#28151-a-LSW
2017 S.D. 71

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

                                   ****


MICHAEL A. IANNARELLI,                    Petitioner and Appellant,

      vs.

DARIN YOUNG, Warden of the
South Dakota State Penitentiary,          Respondent and Appellee.


                                   ****

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

                                   ****

               THE HONORABLE GREGORY J. STOLTENBURG
                              Judge

                                   ****

DONALD M. McCARTY
BENJAMIN KLEINJAN
Helsper, McCarty & Rasmussen, PC
Brookings, South Dakota                   Attorneys for petitioner and
                                          appellant.

MARTY J. JACKLEY
Attorney General

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

                                   ****
                                          CONSIDERED ON BRIEFS
                                          ON AUGUST 28, 2017
                                          OPINION FILED 11/08/17
#28151

WILBUR, Retired Justice

[¶1.]        Habeas petitioner asserts denial of his Fifth Amendment right against

self-incrimination and Sixth Amendment right to counsel. We affirm.

                                    Background

[¶2.]        On February 16, 2007, Michael Iannarelli murdered his disabled wife

and raped his fourteen-year-old stepdaughter. Afterwards, he made a pot of coffee

and called 911. Iannarelli told law enforcement that he had killed his wife. The

State charged Iannarelli with first-degree murder and second-degree rape. The

State indicated that it intended to seek the death penalty.

[¶3.]        The circuit court appointed Attorney Roger Ellyson to represent

Iannarelli. Attorney Ellyson had practiced law for over thirty years, including

twenty years as a prosecutor. Attorney Ellyson informed Iannarelli of his rights

and had him sign a document titled, “STATEMENT OF RIGHTS.” That document

provided, in part, that if Iannarelli were to plead guilty he would waive certain

rights, including “the right to not be compelled to incriminate yourself.”

[¶4.]        Attorney Ellyson later testified that he explored the plausibility of an

insanity defense. He moved the court to appoint an expert witness to conduct a

psychiatric examination. The court granted the motion, and Attorney Ellyson hired

Dr. Stephen Manlove, a forensic psychiatrist. Attorney Ellyson believed Dr.

Manlove could identify mitigating factors if the insanity defense seemed unlikely.

He asked Dr. Manlove to give an expert opinion on whether “Iannarelli was insane

(as that term is defined by statute) at the time the alleged offenses (murder and




                                          -1-
#28151

rape) were committed” and whether Iannarelli “suffered from mental illness at the

time the alleged offenses were committed.”

[¶5.]        After Dr. Manlove issued his report, Attorney Ellyson realized that it

would not support an insanity defense but would support a plea of guilty but

mentally ill. In the report, Dr. Manlove had opined with reasonable medical

certainty that Iannarelli suffered from a major depressive disorder that impaired

his judgment at the time of the offense. Attorney Ellyson also believed that Dr.

Manlove’s report contained mitigating evidence. He advised Iannarelli that an

insanity defense would be unlikely and discussed a plea of guilty but mentally ill.

Iannarelli has an IQ in the 99th percentile, and at all times Attorney Ellyson

believed Iannarelli understood what was being told to him.

[¶6.]        Ultimately, Iannarelli agreed to plead guilty but mentally ill to first-

degree manslaughter and to second-degree rape in exchange for the State amending

the charge and not seeking the death penalty. Iannarelli entered into a written

plea agreement, which contained a section titled, “WAIVER OF RIGHTS.” In that

waiver, Iannarelli indicated that he “fully understand[s] that by entry of the pleas

of guilty BUT MENTALLY ILL herein, he will have waived . . . his right to remain

silent[.]” The parties submitted the plea agreement to the circuit court. Iannarelli

also submitted an affidavit and report from Dr. Manlove in lieu of a factual basis to

establish his plea of guilty but mentally ill.

