State v. Evanson , 2021 ND 4 ( 2021 )

Corrected Opinion Filed 01/14/21 by Clerk of the Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2021 ND 4State of North Dakota, Plaintiff and Appellee
v.
Megan Lynn Evanson, Defendant and Appellant
Nos. 20200056 & 20200057
Appeal from the District Court of Divide County, Northwest Judicial District,
the Honorable Daniel S. El-Dweek, Judge.
AFFIRMED.
Opinion of the Court by McEvers, Justice.
Seymour R. Jordan, State’s Attorney, Crosby, ND, for plaintiff and appellee.
Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.
State v. Evanson
Nos. 20200056 & 20200057
McEvers, Justice.
[¶1] Megan Lynn Evanson appeals from the criminal judgments imposed in
two consolidated cases. Evanson argues the district court’s consideration of
her prior criminal convictions constituted substantial reliance on an
impermissible factor, rendering her sentence illegal. We affirm.
I
[¶2] Evanson and her husband were involved in the theft of a catalytic
converter from a truck and several tools from two different individuals. In the
first case, Evanson was charged with criminal trespass, a class B
misdemeanor, criminal mischief, a class B misdemeanor, and theft, a class A
misdemeanor. In the second case, Evanson was charged with burglary, a class
C felony, and theft, a class C felony. These cases were consolidated on appeal.
[¶3] On October 11, 2019, Evanson entered not guilty pleas in both cases.
Evanson changed her pleas to guilty on February 21, 2020, and was sentenced
in both cases that same day. At the sentencing hearing, the State read
Evanson’s criminal history to the district court and Evanson made no objection.
In the first case, Evanson was sentenced to 19 days with 19 days’ credit for
time served. In the second case, Evanson was sentenced to 11 months in
custody with all but 19 days suspended, with 18 months of supervised
probation, credit for 19 days previously served, and fines to be paid by
September 30, 2020. Evanson filed her notice of appeal on February 28, 2020.
II
[¶4] On appeal, Evanson argues the district court improperly considered her
prior convictions at sentencing without knowing whether the convictions were
counseled. Evanson asserts her criminal history should not have been
considered as a factor in sentencing because the State did not inform the court
whether her prior convictions were uncounseled and without proper waiver.
Evanson argues this constituted reliance on an impermissible factor, rendering
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her sentence illegal. Evanson did not object to the introduction of her prior
convictions at the change of plea and sentencing hearing.
[¶5] This Court’s review of a sentence is generally confined to whether the
district court acted within the statutory sentencing limits or substantially
relied on an impermissible factor. State v. Gonzalez, 2011 ND 143, ¶ 6, 799
N.W.2d 402. A trial judge is allowed the widest range of discretion in
determining the appropriate criminal sentence. State v. Corman, 2009 ND 85,
¶ 15, 765 N.W.2d 530. This Court has no power to review the discretion of the
sentencing court when the term of imprisonment is within the range
authorized by statute. Gonzalez, at ¶ 6.
[¶6] There is no question that Evanson’s sentence was within the statutory
parameters. Evanson pleaded guilty to two class C felonies, two class B
misdemeanors, and one class A misdemeanor. Under N.D.C.C. § 12.1-32-01,
Evanson could have been sentenced to a maximum of over 11 years of
incarceration. Instead, Evanson was sentenced to 11 months of incarceration,
with all but 19 days suspended, and credit for 19 days of time served.
Evanson’s sentence was below the statutory maximum and within statutory
limits. The dispositive issue on appeal is whether the district court
substantially relied on an impermissible factor in determining Evanson’s
sentence. However, before we review the issue, we must determine whether
the issue was preserved for appellate review and the appropriate standard of
review.
[¶7] This Court recently stated in State v. Thomas, “an objection is
unnecessary to preserve a claim of illegal sentence imposed in a criminal
judgment from which an appeal may be immediately taken.” 2020 ND 30, ¶
16, 938 N.W.2d 897. Claims of procedural error regarding a sentence may be
waived by a failure to object, but an appeal may be taken from a sentence not
authorized by law without an objection or motion at the district court. See Id.In Thomas, this Court relied on People v. Valtakis, 130 Cal. Rptr. 2d 133, 136
(Cal. Ct. App. 2003), to describe the difference between the two types of errors.
As noted in Valtakis, a defendant waives claims of procedural error in the
manner of sentencing by failing to object. Id. at 137 (“In essence, claims
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deemed waived on appeal involve sentences which, though otherwise
permitted by law, were imposed in a procedurally or factually flawed
manner.”). Our holding in Thomas clarifies that a defendant need not object
or make a motion to preserve the issue of an illegal sentence, meaning one that
could not lawfully be imposed in that case under any circumstances. Thomas,
at ¶ 16. See United States v. Sims, No. 92 CR 166, 2014 WL 11395175, at *2
(N.D. Ill. Sept. 19, 2014) (discussing the difference between an illegal sentence
and one that is imposed in an illegal manner under Fed.R.Crim.P. 35).
