This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).
STATE OF MINNESOTA IN COURT OF APPEALS A22-1825
State of Minnesota, Respondent,
vs.
Torisa Sulvoris Wallace, Appellant.
Filed November 20, 2023 Affirmed Ede, Judge
St. Louis County District Court File No. 69VI-CR-22-75
Keith Ellison, Attorney General, St. Paul, Minnesota; and
Kimberly Maki, St. Louis County Attorney, Christopher Florey, Assistant County Attorney, Virginia, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Greg Scanlan, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Cochran, Presiding Judge; Johnson, Judge; and Ede,
Judge.
NONPRECEDENTIAL OPINION
EDE, Judge
In this direct appeal from a judgment of conviction for third-degree murder,
appellant argues that he is entitled to a new sentencing hearing because (1) he received ineffective assistance of counsel and (2) the district court abused its discretion in denying
his motion for a downward departure. We affirm.
FACTS
Underlying Facts and Charges
This case arises from appellant Torisa Sulvoris Wallace’s involvement in the
October 2021 overdose death of Brooke Miller.
Law enforcement learned that, prior to Miller’s death, she had contacted K.C. to
obtain heroin, and that K.C. had contacted Wallace for assistance. Wallace, Miller, and
K.C. met at K.C.’s apartment. Wallace provided narcotics to Miller and left. Police later
found Miller dead in her own apartment due to the “toxic effects of fentanyl.” Two days
after Miller’s death, law enforcement searched Wallace and found him in possession of
15.91 grams of fentanyl. According to a sergeant on the scene of the search, the quantity
of fentanyl Wallace possessed was greater than a “common user amount[,]” which the
sergeant said is 0.1 grams.
Based on the 15.91 grams of fentanyl, respondent State of Minnesota charged
Wallace with second-degree drug sale, in violation of Minnesota Statutes section 152.022,
subdivision 1(1) (2020), and third-degree drug possession, in violation of Minnesota
Statutes section 152.023, subdivision 2(a)(1) (2020). For his role in Miller’s death, the state
later filed a separate complaint (i.e., the matter underlying this appeal) charging Wallace
with one count of third-degree murder, in violation of Minnesota Statutes section
609.195(b) (2020).
2 Pretrial Proceedings and Plea Agreement
At Wallace’s first appearance, the district court set unconditional bail and continued
the matter for a hearing pursuant to Minnesota Rule of Criminal Procedure 8. At the rule 8
hearing, the district court held Wallace without bail due to probation violations in two
separate gross misdemeanor files. A month later, Wallace’s attorney unsuccessfully argued
for a bail reduction. The district court maintained the bail amount in Wallace’s third-degree
murder case and continued to hold him without bail on his probation violations.
Wallace reached a plea agreement with the state. Wallace agreed to plead guilty to
the third-degree murder charge and to admit to probation violations in his two gross
misdemeanor files. The state agreed to recommend the presumptive guidelines sentence,
to withdraw its motions for aggravated sentencing, and to dismiss Wallace’s separate
second-degree drug sale and third-degree possession case, in addition to another pending
drug possession charge. Lastly, the parties agreed that Wallace could argue for downward
departures at sentencing.
At the conclusion of the plea hearing, Wallace’s attorney requested that the district
court release his client. Counsel stated that he had spoken with Wallace about the potential
consequences Wallace could face if Wallace violated his release conditions or the law. This
included withdrawal of the plea agreement. Wallace’s attorney also asserted that Wallace
had a two-year-old son and a job to which he could return upon release:
He’s just really hoping to see his two-year-old son for a few days before he does, most likely, a substantial amount of time at the D.O.C., Your Honor, so we are asking this court to release him. Even if it was just for this weekend or a few days of brief furlough[,] . . . we would beg this court to allow
