#27918-a-GAS

2017 S.D. 14

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

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

      v.

MARVIN RICHARD BINGHAM,                   Defendant and Appellant.

                                 ****

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE FIFTH JUDICIAL CIRCUIT
                    BROWN COUNTY, SOUTH DAKOTA

                                 ****

                     THE HONORABLE TONY L. PORTRA
                                Judge

                                 ****


MARTY J. JACKLEY
Attorney General

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


CHRISTOPHER D. DOHRER
Aberdeen, South Dakota                    Attorney for defendant
                                          and appellant.



                                 ****
                                          CONSIDERED ON BRIEFS
                                          MARCH 22, 2017
                                          OPINION FILED 04/12/17
#27918

SEVERSON, Justice

[¶1.]        Marvin Bingham pleaded guilty to sexual contact with a child under

the age of sixteen, which carries a mandatory minimum sentence of ten years. The

circuit court sentenced Bingham to ten years imprisonment. On appeal, Bingham

asserts that the mandatory minimum sentence under SDCL 22-22-1.2 allows the

court to suspend part of the sentence or give him a probationary sentence. We

affirm.

                                       Analysis

[¶2.]        On December 29, 2015, Bingham pleaded guilty to sexual contact with

a child under the age of sixteen, in violation of SDCL 22-22-7. On June 3, 2016, the

circuit court sentenced Bingham to ten years in the penitentiary. SDCL 22-22-1.2

provides:

             If any adult is convicted of any of the following violations, the
             court shall impose the following minimum sentences:

             (1) For a violation of subdivision 22-22-1(1), fifteen years for a
                 first offense; and

             (2) For a violation of § 22-22-7 if the victim is less than thirteen
                 years of age, ten years for a first offense.

The second subdivision applies to Bingham. At sentencing, Bingham asked that the

court impose a “period of probation” or suspend execution of any penitentiary

sentence. The circuit court indicated that it was unsure whether the statute

allowed such a result or not. Bingham asserts the same arguments to this Court on

appeal and asks that this Court remand for resentencing to allow the court to

consider probation or a suspended execution of sentence.



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[¶3.]         Normally, we review a sentence for an abuse of discretion. See State v.

Orr, 2015 S.D. 89, ¶ 3, 871 N.W.2d 834, 835. However, this case presents a

question of statutory interpretation, which we review de novo. See State v. Liaw,

2016 S.D. 31, ¶ 8, 878 N.W.2d 97, 100. “When the language in a statute is clear,

certain and unambiguous, there is no reason for construction, and the Court’s only

function is to declare the meaning of the statute as clearly expressed.” Hayes v.

Rosenbaum Signs & Outdoor Advert., Inc., 2014 S.D. 64, ¶ 28, 853 N.W.2d 878, 885

(quoting Martinmaas v. Engelmann, 2000 S.D. 85, ¶ 49, 612 N.W.2d 600, 611).

[¶4.]         In this case, the minimum sentence provided for in the statute clearly

means a term of imprisonment. This Court has previously understood a minimum

sentence to refer to a term of imprisonment. In State v. Miller, 2006 S.D. 54, ¶ 1,

717 N.W.2d 614, 616, the defendant was convicted on two counts of sexual contact

with a child under the age of sixteen. The sentencing court in Miller refused to

impose the mandatory minimum sentence because the defendant had not been

informed of the mandatory minimum sentence when he pleaded not guilty. Id. ¶ 5,

717 N.W.2d at 617. We determined that the court erred but found the error

harmless because “Miller [still] received an effective sentence of ten years, which is

the same amount of prison time he would have received had the circuit court

imposed two consecutive five-year mandatory minimums.” 1 (Emphasis added.).




1.      The mandatory minimum sentence of imprisonment at the time relevant to
        Miller was five years rather than ten. The Legislature amended SDCL 22-
        22-1.2 in 2006 and increased the minimum sentence in both subsections (1)
        and (2). See 2006 S.D. Sess. Laws ch. 121, § 1.

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#27918

[¶5.]        Bingham attempts to distinguish the language in SDCL 22-22-1.2 from

other statutes that impose mandatory minimum sentences of imprisonment.

Bingham notes that other statutes that impose mandatory minimums, such as

SDCL 22-6-1.2 (subsequent felony sex crime) and 22-42-3, -7, and -19 (controlled

substances), include language such as “minimum sentence of imprisonment” or

“sentence in the state penitentiary.” Thus, according to Bingham, the absence of

such language in SDCL 22-22-1.2 indicates intent by the Legislature to allow a

sentence other than imprisonment. Bingham also points out that other statutes

explicitly prohibit or permit the court to suspend a mandatory minimum sentence

or grant probation. See SDCL 22-6-1.2 (emphasis added) (“The court may suspend

a portion of the prison sentence required under this section.”); SDCL 22-42-2

(emphasis added) (“A first conviction under this section shall be punished by a

mandatory sentence in the state penitentiary of at least one year, which sentence

may not be suspended. Probation, suspended imposition of sentence, or suspended

execution of sentence may not form the basis for reducing the mandatory time of

incarceration required by this section.”). Again, because SDCL 22-22-1.2 is silent,

Bingham believes that it must allow suspension or a probationary term.

[¶6.]        Bingham’s arguments are unconvincing. The absence of legislative

permission or prohibition in this statute cannot be construed as indicating a default

position of permission to grant probation or suspend a sentence under SDCL 22-22-

1.2. This is because the Legislature has been inconsistent and expressly done

both—it has granted express permission to suspend a mandatory minimum

sentence and prohibited the same. In addition, SDCL 22-22-1.4 provides that a


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#27918

court may impose a sentence other than that which is required by SDCL 22-22-1.2

“if the court finds that mitigating circumstances exist which require a departure

from the mandatory sentence[.]” 2 See Hayes, 2014 S.D. 64, ¶ 28, 853 N.W.2d at 886

(“Since statutes must be construed according to their intent, the intent must be

determined from the statute as a whole, as well as enactments relating to the same

subject.”). If the court were already free to impose probation or suspend all or part

of the minimum sentence, then there would be no need for the statute allowing for

mitigating circumstances and requiring that they be in writing.

[¶7.]         Furthermore, Bingham has failed to provide an example of any place

within our laws that imposes a required amount of time on probation. Nor has he

indicated that any other state has a law that requires a “minimum sentence” with

respect to a term of probation. It was not until 2013 that the South Dakota

Legislature indicated that probation may be a sentence. See SDCL 22-6-11 (“The

sentencing court shall sentence an offender . . . to a term of probation. . . . The

sentencing court may impose a sentence other than probation[.]”). And “[t]his

[C]ourt has ruled that probation is an alternative to sentencing, not an actual

sentence.” State v. Macy, 403 N.W.2d 743, 745 (S.D. 1987). Accordingly, we are

unconvinced that the minimum sentence in SDCL 22-22-1.2 allows for a term of




2.      SDCL 22-22-1.4 provides in full:
        The sentencing court may impose a sentence other than that which is
        required by §§ 22-22-1.2 and 22-6-1.2 if the court finds that mitigating
        circumstances exist which require a departure from the mandatory sentence
        imposed by § 22-22-1.2 or 22-6-1.2. The court’s finding of mitigating
        circumstances and the factual basis relied upon by the court shall be in
        writing.

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probation rather than incarceration. The term “minimum sentences” in SDCL 22-

22-1.2 refers to required prison terms. We affirm.

[¶8.]        GILBERTSON, Chief Justice, and ZINTER, WILBUR and KERN,

Justices, concur.




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