#24881-a-PER CURIAM
2010 SD 41
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
LLOYD STEVEN ROWLEY, Defendant and Appellant.
* * * *
APPEAL FROM THE CIRCUIT COURT
OF THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
* * * *
HONORABLE JOSEPH NEILES
Judge
* * * *
MARTY J. JACKLEY
Attorney General
JOHN STROHMAN
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
KENNETH M. TSCHETTER
Tschetter & Adams Law Office, PC Attorneys for defendant
Sioux Falls, South Dakota and appellant.
* * * *
CONSIDERED ON BRIEFS
MARCH 22, 2010
OPINION FILED 05/19/10
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PER CURIAM
[¶1.] Lloyd Steven Rowley (Rowley) appeals a judgment and sentence filed
April 3, 2008. Rowley pleaded guilty to possession of a controlled substance,
intentional damage to property in the first degree, and a habitual offender
information. Rowley received twenty-one years on the possession conviction and
twenty-one years for the intentional damage conviction. We affirm.
FACTS
[¶2.] On April 8, 2004, after several weeks of investigation, law enforcement
attempted to execute a search warrant at Rowley’s residence. A South Dakota
Division of Criminal Investigation (DCI) agent watching the residence observed
Rowley pulling into his driveway in a full-size van pulling a flatbed trailer. The
DCI agent signaled the waiting SWAT team to deploy in an attempt to neutralize
Rowley. When approached by the SWAT team, Rowley locked the van doors and
refused to exit the van. Before the SWAT team was able to remove Rowley from his
van, Rowley started the van and drove away. In his attempt to elude law
enforcement, Rowley drove his van and trailer through his lawn, striking the
vehicle of the DCI agent tasked with observing the residence.
[¶3.] A forty-five minute car chase ensued. During the chase, Rowley led
the police down several gravel or dirt roads. Eventually, law enforcement spiked
Rowley’s tires. Rowley nonetheless continued to elude law enforcement. Finally,
Rowley stopped at a dead-end road and attempted to hide from police in a corn field.
[¶4.] A search of Rowley’s vehicle revealed methamphetamine and drug
paraphernalia. A search of Rowley’s home revealed more than an ounce of
methamphetamine, marijuana, and more drug paraphernalia.
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[¶5.] A Minnehaha County grand jury returned a nine-count indictment.
On October 22, 2004, Rowley pleaded guilty to possession of a controlled substance,
injury to property in the first degree, and the habitual offender information for both
charges. On December 3, 2004, the circuit judge sentenced Rowley to a twenty-year
sentence for each crime with the sentences to run consecutively.
[¶6.] Rowley appealed and his conviction was summarily reversed. State v.
Rowley, 705 NW2d 266 (SD 2005) (Table). On remand, Rowley was released on
$100,000 cash bond. On February 21, 2006, the day before trial was to begin,
Rowley appeared in court and requested a continuance. Rowley’s request was
denied. Rowley did not appear for trial the next day, and was arrested in Ohio over
a year later in May 2007.
[¶7.] On October 7, 2007, Rowley again pleaded guilty to possession of a
controlled substance, intentional damage to property in the first degree, and the
habitual offender information. A different circuit court judge sentenced Rowley to
twenty-one years on each of the charges, with the sentences to run consecutively.
Rowley appeals raising two issues:
Did the circuit court fail to adequately establish a factual basis on the
intentional damage to property in the first degree charge.
Did the circuit court violate Rowley’s due process rights by sentencing
Rowley to a sentence one year longer on each count than he originally
received prior to exercising his right to appeal.
ISSUE ONE
[¶8.] Did the circuit court fail to adequately establish a factual basis
on the intentional damage to property in the first degree charge.
[¶9.] Rowley claims his due process rights were violated, rendering his plea
involuntary, when the circuit court failed to establish an adequate factual basis for
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his plea to the charge of intentional damage to property in the first degree. “To
determine if a plea is voluntary and intelligent as required to satisfy due process
requirements, we must look to the ‘totality of the circumstances.’” State v. Apple,
2008 SD 120, ¶ 14, 759 NW2d 283, 288. “Establishing a factual basis for each
element of an offense is essential to a knowing and voluntary plea.” Id. ¶ 18, 759
NW2d at 289 (citing State v. Nachtigall, 2007 SD 109, ¶ 11, 741 NW2d 216, 220-21).
This Court reviews constitutional due process claims de novo. Id. ¶ 8, 759 NW2d at
287. “Before accepting a guilty plea, a court must be subjectively satisfied that a
factual basis exists for the plea. The court must find a factual basis for each
element of the offense. The factual basis must appear clearly on the record.” State
v. Schulz, 409 NW2d 655, 658 (SD 1987) (citations omitted). The factual basis may
come from “anything that appears on the record. It is not necessary that a
defendant state the factual basis in his own words.” Id. (citations omitted).
