North Dakota v. JohnsAnnotate this Case
In 2018, the State charged Joe Johns with unlawful possession of drug paraphernalia as a class C felony second offense under N.D.C.C. 19-03.4-03(2), which enhanced the charge from a class A misdemeanor to a class C felony if the person previously has been convicted of an offense under N.D.C.C. title 19. The criminal information alleged that on August 29, 2018, Johns used or possessed with intent to use a glass smoking device for use with methamphetamine and that he “has a prior conviction in case no. 08-2016-CR-00295.” Johns conditionally pled guilty after the district court denied his motion to dismiss a charge for unlawful possession of drug paraphernalia as a class C felony second offense. Johns argued on appeal he did not have a prior conviction for enhancement purposes because a deferred imposition of sentence for a prior charge under N.D.C.C. title 19 resulted in a dismissal of that charge. The North Dakota Supreme Court concurred: the language of N.D.C.C. 19-03.4-03(2), authorized enhancement for unlawful possession of drug paraphernalia “[i]f a person previously has been convicted of an offense under this title, other than an offense related to marijuana.” That language, when read together with N.D.C.C. sections 12.1-32-02(4) and 12.1-32-07.1 and the Court’s decision in North Dakota v. Nelson, 2019 ND 204, referred to a conviction for a deferred sentence that had not been dismissed. Johns’ prior case had been dismissed. Therefore, the court could not consider Johns’ prior conviction to enhance the charge in this case. The Court reversed and remanded to allow Johns to withdraw his conditional guilty plea to the enhanced charge.