#27768-a-DG
2017 S.D. 3

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

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

      v.

ANTWAUN UNDERWOOD,                        Defendant and Appellant.

                                 ****

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE THIRD JUDICIAL CIRCUIT
                    BEADLE COUNTY, SOUTH DAKOTA

                                 ****

                    THE HONORABLE JON R. ERICKSON
                               Judge

                                 ****


MARTY J. JACKLEY
Attorney General

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


AARON P. PILCHER of
Bridgman & Anderson Law Firm
Miller, South Dakota                      Attorneys for defendant
                                          and appellant.



                                 ****
                                          CONSIDERED ON BRIEFS
                                          ON NOVEMBER 7, 2016
                                          OPINION FILED 01/25/17
#27768

GILBERTSON, Chief Justice

[¶1.]        Antwaun Underwood pleaded guilty to possessing a controlled

substance, and the circuit court sentenced him to imprisonment for four years.

Underwood appeals and argues the court failed to identify aggravating factors

sufficient to deviate from a presumptive sentence of probation. We affirm.

                          Facts and Procedural History

[¶2.]        On January 23, 2015, Huron Police Officer Adam Doerr observed

Underwood’s vehicle travelling in excess of the speed limit. Officer Doerr initiated a

traffic stop and approached Underwood. While speaking to Underwood, Officer

Doerr noticed a green, leafy substance that he believed to be marijuana, as well as

paraphernalia, on the center console of the vehicle. Officer Doerr informed

Underwood that he was placing him under arrest. A subsequent search of

Underwood’s coat revealed a plastic baggy containing a green, leafy substance.

Underwood acknowledged that the baggy belonged to him.

[¶3.]        Underwood was charged by complaint with one count of ingesting a

substance for the purpose of becoming intoxicated, one count of possessing two

ounces or less of marijuana, and one count of possessing a controlled substance. He

was also charged with driving with a suspended license. An information was later

filed that charged Underwood with possessing a controlled substance. Underwood

failed to appear for his preliminary hearing, but on November 1, 2015, he pleaded

guilty to one count of possessing a controlled substance. The circuit court departed

from a presumptive sentence of probation and sentenced Underwood to

imprisonment for four years.


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[¶4.]          Underwood appeals, raising one issue: Whether the circumstances

enumerated by the circuit court justified a departure from the presumptive sentence

of probation under SDCL 22-6-11.

                                 Standard of Review

[¶5.]          The central issue in this case is a question of statutory construction.

We review such issues de novo. Good Lance v. Black Hills Dialysis, LLC, 2015 S.D.

83, ¶ 9, 871 N.W.2d 639, 643. Thus, we give no deference to the circuit court’s legal

conclusions. Id.

                                Analysis and Decision

[¶6.]          Underwood pleaded guilty to possessing a controlled substance, which

in this case is a Class 5 felony. For an offender not already in custody of the

executive branch, such an offense carries a presumptive sentence of probation.

SDCL 22-6-11. 1 However, “[t]he 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[.]”

Id. In this case, the court cited 10 circumstances that it considered to be

aggravating:

               1. Underwood has a five (5) page rap sheet;
               2. Nine (9) bench warrants have been issued since 2008 in
               various cases for failure to appear or comply with orders of the
               court;
               3. In 2010 Underwood was sentenced to the penitentiary on
               conviction for being an Accessory to a Felony;


1.      For an offender who has been committed to the supervision of the executive
        branch, the sentencing court is presumptively required to fully suspend any
        sentence imposed. SDCL 22-6-11.

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             4. On the Accessory to a Felony charge he was incarcerated
             twice on parole violations;
             5. In 2011 Underwood was sentenced to the penitentiary for
             Grand Theft;
             6. On the Grand Theft charge he was returned to the
             penitentiary on a parole violation;
             7. Since 2008 Underwood has failed or refused to pay at least
             $2,497.96 in fines, costs, restitution and/or attorney fees;
             8. Since 2008 Underwood has had a history of failing to comply
             with conditional release;
             9. Underwood violated parole on each of his two previous felony
             convictions; and
             10. Underwood committed the underlying felony just after his
             release from parole for Grand Theft.

Underwood argues that a circumstance is not aggravating within the meaning of

SDCL 22-6-11 unless it demonstrates a risk of violence or career criminality.

Therefore, Underwood concludes that the 10 circumstances relied on by the circuit

court were insufficient to warrant a departure from the presumptive sentence of

probation.