[¶10.] At the time the offense was committed, the statute regarding
intentional damage to property read as follows:
Any person who intentionally injures, damages, or destroys
public property without the lawful consent of the appropriate
governing body having jurisdiction thereof, . . . is punishable
according to the following schedule. . . . If the damage to
property is more than five hundred dollars, the person is guilty
of intentional damage to property in the first degree, which is a
class 4 felony.
SDCL 22-34-1 (1990) (amended by SL 2005, ch. 120, § 97). Rowley argues the
factual basis procured by the circuit judge was insufficient to establish the
“intentional” element of the offense.
[¶11.] At the time of the incident, this Court had determined intentional
damage to property to be a general intent crime. State v. Balint, 426 NW2d 316,
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318 (SD 1988). Regarding the intentional language of the 1990 version of the
statute at issue, this Court stated:
We cannot read such language to be words requiring more than
a general intent. There is no additional mental state required
beyond that accompanying the injurious or destructive act. Our
present intentional damage to property statute, which replaced
the malicious mischief statute, does require an intentional act
on the part of a defendant, but no other subjective intent. SDCL
22-34-1. In 1978, the State Legislature changed the applicable
definitions within SDCL 22-1-2. “Intentionally,” as a definition,
was changed from requiring a specific “intention” to requiring
only a specific “design.” We hold that this change was made to
lessen the burden of proving intent. Thus, the statute evolved
from requiring a specific intent to avenge some wrong (malicious
mischief) to requiring only a general intent to damage the
property of another without their consent.
Id. This Court went on to hold regarding the specific facts at issue: “Clearly, Balint
had a design to damage the plate glass window.” Id. at 318-19.
[¶12.] Here, the colloquy between Rowley and the circuit judge confirmed
Rowley’s design to damage the vehicle. Rowley confirmed he intentionally drove his
van through an area closed by the DCI agent’s car in his attempt to escape. This is
the injurious act that caused the damage. This act was intentional. As quoted
above, “there is no additional mental state required beyond that accompanying the
injurious or destructive act.”
[¶13.] Rowley made it difficult for the circuit court to properly establish a
factual basis for the crime during the plea hearing. “When a defendant equivocates
while pleading guilty, the court must take extra care to ensure that the record
demonstrates a clear factual basis.” Nachtigall, 2007 SD 109, ¶ 14, 741 NW2d at
221. The circuit court did as required, producing an adequate factual basis despite
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Rowley’s equivocations. The totality of the circumstances support the adequacy of
the factual basis received.
[¶14.] Rowley argues the factual basis as established here could lead to
prosecutions for intentional damage to property whenever a negligent motorist’s
intentional act of driving a car produces damage. In 2005, the legislature
eliminated this possibility when it amended SDCL 22-34-1. The intentional damage
to property statute now reads: “[a]ny person who, with specific intent to do so,
injures, damages, or destroys . . . .” SDCL 22-34-1 (emphasis added).
ISSUE TWO
[¶15.] Did the circuit court violate Rowley’s due process rights by
sentencing Rowley to a sentence one year longer on each count than he
originally received prior to exercising his right to appeal.
[¶16.] Rowley first pleaded guilty to the charges of possession of a controlled
substance and intentional damage to property in 2004. Based upon Rowley’s 2004
guilty plea, he was sentenced to twenty years for each offense by the circuit court.
After this Court reversed that conviction (and a fifteen-month hiatus due to
Rowley’s departure) Rowley again pleaded guilty to the same offenses. This time,
however, a different circuit court judge sentenced Rowley to twenty-one years for
each offense. Rowley claims the increased severity of the sentences violated his due
process rights.
[¶17.] For support, Rowley relies on the United States Supreme Court
decision, North Carolina v. Pearce, 395 US 711, 89 SCt 2072, 23 LEd2d 656 (1969).
The holding of Pearce and its progeny as relevantly applied, has been set out aptly
by the Eighth Circuit Court of Appeals.
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In North Carolina v. Pearce, 395 US 711, 723 (1969), the
Supreme Court held that the imposition of a more severe
sentence following retrial or resentencing was, in general,
permissible. The Court held, however, that an increased
sentence motivated by vindictiveness on the part of a sentencing
judge was impermissible and a significant violation of a
defendant’s due process rights. Id. at 725, 89 SCt 2072. The
Court articulated a presumption of vindictiveness and imposed a
duty on sentencing courts to fully explain more severe sentences:
In order to assure the absence of such a motivation,
we have concluded that whenever a judge imposes
a more severe sentence upon a defendant after a
new trial, the reasons for his doing so must
affirmatively appear. Those reasons must be based
upon objective information concerning identifiable
conduct on the part of the defendant occurring after
the time of the original sentencing proceeding. And
the factual data upon which the increased sentence
is based must be made part of the record, so that
the constitutional legitimacy of the increased
sentence may be fully reviewed on appeal.
