State v. $1,010.00 in American Currency, 23878.

• Citation: 722 N.W.2d 92,2006 SD 84
• Decision Date: 06 September 2006
• Docket Number: No. 23878.,23878.
• Parties: STATE of South Dakota, Plaintiff and Appellant, v. $1,010.00 IN AMERICAN CURRENCY, Defendant and Appellee.
• Court: Supreme Court of South Dakota

722 N.W.2d 92

2006 SD 84

STATE of South Dakota, Plaintiff and Appellant, v. $1,010.00 IN AMERICAN CURRENCY, Defendant and Appellee.

No. 23878.

Supreme Court of South Dakota.

Considered on Briefs on May 23, 2006.

Decided September 6, 2006.

Lawrence E. Long, Attorney General, Jeffery J. Tronvold, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellant.

Amy Yanni, Office of the Public Defender for Pennington County Rapid City, South Dakota, Attorney for defendant and appellee.

SABERS, Justice.

[¶ 1.] The State appeals an order by the circuit court appointing the Pennington County Public Defender's Office to represent Duane Apple (Apple) in this civil forfeiture proceeding. We affirm.

FACTS

[¶ 2.] Although the facts have not been fully developed, Apple is incarcerated in the State Penitentiary in Sioux Falls for violating conditions of his parole.¹ On September 14, 2005, the State brought this civil forfeiture action alleging Apple had used $1,010 in a drug-related transaction.²

[¶ 3.] Apple responded with a handwritten motion to release the funds and a motion for a thirty-day continuance. In his motion for continuance, Apple wrote: "My name is Duane Apple an [sic] I'm requesting a 30 Day [sic] continuance in this Matter [sic] cause [sic] I am seeking legal assistance in my case." Apple later wrote a letter to the Pennington County Clerk of Courts, requesting an attorney. In his letter, Apple stated:

I am not smart enough to answer some of this [sic] questions in these papers you all [sic] sent me, [sic] these interrogatories that were sent me [sic]. May I please have a lawyer help me in this Matter [sic] cause [sic] I do not understand alot [sic] and I'm in prison right now an [sic] don't have the freedom to go out an [sic] have a lawyer help me in this Matter [sic].

Apple completed an application for court-appointed counsel. The circuit court appointed the Pennington County Public Defender's Office to represent Apple.

[¶ 4.] On November 3, 2005, the State filed a motion to remove appointed counsel. A hearing was held on November 8. The State argued Apple was not statutorily or constitutionally entitled to appointed counsel. The State also alleged that Apple was a drug dealer and either used or obtained the $1,010 in a drug transaction.

[¶ 5.] Apple's counsel represented to the circuit court that she contacted a rancher from Okaton, South Dakota, who employed Apple over the summer. Apparently, the rancher paid Apple between $1,100 and $1,200 dollars sometime in August, 2005. Counsel argued that although Apple had not been charged by the State for the alleged drug transaction, the circuit court had an equitable power to appoint counsel in the civil forfeiture action.

[¶ 6.] The circuit court denied the State's motion. The circuit court did not enter findings of fact or conclusions of law. Instead, the court stated on the record:

[T]his man [is] incarcerated in the State Penitentiary and has no money and there's a thousand dollars which counsel represents to me as an officer of the [c]ourt that he believes is through his employer and wants to establish that that money was earned from the sweat of his brow. So I'm supposed to let him come out here and run up against the Attorney General's Office and their skills and ability without an attorney to present his case?

. . .

Well, I'm going to remain as I have and it's my order that the Public Defender's Office of Rapid City, South Dakota, will represent Mr. Apple in this matter.

[¶ 7.] On November 18, 2005, we temporarily stayed the circuit court proceedings and considered the State's motion for a discretionary appeal. On December 1, 2005, the State convened a grand jury which indicted Apple on charges of possession and distribution of methamphetamine. We granted the State's petition for appeal on December 9, 2005. We address the following issues:

1. Whether SDCL 23A-40-6 or SDCL 23A-40-7 permits a circuit court to appoint counsel to represent an indigent defendant in a civil forfeiture action.

2. Whether an indigent defendant has a Sixth Amendment right to appointed counsel in a civil forfeiture action.

3. Whether an indigent defendant has a Fourteenth Amendment due process right to appointed counsel in a civil forfeiture action.

Standard of Review

[¶ 8.] This case involves statutory interpretation. "Statutory interpretation and application are questions of law, and are reviewed by this Court under the de novo standard of review." Chapman v. Chapman, 2006 SD 36, ¶ 10, 713 N.W.2d 572, 576 (citing State v. Anderson, 2005 SD 22, ¶ 19, 693 N.W.2d 675, 681 (quoting Block v. Drake, 2004 SD 72, ¶ 8, 681 N.W.2d 460, 463) (internal quotations omitted)).