[¶7.]        We agree with Underwood that some of the circumstances listed by the

circuit court are not aggravating circumstances justifying a departure from the

presumptive sentence. SDCL 22-6-11 does not specifically define the term

aggravating circumstances. However, under that statute, only circumstances that

“pose a significant risk to the public and require a departure from presumptive

probation” can justify imposing a sentence other than probation. Id. (emphasis

added). For example, Underwood’s failure to pay fines, costs, restitution, or

attorney fees hardly amounts to “a significant risk to the public[.]” Id. Even if such

could be considered a significant risk to the public, incarcerating Underwood rather

than placing him on probation does nothing to remedy his failure to pay; therefore,
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Underwood’s failure to pay does not require a departure from the presumptive

sentence of probation. Id.

[¶8.]        Even so, we must reject Underwood’s suggestion that SDCL 22-6-11

contemplates only circumstances demonstrating a risk of violence or career

criminality. We recently rejected a similar argument in State v. Whitfield,

2015 S.D. 17, 862 N.W.2d 133. In that case, the defendant was convicted of

possessing a controlled substance (cocaine) and drug paraphernalia. Id. ¶ 1,

862 N.W.2d at 135. Although SDCL 22-6-11 applied, the sentencing court departed

from the presumptive sentence of probation and sentenced the defendant to

imprisonment for five years (with two years suspended). Whitfield, 2015 S.D. 17,

¶ 23, 862 N.W.2d at 140. In departing from presumptive probation,

             the court considered [the defendant’s] three prior felonies, which
             included a prior drug offense. The court deemed [him], age 56, a
             poor candidate for probation. He had a history of parole
             violations in Texas and would be difficult to supervise in light of
             his desire to return to Texas and continue employment as a
             transient carnival worker. Lastly, the court considered the
             amount of cocaine found in [his] possession.

Id. ¶ 22, 862 N.W.2d at 140. The defendant argued that these circumstances were

not aggravating circumstances within the meaning of SDCL 22-6-11 that justified a

departure from presumptive probation. Whitfield, 2015 S.D. 17, ¶ 21, 862 N.W.2d

at 140. We rejected his argument and affirmed his sentence. Id. ¶¶ 23-24,

862 N.W.2d at 140.

[¶9.]        The present case involves circumstances similar to those present in

Whitfield. Here, the court considered Underwood’s “five-page rap sheet,” which

includes two felony convictions. Although it is not clear from the record what

underlying felony offense led to Underwood’s accessory conviction, his offense of
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grand theft is not a victimless crime. Underwood violated the terms of parole for

these offenses on multiple occasions. A presentence-investigation report also

indicated Underwood was involved in distributing a controlled substance. At

sentencing, the court commented: “You got a felony distribution case that’s being

dismissed. You got a five-page rap sheet. You’re still involved in drugs. . . . [Y]ou

were in the custody of the [Department of Corrections] and still selling drugs.”

Additionally, Underwood has demonstrated a complete disdain for court orders and

supervised release. It is clear that sentencing Underwood to additional probation

likely would not deter him from continuing his course of criminal activity.

Therefore, we agree with the circuit court that “circumstances exist that pose a

significant risk to the public and require a departure from presumptive probation[.]”

SDCL 22-6-11.

                                     Conclusion

[¶10.]       The term aggravating circumstances, as used in SDCL 22-6-11, does

not require a showing of likely violence or career criminality. Underwood’s criminal

history and complete disregard for supervised release indicate the court’s departure

from the presumptive sentence of probation was warranted. Therefore, we affirm.

[¶11.]       ZINTER, SEVERSON, and WILBUR, Justices, concur.

[¶12.]       KERN, Justice, concurs specially.



KERN, Justice (concurring specially).

[¶13.]       Although this Court correctly acknowledges that the narrow legal issue

presented by this case—whether the word “aggravating” in SDCL 22-6-11 requires


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“violence or career criminality”—is a question of law reviewed de novo, I write to

clarify our standard of review in SDCL 22-6-11 cases. We apply the abuse of

discretion standard to review a circuit court’s decision to deviate from presumptive

probation under SDCL 22-6-11 rather than de novo review. An abuse of discretion

“is a fundamental error of judgment, a choice outside the range of permissible

choices, a decision, which, on full consideration, is arbitrary or unreasonable.”

