On April 17, 2018
FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT BRULE
COUNTY, SOUTH DAKOTA THE HONORABLE BRUCE V. ANDERSON Judge
J. JACKLEY Attorney General
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.
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.
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.
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
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
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.
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 - -
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.
transcript indicates that Ross left counsel's table. It
is undisputed that Ross left counsel's table with the
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 ...