State v. Evanson, 011221 NDSC, 20200056

Docket Nº20200056, 20200057
Opinion JudgeMCEVERS, JUSTICE
Party NameState of North Dakota, Plaintiff and Appellee v. Megan Lynn Evanson, Defendant and Appellant
AttorneySeymour R. Jordan, State's Attorney, Crosby, ND, for plaintiff and appellee. Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.
Judge PanelJon J. Jensen, C.J., Gerald W.VandeWalle, Daniel J. Crothers, Lisa Fair McEvers, Jerod E. Tufte
Case DateJanuary 12, 2021
CourtSupreme Court of North Dakota

2021 ND 4

State of North Dakota, Plaintiff and Appellee

v.

Megan Lynn Evanson, Defendant and Appellant

Nos. 20200056, 20200057

Supreme Court of North Dakota

January 12, 2021

Appeal from the District Court of Divide County, Northwest Judicial District, the Honorable Daniel S. El-Dweek, Judge.

Seymour R. Jordan, State's Attorney, Crosby, ND, for plaintiff and appellee.

Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.

OPINION

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 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...

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