Introduction

In State v. Miller, 2025 ND 188, the North Dakota Supreme Court addressed two recurring problems in probation-revocation practice and appellate review: (1) the level of findings required to revoke probation and order incarceration over defense requests for alternative sanctions, and (2) the legality of sentences imposed following revocation, particularly when the written amended judgment does not conform to the court’s oral pronouncements.

Joseph Frederick Miller appealed orders revoking his probation and resentencing him in two consolidated criminal cases: case no. 32-2023-CR-00110 (CR110) (aggravated assault; violation of a domestic violence protection order (DVPO)) and case no. 32-2024-CR-00003 (CR003) (violation of a DVPO, second or subsequent offense). He argued that revocation was unsupported by adequate findings and that the DVPO sentences were illegal.

The Supreme Court affirmed the revocation decisions and the resentencing in CR003, but it reversed in part in CR110, holding that the district court committed obvious error by entering an amended judgment imposing a sentence on Count 2 (DVPO) that the court did not orally pronounce at the revocation hearing. The case was remanded for the district court to impose a sentence on Count 2 consistent with the opinion.

Summary of the Opinion

• Probation revocation affirmed: The district court’s findings of probation violations were supported by the record, and the decision to revoke probation and order incarceration was not an abuse of discretion. The court was not required to make explicit findings rejecting alternatives to incarceration so long as its reasons for revocation were stated on the record and reflected a rational mental process.
• Illegal sentence in CR110 (Count 2) reversed: The district court failed to orally pronounce a sentence for Count 2 at the revocation proceeding, yet the written amended judgment imposed a sentence and classified the offense as a class C felony, second or subsequent. Because a sentence must conform to the oral pronouncement, the discrepancy rendered the sentence illegal. The Court reversed and remanded for the district court to impose a lawful sentence for Count 2.
• Challenge to felony enhancement in CR003 declined: Miller’s argument that the DVPO offense in CR003 was improperly enhanced to a class C felony constituted a collateral attack on the underlying conviction. Because he did not appeal from the original judgment and Rule 35 cannot be used to attack the conviction itself, the proper vehicle is a petition under the Uniform Postconviction Procedure Act. The Supreme Court therefore declined to consider the argument in this direct appeal from revocation.

Disposition: Affirmed in part, reversed in part, and remanded (affirmed revocation and sentence in CR003; affirmed revocation and Count 1 sentence in CR110; reversed the unpronounced Count 2 sentence in CR110 and remanded for sentencing).

Detailed Analysis

A. Precedents and Authorities Cited

• State v. Hatzenbuehler, 2023 ND 192, 996 N.W.2d 649: The Court reaffirmed the two-step framework governing probation revocation appeals: (1) factual findings on violations are reviewed for clear error; (2) the decision to revoke probation is reviewed for abuse of discretion. Adequate findings need only provide an understanding of the factual basis for revocation.
• State v. Jemal, 2025 ND 167: The Court recently held that district courts have broad sentencing discretion, and appellate review is limited to whether the sentence is within statutory limits and avoids impermissible factors. In revocation settings, courts need only state reasons for revocation on the record; they need not make separate “step two” findings beyond articulating those reasons. Jemal also underscores that an appeal must designate the judgment challenged; challenges to convictions not appealed are generally not reviewable on appeal from subsequent orders.
• State v. Wetzel, 2011 ND 218, 806 N.W.2d 193: The State must prove probation violations by a preponderance of the evidence, not beyond a reasonable doubt.
• State v. Jacobson, 2008 ND 52, 746 N.W.2d 405: Defined abuse of discretion as action that is arbitrary, unreasonable, capricious, or based on a misapplication of the law.
• Black v. Romano, 471 U.S. 606 (1985): Due process in revocation does not require explicit findings rejecting alternatives to incarceration; recorded reasons for revocation suffice if they show a rational basis.
• N.D.C.C. § 12.1-32-04 (sentencing factors): Lists considerations that may inform sentencing decisions (e.g., likelihood of reoffense, amenability to probation); courts are not required to explicitly reference every factor in revocation.
• N.D.R.Crim.P. 52(b) (obvious error): Permits review of unraised errors that affect substantial rights, exercised cautiously and in exceptional cases.
• State v. Blue, 2018 ND 171, 915 N.W.2d 122; State v. Nelson, 2024 ND 55, 5 N.W.3d 554: Confirm broad sentencing discretion and the narrow scope of appellate review of sentences.
• State v. Gomez, 2025 ND 60, 18 N.W.3d 829; State v. Trieb, 516 N.W.2d 287 (N.D. 1994): A sentence is illegal if not authorized by the judgment of conviction, exceeds statutory limits, or does not conform to the oral pronouncement. Rule 35(a)(1) allows correction of illegal sentences at any time.
• State v. Koval, 2022 ND 100, 974 N.W.2d 384; Keller v. State, 2015 ND 228, 869 N.W.2d 424; State v. Eagleman, 2024 ND 231, 14 N.W.3d 912: A party cannot collaterally attack a final, unappealed conviction in later proceedings; Rule 35 cannot be used to challenge the underlying conviction; the Uniform Postconviction Procedure Act is the exclusive remedy for collateral attacks on convictions or sentences.
• N.D.R.App.P. 3(c)(2): The notice of appeal must designate the judgment or order being appealed. An appeal from a revocation order does not automatically open the original conviction to review.

