State v. Anders

#24856-r-SABERS, Retired Justice

2009 SD 15

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

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STATE OF SOUTH DAKOTA, Plaintiff and Appellant,

v.

MARTHA ANDERS, Defendant and Appellee.

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APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA

* * * *

HONORABLE JEFF W. DAVIS
Judge

* * * *

LAWRENCE E. LONG
Attorney General

GARY CAMPBELL
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellant.

PAULA D. CAMP
AMY YANNI
Pennington County Public
Defender’s Office
Rapid City, South Dakota Attorneys for defendant
and appellee.

* * * *

ARGUED JANUARY 14, 2009

OPINION FILED 03/11/09
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SABERS, Retired Justice

[¶1.] The State appeals the circuit court’s decision that a felony driving

under the influence (DUI) conviction cannot be used to enhance the sentence for a

principal felony. We reverse.

FACTS

[¶2.] On December 20, 2007, Martha Anders was indicted for conspiracy to

commit first degree murder and attempted first degree murder, or in the

alternative, aggravated assault. The State later filed a Part II Information alleging

Anders was a habitual offender under SDCL 22-7-7, based on Anders’ felony DUI

conviction from May 14, 2007. This is Anders’ sole prior felony conviction.

[¶3.] On February 20, 2008, Anders filed a motion to strike the Part II

Information arguing that, under Carroll v. Solem, 424 NW2d 155 (SD 1988), a

felony DUI should not be used to enhance the sentence for a principal felony. The

State resisted this motion, asserting State v. Fender, 504 NW2d 858 (SD 1993) as

the controlling authority. The circuit court disagreed with the State and granted

Anders’ motion to strike, concluding that the habitual offender statute was intended

to penalize offenders for repeated felony conduct, and not merely because of their

status as felons. The court also concluded that a felony DUI is not a true felony in

that it does not define an offense, but merely increases the punishment upon a

second or subsequent conviction for the same offense. Lastly, it noted that habitual

offender statutes must be strictly construed and applied. The State appeals, raising

the following issue:

Whether a felony DUI conviction qualifies as a “felony” for the
purposes of enhancing a sentence under SDCL 22-7-7.

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[¶4.] During oral argument, Anders asserted this Court lacks subject matter

jurisdiction over the State’s appeal based on an untimely notice of appeal.

Procedurally, the circuit court entered its order striking the Part II Information

filed by the State against Anders on April 4, 2008. Pursuant to SDCL 23A-32-4, the

State filed a notice of appeal as a matter of right from that order. As provided in

SDCL 23A-32-6 an appeal under that statute “must be taken within ten days after

written notice of entry of the judgment or order.” The notice of entry of that order

indicates it was provided on April 4, 2008. The certificate of service specifies that

Anders served the document “by depositing a copy thereof by Interoffice Mail, and

addressed to the said addressee:

Lara R. Roetzel
State’s Attorneys Office
300 Kansas City Street
HAND DELIVERED[.]”

Notice of appeal was filed on April 15, 2008. Anders now contends that the notice of

appeal was untimely. The State maintains the notice of appeal was timely filed

based on a defective service of the notice of entry or was timely when calculated

with the additional days for service by mail even assuming the service was properly

effectuated. We decide the threshold issue whether this Court has jurisdiction

before reaching the merits of this appeal.

STANDARD OF REVIEW

[¶5.] Whether this Court has jurisdiction is a legal issue which is reviewed

de novo. State v. Owen, 2007 SD 21, ¶10, 729 NW2d 356, 362. Jurisdictional issues

can be raised at any time and determination of jurisdiction is appropriate. Sazama

v. State ex rel. Muilenberg, 2007 SD 17, ¶9, 729 NW2d 335, 340 (citations omitted).

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[¶6.] Whether this Court has subject matter jurisdiction when the State’s
notice of appeal was filed 11 days after Anders’ notice of entry of order
was deposited in interoffice mail.

[¶7.] The ten-day time period to file an appeal under SDCL 23A-32-4 is

triggered by the service of the notice of entry. SDCL 23A-32-6. In this case, Anders

maintains that she is entitled to have that date calculated from the date she placed

the notice of entry in interoffice mail as though it had been hand delivered; thus

eliminating days being added to the time frame for service by mail. However, SDCL

15-6-5(b) (Service – How made – Proof) provides in part:

Whenever under this chapter service is required or permitted to
be made upon a party represented by an attorney, the service
shall be made upon the attorney unless service upon the party
himself is ordered by the court. Service upon the attorney or
upon a party shall be made by delivering a copy to him or by
mailing it to him at his last known address or, if no address is
known, by leaving it with the clerk of the court.

