#26213-denied-DG

2012 S.D. 27

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

                                    ****

STATE OF SOUTH DAKOTA,                             Plaintiff,

      v.

ERIC DONALD ROBERT,                                Defendant.

                                    ****

                    APPEAL FROM THE CIRCUIT COURT
                       SECOND JUDICIAL CIRCUIT
                   MINNEHAHA COUNTY, SOUTH DAKOTA

                                    ****

                       HONORABLE BRADLEY G. ZELL
                                Judge

                                    ****

MARTY J. JACKLEY
Attorney General

PAUL S. SWEDLUND
Assistant Attorney General
Pierre, South Dakota                        Attorneys for Plaintiff.

MARK KADI
Minnehaha County Public Advocates
Sioux Falls, South Dakota                   Attorneys for Defendant.

RANDAL E. CONNELLY
Rapid City, South Dakota                    Amicus Curiae.

                                    ****
                                            CONSIDERED ON BRIEFS
                                            ON APRIL 5, 2012

                                            OPINION FILED 04/11/12
#26213

GILBERTSON, Chief Justice

[¶1.]        Eric Robert is currently under a sentence of death entered by a circuit

court judge of the Second Judicial Circuit. He has not filed an appeal to this Court

and the time to do so has expired. Nevertheless, this Court in this case is

statutorily mandated by SDCL 23A-27A-12 to consider:

             (1)    Whether the sentence of death was imposed under the
                    influence of passion, prejudice, or any other arbitrary
                    factor; and
             (2)    Whether the evidence supports the . . . judge’s finding of a
                    statutory aggravating circumstance as enumerated in
                    § 23A-27A-1; and
             (3)    Whether the sentence of death is excessive or
                    disproportionate to the penalty imposed in similar cases,
                    considering both the crime and the defendant.

[¶2.]         Robert filed a motion with this Court to vacate this Court’s orders

staying his execution and establishing a briefing schedule. Robert alleges this

Court is without jurisdiction to enter these orders. Robert argues that this Court

only has such jurisdiction explicitly provided by the Legislature and that the

Legislature only requires this Court to review each death sentence. “If the death

penalty is imposed, and if the judgment becomes final in the trial court, the

sentence shall be reviewed by the South Dakota Supreme Court.” SDCL 23A-27A-9.

Robert argues, however, that the obligation to review his sentence does not grant

this Court additional jurisdiction to stay his execution or enter a briefing schedule.

[¶3.]        Robert specifically relies upon the first sentence of SDCL 23A-27A-21.

SDCL 23A-27A-21 provides:

             No judge, officer, commission, or board, other than the Governor,
             may reprieve or suspend the execution of a judgment of death.
             However, the warden or deputy warden of the penitentiary is

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             authorized so to do in a case and in the manner prescribed in
             this chapter or as provided in §§ 23A-27A-24 and 23A-27A-28.
             This section does not apply to a stay of proceedings upon appeal
             or to the issuance of a writ of habeas corpus, certiorari, or other
             original remedial writ of the Supreme Court.

Robert focuses on the first sentence of this statute, insisting that only the Governor

can delay his execution. Robert argues that the “no judge” language of the statute

includes this Court and prohibits it from reprieving or suspending the execution.

Regarding the last sentence of this section, Robert argues that because he has not

filed a notice of appeal, this matter is not “upon appeal.” Therefore, Robert argues

the “stay of proceedings” contemplated by this statute is not available.

[¶4.]        The plain language of SDCL 23A-27A-21 does not prohibit this Court

from granting a stay in the present circumstances. Moreover, if this Court’s

obligated sentence review is considered “proceedings upon appeal,” the statute

explicitly contemplates a stay of execution.

[¶5.]        The South Dakota Constitution limits this Court’s jurisdiction to two

categories – appellate jurisdiction as provided by the Legislature and jurisdiction to

hear an original or remedial writ. “The Supreme Court shall have such appellate

jurisdiction as may be provided by the Legislature, and the Supreme Court or any

justice thereof may issue any original or remedial writ which shall then be heard

and determined by that court.” S.D. Const. art. V, § 5. As Robert points out, no

original or remedial writ has been filed in this matter. Rather, the Legislature

granted this Court jurisdiction over this matter by mandating that it review

Robert’s sentence. According to the South Dakota Constitution, the Legislature can

provide this Court only with appellate jurisdiction. Therefore, this mandatory

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sentence review per SDCL 23A-27A-12 is necessarily an exercise of this Court’s

appellate jurisdiction.

