State v. Blakney

• Decision Date: 09 July 2014
• Docket Number: No. 26684.,26684.
• Citation: 851 N.W.2d 195,2014 S.D. 46
• Court: South Dakota Supreme Court
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Christopher William BLAKNEY, Defendant and Appellant.

851 N.W.2d 195

2014 S.D. 46

STATE of South Dakota, Plaintiff and Appellee,

v.Christopher William BLAKNEY, Defendant and Appellant.

No. 26684.

Supreme Court of South Dakota.

Considered on Briefs April 28, 2014.

Decided July 9, 2014.

Marty J. Jackley, Attorney General, Paul S. Swedlund, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Mark Kadi, Minnehaha County Office of the Public Advocate, Sioux Falls, South Dakota, Attorneys for defendant and appellant.

KONENKAMP, Justice.

[¶ 1.] Christopher William Blakney appeals the revocation of his suspended sentence for a probation violation. He contends, among other things, that the circuit court unlawfully delegated its judicial authority in allowing a Court Services Officer to impose a condition of probation not ordered by the court.

Background

[¶ 2.] In two separate indictments, Blakney was charged with second-degree rape, aggravated assault (domestic), attempted simple assault (domestic), simple assault by recklessly causing bodily injury (domestic), and simple assault by causing injury (domestic). A Part II Information charged Blakney as a habitual offender. The second-degree rape charge stemmed from an incident with a minor on July 16, 2011. The minor, J.K.G., alleged that while she was babysitting for Blakney's girlfriend, Blakney raped her. The aggravated assault and remaining charges arose from an incident with Blakney's girlfriend on August 2, 2011. She alleged that Blakney raped, beat, choked, and straddled her on the bed and held a box cutter to her throat threatening to kill her.

[¶ 3.] By agreement with the State, Blakney pleaded guilty to simple assault in return for dismissal of the second-degree rape charge and the Part II Information. Although Blakney denied that he raped J.K.G., per the plea agreement, he agreed that the State's version would provide the factual basis for his plea. See State v. Engelmann, 541 N.W.2d 96, 101 (S.D.1995) ( “ Alford plea”) (citation omitted). Thus, the State relayed that J.K.G. “was sleeping on the bed, the defendant came home, woke her up, tore her pants. There was a portion of her pants that had a hole in them. He put his penis inside of her vagina. She was 16 at the time. She was at the age of consent, but she did not consent to the sexual contact with him.” The court accepted Blakney's plea to the reduced charge of simple assault.

[¶ 4.] Blakney also agreed to plead guilty to aggravated assault (domestic) in exchange for dismissal of the remaining charges. As with his plea to simple assault, his plea to aggravated assault was for the benefit of the bargain. The State provided the factual basis, reciting that when Blakney and his girlfriend had gotten into an argument on August 2, 2011, Blakney threw her to the ground, choked her, yelled at her, and threatened violence. Blakney took a folded box cutter with a razor blade, straddled his girlfriend, and held the blade to her throat. He also raped her. The court accepted Blakney's pleas.

[¶ 5.] Blakney was sentenced to 364 days for the simple assault, with the entire sentence suspended, on multiple conditions, including that he comply with the probationary period to be imposed on the aggravated assault sentence. For aggravated assault, the court imposed a 13–year penitentiary sentence, suspended on certain conditions, including that he be on supervised probation for 24 months. Among the probation conditions, the court ordered that he “shall successfully complete any evaluation, counseling, treatment, or aftercare that is directed by the Court, Court Services, and consent to any treatment plan deemed necessary by your Court Services Officer to assist you in being successful while on probation. And that would include any anger management, domestic violence programs, or the like.” Lastly, the court ordered 120 days in jail, with credit for the 97 days Blakney had already served.

[¶ 6.] Blakney and his Court Services Officer (CSO) signed a document listing the conditions of probation the circuit court imposed. The CSO directed Blakney to undergo an assessment with the Compass Center to determine his eligibility to participate in the Family Violence Program. But the Compass Center evaluator did not recommend enrollment in the Family Violence Project “at this time,” because the incident that led to Blakney's conviction “involved behaviors and circumstances of a sex offense,” and because of “the differences of a domestic violence program and a sex offender program, in their respective treatment goals, treatment themes, and monitoring controls.” The evaluator informed the CSO that he would consider Blakney for enrollment in the Family Violence Project “at such time that Mr. Blakney is able to present in writing, a full evaluation report and written record of successful completion of all recommendations, from an established sex offender treatment program.” The CSO told Blakney that he must follow the Compass Center's recommendation and undergo a sex offender evaluation.

