State of North Dakota, Plaintiff and Appellee v. Brendan Hunter Rademacher, Defendant and Appellant (2026)

[¶1] Brendan Hunter Rademacher appeals from a criminal judgment entered after pleading guilty to negligent homicide. Rademacher argues the district court erred by sentencing him to imprisonment after concluding aggravating factors apply under the presumptive probation statute, N.D.C.C. § 12.1-32-07.4. We conclude the district court acted outside the limits prescribed by the presumptive probation statute and reverse the judgment. We reverse the district court's judgment, vacate the sentence of imprisonment, and remand for resentencing and entry of an amended judgment consistent with this opinion.

I

[¶2] In November 2023, the State charged Rademacher with criminal vehicular homicide, a class A felony, alleging he drove while under the influence of alcohol and caused the death of his passenger. Rademacher moved to suppress blood test evidence and his statements obtained following the vehicle crash. The State stipulated to suppression of the blood evidence, but opposed suppression of the statements. After an evidentiary hearing, the district court denied suppression of Rademacher's statements.

[¶3] The State first amended the charge to manslaughter, a class B felony, and then amended the charge to negligent homicide, a class C felony. Rademacher pleaded guilty to negligent homicide. In providing the district court a factual basis for the guilty plea, the parties agreed Rademacher drove a motor vehicle “in a negligent manner,” causing him to miss a curve and crash into the river. His passenger “drowned [ ] as a result of that crash.” The court ordered a presentence investigation report, which was filed before sentencing, and notified the parties to be prepared to discuss the applicability of the presumptive probation statute, N.D.C.C. § 12.1-32-07.4, at the sentencing hearing.

[¶4] At the sentencing hearing, Rademacher argued the district court was required to sentence him to probation under the presumptive probation statute because he pleaded guilty to a class C felony and no exceptions apply under N.D.C.C. § 12.1-32-07.4(2). The State argued two exceptions in section 12.1-32-07.4(2)(b) apply, namely: (1) Rademacher was in a position of responsibility or trust over the victim, and (2) the victim was “vulnerable.” The court found Rademacher was in a position of responsibility or trust over the victim because he chose to drive the vehicle, and the victim was vulnerable because he had been consuming alcohol. Rademacher objected to the court considering the victim's alcohol impairment or incapacitation, arguing that fact was not “developed on the record.” The court found the aggravating factors apply and sentenced Rademacher to five years, first to serve one year in prison with the balance suspended. The court also imposed three years of supervised probation. Rademacher appeals.

II

[¶5] Rademacher argues the district court erred in concluding aggravating factors apply under N.D.C.C. § 12.1-32-07.4(2) and sentencing him to imprisonment. He also argues the court's findings of fact are not supported by the record.

[¶6] Our review of a criminal sentence is “confined to whether the district court acted within the sentencing limits prescribed by statute, or substantially relied upon an impermissible factor.” State v. Christensen, 2019 ND 11, ¶ 7, 921 N.W.2d 436 (cleaned up). “Statutory interpretation, however, is a question of law fully reviewable on appeal.” Id. (citation omitted).

[¶7] The issue presented is whether the district court acted outside the prescribed sentencing limits of the presumptive probation statute, N.D.C.C. § 12.1-32-07.4, by concluding aggravating factors apply and sentencing Rademacher to a term of imprisonment. This presents a mixed question of law and fact. We review findings of fact under the clearly erroneous standard. State v. Cotton, 2025 ND 191, ¶ 8, 27 N.W.3d 450. “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, we are left with a definite and firm conviction that a mistake has been made.” Id. (citation omitted). The findings of fact must support the legal conclusion that an aggravating factor applies, permitting departure from the presumption of probation. “Questions of law are fully reviewable on appeal, and whether a finding of fact meets a legal standard is a question of law.” State v. Bell, 2025 ND 201, ¶ 6, 29 N.W.3d 270 (citation omitted).