[¶7.]        On October 11, 2007, the court held a plea hearing. At the hearing,

Iannarelli indicated his intent to plead guilty but mentally ill. The court took a

recess and reconvened for a hearing on Iannarelli’s mental health. The State and


                                           -2-
#28151

Iannarelli stipulated to the submission of Dr. Manlove’s report as evidence of

Iannarelli’s mental health. The court reviewed the report and found that Iannarelli

was mentally ill at the time of the offenses as defined in SDCL 22-1-2(24). The

court also found a factual basis for each plea and concluded that Iannarelli’s guilty

but mentally ill pleas were voluntary, intelligent, and knowing. The court accepted

Iannarelli’s plea of guilty but mentally ill to first-degree manslaughter and second-

degree rape.

[¶8.]          The court ordered Iannarelli to participate in a presentence

investigation. The court indicated that as part of that presentence investigation

and in consultation with the court services officer, it would request a psychological

evaluation to assist in sentencing. In response to a question by the State, the court

agreed that the psychological evaluation would include a psychosexual evaluation.

[¶9.]          Dr. Bradley Woldt, a clinical psychologist, evaluated Iannarelli. Dr.

Woldt went through an informed-consent form with Iannarelli prior to the

evaluation. Dr. Woldt later testified that Iannarelli indicated that he understood

the form. Dr. Woldt conducted a mental-health assessment and psychosexual

examination. Following the evaluation, Dr. Woldt issued a written opinion on

Iannarelli’s diagnosis and likelihood of rehabilitation. He also included a risk

assessment. Dr. Woldt agreed with Dr. Manlove that Iannarelli suffered from a

major depressive disorder and was likely experiencing a major depressive episode at

the time of the offense but disagreed that it was to the level of “severe with

psychotic features,” as Dr. Manlove had opined. In Dr. Woldt’s opinion, Iannarelli




                                           -3-
#28151

posed a high risk to the community, and rehabilitation efforts would be lengthy and

difficult. Dr. Woldt’s report was made part of the presentence investigation report.

[¶10.]       On December 21, 2007, the circuit court held a sentencing hearing.

The State referred to Dr. Woldt’s report as support for imposition of the maximum

possible sentences for Iannarelli’s crimes. Attorney Ellyson relied on Dr. Manlove’s

report and argued for sentences less than the maximum. After hearing arguments

from counsel and one victim-impact statement, the court imposed a 130-year

sentence for first-degree manslaughter and a 45-year sentence for second-degree

rape.

[¶11.]       The court relied on the record evidence, including Dr. Manlove’s and

Dr. Woldt’s reports. The court found Iannarelli’s lack of previous criminal history

and his mental illness to be mitigating factors. The court then noted the extremely

violent nature of the crimes. In regard to Iannarelli’s future risk to the public, the

court referred to Dr. Woldt’s opinion that Iannarelli is “a high risk to the public.”

The court also considered Iannarelli’s prospects for rehabilitation. It referred to

Iannarelli’s diagnoses from Dr. Woldt and Dr. Manlove, as well as the other record

evidence. In particular, the court noted that “Dr. Woldt expresses the opinion that

your prognosis is not good. You are likely not to be amenable to treatment. And

prognosis is questionable at best. He also expresses the opinion that your

rehabilitation will be lengthy and difficult. All of that, of course, would indicate to

the [c]ourt that a substantial sentence is warranted here.”

[¶12.]       Iannarelli appealed his sentences, which we affirmed in State v.

Iannarelli, 2008 S.D. 121, 759 N.W.2d 122. On October 23, 2013, Iannarelli


                                           -4-
#28151

petitioned the circuit court for habeas relief. The habeas court appointed counsel

and held a hearing on April 29, 2016. Iannarelli argued that Attorney Ellyson had

deprived him of his Fifth and Sixth Amendment rights by failing to challenge the

use of Iannarelli’s unwarned and compelled statements to Dr. Woldt and because

the sentencing court used those statements to impose its sentence. Iannarelli also

asserted that he was denied effective assistance of counsel and due process when

Attorney Ellyson failed to seek provisional institutionalization under SDCL 23A-27-

42.

