State of Minnesota v. Torisa Sulvoris Wallace

This opinion is nonprecedential except as provided by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NONPRECEDENTIAL OPINION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).

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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

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 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.

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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.

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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.

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