State v. Rademacher (2026 ND 107): Presumptive Probation Requires Record-Based, Statute-Textual Aggravator Findings—Driving Alone Is Not “Trust/Responsibility,” and “Age and Vulnerability” Is Conjunctive

Court: Supreme Court of North Dakota
Date: May 27, 2026
Disposition: Reversed and remanded; imprisonment vacated; resentencing ordered

1. Introduction

In State v. Rademacher, the North Dakota Supreme Court addressed the limits of a district court’s ability to depart from the mandatory presumption of probation under N.D.C.C. § 12.1-32-07.4 when sentencing a defendant who pled guilty to a class C felony. Brendan Hunter Rademacher, originally charged with more serious vehicular-death offenses, ultimately pled guilty to negligent homicide (class C felony) arising from a single-vehicle crash in which his passenger drowned.

At sentencing, the district court imposed a prison term after finding aggravating factors under § 12.1-32-07.4(2)(b), concluding (1) Rademacher was “in a position of responsibility or trust over the victim” because he was driving, and (2) the victim was “vulnerable” because he had consumed alcohol. The central issues on appeal were:

  • Whether the court’s findings satisfied the statutory aggravators allowing departure from presumptive probation; and
  • Whether the aggravator findings were supported by record evidence adequate to justify imprisonment under the presumptive probation scheme.

2. Summary of the Opinion

The Supreme Court reversed. It held the district court acted outside the sentencing limits prescribed by the presumptive probation statute by departing from mandatory probation without legally sufficient, record-supported findings establishing an aggravating factor.

  • “Position of responsibility or trust”: The court ruled that the fact Rademacher “was the one driving” and “made that choice to get behind the wheel” was insufficient, as a matter of statutory interpretation and sentencing limits, to constitute being in a position of responsibility or trust over the victim.
  • “Age and vulnerability”: The court read the statutory phrase “age and vulnerability of the victim” conjunctively and concluded the district court made no meaningful age-based finding and, in any event, relied on an inadequately supported inference that alcohol consumption alone equaled vulnerability.

The Supreme Court vacated the imprisonment component, ordered immediate coordination of Rademacher’s release, and remanded for resentencing and an amended judgment consistent with its interpretation of § 12.1-32-07.4.

3. Analysis

3.1 Precedents Cited (and How They Shaped the Decision)

A. Sentencing appellate review and standards

  • State v. Christensen, 2019 ND 11: The majority applied Christensen for the proposition that sentencing courts must stay within “sentencing limits prescribed by statute” and may not “change the nature of an offense” for sentencing purposes. The court used this to reject an interpretation that would effectively transform a negligent-homicide conviction into something akin to a vehicular-homicide sentencing regime by treating driving itself as an aggravator. The dissent also relied on Christensen but argued the majority misapplied it because Christensen addressed categorical exclusions in § 12.1-32-07.4(1), not discretionary aggravators in § 12.1-32-07.4(2).
  • State v. Cotton, 2025 ND 191: Supplied the “clearly erroneous” standard for reviewing findings of fact underlying aggravator determinations.
  • State v. Bell, 2025 ND 201: Provided statutory interpretation principles, including contextual reading and the maxim that “the mention of one thing implies exclusion of another,” and the proposition that whether facts meet a legal standard is reviewed as a question of law.
  • Interest of C.A.R., 2020 ND 209: Used for the meaning of “may” as discretionary and for the abuse-of-discretion standard where a sentencing court misinterprets or misapplies the law.
  • Interest of K.V., 2019 ND 255: Cited to confirm “shall” imposes a mandatory duty—critical because § 12.1-32-07.4(1) mandates probation absent a valid exception or aggravator.

B. Interpreting “position of responsibility or trust”

To illustrate ordinary usage of “position of responsibility or trust over the victim,” the opinion referenced relationships historically treated as trust/responsibility relationships:

  • State v. Huether, 2010 ND 233 (parent-child context)
  • State v. Bell, 540 N.W.2d 599 (N.D. 1995) (parent-child context)
  • State v. Burckhard, 1998 ND 121 (pastor-congregation relationship)
  • Matter of Jaynes, 278 N.W.2d 429 (N.D. 1979) (attorney-client relationship)
  • Schlossman & Gunkelman, Inc. v. Tallman, 1999 ND 89 (realtor-client relationship)

These cases were not treated as controlling on § 12.1-32-07.4(2)(b)’s meaning, but they anchored the majority’s conclusion that “trust/responsibility over the victim” is not satisfied by the generic responsibilities everyone owes on public roadways.