[¶6.]        Circuit courts, not this Court, have original jurisdiction over “all

cases.” “The circuit courts have original jurisdiction in all cases except as to any

limited original jurisdiction granted to other courts by the Legislature. The circuit

courts and judges thereof have the power to issue, hear and determine all original

and remedial writs.” S.D. Const. art. V, § 5. This Court’s legislatively mandated

sentence review is an exercise of appellate, not original, jurisdiction. Even though

no notice of appeal has been filed, this proceeding is an exercise of appellate

jurisdiction to review a lower court’s decision – the definition of an appeal.

[¶7.]        An appeal is “a proceeding undertaken to have a decision reconsidered

by bringing it to a higher authority; esp., the submission of a lower court’s or

agency’s decision to a higher court for review and possible reversal.” Black’s Law

Dictionary 105 (8th ed. 2004). This Court’s mandatory sentence review fits this

definition precisely. As Robert points out, when the defendant does not raise

additional issues by filing a notice of appeal, this Court’s review of the circuit court’s

sentence is limited by statute. See SDCL 23A-27A-12. However, it is still the

submission of a lower court’s decision to a higher court for review and possible

reversal. Should this Court so determine, it could set aside Robert’s death sentence

and remand the matter for further sentencing proceedings. Id. Cf. Piper v. Weber,

2009 S.D. 66, 771 N.W.2d 352. While it is true that this proceeding was not

initiated by Robert filing a notice of appeal, it is an exercise of this Court’s appellate

jurisdiction to review the decision of a lower court – a proceeding upon appeal. As

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such, the exception to the prohibition on delaying execution applies. SDCL 23A-

27A-21 (“This section does not apply to a stay of proceedings upon appeal.”).1

[¶8.]         Further, the Legislature’s use of “judge” in SDCL 23A-27A-21

reinforces the conclusion that this Court was not included in the prohibition against

delaying an execution. The reading of SDCL 23A-27A-21 urged by Robert requires

this Court’s inclusion in the phrase “no judge.” The Legislature clearly intended “no

judge” to refer to a judge of a circuit court.2 This Court is comprised of justices, not

judges. S.D. Const. art. V, § 2 (“The Supreme Court is the highest court of the state.

It consists of a chief justice and four associate justices.”). “Judges” preside over

circuit courts. Id. § 3 (“The circuit courts consist of such number of circuits and

judges as the Supreme Court determines by rule.”). SDCL 23A-27A-21 specifically

refers to “the Supreme Court” when referencing original remedial writs. Had the

Legislature meant to prohibit this Court from delaying an execution, it would have

said so.3


1.      It is also significant that any issues raised by direct appeal are to be
        consolidated with this Court’s sentence review. SDCL 23A-27A-10. The
        Legislature intended for this proceeding to be conducted as an appeal.

2.      The statutory definitions of “judge” found in SDCL 15-12-20, 16-1A-1 and
        23A-35A-1 are clearly limited to those chapters in the code and are not
        relevant to the constitutional analysis of the term as outlined above.

3.      Under the 1889 South Dakota Constitution, both members of the Circuit
        Court and Supreme Court held the title of “judge.” S.D. Const. art. V, §§ 3,
        14 (1889). In 1972, the Constitutional revision of Article V changed the title
        of members of the Supreme Court to “justice.” S.D. Const. art. V, § 2 (revised
        1972). Yet in 1979, when the Legislature amended SDCL 23A-27A-21, it
        retained the use of the word “judge” in the first sentence of that statute
        without adding the word “justice.” This is a clear indication that the
        prohibition in the first sentence of SDCL 23A-27A-21 applies only to judges of
        the circuit court.
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#26213

[¶9.]        Moreover, staying this execution comes within this Court’s inherent

authority to preserve the status quo. “It has long been recognized that an appellate

court has inherent power to preserve the status quo pending the appeal, and may

without express statutory authority in a proper case stay proceedings pending

appeal.” Gamet v. Allender, 50 S.D. 150, 208 N.W. 782, 783 (1926). This power

“should always be exercised when any irremediable injury may result . . . .”

Merrimack River Sav. Bank v. City of Clay Ctr., 219 U.S. 527, 534-35, 31 S. Ct. 295,

296, 55 L. Ed. 320 (1911). Failure to preserve the status quo in the present

situation would obviously result in an irremediable injury. Numerous death

penalty cases have emphasized the uniqueness of the death penalty because of its

finality. See, e.g., Piper v. Weber, 2009 S.D. 66, ¶ 19, 771 N.W.2d at 359-60 (“the

finality of a death sentence requires that we accord higher scrutiny to capital

sentencing determinations.”) (citing California v. Ramos, 463 U.S. 992, 998-99, 103

S. Ct. 3446, 3452, 77 L. Ed. 2d 1171 (1983)).

[¶10.]       Robert’s interpretation would lead to an absurd result. “[W]e have an

obligation to interpret law in a manner avoiding ‘absurd results . . . .’” Murray v.

