#28407-a-GAS, JMK
2018 S.D. 59

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA


                                 ****

STATE OF SOUTH DAKOTA,                    Plaintiff and Appellee,

      v.

SHAWN RAYNARD ROSS,                       Defendant and Appellant.


                                 ****

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

                                 ****

                  THE HONORABLE BRUCE V. ANDERSON
                               Judge

                                 ****

MARTY J. JACKLEY
Attorney General

GRANT FLYNN
Assistant Attorney General
Pierre, South Dakota                      Attorneys for plaintiff
                                          and appellee.

DOUGLAS N. PAPENDICK of
Stiles, Papendick & Kiner
Mitchell, South Dakota                    Attorneys for defendant
                                          and appellant.


                                 ****

                                          ARGUED ON APRIL 17, 2018
                                          OPINION FILED 07/25/18
#28407

SEVERSON, Retired Justice, and KERN, Justice.

[¶1.]        After the defendant pleaded guilty to third-degree burglary as part of a

plea agreement, the court sentenced the defendant to five years in prison with three

and one-half years suspended. The defendant left counsel’s table accompanied by

the sheriff. Before exiting the courtroom, the defendant made an obscene hand

gesture toward the court. The court summoned the defendant back to counsel’s

table and resentenced him, imposing the entire five-year term. Before the court

entered a judgment of conviction, the defendant filed a pro se motion for

resentencing. The court entered a judgment of conviction but also granted a

resentencing hearing. After the hearing, the court imposed a 60-month sentence

with 40 months suspended. The defendant appeals, asserting that the sentencing

court was without authority to increase his punishment beyond the court’s initial

sentence of five years with three and one-half years suspended. We affirm.

                                   Background

[¶2.]        On February 17, 2017, the Brule County Grand Jury indicted Shawn

Ross on one count of third-degree burglary in violation of SDCL 22-32-8 and one

count of intentional damage to property in violation of SDCL 22-34-1(2). Ross

pleaded not guilty. Thereafter, the State and Ross entered into a plea agreement.

At a hearing on May 16, 2017, pursuant to the plea agreement, Ross pleaded guilty

to third-degree burglary and agreed to pay $2,887.21 in restitution. The circuit

court accepted Ross’s plea and set a sentencing hearing for June 13, 2017.

[¶3.]        At the sentencing hearing, Ross represented himself, although the

sentencing court appointed advisory counsel. Before imposing sentence, the court


                                         -1-
#28407

relayed that it had previously accepted Ross’s plea, found a factual basis to support

the plea, and ordered a presentence investigation (PSI). The court asked Ross if he

had reviewed the PSI. Ross replied that he reviewed it and had nothing to add or

change. He also agreed that the PSI contained “all the information the [c]ourt

needs to know in sentencing [him] today[.]” The State did not offer evidence in

aggravation, and Ross did not present evidence in mitigation. Ross also chose not to

make a statement. The transcript indicates that advisory counsel whispered to

Ross. Thereafter, Ross requested and received credit for time served. Counsel

again whispered to Ross, and Ross asked the court to waive the fine and costs,

which the court granted.

[¶4.]        After addressing those preliminary matters, the court asked whether

either party was “aware of any just or legal cause why sentencing cannot be

pronounced?” Ross and the State responded in the negative. The court continued:

                    All right. Mr. Ross, you have a pretty extensive record.
             You’ve done some federal time and some state time before. This
             again is another serious felony offense. So it requires some
             prison time, but it’s not the crime of the century. And I don’t
             look at it as such.
                    So what the [c]ourt’s ordering is that due to your financial
             situation, I find hardship. There will be no fines or costs
             ordered.
                   I’m ordering you to serve five years in the South Dakota
             State Penitentiary, there to be fed, kept, and clothed in
             accordance with the rules governing said institution. I’m
             suspending three and a half years. I’m giving you credit for 133
             days served.
                    I’m not too sure where your parole eligibility percentage
             falls. I suspect that you may be eligible for parole the day you
             step into prison. But you’ve been there before, so you probably
             know more about the 60-day minimum rule. And that’s really
             what I’m looking at, if there’s a few extras, that’s fine. But I
             think that’s an appropriate sentence.
                                         -2-
#28407

