CONSIDERED ON BRIEFS ON AUGUST 27, 2018
FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT BROWN
COUNTY, SOUTH DAKOTA THE HONORABLE JON S. FLEMMER JUDGE.
J. JACKLEY Attorney General
PATRICIA ARCHER Assistant Attorney General Pierre, South
Dakota Attorneys for plaintiff and appellee.
WILLIAM D. GERDES Aberdeen, South Dakota Attorney for
defendant and appellant.
Richard Roedder received an enhanced forty-year prison
sentence after pleading guilty to a charge of unauthorized
possession of a controlled substance and admitting to five
prior felony convictions listed in a part II habitual
offender information. Roedder challenges his conviction,
claiming his guilty plea was not supported by an adequate
factual basis. He also argues the circuit court erred when it
relied upon his five prior felony convictions to enhance his
sentence and impose a forty-year sentence rather than the
presumptive sentence Roedder sought. Roedder further claims
the court's sentence violates the Eighth Amendment's
prohibition on cruel and unusual punishment. We affirm
Roedder's conviction but reverse his sentence and remand
On August 24, 2017, Aberdeen police officers responded to a
call from a resident who reported screaming and crying in a
nearby apartment. Once there, officers found Roedder and
Nashay Wurtz. Roedder was on parole for a 2011 distribution
of a controlled substance conviction. Wurtz was also on
parole and was taken into custody when police officers
learned she had been drinking alcohol in violation of her
Before Wurtz was transported to the Brown County Jail, a
police officer accompanied her into the apartment so that she
could retrieve some property. Inside the apartment, the
officer noticed a hollowed-out pen tube lying on a dining
room table. The officer recognized it as a device used to
ingest narcotics, and an inspection of the tube revealed the
presence of small white crystal flakes that field tested
positive for methamphetamine.
Officers obtained a search warrant for the apartment and a
vehicle parked nearby registered to Roedder. A search of the
apartment yielded methamphetamine residue near the location
of the hollowed-out pen and approximately twenty-two grams of
methamphetamine in a packaged baggy inside a golden balloon.
While searching Roedder's vehicle, officers discovered a
bag of golden balloons similar to the one found filled with
methamphetamine in the apartment. Roedder later admitted to
methamphetamine use, which was confirmed by a urinalysis test
administered pursuant to the search warrant.
Roedder was indicted and charged in a series of superseding
indictments with the following drug-related offenses: (1)
possession with intent to distribute a controlled drug or
substance in violation of SDCL 22-42-2; (2) conspiracy to
distribute a controlled drug or substance in violation of
SDCL 22-3-8 and 22-42-2; (3) unauthorized possession of a
controlled substance in violation of SDCL 22-42-5; and (4)
unauthorized ingestion of a controlled drug or substance in
violation of SDCL 22-42-5.1.
The State also filed an amended part II information, alleging
Roedder was a habitual offender and listing five prior felony
convictions. Included were a 2000 Arizona conviction for
conspiracy to commit armed robbery, along with four 2011
convictions for drug-related offenses in Brown County. The
part II information listed the same date for all four Brown
County convictions. Roedder challenged the part II
information, arguing the four Brown County convictions arose
out of the same transaction and therefore could only be
counted as a single prior conviction for enhancement
purposes. He also claimed the Arizona conspiracy conviction
did not constitute a felony in South Dakota, citing
differences in the two states' conspiracy statutes. The
circuit court rejected Roedder's arguments; deemed the
Arizona conviction to be a crime of violence; and determined
that Roedder's enhanced maximum potential punishment, if
convicted, was the equivalent of a Class C felony, or life
On September 5, 2017, Roedder pled guilty to unauthorized
possession of a controlled substance in violation of SDCL
22-42-5, without the benefit of a plea agreement. He also
admitted to the allegations contained in the part II
information, despite still disputing the ability of the
circuit court to use the convictions to enhance his sentence.
During the change of plea hearing, the circuit court advised
Roedder that he could receive a sentence of up to life in
prison for the possession of controlled substance offense.
Roedder acknowledged the risk and continued with his plan to
waive his rights and plead guilty. The court elicited a
factual basis statement from the prosecutor with which
Roedder agreed, adding only that he possessed "a small
amount of methamphetamine[, ]" not the twenty-two-gram
amount described by the prosecutor. Roedder did not challenge
any of the circuit court's findings regarding the
sufficiency of the guilty plea and indicated he would not
request a presentence investigation.
At Roedder's sentencing hearing, the circuit court
imposed a forty-year prison sentence. Roedder was already
being supervised on parole by the Department of Corrections
and argued unsuccessfully for the imposition of a presumptive
fully suspended penitentiary sentence for his Class 5 felony
conviction. The State did not proceed with the other charges,
and this appeal followed.
Roedder raises several issues which we restate as follows:
1. Whether the circuit court lacked a sufficient factual
basis to accept his plea.
2. Whether the circuit court erred when it determined
Roedder's enhanced statutory maximum sentence.
3. Whether the circuit court erred when it determined Roedder
was ineligible for a presumptive fully suspended penitentiary
4. Whether the circuit court's decision to impose a
forty-year sentence constitutes cruel and unusual punishment
in violation of the Eighth Amendment of the United States
The text of SDCL 23A-7-14 (Rule 11(f)) requires that a
defendant's guilty plea be supported by a factual basis.
We have previously suggested that our review of Rule 11(f)
claims involves a de novo examination of the circuit court
record. See State v. Nachtigall, 2007 S.D. 109,
¶ 5, 741 N.W.2d 216, 219 (explaining the factual basis
for each element of the offense "must appear clearly on
the record" (quoting State v. Schultz, 409
N.W.2d 655, 658 (S.D. 1987)).
Roedder's argument that his sentence was incorrectly
enhanced turns on the interpretation and application of
statutes which provide for the enhancement. His additional
claims-that the circuit court was obligated to impose a
presumptive sentence under SDCL 22-6-11 and erred by finding
him ineligible- also involve questions of statutory
interpretation. We review these legal issues de novo.
State v. Bowers, 2018 S.D. 50, ¶ 16, 915 N.W.2d
161, 166; State v. Underwood, 2017 S.D. 3, ¶ 5,
890 N.W.2d 240, 241.
We also review de novo Roedder's claim that his sentence
violated the Eighth Amendment. State v. Chipps, 2016
S.D. 8, ¶ 31, 874 N.W.2d 475, 486.
Whether the circuit court lacked a sufficient factual
basis to ...