#28127-a-SLZ
2017 S.D. 94
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
CLINT BOLTON, Defendant and Appellant.
****
APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA
****
THE HONORABLE MATTHEW M. BROWN
Judge
****
MARTY J. JACKLEY
Attorney General
GRANT FLYNN
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
TIMOTHY J. RENSCH of
Rensch Law Office
Rapid City, South Dakota Attorneys for defendant
and appellant.
****
CONSIDERED ON BRIEFS
ON AUGUST 28, 2017
OPINION FILED 12/27/17
#28127
ZINTER, Justice
[¶1.] This appeal raises the question whether sentencing courts have the
power to suspend execution of sentence on the condition of good behavior for periods
longer than the authorized maximum term of imprisonment. We conclude that
sentencing courts have such power because it has been delegated to them by the
Constitution and the Legislature has not restricted it.
Facts and Procedural History
[¶2.] Clint Bolton was charged with alternative counts of simple assault, a
class 1 misdemeanor. Pursuant to a plea agreement, the State filed an amended
complaint charging disorderly conduct, a class 2 misdemeanor. Class 2
misdemeanors carry a maximum sentence of thirty days in jail or a $500 fine or
both. SDCL 22-6-2. The State also agreed to recommend a thirty-day jail sentence
with all thirty days suspended. Bolton agreed to the plea agreement, and counsel
entered a no contest plea to disorderly conduct on Bolton’s behalf. 1
[¶3.] The magistrate court accepted the plea and imposed a thirty-day jail
sentence. The court then suspended execution of that sentence on the condition
that Bolton obey all laws and remain on good behavior for six months. Bolton’s
attorney immediately objected to the sentence. He argued the court could not
condition a suspended execution of sentence for a period longer than thirty days, the
statutory maximum term of imprisonment for class 2 misdemeanors. The court
invited counsel to brief the issue.
1. Bolton was not present. His counsel entered an Alford “benefit of the bargain
plea.” See State v. Rondell, 2010 S.D. 87, ¶ 1 n.1, 791 N.W.2d 641, 642 n.1.
-1-
#28127
[¶4.] In lieu of briefing, Bolton filed a motion to correct an illegal sentence.
The magistrate court denied the motion. Relying on State v. Macy, the court
concluded it was permitted to conditionally suspend execution of sentence for
periods that exceed the maximum term of imprisonment for the underlying offense.
See State v. Macy, 403 N.W.2d 743, 745 (S.D. 1987) (stating sentencing courts have
complete discretion in setting the length of probation when the court suspends
imposition of sentence). Following the circuit court’s affirmance, we granted
Bolton’s petition for intermediate appeal.
Decision
[¶5.] As a preliminary matter, the State argues Bolton’s appeal is moot
because his sentence was complete on January 17, 2017. However, this Court may
“determine a moot question of public importance if we feel that the value of its
determination as a precedent is sufficient to overcome the rule against considering
moot questions.” Larson v. Krebs, 2017 S.D. 39, ¶ 16, 898 N.W.2d 10, 16-17. The
public interest exception requires “general public importance, probable future
recurrence, and probable future mootness.” Id.
[¶6.] The issue raised in Bolton’s appeal meets these requirements. The
magistrate court indicated that it conditionally suspended sentences in class 2
misdemeanors for six months “just about every day.” The issue will also continue to
evade review because the relatively short sentences imposed in this kind of case
expire before an appeal can be completed. It is finally an issue of general public
importance. If such sentences are illegal, they are being improperly imposed on not
only the thousands of people sentenced for very low-level offenses, but potentially on
-2-
#28127
those felons that require long and extensive court supervision on suspended
sentences. We exercise our discretion to address the issue.
[¶7.] The specific issue is whether a sentencing court may conditionally
suspend execution of sentence for a period that exceeds the statutory maximum
term of imprisonment for the offense. Bolton argues such sentences are illegal. He
contends there is no case or statute that authorizes such suspensions. Although he
relies on a number of our precedents that have touched on the legality of various
suspended sentences, none of them address the ultimate question here: whether
sentencing courts have been delegated the power to suspend execution of sentence
for periods longer than the maximum term of imprisonment.
[¶8.] This Court considered a closely related issue in Macy, a case involving
a suspended imposition of sentence under SDCL 23A-27-13. We held that courts
have discretion to set the period of probation beyond the maximum authorized term
of imprisonment. Macy, 403 N.W.2d at 745. We did so in part because under SDCL
23A-27-13, a sentencing court is given express, discretionary authority over the
“period” of probation. Additionally, the sentencing court must obtain the
defendant’s consent to the sentence. SDCL 23A-27-13.
[¶9.] Here, the magistrate court and circuit court relied on Macy to uphold
Bolton’s suspended sentence. Bolton contends that Macy has no application because
SDCL 23A-27-18—which governs Bolton’s suspended execution of sentence—
contains no express grant of authority concerning the “period” of suspension, nor
does it require the defendant’s consent. Bolton’s contentions require an
examination of the source of a sentencing court’s power to suspend sentences.
