Official Newspaper of Eddy County since 1883
Official Newspaper of Eddy County since 1883
After winning an appeal to the N.D. Supreme Court regarding a $120,000 NSF check case, Eddy County State’s Attorney Ashley Lies watched the defendant walk away with a slap on the wrist.
The origin of the case goes back nearly four years. On October 31, 2017, Orin Gedrose delivered a check for $120,000 to Peterson Law Offices, P.C. of New Rockford, payable to Peterson Trust Account, for earnest money towards a parcel of land for which he had signed an agreement to purchase. The check was returned for non-sufficient funds on Nov. 6, 2017.
Gedrose was charged with issuing a check without sufficient funds, a Class C felony. The initial prosecution was deferred to Wells County State’s Attorney Kathleen Murray, as Travis Peterson, the principal of Peterson Law Offices, was the Eddy County state’s attorney at the time.
A warrant was issued for Gedrose’s arrest in Feb. 2018, but he was not brought into custody until March 2020. According to court records, Gedrose’s address is Andrews, Texas. At the time of Gedrose’s arrest, Ashley Lies was the state’s attorney, so her office resumed prosecution of the case.
On April 20, 2020, a preliminary hearing was held, in which District Judge Cherie Clark found probable cause before recusing herself.
Judge Jay Schmitz was then assigned the case, and in August, Gedrose’s attorney Leah Carlson filed a motion to dismiss the charge. Carlson argued that the statute, N.D.C.C. 6-08-16(1)(d), was unconstitutional under the due process clauses of the fifth and 14th amendments of the U.S. Constitution, because it lacked a mens rea, or culpability element. Carlson maintained that Gedrose did not recklessly and knowingly commit the crime, and therefore should not be punished with a felony conviction.
Lies countered, on behalf of the state, that under the statute NSF charges are “strict liability offenses,” and therefore intent, or culpability, does not need to be established. Other laws considered strict liability offenses include driving under the influence (DUI) and driving under suspension (DUS).
She also noted that since the statute requires a person to be given notice and an opportunity to correct potential violations before prosecution, and that Gedrose was in fact sent such a notice, that he therefore committed the offense by not providing a remedy in the provided time. In fact, he did not proceed with the purchase of the land, and the seller had no earnest money to retain for his breach of contract.
After taking the case under advisement, Schmitz granted Gedrose’s motion to dismiss in September 2020, stating that the court was averse to saddling a person with the severe consequences of a felony conviction for what may have been an innocent mistake. Schmitz deemed the law unconstitutional.
Afraid that Schmitz’s action declaring the law unconstitutional could have ramifications for prosecuting other cases, particularly other NSF, DUI and DUS offenses, Lies appealed the decision to the N.D. Supreme Court.
The state’s high court heard the case in May, and in July they ruled in favor of the State, effectively reversing Schmitz’s judgment. In the official opinion, Justice Daniel Crothers declared, “The notice requirement minimizes, if not eliminates, the danger a person may be prosecuted for innocent conduct, and ensures a person charged with violating the statute acted at least recklessly.” The case was then returned to district court for sentencing.
Lies explained Tuesday that since Judge Schmitz issued the initial ruling in district court, the case was sent back to him for sentencing.
The matter was brought before Schmitz on Aug. 9, and the result was disheartening to Lies. Even though Gedrose was found guilty of the felony charge, Schmitz issued an order deferring imposition of sentence, effectively reducing the felony charge to a misdemeanor by disposition.
In his opinion, because Gedrose had no prior convictions, and the party to which he had written the check still had the ability to sell the land, he was a candidate for presumptive probation, per N.D.C.C. 12.1-32-07.4.
The judge did not assess a fine against Gedrose, and in regards to restitution merely asked him to pay back Peterson’s filing fees, which amounted to $58.39. The typical administration fees for misdemeanor offenses were imposed, little more than $500.
In deferring the sentence to Aug. 4, 2022, Schmitz also paved the way for Gedrose to have the conviction removed from his record. Therefore, if Gedrose commits no other criminal laws in the next year, “the guilty plea is withdrawn or the guilty verdict set aside, the case dismissed and the file sealed.”
“The total assessed for a $120,000 bounced check was $578.39,” Lies said. “That was really frustrating to say the least.”
Lies wants the public to know that “there are things outside of our control that are happening” in the court system. In this case, the state’s attorney’s offices in both Eddy and Wells counties spent the equivalent of 40 hours arguing this case, only to have the judge defer the defendant’s sentence.
