#27327-a-LSW

2015 S.D. 46

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

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

      v.

TRAUN L. COOK,                            Defendant and Appellant.


                                 ****

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE FIRST JUDICIAL CIRCUIT
                     CLAY COUNTY, SOUTH DAKOTA

                                 ****

                  THE HONORABLE CHERYLE W. GERING
                               Judge

                                 ****

MARTY J. JACKLEY
Attorney General

CAROLINE A. SRSTKA
Assistant Attorney General
Pierre, South Dakota                      Attorneys for plaintiff
                                          and appellee.


MATTHEW R. METZGAR of
Rhinehart Law, P.C.
Sioux City, Iowa                          Attorneys for defendant
                                          and appellant.

                                 ****

                                          CONSIDERED ON BRIEFS
                                          ON MAY 26, 2015

                                          OPINION FILED 06/17/15
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WILBUR, Justice

[¶1.]        Traun L. Cook was convicted of aggravated assault and simple assault.

Cook filed a motion to correct an illegal sentence. Cook appeals the circuit court’s

denial of his motion, arguing that the court erred as a matter of law because the

oral pronouncement of his sentence was ambiguous or internally contradictory and,

therefore, constituted an illegal sentence. We affirm.

                                    Background

[¶2.]        On December 3, 2008, a jury found Cook guilty of aggravated assault

under SDCL 22-18-1.1(4) and simple assault under SDCL 22-18-1(5). Cook

admitted to an information for enhancement of simple assault and to a part II

information for habitual offender. The sentencing court, the Honorable Judge

Arthur Rusch presiding, sentenced Cook on January 30, 2009, to 20 years in the

South Dakota State Penitentiary with 10 years suspended for aggravated assault

and 2 years in the penitentiary for simple assault, to run concurrently. The

sentencing court filed an amended judgment and sentence on February 5, 2009.

[¶3.]        Cook appealed his conviction to this Court on February 5, 2009. We

summarily affirmed his conviction. State v. Cook, 779 N.W.2d 166 (S.D. 2009).

Afterwards, the circuit court appointed Scot Mannschreck to represent Cook. Cook,

through his attorney, filed a motion to amend his sentence on July 9, 2014. The

circuit court, the Honorable Judge Cheryle Gering presiding, denied the motion

without a hearing because “the two years during which time the sentencing court

retains jurisdiction pursuant to SDCL 23A-27-19 and/or SDCL 23A-31-1 has long

since expired.”


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[¶4.]        The circuit court appointed Matthew Metzgar on October 15, 2014, to

represent Cook after Cook applied for new court-appointed counsel. Cook filed a

motion to correct an illegal sentence on October 23, 2014, alleging that his sentence

was ambiguous or internally contradictory. Specifically, Cook contended that his

sentence was ambiguous or internally contradictory because Judge Rusch stated

that the court retained control and jurisdiction over Cook for the entirety of his

sentence. According to Cook, Judge Rusch only retained jurisdiction and control

over him for two years; therefore, his sentence was in contravention of the law of

this state. Furthermore, Cook alleged that the order was ambiguous or internally

contradictory as to whether the circuit court intended to place him on probation or

on parole after he finished serving ten years in the penitentiary. Cook stated,

“[W]hen there is a concurrent penitentiary term and probation requirement, such a

sentence places a defendant under simultaneous supervision of both the executive

branch and [the] judicial branch of the government[.]” Thus, according to Cook,

“The appropriate remedy is to remand the matter to the circuit court[.]”

[¶5.]        After a hearing, the circuit court denied Cook’s motion to correct an

illegal sentence. In its findings of fact and conclusions of law, the court noted that

the oral sentence controlled over the written judgment. The court then found that

the oral sentence was neither internally inconsistent nor ambiguous. Specifically,

the court found that “it was superfluous and unnecessary for the sentencing court to

use the language regarding revocation of suspension and reinstatement of the

sentence without credit for the time on probation” because “there was no

circumstance under which [Cook] would be on probation in this case[.]” In addition,


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the court found that the statement from the sentencing court that it retained

jurisdiction for the entirety of Cook’s sentence was inapplicable because a court

cannot grant “jurisdiction beyond that provided by state law.” Cook appeals this

order and raises the following issue for our review:

              Whether the circuit court erred when it denied Cook’s motion to
              correct an illegal sentence.

                                      Analysis

[¶6.]         The circuit court’s “written sentence must conform to the court’s oral

pronouncement.” State v. Thayer, 2006 S.D. 40, ¶ 8, 713 N.W.2d 608, 612. When

there is a difference between the written and oral sentences, we review the sentence

“under the premise that the oral sentence controls.” Id. ¶ 7, 713 N.W.2d at 611. We

may rely on the written sentence to clarify any ambiguity in the oral sentence.

