Considered on Briefs on April 25, 2016
Appeal From the Circuit Court of the Fourth Judicial Circuit Butte County, South Dakota the Honorable Michael W. Day judge
MARTY J. JACKLEY Attorney General JOHN STROHMAN Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.
TIMOTHY J. BARNAUD Spearfish, South Dakota Attorney for defendant and appellant.
[¶1.] Jay Ainsworth appeals his sentence for simple assault. He contends that the sentencing court erred by failing to grant him credit for time served. He also asserts that his two-year sentence violates the Eighth Amendment to the United States Constitution. We remand for correction of the sentence.
[¶2.] In the early morning hours of July 1, 2015, law enforcement responded to a report of a domestic incident at an apartment. Inside the apartment, law enforcement encountered a man, later identified as Ainsworth, and the victim. Ainsworth and the victim were on the floor; Ainsworth was holding a cloth to the victim's face, which was bleeding. The victim told the responding officer that Ainsworth had hit and choked her. Ainsworth initially admitted to law enforcement that he had hit the victim, but he later recanted and stated that the victim fell and her sharp tooth cut her face. An officer arrested Ainsworth and transported him to jail.
[¶3.] On July 1, 2015, a complaint was filed charging Ainsworth with aggravated assault-domestic violence, and the circuit court set bond at $10, 000 cash or surety. On July 2, Ainsworth made his initial appearance. At that time, Ainsworth submitted an application for court-appointed counsel. The court found Ainsworth to be indigent and appointed counsel to represent him. On July 13, a grand jury indicted Ainsworth of aggravated assault. The State filed a part II habitual offender information alleging that Ainsworth had two prior felonies from other states. On August 18, 2015, the State filed an information charging Ainsworth with simple assault-domestic violence and a part II information alleging two prior domestic assaults. A change of plea hearing was held on August 19, 2015, at which time Ainsworth pleaded guilty to simple assault and admitted to the convictions in the part II information. The State dismissed the aggravated assault indictment and the initial habitual offender information.
[¶4.] The circuit court held a sentencing hearing on September 2, 2015. The court sentenced Ainsworth to two years in the penitentiary with no credit for time served. On appeal, Ainsworth alleges that the court's failure to give credit for time served violates his right to equal protection under the Fourteenth Amendment of the United States Constitution. He also maintains that the sentence is grossly disproportionate to the crime and thus unconstitutional under the Eighth Amendment of the United States Constitution.
[¶5.] "Unless there is some constitutional or statutory limitation, sentencing power is discretionary with the trial judge." State v. Sorenson, 2000 S.D. 127, ¶ 14, 617 N.W.2d 146, 149. Defendants in South Dakota do not have a statutory right to credit for time served. Id. However, we have recognized an exception for indigent defendants. "[W]here incarceration results from a defendant's financial inability and failure to post bond . . . 'The Fourteenth Amendment equal protection clause requires that credit be given for all presentence custody [that] results from indigency.'" Id. ¶ 15 (quoting State v. Green, 524 N.W.2d 613, 614 (S.D. 1994)). "The appointment of counsel is sufficient to establish a defendant as indigent prior to sentencing, and such indigency dates from the time the court approves an application for court-appointed counsel." Green, 524 N.W.2d at 614. "[T]he inability of [a] defendant to post bail while awaiting trial is also an indication of presentence indigency." Id.
[¶6.] There is no dispute in this case that Ainsworth is indigent. The court appointed counsel and specifically stated in the order that it was "satisfied that the Defendant is indigent and financially unable to obtain counsel." In addition, Ainsworth did not post bond. The State seems to contend that Ainsworth was denied bail and that he was kept in custody because he presented a danger to the community. But Ainsworth was not denied bail; the court set bail at $10, 000 cash or surety. Ainsworth was not in custody for anything other than the incident on July 1, and there is no indication that he would have remained confined if he could have posted bond. See Sorenson, 2000 S.D. 127, ¶ 23, 617 N.W.2d at 151 (Defendant was not entitled to credit for time served where "his confinement was not attributable to his financial ability to post bond"). Accordingly, Ainsworth is entitled to credit for time served.
[¶7.] Despite the circuit court's error, the State asserts that Ainsworth has not preserved this issue for appeal. However, at sentencing Ainsworth raised the issue of credit for time served. He asked the court to grant ...