#27909-a-LSW
2017 S.D. 24


                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA
                                 ****

STATE OF SOUTH DAKOTA,                    Plaintiff and Appellee,

      v.

STEVEN R. DUNCAN,                         Defendant and Appellant.


                                 ****

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE SECOND JUDICIAL CIRCUIT
                    LINCOLN COUNTY, SOUTH DAKOTA

                                 ****

                       THE HONORABLE JOHN SOGN
                                Judge

                                 ****

MARTY J. JACKLEY
Attorney General

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


RACHEL R. RASMUSSEN of
Peterson, Stuart, Rumpca
 & Rasmussen, Prof. LLC
Beresford, South Dakota                   Attorneys for defendant
                                          and appellant.

                                 ****

                                          CONSIDERED ON BRIEFS
                                          APRIL 24, 2017
                                          OPINION FILED 05/10/17
#27909

WILBUR, Justice

[¶1.]        Defendant appeals the circuit court’s conclusion that the State did not

violate the 180-day rule. We affirm.

                                    Background

[¶2.]        Law enforcement officers arrested Steven Ray Duncan in Lincoln

County, South Dakota, and placed him in the Minnehaha County Jail on September

4, 2015, after he crashed his vehicle into the vehicle ahead of him at a stop sign. He

was charged with vehicular battery, driving under the influence (DUI), driving

under revocation, open container in a motor vehicle, and following too closely. On

September 8, 2015, while Duncan remained in custody, the Lincoln County State’s

Attorney filed a formal complaint against him in circuit court alleging that he

committed the above-listed offenses, which included one felony and five

misdemeanors. The circuit court, in Duncan’s absence, reviewed the complaint and

accompanying traffic citations. The court issued a determination that probable

cause supported his arrest and detention. The court also set his bond for release at

$5,000 cash. Duncan did not post bond.

[¶3.]        On September 12, 2015, a Lincoln County grand jury indicted Duncan

on one count of vehicular battery, alternate counts of DUI, and one count of driving

under revocation. The State filed a part II information to enhance the DUI charge

from a class 1 misdemeanor to a class 4 felony, alleging that he had five prior DUI

convictions. Duncan remained in custody.

[¶4.]        On October 5, 2015, Duncan first appeared before the circuit court for

his arraignment on the indictment. The court advised him of his constitutional


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rights, amended his bond, entered a scheduling order, and set an initial trial date

for December 9, 2015. The State requested and received three continuances.

Duncan never waived his right under SDCL 23A-44-5.1 to be brought to trial within

180 days. On March 3, 2016, the court entered an order for the trial to start March

15, 2016.

[¶5.]        Prior to the start of trial on March 15, Duncan moved to dismiss the

charges against him for the State’s failure to bring him to trial within 180 days. He

argued that although he did not appear before the circuit court on September 8,

2015, he constructively appeared when the circuit court conducted a paper review of

his case and set bond for his release. Counsel claimed that Duncan operated under

the belief that 180 days began on September 8, 2015. The circuit court took the

matter under advisement, indicating however that “at this time” it would deny his

motion to dismiss.

[¶6.]        At the conclusion of the trial, Duncan again moved the circuit court to

dismiss the charges based on the State’s violation of the 180-day rule. He conceded

that he did not appear before a judicial officer on the complaint against him. But he

argued that based on certain rules governing a defendant’s right to be brought

before a committing magistrate and a right to a preliminary hearing, his

constructive appearance constituted his first appearance before a judicial officer for

purposes of the 180-day rule. In particular, he emphasized that he had a right to be

brought before a committing magistrate within 48 hours of his arrest under SDCL

23A-4-1 (Rule 5(a)). He then referred the court to SDCL 23A-4-3 (Rule 5(c)), which

provides that the committing magistrate shall inform the defendant (charged with a


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felony) of certain rights, including the right to a preliminary hearing. Based on the

language of these statutes, counsel for Duncan argued that the State cannot “have

it both ways.” The State cannot claim that his first appearance was October 5 for

purposes of the 180-day rule while at the same time argue that his initial

appearance was September 8 for purposes of calculating the date of his right to a

preliminary hearing.

[¶7.]        The circuit court again denied Duncan’s motion to dismiss. The court

said that the 180-day rule and his right to a preliminary hearing were separate and

independent issues. The court concluded that under the plain language of SDCL

23A-44-5.1, 180 days did not begin to run until the date Duncan first appeared

before a judicial officer. It was undisputed that he first appeared before a judicial

officer on October 5, 2015. So the court held that the State did not violate the 180-

day rule. On the issue of Duncan’s right to be brought before a committing

magistrate and right to a preliminary hearing, the court also denied his motion to

dismiss.

[¶8.]        The jury found Duncan not guilty of vehicular battery and guilty of

DUI and following too closely. In a subsequent trial on the part II information, the

jury found that he was the same person convicted of DUI on five prior occasions.

