CONSIDERED ON BRIEFS ON AUGUST 27, 2018
FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA THE HONORABLE CRAIG A.
J. JACKLEY Attorney General
FLYNN Assistant Attorney General Pierre, South Dakota
Attorneys for plaintiff and appellee.
A. LOVE Rapid City, South Dakota Attorney for defendant and
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.
and Procedural History
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.
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.
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.
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.
Red Kettle now appeals. He argues that the circuit
court's failure to provide court-appointed counsel in the
sentence-correction proceeding ...