#26811-a-DG

2014 S.D. 15

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

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

      v.

MARK SMITH,                                 Defendant and Appellant.

                                     ****

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

                                     ****

                  THE HONORABLE THOMAS L. TRIMBLE
                              Judge

                                     ****


MARTY J. JACKLEY
Attorney General

ELLIE J. BAILEY
Assistant Attorney General
Pierre, South Dakota                        Attorneys for plaintiff
                                            and appellee.


TODD A. LOVE
Bettmann Hogue Law Firm, Prof. LLC
Rapid City, South Dakota                    Attorneys for defendant
                                            and appellant.


                                     ****
                                            CONSIDERED ON BRIEFS
                                            ON FEBRUARY 18, 2014
                                            OPINION FILED 03/12/14
#26811

GILBERTSON, Chief Justice

[¶1.]        In this appeal, Defendant Mark Smith challenges the validity of a Part

II Information filed against him that alleged Smith had previously been convicted of

two DUI offenses. He claims the predicate convictions were invalid due to the

courts’ lack of subject matter jurisdiction. Smith also appeals the circuit court’s

denial of his request for a suspended imposition of sentence, claiming that the

statute relied on by the court violated the constitutional prohibition against ex post

facto legislation. We affirm.

                          Facts and Procedural History

[¶2.]        Smith was arrested in April 2012, suspected of driving under the

influence of alcohol. A grand jury indicted Smith for driving while under the

influence of alcohol in violation of SDCL 32-23-1(2), or alternatively, for driving

while having .08% or more by weight of alcohol in his blood in violation of SDCL 32-

23-1(1). The grand jury also indicted Smith for obstructing a public officer in

violation of SDCL 22-11-6. In June 2012, a Part II Information was filed alleging

that Smith had been convicted of two prior DUI offenses.

[¶3.]        In 2008, Smith was charged with alternative counts of driving or

control of a vehicle while under the influence of alcohol or driving or control of a

vehicle while having .08% or more by weight of alcohol in his blood. The record

reflects that the prosecution in that case handed the information to the judge at the

arraignment hearing. Smith pleaded guilty and was granted a suspended

imposition of sentence.




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[¶4.]        In 2009, Smith was again arrested and charged with the same

alternative offenses, stemming from a separate driving incident. The record does

not indicate how the information was filed with the court, but the judgment of

conviction in that case states that an information was filed with the court on the

same day as the arraignment. Smith pleaded guilty and was sentenced to 180 days

in jail, with all jail time suspended on certain conditions.

[¶5.]        Smith moved to dismiss the 2012 Part II Information. He argued that

the 2008 and 2009 convictions were invalid for enhancement purposes because the

magistrate courts in each of the actions failed to obtain subject matter jurisdiction

over the actions. Specifically, Smith argued that the judges’ failure to strictly follow

procedure meant the informations were not validly filed and the courts therefore

lacked jurisdiction. Following a hearing on the matter, the circuit court denied the

motion. In October 2012, the circuit court entered its findings of fact and

conclusions of law. The circuit court found that in each prior conviction, Smith was

fully advised of his constitutional and statutory rights and subsequently waived

those rights. The court also concluded that the State properly filed an information

with the court at the time of the hearings in both of the prior cases before Smith

entered his pleas to the charged offenses.

[¶6.]        In February 2013, Smith pleaded guilty to driving or control of a motor

vehicle while having .08% or more by weight of alcohol in his blood as charged in

the 2012 indictment. Smith also admitted to the Part II Information. At the

sentencing hearing, the circuit court took under consideration Smith’s request to be

granted a suspended imposition of sentence. The circuit court ultimately denied


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Smith’s request, ruling that Smith was ineligible for a suspended imposition of

sentence pursuant to SDCL 23A-27-13. Smith was sentenced to two years in the

penitentiary, with the execution of sentence suspended on certain conditions.

[¶7.]        Smith appeals raising two issues:

             1.     Whether the circuit court erred in denying Smith’s
                    motion to dismiss the Part II Information based on the
                    court’s lack of jurisdiction in the underlying convictions.

