Considered on Briefs May 26, 2015
APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT CLAY COUNTY, SOUTH DAKOTA. THE HONORABLE CHERYLE W. GERING, Judge.
MARTY J. JACKLEY, Attorney General, CAROLINE A. SRSTKA, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
MATTHEW R. METZGAR of Rhinehart Law, P.C., Sioux City, Iowa, Attorneys for defendant and appellant.
WILBUR, Justice. GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and KERN, Justices, concur.
[¶1] Traun L. Cook was convicted of aggravated assault and simple assault. Cook filed a motion to correct an illegal sentence. Cook appeals the circuit court's denial of his motion, arguing that the court erred as a matter of law because the oral pronouncement of his sentence was ambiguous or internally contradictory and, therefore, constituted an illegal sentence. We affirm.
[¶2] On December 3, 2008, a jury found Cook guilty of aggravated assault under SDCL 22-18-1.1(4) and simple assault under SDCL 22-18-1(5). Cook admitted to an information for enhancement of simple assault and to a part II information for habitual offender. The sentencing court, the Honorable Judge Arthur Rusch presiding, sentenced Cook on January 30, 2009, to 20 years in the South Dakota State Penitentiary with 10 years suspended for aggravated assault and 2 years in the penitentiary for simple assault, to run concurrently. The sentencing court filed an amended judgment and sentence on February 5, 2009.
[¶3] Cook appealed his conviction to this Court on February 5, 2009. We summarily affirmed his conviction. State v. Cook, 779 N.W.2d 166 (S.D. 2009). Afterwards, the circuit court appointed Scot Mannschreck to represent Cook. Cook, through his attorney, filed a motion to amend his sentence on July 9, 2014. The circuit court, the Honorable Judge Cheryle Gering presiding, denied the motion without a hearing because " the two years during which time the sentencing court retains jurisdiction pursuant to SDCL 23A-27-19 and/or SDCL 23A-31-1 has long since expired."
[¶4] The circuit court appointed Matthew Metzgar on October 15, 2014, to represent Cook after Cook applied for new court-appointed counsel. Cook filed a motion to correct an illegal sentence on October 23, 2014, alleging that his sentence was ambiguous or internally contradictory. Specifically, Cook contended that his sentence was ambiguous or internally contradictory because Judge Rusch stated that the court retained control and jurisdiction over Cook for the entirety of his sentence. According to Cook, Judge Rusch only retained jurisdiction and control over him for two years; therefore, his sentence was in contravention of the law of this state. Furthermore, Cook alleged that the order was ambiguous or internally contradictory as to whether the circuit court intended to
place him on probation or on parole after he finished serving ten years in the penitentiary. Cook stated, " [W]hen there is a concurrent penitentiary term and probation requirement, such a sentence places a defendant under simultaneous supervision of both the executive branch and [the] judicial branch of the government[.]" Thus, according to Cook, " ...