CONSIDERED ON BRIEFS ON AUGUST 31, 2015
APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA THE HONORABLE THOMAS L. TRIMBLE Retired Judge
MARTY J. JACKLEY Attorney General
CRAIG M. EICHSTADT Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.
JAMY PATTERSON of Pennington County Public Defender's Office Rapid City, South Dakota Attorneys for defendant and appellant.
[¶1.] Travis Orr appeals three criminal sentences. He was given concurrent penitentiary and probationary sentences that place him under simultaneous supervision of both the judicial and executive branches. We reverse and remand.
[¶2.] In October of 2014, Travis Orr was sentenced on three separate offenses. In 2013, Orr was convicted of driving or being in actual physical control of a vehicle while under the influence of alcohol, and he was placed on probation. In October 2014, after a hearing at which Orr admitted to violating the terms of his probation by ingesting methamphetamine, the circuit court revoked probation and imposed a two-year penitentiary sentence. (Sentence 1 (#27242)). That same month, Orr received two additional sentences, each for unauthorized ingestion of a controlled drug or substance (methamphetamine) in violation of SDCL 22-42-5.1-a class 5 felony. On one of the convictions for unauthorized ingestion, the court sentenced Orr to five years in the penitentiary and suspended the five years, placing Orr on probation subject to conditions, including 180 days in county jail with work release. (Sentence 2 (#27243)). On the final sentence, the court sentenced Orr to four years in the penitentiary. (Sentence 3 (#27244)). The court ordered Sentence 3 to run consecutively to Sentence 1. It further ordered Sentence 2, the probationary term, to run concurrently with Sentences 1 and 3. Orr appeals, asserting that the court exceeded its authority by imposing sentences that subject him to simultaneous supervision by the executive and legislative branches. The State argues that Orr's position is based on outdated cases. Further, the State contends that SDCL 22-6-11 required the court to sentence Orr to probation on Sentence 2 and that the court lacked authority to impose any other sentence.
Standard of Review
[¶3.] "We generally review a sentence within the statutory maximum under the abuse of discretion standard of review." State v. Whitfield, 2015 S.D. 17, ¶ 11, 862 N.W.2d 133, 137 (quoting State v. Overbey, 2010 S.D. 78, ¶ 13, 790 N.W.2d 35, 40). However, whether the court had authority under South Dakota's constitution and statutes to impose simultaneous penitentiary and probationary sentences presents a question of law reviewed de novo. Id.
[¶4.] We have recently reiterated that a defendant should not be subjected to simultaneous supervision of the executive branch and judicial branch. State v. Anderson, 2015 S.D. 60, ¶ 16, 867 N.W.2d 718, 724. Despite the State's contentions that such an approach is based on outdated criminal statutes, South Dakota's Constitution and its statutes, which delineate whether the Department of Corrections or the Judiciary is responsible for a convicted defendant, compel us to reach the same decision today that we have in the past. See State v. Moon, 514 N.W.2d 705 (S.D. 1994); State v. McConnell, 495 N.W.2d 658 (S.D. 1993); State v. Wooley, 461 N.W.2d 117 (S.D. 1990); State v. Huftile, 367 N.W.2d 193 (S.D. 1985) (construing previous version of SDCL chapter 24-15).
[¶5.] Probationers are subject to the supervision of our judicial branch. South Dakota's courts are empowered by the constitution to suspend imposition or execution of a sentence, "unless otherwise provided by law." S.D. Const. art. V, § 5. "[T]he trial court's function in suspending sentence and granting terms of probation are exclusively the province of the judicial branch." Huftile, 367 N.W.2d at 197; see also SDCL 23A-27-12 ("After conviction of an offense not punishable by death or life imprisonment, a defendant may be placed on probation. No person who has been previously convicted for a crime of violence as defined in subdivision § 22-1-2(9) may be placed on probation if his second or subsequent felony conviction is ...