State v. Munk, 453 N.W.2d 124, 125 (S.D. 1990). Consequently, in this case, we

review the oral pronouncement to determine whether the sentence was illegal and

rely on the written sentence only to the extent necessary to clarify an ambiguity in

the oral pronouncement. See id. We review questions of law de novo. State v.

Berget, 2014 S.D. 61, ¶ 48, 853 N.W.2d 45, 65.

[¶7.]         The circuit court “may correct an illegal sentence at any time[.]” SDCL

23A-31-1 (Rule 35). 1 “Clerical mistakes in judgments, orders, or other parts of a



1.      The circuit court may also “correct a sentence imposed in an illegal manner
        within the time provided in this section for the reduction of sentence.” SDCL
        23A-31-1 (Rule 35). “‘Sentences imposed in an illegal manner are within the
        relevant statutory limits, but are imposed in a way which violates
        defendant’s right’ to not have his sentence enhanced once the defendant has
        left the judicial branch of government and is within the jurisdiction of the
        executive branch.” State v. Sieler, 1996 S.D. 114, ¶ 6, 554 N.W.2d 477, 479
                                                             (continued . . .)
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record and errors in a record arising from oversight or omission may be corrected by

a court at any time and after such notice, if any, as the court orders.” SDCL 23A-

31-2 (Rule 36). “‘Illegal sentences are essentially only those which exceed the

relevant statutory maximum limits or violate double jeopardy or are ambiguous or

internally contradictory.’” State v. Thomas, 499 N.W.2d 621, 622 (S.D. 1993)

(quoting 8A James W. Moore, Moore’s Federal Practice § 35.06[a] (2d ed. 1992)).

[¶8.]        Cook does not contend that his sentence exceeded the relevant

statutory maximum limit or violated double jeopardy. Instead, Cook asserts only

that his sentence was ambiguous or internally contradictory. “A sentence may be

found illegal when it is internally ambiguous or self-contradictory to the extent that

a reasonable person cannot determine what the sentence is.” James W. Moore,

Moore’s Federal Practice § 635 App. 102[3][c][iii] (3d ed. 2015) (footnote omitted).

“It is the obligation of the sentencing court to express a sentence in clear terms, so

as to ‘reveal with fair certainty’ its intent and ‘exclude any serious

misapprehensions by those who must execute them.’” United States v. Moss, 614

F.2d 171, 175 (8th Cir. 1980) (quoting United States v. Daugherty, 269 U.S. 360,

363, 46 S. Ct. 156, 157, 70 L. Ed. 309 (1926)). We examine the following guiding

factors to determine whether an oral pronouncement is ambiguous:

             (1)    when the words used have more than one meaning;

________________________
(. . . continued)
         (quoting 8A James W. Moore, Moore’s Federal Practice § 35.04[3][a] (2d ed.
         1995)). The State contends “that, if anything, Defendant’s [sentence] was
         imposed in an illegal manner and according to SDCL § 23A-31-1, the time for
         correction has long since passed.” Because Cook does not argue that his
         sentence was imposed in an illegal manner, we need only determine whether
         his sentence constituted an illegal sentence.

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             (2)  when otherwise unambiguous words are used in an
             unusual way;
             (3)   the extent of the sentence cannot be ascertained from the
             language used; or
             (4)   the plain meaning of the words used lead to an irrational
             or absurd result.

State v. Cady, 422 N.W.2d 828, 830 (S.D. 1988) (quoting United States v. Villano,

816 F.2d 1448, 1453 n.6 (10th Cir. 1987)).

[¶9.]        Cook argues that the oral pronouncement in this case was ambiguous

or internally contradictory because the sentencing court stated that it would retain

control and jurisdiction over him for the entire term of his sentence. Generally, the

sentencing court only retains jurisdiction over a defendant for a period of two years

from the date the sentence is imposed. See SDCL 23A-27-19 (“The sentencing court

retains jurisdiction for the purpose of suspending any such sentence for a period of

two years from the effective date of the judgment of conviction[.]”); SDCL 23A-31-1

(Rule 35) (“A court may reduce a sentence . . . [w]ithin two years after the sentence

is imposed[.]”). “A defendant with a partially suspended penitentiary sentence is

under the supervision of the Department of Corrections and the Board of Pardons

and Paroles.” SDCL 23A-27-18.4; see also State v. McConnell, 495 N.W.2d 658, 658

(S.D. 1993) (“While in the penitentiary [the defendant] will be under supervision of

the Department of Corrections, an agency of the executive branch.”). “The board [of

pardons and paroles] is charged with the responsibility for enforcing the conditions

imposed by the sentencing judge, and the board retains jurisdiction to revoke the

suspended portion of the sentence for violation of the terms of parole or the terms of

the suspension.” SDCL 23A-27-18.4. Therefore, in this case, the sentencing court


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clearly did not retain jurisdiction and control over Cook for the entire term of his

sentence—i.e., 20 years in the penitentiary with 10 years suspended.

