STATE v. BAKER (2026)

[¶1] Kedrick Baker appeals from a criminal judgment entered after a jury found him guilty of gross sexual imposition (“GSI”), attempted GSI, felonious restraint, and preventing arrest. He argues his sentence is illegal because it violates his double jeopardy rights and does not account for good time credit he earned. We hold Baker's double jeopardy rights were violated when he received multiple sentences for the GSI charges. We also hold Baker was not eligible to earn good time credit before he was sentenced. We vacate Baker's sentence for the attempted GSI conviction and affirm the judgment in all other respects.

I

[¶2] The State alleged Baker sexually assaulted a woman near the Red River in Fargo. The State charged Baker with GSI by sexual contact, attempted GSI by sexual act, felonious restraint, and preventing arrest. The case proceeded to trial, where the victim testified Baker forced her to the ground, pulled down her pants, placed his weight on top of her, and unsuccessfully attempted to insert his penis into her anus. The district court instructed the jury on the elements of each offense. The instructions did not specify the underlying act forming the basis for each charge but instead instructed the jury to unanimously agree on which specific act constituted each offense. The jury returned guilty verdicts on each count.

[¶3] At the sentencing hearing, Baker objected to imposition of punishment for both GSI and attempted GSI, stating: “I would argue that I do not believe that the jury instructions, and ultimately, the jury verdict really parsed out the difference between the two, and therefore, my argument is that he can be convicted on both, but only sentenced on one of those two counts.” The State responded: “[W]e're asking that they be run concurrent, and it was in the State's argument—closing argument, and it had it in its PowerPoint defining what the specific acts were.”

[¶4] The State also requested the district court include 46 days of good time credit in the judgment. The court noted Baker had disciplinary issues while incarcerated and asked: “[W]hy would I give him good time when he hasn't earned it by his conduct?” The State responded:

Your Honor—the reason that I put good time credit in there is per the Cass County Jail policy. They have not indicated, and I have not necessarily asked, if good time had been revoked for any of that time, so I am unaware of exactly how much good time he has—it has been my experience in the past that they don't often revoke good time credit, so I just erred on the side of caution and put it in my recommendation in case that's how the jail has decided to do it.

I believe if this court did not want to impose good time, it would not have to do so, but the reason the State put it in there is because there was no number provided in the PSI or elsewhere of how much good time he has earned.

[¶5] The district court imposed a sentence that included concurrent 20-year terms of imprisonment with probation for the GSI and attempted GSI convictions. The court also imposed additional prison time for the other counts. The court decided not to include the State's recommended good time credit calculation. The judgment states: “The Court does not award any good time credit up to the date of Judgment. The Court does not prohibit sentence reduction for good conduct, if earned, going forward.” Baker appeals.

II

[¶6] The State asserts Baker forfeited his double jeopardy claims because he did not raise them in the district court. The State argues we should not address the arguments on appeal because Baker does not assert an obvious error occurred. See State v. Davis, 2026 ND 48, ¶ 6, 31 N.W.3d 890 (“This Court may decline to consider an argument under obvious error review unless the appellant argues the issue under that standard of review in the briefs.”). Baker's appellate brief suggests his convictions should be overturned, but at oral argument he clarified obvious error review was not applicable because he was challenging his sentences. “[A]n objection is unnecessary to preserve a claim of illegal sentence imposed in a criminal judgment from which an appeal may be immediately taken.” State v. Thomas, 2020 ND 30, ¶ 16, 938 N.W.2d 897. “This Court will review an illegal sentence claim even when the defendant did not raise the argument below by objecting at sentencing or through a motion under N.D.R.Crim.P. 35(a).” State v. Roller, 2024 ND 180, ¶ 21, 11 N.W.3d 864. A forfeiture has not occurred and obvious error review does not apply because Baker's challenges are limited to the legality of his sentences.

III

[¶7] Baker argues his right against double jeopardy was violated in two ways. He asserts he received a duplicative punishment because the GSI and attempted GSI charges are based on the same criminal conduct. He also argues felonious restraint is a lesser-included offense of the attempted GSI charge.