[¶8] If an aggravating factor applies, then the court has discretion to depart from the presumption of probation and impose a term of imprisonment. N.D.C.C. § 12.1-32-07.4(2) (“The sentencing court may impose a sentence of imprisonment if the sentencing court finds there are aggravating factors present to justify a departure from presumptive probation.” (Emphasis added.)); see Interest of C.A.R., 2020 ND 209, ¶ 9, 950 N.W.2d 186 (“When used in a statute, the word ‘may’ is ordinarily understood as permissive rather than mandatory and operates to confer discretion.”). “A district court abuses its discretion if it acts in an arbitrary, unconscionable, or unreasonable manner, if its decision is not the product of a rational mental process leading to a reasonable determination, or if it misinterprets or misapplies the law.” Interest of C.A.R., ¶ 9 (citation omitted).

[¶9] The presumptive probation statute, N.D.C.C. § 12.1-32-07.4, provides:

1. The sentencing court shall sentence an individual who has pled guilty to, or has been found guilty of, a class C felony offense or class A misdemeanor offense to a term of probation at the time of initial sentencing, except for an offense involving domestic violence; an offense subject to registration under section 12.1-32-15; an offense involving a firearm or dangerous weapon, explosive, or incendiary device; or if a mandatory term of incarceration is required by law.

2. The sentencing court may impose a sentence of imprisonment if the sentencing court finds there are aggravating factors present to justify a departure from presumptive probation. Aggravating factors include:

a. That the individual has plead guilty to, or has been found guilty of, a felony offense or class A misdemeanor offense prior to the date of the commission of the offense or offenses charged in the complaint, information, or indictment;

b. The age and vulnerability of the victim, whether the individual was in a position of responsibility or trust over the victim, or whether the individual abused a public position of responsibility or trust; or

c. If the individual used force, threats, or coercion in the commission of the offense.

3. This section does not preclude the sentencing court from deferring imposition of sentence in accordance with subsection 4 of section 12.1-32-02 or sentencing an individual to a term of incarceration with credit for time spent in custody if execution of the sentence is suspended.

[¶10] Under the presumptive probation statute, “[t]he sentencing court shall sentence an individual who has pled guilty to ․ a class C felony offense ․ to a term of probation at the time of initial sentencing, except for” offenses involving domestic violence, sex offender registration, a dangerous weapon, or mandatory terms of incarceration. N.D.C.C. § 12.1-32-07.4(1). None of the exceptions under N.D.C.C. § 12.1-32-07.4(1) apply in this case. Rademacher meets the criteria for presumptive probation under N.D.C.C. § 12.1-32-07.4(1). The district court had a mandatory duty to sentence Rademacher to probation unless the court made proper factual findings supporting the legal conclusion an aggravating factor applies under N.D.C.C. § 12.1-32-07.4(2). See Interest of K.V., 2019 ND 255, ¶ 16, 934 N.W.2d 879 (the term “shall” indicates a mandatory duty).

[¶11] Under N.D.C.C. § 12.1-32-07.4(2), “[t]he sentencing court may impose a sentence of imprisonment if [it] finds there are aggravating factors present to justify a departure from presumptive probation.” The district court is required to make specific findings of fact before concluding aggravating factors apply and exercising its discretion to depart from presumptive probation. “Circumstances in aggravation or mitigation of punishment must be presented by testimony of witnesses examined in open court,” with limited exceptions. N.D.C.C. § 29-26-18; see also Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”); Blakely v. Washington, 542 U.S. 296, 303 (2004) (cleaned up) (“[T]he ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”).

[¶12] The district court concluded aggravating factors apply under N.D.C.C. § 12.1-32-07.4(2)(b) because the victim was “vulnerable” and Rademacher was in a position of responsibility or trust over the victim. The district court explained:

Okay. Well, apart from that I'm more focused on the language of the statute itself. And I'm looking at 2(b), and in this particular case, based upon what the facts that came in, that it's my recollection from what I'd heard at the change of plea and also at different hearings we've had, was from the standpoint that the deceased was 21 and that it was a night of celebration of his 21st birthday, and that there had been liquor that had been consumed for multiple hours, multiple bars, and the deceased was a part of that.

