State v. Wallette

                   IN THE SUPREME COURT
                   STATE OF NORTH DAKOTA

                                  

State of North Dakota,                                     Plaintiff and Appellee
      v.
Triston Lee Wallette,                                  Defendant and Appellant

                                  No. 20250073

Appeal from the District Court of Pierce County, Northeast Judicial District, the
Honorable Michael P. Hurly, Judge.

AFFIRMED.

Opinion of the Court by Jensen, Chief Justice.

Joshua E. Frey, Assistant State’s Attorney, Cando, ND, for plaintiff and appellee.

Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.
                                 State v. Wallette
                                  No. 20250073

Jensen, Chief Justice.

[¶1] Triston Wallette appeals from an order denying in part his motion to
correct or reduce his sentence and an amended criminal judgment. We hold the
district court did not infringe Wallette’s constitutional right to be free from cruel
and unusual punishment and did not violate statutory law relating to mandatory
minimum sentencing. Wallette waived the remaining issues by not adequately
raising or supporting them. We affirm the order and amended judgment.

                                         I

[¶2] The State charged Wallette with two class C felony counts of burglary; one
class B felony count of criminal attempt; one class B felony count of theft of
property; five class B felony counts of criminal mischief; and one class A
misdemeanor count of criminal mischief. The State alleged Wallette broke into
an airport hangar; caused damage in excess of $1 million to the hangar, an
airplane, and vehicles; and that he stole an ATV. Wallette entered an open guilty
plea to the charges. His presentence investigation report details a criminal
history including prior convictions for theft, burglary, criminal
mischief/vandalism, resisting arrest, hindering law enforcement, threats of
violence, and probation revocations.

[¶3] The district court sentenced Wallette to consecutive sentences on each
count amounting to imprisonment for 51 years, probation for 3 years, and
restitution of $306,400. The restitution corresponds to the amount of damages
not covered by the victims’ insurers. Within the time for taking a direct appeal,
Wallette filed a motion under North Dakota Rule of Criminal Procedure 35
arguing his sentence is illegal and also seeking leniency. The court granted his
motion in part. The court found that his sentence was not illegal, but it would
“grant partial leniency” reducing his sentences to “approximately 30 years,
aligning with the nearly 30 years it took the victim to build his family agricultural
spraying business before it was ruined by the defendant’s actions.” The court
entered an amended judgment reducing the consecutively imposed terms of


                                         1
imprisonment to a total of 30 years. Wallette appeals from the order and
amended judgment.

                                         II

[¶4] North Dakota Rule of Criminal Procedure 35 authorizes the district court
to reduce a sentence and to correct an illegal sentence. An order on a motion
seeking reduction of a sentence under N.D.R.Crim.P. 35(b) is not appealable
because it is a matter of leniency not affecting a substantial right. Rahn v. State,

, 

. “[A]n order denying a motion for correction
of an illegal sentence under N.D.R.Crim.P. 35(a) involves a substantial right and
is appealable.” Id. ¶ 9. “A sentence is illegal under Rule 35(a) if it is not
authorized by the judgment of conviction.” State v. Glasser, 

, 

.

      Examples of illegal sentences include: a sentence in excess of a
      statutory provision or in some other way contrary to an applicable
      statute, a sentence which fails to conform to the oral pronouncement
      of the sentence, or a sentence which is ambiguous with respect to the
      time and manner in which it is to be served. In addition, a sentence
      is illegal if it does not comply with a promise of a plea bargain or
      when the sentencing court lacks jurisdiction to impose it.

 (quoting State v. Hutchinson, 

, 

); see also State
v. Booth, 

, 

 (stating “a sentence is illegal if it is in
excess of a statutory provision or in some other way contrary to an applicable
statute”).

[¶5] We have not decided whether, for purposes of Rule 35, an “illegal
sentence” encompasses claims alleging a violation of the constitutional right to
be free from cruel and unusual punishment. Other jurisdictions have reached
different results under their respective rules. Compare Montgomery v. Louisiana,

 (2016) (explaining, under Louisiana law, “it appears that
prisoners must raise Eighth Amendment sentencing challenges on direct
review”); State v. Warrior, 

 (Kan. 2016) (stating Kansas’s
version of Rule 35(a) “does not cover a claim that a sentence violates a
constitutional provision”); Kramer v. State, 

, 1203 (Fla. Dist. Ct.


