#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

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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.


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                                            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.

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[¶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


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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.


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[¶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.




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[¶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




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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.”).

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