So I do view that the age and vulnerability portion, the first portion, I do view that to be subsection subdivision has three points to it which are disjunctive and not conjunctive, and that the first part, in terms of age and vulnerability, I do view it to be applicable also in terms of the second part, in terms of—the second part of that, and let me pull that up. In terms of the—whether the individual was in a position of responsibility or trust over the victim. I do view that in terms of as the Defendant driving in that when he knew the condition of his brother, in that—

․

—and that I recognize that in terms of there's no, at least that there the level of intoxication, I'm not necessarily saying that there was a specific level of intoxication. I do say that he had consumed alcohol to the point that he was vulnerable from that particular aspect.

As to the second portion of 2(b), in terms of whether an individual was in a position of responsibility or trust over the victim, and that I do view that the defendant was at the time when he opted, he made that choice to get behind the wheel and to put the car in motion. The, you know, the Defendant was the one driving. The victim was not driving and it wasn't a—from my recollection, and I haven't reviewed that particular portion of the change of plea, but I don't recall that the victim ever made an effort to get behind the wheel rather than the defendant did. And then so I do view that those two portions of subsection subdivision 2(b) of 12.1-32-07.4 are applicable.

A

[¶13] Rademacher argues the district court erred by concluding he was in a position of responsibility or trust over the victim. The district court's only factual finding regarding the application of position of trust or responsibility over the victim was that “[Rademacher] was the one driving” and “he made that choice to get behind the wheel and to put the car in motion.”

[¶14] The State argues Rademacher was “in a position of trust or responsibility” because he drove his vehicle on a roadway, and therefore his actions are an aggravating factor warranting departure from presumptive probation. The State argues “[a] person who chooses to drive a motor vehicle on public roads does so with trust and responsibility to consider the safety of others on the road.” Rademacher asserts that the operator of a vehicle is not in a position of responsibility or trust sufficient to qualify as an aggravating factor. He cites several cases in which the phrase “position of responsibility or trust over the victim” described a parent-child relationship, State v. Huether, 2010 ND 233, ¶¶ 17-18, 790 N.W.2d 901; State v. Bell, 540 N.W.2d 599, 601 (N.D. 1995); a pastor-congregation relationship, State v. Burckhard, 1998 ND 121, ¶ 29, 579 N.W.2d 194; an attorney-client relationship, Matter of Jaynes, 278 N.W.2d 429, 434 (N.D. 1979); and a realtor-client relationship, Schlossman & Gunkelman, Inc. v. Tallman, 1999 ND 89, ¶ 31, 593 N.W.2d 374.

[¶15] “When interpreting a statute, our primary goal is to determine the legislature's intent by first looking to the statute's plain language and attempting to give each word, phrase, and sentence its ordinary meaning.” Bell, 2025 ND 201, ¶ 8. “We consider the context of the statutes and the purposes for which they are enacted.” Id. ¶ 9. “We also consider the actual language, its connection with other clauses, and the words or expressions which obviously are by design omitted. In construing statutes and rules, the law is what is said, not what is unsaid, and the mention of one thing implies exclusion of another.” Id. (citation omitted). “We construe ambiguous criminal statutes against the government and in favor of the defendant.” State v. Reese, 2026 ND 39, ¶ 10, 31 N.W.3d 644 (quoting State v. Vetter, 2013 ND 4, ¶ 11, 826 N.W.2d 334).

[¶16] The State's argument that every driver is in a position of responsibility or trust would establish a categorical exception which the legislature explicitly did not adopt. Bell, 2025 ND 201, ¶ 9 (we consider “the actual language, its connection with other clauses, and the words or expressions which obviously are by design omitted”); see also Park View Manor, Inc. v. Housing Auth. of Stutsman Cnty., 300 N.W.2d 218, 225 (N.D. 1980) (citations omitted) (outlining longstanding application of the maxim, expressio unius est exclusio alterius, to statutory construction: expression of one thing in a statute implies exclusion of things not expressed). The plain language of the presumptive probation statute does not include a categorical exception for offenses involving a motor vehicle. N.D.C.C. § 12.1-32-07.4(1) (enumerating categorical exceptions for domestic violence, offenses subject to registration, offenses involving firearms or dangerous weapons, and offenses carrying mandatory incarceration). If the legislature wanted to exclude all offenses involving drivers of motor vehicles from presumptive probation, then it would have stated so in N.D.C.C. § 12.1-32-07.4(1).

