#27252-a-GAS
2015 S.D. 60
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
SIERRA C. ANDERSON, Defendant and Appellant.
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APPEAL FROM THE CIRCUIT COURT OF
THE THIRD JUDICIAL CIRCUIT
BROOKINGS COUNTY, SOUTH DAKOTA
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THE HONORABLE GREGORY J. STOLTENBURG
Judge
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MARTY J. JACKLEY
Attorney General
JARED TIDEMANN
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
BENJAMIN L. KLEINJAN of
Helsper, McCarty, Mahlke
& Kleinjan, P.C.
Brookings, South Dakota Attorneys for defendant
and appellant.
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CONSIDERED ON BRIEFS
ON MAY 26, 2015
OPINION FILED 07/15/15
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SEVERSON, Justice
[¶1.] Sierra Anderson appeals the circuit court’s departure from
presumptive probation. She contends that her sentence for a term of imprisonment
violates her constitutional right to a jury trial because the court departed from
presumptive probation based on facts that were neither found by a jury nor
admitted by Anderson. We affirm.
Background
[¶2.] Sierra Anderson, who was 22 years of age at the time, sold three-
quarters of a gram of methamphetamine to a confidential informant. After the sale,
law enforcement executed a search warrant and found a remaining quarter of a
gram in her purse. The charges brought against Anderson included a charge for
distribution of a schedule I or II substance and a charge for possession of a
controlled substance. Anderson pleaded guilty to both offenses. On the distribution
charge, the court sentenced Anderson to a term of six years in the penitentiary with
two years suspended. That sentence is not being appealed.
[¶3.] Possession of a controlled substance, the second charge, is prohibited
by SDCL 22-42-5 and is a class 5 felony. A class 5 felony is punishable by a
maximum of five years imprisonment and a fine of ten thousand dollars. SDCL 22-
6-1. However, SDCL 22-6-11 directs judges to sentence an offender convicted of a
class 5 or class 6 felony to probation, unless the offender is convicted under certain
enumerated statutes. SDCL 22-42-5 is not one of the exceptions. Nonetheless,
SDCL 22-6-11 further provides that “[t]he sentencing court may impose a sentence
other than probation if the court finds aggravating circumstances exist that pose a
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significant risk to the public and require a departure from presumptive probation
under this section.”
[¶4.] Instead of imposing probation, the circuit court imposed a sentence of
four years in the penitentiary, with two years suspended. The court stated that the
following aggravating circumstances warranted a departure: (1) Anderson pleaded
guilty to distribution of a controlled substance, (2) she was unemployed and had a
history of sporadic employment, (3) she violated probation as a juvenile, and (4) she
was not a good candidate for probation and would require a high-supervision level if
placed on probation. Anderson now appeals the court’s sentence on the possession
charge. She asserts that the court’s departure from presumptive probation in this
case is unconstitutional.
Standard of Review
[¶5.] We review challenges to the constitutionality of a statute de novo.
State v. Outka, 2014 S.D. 11, ¶ 24, 844 N.W.2d 598, 606. There is a strong
presumption that statutes are constitutional. Id. “To be invalidated a statute must
be proved a breach of legislative power beyond a reasonable doubt. Only when the
unconstitutionality of a statute is plainly and unmistakably shown will we declare
it repugnant to our Constitution.” Id. (quoting State v. Stark, 2011 S.D. 46, ¶ 10,
802 N.W.2d 165, 169). However, “[i]f a statute can be construed so as not to violate
the Constitution, that construction must be adopted.” Id.
Analysis
[¶6.] South Dakota’s presumptive probation statute provides in full:
The sentencing court shall sentence an offender convicted of a
Class 5 or Class 6 felony, except those convicted under §§ 22-
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11A-2.1, 22-18-1, 22-18-1.05, 22-18-26, 22-19A-1, 22-19A-2, 22-
19A-3, 22-19A-7, 22-19A-16, 22-22A-2, 22-22A-4, 22-24A-3, 22-
22-24.3, 22-24-1.2, 22-24B-2, 22-24B-12, 22-24B-12.1, 22-24B-23,
22-42-7, subdivision 24-2-14(1), 32-34-5, and any person
ineligible for probation under § 23A-27-12, to a term of
probation. The sentencing court may impose a sentence other
than probation if the court finds aggravating circumstances
exist that pose a significant risk to the public and require a
departure from presumptive probation under this section. If a
departure is made, the judge shall state on the record at the
time of sentencing the aggravating circumstances and the same
shall be stated in the dispositional order. Neither this section
nor its application may be the basis for establishing a
constitutionally protected liberty, property, or due process
interest.