                    I’m ordering that as a condition of your parole, you will
             pay restitution of $2,887.21 to the victim as laid out in the PSI.
             That’ll be spread out in the judgment, Mr. Natvig, as far as the
             name.
                    You’ll be remanded to the custody of the sheriff for
             execution of the sentence. You’ll probably be transported later
             this week. And like I said, I don’t think it’s a very long sentence.
             I consider you to have substantially served the sentence already
             in the county jail, so I am not trying to add a bunch more on to
             that, okay?
             Defendant: Yeah, well, I, I’ll be doing way more time than that.
             Court: Why?
             Defendant: Because of the percentage of the, percentage of
             when you go to jail, when you go to prison you got - - I have two
             felonies, prior felonies. This will make it I’ll have to do 45, 50
             percent after that, credit after that time.
             Court: So the year and a half - -
             Defendant: Yep.
             Court: - - and then credit? It’s still not that long.
             Defendant: I’m still going to do another six, seven months.
             Court: Well. That’s my sentence. That concludes the matter.

The transcript indicates that Ross left counsel’s table. It is undisputed that Ross

left counsel’s table with the deputy sheriff.

[¶5.]        After Ross left counsel’s table, counsel for the State and counsel

advising Ross each asked the sentencing court a question. Although Ross was

representing himself, counsel advising Ross asked the court, “Judge, is there a

certain amount - - never mind - - probationary period, or?” The following exchange

occurred:

             Court: It’s prison. It’s for parole.
             Counsel advising Ross: Parole, okay.
             Court: Yep. It’s five years total. They can cut him short if they
             decide that’s necessary.
             Counsel advising Ross: Okay. Thank you.

                                           -3-
#28407

             State: Court appointed attorney fees?
             Court: He’s ordered to repay the Court appointed attorney fees.

[¶6.]        Thereafter, the court said, “What? Wait. Did you just flip me off?

Stop.” The following exchange transpired:

             Deputy Sheriff: Ross (indicating).
             Court: Stop. Did you just flip me off?
             Defendant: I don’t know what, you seen what I did.
             Court: Did you? Sit down. Come back here and sit down
             (indicating). Right now. (The Defendant complies.)
             Court: For the record, the [c]ourt observed Mr. Ross flip [it] the
             bird as he was leaving the courtroom. For that reason, the
             [c]ourt is modifying its sentence. The [c]ourt is reimposing the
             three and a half years suspended. It’s five years in prison.
             Defendant: Thank you. I’ll get my day, same to you.
             Court: For that I’m holding you in contempt of court. You’ll be
             held in the Brule County jail for 30 days before you go and start
             your prison without any credit.
             Defendant: Well give me a year, I don’t care. Do what you got
             to do.
             Court: Now it’s 60 days in the Brule County jail before you start
             your prison sentence without any credit. Anything more to say?
             Defendant: Uh-huh. I got a lot to say. You’ll hear about it
             when I file, when I file my paperwork.
             Court: File your paperwork.
             Defendant: Uh-huh.
             Court: That’s it. Take him to jail immediately.

The deputy sheriff escorted Ross out of the courtroom.

[¶7.]        On July 11, 2017, Ross, acting pro se, filed a motion to withdraw his

guilty plea and/or appeal his sentence. He also filed a motion for resentencing. The

court had not yet entered a judgment of conviction on the charge of third-degree

burglary. The court also had not yet entered an order on the contempt charge. On

July 20, the circuit court issued findings of fact and conclusions of law and an order
                                          -4-
#28407

of contempt. The court ordered that Ross “serve an additional 30 days in the Brule

County Jail for contempt of court [in] accordance with SDCL 23A-38-1.” The court

also entered a judgment of conviction on the charge of third-degree burglary and

imposed a five-year sentence.

[¶8.]        In regard to Ross’s pro se motions, the court denied Ross’s motion to

withdraw his guilty plea. The court granted Ross’s motion for resentencing. In the

order granting the request to be resentenced, the court cited SDCL 23A-27-19 as

authority to modify Ross’s sentence. The court concluded that Ross “should be

allowed another opportunity with substitute counsel to present his case for a

possible different sentence.” On August 14, 2017, the court appointed counsel to

represent Ross.

