author: LANSING, Judge.

text:
    STATE of Minnesota, Respondent, v. Thomas Robert WUKAWITZ Jr., Appellant.
    No. C6-02-30.
    Court of Appeals of Minnesota.
    June 4, 2002.
    Mike Hatch, Attorney General, St. Paul, MN; and Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, St. Paul, MN, for respondent.
    John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by LANSING, Presiding Judge, RANDALL, Judge, and PORITSKY, Judge.

       Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

   OPINION

LANSING, Judge.

The Ramsey County District Court modified Thomas Wukawitz Jr.’s 140-month prison sentence to include a 60-month concurrent and coterminous conditional-release term. We conclude that the conditional-release term may not corn-menee before the defendant has been released from incarceration, but the district court may reduce the conditional-release term so that the total period of possible incarceration does not exceed the upper limit of the sentence negotiated in the plea agreement.

FACTS

Thomas Wukawitz Jr. pleaded guilty in 1998 to two counts of first-degree criminal sexual conduct in violation of MinmStat. § 609.342, subds. 1(a) and 2 (1992). The conduct involved two separate victims and occurred between 1988 and 1992. Wukaw-itz entered his plea as part of a plea agreement that provided for an executed prison sentence of 54 months on one count and 86 months on the other. The district court imposed consecutive sentences of 54 months and 86 months, an aggregate of 140 months. The mandatory conditional-release term was not discussed during the plea negotiations or at the plea or sentencing hearing.

In April 2000, the district court issued an amended sentencing order that imposed the additional five-year conditional-release term under Minn.Stat. § 609.109, subd. 7a (2000). Wukawitz moved to withdraw his plea. The district court denied the motion, and Wukawitz appealed. In an unpublished opinion, this court reversed and remanded for the district court to determine whether the plea agreement was induced by the prosecutor’s agreement to a maximum executed term. State v. Wukawitz, No. C7-00-1859, (Minn.App. May 8, 2001), review denied (Minn. July 24, 2001).

On remand, the district court found that the plea had been induced by an agreement that the executed sentence would not exceed the aggregate total of 140 months. The district court then amended Wukaw-itz’s sentence so that the conditional-release term was concurrent and coterminous with the 140-month sentence.

Wukawitz appeals, contending that this method of imposing the conditional-release term violates MinmStat. § 609.109, subd. 7a, because the conditional-release term begins to run before he has completed his incarceration on the original sentence. Wukawitz contends that he should instead be allowed to withdraw his plea or that his actual incarceration should be reduced to a total of 80 months so that his 60 months of conditional release can begin and end within the 140-month sentence.

ISSUE

Did the district court err by ordering a conditional-release term that is concurrent and coterminous with Wukawitz’s 140-month sentence?

ANALYSIS

Beginning in August 1992, certain criminal-sexual-conduct convictions involving terms of imprisonment have been subject to an additional period of conditional release. See 1992 Minn. Laws ch. 571, art. 1, §§ 25, 29 (initially referred to as supervised release); 1993 Minn. Laws ch. 326, art. 9, § 9 (reference changed to conditional release); 1998 Minn. Laws ch. 367, art. 6, § 6 (codified at Minn.Stat. § 609.109, subd. 7 (2000)). Inmates sentenced to prison for specified criminal sexual conduct committed on or after August 1, 1992, who did not have conditional-release terms imposed as part of their .sentences, were notified of corrected sentences adding the conditional-release terms. See, e.g., State v. Calmes, 632 N.W.2d 641, 644 (Minn.2001); State v. Schwartz, 628 N.W.2d 134, 137 (Minn.2001); State v. Jumping Eagle, 620 N.W.2d 42, 43 (Minn.2000); State v. Brown, 606 N.W.2d 670, 673 (Minn.2000); State v. Garcia, 582 N.W.2d 879, 881 (Minn.1998); State v. Humes, 581 N.W.2d 317, 318-19 (Minn.1998).

The conditional-release statute provides that persons who commit certain criminal-sexual-conduct offenses are placed on a five- or ten-year conditional release after completing their imposed sentence:

[W]hen a court sentences a person to prison for a violation of section 609.342, 609.343, 609.344, or 609.345, the court shall provide that after the person has completed the sentence imposed, the commissioner of corrections shall place the person on conditional release * * * for five years, minus the time the person served on supervised release [or] [i]f the person was convicted for a violation of one of those sections a second or subsequent time, * ⅜ * conditional release for ten years, minus the time the person served on supervised release.

Minn.Stat. § 609.109, subd. 7(a).

The correction of previously imposed sentences to include statutory conditional-release terms has raised difficult sentencing issues in the district courts and engendered a number of appeals. The supreme court has addressed these issues in six cases. In Humes, the court upheld, against due process and double jeopardy challenges, the district court’s authority to amend a sentence to add the conditional-release term. Humes, 581 N.W.2d at 320-21. Relying on Bangert v. State, 282 N.W.2d 540 (Minn.1979), the court reasoned that an error of law in sentencing may be corrected even though it results in a harsher sentence. Humes, 581 N.W.2d at 320. The court held that the conditional-release terms were mandated by statute and could not be waived. Id. at 321.

In Garcia, the supreme court applied these principles to a conviction based on a plea bargain. Garcia, 582 N.W.2d at 881. The court held that the district court had authority to apply a conditional-release term to a sentence based on a plea bargain that included a negotiated, maximum sentence. Id. at 881-82. But if the addition of a conditional-release term caused a breach of an unconditional promise, the defendant could withdraw his plea. Id. at 882. The general issue of the right to withdraw a guilty plea was not squarely presented, however, because the state conceded that, under the circumstances of the case, the defendant could withdraw his plea if a conditional-release term were added. Brown, 606 N.W.2d at 674 n. 5; State v. Garcia, No. C4-97-1337, 1997 WL 644964, *1 (Minn.App. Oct.21,1997).

In Brown, the court held that a conditional-release term could be added to a sentence when the conviction was based on a negotiated plea if the negotiated agreement did not include the promise of a fixed, maximum sentence. Brown, 606 N.W.2d at 674-75. The court observed that breach of a plea agreement generally presents three courses of action: plea withdrawal, specific performance, or alteration of the sentence. Id. at 674. The court further observed that Garcia removed the specific-performance option for unauthorized sentences, but plea withdrawal and sentence modification were still available options. Id.

Jumping Eagle extended the discussion of remedies for breached plea agreements. Jumping Eagle, 620 N.W.2d at 43. The court held that when the addition of a mandatory conditional-release term has the effect of increasing a defendant’s sentence beyond the upper limit of his negotiated and court-accepted plea agreement, the sentencing court must choose either to modify the defendant’s sentence so that it does not exceed the upper limit of the plea agreement or to allow the defendant to withdraw his guilty plea. Jumping Eagle, 620 N.W.2d at 45.

In Schwartz, the fifth case dealing with the conditional-release term, the supreme court held that the Commissioner of Correction’s authority over the conditional-release program did not violate the Minnesota Constitution’s separation-of-powers provisions. Schwartz, 628 N.W.2d at 139— 41. In the sixth case, the court held that a defendant’s due process rights were not violated when the district court modified his sentence to include a conditional-release term five months after he was released from incarceration, but during his period of supervised release. Calmes, 632 N.W.2d at 646-48.

The issues in Wukawitz’s appeal arise in part from the holdings of these cases and in part from sentencing procedures that these cases have not directly addressed. Wukawitz contends, first, that under Jumping Eagle, he has the right to withdraw his plea if the addition of the conditional-release term could potentially extend his sentence beyond the negotiated maximum and the state cannot show specific prejudice caused by the withdrawal. We read Jumping Eagle, consistent with Brown, to recognize two ways to remedy the breach of a plea agreement that may extend the maximum agreed-upon term but not to create a priority for plea withdrawal that can be exercised at the defendant’s option. Thus, the district court may, without first granting or denying plea withdrawal, modify the sentence so that it includes a conditional-release term but does not extend beyond the time provided in the plea agreement. See U.S. v. Van Thoumout, 100 F.3d 690, 594 (8th Cir. 1996); Corréale v. U.S., 479 F.2d 944, 950 (1st Cir.1973); State v. Trott, 338 N.W.2d 248, 252 (Minn.1983).

Jumping Eagle permits the state to make an argument on whether the court should allow plea withdrawal or should modify the sentence. Jumping Eagle, 620 N.W.2d at 45. But it does not restrict the district court’s choice of remedies so long as the modification includes a conditional-release term and results in a sentence that does not exceed the upper limit of the negotiated plea. Id. We do not read either Jumping Eagle or Garcia to restructure the law on plea withdrawal. See Minn. R.Crim. P. 15.05, subd. 1 (providing that district court shall allow defendant to withdraw guilty plea upon timely motion and proof that withdrawal is necessary to correct manifest injustice). By allowing the prosecution to argue prejudice, Jumping Eagle did not reassign the burden of persuasion on plea withdrawals, and it did not create a priority for plea withdrawal over sentence modification.

