STATE v. POPE (2026)

[¶1] John Pope appeals from a criminal judgment entered after the district court revoked his probation and resentenced him to twenty years’ imprisonment, and from an order denying his written objection to the revocation sentence. Pope argues that the court substantially relied on an impermissible sentencing factor—factual allegations drawn from the affidavit of probable cause filed in a joined criminal case that the court had dismissed with prejudice under a plea agreement. We conclude that the factual assertions in the affidavit were not an impermissible sentencing factor, and we affirm.

I

[¶2] In December 2024, the State charged Pope with eight offenses arising out of a series of domestic incidents involving his wife that culminated in a confrontation with responding officers: simple assault on a peace officer, preventing arrest, disorderly conduct, domestic violence, and four counts of terrorizing—domestic violence. While Pope was in custody, the State separately charged him in Burleigh County Case No. 08-2025-CR-01492 with five counts of child abuse. The parties stipulated to joinder of the two cases, and the district court entered an order for joinder.

[¶3] The district court later accepted a binding plea agreement resolving both cases. Pope pled guilty to simple assault on a peace officer and preventing arrest, both class C felonies, and entered Alford pleas to two counts of terrorizing—domestic violence, both class C felonies, and to disorderly conduct, a class B misdemeanor. In exchange, the State stipulated to dismissal, with prejudice, of the three remaining counts in the first case and of all charges in the later-filed child abuse case. The court initially sentenced Pope on the felony counts to concurrent five-year terms followed by two years of supervised probation, with all but 262 days suspended and credit for 262 days served.

[¶4] Three weeks after sentencing, the State petitioned to revoke Pope's probation, alleging that he violated two conditions of his probation by contacting his wife by phone. Pope admitted both allegations at the revocation hearing.

[¶5] The district court revoked Pope's probation and resentenced him to the maximum sentence on each felony count, to run consecutively, for a total of twenty years’ imprisonment. During resentencing, the court made several statements about abuse of Pope's wife and children, including that it believed “there was physical abuse,” that Pope “prevented the children from going to school to hide that abuse,” and that the mental abuse Pope put his wife and children through was “what I call the house of horrors.”

[¶6] Pope filed a written objection to the revocation sentence and moved for a reduction of sentence under N.D.R.Crim.P. 35(b). The district court denied both motions. The court explained that it “took into consider[ation] all the facts in record in this case, including the very detailed Affidavit in this case which describes the extensive abuse of the victim and the children at the hands of the Defendant,” that it “did not consider any facts not in record in this case,” and that this case “was joined with case 08-2025-CR-1492.”

II

[¶7] “A trial court has broad discretion in fixing a criminal sentence.” State v. Gonzalez, 2024 ND 4, ¶ 6, 1 N.W.3d 919. Our review of a criminal sentence is generally confined to whether the court acted within the statutorily prescribed sentencing limits or substantially relied on an impermissible factor in determining the severity of the sentence. Id.; see also State v. Maher, 2026 ND 35, ¶ 7, 31 N.W.3d 619. Pope does not argue that his sentence exceeds the limits prescribed by statute. The only question is whether the district court substantially relied on an impermissible sentencing factor.

III

[¶8] Pope argues that the district court relied on an impermissible sentencing factor when it determined the severity of his revocation sentence on the basis of factual allegations contained in the affidavit of probable cause filed in the joined child abuse case, which the district court had dismissed with prejudice under the plea agreement. He invokes the rule that a pending criminal charge is an impermissible sentencing factor to argue that factual allegations in the dismissed child abuse case are also impermissible. State v. Hoverson, 2006 ND 49, ¶ 35, 710 N.W.2d 890; see also State v. Woodman, 2025 ND 12, ¶ 21, 16 N.W.3d 164. Because the allegations supporting a dismissed charge, like those supporting a pending charge, have never been admitted, proven, or otherwise adjudicated, Pope reasons that if a pending charge is an impermissible sentencing factor, a charge dismissed with prejudice must be impermissible as well.

[¶9] Our cases afford sentencing courts a far wider range of information than the rules of evidence would permit at trial. In State v. Wells, the defendant pled guilty to murder and received an extended sentence of life imprisonment as a dangerous special offender. 265 N.W.2d 239 (N.D. 1978). On appeal, he argued that the sentencing hearing was in substance a trial, entitling him to a jury, to confrontation of the witnesses against him, and to a sentence based only on admissible evidence. Id. at 241. This Court rejected each contention, explaining that a sentencing judge “should be allowed the widest possible range of information to assist him in the exercise of his discretion in fixing sentences within statutory and constitutional limitations.” Id. at 243 (discussing Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949)). Wells cataloged how far that range extends:

Inadmissible evidence may be considered in sentencing. Williams v. New York, supra; Williams v. Oklahoma, supra. The court may even consider evidence as to crimes of which the defendant was acquitted (United States v. Sweig, 454 F.2d 181, 184 (2d Cir. 1972)), arrests which did not result in convictions (City of Dickinson v. Mueller, 261 N.W.2d 787 (N.D. 1977); Houle v. United States, 493 F.2d 915 (5th Cir. 1974)), and criminal conduct as to which no charge has been made (United States v. Johnson, 507 F.2d 826 (7th Cir. 1974), cert. denied, 421 U.S. 949, 95 S.Ct. 1682, 44 L.Ed.2d 103 (1975)).