[¶17] The State argues Rademacher was in a position of responsibility or trust over the victim under N.D.C.C. § 12.1-32-07.4(2)(b) simply because he drove his vehicle on a roadway. At oral argument, the State provided examples under its interpretation of “responsibility and trust” which would allow departure from the presumptive probation statute, such as a driver injuring or causing the death of a pedestrian in a crosswalk. The State argued drivers have a responsibility to drive in a safe and cautious manner for the safety of themselves, passengers in their vehicle, and others on the roadway. However, the legislature has codified different offenses and levels of culpability establishing the “responsibility and trust” owed by drivers of motor vehicles.

[¶18] Chapter 39-08, N.D.C.C., governs operators of motor vehicles. Under N.D.C.C. § 39-08-03, reckless driving is a class B misdemeanor, but if the reckless driving “causes and inflicts injury upon the person of another” then the offense is aggravated reckless driving, a class A misdemeanor. Under N.D.C.C. § 39-08-01.2, drivers causing injury or death of an individual while driving under the influence of alcohol commit criminal vehicular injury, a class B felony, or criminal vehicular homicide, a class A felony, with mandatory imprisonment. Neither qualify for presumptive probation. N.D.C.C. § 12.1-32-07.4(1).

[¶19] The State originally charged Rademacher with criminal vehicular homicide before amending the charge to manslaughter—neither qualify for presumptive probation. N.D.C.C. § 12.1-32-07.4(1). However, the State ultimately charged, and Rademacher admitted guilt to, negligent homicide. The legislature provides that an individual who acts negligently, by vehicle or otherwise, and causes the death of another human being is guilty of a class C felony, for which presumptive probation applies. N.D.C.C. § 12.1-16-03; N.D.C.C. § 12.1-32-07.4(1).

[¶20] The State attempts to use operation of a motor vehicle as an aggravating factor to change the nature of the convicted offense. The State's interpretation contravenes not only the presumptive probation statute but also other statutes such as reckless driving and vehicular homicide for which the legislature has established penalties. Adopting the State's interpretation would categorically and impermissibly “change the nature of an offense to which a defendant has pled guilty to, or been found guilty of, for sentencing purposes.” Christensen, 2019 ND 11, ¶ 9. In this case, we conclude Rademacher was not in “a position of responsibility or trust over the victim” simply because “[Rademacher] was the one driving” and “he made that choice to get behind the wheel and to put the car in motion.” The district court's factual findings were insufficient to support its conclusion Rademacher was in a position of responsibility or trust over the victim.

B

[¶21] The district court also concluded the victim's age and vulnerability is an aggravating factor under N.D.C.C. § 12.1-32-07.4(2)(b). Rademacher argues the district court improperly relied on “facts that had not been admitted or proven” because his plea “did not include specific factual admissions that the victim was incapacitated or otherwise vulnerable” and the charging document “did not include language that [the] victim was incapacitated, vulnerable, or that the victim was in a unique position of trust with [Rademacher].”

[¶22] Regarding the victim's age and vulnerability, the district court explained its findings: “based upon what the facts that came in, that it's my recollection from what I'd heard at the change of plea and also at different hearings we've had, was from the standpoint that the deceased was 21 and that it was a night of celebration of his 21st birthday, and that there had been liquor that had been consumed for multiple hours, multiple bars, and the deceased was a part of that.” After Rademacher objected to the court considering these “facts,” the court ultimately found: “I recognize that in terms of there's no, at least that there the level of intoxication, I'm not necessarily saying that there was a specific level of intoxication. I do say that he had consumed alcohol to the point that he was vulnerable from that particular aspect.”