Wukawitz further argues that even if the court has the option to modify the sentence rather than allow plea withdrawal, the court may not modify his sentence by imposing a conditional-release term concurrent and coterminous with his 140-month sentence because Minn.Stat. § 609.109, subd. 7, requires that the sentence be completed before the conditional-release term may begin.

The state does not dispute that Wukawitz negotiated a specific term of months in return for his guilty pleas. According to the agreement, Wukawitz received consecutive, executed sentences of 54 and 86 months for an aggregate of 140 months. The term of incarceration is presumptively equal to two-thirds of the executed sentence, with the remaining time to be served as supervised release subject to alteration for in-prison disciplinary offenses. Minn.Stat. §§ 244.01, subd. 8, .05, subd. 1(b) (2000); Schwartz, 628 N.W.2d at 139. The conditional-release statute provides that supervised release and conditional release may run concurrently. Minn.Stat. § 609.109, subd. 7 (providing that “person shall be placed on conditional release for five years, minus the time the person served on supervised release”).

Before imposition of a conditional-release term and assuming the maximum amount of supervised release, Wukawitz would be incarcerated 93½ months and on supervised release for 46⅜ months. If the court ordered that a 60-month conditional release would commence at the end of Wukawitz’s 93½ months of incarceration and overlap with the supervised release, Wukawitz’s sentence would be extended 13¼ months because of the conditional-release term. Wukawitz argues that the only modification that would not result in a breach of his plea agreement would reduce the incarceration portion of his sentence from 93½ months to 80 months and thus allow a full 60 month conditional-release term. In other words, the combined effect of imposing the conditional-release term of Wukawitz’s negotiated 140 month sentence would be to reduce by 13½ months the incarceration time ordered in his original sentence. We do not think that the legislature intended that the conditional-release terms, enacted to ensure additional supervision of convicted sex offenders following release from incarceration, should be carved out of the offender’s imposed incarceration. See Humes, 581 N.W.2d at 319-20 (discussing purpose of conditional-release statute).

Furthermore, the language of the conditional-release statute that provides for conditional release “after the person has completed the sentence imposed” would be violated because the “imposed sentence” or actual incarceration ordered at the time of the original sentence would not be completed before the conditional-release term was added; the “sentence imposed” would have 13 months remaining. See Minn.Stat. § 609.109, subd. 7. (“[T]he court shall provide that after the person has completed the sentence imposed, the commissioner of corrections shall place the person on conditional release.”) By the same token, we agree with Wukawitz that a conditional-release term cannot be satisfied by making it concurrent to incarceration. It is a contradiction in terms to commence conditional release while a defendant is still incarcerated.

Both the arguments of the state and Wukawitz are premised on an assumption that the five-year conditional-release term and the ten-year conditional-release term are indivisible time periods that may not be reduced in any circumstance to modify the sentence to come within the terms of the plea agreement. We do not share that assumption. Nothing in Humes, Garcia, Brown, Jumping Eagle, Schwartz, or Calmes compels a conclusion that the duration of a conditional release is in all circumstances mandatory and nonwaiva-ble. The court, in those cases, refers to a “conditional-release term” or a “conditional-release period” that is mandatory, but it does not require that the term or period must be exactly five years or exactly ten years. The statute itself recognizes that the five-year or ten-year duration may be adjusted by permitting supervised release to be subtracted from the conditional-release term. When the legislature clarified the statute in 1993, it specifically removed the language that provided for a release term of “not less than five years” or “not less than ten years.” 1993 Minn. Laws ch. 326, art. 9, § 9. Although the statute clearly provides for a five- or ten-year conditional-release term in ordinary circumstances, when satisfaction of that specific term would reduce the previously imposed incarceration, the result would not just thwart the legislation but would accomplish a completely opposite purpose. Permitting a reduction of the conditional-release term rather than eliminating previously imposed incarceration time is more consistent with the statutory purpose in correcting this defined group of cases that were incorrectly sentenced before sentencing courts, prosecutors, and defense attorneys understood that the conditional-release terms were mandatory and nonwaivable. See Minn.Stat. § 645.08 (2000) (statutes should not be construed inconsistent with the manifest intent of the legislature or repugnant to the statute’s context).

Wukawitz has included in his appendix an unpublished opinion of this court, Jones v. State, No. C3-01-248 (Minn.App. Sept.25, 2001), that he points to as support for his arguments. Jones is not a case in which the sentencing court limited the conditional-release term so that it did not exceed the negotiated-sentence term. Similarly, in State v. Henthorne 637 N.W.2d 852 (Minn.App.2002), review denied (Minn. Mar. 27, 2002), the conditional-release term exceeded the original negotiated-sentence terms, and the defendant did not even seek modification of the sentence. These cases, thus, did not squarely address the issue of how a sentence, later expanded by a conditional-release term, could be modified. Cf. Brown, 606 N.W.2d at 674 n. 5. (“[T]he issue of the right to withdraw a plea of guilty was not squarely presented in Garcia.”)

Based on this analysis, we conclude that the district court may not impose a conditional-release term that commences while Wukawitz is still serving the incarceration portion of his sentence. But the district court may, within its discretion, provide that the sentence be corrected to impose a conditional-release term of less than five years that ends on the same date as Wukawitz’s original sentence. Thus, the district court may impose a conditional-release term of up to five years that commences at the conclusion of Wukawitz’s incarceration and terminates on the same date as the original sentence.

DECISION

We affirm, as modified, the district court’s decision to impose a- conditional-release term of up to five years that ends on the same date as Wukawitz’s original sentence.

Affirmed as modified.


source: Caselaw Access Project

author: KAPSNER, Justice. SANDSTROM, Justice, SANDSTROM, J„

license: Public Domain

text:
    2002 ND 97
    Sonja SKADBERG, Petitioner and Appellee, v. Todd SKADBERG, Respondent and Appellant.
    No. 20010261.
    Supreme Court of North Dakota.
    June 4, 2002.

      Sonja Skadberg (no appearance), pro se, Mandan, ND, for petitioner and appellee.
    Shari McPhail, MePhail Law Firm, Lo-gans on Third, Bismarck, ND, for respondent and appellant.
   KAPSNER, Justice.

[¶ 1] Todd Skadberg appeals from the district court’s issuance of a disorderly conduct restraining order preventing him from contacting his ex-wife, Sonja Skad-berg. We conclude there were reasonable grounds for the issuance of the order, and that Todd was afforded a full hearing. We further conclude Todd’s visitation with his daughter has not been unreasonably restricted following the disorderly conduct restraining order. We affirm the district court’s order.

I

[¶ 2] On September 28, 2001, Sonja petitioned for a disorderly conduct restraining order against Todd. Her petition alleged multiple harassing telephone calls, some of which were hang-ups, and that the calls were affecting their daughter, who was three years old at the time. She also alleged Todd threatened a friend of hers. A temporary disorderly conduct restraining order, prohibiting Todd from having any contact with Sonja and their daughter until a hearing on the petition could be held, was issued the same day.

[¶ 3] The hearing on Sonja’s petition was held October 8, 2001. The district court accepted Sonja’s affidavit as her testimony and allowed Todd to cross-examine her on the same. Todd submitted an affidavit but did not testify at the hearing. Following the hearing, the district court issued the disorderly conduct restraining order, but lifted the no-contact order between Todd and his daughter. The disorderly conduct restraining order was to remain in effect for one year.

[¶ 4] Todd appeals the disorderly conduct restraining order, arguing there were not reasonable grounds for its issuance because Sonja did not present evidence of specific acts or threats constituting disorderly conduct. Todd also argues he was denied due process because a full hearing on the disorderly conduct restraining order was not held. Finally, Todd argues the visitation and telephone schedule im-permissibly limit his right to enjoy a relationship with his daughter.

II

[¶ 5] A court may grant a disorderly conduct restraining order if the court finds “there are reasonable grounds to believe that the respondent has engaged in disorderly conduct.” N.D.C.C. § 12.1-31.2-01(5)(d). Disorderly conduct is defined as “intrusive or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another person. [It] does not include constitutionally protected activity.” Id. § 12.1-31.2-01(1). We have concluded ‘“reasonable grounds’ is synonymous with ‘probable cause.’ ” Tibor v. Lund, 1999 ND 176, ¶ 7, 599 N.W.2d 301.

[¶ 6] “Reasonable grounds exist for purposes of this section when facts and circumstances presented to the judge are sufficient to warrant a person of reasonable caution to believe that acts constituting the offense of disorderly conduct have been committed.” Svedberg v. Sternness, 525 N.W.2d 678, 682 (N.D.1994). “To support a request for a disorderly conduct restraining order under the statute the petitioner must present evidence of specific acts or threats constituting disorderly conduct....” Wishnatsky v. Huey, 1997 ND 35, ¶ 14, 560 N.W.2d 878. It is not enough to show the actions of a person are unwanted, but rather, “[t]he petitioner must show specific ‘unwanted acts ... that are intended to adversely affect the safety, security, or privacy of another person.’” Tibor, 1999 ND 176, ¶ 9, 599 N.W.2d 301.

