#27593-rem-GAS

2016 S.D. 40

                           IN THE SUPREME COURT
                                   OF THE
                          STATE OF SOUTH DAKOTA


                                  ****
STATE OF SOUTH DAKOTA,                     Plaintiff and Appellee,

      v.

JAY ALAN AINSWORTH,                        Defendant and Appellant.


                                  ****

                  APPEAL FROM THE CIRCUIT COURT OF
                    THE FOURTH JUDICIAL CIRCUIT
                    BUTTE COUNTY, SOUTH DAKOTA

                                  ****

                    THE HONORABLE MICHAEL W. DAY
                               Judge

                                  ****

MARTY J. JACKLEY
Attorney General

JOHN STROHMAN
Assistant Attorney General
Pierre, South Dakota                       Attorneys for plaintiff
                                           and appellee.

TIMOTHY J. BARNAUD
Spearfish, South Dakota                    Attorney for defendant and
                                           appellant.


                                  ****


                                           CONSIDERED ON BRIEFS ON
                                           APRIL 25, 2016

                                           OPINION FILED 05/11/16
#27593

SEVERSON, Justice

[¶1.]        Jay Ainsworth appeals his sentence for simple assault. He contends

that the sentencing court erred by failing to grant him credit for time served. He

also asserts that his two-year sentence violates the Eighth Amendment to the

United States Constitution. We remand for correction of the sentence.

                                    Background

[¶2.]        In the early morning hours of July 1, 2015, law enforcement responded

to a report of a domestic incident at an apartment. Inside the apartment, law

enforcement encountered a man, later identified as Ainsworth, and the victim.

Ainsworth and the victim were on the floor; Ainsworth was holding a cloth to the

victim’s face, which was bleeding. The victim told the responding officer that

Ainsworth had hit and choked her. Ainsworth initially admitted to law enforcement

that he had hit the victim, but he later recanted and stated that the victim fell and

her sharp tooth cut her face. An officer arrested Ainsworth and transported him to

jail.

[¶3.]        On July 1, 2015, a complaint was filed charging Ainsworth with

aggravated assault—domestic violence, and the circuit court set bond at $10,000

cash or surety. On July 2, Ainsworth made his initial appearance. At that time,

Ainsworth submitted an application for court-appointed counsel. The court found

Ainsworth to be indigent and appointed counsel to represent him. On July 13, a

grand jury indicted Ainsworth of aggravated assault. The State filed a part II

habitual offender information alleging that Ainsworth had two prior felonies from

other states. On August 18, 2015, the State filed an information charging


                                         -1-
#27593

Ainsworth with simple assault—domestic violence and a part II information

alleging two prior domestic assaults. A change of plea hearing was held on August

19, 2015, at which time Ainsworth pleaded guilty to simple assault and admitted to

the convictions in the part II information. The State dismissed the aggravated

assault indictment and the initial habitual offender information.

[¶4.]        The circuit court held a sentencing hearing on September 2, 2015. The

court sentenced Ainsworth to two years in the penitentiary with no credit for time

served. On appeal, Ainsworth alleges that the court’s failure to give credit for time

served violates his right to equal protection under the Fourteenth Amendment of

the United States Constitution. He also maintains that the sentence is grossly

disproportionate to the crime and thus unconstitutional under the Eighth

Amendment of the United States Constitution.


                                      Analysis

[¶5.]        “Unless there is some constitutional or statutory limitation, sentencing

power is discretionary with the trial judge.” State v. Sorenson, 2000 S.D. 127, ¶ 14,

617 N.W.2d 146, 149. Defendants in South Dakota do not have a statutory right to

credit for time served. Id. However, we have recognized an exception for indigent

defendants. “[W]here incarceration results from a defendant’s financial inability

and failure to post bond . . . ‘The Fourteenth Amendment equal protection clause

requires that credit be given for all presentence custody [that] results from

indigency.’” Id. ¶ 15 (quoting State v. Green, 524 N.W.2d 613, 614 (S.D. 1994)).

“The appointment of counsel is sufficient to establish a defendant as indigent prior

to sentencing, and such indigency dates from the time the court approves an

                                          -2-
#27593

application for court-appointed counsel.” Green, 524 N.W.2d at 614. “[T]he inability

of [a] defendant to post bail while awaiting trial is also an indication of presentence

indigency.” Id.

