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State v. Pentecost

Supreme Court of South Dakota

November 30, 2016

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
JOHN T. PENTECOST, Defendant and Appellant.

          ARGUED ON OCTOBER 3, 2016

         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.

          JAMY PATTERSON Rapid City, South Dakota Attorney for defendant and appellant.

          KERN, Justice

         [¶1.] In April 2012, John Pentecost entered the home he previously shared with his ex-wife. He had not lived in the home for more than a year and brought with him items that could be used for restraint, a suicide note, and his Last Will and Testament. The police arrested Pentecost inside the home even though he contended that he had a legal right to be present. The State charged him with several offenses, including second-degree burglary. He filed a pretrial motion to dismiss the burglary charge, which was denied. Ultimately, Pentecost pleaded guilty to second-degree burglary and was sentenced to prison. He later moved to withdraw his plea, but the court denied his motion. Pentecost appeals. We affirm.

         BACKGROUND

         [¶2.] On April 19, 2012, Pentecost hired a locksmith to rekey the home that he previously shared with his ex-wife, L.S., during their marriage. After gaining entrance to the house, he sent L.S. a text message informing her that he had changed the locks and moved some of his property inside because he wanted "to get a piece of his life back." L.S., who was at work, called the police and reported what Pentecost had done. Upon their arrival, officers arrested Pentecost inside the home and discovered a shotgun and ammunition in his car. The investigation revealed that he brought the following items into the home: several bags, suitcases, clothing, zip ties, duct tape, cable wraps, a sales slip for the recent purchase of a handgun, a suicide note, and his Last Will and Testament.

         [¶3.] The State indicted Pentecost for second-degree burglary, a Class 3 felony, and two alternative counts of stalking, both Class 1 misdemeanors. The State also filed a part II information alleging he had a prior conviction for stalking, which, if proven, would enhance the penalty to a Class 6 felony. He entered not guilty pleas to all counts.

         [¶4.] At the time of his arrest, Pentecost was staying in Rapid City, South Dakota, but living primarily with relatives in Florida. Although Pentecost and L.S. divorced on April 8, 2011, he continued to send her hundreds of text messages and hours of voicemails, hoping to win back her affections. L.S. had informed him that she did not want further contact with him. Although he had visited the home, Pentecost had not stayed overnight since March 2011. He retained several items of personal property in the home, including a living room set and TV because he was unable to move them. Sometime prior to the incident, L.S. moved the items into a storage room and changed the locks on the home.

         [¶5.] During their divorce proceedings, Pentecost and L.S. entered into a stipulation and property settlement agreement, providing that the home would be immediately placed on the market for sale. The proceeds from the sale would be used to satisfy certain debts with any remaining sums divided equally between the parties. The agreement also provided that the divorce decree "shall operate as affective [sic] transfer" of Pentecost's interest in the property. The decree, which incorporated the stipulation, required Pentecost to execute any and all documents necessary for listing and selling the property, including a deed to divest himself of his interest. If he failed to provide the documents, the decree provided authority for L.S. to "actualize said sale and transfer the parties' interest[.]" When Pentecost entered the home in April 2012, the house had not yet sold, and his name still appeared on the deed and on the home insurance contract.

         [¶6.] Pentecost filed a motion to dismiss the second-degree burglary charge on August 23, 2012, arguing it was legally impossible for him to burglarize the home as he retained an ownership interest in it. On August 29, 2012, the circuit court held a hearing and denied the motion to dismiss. The court found that the question whether Pentecost was licensed or privileged to enter the home was for the jury to resolve.

         [¶7.] On November 5, 2012, the circuit court held a change of plea hearing. Pursuant to the terms of a plea agreement, Pentecost pleaded guilty to second-degree burglary.[1] In exchange for his plea, the State dismissed the stalking charge and part II information and capped its sentencing recommendation at six years. Prior to the entry of the plea, counsel advised the court that Pentecost "was not aware that he was breaking the law by entering into what he understood to be his own home. Nevertheless, we believe the [S]tate would have met the elements at trial." With Pentecost's consent, the court took judicial notice of the grand jury transcripts, the police reports, and the pleadings from the divorce. There was some discussion at the plea hearing as to whether his plea was one of guilt or intended as an Alford plea.[2] On December 3, 2012, the circuit court sentenced Pentecost to six years in prison.

         [¶8.] Pentecost's attorney filed an appeal, but it was untimely and dismissed by this Court. On January 24, 2014, Pentecost filed a petition seeking a writ of habeas corpus in the Seventh Judicial Circuit, alleging ineffective assistance of counsel and a denial of due process. Upon receipt of the habeas petition, the presiding judge, rather than proceed on the habeas action, ordered the judge originally assigned to the case to resentence Pentecost. On July 30, 2014, the day before his resentencing hearing, Pentecost filed a motion to set aside his judgment of conviction and to allow withdrawal of his plea. The circuit court held a resentencing hearing on July 31, 2014, denied Pentecost's motion, [3] and resentenced him to the same sentence imposed in 2012. An amended judgment was issued on August 15, 2014.

         [¶9.] Pentecost appealed the court's amended judgment of sentence and challenged his original conviction, raising several issues regarding his plea. We concluded that this Court lacked jurisdiction to consider Pentecost's issues related to his original conviction because Pentecost failed to timely appeal his original judgment of conviction. However, we remanded the case to the circuit court for the court to apply SDCL 23A-27-51 and to make factual findings regarding whether Pentecost "was denied the right to appeal from an original conviction in violation of the Constitution of the United States or the Constitution of South Dakota." State v. Pentecost (Pentecost I), 2015 S.D. 71, ¶ 10, 868 N.W.2d 590, 593 (quoting SDCL 23A-27-51). Upon remand, the circuit court issued findings of fact and conclusions of law identifying that resentencing would occur pursuant to SDCL 23A-27-51 for the purpose of reinstating Pentecost's right to appeal. On November 24, 2015, the court again sentenced Pentecost to the same terms and conditions of the original sentence imposed on December 3, 2012. Pentecost appeals, and we restate his issues as follows:

1. Whether the circuit court erred by denying Pentecost's motion to dismiss on the grounds that he had a "license or privilege to enter or remain" in the residence under SDCL 22-32-3.
2. Whether the circuit court abused its discretion in denying Pentecost's motion to set aside the judgment of conviction and allow withdrawal of his guilty plea.
3. Whether the circuit court erred by accepting Pentecost's guilty plea without establishing a factual basis for the offense of second-degree burglary.

         DECISION

         [¶10.] 1. Whether the circuit court erred by denying Pentecost's motion to dismiss on the grounds that he had a "license or privilege to enter or ...


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