C. Canons of construction and lenity

  • Park View Manor, Inc. v. Housing Auth. of Stutsman Cnty., 300 N.W.2d 218 (N.D. 1980): Cited for the longstanding application of expressio unius est exclusio alterius—supporting the idea that when § 12.1-32-07.4(1) lists categorical exclusions and omits motor-vehicle offenses, courts should not create an equivalent categorical exclusion through expansive reading of aggravators.
  • State v. Reese, 2026 ND 39 (quoting State v. Vetter, 2013 ND 4): Reinforced the rule of construing ambiguous criminal statutes against the government and in favor of the defendant, which the majority invoked to resist an interpretation expanding aggravators into de facto categorical exclusions.
  • State v. Berkley, 2025 ND 134: Used for the ordinary conjunctive meaning of “and,” pivotal to the holding that the statute’s phrase “age and vulnerability of the victim” requires consideration of both.

D. Proof of aggravating facts and constitutional backdrop

  • N.D.C.C. § 29-26-18: The majority emphasized the statutory requirement that “circumstances in aggravation or mitigation of punishment must be presented by testimony of witnesses examined in open court,” subject to limited exceptions, and faulted the district court’s reliance on its “recollection” rather than clearly identified record evidence.
  • Apprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely v. Washington, 542 U.S. 296 (2004): The majority invoked these as constitutional guardrails emphasizing that penalty-increasing facts generally must be admitted or found by a jury. The dissent argued these authorities were not raised by the appellant and are not implicated because the sentence did not exceed the statutory maximum for negligent homicide.

E. Dissent’s additional authorities (framing the disagreement)

  • State v. Holbach, 2014 ND 14: cited to caution against reweighing evidence on appeal.
  • State v. Steen, 2000 ND 152: used to support reliance on unobjected-to presentence investigation report facts.
  • State v. Hamilton, 2023 ND 233: cited for drawing reasonable inferences from the record at sentencing.

3.2 Legal Reasoning

A. The structure of § 12.1-32-07.4: mandatory probation first, discretion only after valid aggravator

The majority’s analysis is driven by the statute’s architecture:

  • § 12.1-32-07.4(1) creates a mandatory rule (“shall”) requiring probation at initial sentencing for class C felonies, subject to enumerated categorical exceptions (domestic violence, registration offenses, weapon/explosives, mandatory incarceration).
  • § 12.1-32-07.4(2) creates a conditional discretion (“may”) to impose imprisonment only if the court finds aggravating factors justifying departure.

Because negligent homicide is a class C felony and none of the subsection (1) categorical exceptions applied, the district court’s authority to impose imprisonment depended entirely on valid, adequately supported aggravator findings under subsection (2).

B. “Position of responsibility or trust over the victim” cannot be satisfied by “he was driving” alone

The district court’s operative finding was essentially role-based: Rademacher drove; the victim did not. The Supreme Court rejected this as insufficient for two related reasons:

  • No judicially created categorical exclusion: If driving (or causing death while driving) automatically establishes a trust/responsibility aggravator, then virtually every vehicular negligent-homicide case could be converted into imprisonment, undermining the legislature’s decision to include class C negligent homicide within presumptive probation.
  • Consistency with the broader statutory scheme: The majority contrasted negligent homicide (class C) with distinct vehicular offenses (e.g., reckless driving, criminal vehicular homicide) where the legislature calibrated culpability and, in some circumstances, mandated imprisonment. Using “driving” as an aggravator in negligent homicide was viewed as an end-run around those calibrated legislative choices.

In short, the majority required something more case-specific than the mere fact of being the driver to fit the “trust/responsibility over the victim” concept.

C. “Age and vulnerability of the victim” is conjunctive, and “alcohol consumption” was not enough on this record

The court read “age and vulnerability of the victim” as a linked phrase requiring the sentencing court to consider both components meaningfully. The district court mentioned the victim’s age (21) but did not explain how that age contributed to vulnerability or otherwise made the victim distinct from an ordinary adult victim. That left vulnerability to carry the aggravator.