[¶13.]       Following the hearing, the habeas court issued a memorandum

decision. It held that Iannarelli failed to prove that Attorney Ellyson’s legal

representation was deficient. It noted that Attorney Ellyson had advised Iannarelli

of his constitutional and statutory rights during the pre-trial and plea-agreement

phases. The habeas court declined “to act as a Monday morning quarterback and

second-guess Mr. Ellyson’s every decision through the application of a ‘super lawyer’

standard.”

[¶14.]       The habeas court also declined to strictly follow a case from Idaho,

which held that counsel’s failure to inform defendant of his right to remain silent

during a psychosexual examination constituted prejudicial error. See Estrada v.

State, 149 P.3d 833, 839 (Idaho 2006). Instead, the habeas court examined the

circumstances to determine whether Iannarelli established serious prejudice such

that any error by Attorney Ellyson deprived Iannarelli of fair proceedings. In

regard to the reports issued by Dr. Manlove and Dr. Woldt, the habeas court

determined that “there has been no showing that either of these reports, regardless


                                          -5-
#28151

of their propriety, created a serious prejudice against” Iannarelli. In the habeas

court’s view, any objection by Attorney Ellyson to Dr. Woldt’s report would have

failed because a sentencing court may consider a broad range of evidence. The

habeas court further highlighted that Iannarelli put his mental health at issue as “a

strategy necessary to secure the court’s acceptance of a guilty but mentally ill plea.”

The habeas court concluded, therefore, that even if Attorney Ellyson should have

advised Iannarelli of his right to remain silent, Iannarelli failed to establish

prejudice.

[¶15.]       On Iannarelli’s claim that he was entitled to provisional

institutionalization under SDCL 23A-27-42, the habeas court disagreed, relying on

SDCL 23A-27-38. Under SDCL 23A-27-38, Iannarelli had the right to receive

mental health treatment (i.e., treatment in an institution) if his symptoms of

mental illness warranted treatment. Because Iannarelli “presented no evidence

that he ha[d] requested and been subsequently denied mental health treatment

that he may be statutorily entitled to receive while serving his sentence,” the

habeas court found “no factual ground to declare [Iannarelli’s] sentence to the South

Dakota State Penitentiary erroneous[.]”

[¶16.]       The habeas court denied Iannarelli’s petition for a writ of habeas

corpus. Iannarelli moved for a certificate of probable cause on three issues,

including whether counsel was ineffective for failing to advise him of his right to

remain silent and for failing to demand an evidentiary hearing for a sentence of

provisional institutionalization under SDCL 23A-27-42. The habeas court granted




                                           -6-
#28151

Iannarelli’s motion, concluding that “there is probable cause that an appealable

issue or issues do exist.”

[¶17.]       Iannarelli appeals, asserting the following issues:

             1. Whether Iannarelli was deprived of effective assistance of counsel
                in violation of the Sixth Amendment and compelled to give
                testimony against himself in violation of the Fifth Amendment
                because the court ordered a psychological examination and because
                Attorney Ellyson failed to warn Iannarelli that statements made to
                Dr. Woldt could be used against him.

             2. Whether Iannarelli was deprived of procedural due process and
                whether his counsel was ineffective when provisional
                institutionalization procedure was ignored.

                                Standard of Review

[¶18.]       “Habeas corpus is not a substitute for direct review. Because habeas

corpus is a collateral attack upon a final judgment, our scope of review is limited.”

Engesser v. Young, 2014 S.D. 81, ¶ 22 n.1, 856 N.W.2d 471, 478 n.1. We review only

“(1) whether the court had jurisdiction of the crime and the person of the defendant;

(2) whether the sentence was authorized by law; and (3) in certain cases whether an

incarcerated defendant has been deprived of basic constitutional rights.” Id.

(quoting Loop v. Class, 1996 S.D. 107, ¶ 11, 554 N.W.2d 189, 191).

                                      Analysis

[¶19.]       Before we address the issues raised by Iannarelli, we discuss the

guidelines governing certificates of probable cause under SDCL 21-27-18.1, which

this Court adopted in Lange v. Weber, 1999 S.D. 138, 602 N.W.2d 273. In Lange, we

recognized that the purpose of issuing a certificate of probable cause is to decrease

the volume of frivolous appeals from post-conviction proceedings. Id. ¶ 10.

