Background
John Bruce Pope was charged in December 2024 with eight offenses arising from a series of domestic incidents involving his wife, including assault on a peace officer, terrorizing, and domestic violence counts. While in custody, Pope was separately charged with five counts of child abuse. The two cases were joined, and Pope ultimately entered a plea agreement under which he pled guilty or entered Alford pleas to five counts and the remaining charges—including all child abuse counts—were dismissed with prejudice. The district court initially sentenced Pope to concurrent five-year terms, largely suspended, followed by supervised probation.
Just three weeks after sentencing, the State petitioned to revoke Pope’s probation after he contacted his wife by phone in violation of probation conditions. Pope admitted both violations at the revocation hearing. At resentencing, the district court made extensive findings about physical and psychological abuse of Pope’s wife and children—including that he had prevented the children from attending school to conceal abuse—and resentenced Pope to the maximum on each felony count, to run consecutively, for a total of twenty years’ imprisonment.
Pope filed a written objection and moved to reduce the sentence, arguing that the court had improperly relied on factual allegations from the affidavit of probable cause filed in the dismissed child abuse case. The district court denied both motions, explaining that it had considered all facts in the record, including the detailed probable cause affidavit, and had not relied on any facts outside the record. Pope appealed.
The Court’s Holding
The North Dakota Supreme Court affirmed, holding that the factual assertions in a probable cause affidavit from a joined criminal case dismissed with prejudice pursuant to a plea agreement are not an impermissible sentencing factor. The court emphasized that sentencing courts have long been afforded the widest possible range of information—including inadmissible evidence, uncharged conduct, and even evidence of crimes for which a defendant was acquitted—and that the rules of evidence do not apply at sentencing proceedings.
The court rejected Pope’s argument that the pending-charge rule from State v. Hoverson logically extends to charges dismissed with prejudice. The court explained that the pending-charge rule rests not on the unproven nature of allegations, but on the constitutional concern that enhancing a sentence based on a live charge burdens the defendant’s right to trial on that charge. Because the child abuse charges were dismissed with prejudice and would never be tried, that constitutional concern was entirely absent. The court noted that the probable cause affidavits from both joined cases were part of the record before the court, and that a sentencing court may rely on all evidence of record and reasonable inferences drawn from it.
The court also rejected Pope’s a fortiori reasoning—that dismissed charges must be even more impermissible than pending ones. The court held that reasoning inverts the logic of the rule: a dismissal with prejudice eliminates, rather than aggravates, the constitutional concern the rule is designed to address. Accordingly, the district court did not substantially rely on an impermissible sentencing factor.
Key Takeaways
- Probable cause affidavits from criminal cases joined and then dismissed with prejudice under a plea agreement are permissible sentencing information under North Dakota law.
- The rule barring reliance on pending charges at sentencing is grounded in constitutional protection of the right to trial, not in evidentiary reliability—and that rationale evaporates once charges are dismissed with prejudice.
- North Dakota sentencing courts retain broad discretion to consider a wide range of information, including inadmissible evidence, uncharged conduct, and dismissed charges, so long as they do not penalize a defendant for exercising a constitutional right.
- A defendant’s a fortiori argument that dismissed charges are more impermissible than pending ones misunderstands the basis of the impermissible-factor doctrine.
Why It Matters
This decision clarifies the boundaries of North Dakota’s impermissible sentencing factor doctrine and reaffirms the breadth of information available to sentencing courts. Defense practitioners should understand that negotiating a dismissal with prejudice as part of a plea agreement does not necessarily insulate a defendant from having the underlying factual record—including probable cause affidavits—considered at sentencing, particularly where the cases were joined.
The decision also serves as a useful reminder that the constitutional rationale behind categorical sentencing exclusions matters: courts will not extend exclusionary rules beyond the specific harm they were designed to prevent. Prosecutors and defense counsel alike should anticipate that joinder of cases, and the full record that joinder creates, may have significant sentencing consequences even after charges in one case are dropped.