[¶8] The Fifth Amendment of the United States Constitution and Article I, § 12 of the North Dakota Constitution prohibit the State from placing a person in jeopardy more than once for a crime. See also N.D.C.C. § 29-01-07 (codifying the double jeopardy prohibition). The double jeopardy clauses prohibit successive prosecutions for the same criminal offense. State v. Moos, 2008 ND 228, ¶ 13, 758 N.W.2d 674. They also protect against imposition of multiple punishments for a single offense. Id. “An indictment is multiplicitous if it charges the same crime in two counts.” State v. Studhorse, 2024 ND 110, ¶ 39, 7 N.W.3d 253 (quoting United States v. Chipps, 410 F.3d 438, 447 (8th Cir. 2005)).

The “question whether punishments imposed by a court after a defendant's conviction upon criminal charges are unconstitutionally multiple cannot be resolved without determining what punishments the Legislative Branch has authorized.” Whalen v. United States, 445 U.S. 684, 688, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). The question is ultimately one of legislative intent, and if the “legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the ‘same’ conduct under Blockburger [v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932)], a court's task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.” Missouri v. Hunter, 459 U.S. 359, 368–69, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). If, however, the legislature “intended that there be only one offense—that is, a defendant could be convicted under either statutory provision for a single act, but not both—there would be no statutory authorization for” multiple convictions or punishments “and that would end the double jeopardy analysis.” Garrett [v. United States, 471 U.S. 773,] 778, 105 S.Ct. 2407[, 85 L.Ed.2d 764 (1985)].

Moos, ¶ 13; see also Peterka v. State, 2015 ND 156, ¶ 9, 864 N.W.2d 745 (discussing the Blockburger test). This Court applies the de novo standard of review to constitutional issues, including double jeopardy claims. State v. Kollie, 2023 ND 152, ¶ 19, 994 N.W.2d 367.

A

[¶9] Baker argues a double jeopardy violation occurred because the GSI and attempted GSI sentences are multiplicitous. He claims the sentences are multiplicitous because they are based on the same criminal act and, consequently, he is being punished twice for the same conduct. The State asserts Baker's sentences are not multiplicitous because the conduct forming the basis for each charge is different.

[¶10] A person cannot be punished multiple times for a single offense, Moos, 2008 ND 228, ¶ 13, 758 N.W.2d 674, but a person may be guilty of multiple counts of the same offense when the convictions arise from different acts. See State v. Sievers, 543 N.W.2d 491, 498 (N.D. 1996) (“Since Sievers's convictions rested on two separate sexual acts, his double jeopardy argument is meritless.”). A person commits GSI when he or she compels another by threat or force to engage in sexual contact or a sexual act. N.D.C.C. § 12.1-20-03. The term “sexual contact” includes touching of sexual or intimate parts of the body, including penile ejaculation, for the purpose of satisfying sexual desires. N.D.C.C. § 12.1-20-02(5). The term “sexual act” includes sexual contact between the penis and the anus “upon penetration, however slight.” N.D.C.C. § 12.1-20-02(4).

[¶11] The State does not claim N.D.C.C. ch. 12.1-20 authorizes Baker to be punished more than once for the same criminal act. The State instead asserts Baker can be punished multiple times because he committed more than one criminal act. In the State's words, the “rubbing and ejaculation” forming the basis for the sexual contact sentence “was separate and distinct from the attempted penetration that constituted Count 2, attempted gross sexual imposition by sexual act.” Given this framing, resolution of whether the sentences are unconstitutionally multiplicitous requires us to decide whether the conduct underlying each charge is distinct. Decisions issued by the Eighth Circuit Court of Appeals are instructive.

[¶12] In United States v. Plenty Chief, 561 F.3d 846, 853 (8th Cir. 2009), a criminal defendant was charged with attempted sexual abuse of a minor and abusive sexual contact. The conduct forming the basis for the charges occurred during a single incident:

Under the government's theory, Plenty Chief's touching of T.Q.’s breasts and thighs during the 2005 incident constituted the “sexual contact” forming the basis of Count 3, while Plenty Chief's “attempted sexual act” upon T.Q. during the 2005 incident, as alleged in Count 2, was thwarted when T.Q. rolled way [sic] from him, to prevent him from inserting his finger into her vagina ․

Id. at 853. The court explained no double jeopardy violation occurred because “there was sufficient evidence that [Plenty Chief] committed two distinct sex offenses during the assault ․” Id. at 853 (quoting United States v. Bercier, 506 F.3d 625, 634 (8th Cir. 2007)).