[¶10.]         Consequently, Cook alleges that his sentence was illegal because it

was “both internally conflicting and ambiguous in that regard.” In this case, the

oral pronouncement of Cook’s sentence was not so ambiguous or internally

conflicting that a reasonable person would not understand the sentence. We note

that the sentencing court may have, at times, confused the concepts of parole and

probation during its oral pronouncement. 2 Indeed, a sentencing court retains

jurisdiction over a defendant for the entire term of his sentence when the defendant

receives either a suspended imposition or suspended execution of sentence and is

placed on probation. SDCL 23A-27-13, -18. In considering the motion to correct an

illegal sentence, the circuit court speculated that the language in the oral

pronouncement referencing probation “likely” originated from “standard conditions

that [Judge Rusch] may have stated in this case[.]” The circuit court found that

“there was no circumstance under which [Cook] would be on probation in this case”

because “no probation [was] ordered and [there was] no possibility of




2.       The sentencing court stated: “[Y]ou shall be subject to random search and
         seizure by your parole officer or any law enforcement officer upon reasonable
         suspicion that you’re violating any provision of this probation.” (Emphasis
         added.) Later in the oral pronouncement, the court stated that “this court
         may revoke the suspension at any time and reinstate the sentence without
         diminishment or credit for the time you are on probation.” (Emphasis added.)
         The court also made several references to “court service officers,” who are
         assigned to a defendant for probation supervision. See SDCL 23A-27-12.1.

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probation being ordered.” 3 Accordingly, the circuit court concluded that “it was

superfluous and unnecessary for the sentencing court to use the language”

regarding probation. We agree.

[¶11.]         The record indicates that Judge Rusch clearly and unambiguously

placed Cook under the supervision of the board of pardons and paroles: “You shall

be placed under the supervision of the board of pardons and paroles or their

representative for a period of ten years, and that you shall be governed by their

rules and regulations.” Regardless of whether Judge Rusch employed a practice of

modifying sentences after the expiration of the two-year jurisdiction under SDCL

23A-31-1 (Rule 35) as asserted by Cook, 4 the law plainly provides that the court

only retained jurisdiction in this case for a period of two years from the date that

the sentence was imposed. See SDCL 23A-27-19, -31-1 (Rule 35). Therefore, the

few references to “probation” did not render the oral pronouncement of the sentence

so ambiguous or internally conflicting that a reasonable person would not

understand his sentence. See James W. Moore, Moore’s Federal Practice § 635 App.




3.       Cook does not assert that the sentencing court ordered probation or that he
         thought the court ordered probation.

4.       Cook alleges that, based on the testimony of his trial counsel, Philip
         Peterson, “the practice of Judge Rusch [was] to retain jurisdiction to reduce
         sentences even after the two year limitation period of SDCL 23A-31-1 [(Rule
         35)] had expired.” Peterson testified that he did not pursue a modification of
         the sentence within two years of the sentence, as required by SDCL 23A-31-1
         (Rule 35), because Judge Rusch would only consider modification after the
         inmate had served one-half of his parole eligibility.

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102[3][c][iii] (3d ed. 2015). 5 Moreover, the oral pronouncement was not subject to

more than one interpretation, the language was not used in an unusual way, the

extent of the sentence was ascertainable, and the plain meaning of the words did

not lead to an irrational or absurd result. See Cady, 422 N.W.2d at 830.

[¶12.]         We affirm.

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

Justices, concur.




5.       Cook further argues that his sentence was illegal because aspects of the
         sentence were inconsistent with statutory requirements. Cook cites to the
         Colorado Supreme Court decision in Delgado v. People, 105 P.3d 634 (Colo.
         2005) (en banc), in support of this argument. In Delgado, the court stated
         that it “has consistently held that if the sentence imposed is not in full
         compliance with statutory requirements it is illegal.” Id. at 636. The court
         cited its earlier decisions regarding illegal sentences. Id. at 636-37. Delgado
         and its progeny are factually distinguishable from the present case. Here,
         the sentencing court was authorized to sentence Cook to a term of
         incarceration in the penitentiary with a portion of the sentence suspended if
         certain conditions are met. Therefore, we reject Cook’s reliance on these
         cases.

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