#27925, #27926-a-SLZ
2017 S.D. 19
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
JONATHAN DANIEL CLARK, 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 BRADLEY G. ZELL
Judge
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MARTY J. JACKLEY
Attorney General
PATRICIA ARCHER
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
MARK KADI of
Minnehaha County Public
Advocate’s Office
Sioux Falls, South Dakota Attorneys for defendant
and appellant.
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CONSIDERED ON BRIEFS
MARCH 22, 2017
OPINION FILED 04/19/17
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ZINTER, Justice
[¶1.] A previously convicted felon appeals the enhancement of his
subsequent felony sentences for failing to comply with sex-offender-registration
requirements. 1 The court enhanced the sentences under SDCL 22-7-7, South
Dakota’s general habitual offender statute. The court rejected the defendant’s
argument that sentences for the failure to register offenses in SDCL 22-24B-12 may
be enhanced only under SDCL 22-24B-12.1, a statute applicable to repeated failures
to register. 2 We affirm.
Facts and Procedural History
[¶2.] In 2009, Jonathan Clark was convicted of aggravated criminal sexual
abuse in Illinois. Upon moving to South Dakota, he registered as a sex offender as
required in SDCL chapter 22-24B. On March 3, 2014, law enforcement discovered
that Clark was living at a motel and not his registered address. On March 8, 2014,
he reported to law enforcement that he was again living at his registered address,
but he was actually living in other motels. As a result, he was indicted on two
1. To simplify this opinion, we generalize and refer to all registration violations
as the “failure to register.”
2. Prior to the enactment of SDCL 22-24B-12.1, each registration statute
contained an enhancement clause that enhanced the offense level for a
second or subsequent offense from a class 1 misdemeanor to a class 6 felony.
Under that statutory scheme, a conviction of, e.g., failure to return a
verification form, would not enhance a later conviction of failure to notify law
enforcement of a new address. In 2006, the Legislature amended the statutes
to remove the individual enhancement provisions and change the offense
level of each requirement to a class 6 felony. The Legislature also enacted
SDCL 22-24B-12.1, which provides for a harsher offense if a defendant has a
prior conviction for failing to comply with any registration requirement. See
2006 S.D. Sess. Laws ch. 123, §§ 2-3, 5-7, 9-10.
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charges of violating SDCL 22-24B-12, which requires registered sex offenders to
inform law enforcement of their new addresses within three business days of
moving. 3
[¶3.] The failure to comply with a sex-offender-registration requirement in
SDCL 22-24B-2, -5 to -8, and -12 is a class 6 felony. But a second or subsequent
failure is a class 5 felony. SDCL 22-24B-12.1. 4 Although Clark’s registration
violations may have subjected him to an enhanced sentence as a repeat-registration
violator under SDCL 22-24B-12.1, the State did not seek enhancement under that
statute. Instead, the State filed a part II information (on both charges) alleging
that Clark was a habitual offender under SDCL 22-7-7, 5 the general enhancement
3. Clark was also indicted on other charges not relevant to the disposition of
this appeal.
4. SDCL 22-24B-12.1 provides:
Any person who has been convicted of, or entered a plea of guilty
to, one or more violations of § 22-24B-2 [failure to register], 22-
24B-5 [failure to return verification form], 22-24B-6 [failure to
report a change in enrollment or employment], 22-24B-7 [failure
to reregister], 22-24B-8 [failure to provide accurate information],
or 22-24B-12 [failure to report new address] is guilty of a Class 5
felony for any second or subsequent conviction of § 22-24B-2, 22-
24B-5, 22-24B-6, 22-24B-7, 22-24B-8, or 22-24B-12.
5. SDCL 22-7-7 provides:
If a defendant has been convicted of one or two prior felonies
under the laws of this state or any other state or the United
States, in addition to the principal felony, 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, but in no
circumstance may the enhancement exceed the sentence for a
Class C felony. The determination of whether a prior offense is
a felony for purposes of this chapter shall be determined by
whether the prior offense was a felony under the laws of this
(continued . . .)
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statute that applies to habitual offenders having any prior felony. The State alleged
that Clark’s current offenses were subject to sentence enhancement under SDCL
22-7-7 because of his 2009 felony conviction in Illinois.
[¶4.] Clark pleaded guilty to the failure-to-register charges in both
indictments. After a number of hearings not relevant to this appeal, the circuit
court held a court trial on the part II informations. Although Clark admitted to the
prior Illinois felony conviction, he moved to dismiss the part II informations. He
argued that South Dakota’s general habitual offender statute could not be used to
enhance his sentence. The circuit court disagreed and imposed class 5 felony
sentences.
Decision
[¶5.] Clark presents one argument on appeal. He argues that because
SDCL 22-24B-12.1 is a specific enhancement statute relating to his principal
offenses (the failures to register), that statute preempts the use of SDCL 22-7-7, the
general habitual offender statute. He then argues that because the State did not
request enhancement under SDCL 22-24B-12.1, the circuit court erred in failing to
dismiss the part II informations. He contends that Carroll v. Solem, 424 N.W.2d
155 (S.D. 1988), supports his view. We disagree.
