#27252-a-GAS

2015 S.D. 60

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

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

      v.

SIERRA C. ANDERSON,                       Defendant and Appellant.

                                 ****

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE THIRD JUDICIAL CIRCUIT
                  BROOKINGS COUNTY, SOUTH DAKOTA

                                 ****

               THE HONORABLE GREGORY J. STOLTENBURG
                              Judge

                                 ****


MARTY J. JACKLEY
Attorney General

JARED TIDEMANN
Assistant Attorney General
Pierre, South Dakota                      Attorneys for plaintiff
                                          and appellee.

BENJAMIN L. KLEINJAN of
Helsper, McCarty, Mahlke
 & Kleinjan, P.C.
Brookings, South Dakota                   Attorneys for defendant
                                          and appellant.


                                 ****
                                          CONSIDERED ON BRIEFS
                                          ON MAY 26, 2015

                                          OPINION FILED 07/15/15
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SEVERSON, Justice

[¶1.]        Sierra Anderson appeals the circuit court’s departure from

presumptive probation. She contends that her sentence for a term of imprisonment

violates her constitutional right to a jury trial because the court departed from

presumptive probation based on facts that were neither found by a jury nor

admitted by Anderson. We affirm.

                                    Background

[¶2.]        Sierra Anderson, who was 22 years of age at the time, sold three-

quarters of a gram of methamphetamine to a confidential informant. After the sale,

law enforcement executed a search warrant and found a remaining quarter of a

gram in her purse. The charges brought against Anderson included a charge for

distribution of a schedule I or II substance and a charge for possession of a

controlled substance. Anderson pleaded guilty to both offenses. On the distribution

charge, the court sentenced Anderson to a term of six years in the penitentiary with

two years suspended. That sentence is not being appealed.

[¶3.]        Possession of a controlled substance, the second charge, is prohibited

by SDCL 22-42-5 and is a class 5 felony. A class 5 felony is punishable by a

maximum of five years imprisonment and a fine of ten thousand dollars. SDCL 22-

6-1. However, SDCL 22-6-11 directs judges to sentence an offender convicted of a

class 5 or class 6 felony to probation, unless the offender is convicted under certain

enumerated statutes. SDCL 22-42-5 is not one of the exceptions. Nonetheless,

SDCL 22-6-11 further provides that “[t]he sentencing court may impose a sentence

other than probation if the court finds aggravating circumstances exist that pose a


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

under this section.”

[¶4.]        Instead of imposing probation, the circuit court imposed a sentence of

four years in the penitentiary, with two years suspended. The court stated that the

following aggravating circumstances warranted a departure: (1) Anderson pleaded

guilty to distribution of a controlled substance, (2) she was unemployed and had a

history of sporadic employment, (3) she violated probation as a juvenile, and (4) she

was not a good candidate for probation and would require a high-supervision level if

placed on probation. Anderson now appeals the court’s sentence on the possession

charge. She asserts that the court’s departure from presumptive probation in this

case is unconstitutional.

                               Standard of Review

[¶5.]        We review challenges to the constitutionality of a statute de novo.

State v. Outka, 2014 S.D. 11, ¶ 24, 844 N.W.2d 598, 606. There is a strong

presumption that statutes are constitutional. Id. “To be invalidated a statute must

be proved a breach of legislative power beyond a reasonable doubt. Only when the

unconstitutionality of a statute is plainly and unmistakably shown will we declare

it repugnant to our Constitution.” Id. (quoting State v. Stark, 2011 S.D. 46, ¶ 10,

802 N.W.2d 165, 169). However, “[i]f a statute can be construed so as not to violate

the Constitution, that construction must be adopted.” Id.

                                      Analysis

[¶6.]        South Dakota’s presumptive probation 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-

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             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. The sentencing court may impose a sentence other
             than probation 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. Anderson maintains that this statute is unconstitutional in light of

the United States Supreme Court decision in Apprendi v. New Jersey, 530 U.S. 466,

120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and the line of cases that have followed.

