State v. Nelson

                                                                                 FILED
                                                                         IN THE OFFICE OF THE
                                                                      CLERK OF SUPREME COURT
                                                                          DECEMBER 28, 2023
                                                                       STATE OF NORTH DAKOTA




                  IN THE SUPREME COURT
                  STATE OF NORTH DAKOTA

                                

State of North Dakota,                                 Plaintiff and Appellee
     v.
Mathew Nelson,                                      Defendant and Appellant

                         Nos. 20230234 & 20230235

Appeal from the District Court of Divide County, Northwest Judicial District,
the Honorable Robin A. Schmidt, Judge.

AFFIRMED.

Opinion of the Court by Jensen, Chief Justice.

Nathan K. Madden, Special Assistant State’s Attorney, Williston, ND, for
plaintiff and appellee.

Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.
                              State v. Nelson
                         Nos. 20230234 & 20230235

Jensen, Chief Justice.

[¶1] Mathew Nelson appeals from the criminal judgments imposed in two
consolidated cases. Nelson argues the district court relied on impermissible
factors rendering his sentence illegal and that his sentence constituted cruel
and unusual punishment. We affirm.

                                       I

[¶2] In the first case, Nelson was charged with sexual assault, a class A
misdemeanor, and five counts of gross sexual imposition, class A felonies. In
the second case, Nelson was charged with gross sexual imposition, a class A
felony, and corruption of a minor, a class C felony. These cases were
consolidated on appeal.

[¶3] On October 6, 2022, Nelson entered guilty pleas in both cases. The
district court ordered a presentence investigation and psychosexual evaluation
prior to sentencing. At the sentencing hearing, the court acknowledged it
reviewed the file, heard arguments from the parties, and allowed statements
from the child victims and their families. After pronouncing the sentence, the
district court stated, “This is some of the most disturbing conduct I’ve seen in
my ten years on the bench. The swath of destruction you have created is
massive. I doubt I’ve seen the tip of the iceberg of the damage that has been
caused.” Nelson challenges the imposition of twenty years’ imprisonment on
each of six counts of gross sexual imposition, to run consecutively.

                                      II

[¶4] Nelson argues the district court improperly considered arguments that
Nelson was unable to control his behavior and relied on hypothetical harm to
the victims that was not presented to the court by any party. Nelson further
asserts the court based its sentencing decision on the subjective bias of the
court arising from prior cases heard by the sentencing judge, not on the
similarly situated defendants across the State and their sentences. Nelson


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argues this constituted reliance on impermissible factors, rendering his
sentence illegal.

[¶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, 

, 

. A trial judge is allowed the widest range of discretion in
determining the appropriate criminal sentence. State v. Corman, 

, 

. Within this discretion also lies a trial court’s authority
to decide whether a sentence should run concurrently or consecutively. State v.
Salveson, 

, 

.

[¶6] Nelson’s sentence was within the statutory parameters and this Court
exercises a limited review of the discretion of the sentencing court when the
term of imprisonment is within the range authorized by statute. Gonzalez,

. “This Court will vacate a district court’s sentencing decision
only if the court . . . substantially relied on an impermissible factor in
determining the severity of the sentence.” State v. Henes, 

, 

.

[¶7] A district court has discretion to consider the sentencing factors provided
in N.D.C.C. § 12.1-32-04. Henes, 

. Although entitled to
consideration, these sentencing factors do not control the trial court’s
discretion. N.D.C.C. § 12.1-32-04; State v. Steinbach, 

, 

. Moreover, this Court has stated a trial court need not explicitly
reference the factors listed under N.D.C.C. § 12.1-32-04 and has explained the
factors do not constitute an exclusive list of all a trial court may consider in
fixing a criminal sentence. State v. Halton, 

, 739 n.1 (N.D. 1995)
(no need for an explicit reference); Steinbach, at ¶ 24 (not an exclusive list).

[¶8] Nelson argues the district court impermissibly relied on the State’s
argument that Nelson was unable to control his behavior. In this case, the
evidence, specifically the significant concern of impulsivity noted by the
presentence investigator, the high rate of recidivism assigned to Nelson,
Nelson coercing the children not to tell, Nelson employing threats to keep the


                                       2
children compliant, and taking steps to protect himself from being discovered,
suggests Nelson is unable to control his behavior and this conduct falls
squarely within N.D.C.C. § 12.1-32-04(8), (9). There is evidence in the record
to support the court’s consideration of whether Nelson would be able to control
his behavior when the court considered the length of Nelson’s sentence. The
court’s consideration of Nelson’s ability to control his behavior was appropriate
in imposing Nelson’s sentence.

[¶9] Nelson also argues the district court impermissibly relied on the
hypothetical harm that the victims will suffer in the future. Prior to imposing
a sentence, the court heard from the victims and their families who spoke to
the harm they each have experienced and continue to experience. The future
harm caused by the defendant’s conduct is a permissible sentencing factor to
consider. See N.D.C.C. § 12.1-32-04(1).

[¶10] Nelson also claims the district court based its sentencing decision on a
subjective bias because the sentencing judge commented that this case was one
of the worst the court has seen. Nelson has not provided a legal argument to
support his contention that the district court, in making that statement, relied
on an impermissible factor in sentencing him. We conclude the court’s comment
regarding Nelson’s case as it compared to other cases handled by the court was
not a reliance on an impermissible factor in imposing Nelson’s sentence.

                                      III

[¶11] Nelson argues his sentence constitutes cruel and unusual punishment
in violation of the Eighth Amendment of the United States Constitution and
article I, § 11 of the North Dakota Constitution, because a sentence greater
than 100 years has never been imposed in North Dakota.

[¶12] Nelson did not explain how the district court violated his Eighth
Amendment rights or the North Dakota Constitution, and we need not address
this issue further. State v. Bachmeier, 

, 

 (We
do not consider arguments that are not adequately articulated, supported, and
briefed.).



                                       3
                                      IV

[¶13] The district court did not rely on impermissible factors when imposing
Nelson’s sentence and Nelson failed to adequately articulate, support, and brief
his argument that his sentence constituted cruel and unusual punishment. We
affirm the district court’s criminal judgments.

[¶14] Jon J. Jensen, C.J.
      Daniel J. Crothers
      Lisa Fair McEvers
      Jerod E. Tufte
      Douglas A. Bahr




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