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State v. Roedder

Supreme Court of South Dakota

January 30, 2019

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
RICHARD KEITH ROEDDER, Defendant and Appellant.

          CONSIDERED ON BRIEFS ON AUGUST 27, 2018

          APPEAL FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT BROWN COUNTY, SOUTH DAKOTA THE HONORABLE JON S. FLEMMER JUDGE.

          MARTY 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.

          SALTER, JUSTICE.

         [¶1.] 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 for resentencing.

         Background

         [¶2.] 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 supervision conditions.

         [¶3.] 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.

         [¶4.] 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.

         [¶5.] 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.

         [¶6.] 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 imprisonment.[1]

         [¶7.] 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.

         [¶8.] 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.

         [¶9.] 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.

         [¶10.] 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 sentence.
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 Constitution.

         Standard of Review

         [¶11.] 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)).[2]

         [¶12.] 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.

         [¶13.] 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.

         Analysis

         1. Whether the circuit court lacked a sufficient factual basis to ...


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