See Alleyne v. United States, ___ U.S. ____, 133 S. Ct. 2151, 186 L. Ed. 2d 314

(2013); Oregon v. Ice, 555 U.S. 160, 129 S. Ct. 711, 172 L. Ed. 2d 517 (2009); Blakely

v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

[¶7.]        In Apprendi, the Supreme Court struck down a New Jersey sentencing

scheme that allowed judges to give an increased sentence term to a defendant if the

judge found that the defendant committed a crime with a certain purpose. 530 U.S.

at 468-69, 120 S. Ct. at 2351. The defendant in Apprendi pleaded guilty to

“possession of a firearm for an unlawful purpose,” a second-degree offense

punishable by imprisonment “between five years and 10 years.” Id. at 468-69, 120

S. Ct. at 2351-52. A separate statute allowed an “‘extended term’ of imprisonment if

the trial judge [found], by a preponderance of the evidence, that ‘the defendant . . .

acted with a purpose to intimidate an individual or group of individuals because of


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race, color, gender, handicap, religion, sexual orientation or ethnicity.’” Id. at 468-

69, 120 S. Ct. at 2351. The Supreme Court found that enhancement based on a

judge’s fact-finding unconstitutionally “remove[d] from the jury the assessment of

facts that increase the prescribed range of penalties to which a criminal defendant

is exposed.” Id. at 490, 120 S. Ct. at 2363. It explained:

             If a defendant faces punishment beyond that provided by statute
             when an offense is committed under certain circumstances but
             not others, it is obvious that both the loss of liberty and the
             stigma attaching to the offense are heightened; it necessarily
             follows that the defendant should not—at the moment the State
             is put to proof of those circumstances—be deprived of protections
             that have, until that point, unquestionably attached.

Id. at 484, 120 S. Ct. at 2359. Therefore, “[o]ther than the fact of a prior conviction,

any fact that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id.

at 490, 120 S. Ct. at 2362-63.

[¶8.]        The Supreme Court has further explained that “[a] ‘statutory

maximum’ for Apprendi purposes is the maximum sentence a judge may impose

solely on the basis of the facts reflected in the jury verdict or admitted by the

defendant.” Blakely, 542 U.S. at 303, 124 S. Ct. at 2537. However, the Supreme

Court clarified that “[i]f appropriate waivers are procured, States may continue to

offer judicial factfinding as a matter of course to all defendants who plead guilty.

Even a defendant who stands trial may consent to judicial factfinding as to sentence

enhancements, which may well be in his interest if relevant evidence would

prejudice him at trial.” Id. at 310, 124 S. Ct. at 2541.




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[¶9.]        More recently, the Supreme Court has held Apprendi inapplicable to a

sentencing scheme that requires concurrent sentencing absent additional fact

finding by a court. Ice, 555 U.S. at 169, 129 S. Ct. at 718. In Ice, the Supreme

Court explained that Apprendi’s rule and its application in the cases that followed

were distinguishable from a scheme that allowed departure from concurrent

sentencing of multiple crimes because “[a]ll of th[o]se decisions involved sentencing

for a discrete crime, not—as here—for multiple offenses different in character or

committed at different times.” Id. at 167, 129 S. Ct. at 717. It explained that “twin

considerations—historical practice and respect for state sovereignty—counsel

against extending Apprendi’s rule to the imposition of sentences for discrete crimes.

The decision to impose sentences consecutively is not within the jury function that

‘extends down centuries into the common law.’” Id. at 168, 129 S. Ct. at 717 (citing

Apprendi, 530 U.S. at 477, 120 S. Ct. at 2348). The Supreme Court surveyed the

history of imposing sentences and determined:

             There is no encroachment here by the judge upon facts
             historically found by the jury, nor any threat to the jury’s
             domain as a bulwark at trial between the State and the accused.
             Instead, the defendant—who historically may have faced
             consecutive sentences by default—has been granted by some
             modern legislatures statutory protections meant to temper the
             harshness of the historical practice.