Requiring a certificate of probable cause creates “discretionary appellate review of

                                          -7-
#28151

habeas petitions.” Id. “In order to stave off the increasing burden of frivolous

appeals in post-conviction proceedings,” this Court adopted “the standard followed

in the federal court system.” Id. ¶ 12. We said,

             We interpret SDCL 21-27-18.1 to mean that if the trial court
             denies an application in a habeas claim, it must either issue a
             certificate of probable cause or state why a certificate should not
             issue. A specific showing of probable cause must be articulated
             on the certificate in order to confer jurisdiction upon this Court
             to review the denial of a habeas corpus petition. The certificate
             must make “a substantial showing of the denial of a
             constitutional right.” 28 U.S.C. 2253(c)(2). In addition, the
             certificate must indicate which specific issue or issues satisfy the
             showing of the denial of a constitutional right.

Id. (emphasis added); accord Ashley v. Young, 2014 S.D. 66, ¶¶ 7-9, 854 N.W.2d 347,

349-50.

[¶20.]       Here, although the habeas court issued a certificate of probable cause

after denying Iannarelli habeas relief, the court did not follow the guidelines

adopted in Lange. The habeas court did not articulate a specific showing of

probable cause, make a substantial showing of the denial of a constitutional right,

or indicate which issue or issues raised by Iannarelli satisfied the showing of a

denial of a constitutional right. In future cases, circuit courts are directed to comply

with the dictates of Lange before issuing certificates of probable cause.

[¶21.]        However, we address Iannarelli’s claims on appeal because reversing

for the habeas court to follow Lange would not “stave off the increasing burden of

frivolous appeals in post-conviction proceedings[.]” See Lange, 1999 S.D. 138, ¶ 12,

602 N.W.2d at 276. In his motion for a certificate of probable cause, Iannarelli

specifically articulated why he believes probable cause exists to warrant the

certificate on the issues asserted. He also claimed that those issues evince a denial

                                          -8-
#28151

of his constitutional rights. So in this case, it is enough that the habeas court

certified “that there is probable cause that an appealable issue or issues do exist.”

             1. Examination by Dr. Woldt

[¶22.]       After Iannarelli pleaded guilty but mentally ill to first-degree

manslaughter and second-degree rape, the sentencing court directed Iannarelli to

complete a presentence investigation and psychological examination including a

psychosexual examination. Iannarelli claims that he should have been specifically

informed of his Fifth Amendment right against self-incrimination prior to his

participation in the psychological examination by Dr. Woldt and that his counsel’s

failure to provide an adequate warning or move to exclude Dr. Woldt’s report

deprived him of effective assistance of counsel. Iannarelli argues that he was

prejudiced by his counsel’s error because he was compelled to make incriminating

statements to Dr. Woldt and the court used Dr. Woldt’s report to impose a harsher

sentence. Iannarelli likens his circumstances to those examined by the United

States Supreme Court in Estelle v. Smith, 451 U.S. 454, 101 S. Ct. 1866, 68 L. Ed.

2d 359 (1981), by this Court in State v. Berget, 2013 S.D. 1, 826 N.W.2d 1, and by

the Idaho Supreme Court in Estrada v. State, 149 P.3d 833 (Idaho 2006). In these

cases, the respective courts held that a sentencing court’s reliance on a defendant’s

unwarned statements made in a psychiatric (Estelle and Berget) or psychosexual

(Estrada) examination to impose sentence could violate a defendant’s Fifth

Amendment right against self-incrimination.

[¶23.]       In Estelle, a Texas trial judge ordered Smith to undergo a psychiatric

examination to determine competency prior to trial. 451 U.S. at 456-57, 101 S. Ct.