Wells, 265 N.W.2d at 242–43 (cleaned up).

[¶10] The rules of evidence reflect the same design: except for privileges, they do not apply in sentencing proceedings. N.D.R.Ev. 1101(d)(3)(D)-(E); Wells, 265 N.W.2d at 243; State v. Hamilton, 2023 ND 233, ¶ 11, 999 N.W.2d 214. Character reference letters illustrate the point. Sentencing courts routinely consider letters submitted at sentencing although nothing in the rules of evidence ensures their reliability. See Woodman, 2025 ND 12, ¶ 22 (sentencing court considered character letters among the information before it); State v. Glasser, 2021 ND 60, ¶ 2, 956 N.W.2d 373. In Glasser, the defendant filed twenty-six character reference letters in support of his request for leniency, three of them forged, and the district court considered the letters in determining the sentence. Id. ¶¶ 2 –3. The forgery did not render the sentence illegal under N.D.R.Crim.P. 35(a), and once the sentence became final, the district court was without authority to amend it. Id. ¶¶ 8, 11–12. The remedy ran through a separate prosecution: the defendant pled guilty to three counts of forgery. Id. ¶ 4. The permissibility of sentencing information does not turn on whether its reliability has been tested by the safeguards that govern a trial. We are not persuaded by Pope's citation to decisions governing the procedural-error framework for deviation from federal sentencing guidelines. See United States v. Richey, 758 F.3d 999 (8th Cir. 2014).

[¶11] Hoverson states a narrow exception to this broad permissibility, and the exception rests on constitutional grounds rather than evidentiary reliability. A sentencing court may not penalize a defendant for exercising a constitutional right. Hamilton, 2023 ND 233, ¶ 12, 999 N.W.2d 214 (citing State v. Hass, 268 N.W.2d 456, 463–64 (N.D. 1978) (holding it is impermissible to penalize a defendant for standing trial or remaining silent)). A pending criminal charge is an impermissible factor because the defendant still faces adjudication on that charge: he retains the presumption of innocence, and a court that increases a sentence based on the pending charge burdens his constitutionally protected right to a trial by jury in the live proceeding. See Hoverson, 2006 ND 49, ¶ 37, 710 N.W.2d 890 (discussing State v. Smith, 238 N.W.2d 662, 671–73 (N.D. 1976), overruled on other grounds by State v. Himmerick, 499 N.W.2d 568, 571–72 (N.D. 1993)).

[¶12] That concern is absent here. When the district court sentenced Pope on revocation of his probation, the child abuse charges were no longer pending. They had been dismissed with prejudice on the State's motion as a negotiated term of a plea agreement that Pope voluntarily accepted, not because of any adjudicated failure of proof; Pope does not contend that probable cause was lacking in the child abuse case. Those charges will never be tried, and the court's consideration of the factual assertions in the supporting affidavit could not burden a right to trial on them. The allegations the district court considered were part of the record in this case. The child abuse case was joined with this case, and the affidavits of probable cause filed in both cases were before the court. A sentencing court may rely on the evidence of record and the reasonable inferences that evidence supports. Hamilton, 2023 ND 233, ¶ 11, 999 N.W.2d 214; Hoverson, 2006 ND 49, ¶¶ 38–42, 710 N.W.2d 890.

[¶13] Pope's a fortiori argument—that if a pending charge is impermissible, then the factual assertions in an affidavit of probable cause from a dismissed case must surely be impermissible—misunderstands the basis of the pending-charge rule. The argument holds only if both cases lie on the same scale and the second is the stronger instance; Pope assumes that scale is how far the allegations fall short of proof. The rule does not rest on the unproven character of the allegations; Wells makes clear that unproven and even inadmissible information is the ordinary stuff of sentencing. The rule rests instead on the danger of punishing a defendant for a charge on which he has yet to face trial. Dismissal with prejudice removes that danger. On the dimension the rule actually measures, a dismissed-with-prejudice charge is not the stronger case for exclusion but the weaker one—the dismissal that Pope treats as aggravating is what eliminates the concern. Even if reliance on the mere fact of a pending criminal charge remains impermissible, the factual assertions in an affidavit of probable cause filed in a joined case whose charges have been dismissed with prejudice are not an impermissible sentencing factor. The district court did not rely on an impermissible factor in sentencing Pope.

IV

[¶14] We affirm the criminal judgment entered on revocation of Pope's probation and the district court's order denying Pope's written objection to the revocation sentence.

Tufte, Justice.

[¶15] Lisa Fair McEvers, C.J. Jerod E. Tufte Jon J. Jensen Douglas A. Bahr Mark A. Friese