#28213-a-LSW
2017 S.D. 82

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

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

      v.

CHARLES A. HUMPAL,                          Defendant and Appellant.


                                   ****

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

                                   ****

                   THE HONORABLE ROBERT GUSINSKY
                               Judge

                                   ****

MARTY J. JACKLEY
Attorney General

PATRICIA ARCHER
Assistant Attorney General
Pierre, South Dakota                        Attorneys for plaintiff
                                            and appellee.


TODD A. LOVE
Rapid City, South Dakota                    Attorney for defendant
                                            and appellant.


                                   ****

                                            CONSIDERED ON BRIEFS ON
                                            NOVEMBER 6, 2017

                                            OPINION FILED 12/06/17
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WILBUR, Retired Justice

[¶1.]        The sentencing court imposed a five-year penitentiary term upon

defendant while defendant was serving a probationary sentence imposed in a

different criminal file. Defendant appeals, asserting that the court imposed an

illegal sentence when it placed him under the dual supervision of the judicial and

executive branches. Although the sentencing court erred when it placed defendant

under simultaneous supervision of two branches of government, defendant is

currently only under the supervision of the executive branch. We, therefore, affirm

defendant’s sentence.

                                   Background

[¶2.]        On April 15, 2014, Charles Humpal pleaded guilty to one charge of

possession of a controlled substance and one charge of unauthorized ingestion of a

controlled substance (Criminal File 13-2946). The sentencing court sentenced

Humpal to three years on each charge and suspended the execution of sentence on

both charges. The court placed Humpal on probation for three years. On April 21,

2016, the State alleged Humpal violated probation, and on September 6, 2016,

Humpal admitted to the violation. On October 4, 2016, the sentencing court

amended its previous judgment of sentence and continued probation for three years

to begin on the date of the amended judgment.

[¶3.]        On October 19, 2016, the State charged Humpal with grand theft. The

State and Humpal entered into a plea agreement. Humpal agreed to plead guilty to

grand theft. The State in return agreed to, among other things, not file a probation

violation in Criminal File 13-2946. At a hearing on January 3, 2017, Humpal


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pleaded guilty, and the State recommended a five-year penitentiary sentence.

Humpal objected, claiming that the court did not have authority to impose a

penitentiary sentence for the grand theft conviction because Humpal was currently

serving a probationary term in Criminal File 13-2946. Humpal argued that

imposing a penitentiary sentence would improperly place him under the

simultaneous supervision of the executive and judicial branches. The court

requested briefing.

[¶4.]        At a hearing on March 7, 2017, the sentencing court sentenced Humpal

to five years in prison with three years suspended. It relied on SDCL 23A-27-18.4

and ordered the sentence to “run concurrent with the penitentiary sentence ordered

in” Criminal File 13-2946. In the court’s view, because the penitentiary sentence

ran concurrent with the sentence in Criminal File 13-2946, Humpal was only under

the supervision of the executive branch.

[¶5.]        Humpal appeals, asserting that the sentencing court did not have

authority to impose a penitentiary sentence against him while he was serving a

probationary term. The State argues that the issue is moot because the sentencing

court discharged Humpal from probation on March 9, 2017, leaving him only under

the supervision of the executive branch.

                               Standard of Review

[¶6.]        “The power to sentence comes from statutory and constitutional

provisions.” State v. Oban, 372 N.W.2d 125, 129 (S.D. 1985), superseded in part by

statute as recognized in Krukow v. S.D. Bd. of Pardons & Paroles, 2006 S.D. 46, ¶

15, 716 N.W.2d 121, 125. “Statutory interpretation is a question of law, reviewed de


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novo.” State v. Kramer, 2008 S.D. 73, ¶ 11, 754 N.W.2d 655, 658 (quoting State v.

Burdick, 2006 S.D. 23, ¶ 6, 712 N.W.2d 5, 7). Likewise, whether a defendant’s

sentence exceeds the jurisdiction and authority of the court is reviewed de novo.

State v. Orr, 2015 S.D. 89, ¶ 3, 871 N.W.2d 834, 835.

                                       Analysis

[¶7.]        We first address the State’s argument that Humpal’s appeal is moot

because the sentencing court discharged Humpal from probation in Criminal File

13-2946. We take judicial notice of Criminal File 13-2946. The order discharging

Humpal from probation provides: “the defendant is unsuccessfully discharged from

probation and is hereby restored to the full rights of citizenship subject to the

provisions of SDCL 22-14-15 & SDCL 22-14-15.1.” In the State’s view, “[a]ny

question involving the Defendant’s potential dual supervision was eliminated” on

March 9, 2017. The State further claims that none of the exceptions to the

mootness doctrine apply.

[¶8.]        Humpal responds that his discharge from probation in Criminal File

13-2946 “is simply irrelevant to the constitutional violation that occurred on March

7, 2017.” According to Humpal, the sentencing court violated the separation of

powers doctrine on March 7, 2017, when it imposed a penitentiary sentence, and the

court’s March 9, 2017 order ceding judicial supervision by discharging him from

probation did not erase the constitutional violation. So he avers that the court’s

sentence imposed on March 7, 2017, must be reversed and that he be resentenced.