[¶9.]        On September 5, 2017, the court held a resentencing hearing. Ross

appeared with court-appointed counsel. The court recognized that Ross had

submitted a letter of apology and that the court accepted the apology. During the

hearing, counsel for Ross argued that the sentencing court was without authority to

increase Ross’s sentence after the court had announced the sentence and remanded

Ross to the custody of the sheriff. Therefore, counsel requested that the court

reimpose the original sentence: five years with three and one-half years suspended.

The court responded that it “thought about giving [Ross] the same time sentence”

but determined that it would not. The court ordered that Ross serve 60 months in

the penitentiary with 40 months suspended and credit for 194 days served. The

court also ordered that Ross reimburse the court appointed attorney fees and pay




                                         -5-
#28407

restitution as previously ordered. The court entered an amended judgment of

conviction imposing the same.

[¶10.]       Ross appeals, and we restate his issues as follows:

             1. Whether the sentencing court improperly increased Ross’s
                sentence.

             2. Whether the sentencing court improperly increased Ross’s
                sentence after the resentencing hearing.

                                      Analysis

KERN, Justice, writing the opinion on Issue 1.

             1. Increased punishment during initial sentencing

[¶11.]       Ross argues that the sentencing court was without authority to

increase his punishment because the court had orally pronounced a valid sentence

and remanded Ross to the custody of the sheriff. Ross directs this Court to our well-

established rule that “[a]s against an unwilling defendant, a valid sentence cannot

be increased in severity after [the defendant] has commenced serving thereof.”

State v. Marshek, 2009 S.D. 32, ¶ 10 765 N.W.2d 743, 746; State v. Ford,

328 N.W.2d 263, 267 (S.D. 1982); accord State v. Jackson, 272 N.W.2d 102, 104

(S.D. 1978); Ex parte Watt, 73 S.D. 436, 445, 44 N.W.2d 119, 124 (1950). In

response, the State asserts that the sentencing court had authority to modify Ross’s

sentence because Ross had not yet commenced serving his sentence when he

gestured obscenely at the circuit-court judge. We note that extending one’s middle

finger “is an obscene or vulgar gesture.” In re Fuller, 2011 S.D. 22, ¶ 20 n.3, 798

N.W.2d 408, 413 n.3.




                                          -6-
#28407

[¶12.]       In Ford, we examined whether a sentencing court could increase an

orally pronounced sentence three days after it was imposed. 328 N.W.2d at 266-67.

On appeal, Ford argued that the sentencing court lacked authority to increase his

sentence because he commenced serving his sentence once he had been remanded to

the custody of the sheriff. Id. at 267. The State responded that Ford had not yet

commenced serving his sentence because Ford had not been transported to the

penitentiary; he was in custody at the county detention center. Id. The State

further argued that the sentencing court’s oral sentence was not a valid judgment

until it became a signed, written judgment. Id.

[¶13.]       We held that a “sentence commences as soon as the prisoner suffers

some confinement in the custody of a sheriff.” Id. In regard to Ford, we recognized

that after the court pronounced its oral sentence, Ford “was immediately remanded

to the custody of the county sheriff and returned to the county detention center

until being transferred to the State Penitentiary.” Id. Therefore, we held that

although Ford had not yet been transferred to the penitentiary, “Ford commenced

serving his sentence immediately after the oral sentence of October 5.” Id. We

further held that Ford commenced serving his sentence even though “the oral

sentence of October 5 was not reduced to a written judgment at that time[.]” Id. at

268.

[¶14.]       In State v. Bucholz, we likewise held invalid an increase in a

defendant’s sentence. 403 N.W.2d 400, 403 (S.D. 1987). In Bucholz, the sentencing

court had imposed its sentence and remanded Bucholz to the custody of the sheriff

at the close of the sentencing hearing. Id. at 401. Approximately one hour later,


                                         -7-
#28407

the court learned that Bucholz had been seen in a state of intoxication within two

weeks prior to sentencing, contrary to Bucholz’s previous assertions to the court.

Id. In response, the court brought Bucholz back to the courtroom and resentenced

him. Id. at 402. Relying on Ford, we held that the court could not increase

Bucholz’s sentence because Bucholz was in confinement at the time the court

increased his sentence. Id. at 403.