***

Delivery of a copy within § 15-6-5 means: Handing it to the
attorney or to the party; or leaving it at his office with his clerk
or other person in charge thereof; or, if there is no one in charge,
leaving it in a conspicuous place therein; or, if the office is closed
or the person to be served has no office, leaving it at his dwelling
house or usual place of abode with some person over the age of
fourteen years then residing therein. Service by mail shall be by
first class mail and is complete upon mailing.

The service of the notice of entry was not properly effectuated by either hand

delivery or mail as contemplated by SDCL 15-6-5(b). Interoffice mail is not a

recognized means of service and does not provide the reliability of other forms of

service contemplated by the code. “‘Service by mail must be accomplished so as to

allow delay only within the official channels of the United States mail, not through

inter-office or other institutional delays.’” Chatterjee v. Mid Atl. Reg’l Council of

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Carpenters, 946 A2d 352, 355 (DC 2008) (quoting Neuman v. Neuman, 377 A2d 393,

398 (DC 1977)). Consequently, based on the defect in service the appeal time had

not yet been triggered when the State filed its notice of appeal on April 15, 2008,

and therefore the appeal is timely. 1 We now turn to the merits of this appeal.

[¶8.] Whether a felony DUI conviction qualifies as a “felony” for the
purposes of enhancing a sentence under SDCL 22-7-7.

[¶9.] Anders claims that a sentence should only be enhanced under SDCL

22-7-7 when a defendant has prior felonious conduct on her record, and not when a

defendant has been deemed a felon for status purposes only. She further asserts

Carroll v. Solem, 424 NW2d 155, supports her position. In response, the State

argues that State v. Fender, 504 NW2d 858, and the plain language of SDCL 22-7-7

control this case, as both permit the use of a prior felony DUI to enhance the

sentence for a principal felony.

[¶10.] The standard of review for statutory interpretation issues is well

settled:

Statutory interpretation and application are questions of law,
and are reviewed by this Court under the de novo standard of
review. Statutes are to be construed to give effect to each
statute and . . . to have them exist in harmony. It is a
fundamental rule of statutory construction that the intention of

1. There is a strong argument that even if interoffice mail would be a recognized
form of delivery three days would be added to the period because that specific
provision does not specify “first class mail” as the only method entitled to the
additional three days. SDCL 23A-41-5 (“Whenever a party has the right or is
required to do an act within a prescribed period after the service of a notice or
other paper upon him and the notice or other paper is served upon him by
mail, three days shall be added to the prescribed period.”).

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the law is to be primarily ascertained from the language
expressed in the statute. . . .
“We give words their plain meaning and effect, and read
statutes as a whole, as well as enactments relating to the same
subject.”

Rotenberger v. Burghduff, 2007 SD 7, ¶8, 727 NW2d 291, 294 (additional and

internal citations omitted).

[¶11.] The habitual offender statute pertinent to this case is codified at SDCL

22-7-7. It 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
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.

Id. (emphasis added). Unlike some states’ habitual offender statutes, the statutory

language quoted above does not distinguish between prior felonious conduct and a

defendant’s status as a felon based on repeated misdemeanor acts. See, e.g.,

IndCodeAnn 35-50-2-8(b)(1). Nor does the language exclude certain crimes from or

explicitly include certain crimes within the operation of the habitual offender

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statute. 2 Rather, the statute provides that “[t]he determination of whether a prior

offense is a felony . . . shall be determined by whether the prior offense was a felony

under the laws of this state . . . .” Id. (emphasis added). The prior offense of which

Anders was convicted was “Driving under the Influence (DUI) (Third Offense)

(Felony)” in violation of SDCL 32-23-4. SDCL 32-23-4 plainly states: “If conviction

for a violation of § 32-23-1 [DUI statute] is for a third offense, the person is guilty of

a Class 6 felony[.]” (Emphasis added.) Therefore, Anders’ third offense DUI was a

felony under the laws of this state, and consequently, available for sentence

enhancement purposes under SDCL 22-7-7.

[¶12.] In 1988, we decided Carroll v. Solem, 424 NW2d 155. Carroll was

indicted for driving while under the influence of alcoholic beverages (DWI) on

August 28, 1986. This was his third DWI in five years. In response, the state filed

two Part II Informations. The first alleged that the DWI was Carroll’s third such

offense in five years based upon his July 22, 1983 and March 3, 1986 convictions,

and as such constituted a class 6 felony. The second Part II Information alleged

2. Nebraska’s statutory scheme is distinguishable from SDCL 22-7-7. In State
v. Chapman, the Nebraska Supreme Court held that the Nebraska habitual
offender statute, Nebraska Revised Statute 29-2221, could not be used to
enhance the defendant’s sentence for third offense DUI where another
statute, Nebraska Revised Statute 60-6, 196, specifically excluded such
offenses from the operation of the habitual criminal provision. 287 NW2d
697, 699 (Neb 1980). Similarly, in State v. Hittle, 598 NW2d 20, 29 (Neb
1999), the Nebraska Supreme Court held that a felony conviction for driving
under a suspended license may not be used to trigger application of the
habitual criminal statute.
Conversely, Florida’s statute specifically lists which felonies trigger the
habitual offender statute. See FlaStatAnn 775.084 (1)(b)1.

