#27682-r-SLZ

2016 S.D. 63

                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA

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

      v.

YOLANDA MARIE FLOWERS,                       Defendant and Appellant.


                                    ****

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

                                    ****

                     THE HONORABLE JONI M. CUTLER
                                Judge

                                    ****

MARTY J. JACKLEY
Attorney General

KIRSTEN E. JASPER
Assistant Attorney General
Pierre, South Dakota                         Attorneys for plaintiff
                                             and appellee.


MARK KADI
Minnehaha County
  Public Advocates Office
Sioux Falls, South Dakota                    Attorneys for defendant
                                             and appellant.

                                    ****
                                             CONSIDERED ON BRIEFS
                                             ON AUGUST 29, 2016

                                             OPINION FILED 09/14/16
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ZINTER, Justice

[¶1.]        Yolanda Flowers pleaded guilty to a Class 5 felony, and she admitted

the allegations of a part II habitual criminal information alleging she had two prior

felony convictions. Because of the prior convictions, the circuit court imposed a

Class 4 felony penitentiary sentence, and it did not state on the record or in the

judgment any aggravating circumstances justifying a departure from presumptive

probation. On appeal, Flowers argues that the circuit court erred in failing to apply

presumptive probation requirements and sentence her to probation. Because

Flowers was convicted of a Class 5 felony that implicated presumptive probation,

and because aggravating circumstances were not stated on the record or in the

judgment, we reverse and remand for resentencing.

                            Facts and Procedural History

[¶2.]        On June 25, 2015, Flowers was arrested pursuant to an outstanding

federal arrest warrant. She admitted having methamphetamine in her purse. At

the time of her arrest, she was on state probation for felony convictions of

possession of a controlled substance and failure to appear. She was also on federal

supervised release for violating federal probation.

[¶3.]        Flowers was indicted for possession of a controlled substance in

violation of SDCL 22-42-5 (a Class 5 felony) and possession or use of drug

paraphernalia in violation of SDCL 22-42A-3 (a Class 2 misdemeanor). The State

filed a part II information alleging Flowers had two previous convictions for felony

possession of a controlled substance; one in October 2006 and one in January 2015.

Pursuant to a plea agreement, Flowers pleaded guilty to the Class 5 felony charge


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and admitted the allegations of the part II habitual criminal information. The State

dismissed the misdemeanor charge and recommended a four-year penitentiary

sentence.

[¶4.]         At sentencing, the circuit court noted that the habitual offender

admission enhanced the possible penalty to that applicable to Class 4 felonies. The

court indicated it was going to impose a penitentiary sentence. The court stated it

was basing its sentence “not out of anger towards” Flowers, but in hopes for

rehabilitation. Flowers received a Class 4 felony sentence of ten years in prison

with six years suspended. The court did not mention probation, a departure from

presumptive probation, or aggravating circumstances warranting a departure from

probation. The final written judgment did not list any aggravating circumstances.

[¶5.]         Flowers appeals her sentence, arguing that she is entitled to

resentencing because: (1) the circuit court failed to state aggravating circumstances

warranting a departure from presumptive probation in violation of SDCL 22-6-11;

and (2) the circuit court abused its discretion in departing from presumptive

probation. The State argues that Flowers was not entitled to be considered for

presumptive probation because her sentence was enhanced to a Class 4 felony, and

Class 4 felons are not entitled to presumptive probation under SDCL 22-6-11. 1




1.      The question whether a sentence enhanced under SDCL 22-7-7 falls within
        the requirements of SDCL 22-6-11 is a matter of statutory interpretation.
        Statutory interpretation is a question of law we review de novo. State v.
        Liaw, 2016 S.D. 31, ¶ 8, 878 N.W.2d 97, 100.

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                                        Decision

[¶6.]         South Dakota courts are required to sentence defendants convicted of

certain Class 5 and 6 felonies (including possession of a controlled substance) to

probation unless “the court finds aggravating circumstances exist that pose a

significant risk to the public and require a departure from presumptive probation.”

SDCL 22-6-11. 2 The State argues that SDCL 22-6-11 does not apply to Flowers’

conviction because under SDCL 22-7-7, her admission to the part II information

enhanced “the classification” of her crime to a Class 4 felony. See SDCL 22-7-7 (“If

a defendant has been convicted of one or two prior felonies . . . , the sentence for the

principal felony shall be enhanced by changing the class of the principal felony to

the next class which is more severe . . . .”). Flowers, however, argues that her felony


