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State v. Bingham

Supreme Court of South Dakota

April 12, 2017

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
MARVIN RICHARD BINGHAM, Defendant and Appellant.

          CONSIDERED ON BRIEFS MARCH 22, 2017

         APPEAL FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT BROWN COUNTY, SOUTH DAKOTA THE HONORABLE TONY L. PORTRA Judge

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

          CHRISTOPHER D. DOHRER Aberdeen, South Dakota Attorney for defendant and appellant.

          SEVERSON, Justice

         [¶1.] 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.

         Analysis

         [¶2.] 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 provides:

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.

         The 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.

         [¶3.] 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, 611).

         [¶4.] 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. ΒΆ 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 ...


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