State v. Bucholz

• Decision Date: 20 November 1986
• Docket Number: No. 15314,15314
• Citation: 403 N.W.2d 400
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Larry D. BUCHOLZ, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 400

403 N.W.2d 400

STATE of South Dakota, Plaintiff and Appellee, v. Larry D. BUCHOLZ, Defendant and Appellant.

No. 15314.

Supreme Court of South Dakota.

Considered on Briefs Nov. 20, 1986.

Decided April 1, 1987.

Richard D. Coit, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

Al Arendt of Maher & Arendt, Pierre, for defendant and appellant.

FOSHEIM, Retired Justice.

Larry D. Bucholz (Bucholz) was arrested November 8, 1985, for driving while under the influence. Approximately a week later he was again arrested for DWI. Bucholz was charged with the two DWIs and also as an habitual offender under SDCL 22-7-8. He agreed to plead guilty to the two DWI offenses in exchange for dismissal of the habitual offender charge. We reverse and remand.

Bucholz' sentencing hearing was held February 25, 1986, at 9 a.m. His employer testified Bucholz was a good worker and always sober while at work. Bucholz' ex-wife, Dawn Bucholz, testified that she and Bucholz had reconciled and had been living together for approximately three months prior to the date of sentencing. She also testified that to her knowledge Bucholz had not drank at all during that time. Also, prior to receiving testimony the judge related to the parties that an employee of Capital Area Counseling informed him that Bucholz had been enrolled in the counseling services' alcohol program, had good class attendance, and did a "good job" in the program.

Bucholz has a long history of alcohol-related criminal behavior. Although charged with only his second and third DWI, the court noted that Bucholz' "rap sheet" indicated the two present DWI convictions were apparently his sixth and seventh. This "rap sheet" contained many other entries of criminal conduct, which apparently were also alcohol related. Bucholz admitted to having been sentenced to the penitentiary on two occasions.

In light of Bucholz' history of alcohol abuse, the court inquired what he had done to change his drinking habits. Bucholz replied that after these two most recent DWI arrests, he had undergone alcohol abuse treatment for the first time. Relying upon this information, the court then pronounced five-month concurrent sentences in the Hughes County Jail. Furthermore, his driving privileges were revoked for a period of two years after his release. Bucholz was allowed work release.

Approximately one hour after the first sentencing hearing the judge called the parties back into the courtroom and made this announcement:

Immediately after the conclusion of the [prior] sentencing [hearing] ... the Deputy States Attorney, caught me in the hall and said that he wished that he would have read a case report that he had in his hand prior to the sentencing. [The report was issued in a criminal case being prosecuted against another defendant.] [T]he report was dated February 17th of 1986.... [It] indicates that Dawn Bucholz, who testified at the defendant's sentencing here today, had called the police on that date ... and indicated ... Mr. Bucholz, was driving a vehicle and was intoxicated and that they ought to investigate the matter.

The report went on to indicate that they had stopped the vehicle that had been identified; that apparently the defendant, Mr. Bucholz, was not driving the vehicle but was a passenger in the front seat.

The report doesn't indicate the state of the defendant's intoxication. However, I then called Officer Halling and asked him if, in his estimation, the defendant had been consuming alcoholic beverage prior to the time that he observed Mr. Bucholz on the 17th. And officer Halling's response was something to the effect that Mr. Bucholz was very drunk.

Again, I sentenced the defendant the way I did entirely because of the fact that it had been represented to me that he had not been consuming any alcoholic beverages. And in finding some evidence now, at least, that he has been consuming alcoholic beverages, I'm going to vacate the sentence of this court which was handed down just about an hour ago and intend to resentence the defendant. And I can tell you right now the sentencing will be more severe than the sentence previously [imposed].

The court then informed counsel that a further hearing would be held in which Bucholz would have an opportunity to controvert the matters revealed to the judge following the previous sentencing hearing.

The resentencing hearing was held approximately one week later. The State first called the officer who stopped Bucholz and the driver. He testified that Bucholz' speech was slurred, his breath had a strong odor of alcohol, his eyes were bloodshot, he had difficulty standing, and difficulty placing the key in the lock on the car's door. He testified that in his opinion Bucholz "definitely was intoxicated." Another policeman who arrived at the scene testified that Bucholz was staggering.