                                          -9-
#28151

at 1870. After a jury found Smith guilty of first-degree murder, the jury was

required to decide whether to impose the death penalty. To do so, the jury needed

to find that “there is a probability that the defendant would commit criminal acts of

violence that would constitute a continuing threat to society.” Id. at 458, 101 S. Ct.

at 1870 (quoting Tex. Code Crim. Proc. Ann. art. 37.701(b)(2) (Vernon Supp. 1980)).

Over defense counsel’s objection, the state called the psychiatrist who had examined

Smith prior to trial to determine Smith’s competency. The psychiatrist testified

that Smith is a severe sociopath whose condition would only get worse. The jury

imposed the death penalty against Smith.

[¶24.]       Smith appealed asserting that the court violated his Fifth Amendment

right against self-incrimination. The United States Supreme Court agreed. It first

recognized that the Fifth Amendment applies in the penalty phase, not just the

guilt phase. Id. at 463, 101 S. Ct. at 1873. The Court then concluded that Smith’s

unwarned statements to the psychiatrist implicated the Fifth Amendment. Id. In

the Court’s view, when the psychiatrist “went beyond simply reporting to the court

on the issue of competence and testified for the prosecution at the penalty phase on

a crucial issue of [Smith’s] future dangerousness, his role changed and became

essentially like that of an agent of the State recounting unwarned statements made

in a post-arrest custodial setting.” Id. at 467, 101 S. Ct. at 1875. The Court held

that “[a] criminal defendant, who neither initiates a psychiatric evaluation nor

attempts to introduce any psychiatric evidence, may not be compelled to respond to

a psychiatrist if his statements can be used against him at a capital sentencing

proceeding.” Id. at 468, 101 S. Ct. at 1876.


                                         -10-
#28151

[¶25.]       This Court in Berget relied on Estelle in deciding whether the circuit

court violated Berget’s right against self-incrimination by considering a psychiatric

report in fashioning Berget’s sentence. 2013 S.D. 1, ¶ 95, 826 N.W.2d at 29. In the

pre-trial phase, Berget’s counsel had moved for and obtained a psychiatric

examination to determine Berget’s competency to stand trial. Berget submitted the

report to the State and circuit court on the understanding that it would be kept

under seal unless the doctor was called to testify by Berget as a witness. Berget

ultimately pleaded guilty, and the doctor never testified. When the court imposed

its sentence, however, it referred to the doctor’s report and used the report to weigh

against the mitigating effect of Berget’s acceptance of responsibility.

[¶26.]       On appeal, Berget argued that the circuit court’s use of the report

violated his Fifth Amendment right against self-incrimination. Relying on Estelle,

we recognized that the Fifth Amendment applies to the penalty phase. Id. ¶ 98. We

then noted that Berget had no notice that his statements to the doctor would be

used against him during the sentencing phase. We also considered that Berget had

not placed his mental status at issue and that neither the State nor Berget were

aware the court would consider the doctor’s report. We held that the circuit court

improperly relied on the statements made by Berget during the competency

evaluation in violation of Berget’s Fifth Amendment right against self-

incrimination. Id. ¶ 119.

[¶27.]       In Estrada, an Idaho court ordered a psychosexual evaluation after

Estrada pleaded guilty to rape. 149 P.3d at 835. Estrada failed to complete certain

evaluation forms, and his counsel wrote a letter informing him that “[w]e would not


                                         -11-
#28151

want the judge to consider your lack of cooperation to mean that you are not willing

to comply with court orders.” Id. Estrada participated in the evaluation, and the

report contained “a number of unfavorable and derogatory comments about

Estrada, including references to his potential for future violent actions.” Id. The

court relied on the report when it sentenced Estrada.

[¶28.]       Estrada sought post-conviction relief asserting that his counsel was

ineffective for failing to advise him of his right to remain silent and of his right not

to participate in the psychosexual evaluation. The Idaho Supreme Court concluded

that a court-ordered psychosexual evaluation is a critical stage of the proceeding.

Id. at 837. The court distinguished the psychosexual evaluation from a routine

presentence investigation. It held, therefore, that a court-ordered psychosexual

evaluation implicated a defendant’s right to assistance of counsel under the Sixth

Amendment. In the court’s view, counsel need not be present but held that a

defendant has a right to assistance of counsel on the decision whether to submit to a

psychosexual examination. Id. at 837-38.

