emphasized a record-based rationale: the cases were joined and the affidavits were before the court, permitting reliance on record evidence and reasonable inferences under State v. Hamilton and State v. Hoverson.

The opinion’s key doctrinal move is rejecting Pope’s “a fortiori” logic. Pope assumed the pending-charge rule measures how far allegations fall short of proof. The Court held it instead measures the risk of punishing a defendant for charges on which he still has a constitutional right to trial. On that scale, a dismissed-with-prejudice charge is “weaker” for exclusion because dismissal eliminates the very constitutional concern that triggers the pending-charge rule.

3.3. Impact

Practical sentencing consequences. After State v. Pope, defendants in North Dakota should expect that factual narratives contained in probable-cause affidavits— even from counts or cases dismissed with prejudice—may be fair game at sentencing or resentencing (including probation revocation), particularly when those materials are part of the record via joinder or other filing history.

Plea bargaining implications. The decision signals that “dismissed with prejudice” in a plea deal primarily secures freedom from future prosecution on those charges; it does not necessarily insulate the underlying alleged conduct from being considered in sentencing on remaining convictions, absent an agreement term limiting sentencing use. (The opinion does not discuss such a term here; parties who want that protection may need to negotiate for it explicitly.)

Clarified scope of the pending-charge rule. The opinion narrows attempts to expand State v. Hoverson beyond its constitutional rationale. Future litigants challenging sentencing inputs will need to frame arguments around constitutional burdens (e.g., penalizing silence/trial rights) or other recognized limits, rather than the unadjudicated nature of allegations alone.

4. Complex Concepts Simplified

• “Impermissible sentencing factor”: A consideration the court is not allowed to rely on when deciding how severe a sentence should be. In North Dakota, most information is permissible at sentencing; the key impermissible category highlighted here is punishing someone for exercising constitutional rights.
• “Pending charge”: A criminal accusation that is still open and unresolved. Using it to increase a sentence can pressure the defendant’s choice to go to trial, conflicting with the presumption of innocence and jury-trial rights.
• “Dismissed with prejudice”: The charge is permanently dismissed and cannot be refiled. It ends the risk of trial on that charge—so the constitutional concern behind the pending-charge rule no longer applies.
• “Affidavit of probable cause”: A sworn written statement (often by law enforcement) explaining facts believed to support charging someone with a crime. It is not proof “beyond a reasonable doubt,” but it may still be information a sentencing court can consider.
• “Joinder”: Procedurally combining cases so they proceed together. Here, joinder mattered because it placed both cases’ affidavits into the same court record, supporting the conclusion that the sentencing judge relied on record materials.
• “Alford plea”: A guilty plea in which the defendant maintains innocence but acknowledges the evidence is likely sufficient to convict. The opinion notes Pope entered Alford pleas on some counts, illustrating the negotiated nature of the resolution that also produced the with-prejudice dismissals.
• Probation revocation resentencing: If probation is revoked, the court can impose additional incarceration up to statutory limits. Pope’s revocation led to maximum, consecutive felony sentences.

5. Conclusion

State v. Pope, 2026 ND 116 establishes (and clarifies) that North Dakota’s prohibition on considering a pending criminal charge at sentencing is a narrow, constitutionally grounded rule aimed at preventing courts from burdening trial rights in an unresolved case. It does not create a general bar on unproven allegations. Accordingly, when charges are dismissed with prejudice—especially in a joined case where the supporting affidavit is part of the record—a sentencing court may consider the affidavit’s factual assertions without relying on an impermissible sentencing factor.