Mansheim, 2010 S.D. 18, ¶ 7, 779 N.W.2d 379, 382. This Court is statutorily

required to conduct a review of the death sentence. SDCL 23A-27A-9. Without the

authority to prevent execution of the defendant, this Court could not delay the

execution to allow appropriate time to conduct that review. The death penalty

statutes require the circuit court, after the sentence of death is imposed, to sign a

warrant of execution. SDCL 23A-27A-15. This document must set forth a week

during which the execution shall be completed. Id. Pursuant to statute, the week

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#26213

of execution must be between six and eight months from the date the sentence is

determined. SDCL 23A-27A-17. Proceedings under the capital sentencing statutes

are to be conducted in accordance with other applicable rules of appellate procedure.

SDCL 23A-27A-11. The practicalities of abiding by the rules of appellate procedure

do not allow for the mandatory sentence review to be effectively completed within

such a short time period.4 Had the Legislature intended for different procedural

rules to apply to this Court’s mandatory sentence review, it would have provided

those rules. See, e.g., SDCL 23A-27A-9 (providing rules for transmittal of the trial

court record to the Supreme Court when no notice of appeal is filed).

[¶11.]         “Where a statute can be construed so as not to violate the constitution,

we will adopt such a construction.” State v. Piper, 2006 S.D. 1, ¶ 50, 709 N.W.2d

783, 804 (internal quotation marks and citations omitted). Robert’s position fails to

recognize the constitutional significance of this Court’s sentence review obligation.

Meaningful appellate review is an important component to the constitutional


4.       In a typical appeal, briefing schedules are triggered by completion of the
         transcripts. By statute, court reporters have 45 days from the date they
         endorse the order for transcripts to prepare the transcripts. SDCL 15-26A-
         51. The order for transcripts may not come until ten days after the notice of
         appeal is filed. SDCL 15-26A-48. In a criminal appeal, the notice of appeal
         must be filed within 30 days of the date the judgment is signed, attested and
         filed. SDCL 23A-32-15. In this case, the order for transcripts was signed by
         the trial court after Robert’s 30-day period for filing a notice of appeal
         expired. Appellant’s brief is due 45 days from the date the completed
         transcript is sent to appellant’s attorney. SDCL 15-26A-75. Appellee’s brief
         is then due 45 days from the day appellant’s brief is served, and the reply
         brief 15 days from the date appellee’s brief is served. Id. Without any
         extensions, a typical appeal becomes ready for review 150 days after the
         order for transcripts is filed, which usually occurs a month after the sentence
         is imposed. This does not consider the necessity of scheduling and hearing
         oral argument, or take into consideration any time for this Court to draft,
         circulate, and vote on an opinion.
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#26213

imposition of the death penalty. In 1972, the United States Supreme Court

“concluded that capital punishment, as then administered under statutes vesting

unguided sentencing discretion in juries and trial judges, had become

unconstitutionally cruel and unusual punishment. The death penalty was being

imposed so discriminatorily, so wantonly and freakishly, and so infrequently, that

any given death sentence was cruel and unusual.” Pulley v. Harris, 465 U.S. 37, 44,

104 S. Ct. 871, 876, 79 L. Ed. 2d 29 (1984) (citing Furman v. Georgia, 408 U.S. 238,

92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972)). In response, two-thirds of states enacted

capital sentencing schemes aimed at “limit[ing] jury discretion and avoid[ing]

arbitrary and inconsistent results.” Id. Georgia was one of those states. Four

years after Furman, the United States Supreme Court upheld the Georgia capital

punishment statutory scheme. See id. (citing Gregg v. Georgia, 428 U.S. 153, 96 S.

Ct. 2909, 49 L. Ed. 2d 859 (1976)). The South Dakota capital punishment scheme,

adopted in 1979, is “nearly identical” to Georgia’s. State v. Rhines, 1996 S.D. 55, ¶

75, 548 N.W.2d 415, 437.

[¶12.]       The issue in Pulley was whether comparative proportionality review of

a capital sentence is required by the United States Constitution. Pulley, 465 U.S at

43-44, 104 S. Ct. at 876. The Supreme Court held that it is not. Id. at 46, 104 S. Ct.

at 877. But the Pulley majority distinguished mandatory comparative

proportionality review from appellate review. “While emphasizing the importance

of mandatory appellate review under the Georgia statute, . . . we did not hold that

without comparative proportionality review the statute would be unconstitutional.”

Id. at 50, 104 S. Ct. at 879 (citing Zant v. Stephens, 462 U.S. 862, 876, 103 S. Ct.

