#27682-r-SLZ
2016 S.D. 63
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
YOLANDA MARIE FLOWERS, Defendant and Appellant.
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APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
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THE HONORABLE JONI M. CUTLER
Judge
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MARTY J. JACKLEY
Attorney General
KIRSTEN E. JASPER
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
MARK KADI
Minnehaha County
Public Advocates Office
Sioux Falls, South Dakota Attorneys for defendant
and appellant.
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CONSIDERED ON BRIEFS
ON AUGUST 29, 2016
OPINION FILED 09/14/16
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ZINTER, Justice
[¶1.] Yolanda Flowers pleaded guilty to a Class 5 felony, and she admitted
the allegations of a part II habitual criminal information alleging she had two prior
felony convictions. Because of the prior convictions, the circuit court imposed a
Class 4 felony penitentiary sentence, and it did not state on the record or in the
judgment any aggravating circumstances justifying a departure from presumptive
probation. On appeal, Flowers argues that the circuit court erred in failing to apply
presumptive probation requirements and sentence her to probation. Because
Flowers was convicted of a Class 5 felony that implicated presumptive probation,
and because aggravating circumstances were not stated on the record or in the
judgment, we reverse and remand for resentencing.
Facts and Procedural History
[¶2.] On June 25, 2015, Flowers was arrested pursuant to an outstanding
federal arrest warrant. She admitted having methamphetamine in her purse. At
the time of her arrest, she was on state probation for felony convictions of
possession of a controlled substance and failure to appear. She was also on federal
supervised release for violating federal probation.
[¶3.] Flowers was indicted for possession of a controlled substance in
violation of SDCL 22-42-5 (a Class 5 felony) and possession or use of drug
paraphernalia in violation of SDCL 22-42A-3 (a Class 2 misdemeanor). The State
filed a part II information alleging Flowers had two previous convictions for felony
possession of a controlled substance; one in October 2006 and one in January 2015.
Pursuant to a plea agreement, Flowers pleaded guilty to the Class 5 felony charge
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and admitted the allegations of the part II habitual criminal information. The State
dismissed the misdemeanor charge and recommended a four-year penitentiary
sentence.
[¶4.] At sentencing, the circuit court noted that the habitual offender
admission enhanced the possible penalty to that applicable to Class 4 felonies. The
court indicated it was going to impose a penitentiary sentence. The court stated it
was basing its sentence “not out of anger towards” Flowers, but in hopes for
rehabilitation. Flowers received a Class 4 felony sentence of ten years in prison
with six years suspended. The court did not mention probation, a departure from
presumptive probation, or aggravating circumstances warranting a departure from
probation. The final written judgment did not list any aggravating circumstances.
[¶5.] Flowers appeals her sentence, arguing that she is entitled to
resentencing because: (1) the circuit court failed to state aggravating circumstances
warranting a departure from presumptive probation in violation of SDCL 22-6-11;
and (2) the circuit court abused its discretion in departing from presumptive
probation. The State argues that Flowers was not entitled to be considered for
presumptive probation because her sentence was enhanced to a Class 4 felony, and
Class 4 felons are not entitled to presumptive probation under SDCL 22-6-11. 1
1. The question whether a sentence enhanced under SDCL 22-7-7 falls within
the requirements of SDCL 22-6-11 is a matter of statutory interpretation.
Statutory interpretation is a question of law we review de novo. State v.
Liaw, 2016 S.D. 31, ¶ 8, 878 N.W.2d 97, 100.
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Decision
[¶6.] South Dakota courts are required to sentence defendants convicted of
certain Class 5 and 6 felonies (including possession of a controlled substance) to
probation unless “the court finds aggravating circumstances exist that pose a
significant risk to the public and require a departure from presumptive probation.”
SDCL 22-6-11. 2 The State argues that SDCL 22-6-11 does not apply to Flowers’
conviction because under SDCL 22-7-7, her admission to the part II information
enhanced “the classification” of her crime to a Class 4 felony. See SDCL 22-7-7 (“If
a defendant has been convicted of one or two prior felonies . . . , the sentence for the
principal felony shall be enhanced by changing the class of the principal felony to
the next class which is more severe . . . .”). Flowers, however, argues that her felony
2. The 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-
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. If the offender is under the supervision of the
Department of Corrections, the court shall order a fully
suspended penitentiary sentence pursuant to § 23A-27-18.4.
