from the District Court of Burleigh County, South Central
Judicial District, the Honorable Bruce B. Haskell, Judge.
A. Lawyer, Burleigh County Assistant State's Attorney,
Bismarck, ND, for plaintiff and appellee; submitted on brief.
William R. Thomason, Bismarck, ND, for defendant and
appellant; submitted on brief.
1] Branden Lyon appeals from an amended judgment entered
after his convictions for attempted murder, terrorizing,
terrorizingdomestic violence, and illegal possession of a
firearm. We conclude Lyon's sentence is illegal because
the district court did not act within statutorily prescribed
sentencing limits. The amended judgment is reversed and the
case remanded for resentencing Lyon.
2] In October 2015 Lyon was charged with attempted murder, a
class A felony, terrorizing, a class C felony,
terrorizingdomestic violence, a class C felony and illegal
possession of a firearm, a class C felony. The State alleged
Lyon was a habitual offender due to his numerous prior felony
convictions. The State filed notice requesting Lyon be
sentenced, if convicted, as a dangerous special offender or
habitual offender under N.D.C.C. § 12.1-32-09.
3] In October 2017 a jury found Lyon guilty of all four
charges. A presentence investigation was completed, and a
sentencing hearing was held. The district court sentenced
Lyon to life in prison with the possibility of parole on the
attempted murder charge, and to five years in prison on each
of the remaining three charges. The sentences were
concurrent. A criminal judgment was entered. The judgment was
amended to state the court found Lyon a habitual offender
under N.D.C.C. § 12.1-32-09.
4] Lyon argues the district court erred in sentencing him to
life in prison because no evidence supports the court's
habitual offender finding and the court did not properly find
he was a habitual offender. The State agrees the court failed
to follow statutory requirements for sentencing Lyon as a
5] The district court has discretion in sentencing a
defendant, and our review generally is limited to determining
whether the court acted within the sentencing limits
prescribed by statute or substantially relied upon an
impermissible factor. State v. Clark, 2012 ND 135,
¶ 18, 818 N.W.2d 739. This Court reviews habitual
offender proceedings and the district court's application
of a sentencing enhancement under N.D.C.C. § 12.1-32-09
for an abuse of discretion. State v. Cain, 2011 ND
213, ¶ 16, 806 N.W.2d 597. A court abuses its discretion
when it acts in an unreasonable, arbitrary, or capricious
manner, or when it misinterprets or misapplies the law.
6] A sentence is illegal if it is not authorized by the
judgment of conviction. See State v. Hutchinson,
2017 ND 160, ¶ 9, 897 N.W.2d 321. A sentence in excess
of a statutory provision or in some other way contrary to an
applicable statute is an illegal sentence. See id.
7] The district court sentenced Lyon to life in prison with
the possibility of parole on the attempted murder charge.
Attempted murder is a class A felony under N.D.C.C. §
12.1-06-01. The maximum penalty for a class A felony is 20
years imprisonment. N.D.C.C. § 12.1-32-01. The
court's sentence is not within the statutory limit for a
class A felony.
8] Section 12.1-32-09(1), N.D.C.C., allows the district court
to extend an offender's sentence if the court finds the