[¶13] Another Eighth Circuit Court of Appeals decision demonstrates when a double jeopardy violation occurs. In United States v. Robertson, 606 F.3d 943, 947 (8th Cir. 2010), a defendant was charged with attempted aggravated sexual abuse and attempted abusive sexual contact. The following conduct formed the basis for the charges:

After forcibly removing F.S.’s belt, Robertson pulled F.S.’s pants and underwear down below her knees while she kicked, screamed, and repeatedly told him to stop. Ignoring her protests, Robertson got on top of F.S., who was now lying on her back, and began pushing against her with his body․ Robertson stopped and backed away only after F.S. told Robertson that her dad was going to kill him.

Id. at 948. The court agreed a double jeopardy violation occurred, explaining:

[W]e must determine whether Robertson's actions constituted distinct attempts to cause sexual contact with F.S. by force and to engage in a sexual act with F.S. by force. Robertson clearly attempted to forcibly penetrate F.S.’s vulva, but the trial record contains no evidence that he attempted to touch her breasts or otherwise cause sexual contact apart from his attempt to engage in a single sexual act with her by force. On these facts, we are compelled to conclude that the district court erred in failing to recognize a double jeopardy violation.

Id. at 951.

[¶14] The State argues the sentences in this case were imposed for separate criminal acts. The State relies on its explanation to the jury during closing arguments, where the State explained the different counts to the jury. As to the first count, GSI by contact, the State explained:

They were touching. How do we know that? [The victim] testified up there that he was rubbing up and down along her, right. He was trying to insert himself. He was dry humping her as well. So the contact ․ portion is met. There is the penile ejaculation. She reported that that happened as well.

As to the second count, attempted GSI, the State explained:

Same thing. Now, it's attempted versus the actual act․ He tried to inset [sic] his penis into her butt forcefully against her will—that's attempting a rape. It's different from the first count, because the first count is just the contact. This is trying the actual act of getting his body into hers.

[¶15] Under the theory the State presented to the jury, the attempted “actual act of getting his body into hers” is the same act as the “dry humping.” The State may not punish Baker twice for the same criminal act absent statutory authorization. Baker may have committed another crime if he ejaculated on the victim, which would be a different type of sexual contact. However, on this record, the State cannot demonstrate it satisfied its burden because neither the charging documents, the jury instructions, nor the verdict form specify which act constituted each crime. Baker's double jeopardy rights were violated when he received multiple sentences for the GSI charges because it is possible the jury decided he was guilty of both counts based on the same criminal act.

[¶16] The jury's guilty verdicts demonstrate it found Baker completed the crime of GSI by sexual contact. As charged here, the attempted GSI conviction is an included offense that merges into the completed crime. See N.D.C.C. § 12.1-01-04(15)(a) (stating an included offense may be “established by proof of the same or less than all the facts required to establish commission of the offense charged”); Barrett v. United States, 607 U.S. 128, 146 S.Ct. 482, 491, 223 L.Ed.2d 398 (2026) (stating “all lesser included offenses are the ‘same’ as their greater cousins under Blockburger”); State v. Huber, 555 N.W.2d 791, 797 (N.D. 1996) (“A defendant can be convicted of the offense charged or of a lesser included offense, but not both.”); United States v. Davis, 439 F.2d 325, 327 (8th Cir. 1971) (“The lesser offense merges into the greater offense for the purpose of sentencing.”). We vacate the sentence imposed for count 2, the attempted GSI conviction, because it merged into count 1, the GSI conviction. See Rutledge v. United States, 517 U.S. 292, 307, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996) (holding vacation of a concurrent sentence was required to avoid improper cumulative punishment when defendant was convicted of both a greater and a lesser included offense); Bruns v. Thalacker, 973 F.2d 625, 628 (8th Cir. 1992) (holding the only remedy available when convictions for both greater and lesser included offenses violate double jeopardy is vacation of the shorter sentence).

