#30289-r-PJD
2024 S.D. 13
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
KENNETH LEROY KURTZ, Defendant and Appellant.
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APPEAL FROM THE CIRCUIT COURT OF
THE THIRD JUDICIAL CIRCUIT
BEADLE COUNTY, SOUTH DAKOTA
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THE HONORABLE KENT A. SHELTON
Judge
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TUCKER J. VOLESKY
Huron, South Dakota Attorney for defendant
and appellant.
MARTY J. JACKLEY
Attorney General
SHALE R. KRAMME
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
****
CONSIDERED ON BRIEFS
NOVEMBER 7, 2023
OPINION FILED 02/28/24
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DEVANEY, Justice
[¶1.] Kenneth Leroy Kurtz pled guilty to possession of a controlled
substance, a Class 5 felony, in violation of SDCL 22-42-5. At his sentencing
hearing, the circuit court found aggravating circumstances justifying a departure
from presumptive probation under SDCL 22-6-11. The court sentenced Kurtz to
five years in prison. Kurtz appeals, arguing that he should have received
presumptive probation because although the court found aggravating
circumstances, the court further found that he did not pose a significant risk to the
public. In the alternative, he argues that the court abused its discretion by
imposing the maximum prison sentence. We vacate and remand for the circuit
court to enter a sentence of probation.
Factual and Procedural Background
[¶2.] On March 23, 2022, a Huron police officer initiated a traffic stop on a
vehicle that was speeding. After identifying Kurtz as the driver, the officer
determined that Kurtz was driving without a valid license and noticed that he was
fidgeting and unable to sit still. The officer obtained Kurtz’s consent to search his
vehicle and his person. During the search of Kurtz, the officer found two zip-top
bags containing crystal residue that tested positive for methamphetamine, and
during the search of the vehicle, the officer found a zip-top bag in a cigarette pack
on the driver’s seat with a burnt straw containing a substance that appeared to be
methamphetamine. Kurtz was charged with driving without a valid license and
possession of a controlled substance. Kurtz later pled guilty to possession of a
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controlled substance, a Class 5 felony, and the State dismissed the charge of driving
without a valid driver’s license.
[¶3.] Kurtz’s sentencing hearing was continued at the request of both
parties because he had applied to participate in the Beadle County drug court
program. His application was ultimately denied on January 17, 2023, and the
circuit court proceeded with a sentencing hearing on February 14, 2023. At the
sentencing hearing, the State’s Attorney advised the court that Kurtz was not
accepted into the drug court program because he was “too far along in his recovery.”
The State further advised that because of this progress, the State was
recommending a suspended execution of sentence.
[¶4.] Kurtz’s counsel likewise requested that the circuit court suspend any
sentence imposed and place Kurtz on probation. In support of this request, counsel
offered documentation from treatment providers showing that Kurtz had
successfully completed an anger management course and an intensive outpatient
program and that he was currently in session 29 out of the 39 required sessions of
the Cognitive Behavioral Interventions for Substance Abuse program. Counsel
further advised that Kurtz had obtained a driver’s license and vehicle insurance,
was currently employed, and was the primary caretaker of his partner of six years
and her teenage son.
[¶5.] As background information, Kurtz’s counsel also offered a
psychological evaluation report conducted in March 2022, just before his arrest on
the charges at issue. The evaluation was conducted based on a referral from the
Department of Human Services to determine whether Kurtz’s Social Security
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Supplemental Income (SSI) benefits could be restored. 1 This report details Kurtz’s
social and developmental history and provides an assessment of his social,
emotional, cognitive, and behavioral status. The report notes that Kurtz, who was
50 years old at the time of the evaluation, had been diagnosed with Attention-
Deficit-Hyperactivity Disorder Combined Presentation as a child and was placed in
special education classes where he remained until finishing high school. He began
using cocaine at age 19, but he reportedly completed residential treatment and
stayed clean for 15 years. At some point, Kurtz served 17 months in a Washington
State prison. He thereafter started using methamphetamine and was arrested and
convicted of drug possession. The report states that Kurtz served 22 months in the
South Dakota State Penitentiary for this offense and was released in July 2021.