3 Mr. Wallace a few days with his family before he goes to [the] D.O.C. for a substantial amount of time, Judge.
Reiterating this point, Wallace’s counsel “implore[d] th[e] court to allow [Wallace] a few
days with his young son and his family before he does the D.O.C. time.” The state opposed
Wallace’s request for release, countering that it had substantial public safety concerns and
noting that Wallace had a prior fleeing charge from 2020. Regarding the fleeing charge,
Wallace’s attorney replied that Wallace had returned to his home and contacted his
probation officer, which showed “a good faith effort” by Wallace to keep probation
apprised of his location. The district court denied Wallace’s request for release, maintained
bail in the third-degree murder case, and held Wallace without bail in his probation
violation matters.
Sentencing
Prior to sentencing, Wallace’s attorney filed a motion for a downward dispositional
departure and, in the alternative, for a downward durational departure. At the sentencing
hearing, Wallace’s attorney maintained that the district court should analyze the case and
the departure analysis through a “framework” that included the opioid epidemic. Counsel
noted that “the amount of fentanyl that is flooding the U.S. markets and the black market
is unparalleled” and that the Centers for Disease Control and Prevention’s “quantitative
statistics between 2019 and [20]20” show that “opioid overdoses for synthetic drugs . . .
increased . . . fifty-six percent.” During its sentencing argument, the state similarly referred
to the frequency of overdose deaths in the community.
4 In sentencing Wallace, the district court stated that it had heard the sentencing
argument of Wallace’s attorney and reviewed “all the written submissions[,]” which
included the presentence investigation report, the sentencing worksheet, Wallace’s motion
for departures, Wallace’s support letters, and the state’s response to Wallace’s motion. The
district court said that, “before this hearing today, [the court had] sentenced no less than
eight people for offenses involving controlled substances and drug-related offenses . . . .”
The court continued: “I think we can all agree drugs play a negative role in society. People
have lost housing, lost family, lost friends.” The district court further stated that the opioid
epidemic referenced by both Wallace’s attorney and the state’s counsel “is not news to
anybody” and “[t]he fact that fentanyl is laced in many drugs that are being delivered is
not a secret[.]” Observing both that Wallace had sold “drugs to an individual who was
vulnerable” because she was “in need of a dose to not feel sick” and that people sought out
Wallace as a drug supplier, the court told Wallace: “[W]hen you choose to sell drugs to
another individual, you’re essentially playing Russian roulette . . . with their lives, and . . .
here Ms. Miller’s life is lost.”
The district court ruled that it could not “find substantial and compelling reasons to
depart from the sentencing guidelines[,] either dispositionally or durationally.” The court
expressly “based [that decision] on [Wallace’s] criminal history.” In particular, the district
court described its review of Wallace’s “opportunities at probation in the past” and his
involvement in “the criminal justice system for no less than twenty some years[,]” with his
“first felony offense dat[ing] back to 2000” and “a recent offense where [he was] sent to
prison in 2016.” The court noted that Wallace had “an opportunity to be back on probation”
5 but “continu[ed] to sell drugs in the community and . . . this incident occurred.” In addition,
the district court explained that it could not “take a chance” on Wallace because it would
“put a number of people at risk in the public . . . based on the crimes [Wallace] has had
against persons, . . . crimes relative to weapons, and prior drug offenses.” The court
referenced information the state had submitted prior to sentencing that indicated Wallace
was attempting to collect drug debts “to post bail” and “improve [his] situation.” Lastly,
the district court considered deterrence, reasoning that imposing a “sentence that’s not
presumed by law . . . doesn’t send the right message to the community in this situation[.]”
Accordingly, the court chose “to follow the sentencing guidelines.”
Denying Wallace’s request for a departure, the district court sentenced Wallace to
134 months in prison. 1 Wallace appeals.
DECISION
Wallace seeks a new sentencing hearing, asserting (1) that his attorney’s
performance at the plea hearing constituted ineffective assistance of counsel and (2) that
the district court abused its discretion in denying his downward departure motion at
sentencing. The state contends that Wallace’s attorney was not ineffective and that the
district court did not err in sentencing Wallace. We agree with the state.
