State v. Jaeger: Clarifying Rule 36 Clerical Corrections of Jail Credit and the Absence of a Right to Counsel in Non‑Critical Sentencing Modifications

Introduction

In State v. Jaeger, 2025 ND 222, the North Dakota Supreme Court addressed two important procedural issues at the intersection of sentencing, probation revocation, and post-judgment corrections:

When and how a district court may use N.D.R.Crim.P. 36 to correct a clerical error in calculating jail credit, even when the correction results in a reduction of credit from what appears in the original written order; and
Whether a defendant has a constitutional right to counsel to respond to a Rule 36 motion that merely corrects such a clerical mistake.

Defendant Rayce Kody Jaeger, originally convicted of felony child neglect, challenged two related district court orders that reduced his stated credit for time served from “3 years and 34 days” to “2 years and 24 days” following revocation of his probation. He argued this “reduction” created an illegal sentence that conflicted with the court’s oral pronouncement and that the failure to appoint counsel for the Rule 36 proceedings violated his constitutional right to counsel.

Chief Justice Jensen, writing for a unanimous court, affirmed the district court. The opinion reinforces and refines North Dakota law on three key points:

Rule 36 authorizes correction of a written revocation order that mis-records credit for time served, even if the correction results in less stated credit, so long as the correction merely aligns the writing with the court’s unambiguous oral pronouncement.
Such a correction is a clerical, not a substantive, change; it does not render the sentence “more onerous” than what was orally imposed, and it does not trigger double jeopardy concerns.
A Rule 36 proceeding to correct a clerical error in jail credit—even in the context of probation revocation—is not a “critical stage” of prosecution and therefore does not give rise to a constitutional right to appointed counsel.

Summary of the Opinion

The Court’s holdings can be summarized as follows:

Rule 36 Clerical Error Correction: The district court acted within its discretion under N.D.R.Crim.P. 36 in correcting the written order revoking probation, which had erroneously stated Jaeger’s jail credit as “3 years and 34 days.” The correct credit, consistent with the court’s oral pronouncement, was “2 years and 24 days” (two years of prior incarceration on the original sentence plus twenty-four days spent in custody on the warrant leading to revocation).
Oral Pronouncement Controls; Written Error Was Clerical: The Court reaffirmed that an unambiguous oral pronouncement of sentence controls over a conflicting written judgment (State v. Raulston). Here, the oral pronouncement was clear—two years plus 24 days—and the written order’s “3 years and 34 days” was a classic clerical mis-entry, not a new or altered sentence.
No Abuse of Discretion: Applying the abuse-of-discretion standard from State v. Welch and State v. Moos, the Court held the district court had properly used a rational process to correct an evident recording error and did not misinterpret Rule 36.
No Constitutional Right to Counsel on Rule 36 Motion: The Court rejected Jaeger’s argument, based on Gideon v. Wainwright, that he had a constitutional right to appointed counsel to respond to the State’s Rule 36 motion. A Rule 36 clerical correction in a probation revocation context is not a “critical stage” of the criminal prosecution under State v. Yost and State v. Jensen; therefore, the Constitution did not require appointment of an attorney.
Double Jeopardy Claim Rendered Moot: Because the Court concluded that the change was purely clerical and did not modify the substance of the sentence, Jaeger’s double jeopardy argument was moot.

Factual and Procedural Background

A. Original Conviction and Sentence

In February 2023, Jaeger pleaded guilty to felony child neglect in violation of N.D.C.C. § 14-09-22.1. The district court imposed:

A 5-year term of imprisonment, with 3 years suspended;
Credit for 375 days already served;
3 years of supervised probation; and
$5,000 in restitution.

After serving the initial incarceration portion of this sentence, Jaeger was released on supervised probation.

B. Probation Revocation Proceedings

Following allegations of multiple probation violations, the State filed a petition to revoke probation. At the October 2024 revocation hearing:

Jaeger waived his right to counsel at the hearing;
He admitted all the alleged violations; and
The court revoked probation and imposed a new sentence of 5 years, with 1 year suspended, plus 2 years of supervised probation.

Two types of “time” were discussed at the hearing:

Time on supervised probation – relevant to how much probation time remained available under statutory limits.
Time previously incarcerated – relevant to the amount of credit for time served (i.e., how many days must be deducted from the new term of incarceration).

