author: CROTHERS, Justice. VANDE WALLE, Chief Justice,

text:
    2006 ND 253
    In the Interest of R.S. Allan WEISENBURGER, FNP-C, Petitioner and Appellee v. R.S., Respondent and Appellant.
    No. 20060318.
    Supreme Court of North Dakota.
    Dec. 13, 2006.

      Lonnie Olson, State’s Attorney, Devils Lake, ND, for petitioner and appellee.
    Thomas E. Merrick, Jamestown, ND, for respondent and appellant.
   CROTHERS, Justice.

[¶ 1] R.S. appealed from an order requiring him to be hospitalized at the North Dakota State Hospital for 90 days and an order allowing him to be treated involuntarily with medication during that 90-day period. We conclude the district court’s finding that R.S. is a person requiring treatment is not clearly erroneous and affirm.

I

[¶ 2] R.S., a 48-year-old male, was admitted to the State Hospital in early October 2006 after a law enforcement officer witnessed him behaving erratically. After his evaluation at the State Hospital, R.S. was diagnosed with psychotic disorder. A nurse practitioner at the State Hospital filed a petition to have R.S. involuntarily committed for treatment. Dr. William Pryatel, R.S.’s treating psychiatrist at the State Hospital, also filed a request to involuntarily treat R.S. with medication during his hospitalization.

[¶ 3] At the involuntary commitment hearing, the district court heard testimony from four witnesses regarding R.S.’s mental health. Three witnesses were called by the petitioner: Officer Ted Rainesalo, Dr. William Pryatel, and R.S.’s nephew. R.S. testified on his own behalf.

[¶ 4] Officer Rainesalo testified regarding the incident at the Devils Lake Police Department in September 2006 which resulted in R.S.’s admission to the State Hospital. Officer Rainesalo recounted that R.S. entered the police station looking lost, and that he spoke with R.S. for about five minutes, during which it was obvious that R.S. was in some kind of mental distress. According to Officer Rainesalo, R.S. stated he was having a problem with a lady in a black magic shop out at Fort Totten who was reading his mind and preventing him from sleeping. After a few minutes, R.S. stopped talking, and the officer told him that he could come back if he needed to talk some more. About fifteen minutes later, R.S. returned to the police station. Officer Rainesalo testified he heard the department secretary calling his name. He looked out the door of his office and saw R.S. approaching. In the officer’s words, “I was approximately 10 feet from [R.S.], I noticed he was carrying a gun in his left hand down along his left leg. And I immediately took about three steps and got a hold of the gun and took custody of it and [R.S.].” The officer testified he felt threatened even though R.S. did not verbally threaten him or point the gun at anybody. Officer Rainesalo further testified that when he asked R.S. what he was doing, R.S. replied he was bringing the gun into the police department to “check it out.” After the officer seized the gun, he discovered it was unloaded, although ammunition was found in R.S.’s vehicle.

[¶ 5] Dr. Pryatel, R.S.’s treating psychiatrist, also testified at the involuntary commitment hearing. Dr. Pryatel testified that R.S. minimizes or denies his problems and says that they were just dreams. He stated that R.S. has been very guarded at the State Hospital and has not cooperated with providing information for psychological testing. Dr. Pryatel also testified that R.S. was admitted to the State Hospital after having talked about a hit man named Eugene who was trying to get him. Dr. Pryatel testified about the risk of harm that R.S. presents, stating:

Q. What risk of harm do you believe he presents?
A. Well, we have an individual here who reportedly in the community has been feeling there’s a hit man out after him. We had this bizarre behavior with the gun, with the weapon, and so un-medicated this type of thing tends to spiral and get worse and worse and so, you know, I think it could lead to an event.
Q. Is that based on the characteristics of this diagnosis [psychotic disorder] that it tends to go in that direction?
A. If not interrupted it tends to get worse.
Q. And per your previous testimony you believe without the treatment that there’s a spiral that could go on here that would lead to a risk of harm to others in the future.
A. These disorders don’t tend to get better on their own, if anything they tend to get worse and worse and so we’ve been warned.
Q. So you believe that the presence of the gun is a significant indicator of future dangerousness?
A. Making statements that he feels a hit man is out after him and has a weapon here so ...
Q. And it appears you have no past treatment history that you could make any predictions based on with [R.S.]? A. We don’t have any history with him, I’m just going by what our experience has been in the past and also, you know, psychiatry.
Q. Clinical experience?
A. Clinical experience and psychiatry in general.

[¶ 6] Dr. Pryatel was asked about the significance of R.S.’s possession of the gun, and explained:

My hypothesis is that he needed the gun because he was being stalked, that there was a hit man after him and — and you have to remember he shows up at the police station the first time and didn’t say anything and kind of wanders around and stuff and then came back again with the gun. So maybe there was enough sense with him to not actually use the weapon, you know, some part of him told him he needed to get to the police station and everything is not all right here and so on as opposed to taking things in his own hands, taking matters into his own hands.

[¶ 7] R.S.’s adult nephew also testified, stating R.S. is self-sufficient and lives alone in an apartment, and that R.S. has been a full-time employee on a park board maintenance staff for about fifteen years. However, the nephew testified he was concerned because R.S. has exhibited increasing levels of paranoia. According to the nephew, R.S. does not want to leave his house because he thinks “there’s always people, someone out to get him or a sniper, even at work.” The nephew occasionally accompanied R.S. at work and testified R.S. “would be looking around thinking there was a sniper out there or somebody ready to take him out.” R.S. also verbalized his fears that family members and anyone else who tried to help R.S. were “out to get him.”

[¶ 8] On a driving trip last summer, R.S. was grabbing the door and getting ready to jump out of the moving vehicle because he thought that his nephew and other relatives were going to throw him into a Utah salt mine. The nephew also recounted that R.S. would hear his name over a police scanner when it was not there and that R.S. thought there were microphones planted in his house. Despite these bizarre incidents, the nephew stated twice that he did not think R.S. would harm himself or anyone else because R.S. tends to lock himself up or isolate himself.

[¶ 9] R.S. also testified at the commitment hearing. With regard to the incident at the police station, R.S. testified that he brought the gun into the station to check if it was stolen. According to R.S., he purchased the gun from a person on the street “three, four, five years” ago. Although R.S. admitted telling Officer Rainesalo about a black magic shop, he denied that he ever told the officer about a lady at Fort Totten reading his mind. When he was questioned about several different alleged delusions, R.S. stated that they were dreams. R.S. denied that he thinks other people, including family members, are out to get him, or that he ever thought his relatives were going to throw him into a salt mine. He also denied the incidents related by his nephew involving the police scanner and microphones planted in his home.

[¶ 10] After hearing this evidence, the district court made findings on the record. The district court stated:

I find the evidence is clear and convincing to indicate that the respondent is mentally ill. The diagnosis at this time is Psychotic Disorder, though Dr. Prya-tel indicates that is a preliminary diagnosis. The symptoms however are present. The symptoms are that he recently went into the police department in Devils Lake speaking about a black magic shop, that somebody was reading his mind, indicated he was unable to sleep. He left the police department, came back a short time later carrying a pistol. He has a history of paranoia as testified to by [his nephew]. Claims that people are after him to the point where he doesn’t leave his home. He believes that there’s snipers out there to get him. He has locked himself in, he doesn’t answer his phone or his door. He thinks there are microphones in his house. People are going to come and get him. And on a recent trip to Utah he almost-or he thought that there were — that people were going to throw him into a salt mine to the point where his nephew feared that he would jump out of the moving vehicle.
I do find that if the respondent is not treated there does exist a serious risk of harm to others and a substantially [sic] likelihood of inflicting serious bodily injury, he did this during an episode of his paranoia and delusional behavior, he did carry a weapon into the police department and that’s sufficient for the Court to believe that there is a substantial risk of or a substantial risk of harm to others.
I find that a treatment program other than hospitalization would not be adequate to meet his needs or be sufficient to prevent harm or injuries to others, if he is not hospitalized there is a risk of personal injury to other persons acting out on his paranoia. I conclude that he is mentally ill and is a person who requires treatment and order that he undergo treatment at the North Dakota State Hospital for a period not to exceed 90 days.

The district court issued an Order for Hospitalization and Treatment based on these findings. Additionally, the district court issued an Order to Treat with Medication, permitting the State Hospital to involuntarily medicate R.S. with certain medications during the 90-day commitment period.

[¶ 11] On November 1, 2006, the same day that the district court issued these orders, R.S. moved for an order staying the execution of the Order to Treat with Medication pending appeal to this Court. The district court granted R.S.’s motion and stayed the involuntary medication order for 30 days. On November 17, 2006, R.S. filed a motion in this Court requesting an extension of the stay, and we issued an order staying the Order to Treat with Medication until R.S.’s appeal is resolved.

II

[¶ 12] Our review of an involuntary treatment order under N.D.C.C. ch. 25-03.1 is limited to a review of the procedures, findings, and conclusions of the district court. Interest of L.D., 2003 ND 182, ¶ 5, 671 N.W.2d 791. The district court’s order for involuntary treatment must be based upon clear and convincing evidence. Interest of M.M., 2005 ND 219, ¶ 9, 707 N.W.2d 78. We review the findings of the district court under a more probing clearly erroneous standard of review. Id. A finding is clearly erroneous if it is induced by an erroneous view of the law, or if this Court has a definite and firm conviction, based on all the evidence, that it is not supported by clear and convincing evidence. Interest of C.H., 2005 ND 130, ¶ 4, 699 N.W.2d 849; Interest of L.D., at ¶ 5.

