APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT YANKTON COUNTY, SOUTH DAKOTA, HONORABLE GLEN W. ENG Judge.
CONSIDERED ON BRIEFS ON MARCH 23, 2009
[¶1.] Dennis List appeals his conviction for accessory to possession of a controlled substance. We affirm.
[¶2.] List, a sixty-year-old resident of Yankton, South Dakota, was romantically involved for a time with a twenty-seven-year-old woman named Sara Auch. Auch had a history of mental illness and substance abuse and was placed on probation for a forgery offense in 2005. Auch used methamphetamine and methadone during her probation, which exacerbated her mental health problems and resulted in her placement at a treatment center and halfway house in Watertown, South Dakota. Auch was eventually transferred back to custody in Yankton and, in 2006, her probation was revoked and she was sentenced to three years in the Women's Penitentiary. Auch was on parole in January 2008, when she was taken into custody as a result of a domestic disturbance. Her urinalysis tested positive for the presence of methamphetamine. Because of her behavior while in custody, Auch was transferred to the Human Services Center for a mental health evaluation. On January 23, 2008, List visited Auch at the Human Services Center and was caught by staff in the act of providing Auch with several methadone tablets. The incident was reported to the authorities and a prosecution was commenced against List.
[¶3.] List was initially charged by complaint with one count of distribution of a controlled substance. Plea bargaining ensued and he ultimately pleaded guilty to one count of accessory to possession of a controlled substance.
[¶4.] Following List's entry of his plea, a presentence investigation was conducted. The report informed the court of Auch's parole revocation and the difficulties she had experienced with substance abuse while on probation and parole. The report further disclosed Auch's allegations that List provided her with oxycontin and methadone and used methamphetamine with her for years in return for sexual favors. Auch specifically named List as the person who provided her with numerous methadone tablets during her stay at the treatment center in Watertown.
[¶5.] List was sentenced on July 15, 2008. Pursuant to the plea bargain, the State recommended a suspended imposition of sentence and a period of three years of probation along with a $1,000 fine. The State also recommended an extended period of house arrest. List addressed the court during sentencing and expressed remorse for his offense and the embarrassment it had caused his family. Before imposing sentence, the court made the following comments that are the genesis of this appeal:
. . . The court many times is presented with cases and the court only peripherally knows victims.
In this case, the victim, Sara Auch, the court knows very well because the court dealt with her on numerous occasions.
We attempted to guide her through recovery at many different levels, many different kinds of institutions and she had a very difficult time.
She has not just addiction issues, but also mental health issues that have to be dealt with and, so, she is a person who this court worked with over a long period of time, and ultimately this court revoked her sentence and sentenced her to three years in the pen[itentiary] because she could not comply with what this court required.
Now, the reason I bring that up is because I think that you contributed to her failure. You contributed to her inability to stay sober because you provided her with the drugs that allowed her to continue her addiction ...