[¶6.] The report also notes Kurtz’s history of multiple hospitalizations for
psychiatric treatment due to suicide attempts and lists several mental health
diagnoses, including major depressive disorder, intellectual disability (mild), and
cocaine use disorder (in remission). The report also lists several medical diagnoses,
including chronic obstructive pulmonary disease and arthritis of the back and neck.
According to the report, Kurtz is unable to manage his own finances and relies on a
representative payee to pay his bills and manage his finances. The report
recommends the continued use of a payee if his SSI benefits are reinstated.
[¶7.] Based on Kurtz’s significant progress since the time of his arrest,
Kurtz’s counsel advised the court that Kurtz’s psychiatric case manager opined that
1. The psychological evaluation states that Kurtz had previously been found
eligible for SSI benefits and was applying to have them reinstated as he was
no longer an inmate in prison.
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he would not be a significant threat to the community, a view that, according to
counsel, is supported by the reports submitted to the court. Kurtz personally
addressed the court and apologized for his relapse. He explained that he had
numerous family members who had passed away in the last year, including his
mother who had recently died, and that he had promised her that he would not
relapse again.
[¶8.] Prior to pronouncing its sentence, the circuit court stated that it had
reviewed the reports from Kurtz’s treatment providers. The court also referenced
Kurtz’s previous criminal record. 2 The court then detailed several aggravating
factors it found to exist, including prior failures to comply, prior probation and
parole violations, previous failures to appear, and failures to pay court-ordered
fines. The court emphasized Kurtz’s 15 prior felony convictions and noted that the
current crime occurred while he was on parole. The court also referred to Kurtz
being arrested for simple assault while on parole on September 27, 2022, a charge
that, according to the court, was later reduced to disorderly conduct. 3
[¶9.] In pronouncing Kurtz’s sentence, the circuit court stated: “Well - - and
I agree with [defense counsel], I don’t know that you’re much of a threat to society.
2. The sentencing transcript indicates that Kurtz waived a presentence
investigation report, and his criminal history is not contained in the
underlying record. The circuit court did not indicate how it had accessed this
record nor did it take judicial notice of any other criminal files. As a result,
the record is scant as to the nature of Kurtz’s prior felonies, when the felonies
were committed, and the timing and nature of the parole and probation
violations.
3. There is no record of the simple assault charge that was later reduced to
disorderly conduct in the underlying appellate record.
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But at some point, we don’t deal any longer with whether you’re a threat to society,
but it’s simply punishment. And somebody that comes in front of me with 15 prior
felonies and asks that I just suspend the jail time, I don’t know how I can do that in
good conscience.” The court then imposed the maximum sentence of five years in
the penitentiary. Kurtz appeals, asserting that he should have received the
presumptive sentence of probation under SDCL 22-6-11. 4
Analysis and Decision
[¶10.] Kurtz contends the circuit court erred in its interpretation and
application of the directives in SDCL 22-6-11 when imposing a penitentiary
sentence rather than probation. He argues that because the court stated it could
not find that he posed a significant risk to the public, “the departure from
presumptive probation was impermissible.” In response, the State does not address
the import of the circuit court’s statement. Instead, the State argues that departure
was warranted because the aggravating circumstances identified by the court “are
identical to those that this Court has repeatedly determined pose a significant risk
to the public.”
[¶11.] Criminal defendants, like Kurtz, who are convicted of a Class 5 or
Class 6 felony that is not specifically excluded from the provisions of SDCL 22-6-11,
must be sentenced in accord with the directives in this statute. Relevant here,
SDCL 22-6-11 provides:
The sentencing court shall sentence an offender convicted of a
Class 5 or Class 6 felony . . . to a term of probation. If the
4. Given our disposition of his appeal, we need not address Kurtz’s alternative
argument that the circuit court abused its discretion in sentencing him to the
maximum authorized term of imprisonment.
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offender is under the supervision of the Department of
Corrections, the court shall order a fully suspended state
incarceration sentence pursuant to § 23A-27-18.4. The
sentencing court may impose a sentence other than probation or
a fully suspended state incarceration 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.
To depart from a presumptive sentence of probation, the court must therefore
identify that “aggravating circumstances exist that pose a significant risk to the
public and require a departure from presumptive probation under this section.” Id.