B. The Court’s Legal Reasoning

1) Revocation: Adequate Findings and Discretion to Incarcerate

Applying Hatzenbuehler and Jemal, the Court first examined whether the district court’s findings of probation violations were clearly erroneous. Miller admitted to the remaining alleged violations, which included repeated failures in the 24/7 sobriety program, deception about alcohol consumption, acknowledgment that his criminal conduct resulted from intoxication, a lack of amenability to further treatment, the absence of deterrence toward alcohol use, and failure to complete anger management conditions. These admissions and supporting testimony provided a firm factual basis for the court’s finding of violations.

Turning to the decision to revoke and incarcerate, the Supreme Court emphasized that district courts enjoy broad discretion in sentencing and revocation. The record showed the district court considered the cumulative pattern of violations, the failure of intermediate measures, Miller’s danger to himself and others, and disobedience of probation directives and court orders. Although Miller urged the court to adopt alternative sanctions, the court was not required to explicitly explain rejecting each alternative. The district court nonetheless expressly stated that “incarceration outweighs the general need for probation in this particular matter,” satisfying the requirement that reasons be stated on the record. On this record, the Supreme Court found no abuse of discretion.

2) Illegal Sentences: Oral Pronouncement Controls; No “Silent” Sentences

The Court then addressed Miller’s illegal-sentence arguments under the obvious error standard because they were not raised below. As to CR110, the district court did not orally pronounce any sentence for Count 2 (DVPO) at the revocation proceeding, yet the amended judgment imposed a sentence and classified the offense as a class C felony, second or subsequent. Under Trieb and Gomez, the written judgment must conform to the court’s oral pronouncement; where no sentence was orally announced, the written sentence is illegal. This constituted obvious error affecting substantial rights, requiring reversal and remand for the court to impose a sentence for Count 2 on the record.

3) Collateral Challenges to Underlying Convictions Belong in Postconviction Proceedings

Miller also contended the CR003 DVPO offense was improperly enhanced to a class C felony. The Supreme Court declined to reach the argument. It explained that such a contention attacks the underlying conviction itself, not merely the sentence imposed on revocation. Because Miller did not appeal from the original judgment and because Rule 35 cannot be used to invalidate the conviction, the Uniform Postconviction Procedure Act provides the exclusive avenue for such a challenge. The Court therefore affirmed the sentence in CR003 and left Miller to pursue postconviction relief if he wishes to litigate the enhancement issue.