2.      The statute provides in full:
              The sentencing court shall sentence an offender convicted of a
              Class 5 or Class 6 felony, except those convicted under §§ 22-
              11A-2.1, 22-18-1, 22-18-1.05, 22-18-26, 22-19A-1, 22-19A-2, 22-
              19A-3, 22-19A-7, 22-19A-16, 22-22A-2, 22-22A-4, 22-24A-3, 22-
              22-24.3, 22-24-1.2, 22-24B-2, 22-24B-12, 22-24B-12.1, 22-24B-23,
              22-42-7, subdivision 24-2-14(1), 32-34-5, and any person
              ineligible for probation under § 23A-27-12, to a term of
              probation. If the offender is under the supervision of the
              Department of Corrections, the court shall order a fully
              suspended penitentiary sentence pursuant to § 23A-27-18.4.
              The sentencing court may impose a sentence other than
              probation or a fully suspended penitentiary sentence if the court
              finds aggravating circumstances exist that pose a significant
              risk to the public and require a departure from presumptive
              probation under this section. If a departure is made, the judge
              shall state on the record at the time of sentencing the
              aggravating circumstances and the same shall be stated in the
              dispositional order. Neither this section nor its application may
              be the basis for establishing a constitutionally protected liberty,
              property, or due process interest.
        SDCL 22-6-11.

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classification was not changed because SDCL 22-7-7 enhances the “sentence” rather

than the “principal felony.” See id.

[¶7.]        South Dakota’s habitual offender statutes enhance a defendant’s

sentence, not the underlying conviction. Rowley v. S.D. Bd. of Pardons & Paroles,

2013 S.D. 6, ¶ 10, 826 N.W.2d 360, 364 (“[T]he habitual offender statutes operate to

increase the defendant’s sentence, but do not substantively change the class of the

principal felony.” (emphasis added)). Although Rowley interpreted SDCL 22-7-8.1,

a separate enhancement statute, the dispositive language in SDCL 22-7-7 is the

same. SDCL 22-7-7, like SDCL 22-7-8.1, only provides that “the sentence for the

principal felony shall be enhanced.” And interpreting the statute to enhance the

classification of the underlying felony “would require us to ignore the words ‘the

sentence for,’ which we will not do.” Rowley, 2013 S.D. 6, ¶ 8, 826 N.W.2d at 364.

“Regardless of the nomenclature we chose, . . . the habitual offender statutes

operate to increase the defendant’s sentence, but do not substantively change the

class of the principal felony.” Id. ¶ 10, 826 N.W.2d at 364; see also State v.

Guthmiller, 2003 S.D. 83, ¶ 31, 677 N.W.2d 295, 305 (“The habitual offender statute

SDCL 22-7-7 enhances the sentence to the next more severe felony class.” (emphasis

added)); State v. Salway, 487 N.W.2d 621, 622 (S.D. 1992) (“[B]eing a habitual

criminal enhances the punishment for the principal crime to a higher class of

felony.” (emphasis added)). Here, Flowers’ principal offense was a Class 5 felony.

Therefore, the presumptive probation requirements of SDCL 22-6-11 applied.

[¶8.]        Because SDCL 22-6-11 applied, the circuit court could depart from

probation only “if the court [found] aggravating circumstances exist[ed] that pose[d]


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a significant risk to the public and require[d] a departure from presumptive

probation.” Additionally, the court was required to state the aggravating

circumstances “on the record at the time of sentencing” and in the final written

judgment. SDCL 22-6-11. Flowers argues that she is entitled to resentencing

because the circuit court failed to follow these requirements.

[¶9.]        There is no dispute that the court did not state any aggravating

circumstances on the record or in the written judgment. The court only noted

mitigating circumstances: Flowers had a “terrible childhood,” she was thirty years

old, she had “a lot of life ahead” of her, and a penitentiary sentence would help her

with rehabilitation. The State does not argue that the court’s statements qualified

as aggravating circumstances within the meaning of SDCL 22-6-11. Because the

court did not comply with the statute, we must next consider the appropriate

remedy.

[¶10.]       We have previously held that a circuit court errs when it states the

aggravating circumstances on the record but fails to restate them in the final

dispositional order. State v. Beckwith, 2015 S.D. 76, ¶¶ 16, 18, 871 N.W.2d 57, 61-

62; State v. Whitfield, 2015 S.D. 17, ¶ 20, 862 N.W.2d 133, 140. That type of clerical

error does not require a new trial or resentencing. In those cases, the appropriate

remedy is to “remand[] to the sentencing court to amend the dispositional order to

include the aggravating circumstances considered on the record at the time of the

sentencing hearing.” Beckwith, 2015 S.D. 76, ¶ 16, 871 N.W.2d at 61; Whitfield,

2015 S.D. 17, ¶ 20, 862 N.W.2d at 140.




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[¶11.]       But here, the record suggests that the circuit court may have believed

SDCL 22-6-11 did not apply because the court did not state any aggravating

circumstances on the record warranting a departure from presumptive probation.

On the contrary, the only circumstances stated were more supportive of probation

than imprisonment. Additionally, there were no aggravating circumstances in the

written judgment. Because the errors here go beyond the clerical errors in

Beckwith and Whitfield, we reverse and remand for resentencing in accordance with

SDCL 22-6-11. In light of this disposition, Flowers’ argument that the circuit court

abused its discretion in departing from presumptive probation is premature.

[¶12.]       GILBERTSON, Chief Justice, and SEVERSON, WILBUR, and KERN,

Justices, concur.




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