1 The district court also imposed concurrent, time-served sentences on Wallace’s two admitted gross misdemeanor probation violations, discharging him from probation on those files.
6 I. Wallace’s Attorney Did Not Provide Deficient Representation and His Performance Did Not Prejudice Wallace.
When an appellant raises an ineffective assistance of counsel claim on direct appeal,
we analyze that claim under the two-prong Strickland test. 2 See Peltier v. State, 946
N.W.2d 369, 372 (Minn. 2020) (applying Strickland). To meet this test, an appellant must
demonstrate that (1) the attorney’s representation “fell below an objective standard of
reasonableness” and (2) “there was a reasonable probability that, but for [the attorney’s]
errors, the result of the proceedings would have been different.” Peltier, 946 N.W.2d at
372 (quotation omitted). When one prong of the Strickland test is determinative, we need
not address the other prong. Id. Generally, we will not review attacks on counsel’s trial
strategy. See State v. Nicks, 831 N.W.2d 493, 506 (Minn. 2013). And we apply a strong
presumption that an attorney’s “performance falls within the wide range of reasonable
professional assistance.” State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986) (quotation
omitted). Claims of ineffective assistance of counsel present mixed questions of law and
fact, which we review de novo. State v. Mouelle, 922 N.W.2d 706, 715 (Minn. 2019).
A. Wallace’s representation did not fall below an objective standard of reasonableness.
As to the first Strickland prong, Wallace argues that he received deficient
representation because (1) his counsel twice conceded at the plea hearing that Wallace was
going to prison and (2) his counsel “allowed” the district court to “unlawfully” hold
Wallace without bail on his two gross misdemeanor probation violations. We disagree.
2 Strickland v. Washington, 466 U.S. 668, 687 (1984).
7 Based on our review of the record, it was objectively reasonable for Wallace’s
attorney to reference the likelihood of an executed sentence in his argument for a pre-
sentencing furlough. Appellate courts “give trial counsel wide latitude to determine the
best strategy for the client.” Nicks, 831 N.W.2d at 506. And there is nothing strategically
inappropriate about counsel’s argument. Wallace had just pleaded guilty to murder, he was
on probation when the incident occurred, and—with a criminal history score of 4—he was
facing a presumptive commitment of 134 months. Wallace’s attorney acknowledged this
context and strategically utilized his client’s worst-case scenario in seeking Wallace’s
release. While discussing Wallace’s potential prison sentence, Wallace’s counsel noted that
Wallace had a job waiting for him, that Wallace had a small child, and that Wallace
understood the severity of the consequences he would face if he failed to remain law-
abiding. Under these circumstances, imploring the district court to allow Wallace “to see
his two-year-old son for a few days before he does, most likely, a substantial amount of
time at the D.O.C.” is a reasonable strategy. 3
Likewise, Wallace’s counsel did not perform deficiently at the plea hearing by
failing to address the hold-without-bail status of his client’s two gross misdemeanor
3 Wallace also faults his attorney’s release argument for failing to include his amenability to supervision. But we are aware of no authority—and Wallace cites none—requiring such an argument here. That said, Wallace’s counsel did address his client’s amenability to supervision, including by discussing Wallace’s “good faith effort” to keep probation informed of his location following the 2020 fleeing incident and by explaining Wallace’s awareness of the consequences he faced if he returned to criminal conduct on release. In addition, had the district court granted the requested pre-sentencing furlough, Wallace’s attorney could have referenced his client’s commitment to his two-year-old son and return to employment as evidence of amenability in support of his departure motion, regardless of the furlough’s length.