[¶ 7] Sonja’s evidence of Todd engaging in disorderly conduct came from the affidavit accompanying her petition for the restraining order and her testimony on cross-examination. In her affidavit Sonja stated:

I am receiving calls at all hours of the day and night with very obscene language and name calling. Todd is har-rassing [sic] me about [the] tax rebate from the IRS, threatening to tell the IRS that I forged his signature on an IRS return....
Todd calls to harrass [sic] me about my personal life, calling me names such as [b]itch, whore, etc. and to tell me that he hates my guts....
Our divorce is final but his calls, and frequency and severity of the calls, are getting worse. It is affecting our daughter, age 3.

[¶ 8] On cross-examination, Sonja testified regarding the contents of her affidavit. She testified she received telephone calls from Todd during which she believed her safety was threatened: “[h]e threatened my safety in the fact that he would — the language he would use. When someone is so angry and screaming at you in a high-pitched voice like a woman, using obscene language, it’s a threat to your safety.” Sonja further testified to receiving a phone call from Todd “[a]t least every three days.” Some telephone calls were received late at night, “[a]nywhere from 10:00 [p.m.] to 2:00 a.m.” Phone calls at this time of the night “[were] hang up calls,” and “since the restraining order our phone hasn’t rang once.”

[¶ 9] Todd’s affidavit not only disputed Sonja’s characterization of the telephone calls as threatening, but also disputed the time of the evening the phone calls were placed. The district court, after reading the affidavits of both Sonja and Todd and hearing Sonja’s testimony, chose to accept and believe Sonja’s version of the events. “ ‘[T]he trial court is in a better position to judge the demeanor and credibility of witnesses and weigh the evidence than we who have only the cold record to review.’” Svedberg, 525 N.W.2d at 682. “This is a province firmly entrusted to the trial court, and we will generally defer to its expertise.” Id.

[¶ 10] While support in the record for the order is sparse, a person of reasonable caution could believe acts constituting disorderly conduct had been committed. Sonja testified to telephone calls, some of which were hang-ups, on specific dates placed at the same general time of the night. She testified the number and frequency of the telephone calls were affecting their daughter. It was reasonable to conclude the calls served no purpose other than to harass and intimidate Sonja. See Cave v. Wetzel, 545 N.W.2d 149, 152 (N.D.1996) (affirming the district court’s granting of a disorderly conduct restraining order because a pattern of hang-up telephone calls “served no purpose but to harass and intimidate”). The district court, having found Sonja’s testimony credible, did not err in determining the pattern of hang-up telephone calls adversely affected Sonja’s safety, security, or privacy.

Ill

[¶ 11] Todd argues a full hearing was not held on the disorderly conduct restraining order petition. He argues because he did not testify at the hearing, it was not a full hearing.

[¶ 12] Following a petition for a disorderly conduct restraining order, a hearing on the petition must be held. N.D.C.C. § 12.1-31.2-01(5). The hearing is to be a “full hearing:”

If the petition for relief alleges reasonable grounds to believe that an individual has engaged in disorderly conduct, the court, pending a full hearing, may grant a temporary disorderly conduct restraining order ordering the individual to cease or avoid the disorderly conduct or to have no contact with the person requesting the order.

Id. § 12.1-31.2-01(4). We have never defined what constitutes a “full hearing” under N.D.C.C. § 12.1-31.2-01.

[¶ 13] A majority of this Court has held a “full hearing” for a domestic violence protection order under N.D.C.C. § 14-07.1-02 authorizes a district court “to hear the evidence on affidavits or ... partly on affidavits and partly by cross-examination of each affiant.” Sandbeck v. Rockwell, 524 N.W.2d 846, 850 (N.D.1994). Like the domestic violence protection order statute, the disorderly conduct restraining order statute creates a special summary proceeding and directs a hearing upon order of the district court. Compare N.D.C.C. § 12.1-31.2-01 with N.D.C.C. § 14-07.1-02. Both statutes seek to quickly and effectively combat volatile situations before any tragic escalation.

[¶ 14] The district court accepted affidavits from both Todd and Sonja regarding the allegations in the petition. Todd never testified at the hearing, but did cross-examine Sonja regarding the contents of her affidavit. When asked if he had anything further to present to the district court following Sonja’s cross-examination, Todd replied he had nothing further to present. At no time during the hearing did Todd object to the form of the hearing. By accepting affidavits and allowing cross-examination, the district court conducted a full hearing on the disorderly conduct restraining order petition. See Sandbeck, 524 N.W.2d at 850.

IV

[¶ 15] Todd argues his parental right of visitation with his daughter is unreasonably restricted with the imposition of the disorderly conduct restraining order. The order does not change the provisions of the divorce judgment regarding visitation, it just alters where exchanges are to take place. The original visitation schedule is not in the record. Todd’s brief filed with this Court asserted he previously had visitation on alternating weekends, mid-week evenings, and daily telephone contact.

[¶ 16] Each parent of a child has the “[r]ight to reasonable access to the child by written, telephonic, and electronic means.” N.D.C.C. § 14-09-28(l)(c). “The primary purpose of visitation is not to promote the wishes or desires of the parents, but to promote the best interests of the children.” Tibor v. Tibor, 2001 ND 43, ¶ 8, 623 N.W.2d 12. “[Visitation between a non-custodial parent and a child is presumed to be in the child’s best interests and that it is not merely a privilege of the rion-eustodial parent, but a right of the child.” Hendrickson v. Hendrickson, 2000 ND 1, ¶ 21, 603 N.W.2d 896.

[¶ 17] The disorderly conduct restraining order cannot be read as changing the provisions of the divorce judgment, which were not made part of this record. The order still allows Todd access to his daughter under the visitation provisions in the divorce judgment. Rather than restricting contact with his daughter, the disorderly conduct restraining order only directs where exchanges are to take place for purposes of visitation.

V

[¶ 18] Reasonable grounds existed for the issuance of the disorderly conduct restraining order. A full hearing was held on the petition for the order, and Todd’s visitation with his daughter has not been unreasonably restricted. We affirm.

[¶ 19]GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING and WILLIAM A. NEUMANN, JJ., concur.

SANDSTROM, Justice,

concurring specially.

[¶ 20] Sandbeck v. Rockwell, 524 N.W.2d 846 (N.D.1994), relied on by the majority, remains a blight on our jurisprudence. As noted in the Sandbeck dissent:

The trial court ... notified Rockwell he was to appear and show cause why a protection order should not issue. Relying upon this notice, Rockwell appeared and prepared to present evidence. Only then did the trial court announce affidavits were to be previously filed to present the evidence at the hearing. The notice given to Rockwell nowhere mentions this requirement. The majority contends the filing of affidavits was inferred because of the nature of the “action.” The length of the majority’s analysis belies this inference. Were it a simple question, only a simple answer would be necessary. Because Rockwell, acting pro se, did not receive notice specifying the manner in which to respond to the allegations, and which neither he nor any competent lawyer could infer, Rockwell was denied due process.
In argument to the trial court and to this Court, Rockwell contended he neither threatened nor harassed Sandbeck. He contends that when she saw him with his new special friend, Sandbeck out of jealousy filed this action to impugn his reputation. He contends he has specific evidence, including a witness other than himself, to refute Sandbeck’s allegations of threats and harassment. He was denied the opportunity to present relevant evidence.

Sandbeck, 524 N.W.2d at 853-54.

SANDSTROM, J„

dissenting.

[¶ 21] I continue to believe that “[r]e-spect for law and human dignity can best be fostered by a process that is fair and just.” Sandbeck, 524 N.W.2d at 852 (Sandstrom, J., dissenting). Rockwell was not afforded a fair and just process in that case. He clearly objected to the process and made a record of what he would have presented had he been permitted.

[¶ 22] After careful review of the record in this case, I cannot conclude that Todd Skadberg objected to the process or was prevented from presenting evidence. I therefore concur in the result.

[¶ 16] Dale V. Sandstrom

      . Todd also argues the language complained of in Sonja’s affidavit is constitutionally protected activity under the First Amendment. "Disorderly conduct does not include constitutionally protected activity.” N.D.C.C. § 12.1-32.1-01(1). Todd raises this argument for the first time on appeal. “This Court does not consider arguments raised for the first time on appeal.” State ex rel. D.D. v. G.K., 2000 ND 101, ¶6, 611 N.W.2d 179.


author: NEUMANN, Justice.

text:
      2002 ND 95
    STATE of North Dakota, Plaintiff and Appellee, v. Marvin John LAIB, Defendant and Appellant.
    No. 20010206.
    Supreme Court of North Dakota.
    June 4, 2002.

      Ladd Ronald Erickson, Assistant State’s Attorney, Mandan, ND, for plaintiff and appellee.
    Steven M. Light, Larivee & Light, Grand Forks, ND, for defendant and appellant.
   NEUMANN, Justice.

