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State v. Underwood

Supreme Court of South Dakota

January 25, 2017

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
ANTWAUN UNDERWOOD, Defendant and Appellant.

          CONSIDERED ON BRIEFS ON NOVEMBER 7, 2016

         APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT BEADLE COUNTY, SOUTH DAKOTA THE HONORABLE JON R. ERICKSON Judge

          MARTY J. JACKLEY Attorney General.

          JOHN M. STROHMAN Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee

          AARON P. PILCHER of Bridgman & Anderson Law Firm Miller, South Dakota Attorneys for defendant and appellant.

          GILBERTSON, Chief Justice

         [¶1.] Antwaun Underwood pleaded guilty to possessing a controlled substance, and the circuit court sentenced him to imprisonment for four years. Underwood appeals and argues the court failed to identify aggravating factors sufficient to deviate from a presumptive sentence of probation. We affirm.

         Facts and Procedural History

         [¶2.] On January 23, 2015, Huron Police Officer Adam Doerr observed Underwood's vehicle travelling in excess of the speed limit. Officer Doerr initiated a traffic stop and approached Underwood. While speaking to Underwood, Officer Doerr noticed a green, leafy substance that he believed to be marijuana, as well as paraphernalia, on the center console of the vehicle. Officer Doerr informed Underwood that he was placing him under arrest. A subsequent search of Underwood's coat revealed a plastic baggy containing a green, leafy substance. Underwood acknowledged that the baggy belonged to him.

         [¶3.] Underwood was charged by complaint with one count of ingesting a substance for the purpose of becoming intoxicated, one count of possessing two ounces or less of marijuana, and one count of possessing a controlled substance. He was also charged with driving with a suspended license. An information was later filed that charged Underwood with possessing a controlled substance. Underwood failed to appear for his preliminary hearing, but on November 1, 2015, he pleaded guilty to one count of possessing a controlled substance. The circuit court departed from a presumptive sentence of probation and sentenced Underwood to imprisonment for four years.

         [¶4.] Underwood appeals, raising one issue: Whether the circumstances enumerated by the circuit court justified a departure from the presumptive sentence of probation under SDCL 22-6-11.

         Standard of Review

         [¶5.] The central issue in this case is a question of statutory construction. We review such issues de novo. Good Lance v. Black Hills Dialysis, LLC, 2015 S.D. 83, ¶ 9, 871 N.W.2d 639, 643. Thus, we give no deference to the circuit court's legal conclusions. Id.

         Analysis ...


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