No Credit for Civil SDI Commitment; Good-Time Must Be Itemized in the Judgment — State v. Gomez, 2025 ND 60

Introduction

In State v. Gomez, 2025 ND 60, the North Dakota Supreme Court reaffirmed two important sentencing rules: (1) time spent at the North Dakota State Hospital under a civil commitment as a sexually dangerous individual is not automatically creditable against a criminal sentence; such credit is available only if the custody is “as a result of” the criminal charge or the conduct on which it is based, and a proper record must establish that linkage (¶¶ 6–13); and (2) when resentencing, the criminal judgment must state the specific amount of good-time (sentence reduction) credit the defendant has accrued; a generic statement that good time will be granted “as allowed by statute” is insufficient (¶¶ 15–17).

The case arises from a motion to correct an illegal sentence under N.D.R.Crim.P. 35, following a probation revocation and later corrections driven by the Court’s decisions in Dubois v. State and State v. McGinnis. Justice Lisa Fair McEvers authored the opinion. The Court affirmed in part and remanded: it affirmed the district court’s denial of credit for time Gomez spent in the State Hospital under a separate civil commitment, but remanded for the district court to determine and state in the judgment any good-time credit Gomez accrued during his original incarceration (¶ 19).

Case Background

In 2006, Gomez pled guilty to criminal trespass, stalking, violation of a disorderly conduct restraining order, and gross sexual imposition (GSI). He received concurrent sentences, with the GSI sentence set at 20 years, 10 years suspended, and a five-year probationary term upon release, and was credited with 176 days time served (¶ 2).

In 2018, after a probation violation, the district court resentenced Gomez on the GSI count to 50 years with all but 20 years suspended, with credit for 9 years and 27 days served (¶ 3). Following Dubois and McGinnis, the State conceded that this resentencing was illegal. In 2024, Gomez moved to correct the sentence under Rule 35, also seeking credit for time spent at the State Hospital under a civil commitment and asserting good-time credit was not properly recognized (¶ 4). The district court corrected the sentence to 20 years (commencing September 18, 2018) and credited 9 years and 27 days, but denied credit for State Hospital time (¶ 4). Gomez appealed the denial of State Hospital credit and the failure to include good-time credit in the judgment (¶ 1).

Summary of the Opinion

• Civil commitment time not creditable: The Court held Gomez is not entitled to credit toward his criminal sentence for the approximate 2 years and 10 months he spent at the State Hospital under a sexually dangerous individual civil commitment, because the record did not show that custody was “as a result of” the criminal charge or the conduct on which the charge was based, as required by N.D.C.C. § 12.1-32-02(2) (¶¶ 6–13).
• Good-time must be itemized: Relying on State v. Williamson, the Court held that good-time credit is distinct from “time served,” and § 12.1-32-02(2) requires the criminal judgment to state the total credit for both. Because the judgment did not specifically state any accrued good time, the sentence is contrary to statute and must be corrected. The case was remanded for the district court to determine and include the specific good-time amount (¶¶ 15–17, 19).
• Waiver of pre-revocation custody claim: Gomez’s brief mentioned, but did not argue or support, a claim that the court “ignored” 29 days of pre-revocation custody. The Court deemed the issue waived for inadequate briefing under N.D.R.App.P. 28(b)(7)(A) (¶ 18).

Analysis

Statutory Framework

The central crediting statute, N.D.C.C. § 12.1-32-02(2), mandates credit “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.” The provision clarifies that “time spent in custody” includes time in jail or a mental institution for the offense charged—whether pretrial, during trial, pending sentence, or pending appeal—and requires the judgment to state both custody credit and “any credit for sentence reduction” under §§ 12-44.1-32 (jail sentence reduction) or 12-54.1-01 (DOCR good time) (¶ 7).

Separately, N.D.C.C. § 12.1-32-02(1)(g) allows a court, as a criminal sentencing alternative, to commit a defendant to an appropriate institution for treatment. That did not occur here; Gomez’s State Hospital custody was under a civil commitment, not a criminal sentencing order (¶ 11).