8 probation violations. Although Wallace points out that he had served close to two-thirds of
both potential revocation sentences at the time of the plea hearing, he disregards the district
court’s discretion to impose consecutive revocation sentences. See Minn. Stat. § 609.15,
subd. 1(b) (2020). And regardless of Wallace’s probation holds, the district court was
entitled to hold Wallace without bail on the third-degree murder charge to which he had
just pleaded guilty. See Minn. R. Crim. P. 27.01 (“After conviction but before sentencing,
the court may continue or alter the terms of release, or the court may confine the
defendant.”). In any case, although Wallace’s attorney did not directly address the hold-
without-bail status of the probation violations, his argument for Wallace’s outright release
effectively requested that the court lift the holds.
In sum, given our deference to counsel’s strategic decisions, Wallace’s
representation did not fall below an objective standard of reasonableness.
B. There was no reasonable probability that, but for the conduct of Wallace’s attorney, the result of the proceedings would have been different.
Regarding the second Strickland prong, Wallace maintains that his attorney
prejudiced his motion for sentencing departures by discussing his potential prison sentence
at the plea hearing. We are not persuaded.
Given our foregoing conclusion that defense counsel’s performance did not fall
below an objective standard of reasonableness, we need not address the prejudice prong.
See Peltier, 946 N.W.2d at 372. That said, there was no reasonable probability that—but
for counsel’s performance—the result of Wallace’s sentencing would have been different.
9 This is because the district court did not deny Wallace’s motion based on the
arguments Wallace’s counsel advanced at the plea hearing. Instead, after listening to the
sentencing argument of Wallace’s attorney and reviewing “all the written submissions[,]”
the district court set forth explicit bases for its determination that it could not “find
substantial and compelling reasons to depart from the sentencing guidelines[,] either
dispositionally or durationally[,]” none of which included any concessions by Wallace’s
attorney. The court cited Wallace’s criminal history as its primary basis, including: (1) his
previous poor performance on probation; (2) his involvement in the criminal justice system
for more than twenty years; (3) his commission of the underlying offense while under
supervision; and (4) the threat to public safety posed by the types of offenses Wallace had
committed (e.g., crimes against persons, weapons crimes, and prior drug offenses). The
court also relied on information the state had provided that evidenced an attempt by
Wallace to collect drug debts for bail money. Finally, the court grounded its denial of
Wallace’s motion in its concern for general deterrence, favoring a guidelines sentence to
“send the right message to the community[.]”
Based on our review of the record, there is no indication that the district court
declined to depart from the guidelines based on what Wallace’s attorney had argued at the
plea hearing. Wallace has therefore failed to demonstrate a reasonable probability that, but
for his attorney’s conduct, the result of his sentencing proceeding would have been
different.
10 II. The District Court Did Not Abuse Its Discretion in Sentencing Wallace.
A district court must impose a sentence within the Minnesota Sentencing
Guidelines’ presumptive range unless it finds substantial and compelling circumstances to
depart. See State v. Barthman, 938 N.W.2d 257, 270 (Minn. 2020). “Substantial and
compelling circumstances” are circumstances that make the facts of a particular case
distinct from a typical case. Taylor v. State, 670 N.W.2d 584, 587 (Minn. 2003). If a district
court finds such circumstances exist, it may but is not required to depart from the
presumptive sentence. See Wells v. State, 839 N.W.2d 775, 781 (Minn. App. 2013), rev.
denied (Minn. Feb. 18, 2014). The district court is not required to give an explanation when
the court considers reasons for departure but nevertheless imposes a presumptive sentence.
See State v. Musse, 981 N.W.2d 216, 220 (Minn. App. 2022), rev. denied (Minn. Dec. 28,
2022). We will affirm a presumptive sentence if the record demonstrates that “the
sentencing court carefully evaluated all the testimony and information presented before
making a determination.” State v. Johnson, 831 N.W.2d 917, 925 (Minn. App. 2013)
(quotation omitted), rev. denied (Minn. Sept. 17, 2013). We review a district court’s
decision not to depart from the sentencing guidelines for an abuse of discretion. See State
v. Oberg, 627 N.W.2d 721, 724 (Minn. App. 2001), rev. denied (Minn. Aug. 22, 2001).