[¶23] Unlike the district court's interpretation, the statute does not use the exclusive term “vulnerable” but instead uses the phrase “age and vulnerability of the victim.” N.D.C.C. § 12.1-32-07.4(2)(b) (emphasis added). Conjoining the two nouns with “and” requires consideration of both for applicability to a particular victim. State v. Berkley, 2025 ND 134, ¶ 18, 24 N.W.3d 69 (citation omitted) (“The word ‘and’ is conjunctive in nature and ordinarily means in addition to.”). “Vulnerability” is defined as “the quality or state of being vulnerable.” Webster's Third New International Dictionary, 2566 (1971).

[¶24] Age may contribute to the overall state or quality of being vulnerable. To establish vulnerability of a minor or person of advanced age requires something more than simply stating a chronological age. Here, other than stating the victim was 21, the court did not articulate the relevance of the victim's chronological age, nor explain how he relied on the victim's age in determining the aggravating factor applies. Nothing in the record differentiates this 21-year-old adult man from an ordinary victim. Therefore, the court's only reviewable finding on “age and vulnerability” was that the victim was “vulnerable” because he had consumed alcohol.

[¶25] The district court explained the victim “had consumed alcohol to the point that he was vulnerable[.]” We are unable to ascertain the evidence the court relied upon when making this determination. At the sentencing hearing, Rademacher objected to the intoxication evidence and the court specifically noted it was not finding “a specific level of intoxication.” The court's findings, at the very least, required the evidence relied upon to be “presented by testimony of witnesses examined in open court[.]” N.D.C.C. § 29-26-18 (one exception is “reports of the state parole office may be received by the court without verification or other foundation” but that exception is “subject to such inspection and confrontation of witnesses as the court may permit or require in the interests of justice”); see also Apprendi, 530 U.S. at 490 (“any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt”); Blakely, 542 U.S. at 303 (statutory maximum sentences are limited to those based on facts reflected in a jury verdict or admitted by defendant). The court appears to have relied only on its own “recollection from what [it] heard at the change of plea and also at different hearings.” Even if we were to disregard N.D.C.C. § 29-26-18, a mere finding of consumption of alcohol does not translate into the quality or state of being vulnerable as contemplated by the statute. The district court's factual findings were insufficient to support its conclusion the victim's age and vulnerability is an aggravating factor and departing from presumptive probation.

III

[¶26] The district court erred by concluding aggravating factors apply and by departing from presumptive probation. The court acted outside the sentencing limits prescribed by the presumptive probation statute. We reverse the district court's judgment, vacate the sentence of imprisonment, and remand for resentencing and entry of an amended judgment consistent with this opinion. The mandate under N.D.R.App.P. 41 shall issue forthwith. We direct the court to coordinate Radermacher's immediate release from imprisonment, and to provide Rademacher instructions to commence supervision pending resentencing.

[¶27] Lisa Fair McEvers, C.J.

[¶28] I respectfully dissent. The district court found two aggravating factors under N.D.C.C. § 12.1-32-07.4(2)(b)—that the victim was vulnerable and that Rademacher was in a position of responsibility or trust over him—and exercised its discretion to depart from presumptive probation. The findings are supported by the record, and the departure is within the limits prescribed by statute. I would affirm.

I

[¶29] Our review of a criminal sentence is “very limited.” State v. Christensen, 2019 ND 11, ¶ 7, 921 N.W.2d 436. We confine our review to whether the district court “acted within the sentencing limits prescribed by statute, or substantially relied upon an impermissible factor.” Id. Rademacher's sentence—five years, with all but one year suspended, followed by three years of supervised probation—is well within the statutory maximum for negligent homicide. See N.D.C.C. §§ 12.1-16-03, 12.1-32-01(4). The only question presented is whether the court properly found an aggravating factor under N.D.C.C. § 12.1-32-07.4(2).