B

[¶17] Baker argues a different double jeopardy violation occurred because felonious restraint is a lesser included offense of attempted GSI. We addressed a similar argument in State v. Smith, 2024 ND 127, ¶ 9, 9 N.W.3d 683, where we held felonious restraint is not a lesser included offense of forcible GSI. Baker's argument is slightly different from Smith because he was convicted of an attempt. However, we need not decide whether double jeopardy principles preclude Baker from being sentenced for both crimes because, as explained in the preceding section, the attempted GSI sentence has been vacated on other grounds.

IV

[¶18] Baker argues he was entitled to credit for good time he earned during pretrial detention, awarding good time is not a matter of discretion for the district court, and his sentence is illegal because the judgment does not reflect his good time. The State argues the statutory scheme does not permit county jail administrators to award credit for good conduct during pretrial detention.

A

[¶19] The first issue is whether the district court erred when it decided Baker was not eligible for good time credit based on his conduct. Good time credit is not a matter of discretion for the court. “Under this Court's case law, a sentencing court cannot reduce a person's good time.” State v. Williamson, 2024 ND 7, ¶ 9, 1 N.W.3d 610. “The computation of good time credits is exclusively an administrative responsibility.” Comes v. State, 2021 ND 107, ¶ 4, 961 N.W.2d 270 (quoting State v. Trieb, 516 N.W.2d 287, 292 (N.D. 1994)). “A sentencing court goes outside its jurisdiction when prohibiting, limiting or granting good time ․” Id.; see also State v. Gomez, 2025 ND 60, ¶ 16, 18 N.W.3d 829 (“Because the amended judgment did not include the credit for good time that the DOCR awarded to Williamson, it was contrary to statute, and the sentence was illegal.”). The court erred to the extent it exercised its own discretion and determined Baker was not eligible for good time credit due to his conduct.

B

[¶20] Having decided the district court erred by treating good time as a discretionary issue, we must determine whether Baker's sentence is illegal because the criminal judgment does not reflect good time credit Baker earned while on pretrial detention. This is a matter of statutory interpretation.

[¶21] Issues of statutory interpretation are questions of law fully reviewable on appeal. State v. Gaddie, 2022 ND 44, ¶ 17, 971 N.W.2d 811.

Our primary goal in interpreting statutes is to ascertain the Legislature's intentions. In ascertaining legislative intent, we first look to the statutory language and give the language its plain, ordinary and commonly understood meaning. We interpret statutes to give meaning and effect to every word, phrase, and sentence, and do not adopt a construction which would render part of the statute mere surplusage. When a statute's language is ambiguous because it is susceptible to differing but rational meanings, we may consider extrinsic aids, including legislative history, along with the language of the statute, to ascertain the Legislature's intent. We construe ambiguous criminal statutes against the government and in favor of the defendant.

State v. Luetzen, 2026 ND 13, ¶ 5, 30 N.W.3d 868 (quoting Gaddie, ¶ 17).

[¶22] Section 12.1-32-02, N.D.C.C., governs the district court's sentencing authority. It requires the court to state credit the defendant is entitled to in the criminal judgment:

Credit against any sentence to a term of imprisonment must be given by the court to a defendant for all time spent in custody as a result of the criminal charge for which the sentence was imposed or as a result of the conduct on which such charge was based. “Time spent in custody” includes time spent in custody in a jail or mental institution for the offense charged, whether that time is spent prior to trial, during trial, pending sentence, or pending appeal. The total amount of credit the defendant is entitled to for time spent in custody and any credit for sentence reduction under section 12-44.1-32 or 12-54.1-01 the defendant is entitled to must be stated in the criminal judgment.

N.D.C.C. § 12.1-32-02(2) (emphasis added). The term “sentence reduction” is different from credit for time served, and it encompasses “good time.” Williamson, 2024 ND 7, ¶ 8. The purpose of awarding credit for a person's good conduct while incarcerated “is to improve prison behavior and thereby improve overall prisoner morale and well being.” Ostafin v. State, 1997 ND 102, ¶ 5, 564 N.W.2d 616.