[¶ 1] Marvin John Laib appealed from a criminal judgment entered on a jury verdict finding him guilty of possession of methamphetamine with intent to deliver and possession of stolen property. We conclude the trial court did not err in denying Laib’s motion to suppress evidence or in sentencing him as a third-time offender to a 20-year mandatory minimum sentence. We affirm.

I

[¶ 2] During February 2001, law enforcement officers obtained warrants to search Laib’s Mandan residence, and structures within the curtilage of the residence, for controlled substances, proceeds from and records of drug transactions, and stolen property. When the first warrant was executed on February 12, 2001, officers seized a red pen containing methamphetamine residue, a small amount of marijuana, an “owe sheet” listing drug transactions, and $2,550 in cash. During this search, one of the officers noticed in the back of a shed on the property a blue welder and welding helmet which were similar to items that had been reported stolen from a Mandan business in January 2001. Officers eventually obtained another search warrant which they executed on February 16, 2001. During this search, the officers seized a blue welder and welding helmet matching the ones recently stolen and about one ounce of methamphetamine concealed in an aluminum beer can in Laib’s refrigerator. This evidence led to the issuance and execution of a third search warrant.

[¶ 3] Laib was charged with class A felony possession of a controlled substance, methamphetamine, with intent to deliver in violation of N.D.C.C. § 19-03.1-23, and class C felony possession of stolen property in violation of N.D.C.C. § 12.1-23-02. Because Laib had two prior convictions for class B felony delivery of a controlled substance, marijuana, in 1983 and in 1993, the State informed Laib it was seeking to impose a 20-year mandatory minimum sentence under N.D.C.C. § 19-03.1-23(l)(a)(2). Laib moved to suppress the evidence obtained during the February 16, 2001 search, claiming the warrant was based upon false information provided to the court by a law enforcement officer. The trial court denied the suppression motion. The jury found Laib guilty on both counts. The trial court concluded the 20-year mandatory minimum sentence under N.D.C.C. § 19 — 03.1—23(l)(a)(2) for possession of methamphetamine with intent to deliver applied under the circumstances, and sentenced Laib accordingly. The trial court also sentenced Laib to five years imprisonment for possession of stolen property, to be served concurrently with the 20-year sentence. Laib appealed.

II

[¶ 4] Laib argues the trial court erred in denying his suppression motion because the evidence presented in support of the second search warrant included a false statement by one of the officers that the officer had seen a blue welder and welding helmet during the execution of the first search warrant.

[¶ 5] In Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the United States Supreme Court held:

[Wjhere the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.

In this case, the trial court held an eviden-tiary hearing on Laib’s suppression motion. See State v. Duchene, 2001 ND 66, ¶ 9, 624 N.W.2d 668.

[¶ 6] During a hearing on the application for the second search warrant, Officer Lonnie Grabowska of the Mandan Police Department testified that on January 26, 2001, a “Millermatic Welder” and a “Speedglas welding helmet” were stolen from a Jemco store, and officers were shown catalog pictures of the stolen items. Officer Grabowska testified that Officer Craig Johnson was one of three officers involved in the February 12, 2001 search of Laib’s property. Officer Grabowska testified that, although two of the other officers did not recall seeing a welder during the search, Officer Johnson

stated that he did see a blue welder. The blue welder looked a lot like the picture, and the welding helmet looked a lot like the picture in the shop area of 1400 Second Avenue Southeast. He stated that the welder would be in one of three different places. The north part of the shop. Two, the left — the south part of the shop, which is separated by a wall; or in the attached entryway just to the right of the main door as you go into the residence.
The helmet was along the south wall of the workshop or in the back shop there on the north part. The area in that area was cluttered with many different welding articles or welding items around the area.

[¶ 7] In support of the suppression motion, Laib presented an affidavit of Mark Carlson, who claimed he had borrowed the welder from Laib before the police arrived to search the premises on February 12, 2001, and did not return it to Laib until February 14, 2001, making it impossible for Officer Johnson to have observed it during the first search. At the evidentiary hearing on the suppression motion, Carlson testified he loaded the welder into the back of his pickup in the afternoon of February 12, 2001, and that he backed the pickup “all the way up” to the garage to do so. Laib presented the testimony of Dustin Patzner, who said he assisted Carlson that afternoon, but claimed Carlson’s pickup was backed “30 feet in front of’ the garage door for purposes of loading the welder. Laib also presented the testimony of Russell Ressler, who testified Carlson and Patzner brought the welder to his shop “with the trailer.” Officer Johnson testified he observed the welder and welding helmet in Laib’s garage, there was snow on the ground, and there were no tire tracks leading to the garage. In denying the suppression motion, the trial court found “the officer’s testimony to be truthful, and consistent with the facts as established through all the witnesses.”

[¶ 8] Because the trial court has the opportunity to observe and assess the credibility of witnesses, we accord great deference to its decision on a suppression motion. City of West Fargo v. Ross, 2001 ND 163, ¶ 5, 634 N.W.2d 527. Whether a defendant establishes statements made in support of a warrant were intentionally

false or made with reckless disregard of the truth is a finding of fact. State v. Schmitt, 2001 ND 57, ¶ 11, 623 N.W.2d 409. A trial court’s decision to deny a motion to suppress will not be reversed if there is sufficient competent evidence capable of supporting the trial court’s findings, and if its decision is not contrary to the manifest weight of the evidence. State v. Heitzmann, 2001 ND 136, ¶ 8, 632 N.W.2d 1.

[¶ 9] We conclude there is sufficient competent evidence to support the trial court’s finding that Officer Johnson was truthful, and the court’s decision denying the suppression motion is not contrary to the manifest weight of the evidence.

Ill

[¶ 10] Laib argues the trial court erred in ruling a 20-year mandatory minimum sentence of imprisonment was applicable under the circumstances.

[¶ 11] On April 28, 1983, Laib pled guilty to class B felony delivery of a controlled substance, marijuana, and was sentenced to two years imprisonment with one year of the sentence suspended. On January 31, 1994, Laib again pled guilty to class B felony delivery of a controlled substance, marijuana, and was sentenced to three years imprisonment with execution of the imprisonment portion of the sentence suspended for a period of three years while Laib served that time on probation. Upon Laib’s conviction for class A felony possession of a controlled substance, methamphetamine, with intent to deliver, the trial court ruled a 20-year mandatory minimum sentence was required by N.D.C.C. § 19-03.1-23(l)(a)(2) ' and (5), which provides:

1. Except as authorized by this chapter, it is unlawful for any person to willfully, as defined in section 12.1-02-02, manufacture, deliver, or pos-
sess with intent to manufacture or deliver, a controlled substance, but any person who violates section 12-46-24 or 12-47-21 may not be prosecuted under this subsection. Any person who violates this subsection with respect to:
a. A controlled substance classified in schedule I or II which is a narcotic drug, or methamphetamine, is guilty of a class A felony and must be sentenced:
(2) for a third or subsequent offense, to imprisonment for twenty years.
5. A violation of this chapter or a law of another state or the federal government which is equivalent to an offense under this chapter committed while the offender was an adult and which resulted in a plea or finding of guilt must be considered a prior offense under subsections 1, 3, and 4. The prior offense must be alleged in the complaint, information, or indictment. The plea or finding of guilt for the prior offense must have occurred before the date of the commission of the offense or offenses charged in the complaint, information, or indictment.

We have defined the term “offense” for purposes of N.D.C.C. ch. 19-03.1 as meaning “ ‘conduct for which a term of imprisonment or a fine is authorized by statute after conviction.’ ” State v. Jones, 1999 ND 61, ¶ 8, 591 N.W.2d 135 (quoting N.D.C.C. § 12.1-01-04(20)).

[¶ 12] Laib argues the mandatory minimum sentence under N.D.C.C. § 19-03.1-23(l)(a)(2) does not apply in this case because his two prior convictions involved marijuana, which is not a “controlled substance classified in schedule I or II which is a narcotic drug, or methamphetamine.” Laib contends, because this is his first conviction for a controlled substance classified as a narcotic drug or methamphetamine, it cannot be considered “a third or subsequent offense” to which the 20-year mandatory minimum sentence applies under N.D.C.C. § 19-03.1-23(l)(a)(2). The State acknowledges that marijuana is not considered a narcotic drug or methamphetamine under state law, but argues the 20-year mandatory minimum sentence applies here because Laib’s two prior class B felony marijuana delivery convictions are each “[a] violation of this chapter” which “must be considered a prior offense under subsection[] 1,” under the plain meaning of N.D.C.C. § 19-03.1-23(5). The legislative history of these sentencing provisions provides no guidance.

