Parole Practices Cannot Create an Illegal Mandatory Minimum from Lawful Consecutive Sentences: State v. Wallette, 2025 ND 190

Introduction

In State v. Wallette, 2025 ND 190, the North Dakota Supreme Court affirmed a 30-year aggregate prison sentence imposed through consecutive terms for a series of high-dollar property crimes. The case presents a thorough discussion of three key issues: (1) whether a lengthy, within-range sentence for non-violent property offenses is “cruel and unusual” under the Eighth Amendment and Article I, § 11 of the North Dakota Constitution; (2) whether consecutive felony sentences, when understood alongside Parole Board practices, amount to a de facto mandatory minimum that violates the Legislature’s sentencing scheme; and (3) whether several additional challenges—rooted in alleged Judicial Code of Conduct violations and equal protection—were adequately preserved for review.

The defendant, Triston Lee Wallette, pled guilty to ten offenses arising from a spree that included two counts of burglary (class C felonies), one count of criminal attempt (class B felony), one count of theft of property (class B felony), five counts of criminal mischief (class B felonies), and one count of criminal mischief (class A misdemeanor). The conduct caused more than $1 million in property damage to an airport hangar, an airplane, and vehicles, and included the theft of an ATV. The district court originally imposed consecutive sentences totaling 51 years. On a timely motion under N.D.R.Crim.P. 35, the court granted partial leniency, reducing the consecutive sentences to an aggregate of 30 years, citing, in part, the time it took the victim to build the impacted agricultural aviation business. The court also ordered restitution of $306,400 to reflect losses not covered by insurance. Wallette appealed from the order denying in part his Rule 35 motion and from the amended criminal judgment.

Summary of the Opinion

The North Dakota Supreme Court affirmed. The Court held:

• The 30-year aggregate sentence, though harsh, did not violate the constitutional prohibition against cruel and unusual punishment because it fell within statutory limits and was not grossly disproportionate to the gravity of the offenses and Wallette’s criminal history.
• No statutory law was violated by imposing consecutive sentences for the felony counts; there is no prohibition on consecutive felony sentences, and speculative references to Parole Board practices cannot transform lawful consecutive terms into an “illegal” de facto mandatory minimum.
• Claims based on alleged Judicial Code of Conduct violations (reliance on extra-record information) and equal protection were waived or inadequately developed and, therefore, not addressed on the merits.

Procedurally, although the Court noted a split among jurisdictions on whether Rule 35 is the proper vehicle for cruel-and-unusual punishment claims, it resolved the issue here on direct appeal because Wallette filed within the appeal period and obtained an amended judgment. The Court specifically reserved deciding whether such constitutional claims may be pursued via Rule 35 after the time for appeal has lapsed.

Analysis

Precedents Cited and Their Influence

The Court’s analysis is anchored in familiar North Dakota and federal sentencing principles:

