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Justices probe whether Rule 35 can carry constitutional sentencing claims on direct appeal
Summary
At oral argument, counsel disputed whether constitutional challenges to a sentence may be raised through Rule 35, direct appeal, or post‑conviction proceedings. Justices questioned preservation requirements and whether objections at sentencing are necessary to preserve impermissible‑factor claims.
During argument in State v. Tristan Lee Willett on Oct. 5, the North Dakota Supreme Court considered a procedural question with broad appellate significance: whether constitutional claims about sentencing may be raised under Rule 35, on direct appeal, or only in post‑conviction proceedings.
Defense counsel Kira Krausspar told the court an illegal sentence — whether statutory or constitutional — can be raised at any time and urged the justices to consider Willett’s Eighth Amendment and equal‑protection challenges despite the Rule 35 posture. “If the sentence is illegal, it’s illegal and it should be dealt with,” Krausspar said.
State counsel Joshua Fry acknowledged case law permitting illegal‑sentence claims at different stages but told the court he had not researched the specific interplay of Rule 35 and constitutional claims; he suggested the court might request supplemental briefing. Fry said the parties did have opportunities to raise such issues earlier and that the amended judgment from the Rule 35 proceeding is now the appealed order.
The justices pressed both sides on record preservation. Several asked whether a party must object at sentencing to preserve a claim that the court relied on impermissible factors; counsel and the state agreed that, as a practical matter, developing a contemporaneous record is preferable but that existing precedent allows some illegal‑sentence claims to be raised later. The justices also discussed timing windows mentioned in the argument: a 120‑day rule for certain filings, and that post‑conviction practice can provide a two‑year window for statutory or constitutional challenges in some circumstances.
The court did not resolve the preservation question at argument and took the case under advisement.