SDCL 22-6-11. Anderson maintains that this statute is unconstitutional in light of
the United States Supreme Court decision in Apprendi v. New Jersey, 530 U.S. 466,
120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and the line of cases that have followed.
See Alleyne v. United States, ___ U.S. ____, 133 S. Ct. 2151, 186 L. Ed. 2d 314
(2013); Oregon v. Ice, 555 U.S. 160, 129 S. Ct. 711, 172 L. Ed. 2d 517 (2009); Blakely
v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
[¶7.] In Apprendi, the Supreme Court struck down a New Jersey sentencing
scheme that allowed judges to give an increased sentence term to a defendant if the
judge found that the defendant committed a crime with a certain purpose. 530 U.S.
at 468-69, 120 S. Ct. at 2351. The defendant in Apprendi pleaded guilty to
“possession of a firearm for an unlawful purpose,” a second-degree offense
punishable by imprisonment “between five years and 10 years.” Id. at 468-69, 120
S. Ct. at 2351-52. A separate statute allowed an “‘extended term’ of imprisonment if
the trial judge [found], by a preponderance of the evidence, that ‘the defendant . . .
acted with a purpose to intimidate an individual or group of individuals because of
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race, color, gender, handicap, religion, sexual orientation or ethnicity.’” Id. at 468-
69, 120 S. Ct. at 2351. The Supreme Court found that enhancement based on a
judge’s fact-finding unconstitutionally “remove[d] from the jury the assessment of
facts that increase the prescribed range of penalties to which a criminal defendant
is exposed.” Id. at 490, 120 S. Ct. at 2363. It explained:
If a defendant faces punishment beyond that provided by statute
when an offense is committed under certain circumstances but
not others, it is obvious that both the loss of liberty and the
stigma attaching to the offense are heightened; it necessarily
follows that the defendant should not—at the moment the State
is put to proof of those circumstances—be deprived of protections
that have, until that point, unquestionably attached.
Id. at 484, 120 S. Ct. at 2359. Therefore, “[o]ther than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id.
at 490, 120 S. Ct. at 2362-63.
[¶8.] The Supreme Court has further explained that “[a] ‘statutory
maximum’ for Apprendi purposes is the maximum sentence a judge may impose
solely on the basis of the facts reflected in the jury verdict or admitted by the
defendant.” Blakely, 542 U.S. at 303, 124 S. Ct. at 2537. However, the Supreme
Court clarified that “[i]f appropriate waivers are procured, States may continue to
offer judicial factfinding as a matter of course to all defendants who plead guilty.
Even a defendant who stands trial may consent to judicial factfinding as to sentence
enhancements, which may well be in his interest if relevant evidence would
prejudice him at trial.” Id. at 310, 124 S. Ct. at 2541.
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[¶9.] More recently, the Supreme Court has held Apprendi inapplicable to a
sentencing scheme that requires concurrent sentencing absent additional fact
finding by a court. Ice, 555 U.S. at 169, 129 S. Ct. at 718. In Ice, the Supreme
Court explained that Apprendi’s rule and its application in the cases that followed
were distinguishable from a scheme that allowed departure from concurrent
sentencing of multiple crimes because “[a]ll of th[o]se decisions involved sentencing
for a discrete crime, not—as here—for multiple offenses different in character or
committed at different times.” Id. at 167, 129 S. Ct. at 717. It explained that “twin
considerations—historical practice and respect for state sovereignty—counsel
against extending Apprendi’s rule to the imposition of sentences for discrete crimes.
The decision to impose sentences consecutively is not within the jury function that
‘extends down centuries into the common law.’” Id. at 168, 129 S. Ct. at 717 (citing
Apprendi, 530 U.S. at 477, 120 S. Ct. at 2348). The Supreme Court surveyed the
history of imposing sentences and determined:
There is no encroachment here by the judge upon facts
historically found by the jury, nor any threat to the jury’s
domain as a bulwark at trial between the State and the accused.
Instead, the defendant—who historically may have faced
consecutive sentences by default—has been granted by some
modern legislatures statutory protections meant to temper the
harshness of the historical practice.