The court sentenced Duncan to ten years in the penitentiary for the sixth-offense

DUI.

[¶9.]        Duncan appeals, asserting that the circuit court erred when it denied

his motion to dismiss for the State’s violation of the 180-day rule in SDCL 23A-44-

5.1.


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                                 Standard of Review

[¶10.]       Although we review a court’s findings of fact for clear error, we review

de novo whether the State violated the 180-day rule. State v. Seaboy, 2007 S.D. 24,

¶ 6, 729 N.W.2d 370, 372.

                                      Analysis

[¶11.]       Duncan asks this Court to reexamine its decisions in State v.

Sorensen, 1999 S.D. 84, 597 N.W.2d 682, and State v. Hetzel, 1999 S.D. 86, 598

N.W.2d 867. In those cases, we held that a defendant’s first appearance for

purposes of the 180-day rule occurs when a defendant first appears before a judicial

officer. Hetzel, 1999 S.D. 86, ¶¶ 10-11, 598 N.W.2d at 869; Sorensen, 1999 S.D. 84,

¶¶ 14-15, 597 N.W.2d at 684. Both decisions were split, and the dissenting opinions

argued that a defendant’s first appearance occurs when a defendant constructively

appears before a judicial officer. Duncan asks this Court to adopt the view that a

constructive appearance constitutes a first appearance under SDCL 23A-44-5.1 so

that clarity can exist as to when the 180-day period commences. Duncan also

argues that such interpretation will eliminate the opportunity for the State “to

delay filing a formal charging document to extend the 180-day rule.”

[¶12.]       The language of SDCL 23A-44-5.1 is clear and unambiguous, and

Sorensen and Hetzel provide sufficient clarity as to what constitutes a first

appearance under SDCL 23A-44-5.1. A defendant must appear before a judicial

officer before the 180-day period commences. Neither Sorensen nor Hetzel adopted

any exceptions to that interpretation. Here, Duncan did not appear before a judicial




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officer until October 5, 2015. The circuit court did not err when it held that the 180-

day period commenced on October 5, 2015.

[¶13.]       Duncan, however, alternatively claims that the circumstances of this

case are distinguishable from Sorensen and Hetzel. He emphasizes that he was in

custody for 32 days before being brought before a judicial officer, unlike Sorensen

and Hetzel who were released on bond. Duncan also directs this Court to the fact

that the State filed a formal charging document against him on September 8, in

contrast to no formal charging documents being filed in Sorensen and Hetzel.

[¶14.]       In Sorensen, both defendants were arrested without warrants. A lay

magistrate judge set bond in the defendants’ absences and signed orders releasing

both on bond. 1999 S.D. 84, ¶¶ 2-3, 597 N.W.2d at 683. The State did not file a

criminal complaint against either defendant. Over one month later, a grand jury

indicted both defendants, and they personally appeared before a judicial officer on

the indictments. We recognized that the 180-day rule “creates a right to disposition

of a criminal case within 180 days unless good cause may be shown for delay.” Id. ¶

12. We also noted that “[t]he 180-day rule is a procedural rule of court and not a

constitutional requirement.” Id. There are two requirements “for the 180-day

period to commence: 1) the defendant appears on a charging document; and 2)

before a judicial officer.” Id. ¶ 14. Because the rule is unambiguous and provides

that the 180-day period commences when a defendant makes a first appearance on

a charging document before a judicial officer, we held that the 180-day rule

commenced when the defendants appeared before the judicial officer on the

indictments. Id. ¶ 15.


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[¶15.]       Similarly, in Hetzel, the defendant was arrested and detained on bond.

1999 S.D. 86, ¶ 2, 598 N.W.2d at 867. The next day, Hetzel was released on bond

but did not appear before a judicial officer. The State never filed a formal

complaint. Instead, a grand jury indicted Hetzel, and Hetzel appeared before a

judicial officer on the indictment. Id. ¶ 4. We referred to Sorensen and held that

the 180-day period commenced when Hetzel appeared before a judicial officer on the

indictment and not when the State should have filed a complaint. Id. ¶ 11.

[¶16.]       Here, neither the fact the State filed a formal charging document

against Duncan nor that Duncan remained in custody for 32 days prior to appearing

before a judicial officer requires a different interpretation of SDCL 23A-44-5.1. As

we said in Sorensen, “[t]he 180-day rule is a procedural rule of court and not a

constitutional requirement.” 1999 S.D. 84, ¶ 12, 597 N.W.2d at 684. It has two

requirements before the time period commences: “1) the defendant appears on a

charging document; and 2) before a judicial officer.” Id. ¶ 14.

[¶17.]       Yes, the State’s complaint filed on September 8, 2015, qualifies as a

charging document. But Duncan did not appear before a judicial officer on that

charging document. He appeared before a judicial officer on the indictment on

October 5, 2015. Therefore, the circuit court did not err when it denied Duncan’s

motion to dismiss.

[¶18.]       Affirmed.

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

Justices, concur.




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