[¶9.]        It is well settled that this Court will dismiss an appeal “as moot where,

before the appellate decision, there has been a change of circumstances or the


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occurrence of an event by which the actual controversy ceases and it becomes

impossible for the appellate court to grant effectual relief.” In re Woodruff, 1997

S.D. 95, ¶ 10, 567 N.W.2d 226, 228 (quoting Rapid City Journal v. Seventh Judicial

Cir. Ct., 283 N.W.2d 563, 565 (S.D. 1979)). It is undisputed that Humpal is no

longer on probation for the sentence imposed in Criminal File 13-2946 and therefore

will only be under the supervision of the Department of Corrections and the Board

of Pardons and Paroles while he serves his penitentiary sentence for grand theft.

Because of the change in circumstances between March 7 and March 9, 2017, there

remains no actual controversy affecting Humpal. At this juncture, an adjudication

would be no more than advisory.

[¶10.]       Even so, we have said that “[t]he decision as to whether to retain a

moot case in order to pass on a question of public interest lies in the discretion of

the court[.]” Cummings v. Mickelson, 495 N.W.2d 493, 496 (S.D. 1993) (quoting

Wheeldon v. Madison, 374 N.W.2d 367, 378 (S.D. 1985)). In exercising our

discretion, we may “determine a moot question of public importance if it feels that

the value of its determination as a precedent is sufficient to overcome the rule

against considering moot questions.” Id. (quoting Wheeldon, 374 N.W.2d at 378).

This exception has been referred to as the public interest exception. It applies when

three criteria are met: “(1) a general public importance; (2) probable future

recurrence; and (3) probable future mootness.” Id.; accord Woodruff, 1997 S.D. 95, ¶

15, 567 N.W.2d at 229; Rapid City Journal, 283 N.W.2d at 566; Sedlacek v. S.D.

Teener Baseball Program, 437 N.W.2d 866, 868 (S.D. 1989).




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[¶11.]       Here, although Humpal’s issue is moot, we retain jurisdiction to

address the question because of its precedential value and general public

importance. The sentencing court imposed a five-year penitentiary sentence on a

defendant currently on probation for a sentence imposed in a different criminal file.

The court believed that it had statutory authority to do so despite controlling case

law to the contrary. Instead of allowing appellate review of the court’s authority,

the court discharged the defendant from probation in the separate criminal file.

But the defendant did not successfully complete probation. In fact, the court

“unsuccessfully discharged [the defendant] from probation.” It is of general public

importance that this Court issue an authoritative determination on the question

rather than allow it to evade review by simply discharging a non-compliant

defendant from probation.

[¶12.]       Indeed, this issue is one that will probably reoccur in the future. Since

the Legislature enacted Senate Bill 70—the Public Safety Improvement Act—in

2013, more defendants are serving probationary terms and, therefore, under the

supervision of the judicial branch. If those defendants commit additional crimes

and face possible penitentiary sentences, courts will be placed in a similar situation

to that which the sentencing court faced here. And if, in those future cases, a court

relies on SDCL 23A-27-18.4 to impose a penitentiary sentence despite that the

defendant is currently serving a probationary term, there is nothing to prevent the

court from discharging the defendant from probation after the fact. A discharge

from probation will render the issue of dual supervision moot for that particular

defendant, but it leaves open the question of the court’s authority to impose a


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penitentiary sentence on a defendant currently serving a probationary term. We,

therefore, examine whether the sentencing court’s imposition of a five-year

penitentiary sentence with three years suspended in this case improperly placed

Humpal under the dual supervision of the executive and judicial branches.

[¶13.]       In Orr, we recognized that under South Dakota law, “there is no

scenario where a defendant is placed under simultaneous supervision of two

branches of government.” 2015 S.D. 89, ¶ 7, 871 N.W.2d at 837. “The judicial

branch cannot give itself authority over offenders that are in the state penitentiary

by sentencing a person to simultaneous probation and penitentiary sentences.” Id.

¶ 10. And “probation is not available for those defendants that are incarcerated in

the penitentiary or on parole.” Id.

[¶14.]       On March 7, 2017, the sentencing court sentenced Humpal to five

years in the state penitentiary with three years suspended. While serving his

penitentiary sentence, Humpal will be under the supervision of the Department of

Corrections—an agency of the executive branch. Humpal’s initial parole date,

according to the record, is October 8, 2017. While on parole, he will be under the

supervision of the Board of Pardons and Paroles—also an agency of the executive

branch. But when the court sentenced Humpal to the penitentiary, thereby placing

him under the supervision of the executive branch, Humpal was currently serving a

three-year probationary term under the supervision of the judicial branch. This

means that on March 7, 2017, the court imposed a sentence that improperly put

Humpal under the dual supervision of the judicial and executive branches.




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[¶15.]       The court attempted to rectify the error by ordering Humpal’s

penitentiary sentence to run concurrent to his sentence in Criminal File 13-2946.

But Humpal was not “[a] defendant with an entirely suspended sentence . . .

concurrent or consecutive to an additional penitentiary sentence” as provided in

SDCL 23A-27-18.4. Rather, Humpal was a defendant with a partially suspended

sentence (sentence for grand theft) imposed to run concurrent to an entirely

suspended sentence (Criminal File 13-2946). Nonetheless, on March 9, 2017, the

sentencing court discharged Humpal from probation, thereby eliminating the

existence of improper simultaneous supervision. Because Humpal will only be

under the supervision of the Department of Corrections and the Board of Pardons

and Paroles while he serves his penitentiary sentence for grand theft, the court’s

sentence is constitutional.

[¶16.]       Affirmed.

[¶17.]       GILBERTSON, Chief Justice, and ZINTER and SEVERSON, Justices,

concur.

[¶18.]       KERN, Justice, disqualified, did not participate.

[¶19.]       JENSEN, Justice, did not participate.




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