[¶15.]       More recently, in Marshek, we reiterated the law in this State “that

circuit courts may not increase a sentence after it is given and the defendant has

started to serve the sentence.” 2009 S.D. 32, ¶ 11, 765 N.W.2d at 746. On appeal,

Marshek argued that the circuit court imposed a valid sentence when it said, “My

sentence is the plea agreement, okay,” and therefore, could not increase the

sentence during a subsequent sentencing hearing. Id. ¶ 9. But this Court’s review

of the transcript from the sentencing hearing revealed that although the sentencing

hearing had ended and the defendant had left the courtroom in the custody of the

sheriff, the court did not impose its sentence. We determined that the “circuit court

continued proceedings until it was able to obtain additional information about the

character of the defendant and his ability to reimburse the victims for their losses.”

Id. ¶ 12. Therefore, we distinguished the case from Ford and Bucholz and upheld

Marshek’s sentence. Id. ¶¶ 14-16, 765 N.W.2d at 747.

[¶16.]       We also distinguished Ford and Bucholz in Lykken v. Class, 1997 S.D.

29, 561 N.W.2d 302. In Lykken, the sentencing court imposed four separate

sentences but did not state whether the rape and kidnapping sentences were to run

concurrently or consecutively. Id. ¶ 8, 561 N.W.2d at 305. “Within fifteen minutes


                                          -8-
#28407

of the court’s oral pronouncement of this sentence and before any of the parties and

their attorneys had left the courtroom, the trial court reconvened court and

corrected the sentence, stating that the rape and kidnapping sentences were to run

consecutively.” Id. ¶ 9 (footnote omitted). We held that the court’s clarification was

authorized under SDCL 23A-31-2 as a correction of a clerical error. Id. ¶ 10, 561

N.W.2d at 305-06; accord Litschewski v. Dooley, 792 F.3d 1012, 1017 (8th Cir. 2015)

(holding that courts are permitted to correct a clerical error after initial sentencing).

[¶17.]       Several federal appellate courts have examined this question,

analyzing when a sentence becomes binding and concluding that finality attaches to

a district court’s initial sentence when there has been a “break in the proceedings”

but not before. In United States v. Gerezano-Rosales, the Fifth Circuit Court of

Appeals upheld a district court’s change to an orally pronounced sentence made

moments after the initial sentence was imposed. 692 F.3d 393, 397 (5th Cir. 2012).

After the district court orally pronounced the defendant’s sentence, the court

discovered that the defendant spoke English despite representing otherwise. Id. at

396. The district court then doubted other representations made by the defendant

and resentenced the defendant to a greater term of imprisonment. Id. The Fifth

Circuit Court of Appeals held that the district court’s initial “sentence did not

constitute a binding sentence and therefore did not strip the court of jurisdiction to

change its initial formulation” because “there was ‘no formal break in the

proceedings from which to logically and reasonably conclude that sentencing had

finished.’” Id. (quoting United States v. Meza, 620 F.3d 505, 509 (5th Cir. 2010)).




                                           -9-
#28407

[¶18.]       The Ninth Circuit Court of Appeals similarly refused to adopt a

“draconian” rule that “would carve the district court’s initial pronouncement of

sentence in stone, preventing the court from revising the sentence in light of new

developments during the hearing.” United States v. Ochoa, 809 F.3d 453, 458 (9th

Cir. 2015). To conclude otherwise, according to the appeals court, “would strip

district courts of flexibility to respond to evolving circumstances during sentencing

hearings.” Id. Thus, in the Ninth Circuit, a district court has authority to alter a

sentence during the same proceeding. Id.

[¶19.]       Similarly, the Tenth Circuit Court of Appeals considered “the practical

realities of sentencing” and deemed “reasonable” the conclusion that an oral

sentence may be modified so long as “there is ‘no formal break in the proceedings

from which to logically and reasonably conclude that sentencing had finished.’”

United States v. Luna-Acosta, 715 F.3d 860, 865 (10th Cir. 2013) (quoting Meza, 620

F.3d at 509). The court then held that the district court had authority to modify its

sentence from one hearing to the next because there had been no “formal break” in

the proceedings when at the conclusion of the first hearing, the district court

continued sentencing without finalizing all the terms of the sentence. Id. at 866.