Ill

[¶ 13] R.S. argues that the district court’s finding that he is a person requiring treatment is clearly erroneous because the district court’s finding that he poses a serious risk of harm to others is not supported by clear and convincing evidence.

[¶ 14] Before the district court may issue an involuntary treatment order, the petitioner must prove by clear and convincing evidence that the respondent is a “person requiring treatment” under N.D.C.C. § 25-03.1-02(12). Interest of M.M., 2005 ND 219, ¶ 9, 707 N.W.2d 78. Section 25-03.1-02(12) provides:

“Person requiring treatment” means a person who is mentally ill or chemically dependent, and there is a reasonable expectation that if the person is not treated there exists a serious risk of harm to that person, others, or property. “Serious risk of harm” means a substantial likelihood of:
a. Suicide, as manifested by suicidal threats, attempts, or significant depression relevant to suicidal potential;
b. Killing or inflicting serious bodily harm on another person or inflicting significant property damage, as manifested by acts or threats;
c. Substantial deterioration in physical health, or substantial injury, disease, or death, based upon recent poor self-control or judgment in providing one’s shelter, nutrition, or personal care; or
d. Substantial deterioration in mental health which would predictably result in dangerousness to that person, others, or property, based upon evidence of objective facts to establish the loss of cognitive or volitional control over the person’s thoughts or actions or based upon acts, threats, or patterns in the person’s treatment history, current condition, and other relevant factors, including the effect of the person’s mental condition on the person’s ability to consent.

Therefore, a two-step process is used to determine whether someone is a “person requiring treatment.” Interest of C.H., 2005 ND 130, ¶ 6, 699 N.W.2d 849. First, the district court must find that the person is mentally ill. Id. Second, the district court must find that there is a reasonable expectation that if the person is not treated, there exists a “serious risk of harm” to himself, others, or property, as defined by the statute. Id.

[¶ 15] There is a presumption against treatment. Interest of I.K., 2003 ND 101, ¶ 15, 663 N.W.2d 197. It is not enough that a person would benefit from treatment; the person must require treatment. Interest of L.D., 2003 ND 182, ¶ 5, 671 N.W.2d 791. To establish that a mentally ill person requires treatment, there must be convincing evidence that the person poses a serious risk of harm if left untreated. Interest of I.K., at ¶ 17. Direct evidence of overt violence or an expressed intent to commit violence is not required to find that a person poses a serious risk of harm. Interest of D.Z., 2002 ND 132, ¶ 9, 649 N.W.2d 231. This Court has rejected the argument that the “serious risk of harm” requirement must be proven with evidence of an overt violent act or expressed intent to commit violence. In the Interest of D.P., 2001 ND 203, ¶ 9, 636 N.W.2d 921. Rather, “[w]hen one or more reasonable inferences can be drawn from credible evidence, this Court must accept the inferences drawn by the district court.” Id. (citing In the Interest of M.S., 1999 ND 117, ¶ 8, 594 N.W.2d 924).

[¶ 16] Here, R.S. does not challenge the finding he is mentally ill. Rather, R.S. contests the district court’s finding that he poses a serious risk of harm to others if he is not treated. In its findings, the district court focused on the substantial likelihood that R.S. would inflict serious bodily injury on others. Specifically, the district court found that the incident at the police department was sufficient evidence that R.S. poses a serious risk of harm to others. The district court did not make any findings regarding whether R.S. poses a serious risk of harm to himself or whether R.S.’s mental health has substantially deteriorated.

[¶ 17] Based on the evidence before the district court, we conclude the district court was not clearly erroneous when it found R.S. poses a serious risk of harm to others if left untreated. Dr. Pryatel testified that R.S.’s mental illness will likely get progressively worse and that it will not improve without medication. R.S.’s nephew confirmed that R.S.’s mental illness is getting worse, and that he has urged R.S. to seek treatment. The district court also had before it both direct evidence and evidence upon which reasonable inferences could be drawn that R.S. posed a serious risk of harm to others. The evidence included the facts that R.S. owned a handgun and ammunition, and that R.S. was armed with the gun when he walked directly into a police station without stopping at the front reception desk. The incident involving the gun at the police station would be sufficient to cause alarm in any event. But here, reason for concern is amplified by R.S.’s routine fears that snipers are hunting him and that relatives and others who are trying to help R.S. are “out to get him.” Evidence before the district court also was that R.S. hears voices in his head, wrongly believes microphones have been planted in his home, imagines he hears his name on a police scanner, and becomes so fearful that he refuses to answer the telephone, answer the door or leave his home. In Dr. Prya-tel’s words, “[t]hese disorders don’t tend to get better on their own, if anything they tend to get worse and worse and so we’ve been warned.”

IV

[¶ 18] North Dakota law allows a court to act on warnings and does not require actual violence or expressed threats. Interest of D.Z., 2002 ND 132, ¶9, 649 N.W.2d 231. On review, we conclude the district court did what is permitted by law and relied on direct evidence and reasonable inferences to find R.S. is a person requiring treatment. We therefore affirm, concluding the district court’s orders were supported by clear and convincing evidence.

[¶ 19] DALE V. SANDSTROM, and MARY MUEHLEN MARING, JJ., concur.

VANDE WALLE, Chief Justice,

dissenting.

[¶ 20] I respectfully dissent. The district court’s finding that R.S. is a person requiring treatment is clearly erroneous because there is no clear and convincing evidence supporting the finding that R.S. poses a serious risk of harm to others if he is not treated.

[¶ 21] To establish that a mentally ill person requires treatment, convincing evidence must be presented to show that if left untreated, the person poses a serious risk of harm to himself, others, or property. Interest ofl.K, 2003 ND 101, ¶ 17, 663 N.W.2d 197. Section 25-03.1-02(12), N.D.C.C., provides a detailed definition of what constitutes “serious risk of harm,” including a substantial likelihood of “Hill-ing or inflicting serious bodily harm on another person or inflicting significant property damage, as manifested by acts or threats.” In this case, the district court found that a serious risk of harm exists because there is a substantial likelihood that R.S. will inflict serious bodily injury on others. However, the evidence presented at the commitment hearing does not provide clear and convincing support for this finding.

[¶ 22] R.S. has lived alone for many years and is self-sufficient. He has held a full-time position as a maintenance worker for about fifteen years. He does not have a history of violent or threatening behavior. At the commitment hearing, Dr. Pryatel testified that R.S. stays to himself at the State Hospital and has not had any confrontations or caused any problems there, even without medication. R.S.’s nephew testified that he does not think R.S. would harm himself or anyone else.

[¶ 23] In support of its finding that R.S. poses a serious risk of harm to others, the district court relied primarily on the incident where R.S. carried a gun into the police department. However, this incident, when viewed in light of all the circumstances, is not convincing evidence of a substantial likelihood that R.S. will inflict serious bodily harm on another person if he is not treated. Officer Rainesalo had invited R.S. to return to the police station if he needed to talk just fifteen minutes before the incident. Although Officer Rainesalo testified that he felt threatened by the gun that R.S. carried into the station, R.S. did not exhibit any accompanying violent or threatening behavior. Indeed, Officer Rainesalo testified that R.S. walked slowly past the front desk, held the gun down along his side, and never made verbal threats or pointed the gun at anyone. After Officer Rainesalo seized the gun, he discovered that it was unloaded, which was consistent with R.S.’s claim that he brought the gun to the police station to check whether it was stolen.

[¶ 24] Furthermore, Dr. Pryatel’s expert testimony was not clear and convincing evidence that R.S. poses a serious risk of harm to others if not treated. His testimony did not establish a substantial likelihood that R.S. will inflict serious bodily harm on others, which was the district court’s finding. Dr. Pryatel testified only that without medication, psychotic disorder “tends to spiral and get worse and worse” which “could lead to an event.” Dr. Prya-tel gave a vague answer when he was asked whether the incident with the gun is a significant indicator of future dangerousness. The doctor responded, “Making statements that he feels a hit man is out after him and has a weapon here so.... ” In his testimony, Dr. Pryatel relied primarily on the general characteristics of psychotic disorder and not the particular facts of R.S.’s ease. “Clinical experience and psychiatry in general” may establish a profile of a person who might reasonably be expected to be a danger to others, but I am not persuaded that a profile, without more, constitutes the clear and convincing evidence which is statutorily necessary to conclude that R.S. is a person requiring treatment.

[¶ 25] In this case, it is clear that R.S. would benefit from mental health treatment. He suffers from delusions and paranoia. However, this is not the standard. There must be clear and convincing evidence that R.S. is a “person requiring treatment” under N.D.C.C. § 25-03.1-02(12). Although this Court has held that direct evidence of overt violence or an expressed intent to commit violence is not required to find that a person poses a “serious risk of harm,” the statute does require clear and convincing evidence of a substantial likelihood that R.S. will inflict serious bodily harm on another person “as manifested by acts or threats.” N.D.C.C. § 25-03.1-02(12); Interest of D.Z., 2002 ND 132, ¶ 9, 649 N.W.2d 231. Based on the entire record, there is no clear and convincing evidence that R.S. poses a serious risk of harm to others if left untreated.

[¶ 26] I would reverse the district court’s Order for Hospitalization and Treatment.

[¶ 27] CAROL RONNING KAPSNER, J. concurs.


source: Caselaw Access Project

author: KAPSNER, Justice.

license: Public Domain

text:
    2006 ND 255
    Doris GRIGGS, Plaintiff and Appellant v. Nathan FISHER and Nicole Fisher, Defendants and Appellees.
    No. 20060180.
    Supreme Court of North Dakota.
    Dec. 13, 2006.
    Janet V. Keymetian (argued) and Irvin B. Nodland (on brief), Irvin B. Nodland, Bismarck, ND, for plaintiff and appellant.

