#27242, #27243, #27244-rev & rem-GAS

2015 S.D. 89

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

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

      v.

TRAVIS J. ORR,                              Defendant and Appellant.

                                   ****

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

                                   ****

                  THE HONORABLE THOMAS L. TRIMBLE
                            Retired Judge

                                   ****


MARTY J. JACKLEY
Attorney General

CRAIG M. EICHSTADT
Assistant Attorney General
Pierre, South Dakota                        Attorneys for plaintiff
                                            and appellee.

JAMY PATTERSON of
Pennington County Public
 Defender’s Office
Rapid City, South Dakota                    Attorneys for defendant
                                            and appellant.


                                   ****
                                            CONSIDERED ON BRIEFS
                                            ON AUGUST 31, 2015

                                            OPINION FILED 11/10/15
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SEVERSON, Justice

[¶1.]        Travis Orr appeals three criminal sentences. He was given concurrent

penitentiary and probationary sentences that place him under simultaneous

supervision of both the judicial and executive branches. We reverse and remand.

                                    Background

[¶2.]        In October of 2014, Travis Orr was sentenced on three separate

offenses. In 2013, Orr was convicted of driving or being in actual physical control of

a vehicle while under the influence of alcohol, and he was placed on probation. In

October 2014, after a hearing at which Orr admitted to violating the terms of his

probation by ingesting methamphetamine, the circuit court revoked probation and

imposed a two-year penitentiary sentence. (Sentence 1 (#27242)). That same

month, Orr received two additional sentences, each for unauthorized ingestion of a

controlled drug or substance (methamphetamine) in violation of SDCL 22-42-5.1—a

class 5 felony. On one of the convictions for unauthorized ingestion, the court

sentenced Orr to five years in the penitentiary and suspended the five years,

placing Orr on probation subject to conditions, including 180 days in county jail

with work release. (Sentence 2 (#27243)). On the final sentence, the court

sentenced Orr to four years in the penitentiary. (Sentence 3 (#27244)). The court

ordered Sentence 3 to run consecutively to Sentence 1. It further ordered Sentence

2, the probationary term, to run concurrently with Sentences 1 and 3. Orr appeals,

asserting that the court exceeded its authority by imposing sentences that subject

him to simultaneous supervision by the executive and legislative branches. The

State argues that Orr’s position is based on outdated cases. Further, the State


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contends that SDCL 22-6-11 required the court to sentence Orr to probation on

Sentence 2 and that the court lacked authority to impose any other sentence.

                               Standard of Review

[¶3.]        “We generally review a sentence within the statutory maximum under

the abuse of discretion standard of review.” State v. Whitfield, 2015 S.D. 17, ¶ 11,

862 N.W.2d 133, 137 (quoting State v. Overbey, 2010 S.D. 78, ¶ 13, 790 N.W.2d 35,

40). However, whether the court had authority under South Dakota’s constitution

and statutes to impose simultaneous penitentiary and probationary sentences

presents a question of law reviewed de novo. Id.

                                      Analysis

[¶4.]        We have recently reiterated that a defendant should not be subjected

to simultaneous supervision of the executive branch and judicial branch. State v.

Anderson, 2015 S.D. 60, ¶ 16, 867 N.W.2d 718, 724. Despite the State’s contentions

that such an approach is based on outdated criminal statutes, South Dakota’s

Constitution and its statutes, which delineate whether the Department of

Corrections or the Judiciary is responsible for a convicted defendant, compel us to

reach the same decision today that we have in the past. See State v. Moon, 514

N.W.2d 705 (S.D. 1994); State v. McConnell, 495 N.W.2d 658 (S.D. 1993); State v.

Wooley, 461 N.W.2d 117 (S.D. 1990); State v. Huftile, 367 N.W.2d 193 (S.D. 1985)

(construing previous version of SDCL chapter 24-15).

[¶5.]        Probationers are subject to the supervision of our judicial branch.

South Dakota’s courts are empowered by the constitution to suspend imposition or

execution of a sentence, “unless otherwise provided by law.” S.D. Const. art. V, § 5.


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“[T]he trial court’s function in suspending sentence and granting terms of probation

are exclusively the province of the judicial branch.” Huftile, 367 N.W.2d at 197; see

also SDCL 23A-27-12 (“After conviction of an offense not punishable by death or life

imprisonment, a defendant may be placed on probation. No person who has been

previously convicted for a crime of violence as defined in subdivision § 22-1-2(9) may

be placed on probation if his second or subsequent felony conviction is for a crime of

violence as defined in subdivision § 22-1-2(9).”). Those placed on probation are

“assign[ed] . . . to a court services officer for probation supervision.” SDCL 23A-27-

12.1.

[¶6.]        In contrast to those placed on probation, inmates of the state

penitentiary are under the control of the executive branch. Article XIV of our

constitution establishes the penitentiary and places it “under such rules and

restrictions as the Legislature shall provide.” S.D. Const. art. XIV, §§ 1-2. SDCL

chapter 1-15 creates the Department of Corrections, “under the direction and

control of the secretary of corrections, [which] shall govern . . . the state

penitentiary, and other state correctional facilities, parole services, [and] the Board

of Pardons and Paroles[.]” SDCL 1-15-1.4. The governor appoints the secretary of

corrections. SDCL 1-15-1.3; S.D. Const. art. IV, § 9 (“Each principal department

shall be under the supervision of the Governor . . . .”). Therefore, even though our

prior opinions discussing the control of the executive branch over penitentiary

inmates referred to the “Board of Charities” and its place in the executive branch as

established by SDCL 1-15-1 (repealed 1989), state penitentiary inmates are still

under the control of the executive branch.