[¶20.]       We adopt the view that each case must be resolved individually by

examining whether there was a “formal break in the proceedings from which to

logically and reasonably conclude that sentencing had finished.” Gerezano-Rosales,

692 F.3d at 397. Justice Severson’s writing suggests departing from the test

promulgated in Gerezano-Rosales, Ochoa, and Luna-Acosta; instead, it proposes a

bright-line rule that a defendant can be resentenced so long as they remain in the


                                         -10-
#28407

courtroom, but not after. As Justice Severson’s writing observes, a defendant

possesses a “protected expectation of finality in sentencing.” Concurrence ¶ 29. Yet

Justice Severson would hold that an expectation of finality cannot attach until after

the defendant leaves the courtroom. However, such a bright-line rule fails to

account for a defendant’s legitimate expectation of finality.

[¶21.]       Further, Justice Severson’s writing provides insufficient justification

for the creation of a bright-line rule. It claims that “determin[ing] finality on a case-

by-case basis” will “perpetuate uncertainty” and that “the bright-line rule accounts

for the judge’s authority to control the courtroom and affords a judge the ability to

respond to ‘evolving circumstances during sentencing hearings.’” Concurrence ¶ 30.

Justice Severson arrives at this conclusion following “a review of authorities from

other jurisdictions,” id., despite the fact that these courts utilize a case-by-case

approach. Nonetheless, judges do not possess unfettered control over the

courtroom: the contours of the Constitution cabin a judge’s authority. While we

must afford judges flexibility, we cannot do so at the expense of the constitutional

protections afforded to defendants.

[¶22.]       Moreover, as the Wisconsin Supreme Court explained in reaffirming

an approach examining the circumstances of the individual case:

             On the one hand, it is unacceptable for the defendant’s sentence
             to be seen as a work in progress that a circuit court can add to or
             subtract from at will. . . . On the other hand, a circuit court
             should not be tethered in every instance to a sentence that is
             based on a mistake of law, mistake of fact, or inconsistent with
             the court’s intent. “The Constitution does not require that
             sentencing should be a game in which a wrong move by the
             judge means immunity for the prisoner.”



                                          -11-
#28407

State v. Robinson, 847 N.W.2d 352, 364 (Wis. 2014) (citations omitted) (quoting

United States v. DiFrancesco, 449 U.S. 117, 135, 101 S. Ct. 426, 426, 66 L. Ed. 2d

328 (1980)). Thus, the Wisconsin Supreme Court concluded, “[i]n cases such as

these, a bright line rule is simply unworkable,” and a determination whether a

legitimate expectation of finality exists requires an “inquiry that rests largely on

the facts of each individual case.” Id.

[¶23.]       Even if a formal break in the proceedings always results after the

sheriff escorts the defendant out of the courtroom, see State v. Bucholz, 403 N.W.2d

at 403, that does not mean a formal break cannot occur before the defendant crosses

the threshold. See Ford, 328 N.W.2d at 267 (holding that the defendant

“commenced serving his sentence immediately after the oral sentence” (emphasis

added)); Meza, 620 F.3d at 508-09 (distinguishing an unpublished case where “the

modification . . . happened after [the] sentencing judge gaveled the hearing

adjourned”). To hold otherwise overlooks “the practical realities of sentencing.”

Luna-Acosta, 715 F.3d at 865.

[¶24.]       For example, courts often schedule sentencing hearings in a block on

the calendar. Multiple in-custody defendants are transported to the courtroom

together. After an individual defendant has received his sentence, he may be

detained in the courtroom for several hours while other defendants appear before

the court for their scheduled hearing. The attorneys for both the defendant and the

State that are handling the individual case may leave the courtroom after

sentencing while the defendant stays. Thus, the defendant remains not for any

purpose related to sentencing, but for logistical reasons like the availability of


                                          -12-
#28407

deputies to transport prisoners to and from the jail. As Justice Severson observes,

it is true that “[e]xactly what time span is needed between the initial imposition of

the sentence and the modification to create a protected expectation of finality is

unclear.” Wayne R. LaFave, Resentencing by the Trial Judge, 6 Crim. Pro. § 26.7(c)

(4th ed.) (December 2017 update). However, a bright-line rule will not account for

the many scenarios that could lead a defendant to “reasonably conclude that

sentencing had finished.” Gerezano-Rosales, 692 F.3d at 397.