      Malcolm H. Brown (argued), Malcolm H. Brown, P.C., Bismarck, ND, for defendants and appellees.
   KAPSNER, Justice.

[¶ 1] Doris Griggs appeals from a judgment, entered after a jury verdict, dismissing her complaint against Nathan and Nicole Fisher for a rescission of contract. Griggs sought rescission from the contract for sale of certain real and personal property. We conclude Griggs’ claim fails because she did not move the trial court for a directed verdict or for a new trial. Accordingly, we affirm.

I

[¶ 2] Griggs, a disabled seventy-five-year-old woman, lives alone on a ranch in Dunn County. She owned and operated the ranch until 2002. In 2002, Griggs became physically unable to work due to a deteriorated hip, so she hired her neighbor, Nathan Fisher, to work on her ranch on a full-time basis. Shortly after his hire, Fisher sought to have Griggs convey the ranch to him. Griggs had a will drafted, leaving the ranch to Fisher, assuming he was still operating and managing the ranch at the time of her death.

[¶ 3] Griggs has suffered from a deteriorating hip since the late 1980’s. Griggs had hip stabilizing hardware installed to allow her to continue ranching. In January 2002, the stabilizing hardware was failing. Griggs had surgery to remove the hip hardware, but her surgeons determined her bone structure was too deteriorated to install an artificial hip. Griggs went home from the hospital without a hip and remained in that condition for over a year. In 2003, Griggs found a surgeon willing to perform a hip replacement in Idaho Falls, Idaho. In preparation for her absence and heavy medication, Griggs signed a power of attorney, naming Fisher as her attorney-in-fact. The power of attorney authorized Fisher to interact with the Farm Services Agency (“FSA”) on Griggs’ behalf.

[¶ 4] Throughout Griggs’ recovery, Fisher called her several times, advising her that her mortgage lender, FSA, was about to foreclose on her ranch. Fisher allegedly pressured her to convey the ranch to him before FSA foreclosed. A short time later, Fisher came to Griggs’ home with a prepared “Option to Purchase” form, in which Griggs agreed to convey the ranch to Fisher. Fisher agreed to assume her debt of approximately $280,000 and pay her $1,000 per month for the rest of her life, but offered no other payment. Without contest on appeal, Griggs asserts the land was worth significantly more than the debt owed against it. Fisher also brought a prepared document transferring her livestock and machinery to him, subject to any amounts owed to FSA. Griggs signed the documents.

[¶ 5] Griggs experienced complications from her hip surgery which required her to be hospitalized for extended periods of time. She was heavily medicated to control her pain. At trial, Griggs presented uncontroverted expert testimony concerning the side effects of her medications. Both Fisher and hospital staff noted that, at times, Griggs was disorientated, confused, and appeared to be hallucinating. While Griggs was hospitalized, Fisher, his wife, and a FSA agent came to discuss a different agreement to convey the ranch, reducing the $1,000 per month payment to $400 per month. The agreement also terminated the payments if Griggs was admitted into a long-term care facility. In June 2003, Fisher drove Griggs to his lawyer’s office to finalize the deed and agreement. Fisher told Griggs his lawyer would not be present. When they arrived, however, Fisher’s lawyer was there. The lawyer asked whether Griggs wanted her lawyer present. When she said no, Fisher’s lawyer explained the documents. Griggs complained about some of the language in the deed, but signed the agreements after a change was made.

[¶ 6] At the conclusion of the jury trial, the jury returned a verdict to dismiss Griggs’ complaint. Griggs did not move the trial court for a directed verdict under N.D.R.Civ.P. 50 or for a new trial under N.D.R.Civ.P. 59.

II

[¶ 7] On appeal, Griggs presents no issues of law, arguing only that the jury verdict was contrary to the evidence. Within her argument, she also asserts: (1) Fisher exerted undue influence over her with respect to the transactions; (2) she did not have the capacity to contract; (3) the contracts were unconscionable; (4) Fisher’s lawyer took advantage of her; and (5) FSA, her mortgage lender, took advantage of her. At oral argument, Griggs invited this Court to overrule a line of precedent requiring a motion for a new trial or a motion for a judgment as a matter of law in the trial court before we will address whether the evidence to support a jury verdict was sufficient. Fisher argues the case is not appealable because Griggs failed to move the court for a directed verdict or a new trial.

III

[¶ 8] The dispositive issue in this case is not whether this case is appeal-able, but rather whether Griggs’ issue is reviewable. We decline Griggs’ invitation to overrule our well-established rule which requires a motion for a new trial or for a judgment as a matter of law to be made in the trial court. Generally, we will not address issues raised for the first time on appeal. See Varriano v. Bang, 541 N.W.2d 707, 713 (N.D.1996). “[A] losing party cannot, after a civil jury trial, ‘raise the issue of sufficiency of the evidence for the first time’ to this Court.” Id. (quoting Reisenauer v. Schaefer, 515 N.W.2d 152, 156-57 n. 6 (N.D.1994)); see also Braun v. Riskedahl, 150 N.W.2d 577, 581 (N.D.1967) (overruled in part on different grounds); Hultberg v. City of Garrison, 79 N.D. 356, 358, 56 N.W.2d 319, 320 (N.D.1952). This serves two well-established principles: (1) we no longer decide factual issues de novo, and (2) we do not reweigh conflicts in the evidence or reassess the credibility of witnesses. Habeck v. MacDonald, 520 N.W.2d 808, 813 (N.D.1994). The trial court and the jury had the benefit of observing the evidence and witnesses at trial. The trial court is also in the best position to decide a question regarding the sufficiency of the evidence. Therefore, before addressing the issue of sufficiency of the evidence to support a jury verdict, we require a losing party to “move for judgment as a matter of law under [N.D.R.Civ.P.] 50, or for a new trial under [N.D.R.Civ.P.] 59....” Varriano, at 713.

IV

[¶ 9] Griggs failed to move for judgment as a matter of law or for a new trial. We have long held a party must make a motion in the trial court before we will address the sufficiency of the evidence to support a jury verdict. Therefore, we affirm the judgment entered upon the jury verdict.

[¶ 10] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, DANIEL J. CROTHERS, and DALE V. SANDSTROM, JJ„ concur.


author: MARING, Justice.

text:
    2006 ND 254
    Arnold AGA, Claimant and Appellant v. WORFORCE SAFETY AND INSURANCE, Appellee and Barlow’s Miracle Mart, Inc., Respondent.
    No. 20060185.
    Supreme Court of North Dakota.
    Dec. 13, 2006.
    Stephen D. Little, Dietz & Little Lawyers, Bismarck, ND, for claimant and appellant.

      Lawrence A. Dopson, Special Assistant Attorney General, Bismarck, ND, for ap-pellee.
   MARING, Justice.

[¶ 1] Arnold Aga appeals from a district court judgment affirming a Workforce Safety and Insurance (“WSI”) order denying his reapplication for disability benefits. We conclude WSI’s finding that Aga had not sustained a significant change in his compensable medical condition is supported by a preponderance of the evidence, and we affirm.

I

[¶ 2] Aga suffered a work-related injury to his lower back in 1999, while employed as a bakery manager at Miracle Mart in Minot. WSI accepted Aga’s claim for benefits and paid him associated medical and disability benefits. Aga received treatment for his back from a chiropractor, Dr. Paul Ellenbecker. Aga thereafter began experiencing hip and knee pain related to his work injury, and a January 2003, functional capacity evaluation stated Aga was able to work at a “medium” level. Aga ultimately had a right hip replacement by Dr. Dwight Woiteshek in July 2003. Dr. Woiteshek released Aga to return to full-time work with no restrictions, and Aga returned to full-time work at Miracle Mart on November 17, 2003.

[¶3] According to Aga, his condition worsened in January 2004. On January 7, 2004, Dr. Ellenbecker reported that Aga had indicated some hip and right low back pain. On February 25, 2004, Dr. Ellen-becker indicated that Aga had reported mild low back pain, pain in the right butt cheek, and a sore right hip. On March 2, 2004, Dr. Ellenbecker noted that Aga had reported immediate and constant low back pain after lifting a fifteen pound package. On March 17, 2004, Dr. Ellenbecker reported that Aga had indicated another episode of low back pain that has been gradually getting worse and his right hip felt like it was going to pop out of its socket. On March 22, 2004, Dr. Woiteshek reported Aga was experiencing “more and more trouble with his right hip,” and a bone scan showed an inflammation of his right hip. On May 18, 2004, Dr. Ellenbecker noted that Aga had reported both sides of his low back were hurting and had been bothering him for a couple of weeks.

[¶ 4] On June 2, 2004, Dr. Ellenbecker asked WSI for approval of a functional capacity evaluation to determine Aga’s work limitations, stating it was possible some of his residual hip and low back pain were secondary to his return to work as a baker. On June 11, 2004, Dr. Ellenbecker noted that Aga reported his right hip felt “loose” and he had intermittent low back pain. On July 1, 2004, Dr. Ellenbecker noted that Aga reported constant low back pain for the past three to four days. On July 12, 2004, Aga wrote to WSI, inquiring about the status of the requested functional capacity evaluation and seeking authorization to see another doctor about the pain in his hip. On July 19, 2004, WSI denied Aga’s request for a functional capacity evaluation and told Aga to get a referral from Dr. Woiteshek to see another physician for his hip. On July 21, 2004, Dr. Ellenbecker noted that Aga reported he had not been feeling badly since has last treatment.