Precedents Cited and Their Role

• State v. Williamson, 2024 ND 7, 1 N.W.3d 610: Held that a sentence is “illegal” under Rule 35 if contrary to statute, and that § 12.1-32-02(2) requires judgments to give credit for both time in custody and any sentence-reduction (good-time) credit under § 12-54.1-01. In Williamson, after probation revocation, the failure to include previously accrued good-time credit rendered the sentence illegal (¶¶ 15–16). Gomez extends this by insisting that a generic promise of good time is not enough; the judgment must state the amount (¶¶ 16–17).
• State v. McGinnis, 2022 ND 46, 971 N.W.2d 380, and Dubois v. State, 2021 ND 153, 963 N.W.2d 543: These cases rendered unlawful certain resentencings after probation revocation that exceeded the original imposed sentence framework. The State conceded Gomez’s 2018 resentencing ran afoul of these authorities, prompting the corrected judgment (¶ 4; see ¶ 14 on Rule 35 reviewability).
• State v. Eugene, 340 N.W.2d 18 (N.D. 1983), and Gust v. State, 2006 ND 114, 714 N.W.2d 826: Establish that credit is inappropriate for time served in connection with wholly unrelated charges or conduct (¶ 7). These decisions frame the “as a result of the charge/conduct” limitation applied to Gomez’s civil commitment custody.
• Civil commitment line: In re M.D., 1999 ND 160, 598 N.W.2d 799 (civil, not criminal punishment); In re G.R.H., 2006 ND 56, 711 N.W.2d 587; In re P.F., 2006 ND 82, 712 N.W.2d 610; Interest of Nelson, 2017 ND 152, 896 N.W.2d 923; Interest of Skorick, 2024 ND 83, 6 N.W.3d 666. Together, these authorities explain the elements and proof regime for sexually dangerous individual (SDI) commitments: they are civil, require clear and convincing evidence, and may consider “all sexually predatory conduct” (even not charged) to assess dangerousness and control (¶¶ 8–9). This civil-law architecture undercuts any assumption that SDI custody equals custody for “the offense charged.”
• State v. Eagleman, 2013 ND 101, 831 N.W.2d 759: Mentioned that the district court credited State Hospital time, but the propriety of that credit was not litigated. Gomez clarifies Eagleman provides no precedent on this point (¶ 12).
• Briefing and waiver: State v. Noack, 2007 ND 82, 732 N.W.2d 389; State v. Thesing, 2024 ND 219, 14 N.W.3d 574; State v. Johnson, 2024 ND 222, 14 N.W.3d 597. These cases reinforce that inadequately briefed issues are waived on appeal (¶ 18).

Legal Reasoning

1) No credit for civil SDI commitment absent record linkage

The Court’s reasoning is rooted in the statutory text of § 12.1-32-02(2) and the civil-criminal divide. Credit is available only for custody “as a result of the criminal charge” or the conduct underlying it. The Court emphasized:

• SDI commitments under Chapter 25-03.3 are civil, not criminal punishment, and are based on proof by clear and convincing evidence of specific statutory elements, including serious difficulty controlling behavior (¶ 8).
• SDI proceedings often consider a broad spectrum of conduct, including uncharged behavior, to assess dangerousness and control (¶ 8). That expansiveness makes it unlikely, without proof, that the SDI custody was “as a result of” the same conduct as the criminal conviction.
• The record contained neither the commitment petition nor orders, and the district court expressly did not review them. Defense counsel did not seek judicial notice. Thus, there was no evidentiary basis to find that Gomez’s SDI custody was “for the offense charged” or “as a result of the conduct on which the charge was based” (¶ 10).
• Section 12.1-32-02(1)(g) did not apply because Gomez was not committed to the State Hospital as a criminal sentencing alternative; his State Hospital custody arose from a separate civil order (¶ 11).

On these grounds, the Court affirmed the denial of credit for State Hospital time (¶ 13).

2) Good-time credit must be specifically included in the judgment

Reiterating Williamson, the Court explained that “good time” (sentence reduction) under § 12-54.1-01 is distinct from “time spent in custody,” and § 12.1-32-02(2) requires judgments to state both. The corrected judgment here stated Gomez “shall be granted good time … as allowed by statute” and specified 9 years and 27 days of time served, but did not state whether he had accrued good time and, if so, how much (¶ 17).

Although the State argued the good-time issue was not raised below, the Court applied its Rule 35 jurisprudence to review an illegal-sentence claim even if not preserved (¶ 14). Because the record did not establish the amount of good time awarded, the Court remanded for the district court to “consider the issue in the first instance,” receive any necessary evidence (e.g., DOCR credit certificates), and amend the judgment to state the correct amount (¶ 17).

3) Waiver for inadequate briefing

Gomez’s passing reference to 29 days of pre-revocation custody lacked developed argument and record citations. Under N.D.R.App.P. 28(b)(7)(A) and longstanding caselaw, this issue was waived (¶ 18).