[¶25.]       In the present case, the court announced, “Well. That’s my sentence.

That concludes the matter.” The sheriff subsequently led Ross away from counsel’s

table. However, counsel remained, seeking clarification about the sentence when

the defendant displayed his obscene gesture. These facts resemble Ochoa. There,

the district court imposed an additional year after noticing the defendant—who the

judge had noted was disrespectful and demonstrated disregard for the law—was

laughing after receiving his sentence while his counsel sought clarification about

whether the defendant’s supervision was terminated. Ochoa, 809 F.3d at 455-56.

The Ninth Circuit Court of Appeals affirmed the lower court’s determination that

there was not yet a formal break in the proceedings. Id. at 459. Rejecting the

defendant’s argument that the court could not reformulate its sentence after orally

pronouncing it, the court stated:

             The rule [defendant] advocates would strip district courts of
             flexibility to respond to evolving circumstances during
             sentencing hearings. Here, for example, [defendant’s] laughter
             signaled to the district court that [defendant’s] lack of interest in
             cooperating with those tasked with his rehabilitation was as
             severe as the court originally contemplated when remarking
             that the recommended sentence of twelve months and a day
             “seem[ed] . . . way too low.”

                                          -13-
#28407

Id. at 458. Like Ochoa, the court here had not dismissed the attorneys. Further,

the court had not called the next case, and Ross had not left the courtroom. Under

these circumstances, no formal break in the proceedings occurred, and Ross could

not logically and reasonably conclude otherwise. Accordingly, the circuit court had

the authority to modify Ross’s sentence.

[¶26.]       ZINTER and JENSEN, Justices, concur.

SEVERSON, Retired Justice, concurring in result on Issue 1.

[¶27.]       Here, the parties do not dispute that the sentencing court intended to

and did impose a valid five-year sentence with three and one-half years suspended.

Indeed, after Ross made certain comments to the court concerning the amount of

time he would have to serve, the court reiterated, “Well. That’s my sentence.” The

court then stated, “That concludes the matter.” Although counsel asked the

sentencing court additional questions, Ross was representing himself and had left

counsel’s table in the custody of the sheriff. Moreover, the questions did not change

the intended finality of the court’s sentence. Therefore, this case is unlike Lykken

or Marshek, and the sentencing court imposed a valid sentence.

[¶28.]       The question, then, is whether Ross commenced serving his sentence

prior to the court’s decision to modify it. It is undisputed that Ross had not yet left

the courtroom, which distinguishes this case from Ford and Bucholz. Likewise, the

court had not adjourned Ross’s sentencing hearing. But in Ford, we said that a

“sentence commences as soon as the prisoner suffers some confinement in the

custody of a sheriff.” 328 N.W.2d at 267. And, here, the court said, “That concludes

the matter,” and Ross left counsel’s table accompanied by a sheriff. Does this mean


                                           -14-
#28407

that Ross commenced serving his sentence? Or would the sheriff need to escort

Ross from the courtroom before Ross suffers confinement?

[¶29.]       As one commentator noted, “[e]xactly what time span is needed

between the initial imposition of sentence and the modification to create a protected

expectation of finality is unclear.” LaFave, supra, at ¶ 24. Long ago, the United

States Supreme Court explained that the protected expectation of finality in

sentencing has its roots in the double jeopardy clause. Ex parte Lange, 85 U.S. 163,

173, 21 L. Ed. 872 (1873). The Court identified that the double jeopardy clause

must “prevent the criminal from being twice punished for the same offence [sic] as