[¶ 5] On July 29, 2004, Dr. Ellenbecker wrote WSI, asking for a permanent partial impairment rating for Aga:

Mr. Aga continues experiencing right hip dysfunction, which has worsened beginning with his return to full-time work activities on November 17, 2003. The right hip pain has progressively worsened over the past several months, where the patient is exhibiting limited flexion of the hip, as well as internal hip pain and referral pain down the anterior thigh. A follow up evaluation by his surgeon, Dr. Dwight Woiteshek in March/April 2004 seemed to indicate this was normal, even though it is worse than following surgery and that he would have to live with it.
This pattern does not seem common following hip surgery, as other patients who have had hip replacement surgery do not have these findings. Therefore, I would like to get a second opinion evaluation by orthopedic surgeon Dr. Ernie Godfread in Bismarck. I feel this is necessary before a permanent partial impairment rating is scheduled.

[¶ 6] On August 3, 2004, without obtaining a work restriction from either of his doctors, Aga quit his job at Miracle Mart, effective August 8, 2004, informing his employer:

I can’t keep working for you because the job is to [sic] hard on my back and hip. I have talked this over with Dr. Ellen-becker and we agree that I would be better off with a less physical job. We had tried to get Workers Comp, to agree to a Functional Capacity Test so I would know what my limitations were, but they wouldn’t let me have one. Without that test, I can’t keep working at Miracle Mart because I feel the job makes my condition worse.

[¶ 7] In September 2004, Aga reapplied for disability benefits, checking a box on the reapplication form which indicated he “quit” work, rather than that he was “unable to work.” In October 2004, WSI denied Aga’s reapplication, finding he was not eligible for disability benefits because he had voluntarily limited his income by resigning from his job at Miracle Mart. Aga requested reconsideration. In December 2004, WSI denied Aga’s reapplication, finding he had not sustained a significant change in his medical condition and he had not suffered an actual wage loss because he voluntarily quit his job. Aga requested a formal hearing. In March 2005, Aga underwent a second functional capacity evaluation which indicated he could perform sedentary full-time work.

[¶ 8] At a September 2005, formal hearing, neither Dr. Ellenbecker nor Dr. Woiteshek testified. Rather, Aga introduced August 2005, letters to his attorney from Dr. Ellenbecker and Dr. Woiteshek. Dr. Ellenbecker’s letter responded to questions from Aga’s attorney and provided:

Is it more likely than not that he is disabled as a baker and has been since August 8, 2004? Yes.
Do you believe that the March 10-11, 2005, FCE is an accurate indicator of Mr. Aga’s functional capacity? Yes.
If so, is it more likely than not that his functional capacity on August 8, 2004 was substantially similar to that indicated in his 2005 FCE? Yes.
Finally, do Dr. Woiteshek’s November 17, 2003, work release and Mr. Aga’s March 10-11, 2005, FCE represent a significant change in his medical condition? Yes.

Dr. Woiteshek’s letter provided:

It is likely that the patient is disabled as a baker and has been disabled since August 8, 2004. His diagnosis is status post right total hip.
I felt that the functional capacity examination done on March 10-11, 2005 is a very accurate description of his functional capacity and I felt that, his functional capacity on August 8, 2004. was similar to that indicated on the FCE of 2005. I feel my work release on November 17, 2003 and Mr. Aga’s March 10-11, 2005 FCE were basically the same in his medical condition.
My logic here is he tried going back to work in November 2003 and he had a failure to do this and his condition was the same.

[¶ 9] An administrative law judge (“ALJ”) recommended denying Aga’s reapplication for disability benefits, finding he had not sustained a significant change in his compensable medical condition either at the time he quit his job in August 2004, or as he claimed in January 2004, and he had not sustained an actual wage loss caused by a significant change in his medical condition because he voluntarily limited his income by quitting his job. The ALJ specifically rejected the opinions in the letters from Dr. Ellenbecker and Dr. Woiteshek:

Dr. Ellenbecker’s opinion is not entirely supported by the medical records and is contradicted by the fact that he failed to provide Mr. Aga with any restrictions or remove him from work in August 2004. He did before, in April 2003. And why do his medical notes indicate that Mr. Aga’s condition was stable, consistent, and persistent, if he now believes Mr. Aga sustained a significant change in his condition? While Dr. Ellenbecker did, at times, note diminishing function and increased pain in Mr. Aga’s right hip, that he did not remove Mr. Aga from work or order restrictions at the time of Mr. Aga’s resignation is significant and indicates that Mr. Aga had not sustained such a significant change in his condition to warrant additional restrictions or removal from work.
33. Dr. Woiteshek’s opinion regarding whether Mr. Aga sustained a significant change in his compensable condition is confusing. He states that it is likely Mr. Aga is disabled as a baker and has been since August 8, 2004. But, he says, Mr. Aga’s functional capacity, as measured by the 2005 FCE, is basically the same and coincides with his release of Mr. Aga on November 17, 2003. In other words, according to Dr. Woitesh-ek, Mr. Aga’s condition has not changed. It is the same now as it was in 2003.
34. The greater weight of the evidence does not indicate that Mr. Aga sustained a significant change in his compensable medical condition. The medical records do not show a significant change in Mr. Aga’s medical condition in January 2004 when Mr. Aga says his condition became worse, or at the time of his resignation from employment at Miracle Mart. He had the same symptoms before and after his hip replacement surgery and his release to work on November 17, 2003. And as Dr. Ellen-beeker noted, Mr. Aga’s symptoms and objective findings were persistent and consistent. While Dr. Ellenbecker now says that Mr. Aga suffered a significant change in his compensable medical condition, his opinion is not entirely supported by the medical records and he was not called as a witness to explain his opinion in light of the fact that he frequently noted that Mr. Aga’s “symptoms persist and remain consistent,” his objective findings “remain similar and chronic,” and he failed to either order restrictions or remove Mr. Aga from work. If Mr. Aga had sustained a significant change in his medical condition, one would assume that this would be evidenced by some changes in his work restrictions. It is not. At no time after he was released to work on November 17, 2003, was Mr. Aga put on restrictions or removed from work. Instead, Mr. Aga quit his job, even though he was well aware that his doctor could impose restrictions and his employer had accommodated his restrictions in the past. The fact that Dr. Ellenbecker now says that Mr. Aga sustained a significant change in his medical condition is not persuasive, since whatever change Mr. Aga may have sustained, it was not sufficient to persuade his doctors that he required work restrictions or removal from work.
35. Further, the fact that Mr. Aga was found to be at the sedentary level of work during the FCE completed in March 2005 does not necessarily show that he suffered a significant change in his compensable medical condition in January 2004, or at the time he quit work and reapplied for benefits. While both doctors opine that the 2005 FCE does reflect what Mr. Aga’s functional capacity was on August 8, 2004, and that Mr. Aga was totally disabled from working as a baker in August 2004, their opinions were solicited more than a year after Mr. Aga quit his job and for reasons already discussed, they are inconsistent with the medical records and recommendations at that time.

[¶ 10] WSI adopted the ALJ’s recommendation and denied Aga’s request for further reconsideration. The district court affirmed WSI’s decision.

II

[¶ 11] Courts exercise a limited review in appeals from decisions by an administrative agency. Victor v. Workforce Safety & Ins., 2006 ND 68, ¶ 12, 711 N.W.2d 188. Under N.D.C.C. § 28-32-46, an administrative agency order must be affirmed by a district court unless:

1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

[¶ 12] In an appeal from a district court’s decision on an administrative appeal, we review the agency order in the same manner. N.D.C.C. § 28-32-49; Victor, 2006 ND 68, If 12, 711 N.W.2d 188. WSI is responsible for weighing the credibility of witnesses and resolving conflicts in the evidence. Tverberg v. Workforce Safety & Ins., 2006 ND 229, ¶8, 723 N.W.2d 676. In assessing an administrative agency’s findings of fact, we do not “make independent findings of fact or substitute our judgment for that of the agency. We determine only whether a reasoning mind reasonably could have determined that the factual conclusions reached were proved by the weight of the evidence from the entire record.” Power Fuels, Inc. v. Elkin, 283 N.W.2d 214, 220 (N.D.1979).

Ill

[¶ 13] A claimant seeking workers compensation benefits has the burden of proving by a preponderance of the evidence that he is entitled to benefits. N.D.C.C. § 65-01-11; Beckler v. Workdorce Safety & Ins., 2005 ND 33, ¶ 9, 692 N.W.2d 483; Bachmeier v. North Dakota Workers Comp. Bureau, 2003 ND 63, ¶ 11, 660 N.W.2d 217; Lesmeister v. North Dakota Workers Comp. Bureau, 2003 ND 60, ¶ 22, 659 N.W.2d 350; Gronfur v. North Dakota Workers Comp. Fund, 2003 ND 42, ¶ 6, 658 N.W.2d 337. When a claimant’s disability benefits have been discontinued and he subsequently sustains a significant change in his medical condition that causes further wage loss, the claimant may reapply for disability benefits under N.D.C.C. § 65-05-08(1), which provides:

When disability benefits are discontinued, the organization may not begin payment again unless the injured employee files a reapplication for disability benefits on a form supplied by the organization. In case of reapplication, the award may commence no more than thirty days before the date of reapplication. Disability benefits must be reinstated upon proof by the injured employee that:
a. The employee has sustained a significant change in the compensable medical condition;
b. The employee has sustained an actual wage loss caused by the significant change in the compensable medical condition; and
c. The employee has not retired or voluntarily withdrawn from the job market as defined in section 65-05-09.3.