[¶6.]        There is no dispute in this case that Ainsworth is indigent. The court

appointed counsel and specifically stated in the order that it was “satisfied that the

Defendant is indigent and financially unable to obtain counsel.” In addition,

Ainsworth did not post bond. The State seems to contend that Ainsworth was

denied bail and that he was kept in custody because he presented a danger to the

community. But Ainsworth was not denied bail; the court set bail at $10,000 cash

or surety. Ainsworth was not in custody for anything other than the incident on

July 1, and there is no indication that he would have remained confined if he could

have posted bond. See Sorenson, 2000 S.D. 127, ¶ 23, 617 N.W.2d at 151

(Defendant was not entitled to credit for time served where “his confinement was

not attributable to his financial ability to post bond”). Accordingly, Ainsworth is

entitled to credit for time served.

[¶7.]        Despite the circuit court’s error, the State asserts that Ainsworth has

not preserved this issue for appeal. However, at sentencing Ainsworth raised the

issue of credit for time served. He asked the court to grant him credit. Therefore,

we address the issue.

Eighth Amendment

[¶8.]        Ainsworth also contends that his sentence is grossly disproportionate

to the crime of simple assault. He maintains that his struggles with depression and

anger issues and his willingness to seek counseling, perform community service,


                                          -3-
#27593

and take any other steps to address his behavior render the sentence

unconstitutional. The arguments raised by Ainsworth are those considered under

an abuse of discretion standard rather than under an Eighth Amendment

challenge. See State v. Rice, 2016 S.D. 18, ¶¶ 23-28 877 N.W.2d 75, 83-85. In

contrast, to determine whether a sentence violates the Eighth Amendment, we

must answer a threshold question of whether a sentence appears grossly

disproportionate. Id. ¶ 17, 877 N.W.2d at 81. To answer that question, we

“compare the gravity of the offense—i.e., ‘the offense’s relative position on the

spectrum of all criminality’—to the harshness of the penalty—i.e., ‘the penalty’s

relative position on the spectrum of all permitted punishments.’” Id. ¶ 13, 877

N.W.2d at 80 (quoting State v. Chipps, 2016 S.D. 8, ¶¶ 35-38, 874 N.W.2d 475, 487-

89).

[¶9.]        First, we consider the gravity of the offense. Simple assault

encompasses attempts to cause bodily injury and actually causing bodily injury. See

SDCL 22-18-1. It is on the lower end of the criminality spectrum. However, in this

case, the crime is aggravated by Ainsworth’s past convictions. See Rice, 2016 S.D.

18, ¶ 18, 877 N.W.2d at 81. And Ainsworth did inflict injury on the victim. The

harshness of the penalty authorized by the Legislature reflects its position on the

lower end of the criminality spectrum. Simple Assault is a Class 1 misdemeanor

punishable by one year imprisonment and a $2,000 fine. SDCL 22-6-2. As in this

case, after the third offense, simple assault becomes a Class 6 felony punishable by

two years imprisonment and a $4,000 fine. SDCL 22-6-1. These punishments are

on the low end of the spectrum of all permitted punishments. A threshold


                                          -4-
#27593

comparison of the gravity of the offense and harshness of the penalty does not

demonstrate an appearance of gross disproportionality, and thus our review ends.

See State v. Coleman, 2015 S.D. 48, ¶ 11, 865 N.W.2d 848, 851.

[¶10.]       Finally, we consider whether the court abused its discretion by

sentencing Ainsworth to the maximum sentence. “Within constitutional and

statutory limits, the trial courts of this state exercise broad discretion when

deciding the extent and kind of punishment to be imposed.” Rice, 2016 S.D. 18, ¶

23, 877 N.W.2d at 83. “[A] sentence within the statutory maximum [generally] will

not be disturbed on appeal.” Id. The sentencing court considered each of the things

that Ainsworth brings to the attention of this Court. Although Ainsworth told the

court that he would take steps to address his behavioral issues, the court did not

find him to be credible. It stated at sentencing:

             Despite what I’m hearing, you did create a victim by your
             actions on July 1 of this year. I have seen no remorse. From
             your criminal record, you have been creating victims since 1991.
             I believe that you will continue to create victims and that you
             are a danger to others.

Ainsworth’s arguments to this Court are no different than what he presented to the

sentencing court, which gave them full consideration. Accordingly, we do not find

that the court abused its discretion by sentencing Ainsworth to the maximum

penalty.

[¶11.]       Remanded for correction of Ainsworth’s sentence to give credit for time

served.

[¶12.]       GILBERTSON, Chief Justice, and ZINTER, WILBUR, and KERN,

Justices, concur.


                                          -5-