             2.     Whether application of SDCL 23A-27-13 violated the
                    constitutional prohibition against ex post facto
                    legislation.

                               Analysis and Decision

[¶8.]        1.     Whether the circuit court erred in denying Smith’s motion
                    to dismiss the Part II Information based on the court’s lack
                    of jurisdiction in the underlying convictions.

[¶9.]        Smith first argues that the circuit court erred in denying his motion to

dismiss the Part II Information in this case. He asserts that the magistrate judges

in both of his underlying convictions failed to “note thereon the filing date” of the

information, as mandated by SDCL 15-6-5(e). Smith contends that this failure

made the predicate convictions invalid for lack of jurisdiction. Accordingly, Smith

asks this Court to reverse the circuit court decision and order the dismissal of the

Part II Information. This ultimately raises an issue of jurisdiction, which we review

de novo. State v. Koch, 2012 S.D. 59, ¶ 4, 818 N.W.2d 793, 794 (citing Sazama v.

State ex rel. Muilenberg, 2007 S.D. 17, ¶ 9, 729 N.W.2d 335, 340).

[¶10.]       SDCL 23A-6-3 states in part: “All informations shall be filed with the

court having jurisdiction of the offense by the prosecuting attorney prior to

arraignment.” SDCL 15-6-5(e) further provides that:


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             The filing of pleadings and other papers with the court as
             required by this chapter shall be made by filing them with the
             clerk of the court, except that the judge may permit the papers
             to be filed with him, in which event he shall note thereon the
             filing date and forthwith transmit them to the office of the clerk.

Smith asserts that the judges in both of his underlying convictions failed to

personally “note thereon the date” before transmitting the informations to the office

of the clerk. He argues that this failure robbed the court of subject matter

jurisdiction. We disagree.

[¶11.]       In both State v. Arguello, 519 N.W.2d 326 (S.D. 1994) and State v.

Heftel, 513 N.W.2d 397 (S.D. 1994), this Court examined the procedure in question

and held that the failure of a judge to personally note the filing date on the

information does not deprive the court of jurisdiction. As in this case, the

informations in Arguello and Heftel were given to the court during the course of the

arraignment, but date-stamped by the clerk of courts at a later time. Arguello, 519

N.W.2d at 328; Heftel, 513 N.W.2d at 402. In both Heftel and Arguello, we

distinguished the effect of failure to strictly comply with SDCL 15-6-5(e) with the

failure of the State to file an information, which had been held to deprive the court

of jurisdiction. Heftel, 513 N.W.2d at 402 (citation omitted); Arguello, 519 N.W.2d

at 329 (citation omitted).

[¶12.]       We noted that “[t]he purpose of an Indictment or Information is to

apprise a defendant of the nature of the charges against him with sufficient

specificity so that he may defend against the charges and may later plead the

Indictment or Information as a bar to a subsequent charge.” Arguello, 519 N.W.2d

at 328 (citations omitted). Therefore, “when the purpose of the act has been fulfilled


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and the defendant can claim ‘no surprise, prejudice or disadvantage’” we will not

invalidate the jurisdiction of the court simply because the judge failed to personally

note the date on the information. See id. (quoting Heftel, 513 N.W.2d at 402-03).

[¶13.]         Contrary to our holdings in Heftel and Arguello, Smith argues that the

failure of the judge to personally note the time of filing with the court is a

jurisdictional error, depriving the court of the ability to hear a case. Smith cites no

authority to directly support this proposition. Instead, he cites to In re Gillespi, 397

N.W.2d 476 (S.D. 1986), to argue that “failure to comply with the procedural

requirements robs the court of jurisdiction.” Gillespi does not stand for the rule as

so broadly stated by Smith, nor does Smith indicate in any way that Gillespi should

be read to modify or overrule our decisions in Heftel and Arguello. 1

[¶14.]         Smith does not claim any other error in the lower courts’ procedures.