Claimants reapplying for disability benefits under N.D.C.C. § 65-05-08(1) have the burden of showing both a significant change in their compensable medical condition and an actual wage loss caused by the significant change in their medical condition. Beckler, at ¶ 9; Bachmeier, at ¶ 11; Lesmeister, at ¶ 22; Gronfur, at ¶¶ 6, 11.

[¶ 14] Aga argues he demonstrated a significant change in his medical condition and an actual wage loss. He argues the ALJ and WSI misconstrued the medical evidence because they relied on the medical records of Aga’s son in determining Aga’s condition had improved in February 2005. Aga also claims the ALJ based her recommended decision on his failure to call his treating chiropractor, Dr. Ellenbecker, as a witness. He argues injured workers typically rely upon written medical opinions by their treating physicians, which are based upon objective medical evidence. He argues N.D.C.C. §§ 65-05-08 and 65-05-08.1 do not require doctor certification of a disability before an injured employee quits his job, or before he files a reapplication for disability benefits. He argues WSI’s determinations that he did not sustain a significant change in his medical condition and have an actual wage loss are not supported by the greater weight of the evidence.

[¶ 15] This record reflects that Aga saw Dr. Ellenbecker on February 16, 2005, and Aga’s son also saw Dr. Ellenbecker for low back treatment on February 16, 21, and 25. WSI’s record for Aga’s claim includes two pages of Aga’s son’s medical records from Dr. Ellenbecker for treatment in February 2005. The ALJ’s findings include a chronological recitation of Aga’s medical records from December 1999, through the March 2005, functional capacity evaluation, including a recitation in one finding of fact from Aga’s son’s February 2005 medical records for treatment by Dr. Ellenbecker. Aga’s son’s medical records were a small part of the ALJ’s recitation of the medical evidence and were for a period of time six months after Aga’s last day of work at Miracle Mart in August 2004.

[¶ 16] Although Aga’s son’s medical records with Dr. Ellenbecker were apparently inadvertently included in the record before WSI and were mentioned by the ALJ in her recommended decision, Aga’s son’s records involved treatment six months after Aga quit work and the ALJ’s decision reflects those records were not determinative of Aga’s claim. Rather, the ALJ’s findings effectively rejected Aga’s doctors’ opinions that Aga had sustained a significant change in his compensable medical condition when he quit work. Aga’s contemporaneous medical records suggest Aga may have reported some difficulty at work to his doctors, however, neither of his doctors restricted his work in July or August 2004. This record reflects Aga’s doctors had previously placed him on work restrictions, and Aga admits he was represented by counsel during the time period when he quit work. The record also reflects that Aga’s employer informed WSI the employer had not had any contemporaneous complaints or concerns brought to its attention by Aga. There was also evidence that after Aga left employment at Miracle Mart, he reported working around a farm and hauling hay bales, but could only do this activity for about four hours. Aga presented written after-the-fact responses by his doctors to his attorney in August 2005, which indicated the doctors believed it was likely Aga had been disabled since August 8, 2004. However, the AL J explained Aga was not contemporaneously restricted by his doctors in his work activities in August 2004. See N.D.C.C. § 65-05-08.1 (employee’s doctor shall certify period of disability). A claimant’s change in compensable medical condition must be contemporaneous with and tied to an alleged actual loss of wages. Beckler, 2005 ND 33, ¶ 12, 692 N.W.2d 483.

[¶ 17] Although Aga asserts claimants typically use doctor’s letters to support their claim, WSI is responsible for weighing the credibility of medical evidence. Elshaug v. Workforce Safety & Ins., 2003 ND 177, ¶ 13, 671 N.W.2d 784. In the absence of a proper objection, an administrative agency may receive documentary evidence in some instances. See N.D.C.C. § 28-32-24. Aga was entitled to subpoena his doctors or to present telephonic testimony from his doctors. See N.D.C.C. §§ 28-32-33 and 28-32-35. Aga nevertheless relied on written opinions from his doctors without any further elaboration and did not present testimony from his doctors or other employees at Miracle Mart to support his claim. It is well-established that in a reapplication for disability benefits, a claimant has the ultimate burden of proof to establish a significant change in his compensable medical condition and is responsible for making a record to support his claim. Beckler, 2005 ND 33, ¶ 9, 692 N.W.2d 483; Bachmeier, 2003 ND 63, ¶ 11, 660 N.W.2d 217; Lesmeister, 2003 ND 60, ¶ 22, 659 N.W.2d 350; Gronfur, 2003 ND 42, ¶¶ 6, 11, 658 N.W.2d 337. On this record and under our deferential standard of review, we conclude a reasoning mind could reasonably conclude that Aga failed to establish he sustained a significant change in his compensable medical condition when he reapplied for disability benefits. We therefore conclude WSI’s denial of Aga’s reapplication for benefits is supported by a preponderance of the evidence.

IV

[¶ 18] We affirm the judgment affirming WSI’s order.

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


author: CROTHERS, Justice.

text:
    2006 ND 257
    John Daniel LAWRENCE, aka Dan Lawrence, Plaintiff and Appellant v. Tina Lucille DELKAMP, Defendant and Appellee.
    No. 20060136.
    Supreme Court of North Dakota.
    Dec. 18, 2006.

      Loren C. McCray, Bismarck, ND, for plaintiff and appellant; on brief.
    Tina Lucille Delkamp, pro se, Harrison-ville, MO, defendant and appellee; on brief.
   CROTHERS, Justice.

[¶ 1] John Daniel Lawrence appeals from an Order denying the Demand for Change of Judge, Order on Motion for Contempt and to Amend Judgment, Order Denying Relief from Judgment, and Order Denying the Motion to Amend Order. We affirm the December 30, 2005 Order denying the Demand for Change of Judge. We reverse the January 27, 2006 Order on Motion for Contempt and to Amend Judgment; the subsequently entered fifth amended judgment; the March 3, 2006 Order Denying Relief from Judgment; and the April 12, 2006 Order Denying the Motion to Amend Order, and we remand

with directions to the district court to set a hearing as required on motions for contempt.

I

[IT 2] This is Lawrence’s fourth appeal in his child custody and support determinations against Tina Delkamp, his child’s mother. Lawrence v. Delkamp, 2003 ND 53, 658 N.W.2d 758; Lawrence v. Delkamp, 2000 ND 214, 620 N.W.2d 151; Lawrence v. Delkamp, 1998 ND 178, 584 N.W.2d 515. Delkamp moved to hold Lawrence in contempt and to amend judgment on December 19, 2005 for failing to pay required support for their child’s uncovered healthcare expenses. On December 29, 2005, Lawrence brought a contempt motion against Delkamp, demanded a change of judge, and filed a “Notice of Rule 3.2 Motion.” The last sentence of this notice stated Lawrence “does request a hearing on this Motion.” Lawrence did not have a hearing scheduled when he filed his motion and the notice. Delkamp filed a reply brief on January 9, 2006.

[¶ 3] On January 27, 2006, the district court entered an order mistakenly stating, “Both parties file their motions as 3.2 without requesting a hearing,” and found Lawrence had not paid his child’s uncovered healthcare expenses as required by the third amended judgment. The district court found Lawrence in contempt and ordered remedial sanctions. On January 30, 2006, Lawrence filed a notice of hearing to amend judgment, advising that the hearing requested in his December 29, 2005 Rule 3.2 notice had been set for February 28, 2006.

[¶4] On February 15, 2006, Lawrence filed a motion for relief from the January 27, 2006 order. The motion included a statement that Lawrence had scheduled a hearing for February 28, 2006. Lawrence cancelled the hearing the day it was scheduled to be held. On March 3, 2006, the district court issued an order denying Lawrence’s February 15, 2006 motion for relief from the January 27, 2006 order, stating the court “was prepared for the hearing to rule on the request and the motions of the parties anew if different information came to light.”

[¶ 5] On March 21, 2006, Lawrence moved to amend the March 3, 2006 order under N.D.R.Civ.P. 59Q'). The court denied Lawrence’s motion to amend the court’s orders of January 27, 2006 and March 3, 2006. Lawrence filed his notice of appeal on May 2, 2006. The fifth amended judgment was filed on June 30, 2006.

II

[¶ 6] We first consider whether this Court has jurisdiction to hear Lawrence’s appeal. Lawrence’s Notice of Appeal purports to appeal from the December 30, 2005 Order denying the Demand for Change of Judge; the January 27, 2006 Order on Motion for Contempt and to Amend Judgment; the March 3, 2006 Order Denying Relief from Judgment; and the April 12, 2006 Order Denying the Motion to Amend Order. Regarding the Order denying the Demand for Change of Judge and the Order denying the Motion to Amend Order, a subsequent judgment was entered on June 30, 2006. Because there was a subsequent consistent judgment entered upon these orders, this appeal is properly before us. Sanderson v. Walsh County, 2006 ND 83, ¶ 4, 712 N.W.2d 842. The Order on Motion for Contempt and to Amend Judgment and the Order Denying the Relief from Judgment were separately appealable without entry of judgment and are properly before us. See N.D.C.C. § 27-10-01.3(3) and N.D.RApp.P. 35(a)(2).