[¶30] We review findings of fact for clear error and the discretionary decision to depart from presumptive probation for an abuse of discretion. State v. Cotton, 2025 ND 191, ¶ 8, 27 N.W.3d 450; Interest of C.A.R., 2020 ND 209, ¶ 9, 950 N.W.2d 186. A finding is clearly erroneous only if it is induced by an erroneous view of the law, no evidence supports it, or on the entire record we are left with a definite and firm conviction a mistake has been made. Cotton, ¶ 8. We do not reweigh evidence or substitute our judgment for the district court's. State v. Holbach, 2014 ND 14, ¶ 10, 842 N.W.2d 328. The majority recites these standards, see Majority, ¶¶ 7-8, but the analysis that follows departs from them.

II

[¶31] The majority concludes that Rademacher “was not in ‘a position of responsibility or trust over the victim’ simply because ‘[Rademacher] was the one driving’ and ‘he made that choice to get behind the wheel and to put the car in motion.’ ” Majority, ¶ 20. Though cast as case-specific, the majority's reasoning treats operating a motor vehicle as categorically incapable of establishing that factor, and it reaches that result by two interpretive routes, neither of which the statute supports.

[¶32] First, the majority invokes expressio unius. Because subsection (1) lists categorical exclusions from presumptive probation—domestic violence, sex offender registration, dangerous weapons, and offenses carrying mandatory imprisonment—and does not list driving offenses, the majority concludes that treating any driver as in a position of trust would manufacture a categorical exception the legislature withheld. Majority, ¶ 16. The argument collapses two distinct provisions. Subsection (1) categorically removes certain offenses from presumptive probation altogether; the court has no discretion when subsection (1) applies. Subsection (2) lists factors that permit—never require—a sentencing court to depart from the presumption based on the circumstances of the individual case. The two provisions operate at different levels of generality. That driving offenses are not on the subsection (1) list says nothing about whether a particular driver, in a particular case, can be in a position of responsibility or trust under subsection (2). Reading subsection (2) through subsection (1)’s lens converts a fact-bound, discretionary inquiry into a categorical one—precisely what subsection (2) was not designed to be.

[¶33] Second, the majority extends Christensen. Christensen interpreted subsection (1) and held the dangerous-weapon categorical exception did not apply to a defendant who had not been “charged with, nor ․ plead[ed] guilty to, any ‘offense involving a ․ dangerous weapon.’ ” 2019 ND 11, ¶ 9. Christensen forbade a district court from changing the “nature of an offense” for subsection (1) purposes. Id. Subsection (2) is different. It expressly invites the sentencing court to consider circumstances outside the elements of the offense—age, vulnerability, position of trust, use of force. Reading Christensen to forbid that inquiry strips subsection (2) of independent content and limits it to circumstances already reflected in the offense of conviction. The legislature did not draft subsection (2) to do nothing.

[¶34] The majority also recasts the district court's findings. The court did not rule that every driver is in a position of trust. The State pressed that sweeping reading at oral argument; the district court did not adopt it. The court explained that Rademacher “made that choice to get behind the wheel and to put the car in motion” “when he knew the condition of his brother.” That formulation ties the aggravating-factor finding to two facts the majority sets aside: Rademacher's relationship to the victim and his knowledge of the victim's impairment. Our task is to decide whether this driver, on these facts, was in a position of responsibility or trust over this victim. We need not—and should not—decide hypothetical cases not before us.

[¶35] On the merits, the words “responsibility” and “trust” are broad. “Responsibility” means “[s]omething for which one is responsible; a duty, obligation, or burden.” The American Heritage Dictionary of the English Language 1496 (5th ed. 2018). “Trust” means “[t]he condition and resulting obligation of having confidence placed in one.” Id. at 1864. The combination of facts here—an older brother who took on driving his intoxicated younger brother home from the bars on his 21st birthday—falls within those definitions. On a clear-error standard, the district court's finding is not reversible.

III

[¶36] The majority next concludes the district court clearly erred in finding the victim's “age and vulnerability” to be an aggravating factor. I would not.

