Considered on Briefs May 26, 2015.
APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT BROOKINGS COUNTY, SOUTH DAKOTA. THE HONORABLE GREGORY J. STOLTENBURG, Judge.
MARTY J. JACKLEY, Attorney General, JARED TIDEMANN, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
BENJAMIN L. KLEINJAN of Helsper, McCarty, Mahlke & Kleinjan, P.C., Brookings, South Dakota, Attorneys for defendant and appellant.
SEVERSON, Justice. GILBERTSON, Chief Justice, and ZINTER, WILBUR, and KERN, Justices, concur.
[¶1] Sierra Anderson appeals the circuit court's departure from presumptive probation. She contends that her sentence for a term of imprisonment violates her constitutional right to a jury trial because the court departed from presumptive probation based on facts that were neither found by a jury nor admitted by Anderson. We affirm.
[¶2] Sierra Anderson, who was 22 years of age at the time, sold three-quarters of a gram of methamphetamine to a confidential informant. After the sale, law enforcement executed a search warrant and found a remaining quarter of a gram in her purse. The charges brought against Anderson included a charge for distribution of a schedule I or II substance and a charge for possession of a controlled substance. Anderson pleaded guilty to both offenses. On the distribution charge, the court sentenced Anderson to a term of six years in the penitentiary with two years suspended. That sentence is not being appealed.
[¶3] Possession of a controlled substance, the second charge, is prohibited by SDCL 22-42-5 and is a class 5 felony. A class 5 felony is punishable by a maximum of five years imprisonment and a fine of ten thousand dollars. SDCL 22-6-1. However, SDCL 22-6-11 directs judges to sentence an offender convicted of a class 5 or class 6 felony to probation, unless the offender is convicted under certain enumerated statutes. SDCL 22-42-5 is not one of the exceptions. Nonetheless, SDCL 22-6-11 further provides that " [t]he sentencing court may impose a sentence other than probation if the court finds aggravating circumstances exist that pose a significant risk to the public and require a departure from presumptive probation under this section."
[¶4] Instead of imposing probation, the circuit court imposed a sentence of four years in the penitentiary, with two years suspended. The court stated that the following aggravating circumstances warranted a departure: (1) Anderson pleaded guilty to distribution of a controlled substance, (2) she was unemployed and had a history of sporadic employment, (3) she violated probation as a juvenile, and (4) she was not a good candidate for probation and would require a high-supervision level if placed on probation. Anderson now appeals the court's ...