III

[¶ 7] Lawrence argues the district court erred in not granting him a hearing pursuant to N.D.C.C. § 27-10-01.3(l)(a) and to N.D.R.Ct. 3.2(a). Section 27-10-01.3(l)(a), N.D.C.C., requires “notice and hearing” on a motion for contempt. The record shows Lawrence gave notice he wanted a hearing under N.D.R.Ct. 3.2(a), but failed to schedule a hearing in a timely manner. Lawrence later scheduled, and subsequently cancelled, that hearing. However, the record is silent on why Lawrence was not afforded his hearing on Del-kamp’s motion, as required by N.D.C.C. § 27-10-01.3(l)(a).

[¶ 8] A person may waive the rights and privileges to which that person is legally entitled, whether secured by contract, conferred by statute, or guaranteed by the constitution. Toni v. Toni, 2001 ND 193, ¶ 10, 636 N.W.2d 396. “A waiver occurs when a person voluntarily and intentionally relinquishes a known right or privilege.” Pfeifle v. Tanabe, 2000 ND 219, ¶ 18, 620 N.W.2d 167. ‘When parties conduct themselves in a manner which clearly constitutes a waiver, they cannot later claim they did not know their actions amounted to a voluntary and intentional waiver of their rights, because one who consents to an act is not wronged by it.” Gale v. N.D. Bd. of Podiatric Med., 2001 ND 141, ¶ 14, 632 N.W.2d 424.

[¶ 9] Here, Lawrence first scheduled and later cancelled the February 28, 2006 hearing. In his N.D.R.Ct. 3.2(a) motion Lawrence requested but did not establish the date for a hearing. He should have. See N.D.R.Ct. 3.2(a). However, the district court’s decision issued on January 27, 2006, was in error when it stated that both parties filed motions without requesting a hearing. The district court should have observed Lawrence requested a hearing. In addition, Lawrence was entitled to a

hearing under N.D.C.C. § 27-10-01.3(l)(a) on both his and Delkamp’s motions. Before Lawrence received the district court’s decision denying his motion, he dilatorily acted under Rule 3.2 and noticed a hearing on his motion for February 28, 2006.

[¶ 10] The district court placed substantial weight on the fact Lawrence cancelled the February 28 hearing, concluding the cancellation was a waiver of Lawrence’s right to a hearing. Ordinarily, such action on the part of the movant would constitute a waiver. Under the facts of this case, however, we cannot conclude there was a voluntary, knowing waiver. The motion for relief from the January 27 order stated:

Comes now the Plaintiff, John Daniel Lawrence, by and through his attorney, Loren McCray, and hereby moves the Court for relief from the order dated January 27, 2006, on the basis that Lawrence requested a hearing on both his and the Defendant’s motions at the time he filed his return and motion. A hearing for Tuesday, February 28, 2006, was already scheduled at the time the Court’s order was signed. The request for hearing is contained in the Rule 3.2 Notice of Motion as well as the letter enclosing the documents to the clerk.

We read Lawrence’s motion as an explanation to the district court that Lawrence had in fact requested the hearing, contrary to the district court’s statement in its January 27 order that Lawrence had not requested a hearing. We do not believe the motion can be fairly read as a notice that a hearing was scheduled on the motion for relief. Having heard nothing from the district court subsequent to its order and the filing of the motion for relief, Lawrence justifiably cancelled the hearing believing the district court had ruled and would take no further action. The district court apparently assumed Lawrence knew it was prepared to reconsider its orders at the hearing on February 28, because the March 3, 2006 order denying the motion for relief stated:

The Court did not act on the [motion for relief from the January 27 order] and was prepared for the hearing to rule on the request and the motions of the parties anew if different information came to light. Shortly before the hearing on [sic] set for February 28, 2006, counsel for Lawrence contacted the clerk of court and cancelled the hearing.
As the hearing was cancelled by Lawrence the Court denies the motion for relief and the Order of January 27, 2006, stands.

[¶ 11] Nothing in the record indicates the court, after it mistakenly believed Lawrence had not requested a hearing, informed Lawrence the court was willing to reconsider its actions. The court subsequently indicated it would do so “if different information came to light.” Lawrence should not have been required to provide new information to obtain the hearing he requested in the first instance and, more importantly, to which the statute entitled him.

[¶ 12] Although there were procedural irregularities on the part of both Lawrence and the court, we conclude under the facts of this case that Lawrence had a right to be heard unless there was some indication the irregularities were designed to mislead the court. Unfortunately, the actions here by Lawrence and the district court appeared to have misled each other unintentionally. We therefore reverse the district court’s order and the subsequently entered fifth amended judgment.

rv

[¶ 13] Lawrence’s notice of appeal includes his appeal from the December 30, 2005 Order denying the Demand for Change of Judge. Lawrence did not brief that issue before this Court. “Issues not briefed by an appellant are deemed abandoned.” Anderson v. Heinze, 2002 ND 60, ¶ 12, 643 N.W.2d 24 (quoting Murchison v. State, 1998 ND 96, ¶ 13, 578 N.W.2d 514). Lawrence therefore abandoned his appeal of the demand for change of judge issue.

V

[¶ 14] We affirm the December 30, 2005 Order denying the Demand for Change of Judge. We reverse the January 27, 2006 Order on Motion for Contempt and to Amend Judgment; the subsequently entered fifth amended judgment; the March 3, 2006 Order Denying Relief from Judgment; and the April 12, 2006 Order Denying the Motion to Amend Order, and we remand with directions to the district court to set a hearing as required on motions for contempt.

[¶ 15] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, and DALE V. SANDSTROM, JJ., and LAWRENCE A. LECLERC, Surrogate Judge, concur.

[¶ 16] The Honorable LAWRENCE A. LECLERC, Surrogate Judge, sitting in place of KAPSNER, J., disqualified.


author: SANDSTROM, Justice.

text:
    2006 ND 256
    STATE of North Dakota, Plaintiff and Appellee v. Brant WARDNER, Defendant and Appellant.
    No. 20060014.
    Supreme Court of North Dakota.
    Dec. 18, 2006.

      Ross L. Sundeen, State’s Attorney, Wat-ford City, N.D., for plaintiff and appellee; submitted on brief.
    Paul H. Myerchin, Bismarck, N.D., for defendant and appellant; submitted on brief.
   SANDSTROM, Justice.

[¶ 1] Brant Wardner appeals the district court’s second amended criminal judgment revoking his probation and imposing the originally suspended seven-year prison sentence for gross sexual imposition with his four-year-old stepdaughter. Holding that the requirement for a presen-tenee investigation and report was met and that Wardner had been advised of the proscribed conduct, we affirm.

I

[¶2] In 2001, Wardner pled guilty to gross sexual imposition with a four-year-old child, a class A felony under N.D.C.C. § 12.1-20-03(l)(d). The plea was the result of a written plea agreement. The district court ordered a presentence investigation and report. After receiving this first presentence investigation, the district court accepted the plea agreement and suspended the execution of a seven-year sentence, placed Wardner on supervised probation, and ordered outpatient sexual abuse treatment at the Badlands Human Service Center.

[¶ 3] In August 2001, Wardner began treatment at the Human Service Center. In December 2004, the Center expelled Wardner for mistreating the staff and disrupting group therapy sessions. The State moved to revoke his probation for his failure to complete the treatment. At the revocation hearing in February 2005, Wardner admitted the violation. The district court found a factual basis for the admission, accepted it, and ordered a second presentence investigation. The district court also ordered a psychological evaluation of Wardner and a dispositional hearing upon its completion.

[¶ 4] In April 2005, the probation division submitted a second presentence investigation report to the district court. In August 2005, the district court held a “sentencing hearing” and again suspended execution of the seven-year sentence, adding more probation conditions:

2.
B. The Defendant shall not be allowed under any circumstances to live with any child under the age of ten years old, including his own children, unless authorized by his Parole/Probation Officer.
C. The Defendant shall receive psychological treatment for his sexual de-viancies....
D. That Defendant’s contact with his children should be monitored in a ivay to ensure the children’s safety. All contacts should be in conjunction with a safety plan put in place by his psychologist, his faith-based treatment provider and Parole/Probation officer.

(emphasis added). Appendix “A” to the criminal judgment restricted interaction with children:

25. You shall not initiate, establish or maintain contact directly or indirectly, with any child under the age of 18, or attempt to do so, except under circumstances approved in advance and in writing by your Probation Officer.
28. [You may not] go to or loiter near schoolyards, parks, playgrounds, arcades, or other places primarily used or visited by minors.
29. [You may not] obtain employment with any agency or place of business that provides services for the care or custody of minors....
33. [You may not] date or socialize with anybody who has children under the age of 18 years besides your wife, unless pre-authorized by your parole/probation officer.

[¶ 5] In October 2005, the State again moved to revoke Wardner’s probation when it learned that he had had contact at church with his previous victim. In December 2005, the district court held a revocation hearing and found Wardner violated condition 2D of his probation for failing to have an approved safety plan in place before having contact with children. The district court revoked Wardner’s probation and imposed the seven-year prison sentence.

[¶ 6] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. This appeal is timely under N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const. art. VI, § 2, and N.D.C.C. § 29-28-06.

II

[¶ 7] Wardner argues the district court erred by not ordering another presentence investigation and a risk assessment before imposing the previously suspended seven-year prison term in December 2005.

[¶ 8] Generally, a district court may order a presentence investigation and report at any time, but is not required to do so. N.D.R.Crim.P. 32(c)(1). Section 12.1-32-02(11), N.D.C.C., however, provides:

Before sentencing a defendant on a felony charge under section 12.1-20-03 ..., a court shall order the department of corrections and rehabilitation to conduct a presentence investigation and to prepare a presentence report. A presen-tence investigation for a charge under section 12.1-20-03 must include a risk assessment. A court may order the inclusion of a risk assessment in any pre-sentence investigation....