On vulnerability, the district court acknowledged there was no specific intoxication level finding but inferred vulnerability from alcohol consumption based largely on the court’s recollection of earlier proceedings. The Supreme Court found the evidentiary basis unclear and the factual findings too thin to satisfy the statutory threshold for imprisoning a presumptively probation-eligible defendant.

D. A process requirement: specific, reviewable findings tied to an evidentiary basis

A central through-line is appellate reviewability: because presumptive probation creates a statutory sentencing limit, a departure requires findings that are (1) specific enough to be reviewed and (2) grounded in identifiable record evidence, not generalized assumptions or unarticulated recollections.

3.3 Impact

A. Sentencing courts: higher discipline in making aggravator findings under § 12.1-32-07.4(2)

The opinion effectively demands that when a district court departs from presumptive probation:

  • it must articulate what facts establish a listed aggravator;
  • it must identify the record basis for those facts; and
  • it must ensure the facts, as found, satisfy the aggravator’s legal meaning.

B. Vehicular cases: “driver = trust/responsibility” is not a shortcut

For negligent homicide and other class C felonies subject to presumptive probation, the State cannot reliably obtain imprisonment merely by characterizing ordinary driving duties as a “position of responsibility or trust over the victim.” Prosecutors seeking imprisonment will likely need to develop a fuller factual record showing a relationship or circumstance that resembles a trust/responsibility dynamic beyond the generic driver-passenger arrangement.

C. Textual consequences: “age and vulnerability” is not “age or vulnerability”

By treating “and” conjunctively, the decision narrows the availability of that aggravator and requires sentencing judges to explain the role of the victim’s age, not just vulnerability. This may be especially consequential where vulnerability is argued based on intoxication, impairment, disability, or situational helplessness.

D. Potential friction with routine sentencing practice

The dissent’s focus on the presentence investigation report and relaxed sentencing evidentiary rules highlights a possible future battleground: whether and how § 29-26-18 constrains reliance on PSI content for aggravator findings, and how those constraints interact with § 12.1-32-07.4’s “sentencing limit” character. Future appeals may refine (or limit) the breadth of Rademacher on this point.

4. Complex Concepts Simplified

Key terms in plain language

  • Presumptive probation (N.D.C.C. § 12.1-32-07.4): For certain lower-level offenses (including class C felonies), probation is the default and mandatory starting point at initial sentencing unless a listed exception applies or the court makes valid aggravator findings.
  • Aggravating factors: Statutory reasons that allow a judge to impose prison despite presumptive probation. The judge must make fact findings that fit the statutory factor.
  • “Shall” vs. “may”: “Shall” means the judge must do it; “may” means the judge has discretion, but only after meeting required conditions.
  • Clearly erroneous (fact review): An appellate court will not overturn fact findings unless they are unsupported by evidence, based on a wrong legal view, or plainly mistaken on the whole record.
  • Expressio unius est exclusio alterius: If a statute lists specific items, courts generally should not add unstated items as if they were included.
  • Conjunctive “and”: When the statute says “A and B,” it generally requires consideration of both, not just one.
  • Apprendi/Blakely principle (as cited): Facts that increase punishment beyond what the admitted/verdict facts allow ordinarily must be admitted by the defendant or found by a jury; the majority cited these cases as reinforcing careful treatment of penalty-increasing factfinding.

5. Conclusion

State v. Rademacher strengthens the practical force of North Dakota’s presumptive probation statute by insisting that imprisonment for a presumptively probation-eligible class C felony is unlawful unless the district court makes specific, legally sufficient, record-supported findings that a listed aggravating factor applies. The decision rejects two common sentencing shortcuts: (1) equating ordinary driving with being in a “position of responsibility or trust over the victim,” and (2) treating “age and vulnerability” as satisfied by a bare vulnerability inference untethered to meaningful age analysis and clear evidentiary grounding.

Going forward, departures from presumptive probation in North Dakota will require more careful statutory parsing, clearer factual development in the sentencing record, and more explicit findings that connect those facts to the precise aggravator language the legislature enacted.