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2733, 2742, 77 L. Ed. 2d 235 (1983)). The concurrence noted the value placed on

appellate review in the decisions upholding death penalty statutes. “The statutes

we have approved in Gregg, Proffitt, and Jurek were designed to eliminate each of

these defects. Each scheme provided an effective mechanism for categorically

narrowing the class of offenses for which the death penalty could be imposed and

provided special procedural safeguards including appellate review of the sentencing

authority’s decision to impose the death penalty.” Id. at 55, 104 S. Ct. at 882

(Stevens, J., concurring in part and concurring in judgment) (referring to the capital

punishment schemes of Georgia, Florida, and Texas).5 The United States Supreme

Court has not gone so far as to hold that a capital punishment scheme without

mandatory appellate review is constitutionally flawed.6 But the value placed on

meaningful appellate review as a protection against unconstitutional imposition of

the death penalty is clear. “To summarize, in each of the statutory schemes

approved in our prior cases, as in the scheme we review today, meaningful appellate

review is an indispensable component of the Court’s determination that the State’s




5.    The same day the Supreme Court handed down Gregg (July 2, 1976), the
      Court also upheld the capital punishment schemes of Florida and Texas. See
      Proffitt v. Florida, 428 U.S. 242, 96 S. Ct. 2960, 49 L. Ed. 2d 913 (1976);
      Jurek v. Texas, 428 U.S. 262, 96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976).

6.    The United State Supreme Court denied certiorari in a federal case where
      the Third Circuit Court of Appeals held that appellate review of a death
      sentence was not constitutionally required. See United States v. Hammer,
      226 F.3d 229 (3d Cir. 2000), cert. denied, 532 U.S. 959, 121 S. Ct. 1488, 149 L.
      Ed. 2d 375 (2001) and cert. denied, 534 U.S. 831, 122 S. Ct. 75, 151 L. Ed. 2d
      40 (2001) (holding that appellate review of a death sentence imposed under
      the Federal Death Penalty Statute was not required).

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capital sentencing procedure is valid.” Id. at 59, 104 S. Ct. at 884 (Stevens, J.,

concurring in part and concurring in judgment).

[¶13.]         According to Robert’s interpretation of the capital punishment scheme,

his execution would be required at the time provided by the death warrant, even if

that occurred before this Court completed its appellate review of the sentence.

Therefore, Robert could likely be executed without a review of the sentence, or on

the basis of appellate review conducted in such an abbreviated fashion as to

question its validity.7 From the authority outlined above, application of the capital

punishment statutes in this manner would be constitutionally problematic. “[I]f a

State wishes to authorize capital punishment it has a constitutional responsibility

to tailor and apply its law in a manner that avoids the arbitrary and capricious

infliction of the death penalty.” Godfrey v. Georgia, 446 U.S. 420, 428, 100 S. Ct.

1759, 1764, 64 L. Ed. 2d 398 (1980) (plurality opinion) (citations and quotation

marks omitted).

[¶14.]         This Court has “note[d] that the United States Supreme Court has

approved a state capital punishment scheme that is nearly identical to South

Dakota’s death penalty laws.” Rhines, 1996 S.D. 55, ¶ 75, 548 N.W.2d at 437. If

our capital punishment statutes are interpreted to allow for imposition of the death

penalty without “meaningful appellate review” of the sentence, relying on the

United States Supreme Court’s approval of the Georgia scheme may no longer be

constitutionally valid. As stated by the concurrence in Pulley, “[w]hile the Court did


7.       To be distinguished are instances where the appellant takes his own life
         during the appeals process prior to the issuance of an opinion. State v.
         Anderson, 2003 S.D. 65, 664 N.W.2d 48.
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not focus on the comparative review element of the scheme in reaffirming the

constitutionality of the Georgia statute, appellate review of the sentencing decision

was deemed essential to upholding its constitutionality.” Pulley, 465 U.S. at 58, 104

S. Ct. at 884 (Stevens, J., concurring in part and concurring in the judgment).

Under Robert’s theory, the constitutional validity of South Dakota’s capital

punishment scheme, as applied, may not be sustainable.

                                       CONCLUSION

[¶15.]       Robert’s position interprets “appeal” to not include the present

statutory sentence review. This interpretation ignores that section of the South

Dakota Constitution article V, § 5 that grants this Court “appellate jurisdiction as

may be provided by the Legislature.” That interpretation is also not required by the

plain language of SDCL 23A-27A-21, and would lead to an absurd result.

Additionally, such a reading flies in the face of this Court’s inherent authority to

preserve the status quo pending appellate review. Robert’s position is also not

consistent with the constitutional analysis of the United States Supreme Court. It

would, in essence, result in a post mortem opinion with but a pyrrhic victory for a

successful appellant upon reversal. For all of the above reasons the Motion to

Vacate is denied.

[¶16.]       KONENKAMP, ZINTER, SEVERSON, Justices, and MILLER, Retired

Justice, concur.

[¶17.]       MILLER, Retired Justice, sitting for WILBUR, Justice, disqualified.




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