[¶ 13] Construction of a criminal statute is a question of law, fully reviewable by this Court. State v. Rambousek, 479 N.W.2d 832, 834 (N.D.1992). Our primary goal in interpreting statutes is to ascertain the Legislature’s intentions. State v. Brossart, 1997 ND 119, ¶ 14, 565 N.W.2d 752. In ascertaining legislative intent, we first look to the statutory language and give the language its plain, ordinary and commonly understood meaning. State v. Thill, 468 N.W.2d 643, 646 (N.D.1991). We interpret statutes to give meaning and effect to every word, phrase, and sentence, and do not adopt a construction which would render part of the statute mere surplusage. Bruns v. North Dakota Workers Comp. Bureau, 1999 ND 116, ¶ 16, 595 N.W.2d 298; Little v. Graff, 507 N.W.2d 55, 59 (N.D.1993). When a statute’s language is ambiguous because it is susceptible to differing but rational meanings, we may consider extrinsic aids, including legislative history, along with the language of the statute, to ascertain the Legislature’s intent. Rambousek, at 834. We construe ambiguous criminal statutes against the government and in favor of the defendant. State v. Rubey, 2000 ND 119, ¶ 16, 611 N.W.2d 888; Brossart, at ¶ 14; State v. Larson, 479 N.W.2d 472, 473 (N.D. 1992). We also construe criminal statutes to avoid ludicrous and absurd results. Ru-bey, at ¶ 16.

[¶ 14] Construing the statute as a whole, we see no ambiguity. Section 19-03.1-23(l)(a)(2), N.D.C.C., requires a person who violates the section with respect to a schedule I or II narcotic drug or methamphetamine to be imprisoned for 20 years “[f]or a third or subsequent offense.” If this were the extent of the statutory directive, we might agree with Laib that the statute is ambiguous and should be construed in his favor because it is unclear whether only the present offense must involve a schedule I or II narcotic drug or methamphetamine, or whether the prior offenses must also involve a schedule I or II narcotic drug or methamphetamine for the mandatory minimum sentence to apply. However, N.D.C.C. § 19-03.1-23(5) clears up any possible ambiguity by specifying, “[a] violation of this chapter ... must be considered a prior offense under subsectionf] 1.” Laib’s two prior convictions for class B felony delivery of marijuana clearly qualify as prior violations of N.D.C.G. ch. 19-03.1, and under the plain meaning of the statute, he is subject to the mandatory minimum 20-year sentence of imprisonment.

[¶ 15] Laib’s proposed construction of the statute would require that we ignore the plain meaning of the language, “violation of this chapter,” in N.D.C.C. § 19-03.1-23(5). Although Laib argues his construction is supported by the rule of lenity, which requires ambiguous criminal statutes to be construed in a defendant’s favor, the rule of lenity “ ‘serves as an aid for resolving an ambiguity; it is not to be used to beget one.’ ” United States v. Valencia-Andrade, 72 F.3d 770, 775 (9th Cir.1995) (quoting Callanan v. United States, 364 U.S. 587, 596, 81 S.Ct. 321, 5 L.Ed.2d 312 (1961)). It is impossible to give a sensible construction to the phrase, “violation of this chapter,” and conclude this language somehow contemplates only prior offenses involving a schedule I or II narcotic drug or methamphetamine.

[¶ 16] Moreover, several courts interpreting somewhat similar, although not identical, sentencing provisions under other versions of the Uniform Controlled Substances Act, have construed prior offense provisions in a like fashion. See, e.g., Thomas v. Davis, 192 F.3d 445, 455-56 (4th Cir.1999) (holding general statutory definition of subsequent offense as one predicated on at least two previous convictions of any state or federal statute relating to a broad range of controlled substances allowed use of prior convictions for possessing with intent to distribute and distributing less than 10 pounds of marijuana to enhance penalty for current conviction of trafficking in more than 10 pounds of marijuana to 25 year sentence despite defendant’s argument that penalty for trafficking in more than 10 pounds of marijuana should be treated as a self-contained provision; under defendant’s construction, general statutory definition of subsequent offense would be rendered superfluous and the penalty for a third or subsequent offense would rarely apply); United States v. Karam, 37 F.3d 1280, 1289 (8th Cir.1994) (holding prior felony conviction for using a communication facility to facilitate the intentional and unlawful importation of controlled substances was, under the plain language of the statute, an “offense that is a felony under any provision of this subchapter” requiring imposition of 20-year mandatory minimum sentence for current convictions of aiding and abetting the distribution of heroin and conspiracy to distribute heroin); Commonwealth v. Churchwell, 938 S.W.2d 586, 587-88 (Ky.Ct.App.1996) (holding for purposes of enhancing sentence for trafficking m marijuana, general definition of second or subsequent offense as being one which occurs after any prior conviction under chapter or any other state or federal law relating to controlled substances required that no distinction be made between prior convictions for trafficking in marijuana and prior convictions for trafficking in other illegal drugs); Thomas v. State, 319 S.C. 471, 465 S.E.2d 350, 352 (1995) (holding the “legislature could not have intended second or subsequent offenses under [statute] to include only the offense of marijuana trafficking when there is a specific statute which defines second or subsequent offenses as any drug offense”); State v. Flynn, 675 S.W.2d 494, 498-99 (Tenn. Crim.App.1984) (holding plain meaning of enhancement provision which applied to prior convictions under any statute relating to the sale or distribution of narcotic or hallucinogenic drugs or marijuana required rejection of defendant’s argument that his Schedule I(LSD) sentence should not have been enhanced because he had never before been convicted of selling a drug in that schedule, but had only prior drug convictions involving marijuana).

[¶ 17] Laib argues the Legislature could not have intended that any violation of N.D.C.C. ch. 19-03.1 qualifies as a prior offense to trigger the mandatory minimum sentence. However, that is what the Legislature has said in the clearest of terms, and we cannot say its decision leads to a ludicrous or absurd result. If our construction is not what the Legislature intended, the Legislature is able to revisit its mandatory minimum sentencing scheme. We conclude the trial court did not err in ruling a 20-year mandatory minimum sentence applied to Laib’s conviction under the circumstances.

IV

[¶ 18] firmed. The criminal judgment is af-

[¶ 19]GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, CAROL RONNING KAPSNER and DALE V. SANDSTROM, JJ., concur.

      . Laib has been represented by three different attorneys in these proceedings. The first represented him throughout the trial. The second represented him at the sentencing hearing. The third represented him in this appeal.


author: SANDSTROM, Justice. MANDE WALLE, Chief Justice,

text:
    2002 ND 96
    Ronald PAUL, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee.
    No. 20010290.
    Supreme Court of North Dakota.
    June 4, 2002.

      Steven L. Latham, Wheeler Wolf, Bismarck, ND, for claimant and appellant.
    Lawrence A. Dopson, Special Assistant Attorney General, Bismarck, ND, for ap-pellee.
   SANDSTROM, Justice.

[¶ 1] Ronald Paul appealed from a judgment affirming a North Dakota Workers Compensation Bureau decision approving a vocational rehabilitation plan and denying him further disability and vocational rehabilitation benefits. We hold the Bureau erroneously applied a presumption to Paul and placed the burden of proof on him. We reverse and remand for proceedings consistent with this opinion.

I

[¶ 2] In August 1985, Paul sustained a low-back injury during the course of his employment as a construction laborer. The Bureau accepted liability and paid disability benefits and medical expenses. Paul has not worked since his 1985 injury, and he underwent back surgery in 1986 and in 1993. After several unsuccessful attempts at rehabilitation, the Bureau referred Paul to Dr. Peterson for an independent medical examination in 1998. Dr. Peterson’s independent medical examination stated Paul was capable of returning to gainful employment with some lifting restrictions. Paul had moved to Phoenix, Arizona, and his treating physician there, Dr. Shapiro, agreed with the findings in Dr. Peterson’s independent medical examination. Paul underwent a functional capacity evaluation, which indicated Paul’s lifting capabilities were 17.5 pounds “rarely” and 12.5 pounds “occasionally.” The results of Paul’s functional capacity evaluation indicated he qualified for “sedentary” and “light” categories of work as defined by the United States Department of Labor’s Dictionary of Occupational Titles. The functional capacity evaluation defined sedentary work “as exerting up to 10 lbs. of force occasionally and/or a negligible amount of force frequently to lift, carry, push, pull, or otherwise moving objects including the human body,” and light work as “exerting up to 20 lbs. of force occasionally, and/or up to 10 lbs. of force frequently, and/or a negligible amount of force constantly to move objects.” Dr. Shapiro agreed with the results of Paul’s functional capacity evaluation and released him to work under those restrictions.

[¶ 3] Under N.D.C.C. § 65-05.1-01, the Bureau’s vocational rehabilitation consultant ultimately developed a rehabilitation plan for Paul to return to work in the Phoenix area. The rehabilitation consultant concluded there were sufficient job opportunities in the Phoenix area as a sales attendant, service establishment counter attendant, or automobile rental clerk, and those job opportunities satisfied his physical restrictions and the requirements of N.D.C.C. § 65 05.1-01. The Bureau accepted the rehabilitation consultant’s plan and issued an order denying Paul further disability and vocational rehabilitation benefits.