Id. at 161, 129 S. Ct. at 713. The Court reiterated that the “core concern” of
Apprendi is “a legislative attempt to ‘remove from the province of the jury’ the
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determination of facts that warrant punishment for a specific statutory offense.” Id.
at 170, 129 S. Ct. at 718. 1
[¶10.] Finally, the Supreme Court has addressed Apprendi in two additional
cases. In Alleyne, the Supreme Court applied Apprendi to mandatory minimum
sentences—those that set a “floor” on a sentence. ___ U.S. at ____, 133 S. Ct. at
2158. Alleyne overruled previous decisions where the Supreme Court had
determined that a difference existed between facts that increase a mandatory
maximum sentence and facts that increase a mandatory minimum sentence. See
Harris v. United States, 536 U.S. 545, 122 S. Ct. 2406, 153 L. Ed. 2d 524 (2002),
overruled by Alleyne, __ U.S. at __, 133 S. Ct. at 2163. The Court has also applied
Apprendi to the imposition of civil fines. Southern Union Co. v. United States,
___U.S.___, 132 S. Ct. 2344, 2352 n.5, 183 L. Ed. 2d 318 (2012).
[¶11.] When confronted with a question of whether the jury must make
certain factual findings, the Supreme Court has told us that “the scope of the
constitutional jury right must be informed by the historical role of the jury at
common-law. It is therefore not the case that . . . the federal constitutional right
1. Before the Supreme Court issued its opinion in Ice, at least two state
supreme courts and one state appellate court addressed whether departure
from presumptive probation requires a jury determination. See State v. Carr,
53 P.3d 843, 846-47 (Kan. 2002) (holding that the right to a jury does not
extend to upward dispositional departures, only upward durational
departures); State v. Allen, 706 N.W.2d 40, 47 (Minn. 2005) (“[U]pward
dispositional departure upon finding an aggravating factor without the aid of
jury . . . [was] unconstitutional as applied.”); State v. Buehler, 136 P.3d 64,
65-66 (Or. Ct. App. 2006) (holding that additional fact-finding necessary to
impose anything more than presumptive sentence of probation “must conform
to the requirements elucidated in Blakely and Apprendi”).
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attaches to every contemporary state-law ‘entitlement’ to predicate findings.” Ice,
555 U.S. at 170, 129 S. Ct. at 718 (emphasis added). Therefore, even though South
Dakota’s presumptive probation statute requires the determination of predicate
circumstances before imposition of a prison term, if “[t]here is no encroachment here
by the judge upon facts historically found by the jury, nor any threat to the jury’s
domain as a bulwark at trial between the State and the accused[,]” then sentencing
a defendant based on those judge-found factors is not a violation of Apprendi. See
Id. at 169, 129 S. Ct. at 713.
[¶12.] Under the common law, probation was developed and granted by
judges; “the modern humane practice of probation was developed in Massachusetts
by judges as a natural part of the business of administering justice[.]” Frank W.
Grinnell, The Common Law History of Probation-An Illustration of the Equitable
Growth of Criminal Law, 32 J. Crim. L. & Criminology 15, 30 (1941). “It was . . .
through judicial experiment, which was evidently believed to be within the common
law powers of Massachusetts judges, that the principle of probation was applied
experimentally in practice until, as a result of gradually forming public opinion, the
practice became so generally approved that the legislature took it up and provided
for its development . . . .” Id. at 28 (citing Com. v. Dowdican’s Bail, 115 Mass. 133,
136 (1874)). Thus, the judge, rather than the jury, traditionally decided which
circumstances warranted probation rather than imprisonment. Likewise, the
Supreme Court has recognized that “[p]robation, like incarceration, is ‘a form of
criminal sanction imposed by a court upon an offender after verdict, finding, or plea
of guilty.’” United States v. Knights, 534 U.S. 112, 119, 122 S. Ct. 587, 591, 151 L.
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Ed. 2d 497 (2001) (emphasis added) (quoting Griffin v. Wisconsin, 483 U.S. 868, 874,
107 S. Ct. 3164, 3169, 97 L. Ed. 2d 709 (1987)). By the time that a sentencing court
is determining whether probation is appropriate for the offense committed, the jury
has already performed its historic function—“determining whether the prosecution
has proved each element of an offense beyond a reasonable doubt.” Ice, 555 U.S. at
163, 129 S. Ct. at 714.