C. Oral Pronouncement of Jail Credit

On the record, the district court clearly stated Jaeger would receive:

Credit for “two years” previously served on the original sentence; plus
Credit for the time “when [he] was picked up on the warrant” leading to the revocation, a period of twenty-four days from arrest on the warrant to the revocation hearing.

Thus, the total oral pronouncement of jail credit was 2 years and 24 days.

D. The Written Revocation Order and the Rule 36 Motion

Despite the clarity of the oral record, the district court’s written order revoking probation erroneously recited Jaeger’s credit as:

“3 years and 34 days”

This written figure did not match what the court had said in open court. In April 2025, the State moved under N.D.R.Crim.P. 36 to correct what it characterized as a clerical error in calculating or recording jail credit. The State argued:

The written order conflicted with the court’s oral pronouncement of “two years plus” the revocation-related custody; and
Jaeger had indeed requested the 24 days between his arrest on the warrant and the revocation hearing, which the court intended to award.

The district court granted the motion, entering:

An order specifically finding the original revocation order had incorrectly stated the credit as 3 years and 34 days, and
An amended order revoking probation reflecting the correct credit as 2 years and 24 days.

Jaeger appealed both the order correcting the clerical error and the amended revocation order.

Core Legal Issues on Appeal

1. Was the Reduction in Stated Jail Credit an Impermissible Modification of Sentence?

Jaeger argued that decreasing the stated credit for time served from “3 years and 34 days” to “2 years and 24 days” illegally increased his sentence and conflicted with the oral pronouncement. He relied on the principle in State v. Raulston, 2005 ND 212, ¶ 8, 707 N.W.2d 464, that when there is a direct conflict between a clear oral sentence and the written judgment, the oral pronouncement controls.

Key sub-questions:

Was the written number a clerical error or a deliberate judicial decision?
Did correcting the written order merely bring it into line with the oral pronouncement, or did it change the substance of the sentence?

2. Did the District Court Abuse Its Discretion Under N.D.R.Crim.P. 36?

The Court reviewed the Rule 36 correction for abuse of discretion, under the standard described in State v. Welch, 2019 ND 179, ¶¶ 4–5, 930 N.W.2d 615, and State v. Moos, 2008 ND 228, ¶ 30, 758 N.W.2d 674: an abuse occurs if the court acts arbitrarily, unreasonably, unconscionably, or misinterprets/misapplies the law.

3. Was Jaeger Constitutionally Entitled to Counsel to Oppose the Rule 36 Motion?

Invoking Gideon v. Wainwright, 372 U.S. 335 (1963), and State v. Yost, 2014 ND 209, 855 N.W.2d 829, Jaeger argued that:

The right to counsel attaches at all “critical stages” of a prosecution; and
The Rule 36 proceeding to reduce his jail credit was a critical stage because it affected his liberty interest.

The Court had to decide:

Is a Rule 36 clerical correction following probation revocation a “critical stage” of the prosecution?
Does prior case law treating probation revocation as not a critical stage (State v. Jensen, 2010 ND 3, 777 N.W.2d 847) extend to this context?

4. Double Jeopardy Concerns

Although Jaeger raised a double jeopardy argument—essentially that increasing his effective incarceration by reducing his credit would constitute multiple punishments for the same offense—the Court found this issue moot given its determination that the change was merely clerical and did not alter the lawfully imposed sentence.

Precedents Cited and Their Influence

A. State v. Raulston (2005 ND 212, 707 N.W.2d 464)

In Raulston, the Court held that when a direct conflict exists between an unambiguous oral sentence and a written judgment, the oral pronouncement controls. The principle protects defendants from later, undocumented changes to their sentences and recognizes the primacy of what the sentencing judge actually says in open court.

In Jaeger, this rule worked in the State’s favor. The oral pronouncement was:

“Two years” credit plus the twenty-four days between arrest on the warrant and the revocation hearing.

The written order’s “3 years and 34 days” figure was inconsistent with that oral pronouncement. Applying Raulston:

The oral pronouncement defined the true sentence and jail credit.
The written judgment was erroneous to the extent it departed from that pronouncement.
Correcting the written order to match the oral sentence was therefore not a modification of the sentence but a restoration of what had already, lawfully, been imposed.