[¶ 4] Paul requested and received a formal rehearing before an administrative law judge (“ALJ”). The ALJ said the job descriptions for sales attendant, service establishment counter attendant, and automobile rental clerk required a person to lift up to 20 pounds, which exceeded Paul’s lifting abilities, but those three job descriptions did not describe lifting as a principal or significant activity. The ALJ stated, because of the number of openings for those jobs in the Phoenix area and because the descriptions did not describe lifting as a principal or significant activity, it was presumed there were employment opportunities for him in the Phoenix area and the burden was on him to show there were not. The ALJ said, in rapidly growing cities like Phoenix, it has become routine for employers to accommodate physically impaired employees and, in any event, the probability of finding a job in the Phoenix area within Paul’s physical restrictions was favorable. The ALJ said Paul did not attempt a good faith work search or work trial in the Phoenix area with respect to any of the occupations identified in his vocational plan, and he did not show there were no employment opportunities for him within his lifting restrictions; nor did he show the vocational plan would not otherwise return him to substantial gainful employment. The ALJ recommended the following finding of fact:

“[t]he greater weight of the evidence received at Mr. Paul’s hearing shows, then, that the three occupations identified for him in the vocational plan, sales attendant, service establishment counter attendant, and automobile rental clerk, are entry-level positions with no specialized educational background, skills, or experience that Mr. Paul does not possess; that they meet the wage test; that there are ample opportunities for employment in those occupations in the Phoenix, Arizona vicinity where he resides; that both the doctor who performed the IME and his treating doctor were of the opinion that he could return to work and that those three occupations were appropriate for him; and that there is a reasonable likelihood that, given the number of annual job openings, he will find work that is within his capacity to perform.”

The ALJ said Paul had not shown a good faith work trial or job search and had not shown that his injury significantly impacts his ability to compete for employment under N.D.C.C. § 65-05.1-04(6):

“[ojther than some vague testimony that he had called a local business, detailed his back pain and lifting limitations, and then asked about his job opportunities under such circumstances, Mr. Paul offered no evidence of substance showing that he has, as yet, performed a good faith work trial or work search. Consequently, he did not meet that burden of proof, and because he has not undertaken such a work trial or work search, he is also not in a position to assert that ‘the injury significantly impacts the employee’s ability to successfully compete for gainful employment in that the injury leads employers to favor those without limitations over the employee.’ ”

The ALJ recommended finding the Bureau’s vocational plan met the goal of providing Paul with a reasonable opportunity of obtaining substantial gainful employment. The Bureau adopted the ALJ’s recommendation, and the district court affirmed the Bureau’s decision denying Paul further disability and vocational rehabilitation benefits.

[¶ 5] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. §§ 27-05-06, 65-10-01, and 28-32-15, which, effective August 1, 2001, is codified at 28-32-42. Paul’s November 26, 2001, appeal to this Court is timely under N.D.R.App.P. 4(a) and N.D.C.C. § 28-32-49, which was codified at N.D.C.C. § 28-32-21 before August 1, 2001. This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 28-32-49.

II

[¶ 6] On appeal, we review the decision of the administrative agency, rather than that of the district court, although the district court’s analysis is entitled to respect. Snyder v. North Dakota Workers Comp. Bureau, 2001 ND 38, ¶ 7, 622 N.W.2d 712. Under N.D.C.C. §§ 28-32-19 and 28-32-21, which, effective August 1, 2001, are codified at 28-32-46 and 28-32-49, we affirm the Bureau’s decision unless its findings of fact are not supported by a preponderance of the evidence, its conclusions of law are not supported by its findings of fact, its decision is not supported by its conclusions of law, its decision is not in accordance with the law or violates the claimant’s constitutional rights, or its rules or procedure deprived the claimant of a fair hearing. Negaard-Cooley v. North Dakota Workers Comp. Bureau, 2000 ND 122, ¶ 7, 611 N.W.2d 898. We exercise restraint in deciding whether the Bureau’s findings of fact are supported by a preponderance of the evidence, and we do not make independent findings or substitute our judgment for that of the Bureau; rather, we decide whether a reasoning mind reasonably could have decided the Bureau’s findings were proven by the weight of the evidence from the entire record. Renault v. North Dakota Workers Comp. Bureau, 1999 ND 187, ¶ 16, 601 N.W.2d 580. Questions of law, including the interpretation of a statute, are fully reviewable on appeal from a Bureau decision. Lawrence v. North Dakota Workers Comp. Bureau, 2000 ND 60, ¶ 11, 608 N.W.2d 254.

Ill

[¶ 7] Paul argues the Bureau’s adoption of the ALJ’s recommendation was not in accordance with the law because the ALJ placed the burden of proof on him. He argues the Bureau has the burden of establishing that the vocational plan provided him with a reasonable opportunity to obtain substantial gainful employment, and it is clear the ALJ placed the burden of proof on him to prove the plan does not meet the requirements of N.D.C.C. § 65-05.1-01. Paul argues the ALJ’s recommended findings demonstrate the ALJ improperly placed the burden of proof on him to prove the vocational plan did not provide him with a reasonable opportunity for employment.

[¶ 8] The parties agree the Bureau has the burden of establishing that a rehabilitation plan is appropriate. Under N.D.C.C. § 65-05.1-01(3), the goal of vocational rehabilitation is to return a disabled employee to substantial gainful employment, which means bona fide work for remuneration that is reasonably attainable in light of the individual’s injury, functional capacities, education, previous occupation, experience, and transferrable skills, and which meets a wage test. A rehabilitation plan is appropriate if it satisfies the requirements of N.D.C.C. ch. 65-05.1 and gives a claimant a reasonable opportunity to obtain employment. See Lucier v. North Dakota Workers Comp. Bureau, 556 N.W.2d 56, 59 (N.D.1996). A rehabilitation plan, however, need not guarantee a claimant a job, or a predetermined weekly wage. Id,.; Held v. North Dakota Workers Comp. Bureau, 540 N.W.2d 166, 169-70 (N.D.1995). In Svedberg v. North Dakota Workers Comp. Bureau, 1999 ND 181, ¶ 17, 599 N.W.2d 323, we said the intent of N.D.C.C. ch. 65-05.1 is to rehabilitate an injured worker to return to substantial gainful employment, and the Legislature meant actual rehabilitation, with a realistic opportunity to return to work, not a theoretical rehabilitation on paper only.

[¶ 9] Here, the Bureau adopted the ALJ’s recommendation that the three jobs identified in the Bureau’s vocational plan— sales attendant, service establishment counter attendant, and automobile rental clerk — were suitable for Paul’s education, experience, and marketable skills, those occupations met the required wage test, and there was a viable market for those positions in the Phoenix area. The critical question is whether those jobs satisfied Paul’s physical limitations for lifting.

[¶ 10] The ALJ said the descriptions for the three jobs identified strength demands as “Light-Lift up to 20 pounds,” which exceeded Paul’s maximum material handling and lifting abilities of 17.5 pounds rarely and 12.5 pounds occasionally. The ALJ said, however, the job descriptions for those three jobs did not specify lifting as a principal or significant activity and did not address the likelihood a particular job would, or would not, entail lifting that exceeded Paul’s limitations. The ALJ then said, because of the forecast for the number of jobs in the Phoenix area and because the descriptions for those three jobs did not specify lifting as a principal or significant activity, “it is presumed that there are employment opportunities for Mr. Paul within those occupations in the Phoenix, Arizona vicinity that do not involve lifting in excess of his FCE lifting máximums, and the burden is upon him to show that there are not.”

[¶ 11] The ALJ’s statement about a presumption is not in accordance with the requirement that the Bureau establish a rehabilitation plan with a reasonable opportunity for a claimant to obtain employment. The Bureau has cited no legal authority for the creation of a presumption, or the shifting of the burden of proof to Paul. Cf. Wanstrom v. North Dakota Workers Comp. Bureau, 2001 ND 21, ¶ 7, 621 N.W.2d 864 (statutory presumption that firefighter’s lung disease suffered in line of duty); Robertson v. North Dakota Workers Comp. Bureau, 2000 ND 167, ¶ 31, 616 N.W.2d 844 (statutory presumption that law enforcement officer’s heart attack suffered in line of duty); Shiek v. North Dakota Workers Comp. Bureau, 1998 ND 139, ¶ 11, 582 N.W.2d 639 (statutory retirement presumption). The ALJ erroneously relied on a presumption there were sufficient job opportunities in the Phoenix area within Paul’s physical limitations, and erroneously shifted the burden of proof to Paul to show there were not job opportunities. The presumption and burden shifting are not in accordance with the law and adversely impacted the Bureau’s ultimate findings about the rehabilitation plan. The Bureau’s decision must be based on evidence presented at the hearing which establishes a rehabilitation plan that provides Paul with a reasonable opportunity for employment within his restrictions and without the aid of a presumption or shifting the burden of proof to Paul. We conclude the Bureau’s ultimate decision was affected by its erroneous reliance on the presumption that there were employment opportunities for Paul in the Phoenix area, and the shifting of the burden of proof to him to show there were not employment opportunities.

