CONSIDERED ON BRIEFS MARCH 22, 2017
FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT BROWN
COUNTY, SOUTH DAKOTA THE HONORABLE TONY L. PORTRA Judge
J. JACKLEY Attorney General JOHN M. STROHMAN Assistant
Attorney General Pierre, South Dakota Attorneys for plaintiff
CHRISTOPHER D. DOHRER Aberdeen, South Dakota Attorney for
defendant and appellant.
Marvin Bingham pleaded guilty to sexual contact with a child
under the age of sixteen, which carries a mandatory minimum
sentence of ten years. The circuit court sentenced Bingham to
ten years imprisonment. On appeal, Bingham asserts that the
mandatory minimum sentence under SDCL 22-22-1.2 allows the
court to suspend part of the sentence or give him a
probationary sentence. We affirm.
On December 29, 2015, Bingham pleaded guilty to sexual
contact with a child under the age of sixteen, in violation
of SDCL 22-22-7. On June 3, 2016, the circuit court sentenced
Bingham to ten years in the penitentiary. SDCL 22-22-1.2
If any adult is convicted of any of the following violations,
the court shall impose the following minimum sentences:
(1) For a violation of subdivision 22-22-1(1), fifteen years
for a first offense; and
(2) For a violation of § 22-22-7 if the victim is less
than thirteen years of age, ten years for a first offense.
second subdivision applies to Bingham. At sentencing, Bingham
asked that the court impose a "period of probation"
or suspend execution of any penitentiary sentence. The
circuit court indicated that it was unsure whether the
statute allowed such a result or not. Bingham asserts the
same arguments to this Court on appeal and asks that this
Court remand for resentencing to allow the court to consider
probation or a suspended execution of sentence.
Normally, we review a sentence for an abuse of discretion.
See State v. Orr, 2015 S.D. 89, ¶ 3, 871 N.W.2d
834, 835. However, this case presents a question of statutory
interpretation, which we review de novo. See State v.
Liaw, 2016 S.D. 31, ¶ 8, 878 N.W.2d 97, 100.
"When the language in a statute is clear, certain and
unambiguous, there is no reason for construction, and the
Court's only function is to declare the meaning of the
statute as clearly expressed." Hayes v. Rosenbaum
Signs & Outdoor Advert., Inc., 2014 S.D. 64, ¶
28, 853 N.W.2d 878, 885 (quoting Martinmaas v.
Engelmann, 2000 S.D. 85, ¶ 49, 612 N.W.2d 600,
In this case, the minimum sentence provided for in the
statute clearly means a term of imprisonment. This Court has
previously understood a minimum sentence to refer to a term
of imprisonment. In State v. Mi ler,2006 S.D. 54,
¶ 1, 717 N.W.2d 614, 616, the defendant was convicted on
two counts of sexual contact with a child under the age of
sixteen. The sentencing court in Miler refused to
impose the mandatory minimum sentence because the defendant
had not been informed of the mandatory minimum sentence when
he pleaded not guilty. Id. ¶ 5, 717
N.W.2d at 617. We determined that the court erred but found
the error harmless because "Miller [still] received an
effective sentence of ...