Id. at 161, 129 S. Ct. at 713. The Court reiterated that the “core concern” of

Apprendi is “a legislative attempt to ‘remove from the province of the jury’ the




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determination of facts that warrant punishment for a specific statutory offense.” Id.

at 170, 129 S. Ct. at 718. 1

[¶10.]         Finally, the Supreme Court has addressed Apprendi in two additional

cases. In Alleyne, the Supreme Court applied Apprendi to mandatory minimum

sentences—those that set a “floor” on a sentence. ___ U.S. at ____, 133 S. Ct. at

2158. Alleyne overruled previous decisions where the Supreme Court had

determined that a difference existed between facts that increase a mandatory

maximum sentence and facts that increase a mandatory minimum sentence. See

Harris v. United States, 536 U.S. 545, 122 S. Ct. 2406, 153 L. Ed. 2d 524 (2002),

overruled by Alleyne, __ U.S. at __, 133 S. Ct. at 2163. The Court has also applied

Apprendi to the imposition of civil fines. Southern Union Co. v. United States,

___U.S.___, 132 S. Ct. 2344, 2352 n.5, 183 L. Ed. 2d 318 (2012).

[¶11.]         When confronted with a question of whether the jury must make

certain factual findings, the Supreme Court has told us that “the scope of the

constitutional jury right must be informed by the historical role of the jury at

common-law. It is therefore not the case that . . . the federal constitutional right




1.       Before the Supreme Court issued its opinion in Ice, at least two state
         supreme courts and one state appellate court addressed whether departure
         from presumptive probation requires a jury determination. See State v. Carr,
         53 P.3d 843, 846-47 (Kan. 2002) (holding that the right to a jury does not
         extend to upward dispositional departures, only upward durational
         departures); State v. Allen, 706 N.W.2d 40, 47 (Minn. 2005) (“[U]pward
         dispositional departure upon finding an aggravating factor without the aid of
         jury . . . [was] unconstitutional as applied.”); State v. Buehler, 136 P.3d 64,
         65-66 (Or. Ct. App. 2006) (holding that additional fact-finding necessary to
         impose anything more than presumptive sentence of probation “must conform
         to the requirements elucidated in Blakely and Apprendi”).

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attaches to every contemporary state-law ‘entitlement’ to predicate findings.” Ice,

555 U.S. at 170, 129 S. Ct. at 718 (emphasis added). Therefore, even though South

Dakota’s presumptive probation statute requires the determination of predicate

circumstances before imposition of a prison term, if “[t]here is no encroachment here

by the judge upon facts historically found by the jury, nor any threat to the jury’s

domain as a bulwark at trial between the State and the accused[,]” then sentencing

a defendant based on those judge-found factors is not a violation of Apprendi. See

Id. at 169, 129 S. Ct. at 713.

[¶12.]       Under the common law, probation was developed and granted by

judges; “the modern humane practice of probation was developed in Massachusetts

by judges as a natural part of the business of administering justice[.]” Frank W.

Grinnell, The Common Law History of Probation-An Illustration of the Equitable

Growth of Criminal Law, 32 J. Crim. L. & Criminology 15, 30 (1941). “It was . . .

through judicial experiment, which was evidently believed to be within the common

law powers of Massachusetts judges, that the principle of probation was applied

experimentally in practice until, as a result of gradually forming public opinion, the

practice became so generally approved that the legislature took it up and provided

for its development . . . .” Id. at 28 (citing Com. v. Dowdican’s Bail, 115 Mass. 133,

136 (1874)). Thus, the judge, rather than the jury, traditionally decided which

circumstances warranted probation rather than imprisonment. Likewise, the

Supreme Court has recognized that “[p]robation, like incarceration, is ‘a form of

criminal sanction imposed by a court upon an offender after verdict, finding, or plea

of guilty.’” United States v. Knights, 534 U.S. 112, 119, 122 S. Ct. 587, 591, 151 L.


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Ed. 2d 497 (2001) (emphasis added) (quoting Griffin v. Wisconsin, 483 U.S. 868, 874,

107 S. Ct. 3164, 3169, 97 L. Ed. 2d 709 (1987)). By the time that a sentencing court

is determining whether probation is appropriate for the offense committed, the jury

has already performed its historic function—“determining whether the prosecution

has proved each element of an offense beyond a reasonable doubt.” Ice, 555 U.S. at

163, 129 S. Ct. at 714.

[¶13.]       The history of probation as an innovative alternative to

incarceration—developed by judges and then legislatively approved—confirms that

it is a prime example of “the role of the States as laboratories for devising solutions

to difficult legal problems.” Id. at 171, 129 S. Ct. at 718-19. The Supreme Court

has recognized that “[b]eyond question, the authority of the States over the

administration of their criminal justice systems lies at the core of their sovereign

status. See e.g., Patterson v. New York, 432 U.S. 197, 201, 97 S. Ct. 2319, 2322, 53

L. Ed. 2d 281 (1977) (‘It goes without saying that preventing and dealing with crime

is much more the business of the States than it is of the Federal Government.’).”