• Scope of Rule 35; appealability: The Court reiterated the distinction between Rule 35(a) (illegal sentence; appealable) and Rule 35(b) (leniency; not appealable) from Rahn v. State, 2007 ND 121, ¶¶ 8–9, 736 N.W.2d 488. It drew on State v. Glasser, 2021 ND 60, ¶ 7, 956 N.W.2d 373, and State v. Hutchinson, 2017 ND 160, ¶ 9, 897 N.W.2d 321, for the contours of an “illegal sentence,” noting that sentences contrary to statute, inconsistent with oral pronouncements, or imposed without jurisdiction fall within Rule 35(a). State v. Booth, 2015 ND 59, ¶ 4, 861 N.W.2d 160, also underscores that an illegal sentence is one that exceeds or contravenes statutory provisions.
• Rule 35 and Eighth Amendment claims—jurisdictional split: The Court surveyed divergent approaches: cases refusing to allow Eighth Amendment claims under Rule 35-like mechanisms (Montgomery v. Louisiana, 577 U.S. 190 (2016) (noting Louisiana’s scheme); State v. Warrior, 368 P.3d 1111 (Kan. 2016); Kramer v. State, 326 So.3d 1202 (Fla. Dist. Ct. App. 2021); Lykins v. State, 894 So.2d 302 (Fla. Dist. Ct. App. 2005)) versus those treating such claims as challenges to the legality of sentence (State v. Mullins, 2025 UT 2; Commonwealth v. Brown, 71 A.3d 1009 (Pa. Super. Ct. 2013)). The Court declined to choose sides because Wallette’s challenge came via a timely direct appeal after an amended judgment. It also referenced State v. Eagleman, 2024 ND 231, ¶ 6, 14 N.W.3d 91, warning against using Rule 35 to evade the Uniform Postconviction Procedure Act’s (UPPA’s) two-year filing bar (N.D.C.C. § 29-32.1-01(1)(a), (2)).
• Standards of review and proportionality: The opinion leaned on State v. Blue, 2018 ND 171, ¶¶ 27–28, 915 N.W.2d 122, and State v. Rinde, 2024 ND 33, ¶ 6, 3 N.W.3d 165 (quoting State v. Gonzalez, 2024 ND 4, ¶ 6, 1 N.W.3d 919), to emphasize broad sentencing discretion within statutory limits and the limited scope of appellate review. For disproportionality, the Court applied the two-step test from State v. Gomez, 2011 ND 29, ¶ 26, 793 N.W.2d 451, and State v. Greene, 2025 ND 10, ¶ 13, 16 N.W.3d 188. The governing Eighth Amendment framework also reflects U.S. Supreme Court guidance: the “narrow” proportionality principle (Graham v. Florida, 560 U.S. 48, 59 (2010)) and harm-sensitive gradations (Solem v. Helm, 463 U.S. 277, 293 (1983)).
• Statutory structure of sentencing: The Court relied on N.D.C.C. § 12.1-32-01 (class-based maximums: 10 years for a class B felony, 5 years for a class C felony, 360 days for a class A misdemeanor) and § 12.1-32-11(3) (limits consecutive terms for misdemeanors but not for felonies). It cited State v. Larsen, 2023 ND 144, ¶ 20, 994 N.W.2d 194 (quoting State v. Huffling, 2009 ND 3, ¶ 3, 763 N.W.2d 799) to affirm trial court discretion to run felony sentences consecutively. The Court also invoked textualist principles of statutory construction (Larsen v. N.D. Dep’t of Transp., 2005 ND 51, ¶ 11, 693 N.W.2d 39; N.D.C.C. § 1-02-05).
• Waiver and preservation: The Court contrasted unwaivable claims that a sentence is unauthorized with waivable claims alleging procedural or factual flaws in sentencing, citing State v. Roller, 2024 ND 180, ¶ 21, 11 N.W.3d 864, and reaffirmed preservation rules (Mead v. Hatzenbeller, 2023 ND 248, ¶ 21, 999 N.W.2d 618). It emphasized that undeveloped arguments are waived (Hoever v. Wilder, 2024 ND 58, ¶ 5, 5 N.W.3d 544; Riemers v. City of Grand Forks, 2006 ND 224, ¶ 9, 723 N.W.2d 518). On equal protection’s rational-basis test as a legislative review tool, the Court cited Condon v. St. Alexius Med. Ctr., 2019 ND 113, ¶ 10, 926 N.W.2d 136).

Legal Reasoning

1) Cruel and Unusual Punishment

The Court conducted the standard disproportionality analysis. Under the first (threshold) step, it compared the gravity of the offenses against the harshness of the sentence. Wallette’s crimes, though non-violent, involved extraordinary property harm—more than $1 million in damage—and the Legislature expressly authorizes sentencing courts to consider property harm (N.D.C.C. § 12.1-32-04) and scales penalties with pecuniary loss (e.g., N.D.C.C. § 12.1-21-05). The Court also noted Wallette’s robust criminal history and the district court’s express reliance on incapacitation and deterrence—concern that the likelihood of reoffense was “strikingly high.”

Emphasizing the “narrow” scope of the Eighth Amendment’s proportionality principle, the Court reiterated that it has never invalidated a within-range sentence under Article I, § 11 and that the U.S. Supreme Court has only once struck down an adult prison term as cruel and unusual. Wallette did not clear the “extraordinarily high” burden to show gross disproportionality. Because step one failed, the Court did not proceed to comparative intrajurisdictional and interjurisdictional analysis (step two). The sentence—though “very harsh”—was constitutionally valid.

2) Consecutive Felony Sentences and “Practical” Mandatory Minimums

Wallette conceded that none of his offenses carried a statutory mandatory minimum (see N.D.C.C. § 12.1-32-02.1) and that each component sentence fell within statutory maxima. He argued instead that the combination of consecutive terms and Parole Board practices created a “practical” mandatory minimum contrary to the Legislature’s intent.

The Court rejected the argument on multiple grounds:

• Text controls. There is no statutory prohibition on consecutive felony sentences. Courts have discretion to run felony sentences consecutively.
• “Unexpressed intent” cannot override statutory text. The Court will not add conditions to the sentencing statutes under the pretext of pursuing legislative spirit (N.D.C.C. § 1-02-05; Larsen v. N.D. Dep’t of Transp.).
• The record lacked any legal authority establishing that Parole Board procedures prevent simultaneous or coordinated parole decisions across consecutive sentences or otherwise impose a de facto minimum term before parole eligibility.

Absent a statutory violation or a demonstrated legal barrier to parole, the sentence was not “illegal,” and the “practical mandatory minimum” theory failed.