[¶ 7.] In November 2012, the State moved to revoke Blakney's suspended sentence for his failure to obtain a sex offender evaluation.¹ The State relied on the violation report filed by Blakney's CSO, which stated that

defendant was directed to obtain a Family Violence assessment at the Compass Center. On April 25, 2012, this officer received verification that defendant completed this assessment. The Compass Center recommended that defendant receive a “full evaluation report and written record of completion of all successful recommendations made by an established sex offender program.” On May 24, 2012, this officer gave the defendant a directive to follow the Compass Center recommendations. As of today's date, the defendant has not provided verification of completion of this evaluation.

The court received the letter from the Compass Center to Blakney's CSO, identifying the reason Blakney was recommended for a sex offender evaluation.

[¶ 8.] At an evidentiary hearing, the CSO testified that Blakney did not complete a sex offender evaluation within six months. But the CSO confirmed that the assessment was completed after the CSO filed the violation report in November 2012.

[¶ 9.] The court found Blakney in violation of his probation. In mitigation, Blakney asserted that although he was referred to sex offender treatment, “[h]e did not plead guilty to a sex offense. He did not admit any facts. There was no presentence investigation, to my knowledge, completed in this case. There was simply a benefit of the bargain plea with a fixed amount of jail time.” The State presented testimony from Andy Vos of the Compass Center to explain why he recommended that Blakney undergo sex offender treatment. Vos testified that he performed an assessment on Blakney to determine if he would be an appropriate candidate for the Family Violence Project, a program for the treatment of domestic abuse. Based on this evaluation and the underlying allegations of rape, Vos thought that Blakney needed to undergo a sex offender evaluation before being a candidate for the Family Violence Project.

[¶ 10.] The court found that Blakney was ordered to get an evaluation, did not get an evaluation, and, therefore, violated probation. The court said,

The Compass Center recommended he receive a full evaluation and written explanation in written record completion by an established sex offender program. On May 24, the court service officer gave the defendant a directive to follow the Compass Center recommendations. As of today's date, he's not provided that.

Counsel for Blakney agreed, but argued that since the filing of the violation report by the CSO, “he's met with Mr. Smith.” The court responded, “But afterwards doesn't matter.... I don't tell the court service officer what programming to do, that's their value not mine, for the most part.” At the conclusion of the hearing, the court declined Blakney's request to remain on supervised probation and imposed the previously suspended 13–year sentence, with credit for time served.

[¶ 11.] Blakney appeals asserting that (1) a probation condition requiring a sex offender evaluation following a conviction for aggravated assault violates due process by impermissibly deviating from the plea agreement, (2) the circuit court unlawfully delegated its judicial authority to the CSO, (3) a probation condition imposing a sexual offender evaluation following a conviction for aggravated assault is unreasonable, and (4) there is insufficient evidence in the record for this Court to conduct a meaningful review of the circuit court's order revoking his suspended sentence.

Analysis and Decision

[¶ 12.] We address only Blakney's second issue, as it is dispositive. ² He argues that the circuit court improperly delegated its judicial authority when it allowed the CSO to create and impose a condition of probation for a sex offender evaluation and treatment. Because the court did not order him to undergo a sex offender evaluation or complete sex offender treatment, Blakney avers that the CSO could not impose those conditions on him. In response, the State argues that the circuit court did not disclaim responsibility, because it “held three evidentiary revocation hearings, at which the court ratified [the] court services' sex offender counseling order.”

[¶ 13.] This Court has never addressed the issue of improper delegation of judicial power to a non-judicial officer in the context of a CSO's authority to impose a treatment program, counseling, or evaluation as a condition of probation. A review of federal case law, however, reveals that although a non-judicial officer has the authority to decide procedural and administrative details for ordered probation conditions, it is the court that must make all the decisions concerning the nature, extent, and conditions of a defendant's probation.³ This is because the authority to impose a sentence is strictly a judicial function,...