[¶13.] The history of probation as an innovative alternative to
incarceration—developed by judges and then legislatively approved—confirms that
it is a prime example of “the role of the States as laboratories for devising solutions
to difficult legal problems.” Id. at 171, 129 S. Ct. at 718-19. The Supreme Court
has recognized that “[b]eyond question, the authority of the States over the
administration of their criminal justice systems lies at the core of their sovereign
status. See e.g., Patterson v. New York, 432 U.S. 197, 201, 97 S. Ct. 2319, 2322, 53
L. Ed. 2d 281 (1977) (‘It goes without saying that preventing and dealing with crime
is much more the business of the States than it is of the Federal Government.’).”
Ice, 555 U.S. at 170-71, 129 S. Ct. at 718. South Dakota has also recognized that
“[p]robation . . . is an alternative to confinement in cases where the [sentencing
court] deems that both the defendant and the public would benefit.” State v.
Marshall, 247 N.W.2d 484, 487 (S.D. 1976). It allows an offender an opportunity to
rehabilitate and protects the public “through supervision by a probation officer and
the continuing jurisdiction of the [circuit] court to revoke probation[.]” Id.
Consequently, when sentencing courts determine facts relevant to probation, the
courts are properly administering the criminal justice system rather than
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“encroach[ing] . . . upon facts historically found by the jury[.]” See Ice, 555 U.S. at
169, 129 S. Ct. at 718.
[¶14.] Those “twin considerations—historical practice and respect for state
sovereignty—counsel against extending Apprendi’s rule to the imposition of” a
sentence of probation. Ice, 555 U.S. at 168, 129 S. Ct. at 717. When a sentencing
court finds the facts necessary to impose a prison term rather than that of
probation, the core concern of Apprendi—“a legislative attempt to ‘remove from the
province of the jury’ the determination of facts that warrant punishment for a
specific statutory offense[,]”—is not implicated. Ice, 555 U.S. at 170, 129 S. Ct. at
718. South Dakota’s presumptive probation statute “seek[s] to rein in the discretion
judges possessed at common law to impose” probation and “serves the ‘salutary
objectives’ of promoting sentences proportionate to ‘the gravity of the offense,’ and of
reducing disparities in sentence length.” See id. (citing Blakely, 542 U.S. at 308,
124 S. Ct. at 2531).
[¶15.] Our decision is consistent with Supreme Court cases recognizing that
there is no right to a jury trial for probation revocation. “[P]robationers . . . face
revocation of probation, and possible incarceration, in proceedings in which the trial
rights of a jury and proof beyond a reasonable doubt, among other things, do not
apply[.]” Knights, 534 U.S. at 120, 122 S. Ct. at 592. In both cases—initially
denying probation and revoking probation—the court is determining whether
incarceration is appropriate, and it is within the court’s purview to decide facts
relevant to that decision. Further, such a decision does not alter the range of years
of imprisonment that a court may impose for a particular offense.
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[¶16.] Lastly, this case exemplifies the sentencing court’s role in
administering the criminal justice system and fashioning a sentence within the
legislative and constitutional framework. Anderson faced multiple sentences in this
case. She pleaded guilty to distribution of a schedule I or II substance—a class 4
offense carrying a mandatory penitentiary sentence of at least one year. 2 SDCL 22-
42-2. Anderson was sentenced to six years in the penitentiary with two years
suspended for the distribution charge and could not have been placed on probation
for the possession charge because doing so would have subjected her to
simultaneous supervision of the executive and judicial branches. 3 We have
previously reversed such sentences. See State v. McConnell, 495 N.W.2d 658 (S.D.
1993) (“[C]oncurrent penitentiary term and probation requirement effectively put
[defendant] under simultaneous supervision of both the executive and judicial
branches of government. . . . a defendant convicted of a crime should not be under
simultaneous supervision of agencies of two separate branches of government.”).
“[S]pecification of the regime for administering multiple sentences has long been
considered the prerogative of state legislatures.” Ice, 555 U.S. at 168, 129 S. Ct. at
717. Therefore, the sentencing court appropriately sentenced Anderson. We affirm.
2. A sentencing court can depart from the penitentiary sentence if it “finds that
mitigating circumstances exist which require a departure[.]” SDCL 22-42-
2.3.
3. Defendants sentenced to the state penitentiary are under the supervision of
the executive branch, see South Dakota Constitution article IV, § 9; SDCL
chapter 1-15, while those sentenced to probation are under the supervision of
the judicial branch, see South Dakota Constitution article V, § 5; SDCL
chapter 23A-27.
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[¶17.] GILBERTSON, Chief Justice, and ZINTER, WILBUR, and KERN,
Justices, concur.
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State v. Anderson
Combined Opinion