      

) (stating a “motion to correct an illegal sentence is not the proper
vehicle for challenging a sentence on the basis that it violates the constitutional
prohibition against cruel and unusual punishment” (quoting Lykins v. State, 

 (Fla. Dist. Ct. App. 2005)) with State v. Mullins, 

,
--- P.3d --- (Utah 2025) (addressing cruel and unusual punishment claim brought
under Utah’s version of Rule 35); Commonwealth v. Brown, 

(Pa. Super. Ct. 2013) (stating “a claim that a sentence violates an individual’s
right to be free from cruel and unusual punishment is a challenge to the legality
of the sentence, rendering the claim unwaivable”).

[¶6] Although Wallette sought relief under Rule 35 from a purportedly cruel
and unusual punishment, he filed his motion within the deadline for an appeal,
resulting in an amended judgment, and he has now timely appealed. This is not
a case where the Rules of Criminal Procedure are being used to circumvent the
Uniform Postconviction Procedure Act, which specifically authorizes claims
asserting a sentence is unconstitutional but also imposes a two-year filing
deadline. See N.D.C.C. § 29-32.1-01(1)(a) and (2); see also N.D.R.Crim.P. 35(a)
(stating illegal sentences shall be corrected “at any time”); State v. Eagleman, 

, 

 (explaining Rule 35 may not be used to circumvent
postconviction procedural requirements). Because Wallette filed a timely direct
appeal, we will address his cruel and unusual punishment claim, but we reserve
deciding whether such claims may be brought under Rule 35 after the time for
appeal has expired.

                                        III

[¶7] Wallette argues his sentence is a cruel and unusual punishment; does not
comply with statutory law relating to mandatory minimum sentences; was
issued in contravention of the North Dakota Judicial Code of Conduct; and
violates his rights under the Equal Protection Clause.

[¶8] The standard of review is mixed. District courts have the “widest range of
discretion” when sentencing a criminal defendant. State v. Blue, 

,
¶ 28, 

.




                                         3
      We have repeatedly held we have no power to review the discretion
      of the sentencing court in fixing a term of imprisonment within the
      range authorized by statute. Rather, our review of a criminal
      sentence is generally confined to whether the trial court acted within
      the statutorily prescribed sentencing limits or substantially relied on
      an impermissible factor. Thus, we will vacate a trial court’s
      sentencing decision only if the trial court acted outside the limits
      prescribed by statute or substantially relied on an impermissible
      factor in determining the severity of the sentence.

State v. Rinde, 

, 

 (quoting State v. Gonzalez, 

, 

). “This Court reviews alleged violations of constitutional
rights, including the prohibition against cruel and unusual punishment, de
novo.” Blue, ¶ 27. “Generally, a sentence within the statutory sentencing range
is neither excessive nor cruel.” 

 The interpretation of statutes related to
sentencing is a question of law fully reviewable on appeal. State v. Murphy, 

, 

.

                                        A

[¶9] Wallette argues the district court imposed an unconstitutional cruel and
unusual punishment when it sentenced him. He asserts the harshness of the
sentence is disproportionate to his criminal conduct.

[¶10] The Eighth Amendment to the United States Constitution and Article I,
§ 11 of the North Dakota Constitution respectively prohibit infliction of “cruel
and unusual punishments” and “cruel or unusual punishments.” “A punishment
in a non-capital case that is grossly disproportionate to the offense is cruel and
unusual.” Blue, 

, ¶ 27 (quoting State v. Gomez, 

, ¶ 25, 

). The disproportionality principle is “narrow.” Graham v. Florida, 

 (2010). It forbids only “extreme” sentences. Blue, ¶ 27 (quoting Gomez,
¶ 25). The United States Supreme Court has only once declared a sentence of
imprisonment for an adult offender unconstitutional under the Eighth
Amendment. State v. Greene, 

, 

. This Court has
never held a sentence within the statutory sentencing limits to be a violation of
N.D. Const. Art. I, § 11. Id. ¶ 16.