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#27242, #27243, #27244

[¶7.]        Our statutes set forth the supervisory roles of the branches in

scenarios where a defendant might otherwise come under dual supervision.

Although probationers are subject to the supervision of the judicial branch, SDCL

23A-27-18.1 allows the court to sentence the defendant to a term of imprisonment in

the county jail or state penitentiary as a condition of probation. Those sentenced to

county jail are placed “under the supervision of the court services officer assigned by

the court having jurisdiction of the person.” SDCL 23A-27-18.2. However, those

offenders who are sentenced to the penitentiary are only under the supervision of

the court services officer “upon that person’s release from the state penitentiary

after completion of the penitentiary term imposed pursuant to § 23A-27-18.1.” Id.

When a court partially suspends a sentence, the defendant “is under the supervision

of the Department of Corrections and the Board of Pardons and Paroles. . . . A

defendant with an entirely suspended penitentiary sentence is under the

supervision of the sentencing court unless the entirely suspended penitentiary

sentence is concurrent or consecutive to an additional penitentiary sentence in

which case, the defendant is under the supervision of the Board of Pardons and

Paroles.” SDCL 23A-27-18.4. Thus, within these statutes there is no scenario

where a defendant is placed under simultaneous supervision of two branches of

government. Even when the court retains jurisdiction pursuant to SDCL 23A-27-19

to suspend a sentence for two years after sentencing, “[a]ny person whose sentence

is suspended pursuant to this section is under the supervision of the Board of

Pardons and Paroles, except as provided in § 23A-27-18.2.” SDCL 23A-27-19.




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[¶8.]        These statutes carry out the constitutional doctrine of separation of

powers. “The powers of the government of the state are divided into three distinct

departments, the legislative, executive and judicial; and the powers and duties of

each are prescribed by this Constitution.” S.D. Const. art. II. “Article II . . .

encompasses three prohibitions: ‘(1) no branch may encroach on the powers of

another, (2) no branch may delegate to another branch its essential constitutionally

assigned functions, and (3) quasi-legislative powers may only be delegated to

another branch with sufficient standards.’” Gray v. Gienapp, 2007 S.D. 12, ¶ 17,

727 N.W.2d 808, 812 (quoting State v. Moschell, 2004 S.D. 35, ¶ 14, 677 N.W.2d 551,

558).

[¶9.]        The State contends that SDCL 22-6-11 required the court to grant

probation on Sentence 2 because the court did not state any aggravating

circumstances at the time of sentencing. SDCL 22-6-11 provides:

             The sentencing court shall sentence an offender convicted of a
             Class 5 or Class 6 felony, except those convicted under §§ 22-
             11A-2.1, 22-18-1, 22-18-1.05, 22-18-26, 22-19A-1, 22-19A-2, 22-
             19A-3, 22-19A-7, 22-19A-16, 22-22A-2, 22-22A-4, 22-24A-3, 22-
             22-24.3, 22-24-1.2, 22-24B-2, 22-24B-12, 22-24B-12.1, 22-24B-23,
             22-42-7, subdivision 24-2-14(1), 32-34-5, and any person
             ineligible for probation under § 23A-27-12, to a term of
             probation. The sentencing court may impose a sentence other
             than probation 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. Neither this section
             nor its application may be the basis for establishing a
             constitutionally protected liberty, property, or due process
             interest.




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Nothing in the plain language of this statute suggests that it attempts to modify the

jurisdictional boundaries of the courts or the separation-of-powers doctrine. Nor

will we read it in such a way. “If a statute can be construed so as not to violate the

Constitution, that construction must be adopted.” State v. Outka, 2014 S.D. 11, ¶

24, 844 N.W.2d 598, 606 (quoting State v. Stark, 2011 S.D. 46, ¶ 10, 802 N.W.2d

165, 169). “When examining statutes in the context of constitutional provisions, it

bears repeating that ‘statutes must conform to the Constitution, not vice versa.’”

State v. Wilson, 2000 S.D. 133, ¶ 15, 618 N.W.2d 513, 519 (quoting Poppen v.

Walker, 520 N.W.2d 238, 242 (S.D. 1994), superseded by constitutional amendment,

November 8, 1994 amendment to S.D. Const. art. III, § 25, as recognized in State v.

Fierro, 2014 S.D. 62, ¶ 23, 853 N.W.2d 235, 243).

[¶10.]       South Dakota’s presumptive-probation statute makes no mention of a

scenario where a defendant is concurrently or consecutively sentenced to the

penitentiary for other crimes not requiring presumptive probation. SDCL 22-6-11

must be reconciled with Article II of the South Dakota Constitution. Therefore, it

must yield to the constitutionally established jurisdictional boundaries. 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. “Once an offender is within the jurisdiction of the executive branch of

government, the judicial branch—the circuit court—loses jurisdiction and control.”

State v. Oban, 372 N.W.2d 125, 129 (S.D. 1985) (construing previous version of

SDCL chapter 24-15). Thus, probation is not available for those defendants that are

incarcerated in the penitentiary or on parole.


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[¶11.]       Our decision today does not change the court’s ability to suspend a

sentence without imposing probation, nor does it affect the court’s limited, two-year

window to reduce a sentence. See SDCL 23A-27-18.1; 23A-27-18.4; 23A-27-19. In

those circumstances the court is not infringing on the executive’s authority to

supervise inmates in the penitentiary.

[¶12.]       Consequently, Orr’s sentences improperly placed him under

simultaneous supervision of the executive and judicial branches. The sentencing

court cannot grant probation where a defendant receives penitentiary time beyond

that authorized by SDCL 23A-27-18.1 and SDCL 23A-27-18.2. Defendant’s

convictions are valid, but we remand to the circuit court to enter sentences

consistent with this opinion.

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

Justices, concur.




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