(emphasis added).
[¶12.] Whether the circuit court misinterpreted or misapplied SDCL 22-6-11
involves a question of statutory interpretation, which we review de novo, with no
deference given to the circuit court’s legal conclusions. State v. Underwood, 2017
S.D. 3, ¶ 5, 890 N.W.2d 240, 241; State v. Whitfield, 2015 S.D. 17, ¶ 11, 862 N.W.2d
133, 137.
[¶13.] Based on the transcript of the sentencing hearing, it is apparent that
the circuit court did not properly apply the statute here. Instead of finding
aggravating circumstances that reveal Kurtz poses a significant risk to the public,
as required by the statute to depart from presumptive probation, the court found
the opposite—despite the existence of aggravating circumstances, Kurtz is not
“much of a threat to society.” The court’s further statement that departure is
warranted because “at some point, we don’t deal any longer with whether you’re a
threat to society, but it’s simply punishment” is flatly contrary to the mandate in
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SDCL 22-6-11. If no aggravating circumstances are found that pose a significant
risk to the public, then departure from presumptive probation is not allowed under
SDCL 22-6-11.
[¶14.] What constitutes aggravating circumstances posing “a significant risk
to the public” is not defined by statute. Likewise, this Court has not provided a
definition of this phrase, perhaps because it is not one that can be precisely defined.
Our precedent, however, offers some guidance as to what this Court has or has not
deemed to be aggravating circumstances constituting a significant risk to the
public. For example, we determined that a “failure to pay fines, costs, restitution,
or attorney fees hardly amounts to a ‘significant risk to the public[.]’” Underwood,
2017 S.D. 3, ¶ 7, 890 N.W.2d at 242 (alteration in original). We have also rejected
the notion that “SDCL 22-6-11 contemplates only circumstances demonstrating a
risk of violence or career criminality.” Id. ¶ 8. On the other hand, we have
determined that prior criminal history and probation or parole violations may
constitute aggravating circumstances posing a significant risk to the public. See,
e.g., State v. Beckwith, 2015 S.D. 76, ¶ 11, 871 N.W.2d 57, 60 (noting that “[t]he
likelihood of not complying with the conditions of probation is an appropriate
aggravating circumstance to consider as it may signal a significant risk to the
public” (emphasis added)).
[¶15.] What has not been emphasized in our prior cases is that while a
defendant’s history may present aggravating circumstances, the sentencing court’s
required finding under SDCL 22-6-11 must focus on the relationship of those
circumstances to public safety. Therefore, while it is true that prior felonies and
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prior probation violations can constitute aggravating circumstances that pose such
a risk, it is not a foregone conclusion that all defendants with lengthy prior criminal
histories or a history of noncompliance categorically pose a significant risk to the
public. Importantly, sentencing courts should not, as a matter of course, ignore
recent prognostic indicators suggesting the defendant does not presently pose a
significant risk to the public. As this Court has often stated, sentencing involves
considering the totality of the circumstances as to the individual defendant before
the court, and this same governing principle applies when a court makes its
ultimate determination whether to depart from the otherwise mandated
presumptive probation. See State v. Seidel, 2020 S.D. 73, ¶ 47, 953 N.W.2d 301,
316–17 (noting that “the court is to acquire a thorough acquaintance with the
character and history of the person before it” by considering “the defendant’s
general moral character, mentality, habits, social environment, tendencies, age,
aversion or inclination to commit crime, life, family, occupation and previous
criminal record, as well as the rehabilitative prospects of the defendant” (internal
citations omitted)); see also Underwood, 2017 S.D. 3, ¶ 9, 890 N.W.2d at 242–43
(considering the totality of the circumstances when departing from presumptive
probation).
[¶16.] Here, it appears the circuit court considered many of these factors and
found them to be aggravating, but the court then specifically found that Kurtz does
not pose a significant risk to the public. Therefore, the court erred when it departed
from a presumptive probation sentence under SDCL 22-6-11. Accordingly, we
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vacate the court’s sentence and remand for the court to enter a sentence of
probation.
[¶17.] Vacated and remanded.
[¶18.] JENSEN, Chief Justice, and KERN, SALTER, and MYREN, Justices,
concur.
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