                                        4
[¶11] A two-part test applies to claims of disproportionality. Courts first
compare the gravity of the offense to the harshness of the sentence. Greene, 

. “To evaluate the gravity of the offense, we consider the actual or
threatened harm to the victim and society and the defendant’s culpability and
degree of involvement.” Gomez, 

. The burden of proving
disproportionate harshness is “extraordinarily high.” Greene, ¶ 14. “If the court
finds a gross disproportionality exists, then the court should compare the
defendant’s sentence with sentences received by other offenders in the same
jurisdiction and with sentences imposed for the same crime in other
jurisdictions.” 

 ¶ 13 (quoting Gomez, ¶ 26).

[¶12] Wallette argues his 30-year sentence is disproportionately harsh given his
offenses were property crimes that did not physically injure anyone. Although
no one was present when Wallette broke into the airport hangar, he caused
damage in excess of $1 million. The North Dakota Legislature has expressly
authorized district courts to consider the harm criminal offenders cause to
property when imposing sentences. See N.D.C.C. § 12.1-32-04. The Legislature
also graded property crimes higher, permitting harsher punishment, when losses
are greater. See, e.g., N.D.C.C. § 12.1-21-05 (providing higher penalties for
criminal mischief based on the amount of pecuniary loss). These statutes are
consistent with the United States Supreme Court’s admonitions that the
“absolute magnitude of the crime may be relevant,” and “[s]tealing a million
dollars is viewed as more serious than stealing a hundred dollars[.]” Solem v.
Helm, 

 (1983). The extensive damage Wallette caused justifies a
harsh sentence.

[¶13] Wallette also argues he received a disproportionately harsh sentence
“simply because his victims were underinsured and the court found he would
never be able to pay restitution.” Although inability to pay restitution is a
permissible factor for the district court to consider, see N.D.C.C. § 12.1-32-04(6),
Wallette’s insolvency was not the sole basis for the court’s decision. The court
weighed heavily Wallette’s criminal history and the likelihood he would
reoffend. The court explained the sentence was intended to deter future harm to
the community, noting it “is concerned that, should he be released, the likelihood
of him committing another senseless crime is strikingly high.” The court

                                         5
acknowledged “this is a very harsh sentence,” but explained “I am sentencing
you to this [] because every day, every minute, every hour, every year that you
are in prison prevents you from doing something similar to the victims.” A harsh
sentence is justified by Wallette’s criminal past and propensity for crime.
Wallette has not met the high burden of establishing the harshness of his
sentence is disproportionate to his criminal conduct.

                                        B

[¶14] Wallette argues the consecutive nature of his sentences, coupled with the
North Dakota Parole Board practices, amounts to a mandatory minimum
sentence violating the intent of our statutory sentencing scheme.

[¶15] “The fixing of prison terms for specific crimes involves a substantive
penological judgment that, as a general matter, is properly within the province
of legislatures, not courts.” Greene, 

 (quoting Gomez, 

). The Legislature’s classification of offenses and corresponding
maximum penalties is provided by N.D.C.C. § 12.1-32-01. The maximum terms
of imprisonment relevant to this appeal are: 10 years for a class B felony; 5 years
for a class C felony; and 360 days for a class A misdemeanor. The district court
is generally prohibited from issuing consecutive sentences of imprisonment
amounting to more than one year of incarceration for misdemeanor offenses. See
N.D.C.C. § 12.1-32-11(3). There is no similar prohibition on consecutive sentences
for felony offenses. See State v. Larsen, 

, 

 (“A
district court has the authority to determine whether a felony sentence runs
concurrent with or consecutive to another felony sentence.” (quoting State v.
Huffling, 

, 

)).