Thurman v. CUNA Mut. Ins. Soc’y, 2013 S.D. 63, ¶ 11, 836 N.W.2d 611, 616

(internal citations and quotation marks omitted).

[¶14.]       It is an obvious but critical point that SDCL 22-6-11 affects the

sentencing power of a circuit court. The statute creates a presumptive sentence

and, through the use of the word “may,” gives the court the ability to deviate from

the presumptive sentence. Deviation requires the court to follow specific procedures

(identifying why it found the presumptive sentence inappropriate), but SDCL 22-6-

11 leaves the choice in the circuit court’s discretion. It is well-established that a

sentence within the statutory maximum is reviewed under the abuse of discretion

standard. State v. McKinney, 2005 S.D. 73, ¶ 10, 699 N.W.2d 471, 476 (citing State

v. Goodroad, 1997 S.D. 46, ¶ 40, 563 N.W.2d 126, 135). We accord great deference

to the sentencing decisions made by trial courts. State v. Garber, 2004 S.D. 2, ¶ 13,

674 N.W.2d 320, 323; State v. Milk, 2000 S.D. 28, ¶ 10, 607 N.W.2d 14, 17 (citing

State v. Gehrke, 491 N.W.2d 421, 422 (S.D. 1992)). The decision to sentence within

the permissible statutory range, including within the options set forth in SDCL 22-

6-11, is a discretionary decision entitled to deferential review.




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[¶15.]         Our prior decisions interpreting SDCL 22-6-11 likewise recognize that

a sentencing court’s decision to deviate from presumptive probation is reviewed

under the abuse of discretion standard. In State v. Whitfield, we held that a circuit

court did not abuse its discretion by deviating from presumptive probation under

SDCL 22-6-11:

               To depart from a sentence of probation, the court must identify
               aggravating factors that pose a significant risk to the public.
               SDCL 22–6–11. Based on our review of the record and the
               court's reasons for departing from a sentence of probation, we
               cannot say the court abused its discretion.

2015 S.D. 17, ¶ 23, 862 N.W.2d 133, 140 (emphasis added). And in State v.

Beckwith, we again declared that “[w]e apply the abuse of discretion standard in

reviewing a sentencing court’s decision to depart from presumptive probation.”

2015 S.D. 76, ¶ 7, 871 N.W.2d 57, 59.

[¶16.]         Yet the majority opinion seems to analyze the court’s decision to depart

from presumptive probation as a legal issue reviewable de novo. I agree that the

key question—interpreting “aggravating”—in this case is a question of law

reviewable de novo. But once the legal issue regarding the meaning of

“aggravating” is resolved, we must decide whether the circuit court abused its

discretion by deviating from presumptive probation. 2



2.       In his brief, Underwood states that abuse of discretion is the proper standard
         of review for a sentencing court’s departure from presumptive probation but
         also that SDCL 22-6-11 imposes statutory limits on the sentencing court’s
         discretion. Underwood argues that “SDCL 22-6-11 must include a discernible
         standard” for its limits on sentencing authority, namely, that the identified
         aggravating circumstances sufficiently pose a significant risk to the public.
         Underwood claims that “significant risk to the public” only encompasses
         circumstances showing career criminality or violence. This precise issue is a
                                                              (continued . . .)
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[¶17.]       Applying de novo review as the predominate method of analyzing

sentences imposed under SDCL 22-6-11 would undermine the important role that

circuit court’s play in our criminal justice system. See State v. Craig, 2014 S.D. 43,

¶ 29, 850 N.W.2d 828, 837 (describing the important process used by circuit court

judges in imposing an appropriate sentence, including acquiring a thorough

understanding of a defendant, his prospects for rehabilitation, and the

circumstances of the crime). Often, depending upon the nature of the specific

question presented, it may be proper to apply other standards of review, including a

de novo review of a legal issue or a clearly erroneous review of factual findings that

a court relied on in imposing its sentence. But once those issues have been resolved,

if a party challenges a deviation from presumptive probation under SDCL 22-6-11,

we must determine whether the sentencing court abused its discretion.




________________________
(. . . continued)
         question of law, which we can review de novo. Underwood, however, ends his
         argument by stating that “the sentencing court failed to reference either
         career criminality or violence, and thereby exceeded and abused it [sic]
         discretion.” (Emphasis added.) Whether the court abused its discretion is
         the foundational concern.

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