B. State v. Welch (2019 ND 179, 930 N.W.2d 615)

Welch supplies the standard of review: corrections under Rule 36 are reviewed for abuse of discretion. This gives district courts significant leeway to correct their own records, as long as they:

Act reasonably and not arbitrarily;
Follow a rational mental process to reach a reasoned decision; and
Correctly interpret and apply Rule 36.

In Jaeger, the Supreme Court found that the district court properly interpreted Rule 36 as allowing correction of an obvious mis-recording of jail credit, and exercised reasoned judgment in aligning the written order with the oral pronouncement. No abuse of discretion occurred.

C. State v. Moos (2008 ND 228, 758 N.W.2d 674)

Moos further defines “abuse of discretion” as acting in an arbitrary, unreasonable, or unconscionable manner, or misinterpreting/misapplying the law. The Court invoked this standard in Jaeger to reinforce that the district court’s action—correcting a simple numerical mis-entry—was plainly within its discretion.

D. N.D.R.Crim.P. 36 and State v. Peterson (2016 ND 192, 886 N.W.2d 71)

Rule 36 provides:

“After giving any notice it considers appropriate, the court may at any time correct a clerical error in a judgment, order, or other part of the record, or correct an error in the record arising from oversight or omission.”

In State v. Peterson, 2016 ND 192, ¶ 17, the Court adopted the explanatory note’s understanding of “clerical error” as:

A failure to record accurately a statement made or action taken by the court or one of the parties.

Peterson thus draws an important line:

Clerical errors – recording mistakes, mis-entries, or omissions that do not reflect the actual decision made; correctable under Rule 36 at any time.
Judicial errors – mistakes in reasoning or decision-making (e.g., misinterpretation of law, miscalculation based on judgment calls); not reachable via Rule 36, but only through appeal or other appropriate procedures.

In Jaeger, the Court characterizes the “3 years and 34 days” figure as exactly the kind of mis-recording covered by Peterson:

The oral record showed “2 years” plus 24 days.
The written record said “3 years and 34 days.”
Swapping “2” for “3” and “24” for “34” is the textbook type of clerical error—an inaccurate transcription of what was said.

Accordingly, Rule 36 squarely authorized the correction.

E. Sampson v. State (506 N.W.2d 722 (N.D. 1993))

In Sampson, the sentencing judge orally imposed a mandatory minimum of two years under N.D.C.C. § 12.1-32-02.1(2), but the written judgment omitted that minimum. The Court held:

Rule 36 could be used to add the mandatory minimum to the judgment, because the oral record established that it had already been imposed; and
The correction did not make the sentence “more onerous” but merely brought the written judgment into conformity with the sentence actually pronounced.

Jaeger applies the same logic in reverse form:

In Sampson, Rule 36 was used to add a missing element, making the written judgment harsher but not more onerous than the existing oral sentence.
In Jaeger, Rule 36 was used to subtract mistakenly excessive credit, making the written judgment less generous but still no harsher than the oral sentence.

The key principle is the same: Rule 36 may be used to conform the written judgment to the actual sentence orally pronounced, even if the textual correction makes the written sentence appear harsher than the erroneous earlier document. The measure is whether the correction matches the lawfully imposed sentence, not whether it reduces a prior clerical windfall.

F. Gideon v. Wainwright (372 U.S. 335 (1963)) and State v. Yost (2014 ND 209)

Gideon established the fundamental principle that indigent defendants in state criminal prosecutions are entitled to appointed counsel at trial. Building on Gideon, Yost explains that the constitutional right to counsel applies at “all critical stages of the prosecution.”

Yost frames the inquiry:

Does the stage or proceeding involve decisions or events where substantive rights may be substantially affected?
Is the assistance of counsel necessary to ensure a fair proceeding at that stage?

In Jaeger, the Court’s reasoning takes these principles and then constrains them by prior state precedent on probation revocation and Rule 36.

G. State v. Jensen (2010 ND 3, 777 N.W.2d 847)

Jensen held that:

The “whole process of probation revocation” is not a critical stage of a criminal prosecution for constitutional right-to-counsel purposes; but
North Dakota statutes grant a statutory right to counsel at the revocation hearing itself.