Wardner argues that “sentencing” includes revocation of probation and that the district court was required to order a new presentence investigation and risk assessment before it revoked his probation and imposed the previously suspended seven-year prison term. Wardner also argues that if the presentence investigation was not mandatory, the information in the two existing presentence investigation reports was stale, so the district court was required to order another presentence investigation prior to imposition of the seven-year prison sentence. The State argues there was no right to an additional presen-tence investigation, and if there was, Wardner waived it by agreeing to proceed directly to sentencing.

[¶ 9] The interpretation of a statute is a question of law, which is fully reviewable on appeal. State v. Stavig, 2006 ND 63, ¶12, 711 N.W.2d 183. ‘Words used in any statute are to be understood in their ordinary sense, unless a contrary intention plainly appears, but any words explained in this code are to be understood as thus explained.” N.D.C.C. § 1-02-02. “When the wording of a statute is clear and free of all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” N.D.C.C. § 1-02-05.

[¶ 10] “Sentencing” is “the determination of the sentence.” 1 La Fave, Israel & King, Criminal Procedure § 1.3(r) (2d ed.1999). In ordinary terms, “sentencing” means “to pronounce judgment or punishment upon (a convicted person); condemn (to a specified punishment).” Webster’s New World Dictionary 1297 (2d ed.1980).

[¶ 11] “Resentencing” is the “act or an instance of imposing a new or revised criminal sentence.” Black’s Law Dictionary 1309 (7th ed.1999); see, e.g., Peltier v. State, 2003 ND 27, 1113, 657 N.W.2d 238 (referring to a district court’s “resentencing” to a harsher sentence after revocation of probation); Davis v. State, 2001 ND 85, ¶ 11, 625 N.W.2d 855 (“Under N.D.C.C. § 12.1-32-07(6), a trial court is authorized to resentence a defendant who violates a condition of probation to any sentence that was initially available.... ”). The term “resentencing” also applies to a district court’s sentencing on remand from appellate review. 5 LaFave, et al., Criminal Procedure § 26.7(b) (2d ed.1999); State v. Trieb, 533 N.W.2d 678, 681 (N.D.1995).

[¶ 12] In this context, “before” means “prior to.” Webster’s New World Dictionary 127 (2d ed.1980).

[¶ 13] The statute, N.D.C.C. § 12.1-32-02(11), requires that a presen-fence investigation in cases of gross sexual imposition be conducted before sentencing. By definition, sentencing is prior to resen-tencing. In this case a presentence investigation was conducted prior to — before— sentencing, and the plain language of the statute has been complied with.

[If 14] We recognize that some states— such as California — require new or updated presentence investigations before re-sentencing. See People v. Dobbins, 127 Cal.App.4th 176, 24 Cal.Rptr.3d 882, 884-85 (2005); People v. Hess, 241 Ill.App.3d 276, 182 Ill.Dec. 68, 609 N.E.2d 371, 376 (1993); State v. Triplett, 407 Mich. 510, 287 N.W.2d 165, 165-66 (1980). The North Dakota Legislature has not chosen to do so.

[¶ 15] The district court complied with the statute.

Ill

[¶ 16] Wardner argues that condition 2D of his probation contains ambiguous terms, making the approved safety plan optional, and that his actions did not rise to “contact” under the condition. In the alternative, Wardner argues that his probation revocation was unwarranted for such “a de minimus” violation caused by his attending church and sitting with his wife and children, including his victim. The State argues, and the district court found, that Wardner violated condition 2D because he had not obtained an approved safety plan prior to attending the church where he knew his victim and other children attended. The district court revoked Wardner’s probation and imposed the previously suspended seven-year prison sentence set forth in the plea agreement.

[¶ 17] In an appeal of probation revocation, we first review the district court’s factual findings and then review the district court’s decision to revoke probation. State v. Causer, 2004 ND 75, ¶ 30, 678 N.W.2d 552, cert. denied, 543 U.S. 906, 125 S.Ct. 139, 160 L.Ed.2d 182 (2004).

[¶ 18] Although due process protection applies, “[probation revocation, like parole revocation, is not a stage of a criminal prosecution.” State v. Olson, 2003 ND 23, ¶ 14, 656 N.W.2d 650 (citing Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973)). Consequently, a probationer facing revocation has limited rights. Olson, at ¶ 14 (internal citation omitted); see, e.g., State v. Schlosser, 202 N.W.2d 136, 139 (N.D.1972) (holding that a probationer’s Fourth Amendment rights were limited by that status). In State v. Ennis, this Court summarized those rights:

The probationer is entitled to written notice of the claimed violations of his probation; disclosure of the evidence against him; an opportunity to be heard in person and to present witnesses and documentary evidence; a neutral hearing body; and a written statement by the factfinder as to the evidence relied on and the reasons for revoking probation.

464 N.W.2d 378, 384 (N.D.1990) (citation omitted). When revocation is contested, the State need only prove a probation violation by a preponderance of the evidence. N.D.R.Crim.P. 32(f)(3)(B). “ 'Given the previous conviction and the proper imposition of conditions, the State has an overwhelming interest in being able to return the individual to imprisonment without the burden of a new adversary criminal trial if in fact he has failed to abide by the conditions of his parole.’ ” Olson, 2003 ND 23, ¶ 14, 656 N.W.2d 650 (quoting Morrissey v. Brewer, 408 U.S. 471, 483, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)).

A

[¶ 19] First, we review the district court’s factual finding of a probation violation under the clearly erroneous standard. Causer, 2004 ND 75, ¶ 31, 678 N.W.2d 552. “A finding of fact is clearly erroneous when it is induced by an erroneous view of the law, when there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence, the court is left with a definite and firm conviction that a mistake has been made.” State v. Oxen, 2006 ND 138, ¶ 11, 717 N.W.2d 593 (citing State v. Nelson, 2005 ND 59, ¶4, 693 N.W.2d 910). The district court determines the credibility of witnesses; therefore, this Court will not substitute its judgment for the district court’s when there is testimony to support its findings. State v. Toepke, 485 N.W.2d 792, 795 (N.D.1992).

[¶ 20] The condition at issue on appeal, taken from the second presentence investigation and expressed in paragraph 2D of the district court’s judgment rendered on August 5, 2005, required:

[t]hat Defendant’s contact with his children should be monitored in a way to ensure the children’s safety. All contacts should be in conjunction with a safety plan put in place by his psychologist, his faith-based treatment provider and Parole/Probation officer.

(emphasis added). At the revocation hearing in December 2005, the probation officer testified that she did advise Wardner concerning condition 2D:

it was August 22nd, and Brant and I spoke on the telephone, and I had talked with him specifically and advised him that he’s not to have any contact — any further contact with his kids until we get a safety plan approved by me and by his psychiatrist unless he wanted to go to the Family Connections. [Wardner] refused to go through the Center and agreed that he would not have any contact with his kids. That was through a phone conversation on the 22nd.
I said what was in place before the revocation is no longer. There is no contact with your kids now. You’re not to have any contact with your kids, and then at that point, I gave him the option of the Family Resource Center. That that would be a third party supervised visit. . . .

The probation officer testified that during an office visit on August 26, 2006, Wardner requested permission to attend church “with his family.” The probation officer testified that she granted the request believing that “family” meant only Wardner’s parents and again warned Wardner to avoid contact with children:

[Probation Officer:] During that meeting, [Wardner] had asked if he could go to church with his family, and his family had always been his parents. I never — • I never knew — I don’t know if I can say this or not — but I didn’t know that their church had only one service, and I didn’t find that out until after he was released on bond, so when I approved him to go to church with his family, which I thought was his parents, I was also apparently giving him authorization to go to church with his children, that I was not aware of because it was never made clear to me, Debbie, this is one mass. This is only one time a week, and [Wardner’s] children go to this service. I was not aware of that until after the bond release.
I told him I can’t prohibit him from going to church ... so I told him he could go to church as long as we would get a safety plan in place, and that he would follow safety plans for public places, which would be stores, groceries, and to church. Now, I never did get that safety plan until November, so I never had anything that would show me that this was already in place, and able to work with, so that wasn’t an option.

The district court questioned the probation officer about the meaning of “family”:

[Probation Officer]: There was no discussion about what family meant as far as who he would go to church with, but in these same conversations, it was strongly emphasized that he was not to have any contact with his kids. In fact, options were given for him in these same conversations to go to the Family Resource Center to have a third party supervise these visits, so in the same visit I’m saying you can’t have any contact with your kids unless you want to go to this place and have it supervised by a third person. Okay. Change of subject. Can I go to church? Yes, you can go to church. Can I go to church with my family? Yes, you can go to church with your family, but we need to have a safety plan in place. Last one in, first one out. No contact with kids, so you don’t sit by one. If one initiates contact with you, you get up and excuse yourself politely. You leave, so in the realm of the conversation, it’s made clear that he’s not to have any contact with his kids, even so that if he did go to church, he would make sure that he didn’t have contact with other people’s kids.

Wardner did not testify at the December 2005 revocation hearing.

[¶ 21] Wardner argues that because the word “should” was used rather than “must” or “shall,” the terms of condition 2D were optional.

[¶ 22] Interpretation of a condition of probation is a question of law, fully reviewable on appeal. State v. Krous, 2004 ND 136, ¶ 14, 681 N.W.2d 822. Although conditions of probation are to be strictly construed in favor of the offender, State v. Monson, 518 N.W.2d 171, 173 (N.D.1994), conditions of probation are construed as mandatory, not as hortatory, because of the “responsibility to regulate a probationer’s activities to help in his rehabilitation and at the same time to guard against continued criminal behavior.” Schlosser) 202 N.W.2d 136, 139 (N.D.1972).