Statutes are to be construed to give effect to each statute and so as to have them exist in harmony. It is a fundamental rule of statutory construction that the intention of the law is to be primarily ascertained from the language expressed in the statute.

In re Estate of Meland, 2006 SD 22, ¶ 6, 712 N.W.2d 1, 2 (quoting In re Estate of Jetter, 1997 SD 125, ¶ 11, 570 N.W.2d 26, 29) (quoting Rushmore State Bank v. Kurylas, 424 N.W.2d 649, 653 (S.D.1988)) (internal citations omitted).

[¶ 9.] Generally, we review questions concerning constitutional rights under the de novo standard of review. See State v. Asmussen, 2006 SD 37, ¶ 11, 713 N.W.2d 580, 586; State v. Williams, 2006 SD 11, 12 n. 2, 710 N.W.2d 427, 432 n. 2. However, with regard to a due process claim, the United States Supreme Court has implied that circuit courts should be given a degree of deference. Lassiter v. Department of Social Services of Durham County, 452 U.S. 18, 31-32, 101 S.Ct. 2153, 2162, 68 L.Ed.2d 640 (1981) (noting that the facts and circumstances that give rise to due process claims are subject to "infinite variation" and should be "answered in the first instance by the trial court, subject, of course, to appellate review").

1. Statutory right to counsel

[¶ 10.] No specific statute allows for appointed counsel in civil forfeiture actions. Instead, Apple relies upon SDCL chapter 23A-40, which provides counsel for indigent defendants:

In any criminal investigation or in any criminal action or action for revocation of suspended sentence or probation in the circuit or magistrate court or in a final proceeding to revoke a parole, if it is satisfactorily shown that the defendant or detained person does not have sufficient money, credit, or property to employ counsel and pay for the necessary expenses of his representation, the judge of the circuit court or the magistrate shall, upon the request of the defendant, assign, at any time following arrest or commencement of detention without formal charges, counsel for his representation, who shall appear for and defend the accused upon the charge against him, or take other proper legal action to protect the rights of the person detained without formal charge.

(SDCL 23A-40-6) (Emphasis added).

[¶ 11.] By its plain terms SDCL 23A-40-6 provides for appointment of counsel in "any criminal investigation or in any criminal action for revocation of suspended sentence or probation in the circuit or magistrate court or in a final proceeding to revoke a parole. . . ." Because this is a civil forfeiture action, Apple is not entitled to appointed counsel under SDCL 23A-40-6.

[¶ 12.] Apple seems to agree that a plain reading of SDCL 23A-40-6 does not entitle him to appointed counsel. However, he urges us to interpret SDCL 23A-40-6 in conjunction with SDCL 23A-40-7, which provides in part:

The board of county commissioners of each county and the governing body of any municipality shall provide for the representation of indigent persons described in § 23A-40-6. They shall provide this representation by any or all of the following:

(1) Establishing and maintaining an office of a public defender;

(2) Arranging with the courts in the county to appoint attorneys on an equitable basis through a systematic, coordinated plan; or

(3) Contracting with any attorney licensed to practice law in this state.

(Emphasis added). According to Apple, SDCL 23A-40-7(2) permits a circuit court to appoint counsel to represent indigent people whenever "equity requires." The State responds by arguing civil forfeiture actions are legal, not equitable, and the Pennington County Commissioners have not arranged a "systematic, coordinated plan" with the circuit courts. Both arguments misconstrue the intention of the legislature in drafting SDCL 23A-40-7.

[¶ 13.] By using the word "shall," the legislature mandated that the board of county commissioners and the governing body of any municipality provide for the representation of indigent persons described in SDCL 23A-40-6. As mentioned, SDCL 23A-40-6 does not provide for appointed counsel in civil forfeiture actions. Thus, neither the Pennington County Board of Commissioners nor the governing body of Rapid City is statutorily required to provide representation for Apple in this matter. Once it is determined that Apple is not an indigent person described in SDCL 23A-40-6, the remaining portions of SDCL 23A-40-7 become irrelevant. However, because Apple and the State focus a substantial part of their argument on SDCL 23A-40-7, we examine the legislative intent behind the "equitable basis" language contained in subsection two.

[¶ 14.] If it is determined an individual is an indigent defendant in one of the actions encompassed by SDCL 23A-40-6, the legislature provides three methods by which the board of county commissioners and governing body of the municipality can provide representation. Under SDCL 23A-40-7, the board or the municipality can use one or all of these methods in providing representation. Subsection two permits an arrangement with the circuit courts by which attorneys are appointed on an equitable basis through a systematic, coordinated plan.

[¶ 15.] Contrary to Apple's argument, SDCL 23A-40-7 does not create an additional,...