Jaeger had such a statutory right at his revocation hearing but expressly waived it. The question in Jaeger was whether the post-hearing Rule 36 process, which concerned only a clerical correction of jail credit, should nonetheless be deemed a constitutional “critical stage” requiring appointed counsel.

The Court relied on Jensen to conclude that if the entire probation revocation process is not a critical stage, then a narrow, non-discretionary proceeding focused solely on correcting a clerical mis-entry of jail credit is even less likely to qualify as a critical stage.

The Court’s Legal Reasoning

1. Characterizing the Error: Clerical vs. Substantive

The Court’s analysis hinges on a threshold classification: was the original “3 years and 34 days” entry a clerical error or a new judicial sentencing decision?

The Court found it was clerical for three interlocking reasons:

Clarity of the oral record: At the revocation hearing, the court “unambiguously” stated Jaeger would receive (a) two years credit for time served on the original sentence, and (b) an additional twenty-four days for time in custody on the warrant.
Nature of the discrepancy: The erroneous written order simply stated a different number of years and days (3 and 34) than those stated orally (2 and 24). This kind of digit swap is typical of a recording error, not a reasoned decision to alter sentence length.
Consistency with Rule 36’s explanatory note and Peterson: The error was “a failure to record accurately a statement made” by the court, which fits squarely within the definition of clerical error recognized in Peterson.

Once characterized as clerical, Rule 36 plainly authorized its correction “at any time,” subject only to the court’s discretion and appropriate notice.

2. Applying the Oral Pronouncement Rule (Raulston)

The Court reinforced the Raulston principle: where there is “a direct conflict” between oral and written sentences, the oral pronouncement controls. For Jaeger:

The true sentence—including the credit for time served—was set at the revocation hearing.
The written revocation order’s “3 years and 34 days” did not reflect that true sentence.
The court’s later correction simply restored the written record to match the oral sentence that had already taken effect.

Therefore, the correction could not be characterized as imposing a new or harsher sentence; it was the recognition and recording of the sentence already lawfully in place.

3. Addressing Jaeger’s Misinterpretation of the Hearing Record

The Court noted that Jaeger’s argument depended in part on “incorrectly referencing” a different part of the revocation hearing—specifically, the discussion about how much time he had spent on supervised probation.

This distinction matters:

The length of probation is governed by separate statutory limits, and the time spent on probation affects how much further supervised release the court may impose.
The credit for time served relates only to past periods of incarceration, not time spent at liberty on probation.

By conflating these two discussions, Jaeger tried to construct a supposed oral promise of credit for a longer period than the court had actually granted. The Supreme Court rejected this conflation and carefully separated the two distinct time discussions:

Time spent on probation → limits remaining probation duration; not relevant to jail credit.
Time spent incarcerated → forms the basis for credit for time served.

With this separation clarified, the oral record clearly supported only 2 years + 24 days of credit, not 3 years + 34 days.

4. Abuse of Discretion Analysis

Under Welch and Moos, the Court considered whether the district court:

Acted arbitrarily or unreasonably;
Followed a rational mental process; and
Correctly interpreted Rule 36.

The Supreme Court concluded:

The district court reasonably identified a mismatch between the oral pronouncement and the written order.
It correctly classified the error as clerical.
It applied Rule 36 exactly as intended—to correct an oversight in recording, not to re-sentence or reconsider the appropriateness of the term.

Thus, no abuse of discretion occurred.

5. No Constitutional Right to Counsel at Rule 36 Clerical Correction

On the right-to-counsel issue, the Court’s reasoning proceeds in stages:

Scope of the constitutional right: Following Gideon and Yost, the Court acknowledges that the constitutional right to counsel covers all “critical stages” of the prosecution—stages where substantial rights may be affected and where counsel’s absence might compromise fairness.
Nature of probation revocation: In Jensen, the Court held that the “whole process of probation revocation” is not itself a critical stage, even though statutes confer a separate statutory right to counsel at the revocation hearing.
Character of a Rule 36 proceeding: A Rule 36 motion to fix a clerical error is narrow in scope and typically non-adversarial. It does not call for new factual findings or discretionary decisions about punishment; it simply ensures that the written record accurately reflects what has already been decided.