The sentencing court may impose a sentence other than
probation or a fully suspended penitentiary sentence 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.
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classification was not changed because SDCL 22-7-7 enhances the “sentence” rather
than the “principal felony.” See id.
[¶7.] South Dakota’s habitual offender statutes enhance a defendant’s
sentence, not the underlying conviction. Rowley v. S.D. Bd. of Pardons & Paroles,
2013 S.D. 6, ¶ 10, 826 N.W.2d 360, 364 (“[T]he habitual offender statutes operate to
increase the defendant’s sentence, but do not substantively change the class of the
principal felony.” (emphasis added)). Although Rowley interpreted SDCL 22-7-8.1,
a separate enhancement statute, the dispositive language in SDCL 22-7-7 is the
same. SDCL 22-7-7, like SDCL 22-7-8.1, only provides that “the sentence for the
principal felony shall be enhanced.” And interpreting the statute to enhance the
classification of the underlying felony “would require us to ignore the words ‘the
sentence for,’ which we will not do.” Rowley, 2013 S.D. 6, ¶ 8, 826 N.W.2d at 364.
“Regardless of the nomenclature we chose, . . . the habitual offender statutes
operate to increase the defendant’s sentence, but do not substantively change the
class of the principal felony.” Id. ¶ 10, 826 N.W.2d at 364; see also State v.
Guthmiller, 2003 S.D. 83, ¶ 31, 677 N.W.2d 295, 305 (“The habitual offender statute
SDCL 22-7-7 enhances the sentence to the next more severe felony class.” (emphasis
added)); State v. Salway, 487 N.W.2d 621, 622 (S.D. 1992) (“[B]eing a habitual
criminal enhances the punishment for the principal crime to a higher class of
felony.” (emphasis added)). Here, Flowers’ principal offense was a Class 5 felony.
Therefore, the presumptive probation requirements of SDCL 22-6-11 applied.
[¶8.] Because SDCL 22-6-11 applied, the circuit court could depart from
probation only “if the court [found] aggravating circumstances exist[ed] that pose[d]
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a significant risk to the public and require[d] a departure from presumptive
probation.” Additionally, the court was required to state the aggravating
circumstances “on the record at the time of sentencing” and in the final written
judgment. SDCL 22-6-11. Flowers argues that she is entitled to resentencing
because the circuit court failed to follow these requirements.
[¶9.] There is no dispute that the court did not state any aggravating
circumstances on the record or in the written judgment. The court only noted
mitigating circumstances: Flowers had a “terrible childhood,” she was thirty years
old, she had “a lot of life ahead” of her, and a penitentiary sentence would help her
with rehabilitation. The State does not argue that the court’s statements qualified
as aggravating circumstances within the meaning of SDCL 22-6-11. Because the
court did not comply with the statute, we must next consider the appropriate
remedy.
[¶10.] We have previously held that a circuit court errs when it states the
aggravating circumstances on the record but fails to restate them in the final
dispositional order. State v. Beckwith, 2015 S.D. 76, ¶¶ 16, 18, 871 N.W.2d 57, 61-
62; State v. Whitfield, 2015 S.D. 17, ¶ 20, 862 N.W.2d 133, 140. That type of clerical
error does not require a new trial or resentencing. In those cases, the appropriate
remedy is to “remand[] to the sentencing court to amend the dispositional order to
include the aggravating circumstances considered on the record at the time of the
sentencing hearing.” Beckwith, 2015 S.D. 76, ¶ 16, 871 N.W.2d at 61; Whitfield,
2015 S.D. 17, ¶ 20, 862 N.W.2d at 140.
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[¶11.] But here, the record suggests that the circuit court may have believed
SDCL 22-6-11 did not apply because the court did not state any aggravating
circumstances on the record warranting a departure from presumptive probation.
On the contrary, the only circumstances stated were more supportive of probation
than imprisonment. Additionally, there were no aggravating circumstances in the
written judgment. Because the errors here go beyond the clerical errors in
Beckwith and Whitfield, we reverse and remand for resentencing in accordance with
SDCL 22-6-11. In light of this disposition, Flowers’ argument that the circuit court
abused its discretion in departing from presumptive probation is premature.
[¶12.] GILBERTSON, Chief Justice, and SEVERSON, WILBUR, and KERN,
Justices, concur.
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