C. What This Decision Means Going Forward (Impact)

• For trial judges: When resentencing after probation revocation, the court must orally pronounce the disposition for each count. A written amended judgment may not supply a sentence that was never announced in open court. Any discrepancy between the oral pronouncement and the written judgment renders the sentence illegal and subject to reversal and correction.
• For court administrators and counsel: Scrutinize amended judgments to ensure perfect conformity with the court’s oral pronouncements. Misclassifications and silent counts invite appellate correction under Rule 52(b) and Rule 35(a)(1).
• For defense counsel: - Preserve revocation issues with targeted objections, but note that illegal-sentence claims can be reviewed for obvious error. - If you intend to challenge the validity of a conviction (e.g., a felony enhancement), do so by a direct appeal from the judgment or via a petition under the Uniform Postconviction Procedure Act—not on revocation appeal or via Rule 35.
• For the State: Ensure the record contains clear reasons for revocation that reflect a rational mental process and reference relevant statutory factors where appropriate. While explicit factor-by-factor findings are not required, a coherent on-the-record rationale greatly facilitates affirmance.
• For probation practice: The decision underscores that repeated noncompliance (including 24/7 sobriety failures, program noncompletion, and demonstrated risk factors) supports revocation, and courts need not exhaust every alternative sanction once prior intermediate measures have proven ineffective.
• For appellate practice: An appeal from a revocation order preserves only those issues flowing from revocation and resentencing. It does not reopen the underlying conviction(s) unless those judgments are specifically and timely appealed.

Complex Concepts Simplified

• Probation revocation review (two-step): - Step 1: Did the defendant violate probation terms? Reviewed for clear error (was the finding plainly mistaken?).
  - Step 2: Should probation be revoked and what sanction is appropriate? Reviewed for abuse of discretion (did the court act reasonably and apply the correct law?).
• Obvious (plain) error (Rule 52(b)): An appellate court can correct a clear, outcome-affecting error even if no one objected at the time. Used sparingly to prevent serious injustice.
• Illegal sentence: A sentence is illegal if it goes beyond statutory authority, contradicts the oral pronouncement, or is otherwise contrary to law. Courts can correct illegal sentences at any time (Rule 35(a)(1)).
• Oral pronouncement controls: What the judge says in court at sentencing is the sentence. The written judgment must match it. If the judge did not orally pronounce a sentence on a count, the written judgment cannot fill in the gap.
• Collateral attack vs. direct appeal: A collateral attack challenges a conviction after it has become final (e.g., via postconviction relief). A direct appeal challenges errors in the judgment on appeal. You generally cannot collaterally attack a conviction in a later proceeding (like a revocation appeal) if you did not timely appeal the conviction itself.
• Uniform Postconviction Procedure Act: North Dakota’s exclusive mechanism for collaterally challenging a conviction or sentence (e.g., to contest a felony enhancement), when no direct appeal is pending or available.
• Sentencing factors (N.D.C.C. § 12.1-32-04): A nonexclusive list guiding sentencing decisions (such as likelihood of reoffense, deterrence, amenability to probation). Courts need not mechanically recite these factors on the record, but their reasoning should reflect a rational weighing of them.
• Alford plea: A guilty plea in which a defendant maintains innocence but acknowledges that the State has sufficient evidence to convict beyond a reasonable doubt.
• 24/7 sobriety program: A probation condition requiring regular testing and abstinence; repeated failures are significant noncompliance supporting revocation.

Key Takeaways

• District courts must orally pronounce a sentence for each count at revocation resentencing. A written judgment that adds a sentence never announced is illegal and will be reversed.
• Revocation decisions are highly deferential on appeal. Courts need not provide elaborate findings rejecting alternatives to incarceration; it is sufficient to state reasons that demonstrate a rational, lawful decision-making process.
• Challenges to the validity of an underlying conviction (including the propriety of felony enhancements) cannot be bootstrapped onto an appeal from a probation revocation order. Absent a direct appeal, those challenges must proceed exclusively through postconviction relief.
• Illegal-sentence errors can be corrected at any time and may be reviewed for obvious error when not preserved, but that gateway does not extend to relitigating the conviction itself.
• Practitioners should carefully align amended judgments with oral pronouncements and the offense of conviction to avoid reversible error.

Conclusion

State v. Miller advances two practical and doctrinal clarifications in North Dakota criminal procedure. First, it reaffirms that revocation courts have broad discretion and need only articulate on-the-record reasons for incarceration; explicit findings rejecting all alternatives are not required. Second, it establishes a clear administrative rule for revocation sentencing: every count must be orally pronounced, and a written judgment may not supply a “silent” sentence. Discrepancies between the oral record and the written judgment render the sentence illegal.

Equally important, Miller underscores the jurisdictional and procedural boundaries of appellate review. Defendants cannot collaterally attack unappealed convictions through revocation appeals or Rule 35 motions; the Uniform Postconviction Procedure Act remains the exclusive channel for such challenges. Together, these holdings promote transparent sentencing practices, respect for finality, and orderly postconviction review.