#26787-a-LSW

2014 S.D. 16

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

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

      v.

STEVEN RENE HERNANDEZ,                      Defendant and Appellant.


                                     ****

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

                                     ****

                  THE HONORABLE CHERYLE W. GERING
                               Judge

                                     ****

MARTY J. JACKLEY
Attorney General

ANN F. MINES
Assistant Attorney General
Pierre, South Dakota                        Attorneys for plaintiff
                                            and appellee.


KEVIN J. LOFTUS of
Kennedy, Pier, Knoff & Loftus, LLP
Yankton, South Dakota                       Attorneys for defendant
                                            and appellant.

                                     ****

                                            CONSIDERED ON BRIEFS
                                            ON FEBRUARY 18, 2014

                                            OPINION FILED 03/19/14
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WILBUR, Justice

[¶1.]         Steven Rene Hernandez appeals his conviction for fourth offense

driving under the influence. We affirm.

                     FACTS AND PROCEDURAL BACKGROUND

[¶2.]         On January 8, 2012, law enforcement observed Hernandez commit a

traffic violation and stopped the vehicle that Hernandez was driving. During the

stop, the officer learned that Hernandez’s driver’s license had been revoked and

observed that Hernandez was exhibiting signs of intoxication. As a result of his

observations, the officer conducted a variety of field sobriety tests and administered

a PBT test. The PBT test revealed that Hernandez had a blood alcohol content of

0.176. Hernandez was arrested for driving under the influence and driving with a

revoked license. 1

[¶3.]         Hernandez was charged by criminal complaint on January 9, 2012,

with the crime of driving while under the influence of an alcoholic beverage six

times within a ten-year period in violation of SDCL 32-23-1(1) and SDCL 32-23-4.7,

and in the alternative, driving under the influence of an alcoholic beverage six times

within a ten-year period in violation of SDCL 32-23-1(2) and SDCL 32-23-4.7.

Hernandez was also charged with driving while his license was revoked in violation

of SDCL 32-12-65(1).

[¶4.]         On January 12, 2012, a grand jury indicted Hernandez with the same

offenses. A part II information was filed alleging that Hernandez had been




1.      Law enforcement dispatch informed the arresting officer that Hernandez had
        five prior driving under the influence convictions.
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previously convicted of driving under the influence on at least four prior occasions

within a ten-year period.

[¶5.]        An amended part II information was filed on February 7, 2012. The

amended part II information alleged that Hernandez had been previously convicted

of driving under the influence on at least three prior occasions within a ten-year

period.

[¶6.]        An arraignment on the charged offenses was held on February 7, 2012.

The parties then informed the circuit court that a plea agreement had been reached.

As a part of the plea agreement, Hernandez would plead guilty to driving under the

influence and to the amended part II information charging a fourth offense. The

circuit court accepted Hernandez’s guilty plea. Hernandez was allowed to remain

on bond pending sentencing.

[¶7.]        A bond hearing was held on June 11, 2012, after the circuit court was

notified that Hernandez had violated the conditions of his release by consuming

alcohol. Hernandez was given another chance by the circuit court and was released

on bond under the same terms and conditions previously imposed.

[¶8.]        A sentencing hearing was scheduled for November 27, 2012.

Hernandez, however, did not appear at the hearing. The State indicated to the

circuit court that it had information that Hernandez was engaging in other criminal

activity. As a result of Hernandez’s failure to appear and the representations made

by the State as to Hernandez’s involvement in other criminal activity, the circuit

court issued a bench warrant for Hernandez’s arrest. Approximately seven months

later, Hernandez was arrested on the bench warrant.


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[¶9.]        The circuit court conducted a sentencing hearing on July 3, 2013. At

that hearing, the circuit court acknowledged the Legislature’s passage of SDCL 22-

6-11, which requires a court to impose a sentence of probation for any of the offenses

set forth in the statute unless there are aggravating circumstances that require a

greater sentence. The circuit court found the existence of such aggravating

circumstances and sentenced Hernandez to five years in the state penitentiary with

three years suspended.

                                     DECISION

[¶10.]       Hernandez argues that while the circuit court correctly acknowledged

the applicability of SDCL 22-6-11 to Hernandez’s sentencing, the circuit court failed

to order probation for Hernandez. Hernandez contends that the aggravating

circumstances cited by the circuit court to justify its departure from the

presumptive sentence of probation contained in SDCL 22-6-11 were inadequate to

find that Hernandez posed a significant risk to the public.

[¶11.]       SDCL 22-6-11, a portion of Senate Bill 70—the Public Safety

Improvement Act, was enacted by the South Dakota Legislature in 2013. See 2013

S.D. Sess. Laws ch. 101, § 53. SDCL 22-6-11 provides:

             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. 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

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               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. 2

[¶12.]         The record demonstrates that the circuit court complied with the

dictates of SDCL 22-6-11 and imposed Hernandez’s penitentiary sentence. In

fulfilling the requirements of SDCL 22-6-11, the circuit court found the existence of

aggravating circumstances and made its findings on the record at the sentencing

hearing:

               The court, as indicated, believes that SDCL 22-6-11 is applicable
               in your case. You have been charged with and pled guilty to a
               Class 5 felony, in light of the Driving Under the Influence
               Fourth Offense and the Part 2 information for multiple offender.
               And as a Class 5 felony, that statute states that the court shall
               sentence such an offender as yourself to probation unless the
               court finds aggravating circumstances that pose a significant
               risk to the public and require a departure from presumptive
               probation under this section.

               The court believes in this circumstance, Mr. Hernandez, that
               there are aggravating circumstances, that, in light of the
               number of DUI convictions that you’ve had, in light of the felony
               convictions, in light of your failure to appear at your last
               sentencing hearing set in November of 2012, in light of your
               repeated attempts to undergo treatment and not follow through
               with that, and with, therefore, your statements now being, in
               the court’s opinion, statements that you’re making not
               evidencing a true change and intention to change your behavior,
               but simply to seek lenience from the court, the court does find
               that aggravating circumstances exist and that there is a



2.       Hernandez pleaded guilty to fourth offense driving under the influence at an
         arraignment hearing on February 7, 2012. Hernandez was sentenced for this
         charge on July 3, 2013, three days after SDCL 22-6-11 became law. The
         circuit court applied SDCL 22-6-11 to Hernandez’s sentencing. Neither party
         contested the applicability of SDCL 22-6-11 to Hernandez’s sentencing; nor
         did either party raise or brief the issue to this Court. Therefore, we do not
         address the appropriateness of its application in this case.
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             significant risk posed to the public that does require a departure
             from the presumptive probation required under SDCL 22-6-11.

The judgment of conviction also provides the aggravating circumstances the circuit

court found to justify its departure from the presumptive probation required by the

statute. It is clear from this record that the circuit court complied with the dictates

of SDCL 22-6-11 and imposed a sentence other than probation.

[¶13.]       We decline to address the other issues raised by Hernandez in this

appeal.

                                   CONCLUSION

[¶14.]       Hernandez’s conviction and sentence are affirmed.

[¶15.]       GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and

SEVERSON, Justices, concur.




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