IV

[¶ 12] We reverse the judgment and remand for proceedings consistent with this opinion.

[¶ 13] WILLIAM A. NEUMANN, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ„ concur.

MANDE WALLE, Chief Justice,

concurring.

[¶ 14] The rehabilitation consultant assigned to Ronald Paul testified she had contacted a big employer in the Phoenix area and was told employers in that area routinely accommodate physically impaired applicants for entry level positions. The ALJ, recognizing the size of the Phoenix area, “presumed” there were a large number of employers in the Phoenix area, although that well-known fact is not in the record. A reasonable person could conclude that if there are a large number of employers in the area and that if employers routinely accommodate physically impaired applicants for entry level position, Paul had a reasonable likelihood he would be able to locate a job accommodating his lifting restrictions under the Bureau’s plan.

[¶ 15] The problem identified by the majority opinion is the “presumption” there be a large number of jobs available in a heavily populated area. If there are a large number of jobs in a populous area, there is evidence in that record that the employers filling those jobs routinely make accommodations for physically impaired applicants for entry level positions. In that instance, the conclusion that Paul has a reasonable likelihood of finding a job that will accommodate his lifting restrictions hardly seems unwarranted, unfair or an impermissible shifting of a burden to go forward.

[¶ 16] I have reservations that the “presumption” used by the ALJ was unwarranted in this instance. Nevertheless, despite my fear this opinion will be read to require proof of the obvious to an inordinate point, I concur, although reluctantly, in the decision of the majority to remand for further evidence. Insofar as the result of the majority is a signal to ALJ’s and the Bureau that unwarranted presumptions of fact are unacceptable, I agree with the majority opinion. I suggest ALJ’s and the Bureau, as well as other administrative agencies, avoid the use of that term except where specifically authorized by law in order to avoid what may become a predictable response from this Court.

[¶ 16] jGerald W. Vande Walle, C.J.


author: SACKETT, C.J.

text:
    Robert Dale WELCHANS, Plaintiff-Appellee, v. UNITED SERVICES AUTOMOBILE ASSOCIATION and Allied Mutual Insurance Company, n/k/a Nationwide Mutual Insurance Company, Defendants-Appellants.
    No. 00-1579.
    Court of Appeals of Iowa.
    March 13, 2002.
    R. Laubenthal and Thomp J. Patter-mann of Smith Peterson’ Law Firm, Council Bluffs, for appellant Allied Mutual Insurance Company.
    Timothy A. Scherle of Klass, Stoik, Mu-gan, Villone, Phillips, Orzechowski, Clau-sen & LaPierre, L.L.P., Sioux City, for appellant United Services Automobile Association.
    Stephen N. Greenleaf of Lynch, Green-leaf & Michael, L.L.P., Iowa City, for ap-pellee.
    Heard by SACKETT, C.J., and ZIMMER and VAITHESWARAN, JJ.
   SACKETT, C.J.

Defendant-appellants, United Services Automobile Association (USAA) and Allied Mutual Insurance Company, n/k/a Nationwide Mutual Insurance Company (Allied), appeal from the district court’s ruling in this declaratory judgment action, which determined their insured, plaintiff-appellee Robert Welchans, had underinsured motorist coverage (UIM) under the provisions of a business auto insurance policy written by Allied and a personal auto policy written by USAA. USAA and Allied both claim the “owned-but-not-insured” exclusions in their policies excluded the farm tractor Welchans was driving when it was struck by the underinsured motorist and consequently they were not bound to perform under the UIM coverage of either policy. We reverse and dismiss.

In November 1997, Welchans was driving his 1972 John Deere tractor on a county road. The tractor, was struck from behind by an automobile resulting in Wel-chans suffering serious personal injury. At the time of the accident, Welchans had a business auto policy with Allied on his farm truck and an automobile policy on four cars from USAA. Welchans also had a general farm liability policy that included insurance on the tractor with IMT Insurance which is not a párty to this suit. After advising Allied and USAA of his intent to settle, Welchans settled with the driver of the automobile who hit him for the - policy limits of the driver’s liability coverage. Welchans then made a claim against his UIM coverage under the policies with Allied and USAA. Both Allied and USAA denied coverage claiming Wel-chans was operating a vehicle that fell under their respective owned-but-not-insured exclusions. Welchans filed this declaratory judgment action.

The district court found the exclusion language in Allied’s policy did not exclude Welchans’ injuries . from UIM coverage. In contrast, the court found the exclusion language in USAAs policy did exclude Welchans’ injuries from UIM coverage. After examining the requirements concerning UIM coverage found in Iowa Code section 516A.1, the court found the UIM coverage in both policies was available to Welchans because the insurers did not obtain a written rejection from Welchans of UIM coverage for the tractor. This finding was made though neither insurer wrote coverage for the tractor. Allied and USAA appeal.

Review of actions for declaratory relief is governed by the manner in which the action wasUried. United Fire and Cas. Co. v. Iowa Dist. Ct., 612 N.W.2d 101, 103 (Iowa 2000). This case was tried at law. Our review is for correction of errors of law. Iowa R.App. P. 6.4 ; Van Oort Constr. Co. v. Nuckoll’s Concrete Serv., Inc., 599 N.W.2d 684, 689 (Iowa 1999). We are not bound by the district court’s legal conclusions, but we are bound by its findings of fact if they are supported by substantial evidence in the record. Walsh v. Nelson, 622 N.W.2d 499, 502 (Iowa 2001). Evidence is substantial when a reasonable mind would accept it as adequate to reach a conclusion. Flanagan v. Consolidated Nutrition, L.C., 627 N.W.2d 573, 577 (Iowa Ct.App.2001).

The UIM endorsement in Allied’s policy states, in pertinent part:

This insurance does not apply to any of the following:
4. ‘Bodily injury’ sustained by you ... while ‘occupying’ or struck by any vehicle owned by you ... which is not a covered ‘auto.’

Finding Welchans had UIM coverage for the accident under the Allied policy, the district court stated:

[B]odily injury sustained while occupying a non-covered auto is excluded from coverage. However, farm machinery is expressly excluded from the definition of auto, thereby removing farm machinery from the exclusion. The owned but not insured provisions of the Allied policy uses ordinary language, it is clear and unambiguous. Welchans’ injuries are not excluded from the underinsured motorist coverage of the Allied policy.

The district court correctly determined the 1972 John Deere tractor was not a covered “auto” under AlKed’s policy as it falls within the contract definition of “mobile equipment.” Under the definitions in Iowa Code section 321.1, a farm tractor is a motor vehicle. See Iowa Code §§ 321.1(24) and 321.1(42)(a). However, the district court misstated the language of the UIM exclusion and, based on that misstatement, reached the wrong conclusion. The court stated the exclusion was for “bodily injury sustained while occupying a non-covered auto.” (emphasis added). However, the policy language excludes bodily injury “while ‘occupying or struck by any vehicle owned by you ... which is not a covered ‘auto’.” (emphasis added). The tractor was a vehicle owned by Wel-chans, but not a covered “auto.” We conclude the court erred in concluding the exclusion of farm machinery from the definition of “auto” removes farm machinery from the UIM exclusion language. UIM coverage for Welchans’ injuries while driving the 1972 John Deere tractor is excluded by the “clear and unambiguous” language of the policy that excludes coverage when occupying a vehicle owned by the insured. The tractor is a vehicle both by statutory and policy definition.

Welchans claimed Iowa Code section 516A.1 mandates that he receive UIM coverage under both Alhed’s and USAAs policies because he did not reject such coverage in writing. The district court determined:

No automobile liability or motor vehicle liability insurance policy insuring against liability for bodily injury or death may be issued, unless it includes under-insured motorist coverage. § 516A.1, the Code. The named insured may reject under-insured motorist coverage in a separate writing. Without such written rejection in a separate writing in compliance with § 516A.1, the under-insured coverage under both the Allied policy and the USAA policy must be made available to Welchans.

In motions to amend or enlarge under Iowa Rule of Civil Procedure 1.904(2), both companies interpreted the district court’s ruling to mean an insurer must obtain written waivers of UIM coverage for each vehicle owned by an insured, even if the vehicle is not insured under a policy by that insurer. The district court denied the motions to amend or enlarge its ruling.

Iowa Code section 516A.1 provides that all automobile or motor vehicle liability insurance policies, which provide liability coverage for bodily injury or death must also include uninsured and un-derinsured coverage “for the protection of persons insured under such coverage.” Id. An insured may waive either or both coverages in a separate writing. Id. Un-derinsured coverage ordinarily protects and follows the person, not the vehicle. Prudential Ins. Co. of America v. Martinson, 589 N.W.2d 64, 66 (Iowa 1999); Hornick v. Owners Insurance Co., 511 N.W.2d 370, 372 (Iowa 1993). The district court correctly understood section 516A.1 to require that underinsured coverage be a part of an auto policy unless the insured signed a written waiver of that coverage. Based on this understanding, the court concluded the underinsured coverage in both Allied’s and USAAs policies was available to Welchans. Our analysis does not end there. We do not interpret statutory provisions in isolation. Mewes v. State Farm Auto. Ins. Co., 530 N.W.2d 718, 722 (Iowa 1995).

