State v. Anderson

• Decision Date: 15 July 2015
• Docket Number: No. 27252.,27252.
• Citation: 867 N.W.2d 718
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Sierra C. ANDERSON, Defendant and Appellant.
• Court: South Dakota Supreme Court

867 N.W.2d 718

STATE of South Dakota, Plaintiff and Appellee

v.Sierra C. ANDERSON, Defendant and Appellant.

No. 27252.

Supreme Court of South Dakota.

Considered on Briefs May 26, 2015.

Decided July 15, 2015.

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.

Opinion

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 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 §§ 22–11A–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 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.

[¶ 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 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...