[¶29.]       Although Estelle, Berget, and Estrada all support that a defendant has

a Fifth Amendment right against self-incrimination in the sentencing phase, none

of the cases compel the conclusion that Iannarelli’s unwarned participation in Dr.

Woldt’s psychological examination violated that right. Unlike the defendants in

Berget, Estelle, and Estrada, Iannarelli specifically placed his mental status at

issue. He requested and received a psychological examination by Dr. Manlove to

negotiate a plea agreement with the State and to remove the possibility of the death

penalty. Iannarelli submitted Dr. Manlove’s report to the court as support for his


                                          -12-
#28151

plea of guilty but mentally ill and as evidence of mitigation during the sentencing

phase.

[¶30.]       Iannarelli, however, avers that he could not be compelled to participate

in a psychological examination by Dr. Woldt without being advised of his right to

remain silent because “[t]he issue of his mental illness was already resolved, the

statutory basis already established, and plea bargain struck.” He concedes that the

court could order that he participate in a psychosexual evaluation. But he claims

that when the court ordered a psychological examination, Attorney Ellyson had a

duty to advise him of his Fifth Amendment right against self-incrimination.

[¶31.]       In Berget, we recognized that “the Fifth Amendment analysis might be

different where a defendant ‘intends to introduce psychiatric evidence at the

penalty phase[.]’” 2013 S.D. 1, ¶ 102, 826 N.W.2d at 31-32 (quoting Penry v.

Johnson, 532 U.S. 782, 795, 121 S. Ct. 1910, 1919, 150 L. Ed. 2d 9 (2001)); accord

Buchanan v. Kentucky, 483 U.S. 402, 107 S. Ct. 2906, 97 L. Ed. 2d 336 (1987).

Indeed, to conclude otherwise would mean that “[w]hen a defendant asserts the

insanity defense and introduces supporting psychiatric testimony, his silence may

deprive the State of the only effective means it has of controverting his proof on an

issue that he interjected into the case.” Estelle, 451 U.S. at 465, 101 S. Ct. at 1874.

So a defendant can waive the Fifth Amendment right against self-incrimination

“when the defendant initiates a trial defense of mental incapacity or disturbance,

even though the defendant had not been given Miranda warnings[.]” Berget, 2013

S.D. 1, ¶ 103, 826 N.W.2d at 32 (quoting Gibbs v. Frank, 387 F.3d 268, 274 (3d Cir.




                                          -13-
#28151

2004)). And the right to remain silent is deemed waived unless invoked. State v.

Garber, 2004 S.D. 2, ¶ 23, 674 N.W.2d 320, 326.

[¶32.]       Based on our review of the circumstances, we conclude that Iannarelli

waived his Fifth Amendment right against self-incrimination by failing to invoke it

during Dr. Woldt’s psychological examination. Iannarelli specifically placed his

mental status at issue during the sentencing phase by pleading guilty but mentally

ill and by obtaining and submitting a psychological report in support of a more

lenient sentence. Unlike Estelle and Berget, Iannarelli was examined by Dr. Woldt

after he pleaded guilty but mentally ill. More importantly, he knew that the

statements he made during Dr. Woldt’s examination as well as Dr. Manlove’s would

be used by the court when it imposed its sentence. See Buchanan, 483 U.S. at 423-

24, 107 S. Ct. at 2918 (when defendant presents psychiatric evidence, defendant

would have no Fifth Amendment right against the introduction of psychiatric

testimony by the prosecution). Indeed, Dr. Woldt informed Iannarelli that “the

topics and questions to which [Iannarelli] did not respond to his satisfaction” would

be noted in the report and that “[i]nformation that is incomplete, wrong, or

misleading may be far more damaging than if Dr. Woldt is able to find out about it

during the evaluation[.]”