A. The district court did not abuse its discretion by considering evidence outside the record or by making findings not supported by the record.
Citing State v. Dorsey, 701 N.W.2d 238 (Minn. 2005), Wallace contends that the
district court violated his right to an impartial judge by erroneously sentencing him based
11 on evidence outside the record and by making unsupported findings. Wallace’s arguments
are unavailing.
In his principal brief, Wallace argues that the district court “expressly relied” on
facts not in the record by referring to information that Wallace was attempting to collect
drug debts for bail money, which the state submitted prior to sentencing. But in his reply
brief, Wallace concedes that the information the court referenced was included in an exhibit
the state had filed in the Minnesota Digital Exhibit System (MNDES). 4 Nonetheless,
Wallace maintains—without citation to supporting legal authority—that the exhibit’s
content reaches beyond the hearsay statements normally considered by district courts at
sentencing. Contrary to Wallace’s argument, the Minnesota Rules of Evidence, other than
those with respect to privileges, do not apply to sentencing hearings. See Minn. R. Evid.
1101(b)(3).
Wallace also claims that the district court was “plainly influenced” by evidence
outside the record, namely, the other drug cases the court heard prior to Wallace’s
sentencing hearing. Wallace relies on Dorsey in asserting that an impartial proceeding
requires that district courts base their conclusions only on facts in evidence and not extra-
record matters. Although Dorsey discussed the “impartial judge” rule in the context of a
bench trial, we have, in nonprecedential opinions, extended the rule to sentencing hearings.
See, e.g., State v. Leckner, No. A19-1007, 2020 WL 3172651, at *3 (Minn. App. 2020);
4 This digital exhibit is not included in the record on appeal. We note this only to underscore the importance of uploading digital exhibits prior to hearings so that the district court can record its rulings on admissibility in MNDES and, where appropriate, ensure that digital exhibits become part of the record on appeal.
12 State v. Knopik, A22-0766, 2023 WL 193989, at *5 (Minn. App. 2023), rev. denied (Minn.
Mar. 28, 2023). But the district court did not rely on evidence outside the record in
sentencing Wallace. The court did mention at the outset of its ruling that it had previously
sentenced eight or more people for offenses that involved controlled substances. This
comment, however, was brief and responsive to arguments by both Wallace’s attorney and
the state regarding the effects of drugs on the community-at-large. After the district court’s
reference to the other cases it had heard that day, the court discussed the specifics of
Wallace’s case and did not rely on those other cases during its detailed statement of the
bases for Wallace’s sentence.
Wallace also asserts that the district court made findings not supported by the record
by stating that Wallace continued to sell drugs while on probation, implying without
evidence that Wallace had a prior history of narcotics trafficking. The record before the
district court did establish, however, that Wallace had a conviction for selling a simulated
controlled substance before he engaged in the conduct underlying the present offense.
Moreover, in this case, K.C. had contacted Wallace for help obtaining drugs for Miller.
The fact that K.C. believed Wallace would have drugs for Miller to purchase indicates that
Wallace was known to sell narcotics and supports a reasonable inference that Wallace had
done so in the past. In addition, two days after Wallace sold drugs to Miller—while Wallace
remained on probation in his two gross misdemeanor cases—police found him in
possession of 15.91 grams of fentanyl, which a sergeant described as more than a common
amount for personal use. The district court’s statement about Wallace’s continued sale of
drugs had ample support in the record.