The State then called the dispatcher who took the call from the person identifying herself as Dawn Bucholz. He testified that the caller informed the police that the driver of Bucholz' car was very drunk.

Defense counsel then called Dawn Bucholz. She stood by her testimony given in the prior hearing that the defendant had been sober since they were back together. She was not asked whether she made the call to the police.

After hearing this testimony the court found the defendant had been drinking between his arraignment and sentencing, contrary to the evidence presented at the initial sentencing hearing. It also found that Dawn Bucholz did make the alleged call to the police the evening of February 17. Based upon these new factual findings, the court reinstated the five-month Hughes County jail sentence for the November 8th offense. On the latter offense, however, Bucholz was resentenced to two years in the South Dakota State Penitentiary. His driving privileges were again revoked for two years after his release.

The judge indicated he based his power to vacate the prior judgment in favor of a harsher one upon SDCL 23A-31-1 and State v. Ford, 328 N.W.2d 263 (S.D.1982). SDCL 23A-31-1 provides:

A court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided in this section for the reduction of sentence. A court may reduce a sentence:

(1) Within one year after the sentence is imposed;

(2) Within one hundred twenty days after receipt by the court of a remittitur issued upon affirmance of the judgment or dismissal of the appeal; or

(3) Within one hundred twenty days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction;

whichever is later. A court may also reduce a sentence upon revocation of probation or suspension of sentence as provided by law. The remedies provided by this section are not a substitute for nor do they affect any remedies incident to post-conviction proceedings.

Bucholz correctly argues that the lower court could not rely on SDCL 23A-31-1 to modify his sentence. "[A] trial court may not use SDCL 23A-31-1 to increase the length of a sentence." State v. Tibbetts, 333 N.W.2d 440 (S.D.1983) (citing Ford, supra ). Furthermore, since there was nothing "illegal" about Bucholz' original sentence, SDCL 23A-31-1 did not apply to any attempted correction. See 8A J. Moore, Moore's Federal Practice p 35.03 (2d ed. 1986); 3 C. Wright, Federal Practice and Procedure: Criminal Sec. 582 (2d ed. 1982).

Since the trial court was unable to rely on SDCL 23A-31-1 in increasing Bucholz' sentence, its authority, if any, must come from another source. In Ford, this court reaffirmed its holding in State v. Hughes, 62 S.D. 579, 584, 255 N.W. 800, 802 (1934), that "as against an unwilling defendant, a valid sentence cannot be increased in severity after he has commenced the serving thereof...." See also State v. Jackson, 272 N.W.2d 102 (S.D.1978); Ex parte Watt, 73 S.D. 436, 44 N.W.2d 119 (1950). The State in this case argues that since the resentencing occurred only approximately one hour after his initial sentencing, Bucholz never began serving the first punishment prescribed. In Ford, however, we held a "sentence commences as soon as the prisoner suffers some confinement in the custody of a sheriff." 328 N.W.2d at 267. We note that at the close of the original sentencing hearing the trial judge ordered that Bucholz be "remanded to the custody of the sheriff to start serving the jail sentence." We can assume Bucholz was then in confinement. See Ford, supra.

Reversed and remanded to reinstate the original sentence.

MORGAN and SABERS, JJ., concur.

WUEST, C.J., and HENDERSON, J., dissent.

MILLER, J., not having been a member of the Court at the time this action was submitted to the Court, did not participate.

WUEST, Chief Justice (dissenting).

In Ford, this court followed the general rule that a valid sentence may not be increased once a defendant has commenced to serve that sentence. 328 N.W.2d at 267. See also, Annot., 26 A.L.R. 4th 905, 912 Sec. 3 (1983). This court held that the oral sentence is the only sentence and courts are precluded from entering a written judgment that differs from the prior oral one. Ford also held that the sentence commences almost immediately after oral imposition of sentence; specifically, commencement begins with the trial judge's order remanding the defendant to the custody of the county sheriff immediately following oral sentencing.

While I reserve criticism of the Ford case, I believe we should affirm the trial courts resentencing regardless of our holding in Ford. I agree that SDCL 23A-31-1 does not provide authority for the courts to increase a defendant's sentence when correcting an illegal sentence. Ford, supra. However, the statute does not prohibit a court from imposing a greater sentence, and Ford does not hold that a court may never vacate a void sentence and thereafter impose a greater sentence upon...