CONSIDERED ON BRIEFS ON AUGUST 29, 2016
APPEAL
FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA THE HONORABLE JONI M. CUTLER
Judge
MARTY
J. JACKLEY Attorney General KIRSTEN E. JASPER Assistant
Attorney General Pierre, South Dakota Attorneys for plaintiff
and appellee.
MARK
KADI Minnehaha County Public Advocates Office Sioux Falls,
South Dakota Attorneys for defendant and appellant.
OPINION
ZINTER, Justice
[¶1.]
Yolanda Flowers pleaded guilty to a Class 5 felony, and she
admitted the allegations of a part II habitual criminal
information alleging she had two prior felony convictions.
Because of the prior convictions, the circuit court imposed a
Class 4 felony penitentiary sentence, and it did not state on
the record or in the judgment any aggravating circumstances
justifying a departure from presumptive probation. On appeal,
Flowers argues that the circuit court erred in failing to
apply presumptive probation requirements and sentence her to
probation. Because Flowers was convicted of a Class 5 felony
that implicated presumptive probation, and because
aggravating circumstances were not stated on the record or in
the judgment, we reverse and remand for resentencing.
Facts
and Procedural History
[¶2.]
On June 25, 2015, Flowers was arrested pursuant to an
outstanding federal arrest warrant. She admitted having
methamphetamine in her purse. At the time of her arrest, she
was on state probation for felony convictions of possession
of a controlled substance and failure to appear. She was also
on federal supervised release for violating federal
probation.
[¶3.]
Flowers was indicted for possession of a controlled substance
in violation of SDCL 22-42-5 (a Class 5 felony) and
possession or use of drug paraphernalia in violation of SDCL
22-42A-3 (a Class 2 misdemeanor). The State filed a part II
information alleging Flowers had two previous convictions for
felony possession of a controlled substance; one in October
2006 and one in January 2015. Pursuant to a plea agreement,
Flowers pleaded guilty to the Class 5 felony charge and
admitted the allegations of the part II habitual criminal
information. The State dismissed the misdemeanor charge and
recommended a four-year penitentiary sentence.
[¶4.]
At sentencing, the circuit court noted that the habitual
offender admission enhanced the possible penalty to that
applicable to Class 4 felonies. The court indicated it was
going to impose a penitentiary sentence. The court stated it
was basing its sentence "not out of anger towards"
Flowers, but in hopes for rehabilitation. Flowers received a
Class 4 felony sentence of ten years in prison with six years
suspended. The court did not mention probation, a departure
from presumptive probation, or aggravating circumstances
warranting a departure from probation. The final written
judgment did not list any aggravating circumstances.
[¶5.]
Flowers appeals her sentence, arguing that she is entitled to
resentencing because: (1) the circuit court failed to state
aggravating circumstances warranting a departure from
presumptive probation in violation of SDCL 22-6-11; and (2)
the circuit court abused its discretion in departing from
presumptive probation. The State argues that Flowers was not
entitled to be considered for presumptive probation because
her sentence was enhanced to a Class 4 felony, and Class 4
felons are not entitled to presumptive probation under SDCL
22-6-11.[1]
Decision
[¶6.]
South Dakota courts are required to sentence defendants
convicted of certain Class 5 and 6 felonies (including
possession of a controlled substance) to probation unless
"the court finds aggravating circumstances exist that
pose a significant risk to the public and require a departure
from presumptive probation." SDCL 22-6-11.[2] The State argues that SDCL 22-6-11 does
not apply to Flowers' conviction because under SDCL
22-7-7, her admission to the part II information enhanced
"the classification" of her crime to a Class 4
felony. See SDCL 22-7-7 ("If a defendant has
been convicted of one or two prior felonies . . ., the
sentence for the principal felony shall be enhanced by
changing the class of the principal felony to the next class
which is more severe . . . ."). Flowers, however, argues
that her felony classification was not changed because SDCL
22-7-7 enhances the "sentence" rather than the
"principal felony." See id.
[¶7.]
South Dakota's habitual offender statutes enhance a
defendant's sentence, not the underlying conviction.
Rowley v. S.D. Bd. of Pardons & Paroles, 2013
S.D. 6, ¶ 10, 826 N.W.2d 360, 364 ("[T]he habitual
offender statutes operate to increase the defendant's
sentence, but do not substantively change the
class of the principal felony." (emphasis
added)). Although Rowley interpreted SDCL 22-7-8.1,
a separate enhancement statute, the dispositive language in
SDCL 22-7-7 is the same. SDCL 22-7-7, like SDCL 22-7-8.1,
only provides that "the sentence for the
principal felony shall be enhanced." And interpreting
the statute to enhance the classification of the underlying
felony "would require us to ignore the words 'the
sentence for, ' which we will not do."
Rowley, 2013 S.D. 6, ¶ 8, 826 N.W.2d at 364.
"Regardless of the nomenclature we chose, . . . the
habitual offender statutes operate to increase the
defendant's sentence, but do not substantively change the
class of the principal felony." Id. ¶ 10,
826 N.W.2d at 364; see also State v. Guthmiller,
2003 S.D. 83, ¶ 31, 677 N.W.2d 295, 305 ("The
habitual offender statute SDCL 22-7-7 enhances the
sentence to the next more severe felony class."
(emphasis added)); State v. Salway, 487 N.W.2d ...