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State v. Kettle

Supreme Court of South Dakota

September 19, 2018

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
BYRON RED KETTLE, Defendant and Appellant.

          CONSIDERED ON BRIEFS ON AUGUST 27, 2018

          APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA THE HONORABLE CRAIG A. PFEIFLE Judge

          MARTY J. JACKLEY Attorney General

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

          TODD A. LOVE Rapid City, South Dakota Attorney for defendant and appellant.

          ZINTER, JUSTICE.

         [¶1.] Twenty-eight years ago, this Court reversed a defendant's sentence and remanded the case for resentencing consistent with the Court's decision. For reasons not disclosed in this record, the defendant did not get resentenced until 2017. In a pro-se motion made before the 2017 sentence-correction hearing, the defendant requested court-appointed counsel and argued for his release because the State failed to timely proceed after remand. The circuit court did not address these additional requests; instead, it proceeded to resentence the defendant as directed in this Court's 1990 decision. The defendant now appeals, asserting he had a Sixth Amendment right to counsel in the 2017 sentence-correction proceeding. We disagree and affirm.

         Facts and Procedural History

         [¶2.] In 1988, Byron Red Kettle pleaded guilty to kidnapping and assault. He was sentenced to life in prison for the kidnapping and thirty years for the assault. The circuit court ordered the sentences to run consecutively to corresponding federal sentences Red Kettle had previously received for the same kidnapping and assault.

         [¶3.] Red Kettle appealed, claiming the sentencing court erred in ordering his state sentences to run consecutively to his federal sentences. This Court reversed and remanded the case for resentencing. State v. Red Kettle, 452 N.W.2d 774, 776-77 (S.D. 1990). We held that a South Dakota state court may not impose a consecutive sentence in state court when a defendant has been sentenced for the same offense in federal court. Id. at 775. Because "Red Kettle's state sentences must be concurrent, rather than consecutive, to the respective federal sentences[, ]" we directed the circuit court "to resentence Red Kettle consistent with this opinion." Id. at 776-77. Our remitter was issued on March 28, 1990.

         [¶4.] In September 2016, Red Kettle informed the Pennington County Clerk of Courts by letter that the circuit court had not resentenced him as directed in this Court's 1990 decision. He also filed a pro-se motion requesting the circuit court to order his release because the court had failed to resentence him in a timely manner. His motion included a request for court-appointed counsel.

         [¶5.] The circuit court held a resentencing hearing on July 20, 2017, and Red Kettle appeared telephonically without counsel. The court indicated it intended to resentence him consistent with this Court's 1990 decision. The court subsequently entered an amended judgment of conviction, effective January 11, 1989, ordering Red Kettle's sentences to run concurrently (rather than consecutively) to the corresponding federal sentences. The court did not address any other matters, including Red Kettle's motion to be released and request for court-appointed counsel.

         [¶6.] Red Kettle now appeals. He argues that the circuit court's failure to provide court-appointed counsel in the sentence-correction proceeding ...


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