The settled law of this Court indicates that the claimed error does not rise to the

level of jurisdictional error. We therefore conclude that the courts in Smith’s




1.       In Gillespi, this Court found there was no personal jurisdiction over Beadle
         County or the Beadle County Treasurer where those parties were not
         properly served by the opposing party. 397 N.W.2d at 477-78. Gillespi is not
         applicable in this case, where Smith challenges the subject matter
         jurisdiction of the court. Failure to serve a party is materially
         distinguishable from the procedural issue at bar because failure to serve may
         raise issues of surprise, prejudice, and disadvantage. See Straub v. Lyman
         Land & Inv. Co., 31 S.D. 571, 141 N.W.2d 979, 980 (1913) (noting that proper
         service of process is “reasonably calculated to bring notice of the
         commencement of the action home to the defendant.”). We have specifically
         found the issue of unfair surprise is not present when a judge simply fails to
         note the date on the information before passing it to the clerk’s office as
         mandated by SDCL 15-6-5(e). See Heftel, 513 N.W.2d at 402 (citing State v.
         Graycek, 368 N.W.2d 815, 818 (1985)); Arguello, 519 N.W.2d at 328 (citation
         omitted).

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predicate convictions assumed proper jurisdiction over the cases and that the circuit

court did not err in denying Smith’s motion to dismiss the Part II Information.

             2.     Whether application of SDCL 23A-27-13 violated the
                    constitutional prohibition against ex post facto legislation.

[¶15.]       Smith next argues that the circuit court failed to exercise its discretion

by denying his request for a suspended imposition of sentence. The circuit court

held that Smith had already received a suspended imposition of sentence in 2008,

and was therefore ineligible for another suspended imposition of sentence pursuant

to SDCL 23A-27-13. Smith contends that the 2010 amendment to SDCL 23A-27-13,

as applied in this case, violates the constitutional prohibition on ex post facto

legislation. Smith asks this Court to remand the case with instructions to

reconsider his request for a suspended imposition of sentence, without applying the

2010 amendment. This Court reviews de novo Smith’s challenge to the

constitutionality of SDCL 23A-27-13. See State v. Schmidt, 2012 S.D. 77, ¶ 12, 825

N.W.2d 889, 894 (citing State v. Tiegen, 2008 S.D. 6, ¶ 14, 744 N.W.2d 578, 585).

[¶16.]       The South Dakota Constitution, article VI, § 12 provides that “[n]o ex

post facto law . . . shall be passed.” We have explained this prohibition by stating:

             [I]t is settled that criminal or penal legislation amending
             existing law may not change the legal consequences of acts
             completed before its effective date, a statute, however, is not
             rendered unconstitutional as an ex post facto law merely
             because it might operate on a fact or status preexisting the
             effective date of the legislation, as long as its punitive features
             apply only to acts committed after the statutory proscription
             becomes effective.

State v. Arguello, 2002 S.D. 157, ¶ 14, 655 N.W.2d 451, 454 (quoting Lewis v. Class,

1997 S.D. 67, ¶ 23, 565 N.W.2d 61, 65).


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[¶17.]        In 2010, the Legislature amended SDCL 23A-27-13, adding “No person

who has previously been granted . . . a suspended imposition of sentence is eligible

to be granted a second suspended imposition of sentence.” 2 See 2010 S.D. Sess.

Laws ch. 128, § 1. Smith argues that the 2010 amendment retroactively increased

the punitive effect of his 2008 conviction by denying him the “benefits and

opportunities that were granted to him in 2008 by the magistrate court.” He

asserts that at the time of his 2008 conviction, he “had the expectation that should

he ever be convicted of a felony offense, he would be eligible for a suspended

imposition of sentence.” Accordingly, Smith argues that the 2010 amendment

violates the ex post facto clause by adding consequences to his 2008 conviction that

did not exist at the time of conviction. Smith’s arguments are not convincing.