Combining these premises, the Court concludes:

Jaeger had a statutory right to counsel at the revocation hearing, which he waived.
He cited no authority holding that a Rule 36 clerical correction, post-revocation, was a constitutional critical stage.
Given that even the entire revocation process is not a critical stage, a purely clerical correction of the written record certainly is not.

Accordingly, there was no violation of Jaeger’s constitutional right to counsel when the court chose not to appoint an attorney for him in responding to the State’s Rule 36 motion.

6. Double Jeopardy: Rendered Moot

Double jeopardy principles bar multiple punishments for the same offense. Had the district court actually increased Jaeger’s legally imposed sentence after it had become final, a serious double jeopardy question could arise.

But the Court’s classification of the change as a clerical correction—conforming the written record to the original oral sentence—defeats any claim that there was a second punishment or an increase in punishment. Because:

The oral sentence (2 years + 24 days credit) controlled from the moment of pronouncement; and
The original written order’s extra, unintended credit was a clerical error conferring an unearned windfall;

the Court held that Jaeger’s double jeopardy claim was moot. There was never any second or additional punishment, only a correction of the paperwork.

Complex Concepts Simplified

1. “Credit for Time Served”

“Credit for time served” means the court deducts from a new term of incarceration the days a defendant has already spent in custody in connection with the same charge or case. For example:

If a defendant is sentenced to 3 years but has already spent 1 year in jail awaiting trial, he typically gets 1 year of “credit,” so he serves only 2 additional years.

In Jaeger, the question was: how many days had he already spent incarcerated (on the original sentence and on the warrant leading to revocation) that must be credited against the new prison term imposed upon revocation?

2. “Clerical Error” vs. “Judicial Error”

Clerical error: A mistake in writing, typing, or recording that misstates something the judge actually decided. Examples:
- The judge says “24 days” but the clerk types “34 days.”
- The judge says “two years” but the written order says “three years.”
These errors are fixable under Rule 36 at any time.
Judicial error: A mistake in the court’s reasoning or decision, such as misinterpreting the law or misapplying a sentencing factor. Example:
- A judge intentionally gives a longer sentence based on a misunderstanding of the statute.
These cannot be “corrected” as clerical; they must be challenged on direct appeal or other appropriate post-conviction process.

Jaeger reinforces that numeric mis-entries of time credit, when the oral record is clear, fall on the “clerical” side of this line.

3. “Critical Stage” and the Right to Counsel

A “critical stage” is any point in a criminal proceeding where:

Important rights may be lost or impaired; and
An unrepresented defendant is at a serious disadvantage compared to one with counsel.

Classic critical stages include:

Trial;
Plea hearings;
Sentencing; and
Some types of post-trial motions that can change the outcome in a substantive way.

But not every post-sentencing step qualifies. As Jensen holds, even the entire probation revocation process is not, constitutionally, a critical stage (though statutes may independently grant counsel). A narrow, mechanical correction under Rule 36, which merely aligns the written record with the existing oral sentence, is even further removed from what the Constitution treats as critical.

4. “More Onerous” Sentence

When a court corrects or amends a judgment, an important question is whether the change makes the sentence “more onerous” to the defendant—that is, whether the defendant is punished more harshly than he was under the validly imposed original sentence.

Sampson and Jaeger together illustrate the rule:

If the oral sentence already contained a certain restriction or term (e.g., a mandatory minimum; a limited amount of credit), adding that term to the written judgment does not make the sentence more onerous—it merely expresses what was always in effect.
A sentence becomes more onerous only if the court actually increases the punishment beyond what was originally and lawfully imposed.

In Jaeger, the correction made the written order less generous than it previously appeared, but it did not make the actual sentence more onerous because the controlling oral pronouncement never included the extra credit.

Impact and Implications

1. Clarifying the Scope of Rule 36 in North Dakota

State v. Jaeger strengthens and clarifies the application of Rule 36 in several ways:

It confirms that jail credit figures in a written judgment may be corrected under Rule 36 when they do not match the oral pronouncement, even if the correction decreases the amount of stated credit.
It underscores that courts should look to the oral record first when determining whether a written numeric discrepancy is clerical.
It reiterates that Rule 36 is limited to correcting the record of what was done, not to changing what was done.