[¶ 23] That “should” is an auxiliary verb that can have different meanings in some other contexts does not necessarily make it ambiguous in the context of a probation condition. “Should” is the past tense of “shall.” Webster’s New World Dictionary 1318 (2d ed.1980). As an auxiliary verb, it “helps form tenses, aspects, moods, or voices of other verbs, as have, be, may, can, must, do, shall, and will.” Id. at 96. Used as such, it expresses obligation, duty, expectation or future condition. Id. at 1318. “In formal speech the distinctions between should and would are the same as those between shall and will.” Id. Although, in some contexts, “should” can express “mere appropriateness, suitability, or fittingness,” Bryan A. Garner, Dictionary of Modem Legal Usage 628 (2d ed.1995), or even be “hortatory,” Legislative Council, North Dakota Legislative Drafting Manual 2007 97 (2006), the Random House Dictionary explains, “the main function of should in modern American English is to express duty, necessity, etc.” Random House Dictionary of the English Language Unabridged 1771 (2d ed.1987). Furthermore, courts have used “should” and “shall” or “must” interchangeably. See, e.g., Lynn v. State, 251 Ga.App. 155, 553 S.E.2d 836, 837-38 (2001) (denying a new trial when a court instructed the jury that it “should acquit” if it found reasonable doubt as to the defendant’s guilt, rather than stating that the jury “must acquit”); State v. Lovelace, 227 Kan. 348, 607 P.2d 49, 55 (1980) (“[T]he two words [must and should] can be used interchangeably in criminal instructions. Both convey a sense of duty and obligation.”); State v. Redden, 71 Wash.2d 147, 426 P.2d 854, 857-58 (1967) (“the use of the word ‘should’ in the instruction instead of the word ‘must’ ” did not mislead the jury because the court “approved both forms of this instruction on circumstantial evidence”). Of course,

there is great value in making all conditions of release clear and capable of being understood by the offender in order that he knows exactly what is expected of him. When the conditions of probation proscribe acts that are not criminal, due process requires that the probationer receive actual notice that his acts could lead to revocation.

Monson, 518 N.W.2d 171, 173 (N.D.1994) (internal quotations and citations omitted). The question is: “Was the offender given fair notice of the proscribed conduct?” State v. Drader, 432 N.W.2d 553, 555 (N.D.1988).

[¶ 24] The record is replete with admonitions to Wardner by the probation division and the district court regarding the conditions of his probation. Condition 3 of his probation makes clear that condition 2D is mandatory: “If the Defendant fails to fulfill any term or condition set forth above, he shall be returned to the Court for further proceedings to consider revocation of the Court’s order and the immediate imposition of sentence, or penalty, or both.” Furthermore, the condition at issue directly relates to Wardner’s underlying conviction of gross sexual imposition with a child. The proscribed conduct was having contact with children without an approved safety plan. This applied to all situations where contact with children could have occurred, including attending church. That Wardner understood this is evidenced by a fax he sent to his previous attorney on August 29, 2005:

I can now do the following things per the words of [the probation officer]:
1. I can go out into public with out [sic] my parents.
2. I can go to restaurants, golfing, Me-dora, shopping with my wife and friends as long as children are not with us.
3. I can go to church. But I have to submit a safety plan because my wife and I go to the same church.
4. I will and do follow the sentencing agreement.

Wardner also handwrote a safety plan that he dated August 27, 2005:

August 27, 2005
Safety Plan for Church
Per/[Probation Officer]
Arrival/Pre-Church
1. I will either ride w/my parents or drive myself to church
2. During this time I will [illegible] always be in the presence of at least one adult & will never be in a room alone w/a minor.
3. If I do have to leave the room, I let an adult know where I am going (i.e. bathroom)
During Church
1. I will sit with my Parents
2. If I have to leave the sanctuary, I let my parents know where I am going (i.e. bathroom)
After Church
see the “Arrival/Pre-Church[”]
Notes:
I will not go into the Nursery or classrooms.
If I do have contact w/ a minor, I will politely excuse myself and either leave the building or find a group of adults If I do have contact w/ my children, I will acknowledge them & give them attention, but excuse myself [illegible] so it’s convenient.

The record does not reveal what became of this plan other than the probation officer’s testimony that she “never did get that safety plan until November [2005,] a month after Wardner had contact with his victim. Wardner did not ask for permission to attend just any church. Wardner asked to attend the church he knew his family attended, which had only one weekly service. As the district court found, Wardner “knew he was not supposed to go without a safety plan [and he] went without a safety plan.”

[¶ 25] Wardner also argues that “contacts” is ambiguous, although he used that word in his handwritten safety plan and checked the box marked “yes” on his monthly probation report that asked: “If victims were involved in your case, did you have any contact with them.” In State v. Monson, we addressed the meaning of “contacts” used in the context of a sexually-based offense, and applied the ordinary definition of that word as “ ‘[t]he coming together or touching of two objects’ or ‘[t]he state of being in communication.’ ” 518 N.W.2d 171, 173 (N.D.1994) (quoting American Heritage Dictionary 315 (2d College ed.1985)). In that case, we reversed the district court’s finding that Monson violated the “no-contact” condition of his probation when he attended a basketball game in which his victim was a player. Monson, 518 N.W.2d at 174. Construing the probation condition strictly against the government, we reasoned that because the probation officer advised Mon-son that attending the same church as the victim would not violate his probation, without further guidance or instruction, it was reasonable for Monson to conclude that he could attend his victim’s basketball game. Id. Although Monson appears to be similar to this case, it is easily distinguishable. Wardner did receive those “more specific instructions” required but found fatally missing by the Monson Court. Id. (“Without more specific instructions to Monson, Monson’s belief that he could attend the victim’s basketball games was not unreasonable under the circumstances.”). Wardner’s no-contact condition required him to obtain an approved safety plan prior to any potential encounter with children. Wardner could attend any church, including that of his victim, but had to have a plan, tailored to the specific circumstances of the event, to avoid violating condition 2D. More damaging to Wardner’s argument is that the Monson Court construed Monson’s no-contact condition to mean “to touch or to communicate.” Id. (“Therefore, we must construe the no-contact condition in favor of Monson and according to the ordinary meaning of ‘contact,’ to touch or to communicate.”). At the December 2005 revocation hearing, the district court questioned the probation officer about the type of “contacts” Wardner had with his children at church:

[Probation Officer]: He said that he would come to church with his — parents — with his parents, and that [his wife] and the kids would come in shortly thereafter and join them, and that they would have their opening services, and then the children would leave for Bible study or something, somewhere else in the church. That they would join him near the end of services, and then he never said if they left directly from there or if they had any further contact after that, so I don’t know exactly how much time he spent with his children. I would assume it would be a short period of time.
THE COURT: What is — did he explain what “joining him” meant?
[Probation Officer]: I assumed it was to join him like in the same pew. I think he might have said that. That they come in, and they join him and his parents sitting there, and then his children go off and go into theirs, and then come back at the end of services.

The potential for Wardner to “touch or communicate” with his victim while sitting next to her in a church pew far exceeds that same potential when the offender sits in the stands at a basketball game where the victim is a player. Moreover, the violation at issue here goes more toward the absence of a safety plan “put in place by his psychologist, his faith-based treatment provider and Parole/Probation officer” than what contact Wardner had or could have had at church. The meaning or context of “contacts” would have likely been defined in that plan; however, Wardner asked for permission to attend church without having any of the required probation authorities or mental health professionals review his self-created plan. The district court’s factual finding of a probation violation was not clearly erroneous.

B

[¶ 26] Next, we apply the abuse-of-discretion standard to review the district court’s decision that revocation of probation was warranted. Causer, 2004 ND 75, ¶ 32, 678 N.W.2d 552. A district court abuses its discretion when it acts in an arbitrary, unreasonable, unconscionable, or capricious manner, or if its decision is not the product of a rational mental process leading to a reasoned determination, or if it misinterprets or misapplies the law. State v. Clark, 2001 ND 194, ¶ 8, 636 N.W.2d 660; State v. Kensmoe, 2001 ND 190, ¶ 7, 636 N.W.2d 183.

[¶ 27] The district court imposed the seven-year prison sentence provided in the written plea agreement after Wardner had violated the conditions of his probation for the second time. First, he was expelled from the Center. Second, he had contact with children, including his victim, without an approved safety plan. Furthermore, a district court is allowed the widest range of discretion in sentencing, and appellate review of the sentence itself focuses only on whether the district court “acted within the limits prescribed by statute, or substantially relied on an impermissible factor.” State v. Ennis, 464 N.W.2d 378, 382 (N.D.1990). The district court sentenced Wardner to seven years’ imprisonment, within the statutory limit of 20 years and consistent with the written plea agreement. The district court sentenced Wardner within the limits of N.D.C.C. § 12.1-32-01(2). Nothing in the record indicates the district court relied on an impermissible sentencing factor. The district court did not abuse its discretion.

IV

[¶ 28] We affirm the second amended criminal judgment of the district court.

[¶ 29] GERALD W. VANDE WALLE, C.J., BENNY A. GRAFF, S.J., DANIEL J. CROTHERS, and MARY MUEHLEN MARING, JJ., concur.

[¶ 30] The Honorable BENNY A. GRAFF, Surrogate Judge, sitting in place of KAPSNER, J., disqualified.