[¶18.]        The 2010 amendment did not alter Smith’s suspended imposition of

sentence in 2008. Rather, any punitive effect of the amendment only operated upon



2.       As amended, SDCL 23A-27-13 provides:

              Upon receiving a verdict or plea of guilty for a misdemeanor or felony
              not punishable by death or life imprisonment by a person never before
              convicted of a crime which at the time of conviction thereof would
              constitute a felony in this state, a court having jurisdiction of the
              defendant, if satisfied that the ends of justice and the best interest of
              the public as well as the defendant will be served thereby, may,
              without entering a judgment of guilt, and with the consent of the
              defendant, suspend the imposition of sentence and place the defendant
              on probation for such period and upon such terms and conditions as
              the court may deem best. No person who has previously been granted,
              whether in this state or any other, a suspended imposition of sentence
              is eligible to be granted a second suspended imposition of sentence. A
              court may revoke such suspension at any time during the probationary
              period and impose and execute sentence without diminishment or
              credit for any of the probationary period.


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Smith’s 2013 conviction, guiding the court’s determination of the range of potential

penalties for Smith’s third arrest and conviction for driving under the influence. In

that regard, the 2010 amendment has a similar effect as an amendment to a

penalty-enhancement statute. We have rejected ex post facto challenges to

amended penalty-enhancement statutes, because they simply “appl[y] past

convictions to determine punishment for a conviction that occurs down the road”

such that “the punishment is for the then existing conviction and not prior

convictions.” See Arguello, 2002 S.D. 157, ¶¶ 11-15, 655 N.W.2d at 454; State v.

Nilson, 364 N.W.2d 532, 533 (S.D. 1985). 3 Similarly, the 2010 amendment in this

case only changed the legal consequences of Smith’s third DUI arrest and

conviction, which happened after the enactment of the amendment. Therefore, the

amendment is not retroactive in effect and does not implicate the ex post facto

clause.

[¶19.]         Furthermore, Smith’s assertion that the 2010 amendment “directly

denied Smith benefits and opportunities that were granted to him in 2008 by the



3.       In Arguello, the defendant was convicted of driving under the influence in
         1993 and 1995, at which time the look-back period for sentencing
         enhancement was only five years. 2002 S.D. 157, ¶¶ 2-3, 655 N.W.2d at 452.
         In July 2001, the look-back period was extended to ten years. Id. ¶ 3. The
         defendant was convicted of a third DUI in August 2001, and the circuit court
         enhanced his penalty based on his 1993 and 1995 convictions. Id. ¶ 2. This
         court unanimously held that the punishment was “imposed for the current
         offense only” and therefore did not violate the prohibition on ex post facto
         legislation. Id. ¶¶ 12-13. Nilson involved a similar challenge when a
         habitual-offender statute allowed prior convictions to be used for five years,
         rather than four. 364 N.W.2d 532, 532-34. In Nilson, we stated that
         “[s]ubsequent offender provisions . . . do not undertake to punish again for
         the prior offenses.” Id. at 533 (citation omitted).


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magistrate court” is misplaced. He argues that he had an “expectation” in his

eligibility for leniency in future convictions. Smith misconstrues the nature of

suspended imposition of sentencing. As we have stated, “[t]he granting of

suspended imposition of sentence is strictly a matter of grace and rests solely within

the discretion of the court. It is not a matter of right or entitlement[.]” State v.

A.B., 2008 S.D. 117, ¶ 25, 758 N.W.2d 910, 917 (quoting State v. Divan, 2006 S.D.

105, ¶ 16, 724 N.W.2d 865, 872). Because leniency is discretionary, Smith cannot

claim that any future “benefits and opportunities” were “granted” to him in 2008. It

was always within the sole discretion of the court to deny a request for the

suspended imposition of sentence. Thus, Smith’s assertion that the amendment

acted as an additional penalty by taking away these alleged “benefits and

opportunities” is without support.

[¶20.]       The 2010 amendment to SDCL 23A-27-13 is prospective in effect. In

this case, its only effect was upon the sentencing for Smith’s third DUI arrest,

which occurred after the amendment was enacted. Contrary to Smith’s assertions,

the amendment did not retroactively deprive Smith of any right allegedly granted to

him in 2008. Accordingly, the circuit court’s application of SDCL 23A-27-13 did not

violate the constitutional prohibition against ex post facto legislation.

                                      Conclusion

[¶21.]       Based on the above stated reasons, we affirm.

[¶22.]       KONENKAMP, ZINTER, SEVERSON, and WILBUR, Justices, concur.




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