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State v. Ross, JMK

Supreme Court of South Dakota

July 25, 2018

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
SHAWN RAYNARD ROSS, Defendant and Appellant.

          Argued On April 17, 2018

          APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT BRULE COUNTY, SOUTH DAKOTA THE HONORABLE BRUCE V. ANDERSON Judge

          MARTY J. JACKLEY Attorney General

          GRANT FLYNN Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.

          DOUGLAS N. PAPENDICK of Stiles, Papendick & Kiner Mitchell, South Dakota Attorneys for defendant and appellant.

          SEVERSON, RETIRED JUSTICE, AND KERN, JUSTICE.

         [¶1.] After the defendant pleaded guilty to third-degree burglary as part of a plea agreement, the court sentenced the defendant to five years in prison with three and one-half years suspended. The defendant left counsel's table accompanied by the sheriff. Before exiting the courtroom, the defendant made an obscene hand gesture toward the court. The court summoned the defendant back to counsel's table and resentenced him, imposing the entire five-year term. Before the court entered a judgment of conviction, the defendant filed a pro se motion for resentencing. The court entered a judgment of conviction but also granted a resentencing hearing. After the hearing, the court imposed a 60-month sentence with 40 months suspended. The defendant appeals, asserting that the sentencing court was without authority to increase his punishment beyond the court's initial sentence of five years with three and one-half years suspended. We affirm.

         Background

         [¶2.] On February 17, 2017, the Brule County Grand Jury indicted Shawn Ross on one count of third-degree burglary in violation of SDCL 22-32-8 and one count of intentional damage to property in violation of SDCL 22-34-1(2). Ross pleaded not guilty. Thereafter, the State and Ross entered into a plea agreement. At a hearing on May 16, 2017, pursuant to the plea agreement, Ross pleaded guilty to third-degree burglary and agreed to pay $2, 887.21 in restitution. The circuit court accepted Ross's plea and set a sentencing hearing for June 13, 2017.

         [¶3.] At the sentencing hearing, Ross represented himself, although the sentencing court appointed advisory counsel. Before imposing sentence, the court relayed that it had previously accepted Ross's plea, found a factual basis to support the plea, and ordered a presentence investigation (PSI). The court asked Ross if he had reviewed the PSI. Ross replied that he reviewed it and had nothing to add or change. He also agreed that the PSI contained "all the information the [c]ourt needs to know in sentencing [him] today[.]" The State did not offer evidence in aggravation, and Ross did not present evidence in mitigation. Ross also chose not to make a statement. The transcript indicates that advisory counsel whispered to Ross. Thereafter, Ross requested and received credit for time served. Counsel again whispered to Ross, and Ross asked the court to waive the fine and costs, which the court granted.

         [¶4.] After addressing those preliminary matters, the court asked whether either party was "aware of any just or legal cause why sentencing cannot be pronounced?" Ross and the State responded in the negative. The court continued:

All right. Mr. Ross, you have a pretty extensive record. You've done some federal time and some state time before. This again is another serious felony offense. So it requires some prison time, but it's not the crime of the century. And I don't look at it as such.
So what the [c]ourt's ordering is that due to your financial situation, I find hardship. There will be no fines or costs ordered.
I'm ordering you to serve five years in the South Dakota State Penitentiary, there to be fed, kept, and clothed in accordance with the rules governing said institution. I'm suspending three and a half years. I'm giving you credit for 133 days served.
I'm not too sure where your parole eligibility percentage falls. I suspect that you may be eligible for parole the day you step into prison. But you've been there before, so you probably know more about the 60-day minimum rule. And that's really what I'm looking at, if there's a few extras, that's fine. But I think that's an appropriate sentence.
I'm ordering that as a condition of your parole, you will pay restitution of $2, 887.21 to the victim as laid out in the PSI. That'll be spread out in the judgment, Mr. Natvig, as far as the name.
You'll be remanded to the custody of the sheriff for execution of the sentence. You'll probably be transported later this week. And like I said, I don't think it's a very long sentence. I consider you to have substantially served the sentence already in the county jail, so I am not trying to add a bunch more on to that, okay?
Defendant: Yeah, well, I, I'll be doing way more time than that.
Court: Why?
Defendant: Because of the percentage of the, percentage of when you go to jail, when you go to prison you got - - I have two felonies, prior felonies. This will make it I'll have to do 45, 50 percent after that, credit after that time.
Court: So the year and a half - -
Defendant: Yep.
Court: - - and then credit? It's still not that long.
Defendant: I'm still going to do another six, seven months.
Court: Well. That's my sentence. That concludes the matter.

         The transcript indicates that Ross left counsel's table. It is undisputed that Ross left counsel's table with the deputy sheriff.

         [¶5.] After Ross left counsel's table, counsel for the State and counsel advising Ross each asked the sentencing court a question. Although Ross was representing himself, counsel advising Ross asked the court, "Judge, is there a certain amount - - never ...


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