[¶37] The majority treats “age and vulnerability” as two independent requirements—a stand-alone age finding plus a stand-alone vulnerability finding. Majority, ¶ 23. The text does not compel that reading. The phrase appears as a single sub-clause in a disjunctive list: “[t]he age and vulnerability of the victim, whether the individual was in a position of responsibility or trust over the victim, or whether the individual abused a public position of responsibility or trust.” N.D.C.C. § 12.1-32-07.4(2)(b). The victim was 21; it was the night he turned 21; he had been drinking with his older brother for hours. The court's reference to age was not a stand-alone finding—it framed the impairment finding by placing it in context.

[¶38] Even on the majority's reading, the result holds. “Vulnerability” is “the quality or state of being vulnerable.” Webster's Third New International Dictionary 2566 (1971). “Vulnerable” means “[s]usceptible to physical harm or damage.” American Heritage Dictionary, at 1944. A passenger so impaired that he cannot operate the vehicle, recognize the danger, or extricate himself when the vehicle plunges into a river fits that definition.

[¶39] Nor is the finding without evidentiary support. The presentence investigation report, filed before sentencing, recorded Rademacher's own statements that he and his brother had been drinking “at the Capri Bar and then North Hill Bowl before getting kicked out for bowling too crazy” and that “[w]e got messed up.” Rademacher and his attorney acknowledged reviewing the PSI report and identified no corrections. See N.D.R.Crim.P. 32(c)(4)(F); State v. Steen, 2000 ND 152, ¶ 28, 615 N.W.2d 555 (“[T]he court can adopt facts contained in a presentence investigation report without inquiry, if those facts have an adequate evidentiary basis and the defendant does not present rebuttal evidence.”). The rules of evidence do not apply at sentencing. N.D.R.Ev. 1101(d)(3)(D). The sentencing court is entitled to draw reasonable inferences from the record. State v. Hamilton, 2023 ND 233, ¶ 11, 999 N.W.2d 214. On this record, the court was not required to ignore Rademacher's own statements recorded in the PSI report.

IV

[¶40] The majority bolsters its reversal with N.D.C.C. § 29-26-18 and Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004). Majority, ¶¶ 11, 25. Rademacher raised none of these authorities. His brief relied on Christensen. He did not invoke § 29-26-18; he did not invoke Apprendi or Blakely; he did not assert a Sixth Amendment claim. We require an appellant to support contentions with citations to authority and to the record. N.D.R.App.P. 28(b)(7)(A). The Court should not reverse on grounds the appellant never raised.

[¶41] Even were these authorities properly before us, they would not require reversal. Section 29-26-18 has long coexisted with N.D.R.Crim.P. 32 and the settled practice that a sentencing court may rely on an unobjected-to PSI report. See Steen, 2000 ND 152, ¶ 28. The majority's reading of § 29-26-18 may implicate routine sentencing practice throughout the state. Significantly, it fails to consider that the PSI report, prepared by Kylee Gartner, PSI Investigator, DOCR Parole and Probation, may be directly admissible under that statute. N.D.C.C. § 29-26-18 (“reports of the state parole office may be received by the court without verification or other foundation”). Apprendi and Blakely, in turn, cap the sentence a court may impose without facts found by a jury or admitted by the defendant at the statutory maximum. Rademacher's sentence does not exceed the five-year maximum for negligent homicide. The presumption of probation under § 12.1-32-07.4 is a default mode of sentencing within a fixed statutory range, not a separate ceiling of the kind at issue in Blakely. Whether that analytical line holds in every future case is a question for another day—and for an appellant who has raised it.

V

[¶42] The district court found the aggravating factors of vulnerability and position of responsibility or trust, and the record supports those findings. The court then exercised the discretion the legislature gave it under N.D.C.C. § 12.1-32-07.4(2) and imposed a sentence well within the statutory maximum. The majority converts a discretionary, fact-bound aggravator into a categorical rule of law and reverses on grounds the appellant did not preserve. I would affirm the criminal judgment.

[¶43] Jerod E. Tufte

Jon J. Jensen

Friese, Justice.