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State v. Flowers

Supreme Court of South Dakota

September 14, 2016

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
YOLANDA MARIE FLOWERS, Defendant and Appellant.

          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 ...


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