Iowa Code section 516A.2 allows insurers to “include terms, exclusions, limitations, conditions, and offsets which are designed to avoid duplication of insurance or other benefits.” Id. The Iowa Supreme Court considered this statutory provision in Miller v. Westfield Ins. Co., 606 N.W.2d 301, 306 (Iowa 2000) and said:

[W]e have not required an actual duplication of benefits when an owned-but-not-insured exclusion is contained in un-derinsured motorists (UIM) coverage. We have said that, in the context of UIM coverage, there is “no duplication of benefits until the victim has been fully compensated.” McClure v. Northland Ins. Co., 424 N.W.2d 448, 450 (Iowa 1988) (applying section 516A.2(l)’s duplication-of-benefits provision). Yet in Kluiter v. State Farm Mutual Automobile Insurance Co., 417 N.W.2d 74 (Iowa 1987), we upheld an owned-but-not-insured exclusion with no discussion of whether the insured had been fully compensated for his injuries. 417 N.W.2d at 76. Instead, we merely found “potential duplication.” Id. (emphasis added); see also Homick, 511 N.W.2d at 374, (holding the UIM policy provision at issue “may be viewed as an attempt to avoid duplication of insurance coverage and is therefore permitted under Iowa Code section 516A.2” (emphasis added)).
Our inconsistent application of the statute’s duplication-of-benefits provision finds no support in the language of the statute; either section 516A.2(1) requires actual duplication, or it does not. As we have explained, based on the words used by the legislature, we hold that actual duplication is not required under section 516A.2(1).

Miller v. Westfield Ins. Co., 606 N.W.2d 301, 306 (Iowa 2000); accord Lefler v. Gen. Cas. Co. of Wisc., 260 F.3d 942, 946 (8th Cir.2001). Welchans argues this provision does not apply because his insurance agent said he knew of no under-insured motorist coverage available for Welchans’s John Deere tractor. Plaintiff contends because he could not purchase UIM coverage for the tractor, there is no potential for duplication. Under the statutory language, the potential duplication encompasses insurance or other benefits. Iowa Code § 516A.2(1) (emphasis added). We cannot on this record find there is no potential for duplication. The “owned-but-not-insured” UIM exclusion provisions in Allied’s and USAA’s policies are designed to avoid duplication. Consequently, they meet the statutory requirements of Iowa Code section 516A.2 and are enforceable. The exclusionary language, although phrased differently in the two policies, excludes the tractor on which Welchans was injured. We therefore reverse the decision of the district court that UIM coverage is available to Welchans under his Allied or USAA policies. We reverse the district court and dismiss plaintiffs action.

REVERSED AND DISMISSED.

      . Formerly Iowa R.App. P. 4.

      . As defined in the Allied policy definitions, "auto” means a land motor vehicle, trailer or semitrailer designed for travel on public roads but does not include "mobile equipment”.

      . "Mobile equipment" means any of the following types of land vehicles, ...
      1. Bulldozers, farm machinery, forklifts, and other vehicles designed for use principally off public roads.

      . Formerly Iowa R. Civ. P. 179(b).

      . The requirements of section 516A.1 are not limited to liability policies for automobiles, but also includes liability policies for motor vehicles. Section 321.1 defines a farm tractor as a motor vehicle.


author: /s/ Paul H. Anderson Associate Justice.

text:
    In the Matter of the Application for the DISCIPLINE OF Jerrold M. HARTKE, an Attorney at Law of the State of Minnesota.
    No. C5-86-1996.
    Supreme Court of Minnesota.
    June 5, 2002.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the petition for reinstatement having been withdrawn due to the death of the petitioner Jerrold M. Hartke, this matter be, and the same is, dismissed.

BY THE COURT:

/s/ Paul H. Anderson Associate Justice.


text:
    In re Petition for DISCIPLINARY ACTION AGAINST Steven John UGGEN, an Attorney at Law of the State of Minnesota.
    No. C5-01-1434.
    Supreme Court of Minnesota.
    June 11, 2002.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Steven John Uggen has committed professional misconduct warranting public discipline, namely, keeping a finder’s fee rather than turning it over to the required parties and forging a stock certificate as collateral for a personal loan in violation of Minn. R. Prof. Conduct 8.4(c).

Respondent admits his conduct violated the Rules of Professional Conduct, waives his rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is indefinite suspension with no right to apply for reinstatement for at least six months and that the reinstatement hearing provided in Rule 18(a)-(d), RLPR, not be waived, and that respondent pay costs of $900 and disbursements under Rule 24, RLPR.

This court has independently reviewed the file and approves the jointly recommended disposition.

IT IS HEREBY ORDERED that respondent Steven John Uggen is indefinitely suspended from the practice of law with no right to apply for reinstatement for six months and that the reinstatement hearing provided in Rule 18(a)-(d), RLPR, is not waived. Respondent shall pay $900 in costs and disbursements under Rule 24, RLPR.

BY THE COURT

Paul H. Anderson Paul H. Anderson Associate Justice


text:
    In re Petition for Transfer to Disability Status of Dianne E. RUSTAD, an Attorney at Law of the State of Minnesota.
    No. C6-02-819.
    Supreme Court of Minnesota.
    June 11, 2002.
   ORDER

The Director of the Office of Lawyers Professional Responsibility and respondent Dianne E. Rustad have entered into a stipulation providing for the transfer of respondent to disability inactive status under Rule 28, Rules on Lawyers Professional Responsibility (RLPR). The parties agree that the pending disciplinary proceedings should be stayed until respondent seeks reinstatement from disability inactive status under Rule 28(d), RLPR.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED THAT:

(1) Respondent Dianne E. Rustad is immediately transferred to disability inactive status.

(2) During the disability inactive status respondent shall not render legal advice or discuss legal matters with clients.

(3) All disciplinary investigations shall be stayed until such time as respondent petitions for reinstatement to active status and disciplinary action, if any, shall be a condition of reinstatement.

(4) Respondent shall comply with the requirements of Rule 26, RLPR, for closing down her legal practice.

(5) With respect to any reinstatement petition that respondent may file, the provisions of Rules 18 and 28(d), RLPR, shall apply.

BY THE COURT

Paul H. Anderson Paul H. Anderson Associate Justice


author: /s/ Paul H. Anderson Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Michael J. HOOVER, an Attorney at Law of the State of Minnesota.
    No. C7-02-439.
    Supreme Court of Minnesota.
    June 11, 2002.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition and supplementary petition for disciplinary action alleging that respondent Michael J. Hoover has committed unprofessional conduct warranting public discipline, namely, improperly using his trust account as a business/personal account, failing to cooperate fully with the Director’s investigation and failing to prepare proper fee agreements, in violation of Minn. R. Prof. Conduct 1.15(a) and 8.1(a)(3) and Rule 25, Rules on Lawyers Professional Responsibility (RLPR). See also In re Lochow, 469 N.W.2d 91, 98-99 (Minn.1991); In re Cartwright, 282 N.W.2d 548, 552 (Minn.1979).

Respondent admits his conduct violated the Rules of Professional Conduct, waives his rights under Rule 14, RLPR, and has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is a public reprimand, payment of $900 in costs and $70 in disbursements under Rule 24, RLPR, and unsupervised probation for a period of two years subject to the following conditions:

a. Respondent shall cooperate fully with the Director’s Office in its efforts to monitor compliance with the probation and promptly respond to the Director’s correspondence by the due date. Respondent shall cooperate with the Director’s investigation of any allegations of unprofessional conduct that may come to the Director’s attention. Upon the Director’s request, respondent shall provide authorization for release of information and documentation to verify compliance with the terms of the probation.
b. Respondent shall abide by the Minnesota Rules of Professional Conduct.
c.Respondent shall (i) deposit all earned fees paid pursuant to hourly billing statements into a business or other non-trust account; (ii) make all disbursements to his own personal and business creditors from a business or other non-trust account; (iii) in accordance with LPRB Opinion No. 15, enter into proper fee agreements with all clients from whom he receives non-refundable fee retainers or advances; (iv) maintain law office and trust account books and records in compliance with [Minn. R. Prof. Conduct 1.15], and LPRB Opinion No. 9; and (v) comply with all other business and trust account requirements. Within 30 days of the Court’s order, respondent shall make available to the Director all books and records and other materials the Director may request to verify respondent’s compliance with these requirements. Thereafter, respondent shall make such materials available to the Director at such intervals as the Director deems necessary to verify compliance.

This court has independently reviewed the file and approves the jointly recommended disposition.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent Michael J. Hoover is publicly reprimanded and placed on unsupervised probation for two years subject to the agreed-upon conditions set forth above. Respondent shall pay $970 in costs and disbursements under Rule 24, RLPR.

BY THE COURT:

/s/ Paul H. Anderson Associate Justice