Impact

• Civil commitment credit narrowly cabined: Defendants held under a civil SDI commitment cannot expect automatic credit against criminal sentences. To obtain credit, the defense must build a record establishing that the civil confinement was “as a result of” the same criminal charge or its underlying conduct. In most SDI cases—given their broader conduct base and distinct civil elements—this will be difficult absent an unusual overlap and clear documentation.
• Judgment-drafting discipline on good time: District courts must itemize credits. After Williamson and Gomez, a criminal judgment—especially an amended judgment following probation revocation—must separately list (a) total “time spent in custody” and (b) the specific amount of “sentence-reduction” credit (good time) earned under §§ 12-44.1-32 and/or 12-54.1-01. A boilerplate clause promising statutory good time is insufficient.
• Evidentiary practice: Parties should secure DOCR credit statements and any jail-credit records and ensure they are in the sentencing record. If civil-confinement credit is sought, the proponent should seek judicial notice or formally introduce the civil petition, orders, and findings linking the civil custody to the charged criminal conduct.
• Post-revocation resentencing: Dubois and McGinnis continue to constrain resentencing exposure upon probation revocation, and Williamson/Gomez ensure accrued good time is not forfeited in the process.

Complex Concepts Simplified

• Illegal sentence vs. ordinary error: An “illegal sentence” is one that is contrary to statute or unauthorized by the judgment of conviction. Courts must correct it “at any time” (Rule 35(a)(1)), and appellate courts may review even if not preserved (¶¶ 5, 14).
• Time served vs. good time:
  • Time served (custody credit): Actual days physically spent in custody for the offense charged or the conduct underlying it, including time in jail or a mental institution specifically for the offense (e.g., pretrial competency hospitalization).
  • Good time (sentence reduction): Administrative sentence-reduction credit awarded by DOCR (typically up to five days per month under § 12-54.1-01) or by jail authorities under § 12-44.1-32. It reduces the term to be served even if the prisoner is not physically in custody for those “credited” days. Both must be stated in the judgment (¶¶ 16–17).
• Civil SDI commitment vs. criminal sentencing: SDI commitments are civil proceedings with a clear-and-convincing standard and different elements focused on disorder, dangerousness, and control, and may consider broad conduct. Criminal convictions require proof beyond a reasonable doubt of specific statutory elements. Custody under an SDI order is not automatically “for the offense charged” (¶¶ 8–9, 11).
• “As a result of the conduct”: To receive custody credit under § 12.1-32-02(2) for non-penal custody (including mental health confinement), the defendant must show that the custody was caused by, and sufficiently tethered to, the same conduct that underlies the criminal conviction. Custody connected to unrelated conduct or broader dangerousness findings will not qualify (¶ 7).
• Judicial notice and the record: Appellate review is confined to the record. If credit is sought based on proceedings in another case (e.g., civil commitment), the party must request judicial notice or introduce those materials. Without them, the claim fails for lack of proof (¶ 10).

Practical Guidance

• Defense counsel:
  • For any civil-confinement credit claim, obtain and file the civil petition, orders, and findings showing the custody was a direct result of the specific criminal conduct (not merely prior history or generalized dangerousness).
  • Before resentencing, obtain DOCR/jail credit certifications showing total days of time served and good time earned; move to include them in the judgment explicitly, broken out by category.
  • Fully brief all credit claims with precise record citations to avoid waiver under N.D.R.App.P. 28(b)(7)(A).
• Prosecutors:
  • Insist on a clean separation between civil SDI custody and criminal sentencing unless the defense proves the requisite causal linkage under § 12.1-32-02(2).
  • Work with DOCR to provide accurate good-time computations for inclusion in the amended judgment; oppose generic credit language.
• District courts:
  • In amended judgments after revocation, expressly list: (a) total time in custody; and (b) total good-time/sentence-reduction credit, citing the statutory sources (§§ 12-44.1-32, 12-54.1-01).
  • Require evidentiary support for civil-confinement credits; absent record proof of linkage to the offense or its conduct, deny such credits.

Conclusion

State v. Gomez yields two clear takeaways for North Dakota sentencing practice. First, civil SDI commitment time does not count toward a criminal sentence unless the record affirmatively shows the custody was “as a result of” the criminal charge or the conduct supporting it. The civil nature, different standard of proof, and broader scope of SDI proceedings typically undermine that linkage. Second, judgments must itemize credits: both the days actually spent in custody and the distinct sentence-reduction (good-time) credits awarded under §§ 12-44.1-32 and 12-54.1-01. A generic promise to grant “good time as allowed by statute” does not comply with § 12.1-32-02(2).

By affirming the denial of civil-commitment credit and remanding for a specific good-time calculation, the Court reinforces statutory fidelity in sentencing and provides practical guidance for accurately documenting credits in amended judgments. The decision, aligned with Dubois, McGinnis, and Williamson, sharpens the contours of lawful resentencing and ensures that both defendants and courts can rely on clear, statutorily compliant sentencing records.

Disposition: Affirmed in part; remanded for determination and inclusion of good-time credit (¶ 19).