N.D. Supreme Court hears dispute over 2022 amended judgment that changed parole eligibility for Brian Ericstead

The North Dakota Supreme Court heard oral argument on an appeal challenging a May 2022 amended judgment that recalculated defendant Brian Ericstead's remaining life expectancy and, the appellant says, pushed back his earliest parole eligibility.

Appellant counsel Kara Kraussbar argued the amended judgment was entered without notice and therefore violated Ericstead's due process rights and the court's jurisdictional limits. "There was really no notice given to the defendant in this case. There was no opportunity to be heard," Kraussbar told the court, adding that the Department of Corrections and Rehabilitation (DOCR) had sent a memo to the clerk on May 9, 2022 and a proposed amended judgment appeared in the file by May 17, 2022.

The argument hinged on three legal questions: whether the district court lost jurisdiction under the 120‑day limitation for certain corrections (Rule 35), whether applying a mortality table promulgated later created an ex post facto increase in punishment, and whether the amended judgment was an improper procedural step by DOCR rather than a party with authority to move the court.

Julie Lawyer, representing Burley County and the state, told the court that the underlying sentence "never changed even with the amended judgment that was filed in 2022. The sentence has always been life with the possibility of parole plus 10 years." Lawyer said the practical question was what number DOCR would use to determine parole eligibility. She noted the 1997 statutory language required that a life sentence's remaining life expectancy be calculated "by reference to a recognized mortality table as established by rule by the Supreme Court," and that the Supreme Court's rule implementing that table (referred to by counsel as Rule/AR 51) was promulgated with an effective date of February 2005.

Kraussbar told the justices that before the court adopted a mortality table in 2005, district courts effectively could not comply with the statutory prescription and frequently proceeded using the 30‑year floor in the double‑A felony penalty structure. Applying a mortality table retroactively, she argued, increased parole ineligibility and could raise ex post facto concerns if it extended the period before the defendant could be considered for parole.

Justices pressed both lawyers on finer points: whether the 85% statutory requirement attached to the life sentence as imposed at the original sentencing, whether an oral pronouncement that a defendant would be eligible for parole in his late 50s constituted a binding part of the sentence, and whether DOCR's internal need for a numeric life expectancy to input into its systems gave it standing to prompt an amended judgment. The parties also discussed a prior post‑conviction relief filing in 2015 that had been dismissed as time‑barred; counsel for the state said the DOCR memo had been filed in the court record and addressed to defense counsel and the state, but the record did not show a certificate of service that the amended judgment itself had been mailed directly to the defendant.

Counsel disputed whether the 2022 action was a jurisdictional error removable only if timely raised or a correctable matter because the statute required calculation of life expectancy. Julie Lawyer argued that correcting a sentence that omitted a statutory life expectancy determination is an exercise of the court's authority to correct an illegal sentence at any time. Kraussbar countered that the district court lacked jurisdiction to change a sentence after the limitation period when the original sentence was lawful as pronounced and when the defendant had not received meaningful notice.

The court did not resolve the issues at argument. The justices took the case under advisement; the court does not announce decisions at oral argument and issues written opinions later.

Background details in the record: the conduct at issue occurred in September 1998; the conviction followed a jury trial in October 1999; the district court later imposed a life sentence with the possibility of parole and a consecutive 10‑year term; DOCR sent a memorandum to the clerk in May 2022 requesting a calculated life expectancy; a proposed amended judgment was filed in the court file on May 17, 2022; and the Supreme Court rule establishing a mortality table (referred to in argument as AR 51) shows an effective date in February 2005. A prior post‑conviction relief proceeding filed in 2015 was dismissed as untimely, according to the record.

The Supreme Court will issue a written decision resolving whether the 2022 amended judgment was procedurally and constitutionally proper, whether the mortality table may be used to calculate life expectancy for sentences imposed before the table's creation, and whether the defendant received adequate notice to preserve the claim.