-3-
#28127
[¶10.] Prior to 1972, Article V, section 39 of the South Dakota Constitution
delegated suspended sentence authority to the Legislature and authorized that body
to delegate the power to courts. It provided: “The Legislature may empower all
courts having jurisdiction to try offenses under the laws of this state, and the judges
thereof, to suspend sentences of persons convicted . . . .” State ex rel. Grant v.
Jameson, 70 S.D. 369, 370, 17 N.W.2d 714, 714 (1945) (emphasis added) (quoting
S.D. Const. art. V, § 39 (superseded 1972)). Thus, “[t]he circuit courts of this state
[did] not have the inherent authority to suspend . . . execution of a sentence.” State
v. Oban, 372 N.W.2d 125, 128 (S.D. 1985). Suspensions required a specific
legislative grant of authority.
[¶11.] However, in 1972, the foregoing provision was repealed. It was
replaced by an amendment to Article V, section 5, which now delegates the power to
suspend sentences directly to the courts with only one limitation: “Imposition or
execution of a sentence may be suspended by the court empowered to impose the
sentence unless otherwise provided by law.” S.D. Const. art. V, § 5. Thus,
sentencing courts now possess complete authority over all aspects of suspended
sentencing unless the Legislature otherwise provides by statute. Accordingly, the
question here is not whether the Legislature has passed a statute specifically
authorizing Bolton’s suspended execution of sentence exceeding the maximum
authorized term of imprisonment. The question is whether the Legislature has
passed a statute limiting the court’s authority to conditionally suspend sentences in
such a manner.
-4-
#28127
[¶12.] Although SDCL 23A-27-18 requires that sentences may only be
suspended during good behavior, it sets no limit on the period of the suspension.
The statute provides: “Upon conviction, the sentencing court may suspend the
execution of any sentence imposed during good behavior, subject to such conditions
or restitutions as the court may impose.” SDCL 23A-27-18 (emphasis added).
Plainly, this provision contemplates broad discretion. It contains no language
limiting the period of the suspension or its conditions. It certainly does not limit a
conditional suspension to the maximum term of imprisonment. Additionally,
although Bolton did not consent to his suspended execution of sentence, the
Legislature did not impose the consent limitation that it required to suspend
imposition of sentence. Compare SDCL 23A-27-13 (requiring defendant’s consent in
suspended imposition cases), with SDCL 23A-27-18 (no consent required in
suspended execution cases).
[¶13.] We conclude that because the Legislature has not limited a sentencing
court’s discretion regarding the period of suspension, courts may in their discretion
conditionally suspend execution of sentence for periods exceeding the maximum
term of imprisonment. This conclusion does not mean a sentencing court may
impose conditions that are unlimited or are not justified by and are clearly against
reason and evidence. Unreasonable sentences are always subject to challenge for
an abuse of discretion. See State v. Rice, 2016 S.D. 18, ¶ 23, 877 N.W.2d 75, 83. We
also point out that the Constitution contemplates a legislative role in this
determination. If the Legislature believes such suspended sentences should be
-5-
#28127
limited in length, Article V, section 5 empowers it to limit the period of suspension,
an opportunity some other states have taken. 2
[¶14.] Because SDCL 23A-27-18 does not limit a sentencing court’s authority
to determine the duration of suspended sentences, Bolton’s sentence was not illegal.
The circuit court did not err in affirming the magistrate court’s denial of Bolton’s
motion to correct an illegal sentence.
[¶15.] Affirmed.
[¶16.] GILBERTSON, Chief Justice, SEVERSON and KERN, Justices, and
WILBUR, Retired Justice, concur.
[¶17.] JENSEN, Justice, not having been a member of the Court at the time
this action was submitted to the Court, did not participate.
2. Many states expressly limit the maximum period of suspension to a fixed
number of years. See, e.g., Ala. Code § 15-22-54 (West 2017) (two years for
misdemeanors and five years for felonies); Mich. Comp. Laws Ann. § 771.2(1)
(West 2017) (same). Several states vary the maximum period depending on
the level of the offense. See, e.g., Ariz. Rev. Stat. Ann. § 13-902 (West 2017)
(one to three years for misdemeanors and three to ten years for felonies).
Many other states expressly set the period to the maximum term of
confinement either by statute or case law. See, e.g., Idaho Code Ann. § 19-
2601(7) (West 2017) (two years for misdemeanors and maximum period of
confinement for felonies); Mont. Code Ann, § 46-18-201(2) (West 2017) (six
months to maximum period of confinement, whichever is greater); Hicklin v.
State, 535 P.2d 743, 753 (Wyo. 1975). Finally, a few states give courts
discretion to suspend sentence beyond the maximum period of confinement.
See, e.g., Va. Code Ann. § 19.2-303.1 (West 2017) (providing that the court
“may fix the period of suspension for a reasonable time . . . without regard to
the maximum period for which the defendant might have been sentenced.”);
State v. Wallace, 150 P.3d 540, 543 (Utah 2006) (“[W]e find no other provision
that limits the term of probation and therefore conclude that our law
currently provides no statutory limitation on the length of probation a trial
court may impose.”).
-6-