Practically, prosecutors and defense attorneys in North Dakota should:

Carefully review transcripts of sentencing and revocation hearings when discrepancies in jail credit arise.
Use Rule 36 as the appropriate vehicle when the discrepancy arises from a simple mis-recording of the court’s stated intent.
Recognize that a favorable clerical mistake in a written judgment (e.g., excess credit) is not secure if the oral record clearly contradicts it.

2. Reinforcing the Primacy of the Oral Pronouncement

By grounding its analysis in Raulston, the Court re-emphasizes a basic but critical rule: what the judge says in open court is the sentence. Written orders are important for administration but are subordinate to the oral pronouncement when the two conflict.

This places a premium on:

Accurate court reporting;
Clear articulation of all sentencing components on the record; and
Prompt correction of written orders when any discrepancy is discovered.

3. Narrowing the Circumstances Requiring Appointed Counsel

On the right-to-counsel issue, Jaeger may have the most forward-looking impact. It confirms that:

Not all sentence-related proceedings after judgment are “critical stages.”
Clerical corrections that do not involve new discretion or adversarial decision-making do not trigger the constitutional right to counsel.
Even where liberty interests are tangentially affected (as when correct jail credit is lower than a prior clerical error), the key is whether the proceeding revisits or changes the real underlying sentence, or merely corrects the record to reflect it.

The opinion thus sets a boundary: defendants in North Dakota cannot claim an automatic constitutional right to counsel for every post-judgment proceeding that might indirectly affect how long they are incarcerated. The nature and function of the proceeding—substantive vs. clerical, discretionary vs. mechanical—matter greatly.

4. Guidance for Probation Revocation Practice

For probation revocations in particular, Jaeger provides practical guidance:

Courts and counsel must carefully separate time on probation (used to compute how much supervision remains) from time in custody (used to calculate jail credit).
Misunderstanding or blending these two categories can lead to misguided arguments about what the court “promised” or intended regarding credit for time served.
When revocation orders mistakenly conflate these time periods in the written judgment, Rule 36 may be used to clarify and correct the record so it accurately reflects the oral sentencing decision.

5. Limiting Double Jeopardy Arguments Based on Clerical Windfalls

By declaring Jaeger’s double jeopardy claim moot, the Court effectively signals that:

Defendants cannot convert a clearly erroneous clerical windfall into a vested constitutional right to a shorter sentence.
So long as the oral sentence was lawful and remains unchanged, correcting the written judgment to match it does not constitute a new “punishment” for double jeopardy purposes.

This may deter strategic attempts to resist obvious clerical corrections by characterizing them as prohibited sentence increases.

Conclusion

State v. Jaeger, 2025 ND 222, is a significant procedural decision that refines North Dakota law on sentencing records, probation revocation, and the right to counsel in post-judgment corrections.

The key takeaways are:

Rule 36 and Jail Credit: N.D.R.Crim.P. 36 may be used to correct clerical errors in a revocation order’s calculation of credit for time served, even when the correction reduces the credit stated in the original written order, so long as the correction:
- Accurately reflects the unambiguous oral pronouncement; and
- Does not substantively alter the sentence actually imposed.
Oral Pronouncement Controls: When there is a direct conflict between an unambiguous oral sentence and a written judgment, the oral pronouncement controls. Written errors that deviate from the oral sentence are clerical and correctable.
Clerical vs. Substantive Changes: The decision reinforces the distinction between clerical errors (mis-recordings of what was done) and judicial errors (mistakes in what should have been done). Rule 36 reaches only the former.
No Constitutional Right to Counsel for Clerical Corrections: A Rule 36 proceeding to correct a clerical error in a probation revocation order is not a “critical stage” of the prosecution. Defendants have no constitutional right to appointed counsel for such purely clerical modifications, especially where the broader probation revocation process itself is not a critical stage.
Double Jeopardy Limitations: Correcting a clerical error to remove unintended extra credit does not amount to a second punishment or an impermissible increase of sentence; double jeopardy challenges based on such corrections are therefore untenable.

By affirming the district court’s actions, the North Dakota Supreme Court has provided clear guidance for trial courts, prosecutors, and defense counsel on how to handle discrepancies in sentencing records and has struck a careful balance between accurate record-keeping and the protections afforded to defendants in true critical stages of criminal proceedings.