[¶8] In State v. Orr, this Court determined that a sentencing court that relied
on a defendant’s prior uncounseled conviction to enhance their term of
incarceration violated the defendant’s substantive right to counsel under the
North Dakota Constitution. 375 N.W.2d 171, 178 (N.D. 1985). In Orr, this
Court stated that prior uncounseled convictions were unreliable and that a
defendant would “‘suffer anew’ the deprivation of his right to counsel if he were
subsequently imprisoned solely because of the previous uncounseled
conviction.’” Id. This Court held, “absent a valid waiver of the right to counsel
the resulting [uncounseled] conviction cannot, under art. I, § 12, N.D. Const.,
be used to enhance a term of imprisonment for a subsequent offense.” Id. at
178-79. Therefore, under Orr, an error in considering a defendant’s prior
uncounseled conviction is substantive if it is used to enhance the defendant’s
term of incarceration, which violates the defendant’s right to counsel. “A
district court enhances a sentence when it increases a defendant’s sentence
beyond the statutory maximum sentence to another offense level or sentencing
range, or under a mandatory sentencing provision because of a subsequent
offense.” State v. Henes, 2009 ND 42, ¶ 11, 763 N.W.2d 502 (statutory citations
omitted).
[¶9] Applying Henes, Evanson’s prior convictions were not relied upon to
enhance her term of incarceration. If the district court erred in considering
Evanson’s prior convictions, the error was procedural in applying the
sentencing factors provided in N.D.C.C. § 12.1-32-04, and our holding in Henes
applies. 2009 ND 42, ¶¶ 7-11. In Henes, the defendant failed to object to the
introduction of two prior uncounseled guilty verdicts. Id. As in Evanson’s case,
these guilty verdicts were not used to enhance the defendant’s term of
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incarceration. Id. This Court held obvious error was the appropriate standard
of review because no objection was made at the district court when prior
uncounseled convictions were admitted into the record. Id. at ¶ 7. “An obvious
error or defect that affects substantial rights may be considered even though
it was not brought to the court’s attention.” N.D.R.Crim.P. 52(b). Because
Evanson failed to object to her prior convictions, obvious error is the
appropriate standard of review.
[¶10] Evanson has not argued obvious error on appeal. When a party fails to
argue obvious error this Court has discretion whether to consider the issue.
State v. Smith, 2019 ND 239, ¶ 15, 934 N.W.2d. 1. In exercising our discretion,
we will address Evanson’s argument under obvious error.
[¶11] Under obvious error review, the burden falls on the appellant to
establish obvious error by showing: (1) error, (2) that is plain, and (3) that
affects substantial rights. State v. Doppler, 2013 ND 54, ¶ 14, 828 N.W.2d 502(citing State v. Doll, 2012 ND 32, ¶ 11, 812 N.W.2d 381). “To affect substantial
rights, a plain error must have been prejudicial, or have affected the outcome
of the proceeding.” State v. Wegley, 2008 ND 4, ¶ 14, 744 N.W.2d 284. The
first inquiry under the framework for obvious error is whether an error
occurred. See State v. Thompson, 2010 ND 10, ¶ 26, 777 N.W.2d 617.
[¶12] Evanson’s argument fails under obvious error review because she cannot
establish that an error occurred. There has been no showing by Evanson that
the prior convictions were, in fact, uncounseled. Therefore, Evanson has not
shown the district court abused its discretion in applying the sentencing
factors in an illegal manner. Rather, criminal history is a factor that a trial
judge should consider in determining the proper sentence. State v. Woehlhoff,
473 N.W.2d 446, 450 (N.D. 1991); N.D.C.C. § 12.1-32-04(7). This Court has
long held that prior uncounseled convictions are impermissible sentencing
factors only within the narrow context of enhancing a defendant’s term of
incarceration. See, e.g., Orr, 375 N.W.2d 171. This Court has also held prior
uncounseled convictions are permissible discretionary sentencing factors in
cases where the convictions were not relied upon to enhance a term of
incarceration, stating:
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[A] district court has discretion to consider the sentencing factors
provided in N.D.C.C. § 12.1-32-04. Factor seven provides a district
court can consider that “[t]he defendant has no history of prior
delinquency or criminal activity, or has led a law-abiding life for a
substantial period of time before the commission of the present
offense.” N.D.C.C. § 12.1-32-04(7). Factor nine provides a district
court can consider that “[t]he character, history, and attitudes of
the defendant indicate that he is unlikely to commit another
crime.” N.D.C.C. § 12.1-32-04(9). The district court considered
Henes’s criminal history, found he had committed new crimes
within two weeks of his sentencing hearing, and concluded he had
difficulties following the law. These findings were supported by
the evidence, and the district court did not abuse its discretion in
denying Henes’s request for a deviation from the plea agreement.
Henes, 2009 ND 42, ¶ 13. Accordingly, this Court held the district court did
not err in relying on two uncounseled guilty convictions when it sentenced the
defendant in Henes. Id. at ¶ 15.
[¶13] Evanson has not established obvious error. Based on this record, her
prior convictions were properly considered by the district court as her criminal
history, and as one of many sentencing factors under N.D.C.C. § 12.1-32-04.
III
[¶14] We conclude the district court did not err by considering Evanson’s prior
convictions as part of her criminal history at sentencing, and we affirm the
judgments.
[¶15] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Filed by Clerk of Supreme Court 01/14/21
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