[¶16] Wallette pleaded guilty to ten crimes, including seven class B felonies, two
class C felonies, and one class A misdemeanor. None of these offenses require a
mandatory minimum term of imprisonment, see N.D.C.C. § 12.-32-02.1, and each
count of the criminal judgment states Wallette “is entitled to sentence reduction
as authorized by state law.” Wallette nonetheless argues his sentence constitutes
a “practical” mandatory minimum in violation of the “intent” of the law given
the “administrative reality” of parole procedures. He asserts the Parole Board


                                        6
“meets monthly and considers each sentence individually for consecutive
sentences.”

[¶17] We have no power to “ignore the plain language of [a] statute under the
pretext of pursuing some unexpressed legislative intent,” or to “add words or
phrases which the legislature did not include.” Larsen v. N.D. Dep’t Transp., 

, 

; see also N.D.C.C. § 1-02-05 (stating “the letter of [a
statute] is not to be disregarded under the pretext of pursuing its spirit”). We
read the plain language of the statute presuming “the legislature said all that it
intended to say.” Larsen, ¶ 11. “Generally, unless there is a statute to the
contrary, it is within the trial court’s sound discretion whether a sentence should
run concurrently with or consecutively to another sentence.” Gonzalez, 

 (quoting State v. Ulmer, 

, 

).

[¶18] Wallette has not identified a specific statutory requirement the district
court failed to comply with or a statutory prohibition it violated. He does not
dispute that each of his consecutively imposed sentences are within the
maximum terms of imprisonment authorized by law. Moreover, even assuming
the court could somehow defy the intent of the law without violating it, Wallette
has failed to provide authority demonstrating he will be ineligible for release on
parole until some minimum amount of time has passed. His argument rests on
the proposition that the Parole Board cannot simultaneously grant parole on
consecutively imposed sentences. However, Wallette has not identified any law,
regulation, or procedure restricting the Parole Board in this manner. Wallette has
not demonstrated his sentence is illegal.

                                        C

[¶19] Wallette raises two additional issues the district court did not address.
Wallette first argues the court violated the Judicial Code of Conduct because the
court made a comment indicating it considered information outside the record,
acquired from friends that are pilots, concerning the resale value of airplanes.
Although we will review a claim that a sentence is illegal even when it was not
raised below, a “significant distinction” exists “between claims of error
regarding a sentence imposed in a procedurally or factually flawed manner,


                                        7
which can be waived, from an unauthorized sentence that could not lawfully be
imposed under any circumstance in the particular case.” State v. Roller, 

, ¶ 21, 

 (cleaned up). Wallette’s argument about the court’s
conduct relates to the manner in which his sentence was imposed and is therefore
subject to our normal rule “that issues not adequately raised in the district court
will not be addressed on appeal.” Mead v. Hatzenbeller, 

, 

. Here, although Wallette noted the comment about airplane values
in the background section of his Rule 35 motion, he did not argue it was a basis
for invalidating his sentence or even cite the Judicial Code of Conduct. Because
his argument was not adequately raised, we will not address it.

[¶20] Wallette also argues his sentence violates “equal protection principles”
and, when compared to other sentences, the district court’s sentencing decision
cannot survive “rational basis review.” Rational basis review under the equal
protection clause is a test for deciding whether a legislative classification violates
the constitution. Condon v. St. Alexius Med. Ctr., 

, 

. Wallette does not cite a case where rational basis review has been applied
to a court’s sentencing decision, and he provides no theory or reasoning for
extending the doctrine to this context. “[A] party waives an issue by not
providing supporting argument and, without supportive reasoning or citations
to relevant authorities, an argument is without merit.” Hoever v. Wilder, 

, 

 (quoting Riemers v. City of Grand Forks, 

,

). We will not address Wallette’s unsupported argument
concerning rational basis review under the equal protection clause.

                                         IV

[¶21] The district court did not infringe Wallette’s constitutional right to be free
from cruel and unusual punishment and did not violate statutory law relating to
mandatory minimum sentences. Wallette waived the remaining issues by not
adequately raising or supporting them. The order denying in part his
N.D.R.Crim.P. 35 motion and the amended criminal judgment are affirmed.

[¶22] Jon J. Jensen, C.J.
      Daniel J. Crothers


                                          8
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr




                    9