Ice, 555 U.S. at 170-71, 129 S. Ct. at 718. South Dakota has also recognized that

“[p]robation . . . is an alternative to confinement in cases where the [sentencing

court] deems that both the defendant and the public would benefit.” State v.

Marshall, 247 N.W.2d 484, 487 (S.D. 1976). It allows an offender an opportunity to

rehabilitate and protects the public “through supervision by a probation officer and

the continuing jurisdiction of the [circuit] court to revoke probation[.]” Id.

Consequently, when sentencing courts determine facts relevant to probation, the

courts are properly administering the criminal justice system rather than


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“encroach[ing] . . . upon facts historically found by the jury[.]” See Ice, 555 U.S. at

169, 129 S. Ct. at 718.

[¶14.]       Those “twin considerations—historical practice and respect for state

sovereignty—counsel against extending Apprendi’s rule to the imposition of” a

sentence of probation. Ice, 555 U.S. at 168, 129 S. Ct. at 717. When a sentencing

court finds the facts necessary to impose a prison term rather than that of

probation, the core concern of Apprendi—“a legislative attempt to ‘remove from the

province of the jury’ the determination of facts that warrant punishment for a

specific statutory offense[,]”—is not implicated. Ice, 555 U.S. at 170, 129 S. Ct. at

718. South Dakota’s presumptive probation statute “seek[s] to rein in the discretion

judges possessed at common law to impose” probation and “serves the ‘salutary

objectives’ of promoting sentences proportionate to ‘the gravity of the offense,’ and of

reducing disparities in sentence length.” See id. (citing Blakely, 542 U.S. at 308,

124 S. Ct. at 2531).

[¶15.]       Our decision is consistent with Supreme Court cases recognizing that

there is no right to a jury trial for probation revocation. “[P]robationers . . . face

revocation of probation, and possible incarceration, in proceedings in which the trial

rights of a jury and proof beyond a reasonable doubt, among other things, do not

apply[.]” Knights, 534 U.S. at 120, 122 S. Ct. at 592. In both cases—initially

denying probation and revoking probation—the court is determining whether

incarceration is appropriate, and it is within the court’s purview to decide facts

relevant to that decision. Further, such a decision does not alter the range of years

of imprisonment that a court may impose for a particular offense.


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[¶16.]         Lastly, this case exemplifies the sentencing court’s role in

administering the criminal justice system and fashioning a sentence within the

legislative and constitutional framework. Anderson faced multiple sentences in this

case. She pleaded guilty to distribution of a schedule I or II substance—a class 4

offense carrying a mandatory penitentiary sentence of at least one year. 2 SDCL 22-

42-2. Anderson was sentenced to six years in the penitentiary with two years

suspended for the distribution charge and could not have been placed on probation

for the possession charge because doing so would have subjected her to

simultaneous supervision of the executive and judicial branches. 3 We have

previously reversed such sentences. See State v. McConnell, 495 N.W.2d 658 (S.D.

1993) (“[C]oncurrent penitentiary term and probation requirement effectively put

[defendant] under simultaneous supervision of both the executive and judicial

branches of government. . . . a defendant convicted of a crime should not be under

simultaneous supervision of agencies of two separate branches of government.”).

“[S]pecification of the regime for administering multiple sentences has long been

considered the prerogative of state legislatures.” Ice, 555 U.S. at 168, 129 S. Ct. at

717. Therefore, the sentencing court appropriately sentenced Anderson. We affirm.




2.       A sentencing court can depart from the penitentiary sentence if it “finds that
         mitigating circumstances exist which require a departure[.]” SDCL 22-42-
         2.3.

3.       Defendants sentenced to the state penitentiary are under the supervision of
         the executive branch, see South Dakota Constitution article IV, § 9; SDCL
         chapter 1-15, while those sentenced to probation are under the supervision of
         the judicial branch, see South Dakota Constitution article V, § 5; SDCL
         chapter 23A-27.

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

Justices, concur.




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