13 Finally, Wallace claims that the district court had no basis for imputing knowledge
to him about the effects of fentanyl and its presence in street drugs, including in a substance
he believed was heroin. The record does not indicate that the district court expressly
imputed knowledge to Wallace. Instead, the court noted that, because it “is not a secret”
that “fentanyl is laced in many of the drugs that are delivered[,]” when drug dealers “choose
to sell drugs to another individual,” they are “essentially playing Russian roulette . . . with
their lives and . . . here Ms. Miller’s life is lost.” This does not necessarily suggest that the
court imputed knowledge to Wallace that he knew that the drugs he sold Miller were
fentanyl, just that such a risk is generally well-known. And the district court’s comment
was responsive to the sentencing argument by Wallace’s attorney, who requested that the
court consider the offense through the lens of the opioid epidemic. But even assuming
without deciding that the district court’s statement did impute knowledge to Wallace, the
fact that law enforcement discovered Wallace in possession of 15.91 grams of fentanyl just
a couple days after his sale to Miller supports a reasonable inference of knowledge. More
fundamentally, we disagree with Wallace because the court’s specific articulation of the
reasons for his sentence did not include any reference to his knowledge that the drugs he
sold to Miller were fentanyl.
We therefore conclude that the district court did not abuse its discretion because it
did not sentence Wallace based on evidence outside the record and it did not make
unsupported findings.
14 B. The district court did not abuse its discretion in its consideration of Wallace’s motion for a durational departure.
Wallace argues that, by engaging in a “limited discussion” of his requested
durational departure, the district court failed to deliberately consider the factors he asserted
in support of his motion. More specifically, Wallace contends that the district court said
very little about whether he had a minor role in the crime, treated his case generally rather
than addressing his specific conduct, and did not sufficiently consider whether the offense
was less serious than others of its nature. The record defeats these contentions.
“A durational departure must be based on factors that reflect the seriousness of the
offense, not the characteristics of the offender.” State v. Solberg, 882 N.W.2d 618, 623
(Minn. 2016) (citing State v. Chaklos, 528 N.W.2d 225, 228 (Minn. 1995)). Downward
durational departures are justified only when a defendant’s conduct was “significantly less
serious than that typically involved in the commission of the offense.” Id. at 624 (quotation
omitted).
Here, the district court prefaced its sentencing ruling with an acknowledgment that
it had heard the argument of Wallace’s attorney and had reviewed “all the written
submissions[.]” Those submissions necessarily included the presentence investigation
report, the sentencing worksheet, Wallace’s motion for departures, Wallace’s support
letters, and the state’s response to Wallace’s motion. In particular, Wallace’s motion
asserted that “the circumstances surrounding the [drug] transaction provide mitigation for
a durational departure[,]” including the fact that it was K.C. who had arranged the narcotics
sale that led to Miller’s death. Because the district court reviewed Wallace’s motion, the
15 court considered Wallace’s role versus that of K.C. in determining the appropriate
sentence.
In addition, although the district court was not required to give an explanation when
it considered Wallace’s departure motion but nevertheless chose to impose a presumptive
sentence, Musse, 981 N.W.2d at 220, the court did discuss the bases for its decision not to
depart. For example, the court explained that, in facilitating Miller’s purchase, K.C.
specifically sought out Wallace as an individual who could provide the drugs Miller wanted
and that Wallace sold those drugs to a vulnerable individual. The court also stated that
Wallace essentially played “Russian roulette” by selling narcotics because—even if
Wallace was unaware that the drugs contained fentanyl—he risked providing a fatal
substance to Miller, and Wallace’s sale did result in Miller’s death. Given that these factors
reflect the seriousness of the offense, the district court did not abuse its discretion in
declining to depart based on its determination that Wallace’s conduct was not “significantly
less serious than that typically involved in the commission of the offense.” Solberg, 882
N.W.2d at 624 (quotation omitted).
Because the record reflects that “the sentencing court carefully evaluated all the
testimony and information presented before making a determination[,]” we affirm the
district court’s imposition of a presumptive guidelines sentence in this case. Johnson, 831
N.W.2d at 925 (quotation omitted).
Affirmed.