Considered on Briefs: April 20, 2015.
APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA. THE HONORABLE CRAIG A. PFEIFLE Judge.
MARTY J. JACKLEY, Attorney General, ANN C. MEYER, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
MATTHEW T. STEPHENS, Rapid City, South Dakota, Attorney for defendant and appellant.
SEVERSON, Justice. GILBERTSON, Chief Justice, and ZINTER, WILBUR, and KERN, Justices, concur.
[¶1] John Pentecost pleaded guilty to burglary in November 2012 and was sentenced in December 2012. His attorney attempted to appeal but failed to file a notice of appeal within the time provided by statute. Pentecost was resentenced in August 2014 and now attempts to appeal based on the amended judgment. He asserts that the circuit court accepted his guilty plea to second-degree burglary without establishing a factual basis. This Court issued an order to show cause why the appeal should not be dismissed on the grounds that no appeal of right exists from the judgment sought to be appealed. Based on the responses to the order to show cause, we remand.
[¶2] On April 19, 2012, Lisa Sea contacted law enforcement to report that her ex-husband John Pentecost was in her home uninvited. Pentecost told Sea, via text message, that he was in her residence and had changed the locks. Sea and Pentecost had shared the residence prior to their divorce in April of 2011. Sea advised police that Pentecost had not lived in the home for over a year. Law enforcement officers arrived at the scene and were able to apprehend Pentecost. Law enforcement observed that Pentecost brought a number of personal items into the residence with him including a laptop computer, notepad, multiple bags, suitcases, and clothing. Pentecost's car was parked outside the residence. He informed law enforcement that he had a shotgun in the vehicle. Law enforcement removed the shotgun along with two boxes of shells.
[¶3] On April 22, 2012, Sea contacted law enforcement a second time to report discovering a plastic bag in her garage. She suspected that Pentecost left it there. The bag contained zip ties, a roll of duct tape, and rope. Receipts from Menard's, Safeway, and Cabela's were also inside. The Menard's receipt showed a purchase of zip ties, cable wraps, and rope; the Safeway receipt showed duct tape and electrical tape purchases. The Cabela's receipt in the bag reflected the purchase of the shotgun found in Pentecost's vehicle. The Menard's and Cabela's receipts indicated that they were purchased with a credit card bearing the same last four digits of a credit card in Pentecost's wallet. The Safeway purchase was made with cash.
[¶4] Pentecost was charged with second degree burglary, stalking, and threatening or harassing contact. At arraignment on May 21, 2012, he pleaded not guilty to all charges. The State subsequently offered Pentecost a plea agreement. In exchange for pleading guilty to burglary and paying the costs of prosecution and restitution, the State would dismiss the remaining charges and recommend no more than a six-year sentence. Judge Craig Pfeifle held a change-of-plea hearing on November 5, 2012; Pentecost pleaded guilty. The court accepted his plea, finding it supported by a factual basis. The court filed a judgment on December 27, 2012. Pentecost's attorney (who is not the attorney on this appeal) filed a notice of appeal on January 29, 2013, missing the deadline for appeal by one day. This Court dismissed the appeal, #26614, for lack of jurisdiction due to the untimely filing. Pentecost then petitioned for writ of habeas corpus. The habeas petition was placed in his criminal file rather than filing it as a separate civil action.[*] There is no indication in the record that ...