[much as] from being twice tried for it.” Id. Indeed, “[f]or of what avail is the

constitutional protection against more than one trial if there can be any number of

sentences pronounced on the same verdict?” Id. Therefore, a court does not have

the power to increase a defendant’s sentence after an expectation of finality

attaches because “to increase the penalty is to subject the defendant to double

punishment for the same offense in violation of the Fifth Amendment to the

Constitution[.]” United States v. Benz, 282 U.S. 304, 307, 51 S. Ct. 113, 114,

75 L. Ed. 354 (1931).

[¶30.]       From this Court’s past cases and a review of authorities from other

jurisdictions, I would hold that a sentencing court may not, against an unwilling

defendant, increase the severity of a valid sentence after the defendant leaves the

courtroom in the custody of the sheriff. Rather than determine finality on a case-

by-case basis and perpetuate uncertainty, I find persuasive the bright-line rule that

sentencing has concluded when a court imposes a valid sentence and a defendant


                                          -15-
#28407

leaves the courtroom in the custody of the sheriff. Indeed, it is clear that a

defendant’s expectation of finality attaches and double jeopardy protections are

implicated at that point. See id. Moreover, the bright-line rule accounts for the

judge’s authority to control the courtroom and affords a judge the ability to respond

to “evolving circumstances during sentencing hearings.” See Ochoa, 809 F.3d at

458. Because, here, the sentencing court altered its original sentence before Ross

had left the courtroom in the custody of the sheriff, Ross’s expectation of finality

had not attached, and the circuit court did not violate Ross’s right to be free from

double jeopardy.

[¶31.]       GILBERTSON, Chief Justice, concurs.

SEVERSON, Retired Justice, writing the opinion on Issue 2.

             2. Resentencing hearing

[¶32.]       Although the sentencing court had authority to alter Ross’s sentence

during the original sentencing hearing, we must nevertheless address the effect of

the resentencing hearing. Following the first hearing, but before the court issued

its written judgment of conviction, Ross filed a pro se “motion to resentencing notice

of hearing.” On July 21, 2017, the sentencing court issued a written decision

granting Ross’s motion for resentencing. The court cited SDCL 23A-27-19 as

authority.

[¶33.]       At the resentencing hearing on September 5, 2017, counsel for Ross

asserted that the court was without authority at the initial sentencing hearing to

increase Ross’s punishment. The court disagreed, asserting its right to modify the




                                          -16-
#28407

sentence “when somebody flips the bird to the [c]ourt.” Counsel requested that the

court hand down the original sentence it had imposed.

[¶34.]       When pronouncing its sentence, the court remarked on its previous

experience with Ross at the magistrate level. The court informed Ross that at the

initial sentencing it had intended to give him a benefit despite Ross being convicted

of a serious charge. The court then explained: “[B]ut you can’t flip any judge the

bird ever. It doesn’t turn out well. And [the court] thought it’s important that that

be pointed out to [Ross] in a very strong way.” The court remarked that it had

“thought about giving [Ross] the same sentence” and decided it would not. The

court also said that it would not impose the maximum punishment of five years.

Based on the court’s history with and knowledge of the defendant along with “what

happened,” the court ordered Ross to serve 60 months in prison with 40 months

suspended.

[¶35.]       Under SDCL 23A-27-19, “[t]he sentencing court retains jurisdiction for

the purpose of suspending any sentence for a period of two years from the effective

date of the judgment of conviction, notwithstanding the fact that the time for an

appeal from such judgment is limited to a shorter period of time.” Because the

sentencing court had the authority—at the initial sentencing hearing—to modify its

orally pronounced sentence and impose a five-year sentence, the court properly

relied on SDCL 23A-27-19 to reduce Ross’s five-year sentence to a sentence of 60

months with 40 months suspended.

[¶36.]       Alternatively, Ross claims that the sentencing court abused its

discretion when it imposed a 60-month sentence with 40 months suspended. It is


                                         -17-
#28407

well established that courts have broad discretion when fashioning an appropriate

sentence. In sentencing the defendant, a court is required to “acquire a thorough

acquaintance with the character and history of the [person] before it.” State v.

Lemley, 1996 S.D. 91, ¶ 12, 552 N.W.2d 409, 412 (quoting State v. Chase in Winter,

534 N.W.2d 350, 354 (S.D. 1995)). From our review, the court did not abuse its

discretion. Because the sentencing court had authority to alter its original sentence

during the initial sentencing hearing and because Ross has not established that the

sentencing court abused its discretion in imposing a sentence of 60 months with 40

months suspended, we affirm.

[¶37.]       GILBERTSON, Chief Justice, and ZINTER, KERN, and JENSEN,

Justices, concur.

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

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




                                         -18-