Id. at 726, 89 SCt 2072. The Court did not discuss the impact
that the use of a different sentencing judge might have on the
analysis. See Texas v. McCullough, 475 US 134, 140 n 3, 106
SCt 976, 89 LEd2d 104 (1986) (noting that the facts of Pearce
actually involved a different sentencing judge following remand
but that “the Court did not focus on it as a consideration for its
holding”). Rather, the Court suggested the blanket rule that
only facts arising after an initial sentencing could justify a more
severe sentence on resentencing. Pearce, 395 US at 726, 89 SCt
2072.
As explained by the Court in Alabama v. Smith, 490 US 794,
109 SCt 2201, 104 LEd2d 865 (1989), a series of subsequent
rulings limited the effect of Pearce and clarified that a
presumption of vindictiveness only arises where there is a
“‘reasonable likelihood’ that the increase in sentence is the
product of actual vindictiveness on the part of the sentencing
authority.” Id. at 799, 109 SCt 2201 (quoting United States v.
Goodwin, 457 US 368, 373, 102 SCt 2485, 73 LEd2d 74 (1982)).
“Where there is no such reasonable likelihood, the burden
remains upon the defendant to prove actual vindictiveness.” Id.
United States v. Anderson, 440 F3d 1013, 1015-16 (8th Cir 2006).
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[¶18.] Here, Rowley was sentenced by two different judges. In similar
situations, the Pearce analysis has been held inapplicable. See, McCullough, 475
US at 138, 106 SCt at 978-79, 89 LEd2d at 110 (noting other United States
Supreme Court cases in which the presumption of vindictiveness did not apply
when the more severe sentence was handed down by a different sentencing
authority than the original sentence). The McCullough approach has been
interpreted as follows: “when a different judge sentences a defendant after a
retrial, and that judge articulates logical, nonvindictive reasons for the sentence,
there simply is no sound basis to presume that the sentence is the product of
judicial vindictiveness.” State v. Mitchell, 670 NW2d 416, 424 (Iowa 2003) (citing
decisions relying upon McCullough for this proposition); see also State v. Bruna, 710
NW2d 329, 336 (NebApp 2006) (“Because the judge who imposed Bruna’s second
sentence is not the same judge who imposed the first sentence, we conclude that
there is no reasonable likelihood that vindictiveness contributed to the sentence
appealed in this case.”). We adopt this line of cases and hold that the presumption
of vindictiveness does not apply when a defendant’s sentence subsequent to reversal
is handed down by a different sentencing judge.
[¶19.] Although the presumption of vindictiveness does not apply, Rowley
could still obtain relief if he is able to articulate actual vindictiveness. See,
Anderson, 440 F3d at 1016. However, at the second sentencing the circuit court set
out in detail the reasons Rowley received the sentence he did, leaving no trace that
the increased sentence was punishment for appealing the original conviction.
[¶20.] Rowley also contends his sentence is unconstitutional as he received a
harsher sentence the second time in part due to absconding. Rowley argues this is a
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violation of double jeopardy as he pleaded guilty to felony failure to appear and
received a sentence for that crime, effectively punishing him twice for the same
offense. Other courts addressing this issue in the context of an alleged double
jeopardy violation hold otherwise: “[f]or the determination of sentences, justice
generally requires consideration of more than the particular acts for which the
crime was committed and that there be taken into account the circumstances of the
offense together with the character and propensities of the offender.” Pennsylvania
v. Ashe, 302 US 51, 55, 58 SCt 59, 60-61, 82 LEd 43 (1937).
Included as part of this consideration is conduct arising
subsequent to the conviction of the underlying crime and prior to
final sentencing. Although this subsequent conduct may result
in separate criminal charges, numerous federal courts have held
that such subsequent action is not barred by the double jeopardy
clause. See United States v. Carey, 943 F2d 44 (11th Cir 1991);
United States v. Mack, 938 F2d 678 (6th Cir 1991); United
States v. Garcia, 919 F2d 881 (3d Cir 1990); United States v.
Troxell, 887 F2d 830 (7th Cir 1989); Sekou v. Blackburn, 796
F2d 108 (5th Cir 1986); United States v. Brown, 785 F2d 587
(7th Cir 1986); United States v. Wise, 603 F2d 1101 (4th Cir
1979).
State v. Garvin, 682 A2d 562, 568 (ConnApp 1996). Based on this authority,
Rowley’s argument fails.
[¶21.] For the reasons stated above, the judgment of the circuit court is
affirmed.
[¶22.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and
MEIERHENRY, Justices, participating.
[¶23.] SEVERSON, Justice, deeming himself disqualified, did not participate.
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