[¶23] Section 12.1-32-02(2), N.D.C.C., authorizes different governmental entities to award good time to individuals incarcerated in facilities they administer by reference to two statutes, N.D.C.C. §§ 12-44.1-32 and 12-54.1-01. The first statute, N.D.C.C. § 12-44.1-32, authorizes the administrators of city, county, and regional corrections centers to award credit for good time. It provides:

An inmate sentenced to a correctional facility under this chapter is eligible to earn sentence reductions based upon criteria established by the administrator, including sentence reduction for good conduct. While incarcerated in a correctional facility, an offender may earn no more than a one-day sentence reduction per six days served.

The first sentence of N.D.C.C. § 12-44.1-32 sets eligibility: “[a]n inmate sentenced to a correctional facility” is “eligible to earn” sentence reductions. Chapter 12-44.1 defines “inmate” as “any individual,” broadly to include any individual “whether sentenced or unsentenced, who is detained or confined in a correctional facility.” N.D.C.C. § 12-44.1-01(7). “ ‘Correctional facility’ means a city or county jail or detention center, regional corrections center, or juvenile detention center for the detention or confinement of persons in accordance with law.” N.D.C.C. § 12-44.1-01(3). We read the first sentence of N.D.C.C. § 12-44.1-32 to mean an inmate must be sentenced to a correctional facility for the facility administrator to grant the inmate good time credit.

[¶24] The Cass County Jail is a correctional facility. Baker, despite being unsentenced, was an “inmate” on pretrial detention in a correctional facility. However, the jail administrator could not grant Baker good time credit because he was not sentenced to the Cass County Jail. Because Baker was not sentenced to the Cass County Jail, N.D.C.C. § 12-44.1-32 does not determine whether Baker earned good time credit during his pretrial detention. The district court reached the correct result for the wrong reason when it did not include good time credit in the judgment. See State v. Moore, 2010 ND 229, ¶ 8, 791 N.W.2d 376 (stating a correct result based on erroneous reasoning will not be set aside). Baker's sentence is not illegal for lack of good time credit because he was not eligible for an award of good time credit prior to sentencing.

[¶25] Our decision does not necessarily preclude Baker from receiving good time credit for time he spent in pretrial detention. Our sentencing law, N.D.C.C. § 12.1-32-02(2), references a second statute, N.D.C.C. § 12-54.1-01, which applies to the North Dakota Department of Corrections and Rehabilitation (“DOCR”). The DOCR administers the North Dakota State Penitentiary. See N.D.C.C. § 54-23.3-01. That law provides “an offender committed to the legal and physical custody of the department” is eligible to earn credit for good time. N.D.C.C. 12-54.1-01. It authorizes the DOCR to “credit an offender with sentence reduction for time spent in custody before sentencing and commitment to the legal and physical custody of the department.” N.D.C.C. § 12-54.1-01. The eligibility predicate at the front of the section limits the DOCR's authority. Only “an offender committed to the legal and physical custody of” DOCR is eligible for an award under section 12-54.1-01. DOCR administrators may credit such an offender with good time once that eligibility attaches; the “before sentencing” clause then lets the DOCR fold pretrial-custody days into the post-commitment computation. In other words, good time credit awarded by the DOCR for pretrial detention time is not reflected in the criminal judgment (which is a predicate to eligibility) but may be applied by the DOCR when determining an individual's release date. Baker, having been sentenced to the custody of the DOCR, is now eligible to be awarded good time credit under N.D.C.C. § 12-54.1-01.

V

[¶26] Baker's double jeopardy rights were violated when he received multiple sentences for the GSI convictions. Baker was not eligible to earn good time credit before he was sentenced. Baker's sentence for the attempted GSI conviction is vacated, and the judgment is affirmed in all other respects.

Jensen, Justice.

[¶27] Jerod E. Tufte, Acting C.J. Jon J. Jensen Douglas A. Bahr Mark A. Friese [¶28] Chief Justice Lisa Fair McEvers disqualified herself subsequent to oral argument and did not participate in this decision.