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that Carroll was a second-time, felony offender based upon a prior DWI felony

conviction of March 11, 1986. For the first Part II Information, the penalty for the

principal offense was increased from a class 1 misdemeanor to a class 6 felony

pursuant to SDCL 32-23-4. Then under SDCL 22-7-7, the penalty was again

enhanced to a class 5 felony based on the second Part II Information. On appeal, we

concluded that in a situation where a defendant’s sentence was twice enhanced, the

specific and express enhancement statute controls over the more general statute.

Id. at 157. Therefore, the penalty class can only be enhanced once in a sentencing

determination. Accordingly, Carroll’s sentence, which was doubly enhanced, was

reversed, and the case was remanded for resentencing. 3 Id.

[¶13.] Five years later, we decided State v. Fender, 504 NW2d 858. Fender’s

principal charge was first degree burglary, for which he was found guilty. Prior to

sentencing, the State filed a Part II Information that listed three prior felonies:

aggravated assault, May 14, 1983; escape, May 14, 1983; and DUI (third offense),

July 22, 1988. The trial court found Fender guilty of being a habitual offender and

sentenced him to thirty years in the penitentiary.

3. In Carroll, we recognized that our holding was in line with State v. Helling,
391 NW2d 648 (SD 1986), “where we held that a person charged with a third
offense DWI was not entitled to additional (felony) peremptory challenges on
the underlying charge.” 424 NW2d at 157. We find the discrepancy
troubling, and conclude that, because a person charged with a felony DUI
faces a potential penitentiary sentence and should be treated the same as
those charged with other felonies, this is a procedural defect needing to be
cured.

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[¶14.] On appeal, Fender claimed two errors with the Part II Information.

First, he claimed that it was defective because it listed two convictions, which arose

from the “same transaction,” contrary to SDCL 22-7-9. We held that even if Fender

proved the convictions were related, the fact that both felony convictions were

included in the Part II Information was harmless error because only one conviction

was necessary to trigger the habitual offender statute. Id. at 861-62.

[¶15.] Fender’s second allegation of error was that the Part II Information

was defective because it listed a prior felony conviction for DUI, and the Carroll

holding “prohibits use of a DUI felony conviction as the basis for a habitual offender

enhancement.” Id. at 862. We explained that interpretation of Carroll was

incorrect and clarified the holding. “In Carroll, we said a third DUI conviction is

already enhanced under the DUI statutes and therefore it is not appropriate to

enhance it again under the general habitual offender statute.” Id. (emphasis in

original). Perhaps this one sentence failed to clearly articulate why Fender’s

interpretation of Carroll was mistaken. However, the following sentence in Fender

was clear: “[O]ur ruling in Carroll does not prevent the use of a felony DUI

conviction to enhance other subsequent felony convictions.” 4 Id. (emphasis in

original). This statement in Fender foreshadowed the facts presented in this case. 5

4. This statement limited our holding in Carroll to situations where the penalty
for the principal offense was twice enhanced in one sentencing determination.

5. In Fender, we were not required to strictly apply this rule because the
defendant had more than one prior felony on his record. We stated that
“[e]ven if one of the ‘related’ convictions and the DUI conviction were
removed, there is still a valid prior felony conviction to support a habitual
(continued . . .)

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Here, unlike in Carroll, Anders’ principal felonies do not carry accompanying

sentencing schemes allowing for enhancement based on the specific charges

themselves. There is no possibility that Anders’ current sentence will be doubly

enhanced. Rather, it is only her prior felony DUI that permits one class

enhancement of her sentence.

[¶16.] Based on a plain interpretation of SDCL 22-7-7 and our decision in

Fender, Anders’ prior felony DUI can be used to enhance the sentence for her

principal felony charges. Accordingly, we reverse.

[¶17.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and

MEIERHENRY, Justices concur.

________________________
(. . . continued)

offender conviction[.]” Fender, 504 NW2d at 862. This language should not
be construed to mean that a prior felony DUI cannot be used to trigger the
habitual offender statutes. Rather, under the circumstances in Fender, it
was immaterial whether the felony DUI was used to trigger SDCL 22-7-7
because Fender had three prior felony convictions and only one felony
conviction was needed. Therefore, there was no error.

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