[¶33.]       The circumstances of this case do not present a situation where a

defendant (without ever introducing psychiatric evidence) was compelled to respond

to a psychiatrist without warning that his statements could be used against him

during the penalty phase. Likewise, we consider that this case involves a defense

theory related to the defendant’s mental status and the defendant submitted


                                         -14-
#28151

psychiatric evidence in support of a more lenient sentence. Based on those

considerations and that Iannarelli did not invoke his right to remain silent despite

knowing the court intended to use Dr. Woldt’s report at sentencing, this case does

not present the concerns identified in Estelle, Berget, and Estrada. The sentencing

court’s use of Dr. Woldt’s report did not violate Iannarelli’s Fifth Amendment right

against self-incrimination, and Iannarelli was not deprived of effective assistance of

counsel in violation of the Sixth Amendment.

             2. Provisional institutionalization under SDCL 23A-27-42

[¶34.]       Iannarelli seeks provisional institutionalization under SDCL 23A-27-

42. He claims that Attorney Ellyson was ineffective for failing to request a hearing

to determine if Iannarelli should receive provisional institutionalization because, in

Iannarelli’s view, “Dr. Manlove, Dr. Woldt, Mr. Ellyson, and Judge Roeher all

believed that Mr. Iannarelli was presently suffering from a mental disease or defect

for which he was in need of custody for care and treatment.” Iannarelli claims that

the sentencing court appeared to begin the process leading to a hearing under

SDCL 23A-27-42 when it ordered the report of Dr. Woldt but that the court

“skipped” the requisite hearing under SDCL 23A-27-44 “without explanation.”

[¶35.]       SDCL 23A-27-42 provides:

             A defendant found guilty of an offense, or the prosecuting
             attorney may, within ten days after the defendant is found
             guilty, and prior to the time the defendant is sentenced, file a
             motion for a hearing on the present mental condition of the
             defendant if the motion is supported by substantial information
             indicating that the defendant may presently be suffering from a
             mental disease or defect for which he is in need of custody for
             care and treatment in a suitable facility. The court shall grant
             the motion, or at any time prior to the sentencing of the
             defendant shall order such a hearing on its own motion, if it is of

                                         -15-
#28151

             the opinion that there is reasonable cause to believe that the
             defendant may presently be suffering from a mental disease or
             defect for which he is in need of custody for care or treatment in
             a suitable facility.

(Emphasis added.) But Iannarelli was not found “guilty of an offense.” He was

found “guilty but mentally ill[.]” For a finding of guilty but mentally ill, SDCL 23A-

27-38 controls. It provides:

             If a defendant is found “guilty but mentally ill” or enters that
             plea and the plea is accepted by the court, the court shall impose
             any sentence which could be imposed upon a defendant pleading
             or found guilty of the same charge. If the defendant is sentenced
             to the state penitentiary, he shall undergo further examination
             and may be given the treatment that is psychiatrically indicated
             for his mental illness. If treatment is available, it may be
             provided through facilities under the jurisdiction of the
             Department of Social Services. The secretary of corrections may
             transfer the defendant from the penitentiary to other facilities
             under the jurisdiction of the Department of Social Services, with
             the consent of the secretary of social services, and return the
             defendant to the penitentiary after completion of treatment for
             the balance of the defendant’s sentence.

Id.

[¶36.]       Here, before accepting Iannarelli’s plea of guilty but mentally ill, the

sentencing court held “a hearing on the defendant’s mental condition” and

concluded that Iannarelli suffered from a mental illness. SDCL 23A-7-16. Under

SDCL 23A-27-38, the sentencing court was then authorized to impose a sentence to

custody for care and treatment in a suitable facility. The court chose to sentence

Iannarelli to the penitentiary, and under SDCL 23A-27-38 any future treatment

necessary for Iannarelli’s mental illness depends on “further examination” while

incarcerated. Id.

[¶37.]       Affirmed.



                                         -16-
#28151

[¶38.]       GILBERTSON, Chief Justice, and ZINTER, SEVERSON and KERN,

Justices, concur.

[¶39.]       JENSEN, Justice, not having been a member of the Court at the time

this action was submitted to the Court, did not participate.




                                         -17-