________________________
(. . . continued)
state or under the laws of the United States at the time of
conviction of such prior offense. For the purpose of this section,
if the principal felony is not classified it shall be enhanced to the
class which has an equal maximum imprisonment. For the
purposes of this section, if the maximum imprisonment for the
principal felony falls between two classifications, the principal
felony shall be enhanced to the class which has the less severe
maximum authorized imprisonment.
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[¶6.] In Carroll, the defendant was charged with driving under the influence
of alcohol (DUI). The State sought to enhance his sentence through two part II
informations. The first information alleged that Carroll had two prior DUI
convictions, which would enhance his sentence from a misdemeanor to a class 6
felony under SDCL 32-23-4, a statute that applied to repeat DUI offenders. The
second information alleged that one of the prior DUIs was a felony, which would
further enhance his sentence from a class 6 felony to a class 5 felony under SDCL
22-7-7, the general habitual offender statute. This Court held that the third offense
DUI sentence could only be enhanced from a misdemeanor to a class 6 felony under
SDCL 32-23-4. Id. at 157. We reasoned that further enhancing the sentence from a
class 6 felony to a class 5 felony under SDCL 22-7-7 would result in impermissible
double enhancement. Id. Here, however, the State did not seek a “double
enhancement” by requesting two enhancements: one under SDCL 22-24B-12.1 and
a second under SDCL 22-7-7. Therefore, Carroll is not controlling.
[¶7.] The State argues that State v. Guthmiller, 2003 S.D. 83, 667 N.W.2d
295, controls this case. The State also argues that there is nothing in the language
of SDCL 22-24B-12.1 suggesting that it preempts SDCL 22-7-7 when a defendant
has a prior felony conviction not involving the failure to register. We agree.
[¶8.] In Guthmiller, the defendant was convicted of the now-repealed
offense of criminal pedophilia. Id. ¶ 6, 667 N.W.2d at 300. Criminal pedophilia was
a class 1 felony punishable by a minimum sentence of twenty-five years in prison
for the first offense. Id. ¶ 30, 667 N.W.2d at 306. The criminal pedophilia statute
also contained an enhancement provision that mandated a life sentence for a second
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pedophilia conviction, but the State could not invoke that provision because it was
Guthmiller’s first offense. See id. ¶¶ 30-31. Instead, the State filed a part II
information alleging that Guthmiller was a habitual offender under SDCL 22-7-7
because he had prior felony-drug convictions. The part II information sought to
increase his sentence by one level to a class B felony, which also mandated a life
sentence. See id. ¶ 31.
[¶9.] Like Clark, Guthmiller argued that the crime-specific enhancement
provision applicable to subsequent convictions of the principal felony preempted the
general habitual offender statute. This Court rejected Guthmiller’s preemption
argument. We reasoned that the general enhancement statute and the pedophilia
statute each had a “distinctive purpose” and that the “sentencing scheme [was] a
policy decision within the purview of the legislature and [would] not be disturbed by
this Court.” Id. ¶ 42, 667 N.W.2d at 309. Thus, the circuit court was authorized to
enhance Guthmiller’s sentence under the general enhancement statute (SDCL 22-7-
7) even though there was a crime-specific enhancement provision applicable to
subsequent convictions of criminal pedophilia. See id.
[¶10.] The present case is like Guthmiller. As in Guthmiller, the sex-
offender-registration statutes serve a separate and distinct purpose from the
habitual offender statute. The registration statutes are meant to “accomplish the
regulatory purpose of assisting law enforcement in identifying and tracking sex
offenders to prevent future sex offenses.” Meinders v. Weber, 2000 S.D. 2, ¶ 13,
604 N.W.2d 248, 255. On the other hand, “the purpose of habitual criminal statutes
is to punish a defendant for his persistence in crime.” Rowley v. S.D. Bd. of Pardons
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& Paroles, 2013 S.D. 6, ¶ 13, 826 N.W.2d 360, 365. There is also no language in
SDCL 22-24B-12.1 suggesting that it was intended to preempt SDCL 22-7-7. Cf.
Guthmiller, 2003 S.D. 83, ¶ 42, 667 N.W.2d at 309. Accordingly, failure-to-register
convictions may be enhanced under the general habitual criminal statute if the
defendant has a prior felony conviction that qualifies under SDCL 22-7-7.
[¶11.] Clark pleaded guilty to violating SDCL 22-24B-12 in South Dakota,
and he admitted to having a prior felony conviction in Illinois. Because he had a
prior felony conviction, the circuit court was authorized to enhance his sentence one
level under SDCL 22-7-7. The circuit court did not err in refusing to dismiss the
part II informations.
[¶12.] Affirmed.
[¶13.] GILBERTSON, Chief Justice, and SEVERSON, WILBUR, and KERN,
Justices, concur.
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