3) Waiver of Judicial Conduct and Equal Protection Claims

Two additional claims were not preserved for appellate review:

• Judicial Code of Conduct claim: Wallette argued on appeal that the judge referenced information outside the record (airplane resale values obtained from pilot friends). The Supreme Court treated this as a challenge to the manner in which the sentence was imposed—precisely the kind of claim that can be waived if not adequately raised below. Because Wallette’s Rule 35 submissions noted the comment but did not assert a Code-based violation or seek relief on that ground, the issue was waived (see Roller’s distinction between an unauthorized sentence and procedural/factual flaws; Mead).
• Equal protection: Wallette invoked rational-basis review to argue sentence disparity. The Court explained rational-basis review tests legislative classifications, not individual sentencing decisions. With no authority supporting its application to a judge’s sentencing choice, and no developed argument, the issue was waived (Hoever; Riemers; Condon).

Impact

This decision carries several consequential signals for North Dakota sentencing practice and appellate strategy:

• Durability of within-range sentences against Eighth Amendment attack: The Court’s reliance on Greene, Blue, and Gomez confirms that North Dakota remains exceptionally reluctant to find “gross disproportionality” for adult offenders when sentences fall within statutory limits. Even non-violent property crimes can justify lengthy aggregate terms where the harm is massive, the criminal history is serious, and incapacitation concerns are pronounced.
• Consecutive felony sentencing remains a robust tool: Trial courts retain wide discretion to stack felony sentences. The absence of a statutory cap on aggregate felony terms—contrasted with express limits for misdemeanors—means courts may calibrate punishment count-by-count for multi-offense conduct. Attempts to recast parole administration as a “practical mandatory minimum” will likely fail absent a clear statutory or regulatory bar to parole eligibility.
• Textualism in sentencing statutes: Practitioners should not expect courts to infer unstated limits based on legislative “intent.” Arguments must tie directly to statutory text or duly promulgated rules.
• Preservation matters: Claims that a court relied on extra-record information or otherwise mismanaged the sentencing process must be clearly asserted in the trial court, with citations to the Judicial Code of Conduct or other authority and a request for specific relief. Otherwise, they will be deemed waived on appeal under Roller and Mead.
• Rule 35 and constitutional sentencing claims: While the Court reserved whether Eighth Amendment claims are cognizable under Rule 35 after the appeal window, it signaled one safe avenue: file within the time for direct appeal, obtain an amended judgment if applicable, and raise the constitutional claim on direct review. Practitioners should avoid using Rule 35 to sidestep the UPPA.
• Property-loss valuation and sentencing: The opinion reinforces that financial magnitude matters. Statutory structures that scale penalties by pecuniary loss, coupled with Solem’s recognition that theft/damage magnitude is relevant, support significant sentences in property cases with extraordinary losses.

Complex Concepts Simplified

• “Illegal sentence” under Rule 35(a): A sentence is illegal if it violates a statute, conflicts with the oral pronouncement, is ambiguous as to service, breaches a plea agreement, or exceeds the court’s jurisdiction. It is not “illegal” merely because it is harsh or because of speculative parole consequences.
• Leniency under Rule 35(b): A request for mercy or sentence reduction is discretionary and, when denied, is generally not appealable because it does not affect a substantial right.
• Consecutive vs. concurrent sentences: Concurrent sentences run at the same time; consecutive sentences run one after another. North Dakota limits stacking for misdemeanors (N.D.C.C. § 12.1-32-11(3)) but not for felonies.
• Mandatory minimum vs. parole: A mandatory minimum is a statutory requirement fixing a minimum time that must be served before eligibility for release. Parole is a discretionary, administrative process. Parole practices do not, by themselves, convert lawful sentences into statutory mandatory minimums.
• Eighth Amendment proportionality: A sentence is unconstitutional only if it is “grossly disproportionate” to the offense. Courts assess severity of harm, culpability, and offense gravity. Only if a sentence appears grossly disproportionate do courts compare it with sentences for similar crimes within the jurisdiction and elsewhere.
• Preservation and waiver: Issues not clearly raised and supported in the trial court are typically waived on appeal, especially claims about how a sentence was imposed (e.g., use of extra-record information), as opposed to claims that a sentence is unauthorized under any circumstances.

Conclusion

State v. Wallette solidifies several enduring themes in North Dakota sentencing law. First, within-range sentences—however severe—are exceedingly difficult to overturn as cruel and unusual for adult offenders, particularly where the defendant’s conduct yields extraordinary property loss and the record supports incapacitation and deterrence. Second, trial courts retain wide latitude to impose consecutive felony sentences, and parole administration will not be used to manufacture an “illegal” mandatory minimum in the absence of textual authority. Third, preservation remains paramount: challenges to the sentencing process must be clearly articulated at the trial level with supporting authority.

Procedurally, the Court left open an important question: whether Eighth Amendment sentencing claims may be pursued under Rule 35 after the direct-appeal period has run. Until that question is resolved, defense counsel seeking appellate review of constitutional sentencing issues should act within the appeal window and proceed via direct appeal. Overall, Wallette underscores North Dakota’s textualist approach to sentencing statutes, its deferential posture to trial courts exercising discretion within statutory bounds, and its insistence on rigorous preservation and presentation of appellate claims.